People v. Higuera CA2/5 ( 2023 )

Filed 8/3/23 P. v. Higuera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B325372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA073018)
MICHAEL HIGUERA et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Allen J. Webster, Jr., Judge. Dismissed and Affirmed.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant Michael Higuera.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant Hector Huerta.
No appearance by Plaintiff and Respondent.
At a jury trial in 2004, defendants Michael Higuera
(Defendant Higuera) and Hector Huerta (Defendant Huerta)
were each convicted of two counts of attempted willful, deliberate,
and premeditated murder. As to each count, the jury found true
allegations that both defendants personally and intentionally
discharged a firearm within the meaning of Penal Code section
12022.53(c).1 Each defendant received a sentence of life in prison,
plus a 20-year determinate term.
Many years later, defendants petitioned for resentencing
under section 1172.6 (former section 1170.95). After appointing
counsel and receiving briefs from the People and defendants, the
trial court held a hearing for each defendant and denied the
petitions based on their failure to make a prima facie case for
relief. At the hearing on Defendant Higuera’s petition, the trial
court reasoned he “was the actual shooter, and he was not
convicted under a natural and probable consequences theory. So
due to the fact that he was the shooter in that particular case,
he . . . cannot make a prima facie showing[ and] his petition for
resentencing will be denied forthwith.” At the hearing on
Defendant Huerta’s petition, the trial court emphasized “there
was no jury instruction[ ] ever given that allowed the jury to
impute malice because defendant, again, was the perpetrator.”2
1
Defendants were also convicted of additional offenses not
relevant to this appeal: Defendant Higuera was convicted of
carrying a loaded, unregistered firearm and Defendant Huerta
was convicted of being a felon in possession of a firearm.
2
As discussed in this Court’s opinion on direct appeal, there
was evidence both defendants fired multiple shots at a car with
2
Defendants appealed, and this court appointed counsel to
represent them. After examining the record, both defendants’
attorneys filed opening briefs raising no issues and asking us to
exercise our discretion to independently review the record for
error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. We
invited defendants to submit supplemental briefs. Only
Defendant Higuera opted to do so, arguing (1) “this whole case
was based on theories of what took place”; (2) “the jury was given
an invalid instruction[ ] on the kill zone”; and (3) sufficient
evidence to support his convictions was lacking. Attached to
Defendant Higuera’s supplemental brief are letters, affidavits,
and other documents.
Although we have discretion to undertake an independent
review of the entire record, we decline and instead limit our
discussion to the issues raised in Defendant Higuera’s
supplemental brief. (Delgadillo, 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].)
None of the arguments raised in Defendant Higuera’s
supplemental brief addresses his eligibility for resentencing
under section 1172.6. Higuera’s observation that the word
“theory” was used at trial does not mean that he was convicted on
a theory under which malice was imputed to him, which would
two people inside. (People v. Higuera (Nov. 17, 2005,
No. B176767) [nonpub. opn.].)
3
permit relief under section 1172.6. (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”].) Additionally, the asserted kill zone
instructional error and the arguments regarding the sufficiency
of the evidence have no bearing on Defendant Higuera’s
eligibility for section 1172.6 relief. (People v. Coley (2022) 77
Cal.App.5th 539, 549 [a section 1172.6 petition “is not a means by
which a defendant can relitigate issues already decided”]; 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”].)
4
DISPOSITION
Defendant Huerta’s appeal is dismissed as abandoned. The
order denying Defendant Higuera’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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