People v. Soto CA1/1 ( 2024 )

Filed 10/31/24 P. v. Soto CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A170630
v.
ISIDRO PENA SOTO, (Solano County
Super. Ct. No. FCR241319)
Defendant and Appellant.
In 2007, a jury convicted defendant Isidro Pena Soto of several crimes,
including second degree murder, after he drove while under the influence of
alcohol and caused a fatal crash. He was sentenced to 19 years to life in
prison, and this division affirmed the judgment after modifying it to strike
certain lesser included offenses. (People v. Soto (Sept. 29, 2009, A123133)
[nonpub. opn.] (Soto I).)
Several years later, Soto filed a petition for resentencing under Penal
Code1 former section 1170.95, now section 1172.6, based on changes to the law
of murder made by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437). This legislation amended sections 188 and 189 to limit vicarious
liability for murder and created a procedure for those convicted under the
1 All further statutory references are to the Penal Code.
previous law to seek resentencing. (People v. Strong (2022) 13 Cal.5th 698,
707–708.)
In 2022, we affirmed the trial court’s denial of Soto’s resentencing
petition on the basis that he was ineligible for relief because he was convicted
of second degree murder based on People v. Watson (1981) 30 Cal.3d 290(Watson). (People v. Soto (Jun. 16, 2022, A163944) [nonpub. opn.] (Soto II).)
Under Watson, a defendant who drives while intoxicated and kills someone
may be convicted of second degree implied malice murder. (Watson, at
pp. 300–301.) We held that Soto was ineligible for resentencing under former
section 1170.95 as a matter of law because Senate Bill No. 1437 did not affect
the concept of implied malice.
Soto now appeals from a trial court order denying his subsequent
petition for resentencing under section 1172.6. His appointed appellate
counsel filed a no-issues brief under People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), and we gave Soto notice that he had a right to file a
supplemental brief or his appeal could be dismissed. (See id. at pp. 231–232.)
Soto filed a supplemental brief in which he makes several claims of trial
error. He also claims the trial court abused its discretion by denying his
resentencing petition and his appellate counsel rendered ineffective assistance
by filing a Delgadillo brief. We are unable to consider his claims of trial error
in this proceeding. And as we already held in Soto II, he is categorically
ineligible for relief under section 1172.6, defeating his remaining claims.
Therefore, we affirm.
2
I.
FACTUAL AND PROCEDURAL
BACKGROUND2
“ ‘Kent Boone drove over the crest of an incline on
Highway 12 in Solano County around 6:15 a.m. on March 31,
2007, and was met head on by a Ford Expedition driven by [Soto].
Boone died at the scene from blunt force injuries suffered in the
collision.
“ ‘The accident was witnessed by [A.B.], who testified that
he was driving east on Highway 12, a two-lane road with solid
double lines in the middle, when he noticed [Soto’s] vehicle in his
rear view mirror approaching rapidly and swerving back and forth
between the lanes. [A.B.] slowed and moved to the shoulder of the
road to avoid [Soto], who passed by at a speed [A.B.] estimated to
be 85 to 90 miles per hour. As [Soto] went up an incline, he
drifted over into the westbound lane and collided with Boone’s
vehicle, which emerged going in the other direction.
“ ‘[Soto] exhibited signs of being under the influence of
alcohol, but field sobriety tests could not be administered because
his leg was trapped under the dashboard of the Expedition. [Soto]
was extricated from the vehicle and flown to a hospital, where a
sample of his blood was drawn sometime between 9:27 and
9:55 a.m. that morning. Prosecution analysis of the blood sample
found an alcohol content of .10 percent; defense analysis found
.09 percent. The prosecution’s expert estimated that [Soto] had a
blood-alcohol content of .154 at the time of the accident; [Soto’s]
expert estimated .16.
“ ‘[Soto] had completed an 18-month alcohol abuse
treatment program three months before the accident. Records
showed that he never missed a class in the program. The program
counselor . . . testified that the main point of the treatment was to
underscore the risks of driving under the influence. [The
counselor] said that he told [Soto] 26 times face-to-face and
12 times in classes about the risk to life created by drunk driving,
2 We quote the facts and procedural history involving Soto’s conviction
and direct appeal from Soto II, which drew them from Soto I.
3
and warned him that killing someone while driving under the
influence could constitute murder. [Soto] signed a plea form in
one of his prior drunk driving cases in which he acknowledged
that “it is extremely dangerous to human life to drive while under
the influence of alcohol or drugs, or both. If I continue to drive
while under the influence of alcohol or drugs, or both, and as a
result of that driving, someone is killed, I can be charged with
murder.” ’ ”
“Soto was tried in 2008. . . . The jury found him guilty of second degree
murder, gross vehicular manslaughter while intoxicated, two lesser included
offenses of gross vehicular manslaughter while intoxicated, and two drug-
related offenses. [Fn. omitted.] It also found true that Soto had three prior
convictions for driving with a blood-alcohol content of .08 percent or more.
[Fn. omitted. ¶] The trial court sentenced [him] to 19 years to life in prison,
composed of a term of 15 years to life for murder and four years for
transportation of methamphetamine. Terms on the remaining counts were
imposed and stayed. On appeal, this division struck the lesser included
offenses of gross vehicular manslaughter while intoxicated and their
accompanying enhancements and affirmed the judgment as modified.”
In October 2021, Soto filed a petition for relief under former
section 1170.95, averring that he was convicted of second degree murder
under the natural and probable consequences doctrine and could no longer be
convicted of that crime based on changes to the law made by Senate Bill
No. 1437. The same day, the trial court summarily denied the petition
without appointing counsel, explaining, “ ‘The Defendant was convicted of 2nd
degree Murder based on Watson prior driving under the influence, under
implied malice.’ ”
Soto appealed, initiating Soto II. He argued that (1) a defendant
convicted of Watson murder is eligible for resentencing under Senate Bill
No. 1437 and (2) the trial court erred by failing to appoint counsel for him
4
before denying his resentencing petition. In our opinion, we rejected his first
claim and held that he was ineligible for resentencing as a matter of law. We
also rejected his second claim, holding that although the court should have
appointed counsel for him, the error was harmless because of his ineligibility
for relief.
In January 2024, Soto submitted the resentencing petition at issue. He
averred that the charging document “allowed the prosecution to proceed under
a theory of felony murder, murder under the natural and probable
consequences doctrine[,] or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime,” and that he
“could not presently be convicted of murder . . . because of changes made [by
Senate Bill No. 1437].”
The trial court appointed a public defender to represent Soto. The
prosecution submitted a response to the resentencing petition in which it
argued that the petition should be denied because Soto “was the actual killer
in an implied malice [Watson] murder.” Soto did not file a reply to the
prosecution’s response.
In April 2024, the trial court held a hearing on the resentencing
petition. Soto’s public defender submitted on the petition without argument,
and the court denied the petition. The court did so on the same basis as it had
before, that Soto was convicted on a still-valid theory of murder, implied
malice under Watson. This appeal followed.
II.
DISCUSSION
Most of the claims Soto raises in his supplemental brief involve alleged
errors at his trial. These include claims of evidentiary error, prosecutorial
misconduct, and ineffective assistance of trial counsel. We cannot address
such issues in this proceeding. “The mere filing of a [former] section 1170.95
5
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
findings. . . . ‘The purpose of [the statute] is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that have already
been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) None of
these claims are relevant to whether the trial court erred by denying Soto’s
resentencing petition.
Soto also raises two claims that do relate to the ruling at issue. He
argues that the trial court abused its discretion by denying the resentencing
petition, but he does not clearly explain why. To the extent that he identifies
particular legal errors, they relate to other statutes under which he did not
seek relief. He also argues that his appellate counsel rendered ineffective
assistance by filing a Delgadillo brief, but he again does not explain the basis
for this claim. Thus, Soto fails to demonstrate any error in the denial of his
petition under section 1172.6.
In any event, Soto is barred from raising these two claims based on the
law of the case doctrine. We held in Soto II that he is categorically ineligible
for relief under section 1172.6, which precludes him from now arguing that
the trial court should have granted resentencing under that statute. (See
People v. Jurado (2006) 38 Cal.4th 72, 94.) Even if he could raise these
claims, we would again hold that the purported errors are necessarily
harmless due to his ineligibility for relief. For the same reason, having
exercised our discretion to review the record independently, we do not
perceive any arguable issues. (See Delgadillo, supra, 14 Cal.5th at p. 232.)
6
III.
DISPOSITION
The April 30, 2024 order denying Soto’s petition for resentencing under
section 1172.6. is affirmed.
7
_________________________
Humes, P. J.
WE CONCUR:
_________________________
Langhorne Wilson, J.
_________________________
Hill, J.*
*Judge of the Superior Court of the County of San Mateo, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Soto A170630
8