People v. Vallejo CA4/2 ( 2024 )

Filed 10/17/24 P. v. Vallejo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E083186
v. (Super.Ct.No. RIF103887)
SALOMON FRANK VALLEJO, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios Hernandez, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Salomon Frank Vallejo, Jr., in pro. per.; and Robert L. Hernandez, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Salomon Frank Vallejo, Jr., appeals from an order of the
Riverside County Superior Court denying his Penal Code section 1172.6 petition for
resentencing.1
BACKGROUND2
In September 2023, after joint trial, a jury convicted defendant and his two
codefendants, Mario Israel Sanchez and Francisco Javier Vallejo (defendant’s brother) of
two counts of attempted murder (§§ 187, 664, counts 1 & 2) and discharging a firearm
from a motor vehicle (former § 12034, subd. (c), count 3).
The jury also found true several other allegations, including (i) that, in connection
with the two counts of attempted murder, a principal personally and intentionally
discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); (ii) that the defendants acted
willfully, deliberately, and with premeditation (§ 664, subd. (a)); and (iii) that the
defendants acted in concert because of the victims’ actual or perceived race (a “hate
crime”). (§ 422.75, subd. (c).)
As to count one, the trial court sentenced defendant to life with the possibility of
parole, plus a consecutive term of 25 years to life for the enhancement of causing great
1 Defendant’s petition was made pursuant to section 1170.95 petition. That section
was later renumbered as section 1172.6 with no change in text (Stats. 2022, ch. 58, § 10)
and we refer to the provision using the new number. All further statutory references are
to the Penal Code.
2 We have taken judicial notice on our own motion of the record in defendant’s
appeal from the judgment (P. v. Vallejo et al. (June 13, E034555) [nonpub. opn.]
(Vallejo I)) and of our opinion in his appeal from the first denial of his 1172.6 petition
(P. v. Vallejo et al. (Mar. 4, 2022, E074099) [nonpub. opn.] (Vallejo II).)
2
bodily injury by personally discharging a gun, and a consecutive term of four years (the
upper term) for the hate crime. A 20-year term for discharge of a firearm by a principal
was stayed under section 654.
As to count 2, defendant received a consecutive life term, a consecutive 20-year
term for the principal’s discharge of a firearm, and a consecutive one-year term for the
hate crime enhancement. The court imposed but stayed unspecified terms for count 3 and
all the gang enhancements.
Defendant appealed. (Vallejo I, supra, E034555.) We ordered correction of his
abstract the judgment and otherwise affirmed the judgment against him. (Ibid.)
In 2019, following the enactment of section 1172.6, defendant filed a petition for
resentencing. The trial court dismissed the petition, and we affirmed, because the statute
did not at the time apply to convictions for attempted murder. Defendant’s petition for
review was granted and held by the California Supreme Court. While review was
pending, the Legislature passed Senate Bill No. 775, amending section 1172.6 to make it
applicable to persons convicted of attempted murder and manslaughter. The Supreme
Court transferred defendant’s case back to this court, we vacated our opinion and
reversed the trial court’s order, and remanded with instructions to conduct a new hearing
on defendant’s petition. (Vallejo II, supra, E074099.)
In January 2024, the trial court held a prima facie hearing on defendant’s 1172.6
petition. Counsel for the People represented that the instructions given to the jury related
only to a theory of aiding and abetting, and did not include instructions on felony murder,
natural and probable consequences, or any other theory by which malice could be
3
imputed to the defendant on account of another’s actions. Defendant’s counsel submitted
the matter, commenting only that he had reviewed all of the jury instructions, and that the
People’s representation was accurate. The trial court indicated it had taken a “quickie
look” at the instructions, that it agreed with the People, and denied defendant’s petition.
Defendant timely noticed this appeal and we appointed appellate counsel to
represent him.
DISCUSSION
On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth statements of the case and facts, but does not present any issues for adjudication.
Counsel requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th
216, 232 to conduct an independent review of the record. He notes he considered the
issue whether the trial court erred when it denied defendant’s petition at the prima facie
stage.
Upon receipt of the opening brief, we notified defendant that (i) his counsel had
filed a brief stating no arguable issues could be found, and (ii) this court is not required to
conduct an independent review of the record but may do so in its discretion. We also
invited defendant to file any supplemental brief deemed necessary.
In response to our invitation, defendant submitted a handwritten supplemental
brief, which he subsequently amended. In his amended brief, he argues he did not have
the requisite mens rea to be convicted on a theory of aiding and abetting. Along the way,
he claims that the jury instruction set forth in CALJIC No. 3.01 does not accurately set
forth the law of aiding and abetting, that he was not at the scene, and a jury would not
4
hold him liable now as evidenced by the jurors at his trial not being in agreement until the
judge advised them.
Those issues were addressed in our opinion in defendant’s appeal from the
judgment, which has long since become final.
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
5