People v. Rangel CA2/4

Filed 5/25/21 P. v. Rangel CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302169
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070627)
v.
MYRA RANGEL
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hilleri G. Merritt, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
Appellant Myra Rangel was convicted of attempted murder
and conspiracy to commit murder in 2013. Effective January 1,
2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)
amended the felony murder rule; eliminated the natural and
probable consequences doctrine as it relates to murder; and
enacted Penal Code section 1170.95,1 under which a person
convicted of murder under the felony murder rule or natural and
probable consequences doctrine may petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
Appellant filed a petition for resentencing under section 1170.95
in March 2019. After appointing counsel for appellant, receiving
briefing, and hearing argument, the trial court denied the
petition on the ground that appellant’s convictions were outside
the scope of section 1170.95.
Appellant contends that her convictions are within the
scope of section 1170.95 because SB 1437 abrogated the natural
and probable consequences doctrine as it applies to attempted
murder and conspiracy to commit murder, and her convictions
may have been based on that now-invalid doctrine. We disagree
and affirm.
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
BACKGROUND
I. Underlying Convictions2
Appellant and three codefendants, Horacio Gonzalez,
Cristian A. Adame, and Samantha Rodriguez, were charged in a
17-count information with conspiracy to commit murder (§§ 182,
subd. (a)(1) & 187, subd. (a)), two counts of attempted
premeditated murder (§§ 187, subd. (a) & 664), and shooting at
an occupied vehicle (§ 246). (People v. Gonzalez, supra, 2015 Cal.
App. Unpub. LEXIS at p. *3.) The information alleged that these
offenses, all of which occurred on or between March 15 and 16,
2010, were committed for the benefit of or in association with a
criminal street gang (§ 186, subds. (b)(1)(C) & (b)(4)), and that a
principal personally and intentionally discharged a firearm and
caused great bodily injury during their commission (§ 12022.53,
subds. (d) & (e)(1)).3 (Ibid.)
All four codefendants were tried jointly by a single jury.
(People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at p.
2We granted appellant’s request to take judicial notice of
the case file in her direct appeal, People v. Gonzalez, No.
B249598, which includes our prior opinion, People v. Gonzalez
(Oct. 26, 2015, B249598) 2015 Cal. App. Unpub. LEXIS 7643[nonpub. opn.]. The facts and procedural background, which are
not disputed, are largely drawn from the prior opinion.
3The remaining 13 counts of the information charged
Gonzalez and Adame with murder (§ 187, subd. (a)), attempted
premeditated murder (§§ 187, subd. (a) & 664), assault with a
semiautomatic firearm (§ 245, subd. (b)), and street terrorism
(§ 186.22, subd. (a)), along with similar gang and firearm
enhancements. (§§ 186.22, subds. (b)(1)(C) & (b)(4), 12022.5,
12022.53, subd. (d), 12022.7, subd. (a)). (Id. at p. *4.) The two
incidents giving rise to these charges occurred on or about March
23 and 24, 2010. (Ibid.)
3
*4.) As relevant here, the jury heard evidence that Gonzalez and
Adame belonged to and appellant and Rodriguez associated with
street gangs in Pacoima. On the night of March 15, 2010, victim
Sergio Abrego, who belonged to a rival gang and had insulted
appellant in the past, called appellant’s roommate’s cellphone.
Another female gang associate, Alexis Garcia, answered the
phone and arranged to meet Abrego at a nearby intersection.
Appellant, codefendants, and Garcia then drove to the
intersection in two separate vehicles; Gonzalez and Adame were
in one car, and appellant and the others were in the second.
During the drive, Garcia heard appellant using a cellphone and
asking questions such as, “Are you coming?” Appellant also
directed Rodriguez to make calls on the cellphone; Rodriguez, too,
made statements like, “they were on their way.” (See id. at pp. 6-
9.)
When the group was near the appointed intersection,
appellant directed Rodriguez and Garcia to get out of the car.
Rodriguez still had the cell phone, and Garcia heard her asking,
“Are you here yet?” A van with two people inside drove by, and
Garcia heard Rodriguez say, “That’s them.” Garcia and victim
Abrego, who was the passenger in the van, testified that they saw
codefendant Adame’s car drive by and fire numerous shots at the
van. Abrego was shot in both legs but survived the attack; the
driver of the van was not hit. After the shooting, the second car
returned to the area and picked up Garcia and Rodriguez.
Appellant laughed and asked Rodriguez “if they got him.” (See
People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at pp.
*9-*11.)
The jury found appellant and codefendants guilty of the
charged crimes and found the gang and firearm enhancements
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true. (People v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS
at p. *5.) The court sentenced appellant to 25 years to life on the
conspiracy to commit murder count, plus a consecutive term of 25
years to life for the firearm enhancement; and a consecutive life
term on one of the attempted murder counts, plus a consecutive
term of 25 years to life for the firearm enhancement. (Id. at pp.
*169-*170.) The court imposed and stayed sentences on the other
counts pursuant to section 654. (Ibid.)
On direct appeal, appellant argued that her convictions
should be reversed because her counsel rendered ineffective
assistance by failing to seek severance of her case and because
the trial court failed to instruct on the defense of duress. (People
v. Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS at pp. *150-
*157 [duress instruction], *158-*169 [ineffective assistance].) She
also contended that her overall sentence constituted cruel and
unusual punishment, and that the firearm enhancements in
particular violated her equal protection and due process rights.
(Id. at pp. *169-*175 [cruel and unusual punishment], *176-*179
[enhancements].) We rejected her arguments and affirmed her
convictions and sentence. (Id. at p. *2.)
Appellant filed a petition for review in the California
Supreme Court. The Court denied the petition on February 17,
2016.
II. Section 1170.95 Petition
Appellant filed a petition for resentencing pursuant to
section 1170.95 on March 12, 2019. She asserted that she had
been convicted of first or second degree murder pursuant to the
felony murder rule or natural and probable consequences
doctrine, and that she could not now be convicted of first or
second degree murder because of the changes SB 1437 made to
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sections 188 and 189 of the Penal Code. Appellant requested the
appointment of counsel.
Appellant attached to her petition a declaration from the
attorney who represented her on direct appeal, who is also her
counsel in the instant appeal. Counsel asserted that appellant
was eligible for relief because the prosecution relied on the
natural and probable consequences doctrine to convict appellant
of attempted murder and conspiracy to commit murder.
The court appointed a different attorney to represent
appellant in the section 1170.95 proceedings. The prosecution
subsequently filed a written opposition to appellant’s petition.
The prosecution argued that appellant was ineligible for relief
under section 1170.95 because she was not convicted of murder.
It further argued that her convictions required the jury to find
that she acted with the specific intent to kill and were not based
on either the felony murder theory or natural and probable
consequences doctrine.4 Appellant did not file a reply in support
of her petition.
The court called the matter for hearing on September 20,
2019. Both sides submitted on the written record. The court
denied the petition, finding that appellant “does not fall within
the parameters of 1437.”
Appellant timely appealed.
DISCUSSION
Appellant contends that SB 1437 eliminated the natural
and probable consequences doctrine for murder, and therefore
“logically” did so for attempted murder as well. She further
4The prosecution also argued that SB 1437 and section
1170.95 were unconstitutional. The Attorney General now
concedes that SB 1437 and section 1170.95 are constitutional.
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contends that SB 1437 requires vacation of her conviction for
conspiracy to commit murder, because the jury could have
applied the natural and probable consequences doctrine and was
not required to find she acted with the intent to kill. We review
de novo the trial court’s interpretation and application of the
statutes enacted pursuant to SB 1437. (People v. Duchine (2021)
60 Cal.App.5th 798, 811.)
The Legislature enacted SB 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.” (Stats. 2018, ch. 1015, § 1, subd. (f), emphasis added.) SB
1437 amended section 188 to require a principal in a crime to act
with malice aforethought to be convicted of murder, and to
prohibit the imputation of malice to a person based solely on his
or her participation in a crime. (§ 188, subd. (a)(3), emphasis
added.) It similarly amended section 189 to provide that a
participant “in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable
for murder only if” he or she “was the actual killer”; “with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in murder of the
first degree”: or “was a major participant in the underlying felony
and acted with reckless indifference to human life.” (§ 189, subd.
(e), emphasis added.) All of these statutory changes refer
explicitly and exclusively to murder.
SB 1437 also added section 1170.95, which allows persons
“convicted of felony murder or murder under a natural and
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probable consequences theory” to petition the sentencing court to
vacate their “murder conviction” under certain conditions. (Id.,
subd. (a).) It likewise provides that, if certain criteria are met,
“the court shall hold a hearing to determine whether to vacate
the murder conviction,” and that the parties may waive such a
hearing by stipulating that the petitioner “is eligible to have his
or her murder conviction vacated and for resentencing.” (Id.,
subds. (d)(1), (d)(2).) By its plain language, our starting point for
statutory interpretation, section 1170.95 applies only to murder
convictions and provides no relief from convictions for other
offenses. (See People v. Gonzales (2018) 6 Cal.5th 44, 50.)
As appellant recognizes, many courts have come to this
conclusion with respect to attempted murder. (See, e.g., People v.
Lopez (2019) 38 Cal.App.5th 1087, 1103-1110, review granted
Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th
738, 753-760, review granted Nov. 26, 2019, S258234; People v.
Love (2020) 55 Cal.App.5th 273, 279, review granted Dec. 16,
2020, S265445.) We agree with the analyses of these well-
reasoned cases.
Appellant urges us to follow three cases holding that SB
1437’s amendments to section 188 necessarily abrogated the
natural and probable consequences doctrine as it applies to
attempted murder, People v. Larios (2019) 42 Cal.App.5th 956,
review granted Feb. 26, 2020, S259983 (Larios), People v.
Medrano (2019) 42 Cal.App.5th 1001, review granted Mar. 11,
2020, S259948 (Medrano), and People v. Sanchez (2020) 46
Cal.App.5th 637, review granted June 10, 2020, S261768
(Sanchez). Yet even these cases are of no aid to appellant.
Larios, supra, 42 Cal.App.4th at pp. 969-970 holds that although
SB 1437 bars the use of the natural and probable consequences
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doctrine to obtain an attempted murder conviction going forward,
“the relief provided in section 1170.95 is limited to certain
murder convictions and excludes all other convictions, including a
conviction for attempted murder.” Medrano, supra, 42
Cal.App.5th at pp. 1017-1018, reaches the identical conclusion. It
further holds that defendants whose convictions “were not yet
final when these amendatory statutes lessening punishment took
effect” may obtain relief on direct appeal. (Id. at p. 1019.)
Sanchez, supra, 46 Cal.App.5th at pp. 642-644 similarly holds
that “SB 1437 abrogates the natural and probable consequences
doctrine in attempted murder prosecutions. This conclusion
applies retroactively on direct appeal.” Appellant’s direct appeal
concluded years ago; despite her assertion to the contrary, her
convictions have long been final. (See People v. Vieira (2005) 35
Cal.4th 264, 306 [judgment is final when the time for petitioning
for a writ of certiorari in the United States Supreme Court has
passed]; Rules of the United States Supreme Court, Rule 13(1)
[“A petition for a writ of certiorari seeking review of a judgment
of a lower state court of last resort is timely when it is filed with
the Clerk within 90 days after entry of the order denying
discretionary review.”].) Her attempted murder conviction
cannot be vacated under section 1170.95.
Nor can her conviction for conspiracy to commit murder.
The parties agree that a conviction for conspiracy to commit
murder requires proof that the defendant had the intent to kill
and cannot be based on a theory of implied malice. (People v.
Swain (1996) 12 Cal.4th 593, 607.) Indeed, we held in appellant’s
direct appeal—in response to an argument made by codefendant
Rodriguez, not appellant—that the trial court had erred by
including “conspiracy to commit murder within the ambit of the
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natural and probable consequences doctrine.” (People v.
Gonzalez, supra, 2015 Cal. App. Unpub. LEXIS 7643, at p. *149.)
We also held, however, that the error “was cured by court’s
proper instruction that the conspiracy count required the People
to prove defendants agreed and intended to ‘intentionally and
unlawfully kill’ and ‘had an agreement and intent to commit
murder.’ Additionally, the People repeatedly invited the jury to
acquit Rodriguez and Rangel on the conspiracy count if it applied
the natural and probable consequences doctrine. The jury’s
guilty verdict on the conspiracy count—and its findings that the
attempted murders were willful and premeditated and not simply
an escalated consequence of a target offense—indicates that it
rejected the natural and probable consequences theory in favor of
the People’s lead theory of aiding and abetting.” (Ibid., emphasis
added.) We thus expressly held that appellant’s conviction for
conspiracy to commit murder rested upon an aiding and abetting
theory, not the impermissible natural and probable consequences
theory.
Even if the statutory changes effected by SB 1437 applied
to offenses other than murder, our prior holding that appellant
was convicted as a direct aider and abettor forecloses relief under
section 1170.95. (See People v. Lewis (2020) 43 Cal.App.5th 1128,
1138-1139, review granted Mar. 18, 2020, S260598.) Our
determination that appellant was convicted under an aiding and
abetting theory refutes her conclusory assertions that the
prosecutor argued, and the jury may have relied upon, the
natural and probable consequences doctrine to convict her of
conspiracy to commit murder. While the trial court must assume
all facts in a section 1170.95 petition are true and should not
evaluate their credibility, “it need not credit factual assertions
10
that are untrue as a matter of law.” (People v. Drayton (2020), 47
Cal.App.5th 965, 980.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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