People v. Mena CA4/3 ( 2024 )

Filed 10/29/24 P. v. Mena CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061782
v. (Super. Ct. No. 09SF0405)
JESUS MENA, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Andre Manssourian, Judge. Affirmed in part and remanded
for resentencing.
Cynthia M. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Felicity Senoski, James H. Flaherty III and Nora S. Weyl,
Deputy Attorneys General, for Plaintiff and Respondent.
Jesus Mena appeals after the court granted his Penal Code
section 1172.61 resentencing petition, vacated his attempted murder
conviction, and redesignated the offense as assault with a firearm. Mena
contends the court erred by redesignating his attempted murder conviction as
assault with a firearm, and instead, the court should have redesignated the
offense as conspiracy to commit an assault with a deadly weapon or by means
of force likely to cause great bodily injury (conspiracy to commit aggravated
assault). We disagree. We do, however, agree with the parties the matter
must be remanded because the trial court neglected to impose a sentence on
the redesignated offense. Accordingly, we remand the matter for
resentencing. Upon resentencing, the court is directed to ensure the court’s
minutes and amended abstract of judgment accurately reflect the court’s
judgment. In all other respects, we affirm.
FACTUAL AND PROCEDURAL HISTORY2
In April 2009, individuals associated with the Varrio Viejo
criminal street gang, including Mena, formulated a plan to drive to San
Clemente to go “gangbanging” and “hit up” members of their gang’s rival,
Varrio Chico. The plan involved Mena, Jose Cruz Manzo, Antonio Cruz, and
Alfredo De La Cruz traveling in one car, with J.C. and others traveling in a
second car, which was to act as a decoy. Their plan also involved bringing a
gun. Manzo said, “‘If I need to use it, I’ll use it.’”
1
All undesignated statutory references are to the Penal Code.
2
We provide a brief summary of the facts underlying the offense
as a detailed recitation is unnecessary for resolution of the issues on appeal.
2
After driving to San Clemente, the two vehicles entered a
neighborhood and their occupants came upon 17-year-old J.B., who was
walking with a friend. Manzo got out of the car, chased J.B., and shot him
multiple times. J.B. survived.
In 2010, the district attorney charged Mena, Cruz, De La Cruz,
and others with conspiracy to commit an assault with a deadly weapon or by
means of force likely to cause great bodily injury (§§ 182, subd. (a)(1), 245,
subd. (a)(1);3 count 1); attempted murder (§§ 664, subd. (a), 187, subd. (a);
count 2); and active participation in a criminal street gang (§ 186.22, subd.
(a); count 3). The district attorney alleged counts 1 and 2 were committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and alleged a
gang-related vicarious firearm enhancement (§ 12022.53, subds. (d), (e)(1)) as
to the attempted murder charge.
At the preliminary hearing, the prosecutor proceeded against
Mena and his codefendants on the attempted murder charge under the
natural and probable consequences doctrine.
In 2011, in a negotiated disposition, Mena pled guilty to
attempted murder and admitted he committed the offense for the benefit of a
criminal street gang. Pursuant to the plea agreement, he was sentenced to 19
years in prison and the remaining counts and enhancements were dismissed.
3
At the time of the offense, section 245, subdivision (a)(1)
included both assault with a deadly weapon and assault by means of force
likely to cause great bodily injury. (Stats. 2004, ch. 494, § 1; see People v.
Aguilar (1997) 16 Cal.4th 1023, 1026.) The statute was amended effective
January 1, 2012 by moving the offense of assault by means of force likely to
produce great bodily injury into subdivision (a)(4) of section 245. (Stats. 2011,
ch. 183, § 1.)
3
In 2022, Mena filed a petition for resentencing pursuant to
former section 1170.95 (now codified as § 1172.6).4 The trial court issued an
order to show cause and held an evidentiary hearing. At the conclusion of the
evidentiary hearing, the court took the matter under submission. The court
later granted the petition in a minute order, finding the prosecution failed to
prove beyond a reasonable doubt Mena could be convicted of attempted
murder as a direct aider and abettor under the current law. In the minute
order, the court stated it found, under the current law, Mena “at most, would
be convicted of assault with a deadly weapon under [section] 245[,
subdivision] (a)(1).” The court indicated it intended to resentence Mena
accordingly.
At the resentencing hearing, the parties addressed the
appropriate crime to use as the target offense for resentencing purposes
under section 1172.6. Mena’s counsel asserted the court should find the
target offense to be assault with a deadly weapon (§ 245, subd. (a)(1)). The
prosecution argued assault with a firearm (§ 245, subd. (a)(2)) was the
appropriate target offense. The court agreed with the prosecutor, finding the
evidence showed Mena had knowledge of the gun prior to the shooting. The
court vacated Mena’s attempted murder conviction and redesignated it as
assault with a firearm. The court did not pronounce a sentence for the
redesignated offense but imposed two years of parole. Mena timely appealed.
4
Former section 1170.95 was renumbered section 1172.6 without
substantive change in the text effective June 30, 2022. (Stats. 2022, ch. 58,
§ 10.) The current code section will be used herein.
4
DISCUSSION
I.
REDESIGNATION OF MENA’S ATTEMPTED MURDER CONVICTION
AS ASSAULT WITH A FIREARM
Mena contends the court erred by redesignating his attempted
murder conviction as a conviction for assault with a firearm. He asserts the
court was required to redesignate his conviction to conspiracy to commit
aggravated assault, an originally charged offense. We agree with the
Attorney General the court did not err by redesignating the conviction as
assault with a firearm.
A. Standard of Review
Mena’s argument presents an issue of statutory interpretation,
which we review de novo. (People v. McDavid (2024) 15 Cal.5th 1015, 1023.)
“‘“‘“As in any case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin by examining the statute’s words, giving them
a plain and commonsense meaning.”’”’” (People v. Lewis (2021) 11 Cal.5th
952, 961 (Lewis).) “Rules of statutory construction obligate us to read a
statute, and its various subdivisions, as a cohesive whole.” (People v. Marcus
(2020) 45 Cal.App.5th 201, 213–214.)
B. Section 1172.6
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg.
Sess.; Senate Bill 1437) (Stats. 2018, ch. 1015) narrowed the scope of the
felony-murder rule, with certain exceptions, and “eliminated liability for
murder as an aider and abettor under the natural and probable consequences
doctrine.” (People v. Arellano (2024) 16 Cal.5th 457, 468 (Arellano).) Senate
Bill 1437 also created a procedure, in what is now section 1172.6, for
5
defendants previously convicted of murder to obtain retroactive relief if they
could not be convicted of murder under the amended law. (Lewis, supra, 11
Cal.5th at p. 957.) The Legislature subsequently extended relief to
defendants convicted of attempted murder based on the natural and probable
consequences doctrine. (Sen. Bill No. 775 (2021–2022 Reg. Sess.); Stats. 2021,
ch. 551, § 2.)
Pursuant to section 1172.6, subdivision (a), defendants previously
convicted of attempted murder under the natural and probable consequences
doctrine may petition the court that sentenced them to have their attempted
murder convictions vacated and be resentenced. After the prosecution has
had an opportunity to file a response and the petitioner file a reply, the court
shall “hold a hearing to determine whether the petitioner has made a prima
facie case for relief.” (Id., subd. (c).) If the petitioner makes a prima facie
showing of entitlement to relief, the court must issue an order to show cause.
(Ibid; People v. Strong (2022) 13 Cal.5th 698, 708.) Unless the parties
stipulate the petitioner is eligible for relief, the court shall hold a hearing
within the prescribed time to determine whether to grant the petitioner
relief. (§ 1172.6, subd. (d)(1) & (2).) “At the hearing to determine whether the
petitioner is entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of . . . attempted murder under California law as amended . . . .” (Id., subd.
(d)(3).)
Section 1172.6 also provides a remedy when the prosecution is
unable to prove the petitioner is guilty under the amended law. Section
1172.6, subdivision (d)(3) provides: “If the prosecution fails to sustain its
burden of proof, the prior conviction, and any allegations and enhancements
attached to the conviction, shall be vacated and the petitioner shall be
6
resentenced on the remaining charges.” But under certain circumstances, the
court may redesignate the conviction as a different offense. Subdivision (e) of
section 1172.6 provides: “The petitioner’s conviction shall be redesignated as
the target offense or underlying felony for resentencing purposes if the
petitioner is entitled to relief pursuant to this section, murder or attempted
murder was charged generically, and the target offense was not charged.”
C. The Supreme Court’s Decision in Arellano
Recently, the California Supreme Court analyzed subdivisions
(d)(3) and (e) of section 1172.6 in determining whether a court may add an
unproven offense-specific sentencing enhancement or allegation to the
redesignated conviction. (Arellano, supra, 16 Cal.5th at pp. 463–464, 469–
470.)5 Although the issue before the high court was different than the one we
consider here, we are guided by the Supreme Court’s analysis. Looking at the
text of subdivision (d)(3), the Supreme Court explained the language
directing the court to resentence the petitioner “on the ‘remaining charges,’”
was “a clear reference only to the charges that remain—not charges that
could have been established by the evidence. [Citations.] . . . [I]n resentencing
under subdivision (d) ‘the resentencing court needs to abide by what’s already
occurred in the case; the prosecution does not get a second bite at the apple.’”
(Arellano, at p. 470.)
The Arellano court also looked at the statutory language in
subdivision (e) of section 1172.6, which applies when murder or attempted
murder was charged generically and there has not been a finding on the
target offense or underlying felony. (Arellano, supra, 16 Cal.5th at p. 470.)
5
After the Supreme Court’s decision in Arellano, the parties filed,
at our invitation, supplemental briefs addressing the impact of the decision
on this appeal.
7
Section 1172.6 does not define “‘target offense’” or “‘underlying felony,’” but
these terms have clear meanings. (Arellano, at p. 470.) “‘Target offense’ is a
term used in connection with the natural and probable consequences
doctrine, referring to the crime the defendant intended to commit.” (People v.
Patterson (2024) 99 Cal.App.5th 1215, 1225; accord, Arellano, at p. 470 [“the
‘target offense’ refers to the offense the natural and probable consequence of
which was murder”].) “An ‘underlying felony’ refers to the felony underlying a
felony-murder theory.” (Arellano, at p. 470.) As the Supreme Court explained
in Arellano, “the ‘target offense or underlying felony’ under section 1172.6,
subdivision (e) is the offense or felony that was the predicate for relief in the
first place—i.e., the offense or felony that supported the prosecution’s theory
of felony murder, murder under the natural and probable consequences
doctrine, or any other theory in which malice is imputed based solely on that
person’s participation in a crime.” (Id., at pp. 474–475.)
In Arellano, the Supreme Court considered the language in
section 1172.6, subdivision (e) that “the underlying felony or target offense
‘was not charged’” and concluded an underlying felony or target offense was
not charged if “the defendant was neither convicted of the underlying felony
or target offense nor was either crime actually litigated.” (Arellano, supra, at
p. 474, fn. 5.)6 Thus, under section 1172.6, subdivision (e), where the murder
or attempted murder offense was charged generically and the underlying
felony or target offense was not charged nor litigated, the trial court
6
In Arellano, the Supreme Court noted the parties agreed
resentencing in the case “was governed by section 1172.6, subdivision (e)
despite the fact that . . . an accusatory pleading did at one point charge the
underlying felony.” (Id. at p. 474, fn. 5.)
8
redesignates the murder or attempted murder conviction to “‘the target
offense or underlying felony for resentencing purposes.’” (Arellano, at p. 470.)
In Arellano, the Supreme Court concluded when resentencing
under section 1172.6, a court lacks “the separate authority to search out and
impose sentence allegations and enhancements that were not charged and
proven at trial” because an enhancement is not part of an underlying felony
or target offense. (Arellano, supra, 16 Cal.5th at p. 474.) The Supreme Court
declined to address “whether a court has discretion under section 1172.6,
subdivision (e) to redesignate a murder conviction as multiple underlying
felonies or target offenses or whether a court must redesignate an underlying
offense in any particular degree” because those questions were not before it.
(Id., at p. 474.)
D. The Trial Court Properly Redesignated Mena’s Attempted Murder
Conviction as Assault with a Firearm
Using Arellano’s guidance, we agree with Mena the redesignation
of his attempted murder conviction is governed by section 1172.6, subdivision
(e). This provision controls because the attempted murder offense in Mena’s
case was charged generically and the target offense was not charged (i.e., he
was not convicted of the target offense nor was the target offense litigated
during trial proceedings). (See Arellano, supra, 16 Cal.5th at p. 474, fn. 5.)
Under section 1172.6, subdivision (e), the court can redesignate the murder
or attempted murder conviction to the target offense. The dispute in this case
is whether the court erred in its selection of the target offense.
Here, the trial court redesignated Mena’s attempted murder
conviction as the offense of assault with a firearm. Mena contends the court
erred in doing so and the court was required, instead, to redesignate his
attempted murder conviction as conspiracy to commit an aggravated assault,
9
an offense charged in the information but dismissed pursuant to his plea
agreement. He argues where a target offense was originally charged but
dismissed pursuant to a plea agreement, that offense must be used when an
attempted murder conviction is redesignated under section 1172.6,
subdivision (e).
Regardless of the validity of Mena’s theory, it does not apply here
because the target offense was not charged, as noted by the Attorney
General. The originally charged crime of conspiracy to commit an aggravated
assault was not a “target offense.” “Conspiracy is an inchoate crime.” (People
v. Swain (1996) 12 Cal.4th 593, 599.) “[C]onspiracy is defined in the Penal
Code as ‘two or more persons conspir[ing]’ ‘[t]o commit any crime,’ together
with proof of the commission of an overt act ‘by one or more of the parties to
such agreement’ in furtherance thereof. (Pen. Code, §§ 182, subd. (a)(1),
184.)” (Id. at p. 600.) Conspiracy itself has a target offense; it is the offense
the conspirators agree to commit, i.e., the object of the conspiracy. (Ibid.)
Conspiracy itself is not a target offense. “Criminal conspiracy is an offense
distinct from the actual commission of a criminal offense that is the object of
the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.)
Here, the information charged Mena with conspiracy to commit
aggravated assault. The target offense or object of the conspiracy was
aggravated assault, a violation of section 245, subdivision (a)(1). At the time
Mena was charged, the natural and probable consequences doctrine applied
to conspirators and aiders and abettors. (People v. Covarrubias (2016) 1
Cal.5th 838, 901; People v. Prettyman (1996) 14 Cal.4th 248, 261, superseded
in part by Sen. Bill 1437.) Application of the natural and probable
consequences doctrine to conspirators required proof the nontarget offense,
here attempted murder, was the natural and probable consequence of the
10
target offense of the conspiracy, which was aggravated assault. (See Judicial
Council of California, Criminal Jury Instructions (March 2019 ed.) CALCRIM
No. 417.) When Mena was charged, he could have been convicted of
attempted murder under the natural and probable consequences doctrine if
he conspired to commit an aggravated assault, a member of the conspiracy
committed an attempted murder to further the conspiracy, and the attempted
murder was a natural and probable consequence of the common plan or
design of the aggravated assault. (Ibid.) Thus, aggravated assault was the
target offense that formed the basis for Mena’s liability for attempted murder
under the natural and probable consequences doctrine. Because aggravated
assault was not separately charged in the information, the target offense was
not originally charged.
Section 1172.6, subdivision (e) does not dictate how a court
determines what the target offense was when it redesignates a murder or
attempted murder conviction. In cases where a petitioner was convicted of
murder or attempted murder following a trial, the redesignating and
resentencing court can look at the evidence admitted at trial to discern what
target offense or underlying felony supported the prosecution’s theory of
liability. (See People v. Howard (2020) 50 Cal.App.5th 727, 738 [trial evidence
concerning petitioner’s individual culpability supported court’s redesignation
of offense], disapproved on another ground in Arellano, supra, 16 Cal.5th at
pp. 476–477.)
Here, because Mena pled guilty prior to trial, there was no trial
evidence for the court to consider. Nevertheless, the hearing to determine
whether Mena was entitled to relief under section 1172.6 provided the court
significant evidence to make its determination of the offense upon which
liability was based under the natural and probable consequences doctrine.
11
After considering the evidence at the evidentiary hearing, the court found
assault with a firearm “to be the legally viable target offense” and
redesignated Mena’s attempted murder conviction as such. We find no error.7
Under section 1172.6, subdivision (e), the court could engage in a factual
determination as to what target offense was the basis of Mena’s liability for
attempted murder. (See People v. Silva (2021) 72 Cal.App.5th 505, 520
[“factfinding by the resentencing judge . . . is implicit in the redesignation
process”].) While the court could have redesignated Mena’s attempted murder
conviction as conspiracy to commit aggravated assault, it was not required to
do so.
The Supreme Court’s decision in Arellano does not compel us to
reach a different result. In Arellano, the parties agreed in the trial court the
target offense for resentencing purposes was the dismissed charge of
attempted robbery. (Arellano, supra, 16 Cal.5th at p. 465.) While the
Supreme Court concluded a trial court lacks the ability to impose uncharged
and unproven sentence enhancements, it expressly declined to address the
extent of a trial court’s “‘discretion’” or “‘flexibility’” when redesignating a
conviction under section 1172.6, subdivision (e). (Arellano, at p. 474.) Where,
as here, a court must redesignate a generically charged attempted murder
conviction obtained by plea to an uncharged target offense, the determination
7
Although not central to our analysis, we note Mena’s counsel
argued at the resentencing hearing the court should redesignate the
attempted murder conviction as aggravated assault, not conspiracy to commit
an aggravated assault.
12
of the target offense involves some inherent judicial factfinding and potential
discretion.8
Here, after considering the evidence presented at the evidentiary
hearing, the court properly redesignated Mena’s attempted murder conviction
as assault with a firearm.
II.
THE MATTER MUST BE REMANDED FOR RESENTENCING
After vacating Mena’s conviction and sentence for attempted
murder, the court redesignated the conviction as assault with a firearm, but
the court did not orally impose a sentence on this offense. However, the
court’s minute order and the amended abstract of judgment state the court
imposed the upper term of four years on the assault with a firearm
conviction.
Although the court did not impose a sentence, it gave Mena credit
for 4,883 days in actual custody. The court indicated, however, it would leave
blank Mena’s conduct credits for the California Department of Corrections
and Rehabilitation to calculate. The court further stated it would waive “the
fines and fees,” and “court costs.” The amended abstract of judgment does not
clearly reflect the court’s oral pronouncement regarding custody credits nor
the waiver of the fines, fees, and court costs.
8
The argument of Mena’s trial counsel provides an example of
this. At the conclusion of the evidentiary hearing, Mena’s counsel argued the
court should grant relief and redesignate the attempted murder conviction as
disturbing the peace, simple assault, battery, or assault by means of force
likely to cause great bodily injury. As counsel’s argument reflects, several
offenses may be potential target crimes for the court to consider when
redesignating a conviction under section 1172.6, subdivision (e).
13
Mena contends and the Attorney General agrees that the matter
must be remanded because the court failed to orally pronounce a sentence on
the redesignated offense. We agree with the parties. A court must orally
pronounce judgment on the record and in the defendant’s presence. (§§ 1193,
1202; People v. McGahuey (1981) 121 Cal.App.3d 524, 530.) “‘The
pronouncement of judgment is a judicial act [citation], and is to be
distinguished from the ministerial act of entering the judgment as
pronounced in the minutes or records of the court [citation].’” (People v.
Prater (1977) 71 Cal.App.3d 695, 701.) The ministerial action of entering
judgment in the minutes does not constitute a valid pronouncement of
judgment. (People v. Blackman (1963) 223 Cal.App.2d 303, 307.) Thus, the
matter must be remanded for the court to orally pronounce judgment on the
record as to Mena’s conviction for assault with a firearm.
Mena further asserts that upon remand, the court must consider
imposing the low term pursuant to section 1170, subdivision (b)(6)(B),
calculate his presentence conduct credits, and correct the amended abstract of
judgment to accurately reflect the court’s oral order crediting him with
4,883 days in actual custody and waiving his fines, fees, and court costs. We
agree these matters should be addressed at the resentencing hearing. (People
v. Buckhalter (2001) 26 Cal.4th 20, 23, 41 [trial court responsible for
calculating all days defendant spent in custody and presentence conduct
credits upon remand].)
DISPOSITION
The matter is remanded for the court to pronounce judgment on
the redesignated offense of assault with a firearm. At the hearing, the court
shall calculate Mena’s actual days in custody and his presentence conduct
credits. The court is directed to prepare and file an amended abstract of
14
judgment that accurately reflects its oral pronouncement of judgment and to
forward a certified copy of the document to the California Department of
Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
MOTOIKE, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
GOODING, J.
15