People v. Real CA2/3 ( 2024 )

Filed 1/23/24 P. v. Real CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B328619
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA052682)
v.
RANDY REAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Victor D. Martinez, Judge. Affirmed.
Randy Real, in pro. per.; and William J. Capriola, under
appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2001, a jury found Randy Real guilty of attempted
willful, deliberate, and premeditated murder. He thereafter
petitioned for resentencing under Penal Code section 1172.6,1
which limited accomplice liability for murder. The trial court
denied the petition, and Real appealed. His appellate counsel
filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo). Real filed a supplemental brief in which he argues
that a gang enhancement was used to prove premeditation and
deliberation. As we now explain, the trial court did not err in
denying the petition.
INTRODUCTION
In 2001, Real shot and wounded Michael Wright, who
testified at trial that Real yelled the name of a gang before
shooting him.2 Another witness identified Real as the shooter.
Real was charged with one count of attempted willful, deliberate,
and premeditated murder (§§ 664, subd. (a), 187, subd. (a)), and a
jury found him guilty of that crime. The jury also found true
personal gun use (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b),
(c) & (d)) and gang (§ 186.22, subd. (b)(1)) allegations and that
Real personally inflicted great bodily injury (§ 12022.7, subd. (a)).
A trial court sentenced Real to 55 years to life in prison.
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2 We derive the background from the opinion affirming the
judgment of conviction on direct appeal, People v. Real (Feb. 6,
2003, B154473) [nonpub. opn.].
2
In 2022, Real petitioned for resentencing on his attempted
murder conviction under section 1172.6. The trial court
appointed counsel to represent Real. The People opposed the
petition on the ground that Real was not prosecuted under the
natural and probable consequences doctrine or as an aider and
abettor. Instead, he was prosecuted and convicted as the actual
perpetrator who acted with malice aforethought. With its
opposition, the People submitted the jury instructions. The trial
court denied the petition, noting that the jury was not instructed
on the natural and probable consequences doctrine or on aiding
and abetting, and the jury had found that Real personally
discharged a firearm, causing great bodily injury to the victim.
This appeal followed. Real’s appellate counsel filed an
opening brief that raised no issues and asked this court to
independently review the record under Delgadillo, supra, 14
Cal.5th 216. We directed appellant’s counsel to send the record
and a copy of the opening brief to Real, and we advised that
within 30 days of the date of the notice, Real could submit a
supplemental brief or letter stating any grounds for an appeal, or
contentions, or arguments he wished this court to consider. Real
submitted a supplemental brief in which he argues that the gang
enhancement was “used to prove premeditation and
deliberation.”
DISCUSSION
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
under the felony-murder rule, eliminated the natural and
probable consequences doctrine as it relates to murder, and
eliminated convictions for murder based on a theory under which
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malice is imputed to a person based solely on that person’s
participation in a crime. (See generally People v. Reyes (2023) 14
Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959;
People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill
No. 1437 added section 189, subdivision (e) (limiting application
of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “to be convicted of murder, a principal in a crime
shall act with malice aforethought” and malice “shall not be
imputed to a person based solely on his or her participation in a
crime”).
Senate Bill No. 1437 also created a procedure, codified at
section 1172.6, for a person convicted of murder under the former
law to be resentenced if the person could no longer be convicted of
murder under the amended law. (People v. Lewis, supra, 11
Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
At the prima facie stage, the trial court takes as true the
petitioner’s factual allegations and assesses whether the
petitioner would be entitled to relief if those allegations were
proved. (Lewis, at p. 971.) In determining whether the petitioner
has made a prima facie case for relief, the trial court may look at
the record of conviction, including jury instructions, verdicts and
closing argument, to determine readily ascertainable facts such
as the crime of conviction. (People v. Duchine (2021) 60
Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81
Cal.App.5th 45, 56.) At the prima facie stage, the trial court does
not engage in fact finding that involves weighing evidence or
exercising discretion. (Lewis, at p. 972.) If a petition establishes
a prima facie case for relief, the trial court must appoint counsel
if requested, issue an order to show cause, and hold an
evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), & (d)(1).)
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Otherwise, the trial court may dismiss meritless petitions that do
not establish a prima facie case for relief. (Lewis, at p. 971.)
Here, Real did not establish a prima facie case for relief.
Real’s jury was not instructed on felony murder, the natural and
probable consequences doctrine or aiding and abetting. The jury
also found true personal gun use allegations (§§ 12022.5
subd. (a); 12022.53, subd. (d)), a personal infliction of great bodily
injury allegation (§ 12022.7), and that the attempted murder was
committed willfully, deliberately, and with premeditation. The
record of conviction therefore shows that Real was the sole
participant in the crime and actual attempted killer, and he was
convicted as such. (See, e.g., Delgadillo, supra, 14 Cal.5th at
p. 233 [defendant ineligible for § 1172.6 relief where record made
clear he was actual killer and only participant in the killing].)
As for Real’s contention that the gang enhancement was
used to prove premeditation and deliberation, a section 1172.6
petition is not a vehicle to relitigate alleged trial errors. (See,
e.g., People v. Coley (2022) 77 Cal.App.5th 539, 549 [§ 1172.6 “is
not a means by which a defendant can relitigate issues already
decided”]; People v. Farfan (2021) 71 Cal.App.5th 942, 947 [“mere
filing” of § 1172.6 petition doesn’t afford petitioner new
opportunity to raise trial error claims or attack sufficiency of
evidence to support jury’s findings]; People v. DeHuff (2021) 63
Cal.App.5th 428, 438 [§ 1172.6 is not a direct appeal].)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
ADAMS, J.
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