People v. Patino CA4/3 ( 2024 )

Filed 10/2/24 P. v. Patino 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G063104
v. (Super. Ct. No. 06CF2498)
BENITO PATINO, JR., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
Rex Adam Williams, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
A jury convicted defendant Benito Patino, Jr., of murder. He filed
a resentencing petition under Penal Code section 1172.6, which the trial
court denied on its face.1 On appeal, his appointed counsel filed a no-issue
brief, requesting we exercise our discretion to independently review the
record for error under People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo). We have found no arguable issues after reviewing the
record. Thus, we affirm the court’s order.
FACTS AND PROCEDURAL HISTORY
In April 2009, a jury found Patino guilty of first degree murder
and participation in a criminal street gang. It also found he had committed
the murder for the benefit of a criminal street gang and had intentionally
discharged a firearm in the commission of the offense. Patino was sentenced
to 50 years to life in prison. This division affirmed his conviction in People v.
Patino (Nov. 24, 2010, G042255) [nonpub. opn.].
In July 2023, Patino filed a resentencing petition under section
1172.6. A public defender was appointed to represent him, and a prima facie
hearing was held in September 2023. After the hearing, the court concluded
Patino was ineligible for relief because the jury was not instructed on the
felony-murder doctrine or the natural and probable consequences theory of
murder.
Patino filed a notice of appeal following the denial of his section
1172.6 petition. His appointed counsel filed an opening brief that raised no
arguable issues and asked this court to independently review the record
under Delgadillo.
1 All further undesignated statutory references are to the Penal
Code.
2
On January 24, 2024, this Court issued an order granting Patino
30 days to file a supplemental brief. We also stated his appeal could be
dismissed if he failed to file such a brief. Patino filed a brief on February 26,
2024. He argued, “on my felony complaint [it] says . . . I was convi[c]ted under
the aforethought that I did unlawfully and with malice aforethought kill [the
victim] a human being so for that I believe that I should get relief [under
section 1172.6] . . . .” (Capitalization omitted.)
DISCUSSION
“Effective January 1, 2019, the Legislature passed Senate Bill
[No.] 1437 ‘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.’ [Citation.] In addition to
substantively amending sections 188 and 189 of the Penal Code, Senate Bill
[No.] 1437 added section 1170.95 [(now § 1172.6)], which provides a procedure
for convicted murderers who could not be convicted under the law as
amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952,
959.)
The trial court reviews a section 1172.6 petition to determine
whether the petitioner has made a prima facie case. “If the petition and
record in the case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition.” (People v. Strong (2022) 13
Cal.5th 698, 708.)
“On an appeal from the denial of a section 1172.6 petition, [if] . . .
appointed counsel finds no arguable issues to be pursued on appeal:
(1) counsel should file a brief informing the court of that determination,
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including a concise recitation of the facts bearing on the denial of the petition;
and (2) the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) “If the
defendant subsequently files a supplemental brief or letter, the Court of
Appeal is required to evaluate the specific arguments presented in that brief
and to issue a written opinion.” (Id. at p. 232.) If no supplemental brief is
filed, the appellate court has discretion to dismiss the appeal or conduct an
independent review of the record. (Ibid.)
Based on our review of Patino’s brief and our own independent
review of the record, we agree with his counsel that there are no arguable
issues. Patino could not have been convicted of murder under a felony murder
or a natural and probable consequences theory. Thus, as explained below, his
murder conviction is still valid under current law.
The jury was instructed on two different theories of murder:
(1) Patino was the actual killer, or (2) he aided and abetted in the killing. No
felony-murder instruction was given. As to the first theory, Patino is not
entitled to relief under section 1172.6 if he was convicted as the actual killer.
(People v. Bodely (2023) 95 Cal.App.5th 1193, 1199.) As to the second theory,
Patino is not entitled to relief if he directly aided and abetted the murder
“‘because a direct aider and abettor to murder must possess malice
forethought.’” (People v. Williams (2022) 86 Cal.App.5th 1244, 1252.) “An
accomplice who directly aids and abets the perpetrator in committing murder
is liable for murder [following Senate Bill No. 1437] just as he or she was
liable” prior to its enactment. (People v. Lopez (2024) 99 Cal.App.5th 1242,
1248.)
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In contrast to direct aider and abettor liability, Patino could
potentially be eligible for relief under section 1172.6 if he was convicted of
murder as an aider and abettor under the natural and probable consequences
doctrine. (People v. Curiel (2023) 15 Cal.5th 433, 449–450.) “‘[U]nder the
natural and probable consequences doctrine, an accomplice is guilty not only
of the offense he or she directly aided or abetted (i.e., the target offense), but
also of any other offense committed by the direct perpetrator that was the
“natural and probable consequence” of the crime the accomplice aided and
abetted (i.e., the nontarget offense) . . . .’ Thus, under prior law, a defendant
who aided and abetted an intended assault could be liable for murder, if the
murder was the natural and probable consequence of the intended assault.”
(Id. at p. 449.)
Here, to the extent any jury members found Patino guilty of
murder under an aiding and abetting theory, it is clear they convicted him as
a direct aider and abettor and not under a natural and probable consequences
theory. Among other things, the prosecution’s theory during trial was that
Patino was either the actual killer or was a direct aider and abettor of the
murder. Likewise, the jury was not instructed on a natural and probable
consequences theory of murder. Nor was the jury instructed on any other
theory that would have allowed it to impute an intent to kill on Patino based
on his participation in another offense. “[I]f the record shows that the jury
was not instructed on either the natural and probable consequences or felony-
murder doctrines, then the petitioner is ineligible for relief [under section
1172.6] as a matter of law.” (People v. Harden (2022) 81 Cal.App.5th 45, 52;
People v. Cortes (2022) 75 Cal.App.5th 198, 205 [defendant ineligible for
1172.6 resentencing where “the jury was not instructed on any theory of
liability for murder . . . that required that malice be imputed to him”].)
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Since Patino could only be convicted of murder as the actual
killer or as a direct aider and abettor, he is ineligible for relief under section
1172.6 as a matter of law.
DISPOSITION
The trial court’s order is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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