People v. Hurtado ( 2023 )

Filed 3/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319381
(Super. Ct. No. 2015020888)
Plaintiff and Respondent, (Ventura County)
v.
JOSE ALBERTO HURTADO,
Defendant and Appellant.
Here is something novel – a criminal case that need not
undergo a hearing pursuant to Penal Code 1 section 1170.95 (now
section 1172.6). 2 Why? Because the defendant was the only
person who committed the crime of attempted murder for which a
jury found him guilty beyond a reasonable doubt.
We affirm the trial court on the doctrine of harmless error
even though there is no error.
1 All statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered
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section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
There was no change in content. We hereafter cite to section
1172.6 for ease of reference.
Jose Alberto Hurtado appeals an order denying his petition
for resentencing under section 1172.6. In 2017, we affirmed his
conviction for attempted murder (§§ 664, 187, subd. (a) (count 1));
assault with a semiautomatic firearm (§ 245, subd. (b) (counts 2
and 3)); and attempted shooting at an occupied vehicle (§§ 664,
246 (count 4)). (People v. Hurtado (Aug. 30, 2017, B271115)
[nonpub. opn.].) 3 The jury found Hurtado personally used a
firearm. (§§ 12022.53, subd. (b) (count 1), 12022.5, subd. (a)
(counts 2 and 3).) The trial court sentenced Hurtado to an
aggregate prison term of 23 years 8 months.
In February 2022, Hurtado filed a petition for resentencing
under section 1172.6. The trial court denied his petition without
appointing counsel or holding a hearing. We affirm.
FACTS
On March 16, 2015, Felipe Sandoval was driving his car.
His passengers were Jose Medina Gamez (Gamez) and Francisco
Sandoval (Francisco). Sandoval saw a white Impala automobile
following them. Hurtado was in the passenger seat of that car.
The white Impala moved to the side of Sandoval’s vehicle.
Sandoval made a right turn onto another street. He “got scared”
“seeing” Hurtado, whom he had known for three years. (People v.
Hurtado, supra, B271115.)
Sandoval drove to an intersection and stopped. The white
Impala “got there and blocked [his] way.” (People v. Hurtado,
supra, B271115.) Sandoval testified that Hurtado “pulled out” a
“firearm,” pointed it at him, and “tried firing at [him].” (Ibid.)
The gun “didn’t fire.” (Ibid.) Hurtado pulled the trigger several
times because the gun would not fire. He “racked the gun” by
We grant Hurtado’s request to take judicial notice filed
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September 8, 2022.
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moving the top portion of the gun slide “back and forth” two or
three times. (Ibid.) He pulled the trigger several times after he
racked the gun, but the gun was jammed. Not surprisingly,
Sandoval believed Hurtado was trying to kill him. Sandoval put
the car “in reverse” and drove away. (Ibid.)
Gamez testified Hurtado “tried killing [them]” with a “nine-
millimeter” gun. (People v. Hurtado, supra, B271115.) Hurtado
pointed the gun “at [them]” and was “racking the slide” of the gun
because it “jammed.” (Ibid.) Francisco testified that a white
Impala “cut [them] off.” (Ibid.) Hurtado pointed a black gun at
them; the gun “jammed.” (Ibid.) He appeared “to be angry.”
(Ibid.) Francisco was “scared for [his] life.” (Ibid.) Police
Detective James Crilly testified that a semiautomatic handgun
has “a magazine that you load the ammunition into and you put
it into the grip frame or the pistol grip. You have to cycle the
slide to get a round into the chamber so it can be fired.” (Ibid.) If
there is a malfunction, one could rack the slide to fix the problem
or “to get another round into the chamber.” (Ibid.) A video
surveillance camera from a liquor store at the date and time of
the incident showed a car passing by matching the description of
the white Impala. Police found a white Impala at Hurtado’s
residence.
Police Detective Edgar Fernandez testified that Hurtado’s
brother, Luis, was a suspect in a “December 2014 serious and
violent crime.” (People v. Hurtado, supra, B271115.) Sandoval
witnessed the crime and had spoken with Fernandez “on several
occasions.” (Ibid.) Police Officer Jaime Miranda testified that
Sandoval was a friend of the victim in that case and that victim
had died. Sandoval provided the police with information
concerning the crime.
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In 2022, Hurtado filed a petition for resentencing under
section 1172.6. The trial court denied that petition without
appointing counsel or holding a hearing. It found: 1) Hurtado’s
petition is “meritless as a matter of law”; 2) the petition is refuted
by the facts in the record; 3) Hurtado was not convicted under the
natural and probable consequences doctrine; 4) Hurtado is
“ineligible for relief” under section 1172.6; and 5) Hurtado acted
alone. The court also observed that “the jury found [Hurtado]
personally used a firearm in connection with the attempted
murder conviction.”
DISCUSSION
Noncompliance with the Statutory Resentencing Procedure
Section 1172.6 became law when the Governor signed
Senate Bill No. 1437 (2017-2018 Reg. Sess.) in 2018. “Senate Bill
[No.] 1437 ‘amend[s] 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. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, italics added.)
The statute allows defendants convicted of murder to file a
resentencing petition by alleging they could not currently be
convicted of murder because of the changes in the law required by
Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38
Cal.App.5th at p. 417.) If the petitioner made a prima facie
showing for relief, the trial court was required to issue an order
to show cause for an evidentiary hearing. (§ 1172.6, subd. (c).)
In 2021, the Legislature passed Senate Bill No. 775 (2021
Reg. Sess.) amending section 1172.6. (Stats. 2021, ch. 551, § 2.)
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It allowed defendants convicted of attempted murder to file
resentencing petitions. (§ 1172.6, subd. (a).) It requires “[t]he
trial court on receiving a petition must appoint counsel to
represent the petitioner if the petitioner has requested counsel.
(§ [1172.6], subd. (b)(3).) After the parties are given an
opportunity to submit briefs, it ‘shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief’ and
if the petitioner has done so, it must issue an order to show
cause. (§ [1172.6], subd. (c).)” (People v. Basler (2022) 80
Cal.App.5th 45, 55.)
Here the trial court did not appoint counsel for Hurtado,
set a briefing schedule, or hold a hearing before deciding Hurtado
did not make a prima facie showing for resentencing. It did not
comply with the statutory requirements.
Violation of Hurtado’s Constitutional Rights
Hurtado contends by not following the statutory procedure
the trial court violated his constitutional rights.
In some contexts, a court’s failure to comply with a
statutory procedure will constitute a denial of due process.
(People v. Slutts (1968) 259 Cal.App.2d 886, 894.)
But a trial court’s statutory omissions at the first step of
the section 1172.6 process are not state or federal constitutional
violations. (People v. Lewis (2021) 11 Cal.5th 952, 973.) “There is
no unconditional state or federal constitutional right to counsel to
pursue collateral relief from a judgment of conviction.” (Id. at
p. 972.) “[A] petitioner is not constitutionally entitled to counsel
at the outset of the subdivision (c) stage of the section [1172.6]
petitioning process.” (Id. at p. 973.) “At that point, the petitioner
has not yet ‘stated facts sufficient to satisfy the court that a
hearing is required,’ but merely endeavors to do so.” (Ibid.)
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“Thus, the trial court’s failure to appoint counsel to represent
Lewis was state law error only.” (Ibid.) “Typically, when an
‘error is purely one of state law, the Watson harmless error test
applies.’ ” (Ibid.)
Senate Bill No. 775 and the Lewis Harmless Error Rule
People v. Lewis, supra, 11 Cal.5th 952, was decided before
the enactment of Senate Bill No. 775. Senate Bill No. 775
created a uniform procedure to be applied to all petitions for
resentencing. When the Legislature creates a mandatory
procedure for courts to follow, noncompliance may require
reversal of judgments rendered without compliance with that
procedure. (In re J.W. (2020) 53 Cal.App.5th 347, 356-357; In re
Jasmine G., supra, 127 Cal.App.4th at p. 1115; People v. Slutts,
supra, 259 Cal.App.2d at p. 894.)
But in enacting Senate Bill No. 775, the Legislature knew
that Lewis applied a harmless error standard in appropriate
cases. The Legislature did not intend to replace the Lewis
harmless error rule with an automatic reversal. Senate Bill No.
775 contains significant references to Lewis. Legislators stated
the bill “[a]ddresses what evidence a court may consider at a
resentencing hearing (clarifying the discussion in People v. Lewis,
supra, [11 Cal.5th] at pp. 970-972).” (Stats. 2021, ch. 551, § 1,
subd. (d), italics added.) They indicated that Senate Bill No. 775
“[c]odifies the holdings of People v. Lewis” involving the right to
counsel and “the standard for determining the existence of a
prima facie case.” (Stats. 2021, ch. 551, § 1, subd. (b), italics
added.)
Senate Bill No. 775 reaffirmed Lewis with modifications,
preserving Lewis’s recognition of the trial court’s authority to
promptly screen out petitions by categorically ineligible
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defendants. The Legislature intended the Lewis harmless error
standard to continue following the enactment of Senate Bill No.
775.
Harmless Error
The trial court found Hurtado’s petition was not credible
after reviewing the record of conviction. “ ‘[I]f the record . . .
“contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination
adverse to the petitioner.” ’ ” (People v. Lewis, supra, 11 Cal.5th
at p. 971.) “The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section [1172.6], allowing
the court to distinguish petitions with potential merit from those
that are clearly meritless.” (Ibid.)
The record supports the trial court’s decision to deny the
petition because Hurtado was not eligible for relief. He alone
attempted to commit murder. As the attempted murderer, he is
“ineligible for relief” as “a matter of law,” and “there is no
reasonable probability [Hurtado] would have obtained a more
favorable result if counsel had been appointed and given the
opportunity to file a memorandum supporting the petition”;
consequently, the trial court’s errors were “harmless.” (People v.
Mancilla (2021) 67 Cal.App.5th 854, 864.)
But here harmless error is a misnomer. The trial court
committed no error. But in cases like this one, the harmless
error doctrine provides a reasonable method to avoid protracted
hearings in past cases that are final and should stay that way.
This also frees overburdened courts to decide current cases. We
hope the Legislature solves this anomaly.
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DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Richard B. Lennon, 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 Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
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