People v. Valencia CA2/5 ( 2021 )

Filed 12/10/21 P. v. Valencia CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B308833
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA036296-01)
v.
DAVID VALENCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
William L. Heyman, 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, Senior
Assistant Attorney General, Amanda V. Lopez and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant and appellant David Valencia appeals the trial
court’s order denying his petition for vacatur of his second degree
murder conviction and resentencing under Senate Bill No. 1437
and Penal Code section 1170.95.1
Valencia argues that the trial court erred by relying on the
record of conviction to deny his petition. Alternatively, he argues
that the jury may have convicted him under a natural and
probable consequences theory because it was instructed under
CALJIC No. 8.31, which mentions natural and probable
consequences, and because the prosecutor’s argument may have
confused the jurors. He also argues that, under the facts of this
case, he may not have been the actual killer.2 Valencia asserts
that he has made a prima facie showing of entitlement to relief
and that the trial court must issue an order to show cause. He
further contends that he was prejudiced because the original
sentencing judge did not rule on his petition, as section 1170.95,
subdivision (b)(1) requires. Finally, Valencia contends that, to
the extent that any of the issues he raises have been forfeited by
1 All further
statutory references are to the Penal Code
unless otherwise indicated.
2 The trial courtdenied the petition solely on the basis that
Valencia was the actual killer; however, the prosecutor argued
that Valencia was ineligible for relief because the jury was not
instructed under the felony murder or natural and probable
consequences theory in the trial court. On appeal, we may affirm
“on any basis supported by the record even if not expressly relied
upon by the trial court.” (CUNA Mutual Life Ins. Co. v. Los
Angeles County Metropolitan Transportation Authority (2003) 108
Cal.App.4th 382, 397.)
2
counsel’s action or inaction, counsel rendered ineffective
assistance.3
We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY 4
In 1998, Valencia was riding in a stolen car with two other
men when they encountered a prostitute. Valencia proposed that
the woman take a drive with the men. She refused, and instead
suggested that they go to a hotel room. Valencia tried to grab the
woman’s hand, but she slapped him. Valencia got angry. The
men parked the car by the hotel, and Valencia exited the vehicle.
Using a semi-automatic firearm, Valencia fired seven shots into
the woman’s room. The woman was struck in the torso, and her
3 Valencia also makes two unnecessary arguments. First,
he contends that, although his petition does not appear to contain
an explicit declaration that he is eligible for relief, he should not
be faulted for the omission because he relied on a pre-printed
form that was supplied to him; at most the trial court should
have denied the petition without prejudice to re-filing. The trial
court did not deny the petition on this basis. The court assumed
that Valencia met the basic requirements set forth in section
1170.95, subdivision (a), but instead denied the petition on the
basis of the information contained in the record of conviction.
Second, Valencia argues that section 1170.95 is constitutional.
The trial court did not deny the petition on the basis that it is
unconstitutional, and the People do not contest the issue on
appeal.
4 We have taken judicial notice of the prior opinion of
another panel of this court in People v. Valencia (2000) 82
Cal.App.4th 139 (Valencia), from which the facts are drawn.
3
liver was perforated. She was hospitalized for nine days and died
as a result of the onset of adult respiratory distress syndrome
and probable sepsis caused by the gunshot wound. (Valencia,
supra, 82 Cal.App.4th at p. 142.)
At trial, the jury was instructed on second degree murder
under CALJIC No. 8.31. In closing argument, the prosecutor
argued that Valencia could be convicted under one of two theories
of murder—the jury could find that he harbored express malice or
that he acted with implied malice.
Valencia was convicted of second degree murder (§ 187,
subd. (a)), discharging a firearm into an inhabited dwelling
(§ 246), and grand theft of an automobile (§ 487, subd. (d)). The
jury found true the allegations that Valencia personally used a
firearm within the meaning of section 12022.5, subdivision (a)(1),
and that he personally discharged a firearm causing death
(§ 12022.53, subd. (d)). The convictions and enhancement
findings were returned in a trial and a retrial. (Valencia, supra,
82 Cal.App.4th at p. 141.) The trial court sentenced Valencia to a
total of 40 years 8 months to life in state prison.
As relevant here, on appeal Valencia argued that the
section 12022.53, subdivision (d) enhancement must be reversed
because at the time of the homicide it could not enhance the
crime of murder. Another panel of this court rejected the
contention and affirmed the judgment. (Id. at pp. 141–142.)
On April 9, 2019, Valencia filed a petition for resentencing
pursuant to section 1170.95. The trial court appointed counsel.
On August 19, 2019, the People filed a response to the
petition, arguing that section 1170.95 was unconstitutional, but
that, even if the provision was constitutional, Valencia was
ineligible for relief because the record of conviction demonstrated
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that the jury was not instructed on felony murder or under a
natural and probable consequences theory, and that he was the
actual killer.
On December 30, 2019, Valencia filed an opposition to the
response and a supplemental brief arguing that section 1170.95
was constitutional.
On August 19, 2020, Valencia filed a reply arguing that the
trial court was prohibited from considering the record of
conviction prior to issuing an order to show cause and holding a
hearing, but that, even if the trial court could consider the record
of conviction, the jury had been instructed regarding the natural
and probable consequences theory under CALJIC No. 8.31. He
attached CALJIC No. 8.31, as given to the jury and the
prosecutor’s argument to the jury
On October 2, 2020, the trial court held a hearing on
Valencia’s section 1170.95 petition. The parties argued the
merits of the petition as detailed in the briefing. Valencia’s
counsel’s position was that the jury had been instructed on
second degree murder, and that implied malice was no longer a
valid basis for murder liability. The prosecutor argued that
second degree murder under an implied malice theory was
distinct from the natural and probable consequences doctrine,
and that it was still a valid theory of liability following the
amendments effected by Senate Bill 1437, regardless of whether
the defendant was the actual killer. After hearing argument
from the parties, the court denied the petition. It ruled that
Valencia failed to make a prima facie showing of eligibility
because the record established that he was the actual killer.
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DISCUSSION
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section
1170.95, which provides a procedure for convicted murderers who
could not be convicted under the law as amended to retroactively
seek relief. (See [People v.] Gentile[ (2020)] 10 Cal.5th [830] 843.)
“Pursuant to section 1170.95, an offender must file a
petition in the sentencing court averring that: ‘(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.’
(§ 1170.95, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).)
Additionally, the petition shall state ‘[w]hether the petitioner
requests the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to comply with subdivision (b)(1), ‘the court may
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deny the petition without prejudice to the filing of another
petition.’ (§ 1170.95, subd. (b)(2).)
“Where the petition complies with subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for
relief. (§ 1170.95, subd. (c).)” (People v. Lewis (2021) 11 Cal.5th
952, 959–960 (Lewis).)
Analysis
Eligibility
Valencia’s contention that the trial court was not permitted
to review the record of conviction when determining eligibility
under section 1170.95 fails: our Supreme Court recently held that
review of the record of conviction is appropriate at this stage.
(Lewis, supra, 11 Cal.5th at p. 970.) Jury instructions are part of
the record of conviction.
Valencia’s contention that the jury may have been confused
and convicted him under the natural and probable consequences
theory of liability is also without merit. The jury instructions in
this case demonstrate that Valencia was not and could not have
been convicted of second degree murder under the natural and
probable consequences doctrine. The jurors were not provided
any instruction on which they could have found Valencia guilty of
murder under that doctrine. Rather, under the instructions, the
jury necessarily found Valencia culpable for murder based on his
own actions and mental state as a direct perpetrator.
The jury was instructed on second degree implied malice
murder under CALJIC No. 8.31: “Murder of the second degree is
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also the unlawful killing of a human being when: [¶] 1. The
killing resulted from an intentional act, 2. The natural and
probable consequence of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life. [¶]
When the killing is the direct result of such an act, it is not
necessary to prove that the defendant intended that the act
would result in the death of a human being.”
Although the instructions for implied malice murder
include the words “natural and probable consequence,” implied
malice and natural and probable consequences are distinct
concepts. “Whereas implied malice is based on ‘the “natural and
probable consequences” of a defendant’s own act,’ the natural and
probable consequences doctrine [abrogated by Senate Bill 1437]
was ‘a theory of vicarious liability under which “[a]n aider and
abettor [was] guilty not only of the intended, or target, crime but
also of any other crime a principal in the target crime actually
commit[ted] (the nontarget crime)”’—including murder—‘“that
[was] a natural and probable consequence of the target crime.”’
[Citation.] ‘Because a nontarget murder “‘[was] unintended, the
mens rea of the aider and abettor with respect to that offense
[was] irrelevant and culpability [was] imposed simply because a
reasonable person could have foreseen the commission of the
[murder].’”’ [Citation.]” (People v. Rivera (2021) 62 Cal.App.5th
217, 231–232, fn. omitted (Rivera), abrogated on another ground
in Lewis, supra, 11 Cal.5th 952.)
“‘[Senate Bill 1437] abolished the natural and probable
consequences doctrine’ as a theory of vicarious liability, [but] ‘it
maintained the viability of murder convictions based on implied
malice, and the definition of implied malice remains unchanged.’
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[Citation.] In other words, a person may still be convicted of
second degree murder, either as a principal or an aider and
abettor, ‘if the person knows that his or her conduct endangers
the life of another and acts with conscious disregard for life.’
[Citations.]” (Rivera, supra, 62 Cal.App.5th at p. 232.)
We reject Valencia’s argument that the prosecutor’s closing
statement may have confused the jury, causing it to convict him
on a natural and probable consequences theory even in the
absence of an instruction. First, “‘[w]e presume that jurors treat
the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ [Citation.]” (People v. Cortez (2016) 63
Cal.4th 101, 131.) Regardless, the record does not support his
contention. Valencia points to the prosecutor’s statement that:
“The Court will tell you that when a person intentionally engages
in an act, the natural and probable consequences of which are
dangerous to human life, then you may imply the malice
aforethought and convict the defendant of murder, even though
you’re not sure that in his mind his intent was to kill.” As
Valencia concedes, the statement related to implied malice and
CALJIC No. 8.31. There is nothing in the prosecutor’s comments
to suggest that Valencia’s intent to commit a different offense
could be the basis for vicarious murder liability. Because the jury
was not instructed under the natural and probable consequences
doctrine, it could not have convicted Valencia under that theory.
He is therefore ineligible for relief as a matter of law.5
5Having determined that Valencia is ineligible for relief
because the jury was not instructed on felony murder or the
natural and probable consequences doctrine, we need not address
9
Resentencing Court
Valencia claims that reversal is also required because a
judge who was not the original sentencing judge ruled on the
petition. We agree with the People that Valencia waived this
contention by failing to raise it below, but that, even if we were to
assume error, it was harmless.
In People v. Santos (2020) 53 Cal.App.5th 467, 474 (Santos)
we held that section 1170.95, subdivision (b)(1), requires “the
individual public official” who sentenced the defendant to rule on
the petition unless the presiding justice of the superior court has
determined that judge is unavailable. The circumstances in
Santos differ significantly from those presented here. First,
unlike Valencia, Santos preserved his claim that the original
sentencing court was required to rule on his petition by raising it
in the trial court. (Id. at p. 471.) Second, in Santos’s case, the
People conceded that Santos made a prima facie showing of
eligibility. (Id. at p. 469.) Moreover, in Santos it was not
necessary to assess the effect of the error because remand was
required on a different ground.
Valencia asserts that he was prejudiced by the fact that his
petition was not decided by the judge who sentenced him, but he
does not explain how he was prejudiced. The instructions given
to the jury establish that Valencia was not prosecuted on a theory
of felony murder or under the natural and probable consequences
doctrine. (Id. at p. 676.) Because he was convicted under a
whether he was ineligible because the record demonstrated that
he was the actual killer.
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theory of murder that is still valid, Valencia is ineligible for relief
under section 1170.95 as a matter of law. In Santos, we noted
that “[a]lthough both the petitioner and the prosecution are
permitted to present additional evidence beyond that introduced
at the time of conviction, a judge who is familiar with the facts,
evidence, and law already part of the record is better equipped to
rule on a petition than a different judge, unfamiliar with the
case, who is reviewing a cold record.” (Santos, supra, 53
Cal.App.5th at p. 474.) Here, it is not necessary to delve into the
particulars of Valencia’s case; a court’s familiarity with the record
would not have aided his cause.
Ineffective Assistance of Counsel
Finally, Valenica’s contention that counsel rendered
ineffective assistance fails. Even if we were to assume that a
defendant has a Sixth Amendment right to counsel in
postconviction proceedings under section 1170.95, here there is
no evidence that counsel failed to act with reasonable
competence, and it is not reasonably probable that a
determination more favorable to Valencia could have been
reached, given that he is ineligible for relief as a matter of law.
(People v. Doolin (2009) 45 Cal.4th 390, 417 [claims of ineffective
assistance of counsel “require a defendant to show (1) counsel’s
deficient performance, and (2) a reasonable probability that,
absent counsel’s deficiencies, the result of the proceeding would
have been different”].)
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DISPOSITION
We affirm the trial court’s order denying Valencia’s petition
for resentencing under section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
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