People v. Preciado CA2/4 ( 2021 )

Filed 12/3/21 P. v. Preciado CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306973
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA161822)
v.
ARTURO PRECIADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1999, appellant Arturo Preciado was convicted of first
degree murder and sentenced to 26 years to life. In 2019,
Preciado filed a petition for resentencing under Penal Code
section 1170.95,1 which the superior court denied. The parties
agree the superior court erred in summarily denying the petition
without appointing counsel. The Attorney General argues the
error was harmless, because the jury instructions from the trial
make clear that Preciado was not convicted for felony murder or
murder under a natural and probable consequences theory, and
therefore he is ineligible for relief under section 1170.95. We
agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our previous opinion, People v. Preciado (May 1, 2000,
B132281) [nonpub. opn.],2 stated the facts of the case as follows:
“On March 10, 1997, appellant [Preciado] and four fellow
members of the Street Villains gang, Jose Flores, Johnny
Berumen, Victor Montenegro, and ‘K-Does,’ were standing
outside K-Does’s house. At a house across the street, Guillermo
Morales and his young daughter were outside on the porch.
Believing Morales to be a member of a rival gang, the Moonlight
Cats, appellant began talking to him. Appellant and Morales
soon began arguing, and Morales said, ‘Watch it. We can get
down right now.’ Morales took his daughter into the house.”
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 In this court, Preciado filed a request for judicial notice of
the opinion in People v. Preciado (May 1, 2000, B132281)
[nonpub. opn.]. We grant that request. The Attorney General
requested judicial notice of the file from Preciado’s direct appeal.
We granted that request in a separate order.
2
“Appellant got into his car, and handed Flores a gun. He
told Flores to pretend he was going to fight Morales but then
shoot him. Morales came out of the house and began taking his
shirt off. Flores fired the gun four times, hitting Morales twice
and killing him. Police officers found four .25-caliber bullet
casings at the scene. They were of the same caliber and were
manufactured by the same company as two boxes of ammunition
found during a search of appellant’s residence the day following
the murder.” (People v. Preciado (May 1, 2000, B132281)
[nonpub. opn.].)
Preciado was “convicted by a jury of first degree murder.
(Pen. Code, § 187, subd. (a).)[ ] The jury also found a principal
was armed during the commission of the offense within the
meaning of section 12022, subdivision (a)(1). The trial court
imposed a sentence of 26 years to life, which sentence included a
one-year term for the armed principal enhancement.” This court
affirmed the conviction. (People v. Preciado (May 1, 2000,
B132281) [nonpub. opn.].)
On January 2, 2019, Preciado filed a petition for
resentencing under section 1170.95. On the form, he checked the
box stating, “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine.” Preciado also checked the boxes stating
that he “did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder in the first degree,” and “I was not a
major participant in the felony or I did not act with reckless
indifference to human life during the course of the crime or
felony.”
3
On February 28, 2019, the superior court denied Preciado’s
petition. The court stated, “Preciado’s jury was not instructed on
a felony murder theory of liability nor on a theory of natural and
probable consequences. While he was not the actual shooter,
Preciado clearly acted with an intent to kill when he handed the
gun to Flores and instructed him to shoot the victim when he
came outside. Having aided and abetted the actual killer and
having acted with the intent to kill, Preciado is specifically
exempted from sentencing relief under Penal Code sections
1170.95 and 189(e)(2). This petition for resentencing is
unmeritorious and is denied.” The court also stated that section
1170.95 violates the California Constitution. Preciado did not
appeal.
More than a year later, on May 12, 2020, Preciado filed a
petition for reconsideration of the court’s denial of his section
1170.95 petition. He argued that the recent opinions in People v.
Torres (2020) 46 Cal.App.5th 1168 (Torres) and People v. Verdugo
(2020) 44 Cal.App.5th 320 (Verdugo)3 “now indicate[ ] that
petitioner is eligible for resentencing.”
On July 7, 2020, the superior court denied Preciado’s
petition, stating that neither Torres nor Verdugo “supports his
plea for §1170.95 relief.” The court noted again the Preciado’s
jury was not instructed on felony murder, and that Preciado “was
convicted of aiding and abetting the actual killer and instructed
him to shoot the victim. Having acted with a clear intent to kill,
Preciado is precluded from §1170.95 relief by Penal Code
§189(e)(2) because he acted with a clear intent to kill . . . .”
3Torres and Verdugo were abrogated by People v. Lewis
(2021) 11 Cal.5th 952 (Lewis).
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Preciado filed a timely notice of appeal from the court’s
second order. In this court, he filed a request for relief from
default, asking “that the notice of appeal filed from the denial of
his petition for reconsideration of the resentencing petition be
deemed notice of appeal from the denial of the original
resentencing petition.” This court granted the request.
DISCUSSION
Preciado contends the superior court erred in summarily
denying his petition without appointing counsel or requesting
briefing, and by relying on the record of conviction in making its
decision. After Preciado’s opening brief was filed, many of his
contentions regarding the right to counsel and procedural
requirements regarding a prima facie showing were settled by
the Supreme Court in Lewis, supra, 11 Cal.5th 952. There, the
court held that “the statutory language and legislative intent of
section 1170.95 make clear that petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition (see § 1170.95, subds. (b), (c)) and that only after the
appointment of counsel and the opportunity for briefing may the
superior court consider the record of conviction to determine
whether ‘the petitioner makes a prima facie showing that he or
she is entitled to relief.’ (§ 1170.95, subd. (c).)” (Lewis, supra, 11
Cal.5th at p. 957.) The court in Lewis also held that the
deprivation of the right to counsel under section 1170.95 is “state
law error . . . tested for prejudice under People v. Watson (1956)
46 Cal.2d 818, 299 P.2d 243 (Watson).” (Id. at pp. 957-958.)
In light of the holding in Lewis, the Attorney General
acknowledges that the superior court’s failure to appoint counsel
for Preciado was error. However, the Attorney General argues
the error was harmless because the record of conviction,
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including the jury instructions, shows Preciado was ineligible for
relief as a matter of law under section 1170.95.
Under the harmless error standard, a section 1170.95
petitioner must “‘demonstrate there is a reasonable probability
that in the absence of the error he . . . would have obtained a
more favorable result.’ [Citations.] More specifically, a petitioner
‘whose petition is denied before an order to show cause issues has
the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
would not have been summarily denied without an evidentiary
hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.)
Preciado cannot meet this burden. Section 1170.95 applies
to “[a] person convicted of felony murder or murder under a
natural and probable consequences theory.” (§ 1170.95, subd.
(a).) On his section 1170.95 petition, Preciado checked the box
stating, “At trial, I was convicted of 1st or 2nd degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine.” However, Preciado’s jury was not
instructed on felony murder or the natural and probable
consequences doctrine.
After the appointment of counsel, “the superior court [may]
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p.
957; see also People v. Soto (2020) 51 Cal.App.5th 1043, 1055
(Soto) [the trial court may “rely on the jury instructions, which
are part of the record of conviction, in assessing the prima facie
showings under section 1170.95(c)”], review granted Sept. 23,
2020, S263939; People v. Daniel (2020) 57 Cal.App.5th 666, 677
(Daniel) [“we conclude it is appropriate to consult the jury
6
instructions in determining whether the trial court’s failure to
appoint counsel for Daniel before denying the petition was
prejudicial”], review granted Feb. 24, 2021, S266336.) “‘[A] court
should not reject the petitioner’s factual allegations [in a section
1170.95 petition] on credibility grounds without first conducting
an evidentiary hearing.’ [Citations.] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the petitioner.”’”
(Lewis, supra, 11 Cal.5th at p. 971.)
Where “no instructions were given on felony murder or
murder under the natural and probable consequences doctrine,”
the petitioner “is not ‘[a] person convicted of felony murder or
murder under a natural and probable consequences theory,’ and
he is therefore ineligible for relief [under section 1170.95] as a
matter of law.” (Daniel, supra, 57 Cal.App.5th at p. 677; see also
Soto, supra, 51 Cal.App.5th at p. 1059 [“Soto did not make a
prima facie showing that he is entitled to relief under section
1170.95 because the jury instructions given at his trial
conclusively demonstrate as a matter of law that he was not
convicted of murder under a natural and probable consequences
theory or of felony murder”].) Here, the jury instructions and the
record of conviction show that Preciado was not convicted of
felony murder or murder under a natural and probable
consequences theory. He is therefore ineligible for relief under
section 1170.95 as a matter of law.
Preciado briefly acknowledges the jury instructions in his
reply brief, but asserts that the “trial court gave only passing
consideration to the jury instructions given at trial.” He argues
that the court instead “looked primarily to the opinion on direct
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appeal” and improperly used the facts as stated in the opinion to
determine Preciado’s role in the crime. We disagree that the
court gave little weight to the jury instructions; the court stated
that “Preciado’s jury was not instructed on a felony murder
theory of liability nor on a theory of natural and probable
consequences,” and Preciado was convicted on an aiding and
abetting theory. Moreover, the weight the superior court afforded
the opinion compared to the jury instructions is irrelevant. Even
assuming arguendo that the superior court improperly relied on
the facts in the opinion, the error was harmless. In light of the
record of conviction, Preciado cannot demonstrate it is reasonably
probable that had he been afforded assistance of counsel, his
petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 974.)
DISPOSITION
The court’s denial of Preciado’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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