People v. Carrasco CA4/1 ( 2021 )

Filed 12/22/21 P. v. Carrasco CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078123
Plaintiff and Respondent,
v. (Super. Ct. No. SCD208418)
CARLOS HUMBERTO CARRASCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene
Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2008, a jury convicted Carlos Humberto Carrasco of two counts of
second degree murder (Pen. Code,1 § 187, subd. (a)) and one count of shooting
into an inhabited dwelling (§ 246). The jury found the crimes were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and
that a principal used a firearm causing the death of a person (§ 12022.53,
subds. (d) and (e)). The court sentenced Carrasco to an indeterminate term of
80 years to life in prison.
Carrasco appealed and this court affirmed the judgment in an
unpublished opinion, People v. Carrasco, D054174 (July 13, 2010).
In 2020, Carrasco filed a petition for resentencing under section
1170.95. The court appointed counsel, received briefing, reviewed the record
of conviction, and then denied the petition. Based on the prior opinion of this
court, the trial court denied the petition, finding the record demonstrated
Carrasco acted with actual or implied malice. Carrasco filed a timely notice
of appeal.
Carrasco contends, the court erred in concluding he was ineligible for
resentencing without first issuing an order to show cause (OSC) and
conducting an evidentiary hearing. He argues, the trial court should not
have relied on this court’s prior opinion to determine he acted with express or
implied malice in the commission of the offenses in this case. We will find the
court properly considered the record of conviction including this court’s prior
opinion. We believe that under the facts of the case, the prior opinion
correctly concluded Carrasco was either the actual killer or was a direct aider
and abettor who acted with implied malice. We will affirm the trial court’s
denial of Carrasco’s petition.
1 All further statutory references are to the Penal Code.
2
STATEMENT OF FACTS
The following summary is from the relevant portion of the facts from
our prior opinion, People v. Carrasco, supra, D054174.
“1. The People’s Evidence
“a. The June 22, 2007 Shootings
“On June 22, 2007, [K.L.] was in a car in an alley. [K.L.] saw four men
in the alley, one of whom was yelling at a fifth man. According to [K.L.] , one
of the men from the group of four struck the fifth man in the head with a
bottle. [K.L.] ducked down in the car. Shortly thereafter, she heard two
gunshots.
“A second witness, [I.S.], identified Carrasco in court as having been
present in the alley during the June 22 shootings. [I.S.] also testified that
she had previously identified [Jose] Nogales from a series of photographs as
having been present in the alley and having fled the scene with a black gun
tucked in his waistband. Carrasco’s DNA was discovered on a bottle found at
the scene of the June 22 shootings. Cartridge cases that matched the gun
used in the murders charged in counts 3 and 4 were found at the scene of the
June 22 shootings.
“b. The July 8, 2007 Murders
“Just after midnight on July 8, 2007, several members of the Perez
family and their friends were standing outside the Perez home, talking. A
white pickup truck passed slowly by the Perez residence, made a U-turn at a
cross street, and slowly approached the Perez residence again. Inside the
pickup truck were the driver and at least one passenger. As the truck
approached the Perez residence, it began driving even more slowly. The
driver’s side of the truck was closest to the Perez residence. The driver of the
truck shouted through his open window, ‘Paradise Hills. Paradise Hills.
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P.H.’ The driver also asked, ‘Where you from?’ The driver appeared to be
attempting to start a fight. [F.P.], who was standing close to the truck,
angrily responded, ‘Get out of here.’ The passenger door of the truck then
opened, and the passenger began shooting at the people standing outside the
Perez home. Both [F.P.] and his brother, [J.P.], died from gunshot wounds to
their heads.
“At approximately 3:30 a.m. that morning, police saw Carrasco at a gas
station standing next to a white pickup truck. Police detained Carrasco and
his girlfriend, [J.G.], who was in the truck. Several people who had been
outside the Perez residence at the time of the shootings, including [R.P.],
were taken to the gas station and asked whether they could identify Carrasco
as one of the perpetrators of the Perez murders. [R.P.] told police, ‘Sure looks
like him. . . .’ A second eyewitness, [B.A.], told police that Carrasco was a
‘good candidate.’
“While police were detaining Carrasco at the gas station, they learned
that Carrasco had just dropped off Nogales at Nogales’s apartment. At
approximately 6:00 a.m. that morning, police went to Nogales’s apartment,
arrested him, and found the firearm that was used in both the June 22
shootings and the July 8 murders.
“c. Gang Evidence
“The Paradise Hills criminal street gang has approximately 48
members. Carrasco and Nogales are active members of the gang. The July 8
murders were committed in the territory of a gang called the ‘Lomita Village
70s.’ The Paradise Hills gang and the Lomita Village 70s gang have a long
standing rivalry.
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“2. The Defense
“Carrasco presented the testimony of several eyewitnesses who had not
identified him at the gas station on the night of the murders. Carrasco also
testified at trial. Carrasco admitted that he had been driving his girlfriend’s
mother’s white pickup truck on the night of the murders. Carrasco also
admitted that he was a member of the Paradise Hills gang, that he was close
friends with Nogales, and that he had spent the evening of the murders with
Nogales at a party. Carrasco denied having driven the white pickup truck
near the time of the murders. Nogales presented no witnesses in his
defense.”
DISCUSSION
I
Legal Principles
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) was
enacted 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.’ ” (People v. Gentile (2020) 10
Cal.5th 830, 842.)
Section 1170.95, subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be extended for good
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cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. If so, the court must issue an OSC and hold an evidentiary hearing
on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
However, the court may deny the petition if the person is ineligible as a
matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981.) The
court may review the record of conviction, including any prior appellate
opinion, to determine if the petitioner’s allegations are rebutted by the
record. (Lewis, at p. 972.) However, the court may not engage in factfinding
and weighing credibility at the prima facie stage of petition review. (Drayton,
at p. 979.)
The court in Lewis went on to explain the process of reviewing petitions
for resentencing under section 1170.95. The court said: “The record of
conviction will necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima
facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were proved. If so, the
court must issue an order to show cause.” ’ ” (Ibid.)
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“ ‘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.) “Appellate
opinions . . . are generally considered to be part of the record of conviction.”
(Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the
parties can, and should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie case for relief
under [section 1170.95], subdivision (c).” (Ibid.)
II
The Record of Conviction
Having established the trial court was correct in reviewing the record
of conviction, we next turn to the content of the record. The case against
Carrasco was prosecuted on the theory he was either the actual killer or a
direct aider and abettor who acted with at least implied malice. The jury was
not instructed on the natural and probable consequences doctrine. The jury
was instructed on the second degree felony murder doctrine based on the
death arising from shooting at an inhabited dwelling. On appeal, this court
determined the second degree felony murder instruction was improper in
light of People v. Chun (2009) 45 Cal.4th 1172, which was decided after the
trial was completed. In light of the erroneous instruction, it was necessary
for this court to determine whether the error was harmless beyond a
reasonable doubt.
The court evaluated the evidence that established the fatal shooting
was accomplished by shooting into an occupied dwelling. This court found
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the instructional error harmless beyond a reasonable doubt. Having
analyzed the evidence the court said: “ ‘In light of this evidence, no juror
could have found that either of the appellants ‘participated in this shooting,
either as a shooter or as an aider and abettor, without also finding that [each]
committed an act that is dangerous to life and did so knowing of the danger
and with conscious disregard for life—which is a valid theory of malice.’ ”
(People v. Carrasco, supra, D054174, quoting People v. Chun, supra, 45
Cal.4th at p. 1205.)
In the prior opinion, this court did not merely find substantial evidence
of malice. It found beyond a reasonable doubt that the jurors, with their
verdict, necessarily concluded that Carrasco acted with express or implied
malice under a theory of malice, which is still valid after the enactment of
Senate Bill 1437.
In light of this court’s finding, and the absence of any instruction on
natural and probable consequences, the trial court correctly concluded
Carrasco was not eligible for relief under section 1170.95. Therefore, the
court was not required to issue an order to show cause and hold an
evidentiary hearing.2
2 The parties have engaged in lengthy briefing on the application of the
doctrine of law of the case. We find it unnecessary to weigh in on the debate.
The record of conviction, which includes this court’s holding, establishes
Carrasco was found guilty on a valid theory of malice.
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DISPOSITION
The order denying Carrasco’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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