People v. Toledo CA4/3 ( 2021 )

Filed 7/14/21 P. v. Toledo CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G059559
Plaintiff and Respondent,
(Super. Ct. No. 02NF1122)
v.
OPINION
RIGOBERTO FRANCISCO TOLEDO,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Rigoberto Francisco Toledo appeals from the trial court’s denial
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of his petition for resentencing filed pursuant to Penal Code section 1170.95. That
petition was denied on October 16, 2020.
We appointed counsel to represent Toledo on appeal. After conducting his
analysis of potential appellate issues, counsel has informed us in his declaration that he
has reviewed the appellate record, and consulted with a staff attorney at Appellate
Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People
v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not
arguing against his client, counsel set forth the facts of the case and advised us he was
unable to find an issue to argue on defendant’s behalf. Counsel then advised Toledo of
his right to file a written argument on his own behalf; he has not done so.
FACTS
The facts relevant to this appeal can best be summarized by excerpting
from our prior opinion in which we affirmed Toledo’s second-degree murder conviction.
(People v. Toledo (June 16, 2004, G031808) [nonpub. opn.] (Toledo).)
“Late in the afternoon of March 24, 2002, an employee of the Bakers
Square Restaurant in Anaheim was walking through the parking lot after finishing her
shift for the day. She noticed a man on a cell phone walking away from the parking lot.
She also saw a tan van backed into a parking space in a remote area of the lot, and
through the van’s open sliding door she saw what appeared to be a pillow bobbing up and
down. She reported the incident to her manager.
“The manager went outside to inspect the van and heard moaning from
inside. He observed what appeared to be a person inflating something inside the van.
Alarmed, he notified the police and waited outside for their arrival.
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All further statutory references are to the Penal Code.
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“The police arrived and discovered a man bound in duct tape lying on the
floor of the van. Toledo was sitting in the driver’s seat of the van. When he noticed the
officers, he appeared surprised and frightened . . . . He exited the van, and despite police
commands to lie down and remain still, took off running. One of the officers chased him
for about a half mile before losing him . . . .
“Inside the van, the victim . . . was lying motionless, bound hand and foot
by duct tape and covered with a sleeping bag. An officer removed the covering and
found a thick plastic bag tightly knotted around the victim’s head. The officer ripped the
bag off, and also found duct tape inside the victim’s mouth that had to be cut out with a
knife. After attempts at resuscitation, the victim died six hours later.
“The van in which the victim was found was registered to Toledo. Inside,
the police found a plastic bag containing marijuana, multiple pagers, two cell phones, a
key to another vehicle, a wallet, a black suitcase, both a rubber and a latex glove, and the
victim’s Canadian passport. In addition, two cards in the wallet appeared to reflect drug
transactions . . . .
“The key found in the tan van operated another white van found parked at
an area motel. After placing the van under surveillance, the police searched the motel
room of the two men seen entering this van. Inside their room, they found two large
black duffel bags with a total of 41 pounds of vacuum-sealed bags of marijuana, with a
total street value of around $250,000. . . . The victim’s fingerprint was found on one of
the bags of marijuana in the motel.
“The police executed a search warrant at Toledo’s home. They found him
sleeping outside in a vehicle, hidden under a pile of blankets, and took him into custody.
Inside his house, the police discovered . . . pay/owe sheets recording various drug
transactions.
“Toledo initially was appointed a public defender, but then retained counsel
and pleaded not guilty to a single count of murder. Toledo took the stand at trial and
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testified an acquaintance, Chi Chau, asked for a ride to meet someone and also asked to
borrow “moving supplies.” Toledo did not know Chau was a drug dealer. Toledo gave
Chau some duct tape and drove him to the Bakers Square Restaurant . . . . [The victim],
who Toledo did not know, met them in the parking lot and entered the van.
“From the driver’s seat, Toledo heard a ‘thump’ and looked back to see [the
victim] on the floor. Toledo tried to intervene, but Chau pushed him away. Chau pointed
a gun at [the victim] and at Toledo and warned ‘he needed the money’ and ‘was going to
get it one way or another . . . .’ Chau ordered Toledo to bind the victim’s hands with duct
tape; when Toledo refused, Chau threatened to shoot him. Toledo complied. . . . Then
came moaning, two thumps, an odor like someone had ‘gone to the restroom.’ Chau
started to drive the van away, and then stopped. He threatened to kill Toledo and his
family if he spoke to the police. . . . Toledo ran from the police because he was afraid
Chau would kill his family if he talked to officers.” (Toledo, supra, G031808,
fn. omitted.)
The instructions provided to the jury included CALJIC No. 3.01 (aiding
and abetting) and CALJIC No. 8.11 (express and implied malice aforethought). The jury
found Toledo guilty of second degree murder (§ 187, subd. (a)). In a separate bifurcated
proceeding, the trial court found it true that Toledo had suffered a prior strike felony
conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds (b) & (c)(1)); a prior serious
felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)); and that he had served a prior
state prison sentence (§ 667.5, subd. (b)). The court then sentenced Toledo to an
indeterminate term of 30 years to life in state prison (15 years to life for second degree
murder doubled to 30 years to life pursuant to California’s Three Strikes law).
After counsel informed us he could not find any issue to argue on Toledo’s
behalf on appeal, he suggested we examine two potential issues de novo:
1) “Since appellant’s petition is valid on its face, was it error to find
that it does not set forth a prima facie case?”
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2) “When the court found that appellant ‘was convicted of second
degree murder as a direct aider and abettor who acted with implied malice,’ was the court
engaging in fact-finding that should have been preceded by an order to show cause and a
hearing at which the parties could present evidence as described in section 1170.95,
subdivision (d)?”
DISCUSSION
We have examined the entire record in this case and, like counsel, have not
found an arguable issue on appeal.
In People v. Gentile (2020) 10 Cal.5th 830 (Gentile), the California
Supreme Court discussed the statutory scheme created by Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437), which resulted in the creation of Penal Code
section 1170.95.
“Senate Bill 1437 ‘amend[ed] 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).)
“To further that purpose, Senate Bill 1437 added three separate provisions
to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added
section 189, subdivision(e): ‘A participant in the perpetration or attempted perpetration
of [qualifying felonies] 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
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acted with reckless indifference to human life, as described in subdivision (d) of Section
190.2’. . . (§ 189, subd. (a).)
“Second, to amend the natural and probable consequences doctrine, Senate
Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for
felony-murder liability] 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.’
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for
those convicted of felony murder or murder under the natural and probable consequences
doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra,
10 Cal.5th at pp. 842-843.)
Pursuant to the procedure created by section 1170.95, the trial court is
required to perform an initial prima facie review of information available to it in the
record of conviction and the court file to determine whether a petitioning defendant is
ineligible for relief as a matter of law. (People v. Verdugo (2020) 44 Cal.App.5th, 320,
329-330.) During this process, the trial court may review the felony complaint,
information or indictment; the verdict form or documentation related to a negotiated plea;
the abstract of judgment; and the opinion related to any direct appeal. (Ibid.) If a review
of these documents demonstrates the defendant is ineligible for relief, the court may
summarily deny the petition.
This is apparently the procedure followed by the trial court here. Our
review of this court’s opinion on direct appeal confirms that Toledo was tried and
convicted on the theory that he acted with implied malice aforethought as an aider and
abettor during the events which led to the victim’s death. It also confirms Toledo
testified in his own defense at trial. During that testimony he admitted he was intimately
involved in the acts which led to the victim’s death. He never denied that. Rather, he
claimed his participation in those acts was coerced. The jury, through its verdict, rejected
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Toledo’s claim of coercion and convicted him of implied malice second degree murder.
All of this could be readily, and properly, gleaned by the trial court from the record
before it. We therefore conclude, as did Toledo’s appellate counsel, that he was as a
matter of law ineligible for the relief he sought pursuant to section 1170.95.
After examining the remainder of the record de novo, as we must, we can
find no other arguable appellate issue.
DISPOSITION
The judgment is affirmed.
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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