People v. Chicas CA2/6 ( 2024 )

Filed 5/20/24 P. v. Chicas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B325820
(Super. Ct. No. 1455907)
Plaintiff and Respondent, (Santa Barbara County)
v.
WILFREDO RODRIGUEZ
CHICAS,
Defendant and Appellant.
Wilfredo Rodriguez Chicas appeals from the order
summarily denying his petition for resentencing (Pen. Code,
§ 1172.6).1 He contends the record of conviction does not
conclusively establish he was the actual killer or acted with
malice aforethought, and his counsel’s statements were barred by
the attorney-client privilege. We affirm.
1 Undesignated statutory references are to the Penal Code.
The petition was filed pursuant to former section 1170.95, but we
refer to the statute by its current designation, section 1172.6.
FACTUAL AND PROCEDURAL HISTORY
Chicas was charged with murder in 2015. The information
alleged he “did unlawfully, and with malice aforethought, and by
lying in wait, and was willful, deliberate, and premeditated,
murder ALEJANDRO DIAZ ALVAREZ.” (§ 187, subd. (a).) It
also alleged a special circumstance of lying in wait (§ 190.2, subd.
(a)(15)), and a special allegation that Chicas “intentionally and
personally discharged a firearm” and “proximately caused great
bodily injury” to Alvarez (§ 12022.53, subd. (d)).
Preliminary hearing
Santa Maria Police Sergeant Robert Morris testified that
he responded to a 911 call and saw the victim lying on the ground
unresponsive with blood on his face. Morris interviewed Chicas
after he waived his Miranda2 rights.
Chicas told Morris that he and G.G. had been in “a common
law marriage.” They separated but he still had feelings for her.
He was aware she was having a relationship with Alvarez. He
said Alvarez and two of Alvarez’s nephews previously brandished
firearms at him.
Chicas said that on the morning of the shooting, he drove
from G.G.’s residence to his own apartment to retrieve his
firearm, and then drove to Alvarez’s apartment “to take care of
the victim.” Chicas stood behind some bushes for 10 minutes so
Alvarez would not see him. Chicas came out of the bushes when
he saw Alvarez. Alvarez grabbed Chicas, and Chicas pushed him
down onto his hands and knees. Chicas said he tried to shoot
Alvarez but shot himself in the arm. Chicas admitted he then
shot Alvarez in the head.
2 Miranda v. Arizona (1966) 384 U.S. 436.
2
Guilty plea
Chicas pleaded guilty. The guilty plea form listed the
charges as “PC 187 Murder–1st deg. willful, premeditated,
w/ malice aforethought and by lying in wait,” and “PC
12022.53(d)–personal intent’l disc. firearm–GBI.” Chicas
initialed the statement that he pleaded guilty “to the charges
listed.”
Before the plea was entered, defense counsel made a
“statement for the record . . . to clear it up in the future if
somebody was to look and say why did this person plead guilty to
a case that’s 50 years to life.” Counsel said Chicas told him he
did not want to go to trial and risk receiving life without parole.
He continued: “[M]y client indicates that he was threatened by
this person he ultimately shot in the past, but a period of time
went by and then in essence he ambushed the person. When they
came out he shot him. He’s confessed to all this. I see absolutely
no defense to this; that’s why I’m going along, although I
normally wouldn’t want to plead somebody guilty to 50 years to
life.”
Chicas confirmed he “heard [his] attorney speak a moment
ago” and “agree[d] with everything [his] attorney said.” When
the prosecutor asked Chicas how he pleaded to “murder in the
first degree, willfully with premeditation and deliberation and
malice aforethought and by lying in wait,” Chicas responded,
“Guilty.” He admitted the allegation that he “personally
intentionally discharged a firearm that resulted in great bodily
injury upon Mr. Alvarez.” (§12022.53, subd. (d).)
The court asked counsel if he and his client stipulated to a
factual basis for the plea. Counsel agreed, and stated for the
factual basis: “[H]e’s charged with, agrees with the fact that he
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laid in wait for the victim in this case to come out and that he
shot him.” Chicas and his counsel also stipulated to a factual
basis based on the police reports and preliminary hearing
transcript.
On the prosecutor’s motion, the court dismissed the special
circumstance of lying in wait. The court sentenced Chicas to 25
years to life for murder and 25 years to life consecutive for the
firearm allegation for a total sentence of 50 years to life.
Probation report
The postsentence probation report (§ 1203c, subds. (a)(1) &
(b)) included a description of the offense based on the police
reports. It stated that police found Alvarez lying dead with blood
on his face. Alvarez’s common law wife told police she heard two
shots shortly after Alvarez walked outside. She said Alvarez was
having an affair with Chicas’s girlfriend, G.G. Police contacted
G.G., who told police Chicas had previously threatened to kill
Alvarez because of the affair.
Police arrested Chicas, who admitted shooting Alvarez.
Chicas said he waited outside Alvarez’s apartment for about 10
minutes, then struggled with him. Chicas shot himself in the
arm. When Alvarez fell to the ground, Chicas aimed the handgun
at his head and fired one round. He said “he did it to Alvarez
before Alvarez could do something to him.”
Resentencing petition
In 2022, Chicas filed a petition for resentencing (§ 1172.6).
He checked a box on the form petition stating that the
information “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
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a crime.” He also checked a box that stated, “I could not
presently be convicted of murder . . . because of changes made to
Penal Code §§ 188 or 189, effective January 1, 2019.” Counsel
was appointed. (§ 1172.6, subd. (b)(3).)
The prosecution’s written response to the petition (§ 1172.6,
subd. (c)) contended Chicas was not eligible for resentencing
because he pleaded guilty to premeditated murder with malice
aforethought, and was “the sole perpetrator” who shot and killed
the victim. The response attached documents including the plea
form, transcript of entry of the guilty plea, and probation report.
The prosecution asked the court to take judicial notice of the
preliminary hearing transcript.
At the hearing, Chicas’s attorney said she was not filing a
reply to the People’s response. (§ 1172.6, subd. (c).) She said,
“the elements of the substantive offense, even notwithstanding
the 12022.53 enhancement, conclusively negate the allegations of
this particular petition . . . I don’t believe there’s anything I could
legally argue that I would be willing to say on that.” The
prosecutor said Chicas was ineligible for resentencing because he
was “the personal shooter.” Defense counsel did not respond.
The court orally denied the petition.
The court also issued a written order denying the petition
stating: “The court has independently reviewed the record of
conviction including the preliminary hearing transcript of which
it takes judicial notice, the plea form, the abstract of judgment,
the postconviction probation report, the waiver of constitutional
rights and the transcripts of both the plea and sentencing.
Without making any credibility determinations the allegations of
the petition are conclusively negated. The petitioner was the
actual killer. The victim was killed by a single shooter lying in
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wait. At the time of the plea to first-degree murder and a special
allegation under 12022.53c [sic], the defendant acknowledged
that he was the shooter and that he pled guilty to avoid a
potential life without the possibility of parole sentence. [¶] The
petitioner has failed to establish a prima facie case and the
petition is denied.”
DISCUSSION
Section 1172.6 provides for resentencing a murder
conviction based on an accusatory pleading “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,” and “[t]he petitioner could
not presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(1) & (3).) These “changes benefit some accomplices to
murder but they never affect the murder liability of the killers.”
(People v. Mares (2024) 99 Cal.App.5th 1158, 1164, review
granted May 1, 2024, S284232, italics added.) The legislation
“ensure[s] 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, § 1(f),
quoted in People v. Curiel (2023) 15 Cal.5th 433, 448.)
Prima facie case
If a section 1172.6 petition makes a prima facie case for
relief, the court must issue an order to show cause and set an
evidentiary hearing. (§ 1172.6, subds. (c) & (d).) “[A] trial court
can rely on the record of conviction in determining whether that
. . . prima facie showing is made.” (People v. Lewis (2021) 11
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Cal.5th 952, 970.) “ ‘[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.” ’ ” (Id. at p. 971.)
“We independently review a trial court’s determination on
whether a petitioner has made a prima facie showing.” (People v.
Harden (2022) 81 Cal.App.5th 45, 52.)
Guilty plea
A guilty plea to murder does not necessarily warrant
summary denial of a resentencing petition if the defendant was
not the actual killer and could have been convicted under a
now-invalid theory. (People v. Rivera (2021) 62 Cal.App.5th 217,
223-225.) For example, a plea of guilty to premeditated and
deliberate murder may not warrant summary dismissal of the
resentencing petition where the information alleges a
codefendant was the actual killer. (People v. Eynon (2021) 68
Cal.App.5th 967, 970-971.) But where “a defendant admit[s]
more than the elements of the offense charged, . . . such
additional admissions may preclude relief under section
[1172.6].” (Rivera, at p. 234.)
Chicas made such additional admissions here. He was
asked how he pleaded to “murder in the first degree, willfully
with premeditation and deliberation and malice aforethought and
by lying in wait,” and responded, “Guilty.” This constituted “a
binding admission” that precludes section 1172.6 relief. (People
v. Romero (2022) 80 Cal.App.5th 145, 152-153 [defendant
admitted allegation he “ ‘acted intentionally, deliberately and
with premeditation’ ”].)
Counsel’s statement about why Chicas was pleading guilty
also described him as the sole killer. Counsel stated: “[H]e
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ambushed the person. When they came out he shot him. He’s
confessed to all this.” Counsel’s statements were not
“ ‘improvidently or unguardedly made.’ ” (People v. Jackson
(2005) 129 Cal.App.4th 129, 161.) Instead, counsel placed on the
record an explanation for pleading guilty that would be relevant
if there were a later claim of ineffective assistance of counsel, i.e.,
that Chicas wished to plead guilty to avoid a sentence of life
without parole. (See People v. Osband (1996) 13 Cal.4th 622,
700.)
Chicas contends that unsworn statements of counsel are
not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn.
11.) But because Chicas personally agreed on the record with his
attorney’s statements, they constitute admissions of a party.
(Evid. Code, § 1220; People v. Kiney (2007) 151 Cal.App.4th 807,
812-813.)
Counsel also stated, as part of the factual basis for the
guilty plea, that Chicas “agrees with the fact that he laid in wait
for the victim in this case to come out and that he shot him.” The
court was required to find a factual basis because there was a
negotiated disposition to strike the special circumstance.
(§ 1192.5, subd. (c); People v. Hoffard (1995) 10 Cal.4th 1170,
1181.) A factual basis may be established by counsel stating facts
that support a prima facie case “based in part on admissions the
client has made or on other defense investigation.” (People v.
Palmer (2013) 58 Cal.4th 110, 119.) Accordingly, counsel’s
statements were not “incidental remarks,” but had “the formality
of an admission or a stipulation” that constituted “judicial
admissions.” (People v. Kiney, supra, 151 Cal.App.4th at p. 815.)
Attorney-client privilege
Chicas contends his counsel’s statements amount to
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“incompetent evidence” because the record does not show a
waiver of the attorney-client privilege (Evid. Code, § 954). But
Chicas concedes his counsel’s statements may have been based on
information from police reports or other documents. If any of the
information was based on attorney-client communications, Chicas
waived the privilege by failing to object to their disclosure. (Evid.
Code, § 912, subd. (a).) During the change of plea colloquy,
Chicas confirmed he “heard [his] attorney speak a moment ago”
and “agree[d] with everything [his] attorney said.”
Chicas cites no authority that a waiver must be placed on
the record before attorney-client communications are disclosed.
(See Klang v. Shell Oil Co. (1971) 17 Cal.App.3d 933, 938
[implied waiver of privilege].) We will not assume that Chicas
did not consent to disclosure or that counsel violated the
privilege. Moreover, disclosure of client communications is
permitted for “the accomplishment of the purpose for which the
lawyer is consulted.” (Evid. Code, § 952.) The information
disclosed here facilitated a disposition that would allow the
possibility of parole.
Preliminary hearing transcript and probation report
The parties stipulated to the preliminary hearing
transcript as part of the factual basis for the plea. Thus, it is
part of the record of conviction and was properly considered by
the trial court to summarily deny the section 1172.6 petition.
(People v. Davenport (2021) 71 Cal.App.5th 476, 481; People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1161, 1166.) The court
properly granted the prosecution’s uncontested request for
judicial notice of the preliminary hearing transcript when
considering the section 1172.6 petition. (Evid. Code, §§ 452,
subd. (d), 453; People v. Arnold (2023) 93 Cal.App.5th 376, 391
9
[failure to object to consideration of preliminary hearing
transcript forfeited issue].)
The preliminary hearing transcript establishes that Chicas
told police he obtained his firearm and went to Alvarez’s home “to
take care of the victim before the victim did anything to him.”
Chicas admitted he then shot Alvarez in the head. Nothing in
the record even hints that Chicas killed Alvarez in the course of
committing some other felony, or that some other perpetrator
participated in the murder.
“[H]earsay evidence that was admitted in a preliminary
hearing pursuant to subdivision (b) of Section 872 shall be
excluded from the [resentencing] hearing as hearsay, unless the
evidence is admissible pursuant to another exception to
the hearsay rule.” (§ 1172.6, subd. (d)(3).) Although the
preliminary hearing transcript included some hearsay, Sergeant
Morris’ testimony about his observations of the victim were not
hearsay. And Chicas’s statements to Morris were admissible
pursuant to the hearsay exception for party admissions. (Evid.
Code, § 1220; People v. Zack (1986) 184 Cal.App.3d 409, 416-417.)
The probation report similarly established that Chicas was
the actual killer. “Ordinarily, a probation officer’s report is not
part of the record of conviction.” (People v. Del Rio (2023) 94
Cal.App.5th 47, 56.) But the probation report here summarized
the police reports, which the parties stipulated were part of the
factual basis for the plea. (See People v. Holmes (2004) 32
Cal.4th 432, 436 [factual basis based on stipulation to statements
in police reports].)
In our view, reliance on the preliminary hearing transcript
and probation report did not involve “ ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (People v.
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Lewis, supra, 11 Cal.5th at p. 972.) “Without weighing
conflicting evidence or making credibility determinations, the
record of conviction [here] irrefutably establishes as a matter of
law” that Chicas was the actual killer. (People v. Harden, supra,
81 Cal.App.5th at p. 56.)
As in People v. Pickett (2023) 93 Cal.App.5th 982, review
granted October 11, 2023, S281643, “uncontroverted evidence
from the preliminary hearing transcript show[ed] that the
defendant acted alone in killing the victim.” (Id. at p. 990, citing
People v. Patton (2023) 89 Cal.App.5th 649, 657, review granted
June 28, 2023, S279670.) “[T]here is nothing to suggest that any
other person was involved in the incident. The inference that
[appellant] acted alone and was the actual killer is
uncontradicted and compelling.” (Pickett, at p. 990.) And as in
Pickett, Chicas “offered no evidence or argument [in the trial
court] that might have raised a factual issue as to his
involvement in [the victim’s] death. We can thus assess
[appellant’s] prima facie showing without ‘engag[ing] in
“factfinding involving the weighing of evidence” ’ or making any
credibility determinations [citation], because [appellant] offered
no evidence to weigh, and did not dispute the evidence.” (Ibid.;
People v. Mares, supra, 99 Cal.App.5th at p. 1171, review
granted.)
Denial of the resentencing petition here is consistent with
People v. Curiel, supra, 15 Cal.5th 433, where the victim was
killed by a codefendant. (Id. at p. 442.) In Curiel, the
gang-murder special circumstance established intent to kill, but
was insufficient to summarily deny a section 1172.6 petition
because it did not establish that the defendant had knowledge of
the actual killer’s intent. (Curiel, at p. 468.) In contrast here,
Chicas acted alone and with malice aforethought, deliberation,
11
and premeditation when he shot and killed Alvarez.
Chicas suggests a hypothetical situation in which he laid in
wait for Alvarez, shot him causing great bodily injury, and some
unknown person then killed him. The record of conviction is to
the contrary. Chicas got his firearm to “take care of the victim.”
He hid in the bushes until he saw Alvarez and, after pushing him
to the ground, shot him in the head. Nothing in the record
suggests that any other perpetrator was involved. This case is
thus unlike People v. Maldonado (2023) 87 Cal.App.5th 1257,
where the evidence was conflicting whether Maldonado was the
actual killer, aided and abetted the murder, or merely saw the
victim’s body afterward. (Id. at pp. 1259-1260.)
This case is also unlike People v. Rivera, supra, 62
Cal.App.5th 217, which reversed summary denial of a section
1172.6 petition. Rivera held that a defendant may make a prima
facie case for relief “by identifying a scenario under which he or
she was guilty of murder only under a now-invalid theory,” even
if that theory is not reflected in the grand jury transcript or
guilty plea. (Rivera, at pp. 224, 238.) But the court “le[ft] open
the possibility” that a facially sufficient petition could be denied
based on a grand jury transcript if the petitioner “does not in any
way contest the evidence presented to the grand jury.” (Id. at p.
238.)
The same principle applies to the preliminary hearing
transcript here. Chicas filed a form petition with the required
allegations, but did not challenge the evidence in the preliminary
hearing transcript or contest the prosecution’s contention that he
was “the sole perpetrator” who killed the victim by shooting him.
Instead, defense counsel correctly noted that the record
“conclusively negate[s] the allegations of this particular petition.”
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As in People v. Nguyen, supra, 53 Cal.App.5th 1154, 1167,
“[t]here is no mention in the record, prior to the guilty pleas, of
any underlying felony that could be used as the basis of
felony-murder liability, or any target offense that could be used
as the basis of liability under the natural and probable
consequences doctrine.” Instead, the record shows Chicas
procured his firearm, went to the victim’s residence, hid in the
bushes, and then killed him by shooting him in the head. And
because the record “revealed no indication of any accomplice” and
“[d]efense counsel did not argue or even insinuate that any other
person was responsible for [the victim’s] death,” the court
properly concluded that Chicas was the actual killer and did not
make a prima facie case for relief. (People v. Bodely (2023) 95
Cal.App.5th 1193, 1201.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P.J.
CODY, J.
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John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Wayne C. Tobin, 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, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.