People v. Frias CA2/8 ( 2024 )

Filed 10/1/24 P. v. Frias CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B336151
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA357016-01
v.
ANDRES FRIAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kevin Stennis, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), we review this appeal of an order denying
appellant’s petition for resentencing brought under Penal Code1
section 1172.6. We affirm.
BACKGROUND
In 2011, a jury convicted appellant Andres Frias of first
degree murder and found true that he committed the offense for
the benefit of a gang and a principal in the crime discharged a
firearm causing great bodily injury and death. (§§ 187, subd. (a);
186.22, subd. (b)(1)(C); 12022.53, subd. (d). The trial court
sentenced Frias to 50 years to life in prison for the murder and
enhancements.
On May 27, 2022, Frias filed a petition for resentencing
pursuant to section 11790.95 (now renumbered 1172.6). Frias
was represented by counsel. The People filed a response, arguing
Frias was ineligible for relief because the jury was not instructed
on a theory of liability now invalid under Senate Bill No. 1437
and because he was prosecuted as the actual killer. The jury
instructions were attached as Exhibit 4 to the People’s response.
Frias filed a reply, conceding that the jury instructions did not
assert a now invalid theory of liability, but arguing nonetheless
that the record of conviction did not show ineligibility for relief as
a matter of law.
On October 19, 2023, the trial court denied the petition,
finding that the jury instructions and verdicts showed Frias had
not been prosecuted on a now invalid theory of liability and the
jury found he was the actual shooter when it found true that he
1 Undesignated Statutory references are to the Penal Code.
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had personally discharged a firearm causing death. Frias filed a
timely notice of appeal.
To provide context only, we recite the facts of the events
underlying the murder conviction. On April 14, 2008, a male
rode a bicycle up to victim Brian Maciel as he waited at a bus
stop with his girlfriend. The bicyclist asked the victim about his
gang affiliation. When the victim stated the name of his gang,
the bicyclist shot Maciel in the chest, rode to a nearby truck, put
the bicycle in the back of the truck, entered the passenger side of
the truck, flashed a gang sign at a witness to the shooting, and
left the scene. (People v. Frias (Jan. 8, 2013, B233209) [nonpub.
opn.],)
On June 7, 2024, we appointed counsel to represent Frias
on appeal. On August 7, 2024, counsel filed a no-issue brief
pursuant to People v. Delgadillo. Counsel advised us they had
told appellant he may file his own supplemental brief within
30 days. Counsel sent Frias transcripts of the record on appeal
as well as a copy of the brief.
On August 7, 2024, this court sent Frias notice that a brief
raising no issues had been filed on his behalf. We advised him he
had 30 days within which to submit a supplemental brief or letter
stating any issues he believes we should consider. We also
advised him that if he did not file a supplemental brief, the
appeal may be dismissed as abandoned.
On September 11, 2024, Frias filed a supplemental brief, in
which he asks us to conduct an independent review of the record.
He also argues 1) false evidence was used at his trial; 2) the truck
that appears to be passing by the crime scene in a video shown to
the jury was not his truck; 3) his counsel ignored his protests that
the truck in the video was not his; 4) at the preliminary hearing
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the victim’s girlfriend never identified him as the shooter; 5) the
recordings of his admissions in jail were just “locker talk”; 6) the
eyewitnesses were not reliable; 7) his gang enhancement should
be stricken under Assembly Bill No. 333; and 8) he is entitled to
be resentenced under Assembly Bill No. 124 as a youthful
offender who experienced childhood trauma.
DISCUSSION
Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the
natural and probable consequences doctrine as a basis of liability
for murder. It also limited the scope of the felony murder rule.
(People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) The intent
of Senate Bill No. 1437 is “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); Lewis, at p. 967.)
Petitions for resentencing under section 1172.6 address
convictions where a defendant was not the shooter but was held
vicariously liable on one of several theories of liability identified
in the statute.
Lewis also held that “petitioners who file a complying
petition are to receive counsel upon the filing of a compliant
petition.” (Lewis, supra, 11 Cal.5th at p. 963.) If the record
establishes ineligibility for resentencing as a matter of law, the
trial court may deny the petition. (Id. at pp. 970–972.) However,
the petition and record must establish “conclusively that the
defendant is ineligible for relief.” (People v. Lopez (2022)
78 Cal.App.5th 1, 14 [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
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credibility determinations, that . . . the petitioner was the actual
killer.”].) (Ibid.) Where, as here, a trial court denies a section
1172.6 petition based on the failure to make a prima facie case
for relief, our review is de novo. (Ibid.)
After appointment of counsel, the trial court assesses when
a prima facie case for relief has been made. However, the prima
facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In
assessing whether a defendant has made a prima facie case for
relief pursuant to section 1172.6, the trial court is entitled to
review the record of conviction, which includes the jury
summations, jury instructions, verdict forms, and prior appellate
opinions. (Lewis, at pp. 971–972.) However, Lewis cautioned
that although appellate opinions are generally considered to be
part of the record of conviction, the prima facie bar was
intentionally set very low, the probative value of an appellate
opinion is case-specific, and a trial court should not engage in
“ ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at p. 972.)
Here, the trial court appointed counsel and found Frias had
not made a prima facie case for relief. Frias’s contentions on
appeal challenge misconduct or error which allegedly occurred at
his trial. Frias also asserts his conviction is based on insufficient
or unreliable evidence. An appeal from a post-judgment petition
for resentencing under section 1172.6 is not a vehicle to raise
unrelated claims of error allegedly committed by the trial court; it
is not another opportunity to challenge the original judgment on
other grounds. (People v. Farfan (2021) 71 Cal.App.5th 942, 947
[the mere filing of a section 1172.6 petition does not afford the
petitioner a new opportunity to raise claims of trial error or
attack the sufficiency of the evidence supporting the jury’s
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findings]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a
petition for resentencing does not provide a do-over on factual
disputes that have already been resolved], disapproved on
another ground in People v. Strong (2022) 13 Cal.5th 698, 718,
fn. 3.) Frias’s contentions alleging trial court error are properly
rejected.
We decline to exercise our discretion to conduct an
independent review of the record. (Delgadillo, supra, 14 Cal.5th
at p. 232.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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