People v. Arredondo CA2/5 ( 2023 )

Filed 6/14/23 P. v. Arredondo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B320115
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA061196)
ALFRED ARREDONDO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rob B. Villeza, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Following a jury trial in 2004, defendant Alfred Arredondo
(defendant) was convicted of one count of first degree murder, one
count of inflicting corporal injury on a spouse or cohabitant, and
one count of assault with a deadly weapon. The jury found true
allegations that defendant (1) personally used a deadly or
dangerous weapon in connection with the murder and corporal
injury convictions and (2) inflicted great bodily harm under
circumstances involving domestic violence in connection with the
corporal injury and assault counts. Defendant was sentenced to a
term of 25 years to life in state prison for the murder, doubled to
50 years pursuant to the Three Strikes law, plus a determinate
term of six years attributable to the sentencing enhancements.
This court affirmed the judgment on direct appeal. (People v.
Arredondo (Apr. 14, 2005, B175117) [nonpub. opn.] (Arredondo
I).)
Many years later, defendant petitioned for resentencing
under Penal Code1 section 1172.6 (former section 1170.95). After
appointing counsel for defendant, the trial court held a hearing
and denied defendant’s petition based on his failure to make a
prima facie case for relief. (§ 1172.6, subd. (c).) The trial court
found the jury had not been instructed on felony murder or the
natural and probable consequences doctrine and both the
transcript of defendant’s preliminary hearing and the opinion in
Arredondo I established defendant was the murder victim’s
actual killer.
Defendant appealed, and this court appointed counsel to
represent him. After examining the record, counsel filed an
1
Undesignated statutory references that follow are to the
Penal Code.
2
opening brief raising no issues and asking that we exercise our
discretion to independently review the record for error pursuant
to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).2 We
invited defendant to submit a supplemental brief, and he has,
arguing: (1) the section 1172.6 court “erred when it engaged in
factfinding and determined defendant was a major participant
who acted with reckless indifference to human life” without first
issuing an order to show cause, (2) defendant’s trial attorney was
constitutionally ineffective, (3) defendant’s due process rights
were violated because the prosecution withheld evidence at trial,
and (4) defendant did not form the specific intent to kill because
he was intoxicated.
Although we have discretion to undertake an independent
review of the entire record, we limit our review to the issues
raised in defendant’s supplemental brief. (Delgadillo, supra, 14
Cal.5th at 232 [where the defendant’s attorney finds no arguable
issues in an appeal from the denial of a section 1172.6 petition
and the defendant files a supplemental brief, “the Court of
Appeal is required to evaluate the specific arguments presented
in that brief and to issue a written opinion,” but it is “wholly
within the court’s discretion” whether to conduct an independent
review of the entire record].)
Most of the arguments raised in defendant’s supplemental
brief do not address his eligibility for resentencing under section
2
Defendant’s attorney also filed a request that we take
judicial notice of portions of the record in Arredondo I that were
not included in the record on appeal in this case. The request for
judicial notice is denied. The record we have—including the jury
instructions given at defendant’s trial—is sufficient to permit
review of the claims defendant raises in his supplemental brief.
3
1172.6. Purported ineffective assistance of counsel, asserted due
process violations, and claimed intoxication do not bear on
whether defendant could “presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) We
accordingly disregard those arguments in this appeal from the
trial court’s post-judgment order denying defendant’s section
1172.6 petition. (See, e.g., People v. DeHuff (2021) 63
Cal.App.5th 428, 438 [section 1172.6 “does not permit a petitioner
to establish eligibility on the basis of alleged trial error”].)
The only argument defendant makes that is cognizable in
this appeal is the contention that the trial court engaged in
improper fact-finding in resolving his section 1172.6 petition.
That argument is meritless. The trial court properly considered
the instructions given to the trial jury (People v. Soto (2020) 51
Cal.App.5th 1043, 1055 (Soto)) and the absence of instructions on
felony murder or the natural and probable consequence doctrine
render defendant ineligible for relief (People v. Cortes (2022) 75
Cal.App.5th 198, 205; People v. Harden (2022) 81 Cal.App.5th 45,
52 [“if the record shows that the jury was not instructed on either
the natural and probable consequences or felony-murder
doctrines, then the petitioner is ineligible for relief as a matter of
law”]; see also Soto, supra, at 1059 [“natural consequences”
language in instruction for second degree murder did not
transform the defendant’s conviction into one for murder under
the natural and probable consequences doctrine”]).
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DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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