People v. Rodriguez CA5 ( 2024 )

Filed 2/29/24 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085994
Plaintiff and Respondent,
(Super. Ct. No. 52042)
v.
NAHU RODRIGUEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Robert B.
Westbrook, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Joseph Penney, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Poochigian, J. and Peña, J.
INTRODUCTION
In 1996, defendant and appellant Nahu Rodriguez (appellant) pleaded guilty to
premeditated attempted murder and admitted enhancements for personal use of a firearm
and personal infliction of great bodily injury. He was sentenced to life in prison with the
possibility of parole, plus four years. After correcting the calculation of his credits, this
court affirmed the judgment on direct appeal. (People v. Rodriguez/In re Rodriguez
(Aug. 27, 1997, F025919/F027653) [nonpub. opn.] (Rodriguez).)
In 2021 and 2022, appellant filed three petitions for resentencing of his conviction
for premeditated attempted murder pursuant to former section 1170.95 and amended
section 1172.6 of the Penal Code.1 The trial court denied the first and second petitions
because former section 1170.95 did not provide for resentencing of an attempted murder
conviction. After the statutory amendments added attempted murder to the resentencing
provisions, the court held a hearing on the third petition, and found appellant’s petition
failed to state a prima facie case for relief.
On appeal, appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th
216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a letter brief in
response. We review his arguments and affirm the trial court’s denial of his petition.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant filed his first and second petitions pursuant to section 1170.95. As discussed
below, the statute was substantively amended, effective on January 1, 2022; and
renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu
(2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its
current number throughout this opinion, except where otherwise indicated.
2.
PROCEDURAL BACKGROUND2
On February 7, 1996, an information was filed in the Superior Court of Stanislaus
County charging appellant with committing the following offenses on July 23, 1993:
count 1, premeditated attempted murder (§§ 664/187), with enhancements that in the
commission of the offense, appellant personally used “a deadly and dangerous weapon,”
a firearm (§ 12022, subd. (b)), and he “personally and intentionally” inflicted great bodily
injury on the victim (§ 12022.7, subd. (a)); count 2, aggravated mayhem, by intentionally
causing permanent disfigurement of the victim’s eyes (§ 205), with the deadly weapon
enhancement; and count 3, assault with a firearm on the victim (§ 245, subd. (a)(2)), with
deadly weapon and great bodily injury enhancements.
Plea and Sentencing
On March 28, 1996, the trial court convened a hearing because the parties had
reached a negotiated disposition. According to the minute order, appellant was present
with his attorney. An interpreter, identified as “B. Pineda,” was also present.
The prosecutor stated that appellant would plead guilty to premeditated attempted
murder and admit the firearm and great bodily injury enhancements for life plus
four years, the remaining charges and enhancements would be dismissed, probation
2 During the pendency of this appeal, this court granted appellant’s request to take
judicial notice of our nonpublished opinion in Rodriguez, supra, F025919/F027653, that
affirmed appellant’s conviction on direct appeal. After notice to the parties and without
objection, this court takes judicial notice of the entirety of the record in Rodriguez, supra,
F025919/F027653. (Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22
Cal.App.5th 284, 286–287, fn. 2.)
In reviewing a section 1172.6 petition, the trial court may rely on “the procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People
v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th
393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the trial court
may not rely on factual summaries contained in prior appellate decisions or engage in fact
finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th
952, 972 (Lewis).)
3.
would be terminated in an unrelated case, and a misdemeanor charge in another case
would be dismissed. Defense counsel concurred with the proposed disposition.
The trial court advised appellant of the proposed disposition and sentence: “Upon
entry of those pleas, the [c]ourt is going to sentence you to the Department of Corrections
[and Rehabilitation] for a period of life, with [the] possibility of parole, plus an additional
one year for the armed or use enhancement, plus an additional three years for the
[section] 12022.7 or great bodily injury infliction that you are going to admit.” The court
advised appellant that “[t]he eligibility date for parole … would be 11 years.” The court
asked appellant if he understood and if that was what he wanted to do, and appellant said,
“Yes.”
The court advised appellant of his constitutional rights, and appellant said he
understood and waived his rights.
Thereafter, appellant pleaded guilty to premeditated attempted murder, and
admitted the enhancements that during the commission of the offense, he personally used
a dangerous and deadly weapon, a firearm (§ 12022, subd. (b)); and he “personally and
intentionally inflict[ed] great bodily injury” on the victim (§ 12022.7).
The trial court stated that “from a review of the file, the [c]ourt finds that there is a
factual basis for the entry of this plea.”3
On the same day, appellant waived time and the trial court sentenced him
consistent with the negotiated disposition, to life with the possibility of parole for
premeditated attempted murder, plus one year for the deadly weapon enhancement and a
consecutive term of three years for the great bodily injury enhancement. The court
dismissed a pending case and terminated probation in another pending case.
3 As discussed below, appellant waived both a preliminary hearing and time to
prepare a probation report, and the instant appellate record does not contain any facts
about the nature and circumstances of the charged offenses and conviction, aside from the
allegations in the information.
4.
Direct Appeal
In his direct appeal, appellate counsel filed a brief pursuant to Wende. Appellant
separately filed, in propria persona, a petition for writ of habeas corpus and alleged
counsel was ineffective and misadvised him about the minimum and maximum sentences
if he rejected the plea bargain. This court requested briefing from the parties about the
calculation of appellant’s presentence credits.
On August 27, 1997, this court filed the nonpublished opinion in the appeal and
writ; that opinion did not contain a factual statement. In the appeal, we ordered
correction of appellant’s conduct credits. In the writ, we found appellant failed to
adequately allege prejudice, and denied the petition without prejudice for appellant to
pursue relief in the superior court upon a proper showing. (People v. Rodriguez/In re
Rodriguez, supra, F025919/F027653.)
APPELLANT’S PETITIONS FOR RESENTENCING
First Petition
On April 16, 2021, appellant filed a petition for resentencing of his attempted
murder conviction pursuant to former section 1170.95. The trial court summarily
dismissed the petition.
Second Petition
On or about November 8 or 9, 2021, appellant filed another petition for
resentencing of his attempted murder conviction pursuant to former section 1170.95. The
trial court appointed counsel and set a briefing schedule. On December 22, 2021, the
prosecution filed opposition to the petition.
Statutory Amendment
As discussed below, the resentencing statute was amended, effective January 1,
2022, to clarify that a person convicted of “attempted murder under the natural and
probable consequences doctrine” may file a petition for resentencing under certain
5.
enumerated circumstances. (§ 1172.6, subd. (a); People v. Birdsall (2022) 77
Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
Third Petition
On January 5, 2022, while his second petition was pending, appellant filed another
petition for resentencing of his attempted murder conviction. His supporting declaration
consisted of a preprinted form where he checked boxes that stated (1) a complaint,
information, or indictment was filed against him that allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could
have been convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
Appellant also filed a separately typed declaration, and asserted that at his plea
hearing, his defense counsel allegedly misadvised him of the prison sentence he was
going to receive for murder, and that he would only get 11 years. Appellant requested the
trial court grant his petition for resentencing, strike the life term, and resentence him to
11 years.
The Prosecution’s Response
On February 14, 2022, the prosecution filed a response to appellant’s
November 2021 petition, and explained the procedural history of appellant’s prior
petitions. The prosecution asserted the petitions were duplicative and requested the court
rule upon the pending petition filed in January 2022.
6.
The Trial Court’s Orders on the Multiple Petitions
On March 16 and April 26, 2022, the trial court held hearings on appellant’s
two pending petitions for resentencing.
The trial court denied appellant’s November 2021 petition because resentencing
for attempted murder was not permitted under the statutory provisions that were
applicable in 2021. The court further found the November 2021 petition was superseded
by the January 2022 petition.
As to the January 2022 petition, the court appointed counsel and set a briefing
schedule on the prima facie issue.
The prosecution advised the court that it would not file another opposition since it
had already done so for the prior petitions.
Appellant’s Reply
On May 9, 2022, defense counsel filed a reply to the prosecution’s prior
opposition. The reply generally reviewed Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate Bill 775), the
amendments to sections 188 and 189, the provisions and procedural requirements of
section 1172.6, and asserted that the trial court could rely on the record of conviction to
make the prima facie determination.
The reply further stated the trial court should independently review the record of
conviction to determine whether a prima facie showing had been made, and if so, conduct
an evidentiary hearing and resentence appellant.
The Trial Court’s Denial of the Petition
On June 10, 2022, the trial court conducted a hearing on the prima facie issue.
The prosecutor explained appellant’s two prior petitions were denied because the
then-applicable statute excluded attempted murder from resentencing. The prosecutor
further advised the court:
7.
“[W]e submitted a proposed order on this because it’s pretty clear
cut based on the facts and the record of conviction established that
[appellant] was not charged or convicted of attempted murder under a
theory of felony murder or the natural and probable consequences doctrine.
[¶] … [¶] … [H]e was convicted of attempted murder based solely on his
participation in the crime and not based on any vicarious liability theory.
[¶] Bluntly, the facts of the case are pretty simple, [appellant] got into an
argument with his neighbor and shot him in the face. His neighbor
survived and [appellant] has been serving his prison sentence since that
time. I believe the crime took place on July [23], 1993.”
The court asked defense counsel to respond. Defense counsel did not object to the
prosecutor’s factual summary of the offense, but argued: “[Appellant] did, in fact, file a
facially sufficient petition and this Court did, in fact, follow the statutory procedure,
appointed counsel, asked for briefing on the matter. Both parties have briefed the matter
and we are willing to submit it on our brief.”
The court and the parties had the following exchange:
“THE COURT: Okay. It doesn’t sound like a prima facie case has
been made based on—
“[THE PROSECUTOR]: Right.
“THE COURT: —the facts on the underlying conviction
“[THE PROSECUTOR]: Yes.
“THE COURT: Unless you have any contrary facts or argument to
make I’m inclined then to grant the—or deny the petition and sign the
order. [¶] Okay. That’s what I will do.
“[THE PROSECUTOR]: Thank you, Your Honor.
“[DEFENSE COUNSEL]: Thank you, Your Honor.”
On the same day, the trial court filed an order that found appellant’s petition failed
to state a prima facie case for resentencing. The court stated it had reviewed the petition,
the prosecution’s opposition, appellant’s reply, and “the record of conviction,” and made
the following findings:
8.
“On July 23, 1993, [appellant] got into an argument with [the
victim]. The two men had been drinking all day in the front yard.
[Appellant] went into his home and retrieved a shotgun. [Appellant]
pointed and fired the shotgun at [the victim’s] face. [The victim] survived
the shotgun wounds but was blinded in both eyes.
“On August 6, 1993,[4] [appellant] was charged with violating
[sections] 664/187, attempted murder, with enhancements that in attempting
to murder [the victim], [appellant] acted intentionally, deliberately and with
premeditation and [appellant] personally used a deadly and dangerous
weapon in violation of … section 12022[, subdivision ](b). The attempted
murder charge also included a special allegation that at the time of the
commission of the crimes, [appellant] used a deadly weapon upon a human
being, within the meaning of [section] 1203[, subdivision ](e)(2). On
March 28, 1996, [appellant] pled guilty to attempted murder with
premeditation.
“The reason for this denial is based on the above facts and the record
of conviction which establish that [appellant] was not charged or convicted
of attempted murder under a theory of felony murder or the natural and
probable consequences doctrine. [Appellant] was convicted of attempted
murder based solely on his participation in the crime.”5
Appellant filed an appeal from the trial court’s denial of his petition.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Wende and Delgadillo. The brief included counsel’s declaration that appellant was
advised he could file his own brief with this court. This court also advised appellant that
he could file a supplemental letter brief. Appellant filed a letter brief and raises the
following arguments.
4 The trial court’s reference to charges filed on August 6, 1993, is to the criminal
complaint, which was followed by the information that was filed on February 7, 1996.
5 As previously noted, appellant waived a preliminary hearing, and he also waived
time for sentencing so that a probation report was not prepared. As a result, the record
from his plea does not contain any facts about the underlying offense, including those
cited by the prosecutor and the court at the hearing on his section 1172.6 petition.
9.
I. Appellant’s Arguments About His Plea and Sentence
Appellant’s letter brief requests this court take “judicial notice” of two documents
attached to his brief—two pages from the reporter’s transcript of his plea and sentencing
hearing, and the abstract of judgment.
We deny appellant’s request because we have already taken judicial notice of the
record from his plea and sentencing, including the entirety of the reporter’s transcript and
the abstract of judgment.
Appellant asserts these documents show that he was not present at the plea hearing
when the court, the prosecutor, and defense counsel discussed his plea, that appellant and
his family were allegedly “informed that this plea will be for 11[ ]years,” appellant’s
waiver of his right to a jury trial was invalid, there was no evidence of premeditation, and
the life sentence was unauthorized because the prosecution failed to prove premeditation
or aggravating circumstances. Appellant further asserts that at the plea hearing, the judge
allegedly made a statement “off the record” that he believed appellant did not understand
what was happening, his defense counsel also acted as his interpreter, which resulted in a
conflict of interest, the judge sentenced him to 11 years and never said it was a life term,
and he could not find any references to a “life” term in the record.
Appellant’s contentions are based on his plea and sentencing hearing, and are not
cognizable in this appeal. “The mere filing of a section [1172.6] petition does not afford
the petitioner a new opportunity to raise claims of trial error .… To the contrary,
‘[n]othing in the language of section [1172.6] suggests it was intended to provide redress
for allegedly erroneous prior factfinding.… The purpose of section [1172.6] is to give
defendants the benefit of amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual disputes that have already
been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942, 947; People v. DeHuff
(2021) 63 Cal.App.5th 428, 438.)
10.
Moreover, the entirety of the record from appellant’s plea and sentencing refutes
his allegations. Appellant pleaded guilty to premeditated attempted murder and the
prosecution was not required to prove the elements of the offense. The minute order
reflects that appellant was present at the hearing with his attorney, and an interpreter was
also present and identified by name. The reporter’s transcript shows that the trial court
clearly advised appellant about his constitutional rights, and appellant said he understood
and waived his rights. The transcript also shows the court advised appellant that his
guilty plea would result in a sentence of life with the possibility of parole, and he would
be eligible for parole after serving 11 years—not that he was only being sentenced to
11 years. Appellant replied that he understood and agreed to the terms of the disposition.
II. Appellant’s Arguments About the Denial of His Petition
As explained above, defense counsel filed a reply brief with the trial court prior to
the hearing on whether his petition stated a prima facie case under section 1172.6.
Counsel’s reply generally reviewed the applicable law for a section 1172.6 petition, and
asserted the court should independently review the record of conviction to determine
whether a prima facie showing had been made, and if so, conduct an evidentiary hearing
and resentence appellant.
In this appeal, appellant’s letter brief attached that same reply brief as an exhibit.
Appellant stated his appellate contentions were “based upon the issues and argument[s]”
raised in the reply brief that was previously filed with the trial court. Appellant has thus
preserved review of the court’s ruling that denied his section 1172.6 petition without
issuing an order to show cause.
A. Section 1172.6
“Effective January 1, 2019, [Senate Bill 1437] amended the felony-murder rule by
adding section 189, subdivision (e). [Citation.] It provides that a participant in the
qualifying felony is liable for felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor;
11.
or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. [Citation.] The Legislature also amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to section 188, which states
that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022)
13 Cal.5th 698, 707–708.)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” codified in
former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708.) The original
version of the statute permitted “a person with an existing conviction for felony murder
or murder under the natural and probable consequences doctrine to petition the
sentencing court to have the murder conviction vacated and to be resentenced on any
remaining counts if he or she could not have been convicted of murder as a result of the
other legislative changes implemented by [Senate Bill 1437].” (People v. Flores (2020)
44 Cal.App.5th 985, 992.)
As previously explained, effective January 1, 2022, Senate Bill 775 amended
former section 1170.95, later renumbered as section 1172.6, and “ ‘clarified that persons
who were convicted of attempted murder or manslaughter under a theory of felony
murder and the natural [and] probable consequences doctrine are permitted the same
relief as those persons convicted of murder under the same theories.’ ” (People v.
Birdsall, supra, 77 Cal.App.5th at p. 865, fn. 18; People v. Vizcarra, supra, 84
Cal.App.5th 377, 388; People v. Saibu, supra, 81 Cal.App.5th at p. 715, fn. 3.)
B. The Prima Facie Finding
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to make an order to show
12.
cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
A petitioner is ineligible for resentencing “as a matter of law if the record of
conviction conclusively establishes, with no factfinding, weighing of evidence, or
credibility determinations,” that the petitioner was the actual shooter. (People v. Lopez
(2022) 78 Cal.App.5th 1, 13–14.) “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 discretion.’ ” (Lewis, supra, 11 Cal.5th at
p. 972.)
The record of conviction includes the charging documents, the transcripts for the
change of plea and sentencing hearing, and the abstract of judgment. (People v. Fisher
(2023) 95 Cal.App.5th 1022, 1029; People v. Verdugo (2020) 44 Cal.App.5th 320, 329–
330, overruled on other grounds by Lewis, supra, 11 Cal.5th at pp. 962–963; People v.
Abarca (1991) 233 Cal.App.3d 1347, 1350.)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 957, 974–975; People v. Watson
(1956) 46 Cal.2d 818, 836.)
C. Premeditated Attempted Murder
The elements of attempted murder are the specific intent to kill (express malice)
and the commission of a direct but ineffectual act towards accomplishing the intended
killing. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Gonzalez (2012) 54 Cal.4th
643, 653, 664; People v. Beck and Cruz (2019) 8 Cal.5th 548, 642.) Implied malice
cannot support a conviction of attempted murder. (People v. Bland (2002) 28 Cal.4th
313, 327.)
13.
“[U]nlike murder, attempted murder is not divided into degrees. The prosecution,
though, can seek a special finding that the attempted murder was willful, deliberate, and
premeditated, for purposes of a sentencing enhancement.” (People v. Mejia (2012) 211
Cal.App.4th 586, 605.) “ ‘Willful’ is synonymous with ‘express malice’: in other words,
a specific intent to kill. [Citation.] Premeditation occurs when the [attempted] killing is
‘ “considered beforehand,” ’ and deliberation occurs when the decision to kill is
‘ “formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ” (Id., at p. 604.)
Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime (the target offense), the natural and probable consequences of which was
attempted murder or murder (the nontarget offense), could be convicted of not only the
target crime but also of the resulting nontarget offense of attempted murder or murder.
(People v. Chiu (2014) 59 Cal.4th 155, 161, 166; People v. Gentile (2020) 10 Cal.5th 830,
843, 845; People v. Prettyman (1996) 14 Cal.4th 248, 259, 262; People v. Coley (2022)
77 Cal.App.5th 539, 548.)
As explained above, Senate Bill 1437 amended section 188 to eliminate natural
and probable consequences liability for first and second degree murder. (People v.
Garrison (2021) 73 Cal.App.5th 735, 742.) Senate Bill 775, which became effective in
2022, “clarified Senate Bill 1437 by amending [former] section 1170.95 to make clear the
natural and probable consequences doctrine no longer supplies accomplice liability to
attempted murder.” (People v. Sanchez (2022) 75 Cal.App.5th 191, 193.) “Because
section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in
a crime, the natural and probable consequences doctrine cannot prove an accomplice
committed attempted murder. Accordingly, the natural and probable consequences
doctrine theory … is now invalid.” (Sanchez, at p. 196; People v. Coley, supra, 77
Cal.App.5th at p. 548.)
14.
D. Analysis
The trial court denied appellant’s third petition for resentencing by making
extensive factual findings that he pleaded guilty to attempted premeditated murder as the
actual perpetrator, because he “got into an argument with [the victim]. The two men had
been drinking all day in the front yard. [Appellant] went into his home and retrieved a
shotgun. [Appellant] pointed and fired the shotgun at [the victim’s] face. [The victim]
survived the shotgun wounds but was blinded in both eyes.”
There is nothing in the instant record, however, to reflect the source of the trial
court’s statements or the nature and circumstances of the crime. At the plea hearing, the
court found a factual basis for defendant’s plea based on information in the file, but the
parties did not otherwise stipulate to any facts, and appellant waived both a preliminary
hearing and preparation of a probation report.
In any event, the trial court violated section 1172.6 by making factual findings for
the prima facie determination. (Lewis, supra, 11 Cal.5th at p. 972.) However, the court’s
error is not prejudicial. Appellant pleaded guilty to attempted premeditated murder and
admitted the enhancements that during the commission of the offense, he personally used
a dangerous and deadly weapon, a firearm (§ 12022, subd. (b)); and he personally and
intentionally inflicted great bodily injury on the victim (§ 12022.7).
Appellant’s admission of the premeditation allegation does not foreclose the
possibility that he was convicted of attempted murder on a natural and probable
consequences theory. (See People v. Favor (2012) 54 Cal.4th 868, 879–880.) However,
appellant’s additional admission to the personal infliction of great bodily injury in the
commission of the attempted premeditated murder forecloses such a possibility.
Section 12022.7, subdivision (a) provides: “Any person who personally inflicts great
bodily injury on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.” (Italics added.) By enacting
15.
section 12022.7, “the Legislature intended to impose an additional penalty for causing
great bodily injury only on those principals who perform the act that directly inflicts the
injury, and that one who merely aids, abets, or directs another to inflict the physical
injury is not subject to the enhanced penalty of section 12022.7.” (People v. Cole (1982)
31 Cal.3d 568, 571, italics added; People v. Rodriguez (1999) 69 Cal.App.4th 341, 348–
349 [same].) “Accordingly, ‘one who merely aids, abets, or directs another to inflict the
physical injury is not subject to the enhanced penalty of section 12022.7.’ ” (People v.
Slough (2017) 11 Cal.App.5th 419, 423.)
To the extent the trial court erroneously made factual findings to deny appellant’s
section 1172.6 petition prior to an evidentiary hearing, the error is not prejudicial because
the record of conviction establishes that appellant entered his plea as the actual
perpetrator of premeditated attempted murder who personally and intentionally inflicted
great bodily injury on the victim, and not as an aider an abettor to a nonmurder crime to
whom malice may have been imputed.
DISPOSITION
The court’s order of June 10, 2022, denying appellant’s petition for resentencing,
is affirmed.
16.