People v. Angulo CA3 ( 2022 )

Filed 10/28/22 P. v. Angulo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C093393
Plaintiff and Respondent, (Super. Ct. Nos. LOD-CR-FE-
2005-0000001, LF005462B)
v.
MARIO HUMBERTO ANGULO,
Defendant and Appellant.
Following a jury trial, defendant Mario Humberto Angulo was convicted of first
degree murder, shooting from a motor vehicle, active participation in a criminal street
gang, and possession of a firearm by a prohibited person. The jury found several firearm
and gang enhancements true, but, critically, found not true the enhancement allegations
that the murder was carried out to further criminal gang activity and that defendant
personally discharged a firearm from a vehicle with the intent to cause death. In 2008,
we affirmed his conviction. (People v. Angulo (Mar. 13, 2008, C053070) [nonpub. opn.]
(Angulo).)
1
In 2019, defendant petitioned for resentencing under Penal Code section 1170.95
(now 1172.6)1 due to changes to the felony-murder rule. The trial court denied
defendant’s petition. Defendant has now appealed.
On appeal, defendant contends the trial court engaged in improper factfinding to
deny his petition at the prima facie stage. The People agree. We reverse and remand
with directions.
FACTUAL BACKGROUND2
On October 24, 2000, Sureño gang member Ruben Santana told defendant that a
rival Norteño gang member had shot at him earlier that day and he wanted to retaliate by
“going to go hit this fool.” Defendant drove Santana to confront the Norteños.
Defendant stopped the car in front of the rival gang, and Santana reached across him to
fire his handgun. Defendant also fired his handgun. Rival Norteño gang member Johnny
Moreno was shot and killed.
At trial for Moreno’s death, the trial court instructed the jury on first degree
murder theories under felony murder (drive-by murder) and premeditated murder. Jurors
also received instructions on various special circumstances, aiding and abetting, and the
natural and probable consequences doctrine.
As an alternative theory to premeditated murder under CALJIC No. 8.20, the trial
court instructed the jury on modified CALJIC No. 8.25.1, drive-by murder, which
required the prosecution to prove, in relevant part, that defendant specifically intended to
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the
Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats.
2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will
refer to the statute as section 1170.95 throughout the opinion.
2 The facts are taken from our opinion in defendant’s direct appeal. (Angulo, supra,
C053070.) On our own motion, we augment the record to include jury instructions and
transcripts from defendant’s jury trial. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
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kill, either as the actual killer of Moreno or as an aider and abettor to a perpetrator who
was the actual killer. The jury did not need to agree on the theory of first degree murder.
Pursuant to CALJIC No. 8.80.1, the jury was instructed on two special
circumstances allegations, both of which stated that if the jury could not decide whether
defendant was the actual killer, they could not find the special circumstance true unless
they were satisfied beyond a reasonable doubt that defendant, with the intent to kill, aided
abetted another in first degree murder.
Under CALJIC No. 8.21.1, the jury was instructed in relevant part that to find the
special circumstance pursuant to section 190.2, subdivision (a)(21) true, they had to find
that defendant specifically intended to kill, either as the actual killer of Moreno or as an
aider and abettor to a perpetrator who was the actual killer.
The jury received the following special circumstance instruction under modified
CALJIC No. 8.81.22, which in relevant part, instructed the jury that in order to find the
circumstance true, the People must prove: “1. The defendant or a perpetrator
intentionally killed Johnny Moreno; [¶] 2. At the time of the killing of Johnny Moreno,
the defendant specifically intended to kill, either as the actual killer of Johnny Moreno, or
as an aider and abetter [sic] to the actual killer; [¶] 3. At the time of the killing, the
defendant was a [sic] active participant in a criminal street gang; [¶] 4. The members of
that criminal street gang engaged in or have engaged in a pattern of criminal gang
activity; [¶] 5. The defendant knew that the gang members engaged in or have engaged
in a pattern of criminal gang activity; and [¶] 6. The murder of [Johnny Moreno] was
carried out to further the activities of the criminal street gang.”
The jury found defendant guilty of first degree murder (§ 187, subd. (a)),
discharging a firearm from a vehicle (§ 12034, subd. (d)), active participation in a
criminal street gang (§ 186.22, subd. (a)), and unlawful possession of a firearm (§ 12021,
subd. (e)). As to the murder and discharging a firearm from a vehicle counts, the jury
found true the enhancement allegations that defendant intentionally discharged a firearm
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causing great bodily injury or death (§ 12022.53, subds. (d) & (e)), and the crimes were
committed for the benefit of a street gang (§ 186.22, subd. (b)(1)). Also, as to the murder
count, the jury found defendant personally discharged a firearm (§ 12022.53, subd. (c)).
However, the jury found not true that the murder was carried out to further criminal gang
activity (§ 190.2, subd. (a)(22)) and similarly not true that defendant personally
discharged a firearm from a vehicle with intent to cause death (§ 190.2, subd. (a)(21)).
The trial court sentenced defendant to a term of 25 years to life for first degree
murder, a consecutive 25-year-to-life term for intentional discharge of a firearm, and
concurrent middle terms of two years each for the other three offenses.
PROCEDURAL BACKGROUND
Defendant appealed his conviction in 2008, and we affirmed. (Angulo, supra,
C053070.) In 2019, defendant petitioned for resentencing under section 1170.95; the
petition was facially valid and requested the appointment of counsel.3
Without appointing counsel, allowing for briefing, or conducting a hearing, the
trial court summarily denied the petition. The trial court noted in its written order that it
had read defendant’s file and concluded that “at the very minimum,” it was clear, with
the intent to kill, that defendant aided and abetted the actual killer or was a major
participant acting with reckless indifference to human life within the meaning of section
190.2, subdivision (d).
3 In 2021, defendant filed a petition for writ of habeas corpus that referenced the
“Superior Court’s order to deny the petition for resentencing filed under the Cal. P.C.
§ 1170.95.” This court considered the petition a request for permission to file a notice of
appeal under the constructive filing doctrine and directed defendant to file a notice of
appeal. He timely filed a notice of appeal. As of August 12, 2022, the case was fully
briefed.
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DISCUSSION
Defendant contends the trial court engaged in improper factfinding to deny his
section 1170.95 petition. The People agree.
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, was
enacted to amend the felony-murder rule and the natural and probable consequences
doctrine “to ensure that murder liability is not imposed on a person who [wa]s 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).) Senate Bill No. 1437 also established a procedure for qualified
persons to seek retroactive relief based on these changes in the law through a petition
with the trial court. (Stats. 2018, ch. 1015, § 4.) The procedure allowed those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (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. [¶] (3) The petitioner could not be convicted of first or
second degree murder because changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a); Stats. 2018, ch. 1015, § 4.)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
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now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs 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, 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.”
B. Prima Facie Showing
Section 1170.95 requires a prima facie determination. (§ 1170.95, subd. (a).)
Under subdivision (c), the trial court must appoint defendant counsel if requested, receive
briefing from the parties, and determine whether “the petitioner makes a prima facie
showing that he or she is entitled to relief.” (§ 1170.95, subd. (c).) At the prima facie
stage, the court may consider the petition and “the record of conviction in determining
whether that single prima facie showing is made.” (People v. Lewis (2021) 11 Cal.5th
952, 970.) The threshold for such a showing is very low, so in reviewing the record of
conviction and any appellate opinions, the trial court should take the petition’s allegations
as true and refrain from engaging in factfinding, weighing evidence, or exercising
discretion. (Id. at pp. 971-972.) The “authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is
limited to readily ascertainable facts from the record (such as the crime of conviction),
rather than factfinding involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless indifference to human life in
the commission of the crime).” (People v. Drayton (2020) 47 Cal.App.5th 965, 980,
disapproved on other grounds in Lewis, at p. 963.) But, if the record of conviction
contains facts refuting the defendant’s allegations in the petition and shows the defendant
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was the actual killer, aided and abetted with intent to kill, or was a major participant who
acted with reckless indifference to human life, the trial court may deny the petition as a
matter of law without further proceedings. (§ 189, subd. (e); Lewis, at p. 971.)
If, after accepting the facts in the petition as true, the defendant is entitled to relief
because he or she has met the requirements of section 1170.95, subdivision (a), the trial
court should issue an order to show cause unless the parties waive the hearing or
petitioner’s entitlement to relief is established as a matter of law by the record.
(§ 1170.95, subd. (d)(2).)
C. Analysis
In this case, the parties agree defendant filed a facially sufficient petition under
section 1170.95, subdivision (a). Without appointing counsel or conducting a hearing,
the trial court reviewed the record of conviction and found defendant was not entitled to
relief.
For first degree murder, the trial court instructed the jury on alternative theories of
liability, drive-by felony murder and premeditated murder, and included an instruction
that jurors need not agree on which theory to find defendant guilty. The jury also was
instructed on aiding and abetting, and the natural and probable consequences doctrine.
Despite finding defendant guilty of first degree murder, the verdicts do not show which
theory the jury relied on to base its finding. Thus, the record of conviction does not
preclude defendant from relief because it does not refute the petition’s allegations and
establish defendant was the actual killer, or aided and abetted with the intent to kill.
Despite the trial court’s written order, there was no section 190.2 subdivision
(a)(17) allegation and therefore the jury did not make a finding that defendant was a
major participant who acted with reckless indifference to human life. Moreover, the
jury’s not true findings on special circumstances under section 190.2, subdivision (a)(21)
and (22) demonstrate it did not find defendant was the actual killer or acted with the
intent to kill. (See § 190.2, subd. (a)(21), (22).) Accordingly, the trial court’s findings
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that defendant was a major participant and acted as an aider and abettor—which rendered
defendant ineligible for relief as a matter of law—necessarily involved improper
factfinding. (People v. Drayton, supra, 47 Cal.App.5th at p. 980.)
Given that defendant has established a prima facie case, and the record does not
show he is ineligible as a matter of law, the trial court must issue an order to show cause
and hold an evidentiary hearing. We will reverse the trial court’s order denying the
petition and remand with directions to issue an order to show cause, and hold a hearing
consistent with the amended provisions of section 1170.95. We express no opinion about
whether defendant is entitled to relief following the hearing.4
DISPOSITION
The trial court’s order denying defendant’s petition is reversed. The matter is
remanded with directions to issue an order to show cause and conduct further
proceedings consistent with the amended provisions of section 1170.95, as now stated in
section 1172.6.
/s/
EARL, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
RENNER, J.
4 Because we remand for further proceedings, we need not reach defendant’s additional
arguments.
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