People v. Arteaga CA2/7 ( 2023 )

Filed 7/10/23 P. v. Arteaga CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318334
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA125437)
v.
ANTHONY ARTEAGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Sandra Gillies, 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, Senior
Assistant Attorney General, David E. Madeo and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Anthony Arteaga appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1172.6 (formerly section 1170.95).1 The court denied the petition
without issuing an order to show cause. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arteaga Pleads No Contest to Second Degree Murder
In July 1996 the People charged Arteaga with the murder
of Gabriel Gomez and the attempted willful, deliberate, and
premeditated murder of Juan Garcia. The People alleged that in
committing both offenses Arteaga personally used a deadly or
dangerous weapon (a knife), within the meaning of section 12022,
subdivision (b)(1), and that he inflicted great bodily injury on
Garcia, within the meaning of section 12022.7, subdivision (a).
The People also charged codefendant Raymond Richard with
assaulting another individual with a firearm, in violation of
section 245, subdivision (a)(2), and being an accessory to murder
by harboring, concealing, or aiding Arteaga with the intent that
Arteaga escape arrest, trial, conviction, or punishment, in
violation of section 32.
In March 1997 Arteaga pleaded no contest to second degree
murder (Gomez). The trial court dismissed the remaining counts
and sentenced Arteaga to a prison term of 15 years to life.
1 Statutory references are to the Penal Code.
2
B. The Superior Court Denies Arteaga’s Petition Under
Section 1172.6
In May 2021 Arteaga filed a petition for resentencing under
section 1172.6. Using a printed form, Arteaga alleged that a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; that he pleaded guilty or no contest to first or second
degree murder in lieu of going to trial because he believed he
could have been convicted of first or second degree murder at
trial under the felony-murder rule or the natural and probable
consequences doctrine; and that he could not now be convicted of
first or second degree murder because of changes made to
sections 188 and 189. Arteaga also asked the court to appoint
counsel to represent him during the resentencing process.
Arteaga checked a box stating he was not a major participant in a
felony and did not act with reckless indifference to human life
during the crime or felony. He did not, however, check the box
stating he was not the actual killer or the box stating he did not,
with the intent to kill, aid and abet the actual killer in the
commission of murder in the first degree.
In a declaration in support of the petition, Arteaga stated
under penalty of perjury there was no evidence he “harbored
malice aforethought . . . or acted with a specific intent to cause
death or bodily injury to Mr. Gabriel Gomez and Mr. Juan
Garcia.” Arteaga asserted that, “had his intentions truly been to
kill or seriously injure Mr. Gomez and Mr. Garcia, [he] had the
opportunity to inflict much more injury upon them than just the
single stab wound imposed on each of them, as they turned their
backs to [him] after being assaulted and placing themselves in a
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much more vulnerable position.” Citing Garcia’s testimony at the
preliminary hearing, Arteaga stated that the fact he “made no
attempt to pursue or inflict any further injury on either of the
named individuals, clearly shows a lack of malice and of specific
intent.” Arteaga declared that, although he “accepts full
responsibility for committing these terrible crimes as a juvenile
who never appreciated the risks of his actions, [he] maintains
that he never harbored malice or intended to kill Mr. Gomez or
hurt Mr. Garcia . . . .”
The superior court appointed counsel to represent Arteaga.
The People filed an opposition to the petition, arguing Arteaga
was ineligible as a matter of law because he was the actual killer
and was not prosecuted under a theory of felony murder or
natural and probable consequences. The People argued that
“Arteaga was the sole person charged and convicted of the
murder, because he was the actual killer,” and that Richard, “on
the other hand, was not charged or convicted of murder” but
instead “was convicted of being an accessory after the fact and of
exhibiting a firearm.” The People supported their opposition with
testimony by Garcia and other witnesses at the preliminary
hearing about how Arteaga stabbed Gomez and Garcia at a
nightclub.
Counsel for Arteaga filed a response, arguing that the
testimony at the preliminary hearing was inadmissible hearsay
and that the court could not deny Arteaga’s petition at the prima
facie stage of the proceedings without engaging in improper
factfinding. Neither Arteaga nor his counsel ever claimed the
statements in Arteaga’s petition about how he stabbed Gomez
and Garcia were inaccurate or mistaken, nor did either of them
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ever seek to amend the petition to remove or change those
statements.
The superior court denied Arteaga’s petition for
resentencing under section 1172.6, ruling he had failed to
establish a prima facie case for relief. The court stated it had
read and considered the transcripts of the preliminary hearing
and the hearing where Arteaga pleaded no contest, Arteaga’s
petition for resentencing and his supporting declaration, the
People’s response to the petition, and counsel for Arteaga’s reply.
After observing that Arteaga had not checked the box on the
petition stating he was not the actual killer and that he had
signed the form under penalty of perjury, the court ruled the
statements in Arteaga’s declaration confirmed he was the actual
killer. After summarizing the testimony at the preliminary
hearing, the court ruled Arteaga had not made a prima facie
showing under section 1172.6. The court stated: “Without
making any credibility determinations, or weighing of the
evidence or exercise of discretion, the court finds Arteaga was the
actual killer. [Arteaga] was charged and convicted of [second]
degree murder with malice, and no underlying felony or target
offense was identified in the felony complaint, information,
preliminary hearing testimony or plea/conviction. Without the
underlying felony or target offense, neither felony murder nor
natural and probable consequence doctrine would have been
viable theories when [Arteaga] was convicted. The defense has
not proffered or presented any evidence to the contrary. Because
Arteaga was the actual killer, he is not eligible for relief.”
Arteaga timely appealed.
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DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Reyes (2023) ___ Cal.5th
___, ___ (June 29, 2023, S270723) [2023 WL 4242765, p. 1];
People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly
narrowing the felony-murder exception to the malice requirement
for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v.
Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis)).2 Section 188, subdivision (a)(3),
now prohibits imputing malice based solely on an individual’s
participation in a crime and requires proof of malice to convict a
principal of murder, except under the revised felony-murder rule
in section 189, subdivision (e). The latter provision requires the
People to prove that the defendant was the actual killer (§ 189,
subd. (e)(1)); that the defendant, though not the actual killer,
with the intent to kill assisted in the commission of the murder
(§ 189, subd. (e)(2)); or that the defendant was a major
participant in a felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708;
Gentile, at pp. 842-843.)
2 The Legislature later renumbered section 1170.95 to
section 1172.6. (See People v. Strong, supra, 13 Cal.5th at p. 708,
fn. 2.)
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Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the superior court to vacate the
conviction and be resentenced on any remaining counts if he or
she could not now be convicted of murder because of the
legislative changes to the definitions of the crime. (See People v.
Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at
p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843.) If a
section 1172.6 petition contains all the required information, the
court must appoint counsel to represent the petitioner if
requested. (Lewis, at pp. 962-963; see § 1172.6,
subd. (b)(1)(A), (3).) The prosecutor must then file a response to
the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (§ 1172.6,
subd. (c).)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at
p. 971.) The court may consider the record of conviction, which
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.; see People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
“In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
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discretion.’” (Lewis, at p. 972; see People v. Eynon (2021)
68 Cal.App.5th 967, 975.)
“Nevertheless, the court may appropriately deny a petition
at the prima facie stage if the petitioner is ineligible for relief as a
matter of law. ‘“[I]f the record, including the court’s own
documents, ‘contain[s] facts refuting the allegations made in the
petition,’ then ‘the court is justified in making a credibility
determination adverse to the petitioner,’”’ thereby deeming the
petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th
45, 52 (Harden); see Lewis, supra, 11 Cal.5th at p. 971.) We
review de novo an order denying a petition under section 1172.6
without issuing an order to show cause. (Harden, at p. 52; People
v. Coley (2022) 77 Cal.App.5th 539, 545.)
B. Arteaga Is Ineligible for Relief Under Section 1172.6
as a Matter of Law Because He Was the Actual Killer
Whether, after Lewis, supra, 11 Cal.5th 952, the superior
court may consider the transcript of a preliminary hearing as
part of the record of conviction at the prima facie stage, where
the petitioner admits the transcript provides a factual basis for
the plea, is not entirely settled. (See People v. Flores (2022)
76 Cal.App.5th 974, 989 [courts “are split on the import of the
preliminary hearing transcript in determining whether a
petitioner has made a prima facie case for resentencing” under
section 1172.6]; compare id. at p. 991 [a court may not rely on the
preliminary hearing transcript to find the defendant is not
eligible for relief under section 1172.6 at the prima facie stage,
even where the defendant stipulates the transcript provides a
factual basis for a plea], People v. Eynon, supra, 68 Cal.App.5th
at pp. 975-976 [under section 1172.6, that the magistrate held the
defendant to answer at the preliminary hearing “does not
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constitute a factual finding that the allegation is true” or “even
constitute a determination that the allegation is supported by
substantial evidence”], and People v. Rivera (2021)
62 Cal.App.5th 217, 226, 238 [a court may not rely on a grand
jury transcript to find the defendant is not eligible for relief
under section 1172.6 at the prima facie stage, even where the
defendant stipulates the grand jury transcript provides a factual
basis for a plea], review granted Jan. 19, 2022, S268405, with
People v. Davenport (2021) 71 Cal.App.5th 476, 481 [a court may
rely on a preliminary hearing transcript as part of the record of
conviction where the defendant admits the transcript provides
the factual basis for the plea].) The Supreme Court granted
review in People v. Patton (2023) 89 Cal.App.5th 649, review
granted June 28, 2023, S279670, to decide whether a superior
court engages in impermissible judicial factfinding by relying on
the preliminary hearing transcript to deny a defendant’s petition
under section 1172.6 at the prima facie stage.
Here, although counsel for Arteaga stipulated to a factual
basis for the plea, he did not stipulate the transcript of the
preliminary hearing was the factual basis. Thus, even under
People v. Davenport, supra, 71 Cal.App.5th 476, review granted,
the superior court erred in relying on the transcript of Arteaga’s
preliminary hearing. As the People concede: “It appears that the
superior court may have erred in relying on the preliminary
hearing transcript because it is unclear whether [Arteaga]
stipulated to that transcript as the factual basis of his plea.”
Any error in relying on the preliminary hearing transcript
at the prima facie stage, however, was harmless because Arteaga
admitted he was the actual killer. (See Lewis, supra, 11 Cal.5th
at pp. 957-958, 973-974 [errors in denying a section 1172 .6
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petition are evaluated under the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818, 836.) Not only did
Arteaga not check the box in his petition stating he was not the
actual killer (or the box stating he did not aid and abet the actual
killer), Arteaga admitted he was the one who stabbed Gomez and
Garcia. Gomez stated under oath that he “imposed” a single stab
wound on each victim and that, had he wanted to, he could have
inflicted “much more injury” on both of them after they turned
away from him. He also stated that, although he stabbed Gomez
and Garcia, he did not pursue them or inflict any “further injury”
on them. Taking those allegations as true, as we must (see
Lewis, at p. 971 [at the prima facie stage the court must take the
defendant’s factual allegations as true and decide whether the
defendant would be entitled to relief if the factual allegations
were proved]), Arteaga is not eligible for relief under
section 1172.6 because he was the actual killer. (See People v.
Garcia (2022) 82 Cal.App.5th 956, 973 [“As a matter of law,
resentencing relief under section 1172.6 is not available to an
‘actual killer.’”]; People v. Garrison (2021) 73 Cal.App.5th 735,
744 [a defendant who was the actual killer is ineligible for
resentencing under section 1172.6]; see also People v. Gentile,
supra, 10 Cal.5th at p. 842 [the Legislature “‘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”].)
Arteaga argues that the superior court “failed to
acknowledge the contradictory nature of the averments, for on
the one hand Arteaga said he was eligible for relief but on the
other hand said he stabbed Gomez, something that would might
[sic] him ineligible for relief” and that the court “made a
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credibility determination in accepting one portion of the
declaration while rejecting the other.” Arteaga’s declaration was
not contradictory. Whether Arteaga was eligible for relief under
section 1172.6 at the prima facie stage was an issue of law, not
fact, and Arteaga’s assertion he was eligible was a legal one, not
a factual one. (See Lewis, supra, 11 Cal.5th at p. 966 [the
question at the prima facie stage is whether the record of
conviction shows the petitioner is ineligible for relief as a matter
of law]; People v. Flores, supra, 76 Cal.App.5th at p. 991 [“it is
now well-settled that the prima facie determination is a question
of law”].) A legal assertion about which Arteaga could be, and
indeed was, wrong. As the People explain, Arteaga “mistakenly
thought he was eligible for relief, even though he was the actual
killer, because he claimed that the evidence was insufficient to
show that he acted with malice aforethought.” In contrast,
whether Arteaga killed Gomez with a knife was an issue of fact,
and Arteaga stated in his declaration he did. The superior court
did not weigh or credit that factual statement over another.
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DISPOSITION
The order denying Arteaga’s petition under section 1172.6
is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
ESCALANTE, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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