People v. Valdez CA4/3 ( 2023 )

Filed 12/20/23 P. v. Valdez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062143
v. (Super. Ct. No. 07CF3182)
VINCENT JULIAN VALDEZ, JR., OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Lewis W. Clapp, Judge. Affirmed.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2008, a jury convicted defendant Vincent Julian Valdez, Jr., of two
counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a))1, four counts of
assault with a firearm (§ 245, subd. (a)(2)), and two counts of street terrorism (§ 186.22,
subd. (a)), arising from two separate drive-by shootings. The jury also found numerous
firearm and gang related enhancement allegations to be true. The trial court sentenced
defendant to a prison term of 46 years. Another panel of this court affirmed the
judgment, with the exception of one gang enhancement related to the second shooting.
(People v. Valdez (2011) 201 Cal.App.4th 1429.)
In 2022, defendant filed a petition seeking resentencing pursuant to section
1172.6. After the trial court appointed counsel for defendant, the parties provided
briefing. The trial court held a hearing at which it summarily denied the petition,
concluding defendant was ineligible for resentencing as a matter of law. It explained:
the jury was not instructed on the natural and probable consequences doctrine; the jury
found defendant acted with an intent to kill; and, thus, the record of conviction
demonstrates he is not entitled to relief as a matter of law.
Defendant timely filed a notice of appeal, and counsel was appointed to
represent him. In compliance with People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), counsel filed a brief summarizing the proceedings and facts of the case and
advised the court they found no arguable issues in support of defendant’s appeal.
This court notified defendant he could file a supplemental brief on his own
behalf and advised him his appeal may be dismissed as abandoned if no such brief were
to be filed. Defendant did not file a supplemental brief and the time to file one has
passed. We nevertheless exercise our discretion to conduct an independent review of the
record. (Delgadillo, supra, 14 Cal.5th at p. 232.)
1 All further statutory references are to the Penal Code.
2
We have independently reviewed the entire record and have found no
arguable issues on appeal. Therefore, we affirm the postjudgment order.
DISCUSSION
Senate Bill No. 1437 was enacted to “amend 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, 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, subd. (f).) It accomplished that
purpose by substantively amending sections 188 and 189, and adding what later became
section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 707-708.) Persons who believe
they are eligible may seek resentencing pursuant to section 1172.6 by filing a petition in
the court which sentenced them. (§ 1172.6, subds. (a) & (b)(1); Strong, at p. 708.)
As originally enacted, the legislation did not expressly apply to a person
convicted of attempted murder. (People v. Porter (2022) 73 Cal.App.5th 644, 652.) A
subsequent legislative amendment clarified the statute’s scope. (Sen. Bill No. 775, Stats.
2021, ch. 551, § 1, subd. (a).) Relevant here, for persons convicted of attempted murder,
relief under section 1172.6 is available only to those convicted under a natural and
probable consequences theory. (§ 1172.6, subd. (a); People v. Coley (2022) 77
Cal.App.5th 539, 548 (Coley); see, e.g., People v. Montes (2021) 71 Cal.App.5th 1001,
1007 [defendant made prima facie showing of eligibility because record of conviction
showed jury was instructed on natural and probable consequences doctrine for attempted
murder].)
The jurors in this case were not instructed on the natural and probable
consequences doctrine. Rather, they were provided with instructions concerning direct
aiding and abetting of attempted murder (CALCRIM Nos. 400 and 401), as well as ones
concerning attempted murder (CALCRIM No. 600) and willful, deliberate and
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premeditated attempted murder (CALCRIM No. 601). One of the former required a
finding that “defendant had the intent to kill another human being,” and one of the latter
advised an attempted murder conviction required a finding that “the defendant intended
to kill [the victim].”
Attempted murder and direct aiding and abetting of attempted murder both
remain valid theories of attempted murder liability after the legislative amendments
discussed above. (Coley, supra, 77 Cal.App.5th at p. 548; cf. People v. Maldonado
(2023) 87 Cal.App.5th 1257, 1263 [direct aiding and abetting implied malice murder still
valid theory because it does not involve imputation of malice].) Accordingly, the trial
court correctly concluded defendant is ineligible for resentencing relief as a matter of
law. (Coley, at p. 548.)
DISPOSITION
The postjudgment order is affirmed.
DELANEY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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