People v. Coreas CA2/1 ( 2023 )

Filed 7/14/23 P. v. Coreas CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
THE PEOPLE, B324237
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA044382)
v.
GERMAN COREAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Stanley Dale Radtke, under appointment by the Court of
Appeal; German Coreas, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
German Coreas appeals from an order denying his petition
for resentencing under Penal Code section 1172.6 (former section
1170.95).1 His appointed appellate counsel filed a brief raising no
issues and asking this court to review the record independently to
determine whether there are any arguable issues pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Coreas
filed a supplemental brief in which he argues, contrary to the
record, that the jury that convicted him of murder was instructed
on both felony murder and natural and probable consequences
theories. We affirm the order.
BACKGROUND
I. Charges, Trial and Direct Appeal
We take the following facts from the direct case appeal
(People v. Torres (Jan. 31, 2007, B183252) [nonpub. opn.]) to
establish context only.
On November 11, 2002, German Coreas drove with Antonio
Torres, both gang members, in pursuit of Ruben Rizo. Coreas
stopped the car near Rizo and Torres shot and killed him.
On January 27, 2003, Coreas, Torres and another man shot
Jose Tlamasico several times then fled the scene in a car driven
by a fourth man. Tlamasico survived.
On February 14, 2003, Coreas, Torres and two others were
in a car from which several shots were fired at Gustavo Chavez,
killing him.
Later that day, Coreas was in a car from which a fellow
gang member emerged and shot Gino Ayala, who survived.
At trial, the prosecution’s theory was that Coreas was
sometimes a shooter and sometimes directly aided and abetted
1 Undesignated statutory references will be to the Penal
Code.
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other shooters. There were no jury instructions on felony murder
or the natural and probable consequences doctrine.
A jury found Coreas guilty of two counts of first-degree
murder and two of willful, deliberate, premeditated attempted
murder, and found true the special circumstance that the
murders were committed with express malice to benefit a
criminal street gang. (§ 190.2, subd. (a)(22).)
We affirmed three of the convictions, reversed as to the
Ayala shooting, vacated the sentence and remanded for
resentencing. (People v. Torres (Jan. 31, 2007, B183252) [nonpub.
opn.].)
When the case returned to the trial court the People stated
they could not proceed as to the attempted murder of Ayala and
the court dismissed that count. The trial court resentenced
Coreas on the three remaining counts to two consecutive life
terms plus two consecutive terms of 25 years to life for gun use.
(People v. Coreas (Aug. 29, 2008, B201698) [nonpub. opn.].)
II. Petition for Resentencing
On December 3, 2021, Coreas filed a petition with the
superior court for resentencing under former section 1170.95
(now renumbered section 1172.6), alleging the jury had not found
him to be a major participant or to have acted with reckless
indifference to human life when committing the murders and
attempted murder.
The court appointed defense counsel, the Los Angeles
District Attorney responded to the petition for resentencing, and
defense counsel filed a reply brief. On August 9, 2022, the court
held a hearing at which both parties had the opportunity to
present additional argument.
The court denied Coreas’s petition, finding he was ineligible
for resentencing because only the prosecution’s express malice
theory had gone to the jury. The court found the jury had not
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been instructed on felony murder or natural and probable
consequences theories and had found true the special
circumstance that Coreas “intentionally killed the victim . . . to
further the activities of [a] criminal street gang.”
III. Present Appeal
Coreas appeals, and we appointed counsel to represent him.
After examining the record, counsel filed a brief raising no issues
and asking us to independently review the record to determine
whether any arguable issues exist pursuant to Delgadillo.
Counsel served a copy of the record on Coreas and informed him
of his right to file a supplemental brief.
We sent letters to Coreas and to appointed counsel,
directing counsel to forward the appellate record and brief to
Coreas and advising Coreas that he had 30 days to personally
submit any contentions or issues he wished us to consider. We
advised that if no supplemental brief or letter was filed, we may
dismiss the appeal as abandoned.
Coreas filed a supplemental brief in which he argues he
was not the actual shooter but only the get-away driver. He did
not aid or encourage the shooter with the intent to commit the
shootings and did not share the shooter’s specific intent to kill.
Coreas argues he was convicted only as an aider and abettor of
the murders and attempted murder. (People v. Torres (1990) 224
Cal.App.3d 763, 768-769.) Coreas argues the jury was instructed
on both felony murder and natural and probable consequences
theories, CALCRIM Nos. 401 and 403, as to all three counts,
theories which are no longer valid. Therefore, he argues, there is
a reasonable possibility that the jury relied on one of these
theories to convict him.
DISCUSSION
In Delgadillo, our Supreme Court held that when
appointed counsel in a criminal matter “finds no arguable issues
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to be pursued on appeal: (1) counsel should file a brief informing
the court of that determination, including a concise recitation of
the facts bearing on the denial of the petition; and (2) the court
should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed
within 30 days, the court may dismiss the matter.” (Delgadillo,
supra, 14 Cal.5th at pp. 231-232.)
“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, § l, subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).)
“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 acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.’ ” (Gentile, supra, 10 Cal.5th at p. 842.)
“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
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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.’ ” (Gentile, supra, 10 Cal.5th at pp. 842-
843.)
“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 p. 843.) The Legislature subsequently amended
section 1170.95 to include attempted murder and manslaughter
and then renumbered it as section 1172.6. (Delgadillo, supra, 14
Cal.5th at p. 223, fn. 3.)
“Under newly enacted section 1172.6, the process begins
with the filing of a petition containing a declaration that all
requirements for eligibility are met [citation], including that
‘[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019,’ the effective date of Senate Bill 1437
[citation].” (People v. Strong (2022) 13 Cal.5th 698, 708.)
If the record of conviction, including the jury instructions, refutes
the allegations in the petition for resentencing (without resort to
impermissible factfinding), the court may conclude the petitioner
has not made a prima facie case for relief under section 1172.6,
subdivision (c) and therefore is not entitled to an evidentiary
hearing under subdivision (d). (People v. Lewis (2021) 11 Cal.5th
952, 971.)
Because this is an appeal from a denial of postconviction
relief under former section 1170.95, we are not required to
conduct an independent review of the record as we would be in a
direct appeal from a criminal conviction. (Delgadillo, supra, 14
Cal.5th at pp. 221-222.) We decline counsel’s request that we do
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so here because nothing before us suggests such an exercise is
necessary. When a defendant files a supplemental brief,
however, we are “required to evaluate the specific arguments
presented in that brief and to issue a written opinion.” (Id. at p.
232.)
Notwithstanding Coreas’s representation to the contrary,
nothing in the charges, instructions, or verdict suggests the jury
found him guilty on a theory of imputed malice. The trial court
gave no instruction on felony murder or the natural and probable
consequences doctrine, and the jury found Coreas guilty of first
degree murder, which requires that the murder be willful,
deliberate, and premeditated, and expressly found that the
attempted murder was willful, deliberate, and premeditated.
Because the record of conviction demonstrates Coreas was not
convicted on a theory of imputed malice, he has failed to meet his
burden of making a prima facie showing of entitlement to relief
under section 1172.6. (See People v. Cortes (2022) 75 Cal.App.5th
198, 205-206.) The trial court therefore properly denied his
petition without an evidentiary hearing.
DISPOSITION
The order denying Coreas’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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