People v. Aguirre CA2/7 ( 2021 )

Filed 12/16/21 P. v. Aguirre CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312060
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA033695-02)
v.
TRINIA IRENE AGUIRRE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Mike Camacho, Judge. Affirmed.
Trinia Irene Aguirre, in pro. per., and Victor J. Morse,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
________________
Following a bench trial in 1998 Trinia Aguirre was
convicted of four counts of first degree premeditated murder with
a multiple-murder special-circumstance finding and sentenced to
concurrent state prison terms of life without parole.
On October 19, 2020 Aguirre, representing herself, filed a
petition for resentencing pursuant to Penal Code
section 1170.95,1 averring she had been convicted of murder
under the natural and probable consequences doctrine or felony-
murder rule and could not now be convicted of murder because of
amendments to sections 188 and 189. The superior court denied
Aguirre’s petition without appointing counsel or requesting
further briefing, ruling Aguirre was ineligible for resentencing as
a matter of law based on the 1998 trial court finding that she had
acted with “deliberate, premeditated and wilful intent” in aiding
in the commission of the murders.
No arguable issues have been identified following review of
the record by Aguirre’s appointed appellate counsel. We also
have identified no arguable issues after our own independent
review of the record and analysis of the contentions presented by
Aguirre in her supplemental brief. We affirm.
FACTUAL BACKGROUND
1. The Home Invasion Murders
Aguirre and her boyfriend, David Alvarez, were charged
with multiple counts of murder and attempted murder following
a home invasion in which four people were shot to death and
several others were wounded. Alvarez, who was the principal
perpetrator, was armed with a gun; Aguirre used a knife. (People
v. Aguirre (Jan. 26, 2000, B128911) [nonpub. opn.].)
1 Statutory references are to this code.
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Aguirre was tried without a jury. The court concluded
Alvarez had entered the victims’ home intending to murder
Patricia Garcia, his former wife, and other members of her
family. “The robbery of the victims was an afterthought,” the
court found, “which arose by virtue of the fact that neither
Patricia nor her brothers, the clearly intended murder victims,
were home.” The court disbelieved Aguirre’s testimony that she
was an unwilling accomplice, forced by Alvarez to participate in
the crimes, and rejected her defense of duress. The court
explained the testimony of the surviving witnesses
“demonstrate[d] [that] she voluntarily accompanied David to help
him exact revenge on Patty and her family.” The court also cited
Aguirre’s post-crime activity as additional evidence of her intent
at the time of the crimes—“an intent to aid and assist David
Alvarez in this horrific slaughter.” The court expressly found
Aguirre’s “deliberate, premeditated and wilful intent to aid David
Alvarez in the commission of the crimes of murder is established
beyond a reasonable doubt by her having tied the victims, turned
up the television set to full volume, closed windows, and turned
up the air conditioning, to cover the sound of gunshots.”
Aguirre was convicted of four counts of first degree murder
(§ 187, subd. (a)), three counts of attempted murder (§§ 187,
subd. (a), 664) and four counts of first degree residential robbery
(§ 211). The court found true a multiple-murder special-
circumstance allegation (§ 190.2, subd. (a)(3)) and several
weapons-related enhancements, but not true a robbery-murder
special-circumstance allegation (§ 190.2, subd. (a)(17)). Aguirre
was sentenced to four concurrent state prison terms of life
without parole plus one year for a weapons enhancement, plus
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additional concurrent determinate terms on the remaining
charges.
On Aguirre’s direct appeal we modified the judgment by
striking a one-year enhancement imposed on Aguirre because
Alvarez had been armed with a gun (§ 12022, subd. (a)(1)) and
otherwise affirmed the judgment of conviction. (People v.
Aguirre, supra, B128911.)
2. Aguirre’s Petition for Resentencing
On October 19, 2020 Aguirre, representing herself, filed a
printed form petition for resentencing pursuant to
section 1170.95 with a separate typewritten supporting petition
and declaration. Aguirre declared she had been convicted of
murder under the felony-murder rule and erroneously stated the
trial court had found true the robbery-murder special-
circumstance allegation. In her supporting papers Aguirre
argued she could not now be convicted of murder under the
felony-murder rule in light of the Supreme Court’s clarification in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark) of the requirements for
finding an accomplice was a major participant in the underlying
felony and acted with reckless indifference to human life for
purposes of the felony-murder special circumstance as described
in section 190.2, subdivision (d). Aguirre requested the court
appoint counsel for her during the resentencing process.
On October 21, 2020 the matter was transferred to
Department EA-P, Hon. Mike Camacho, because the sentencing
bench officer (Hon. Florence-Marie Cooper) was no longer
available to hear the matter. On December 21, 2020 the superior
court summarily denied Aguirre’s petition without appointing
counsel, finding “the defendant to be a direct participant as
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indicated in the record.” In its comments on the record the court
repeated Aguirre’s error and stated she had been convicted of
special-circumstance robbery murder. The court continued, “It is
abundantly clear that she was a major participant in the home
invasion murders and acted with reckless disregard, which would
justify the special circumstance finding even pre-Banks and pre-
Clark.” The court then read into the record the trial court’s
findings, including that, beyond a reasonable doubt, Aguirre had
acted with “‘deliberate, premeditated and willful intent’” in
aiding Alvarez in the commission of the murders.
Aguirre filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437
Senate Bill No. 1437 (Stats. 2018, ch. 1015), effective
January 1, 2019, substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e)(3); see People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).)2 It also authorized, through new section 1170.95, an
2 With respect to the felony-murder rule, new section 189,
subdivision (e), provides a participant in the perpetration or
attempted perpetration of a felony listed in section 189,
subdivision (a), in which a death occurs—that is, as to those
crimes that provide the basis for the charge of first degree felony
murder—that the individual is liable for murder “only if one of
the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited,
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individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill No. 1437’s changes to the
definition of the crime. (Lewis, at p. 957; Gentile, at p. 843.)
In determining whether a petitioner has carried the burden
of making a prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, it is
appropriate to examine the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
2. Aguirre’s Appeal
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Aguirre on appeal.
After reviewing the record, Aguirre’s counsel filed a brief raising
no issues. Appointed counsel advised Aguirre on November 1,
2021 that she had 30 days after he filed his no-issue brief to
submit a brief or letter raising any grounds of appeal, contentions
or arguments she wanted the court to consider.
On December 8, 2021 we received a 14-page typewritten
supplemental letter brief from Aguirre that asserts (1) the
superior court erred in failing to appoint counsel to represent her
when assessing whether she had made a prima facie showing of
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”
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entitlement to relief pursuant to section 1170.95, subdivision (c),
as required by Lewis, supra, 11 Cal.5th at pages 962 through 963,
and (2) the record of conviction fails to demonstrate as a matter
of law that she was a major participant in the underlying robbery
and had acted with reckless indifference to human law and could
now be convicted of murder under the felony-murder rule.
Aguirre is correct that under Lewis, which was decided
seven months after the denial of her petition, she was entitled to
appointment of counsel because her petition contained all the
required information, including her declaration that she was
eligible for relief under section 1170.95. However, the Lewis
Court also held a superior court’s failure to appoint counsel to
represent a petitioner when assessing whether he or she had
made a prima facie showing of entitlement to relief under
section 1170.95, subdivision (c), was state law error only,
reviewed for prejudice under the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th
at pp. 957-958, 973-974.) Here, because the record of conviction
established Aguirre was not convicted under the felony-murder
rule but as a direct aider and abettor who had acted with express
malice (deliberate, premediated and willful intent), she was
ineligible for resentencing relief as a matter of law. There is no
reasonable probability she would have obtained a more favorable
result if counsel had been appointed for her and given the
opportunity to file a memorandum supporting the petition.
Accordingly, the court’s error in failing to appoint counsel, as well
as any error in misidentifying the basis for her convictions of
murder, was harmless.
Because no cognizable legal issues have been raised by
Aguirre’s appellate counsel or by Aguirre or identified in our
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independent review of the record, the order denying the
postjudgment motions is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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