People v. Delci CA2/8

Filed 3/6/23 P. v. Delci 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B315269
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA136663)
v.
ANTHONY MICHAEL DELCI,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Raul A. Sahagun, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorneys General, Susan Sullivan Pithey, Assistant
Attorney General, Davie E. Madeo, William H. Shin and
Christopher Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
Defendant and appellant Anthony Michael Delci appeals
from the denial of his petition for resentencing pursuant to Penal
Code section 1172.6 (former § 1170.95). Defendant challenges the
court’s finding there was substantial, credible evidence
supporting his guilt of second degree murder as a direct aider and
abettor. During the pendency of this appeal, former
section 1170.95 was renumbered and recodified as section 1172.6
with no change in the text. (Stats. 2022, ch. 58, § 10.) For
clarity, we refer to former section 1170.95 only by its new
designation (§ 1172.6).
Defendant also filed a petition for habeas corpus on the
ground his retained counsel provided ineffective assistance in
representing him at the evidentiary hearing.
We affirm the denial of defendant’s petition for
resentencing, deny defendant’s motion to consolidate and resolve
defendant’s habeas petition by separate order (No. B321013) filed
concurrently with this opinion.
PROCEDURAL BACKGROUND
Defendant and his accomplice, Victor Arzate, both members
of the Pico Nuevo gang, were charged with one count of murder
arising from the fatal shooting of Jonathan R. in 2014. (Pen.
Code, § 187, subd. (a); count 2.) Defendant was also charged with
one count of possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 1), as was Arzate (count 3). All the offenses
were alleged to be gang related within the meaning of
section 186.22. Just before the start of jury selection, defendant
pled guilty to the firearm possession charge and admitted the
gang allegation as to that count only. It was alleged that a
principal personally and intentionally used and discharged a
firearm in the commission of the murder within the meaning of
2
section 12022.53, subdivisions (b) through (e)(1). Personal
firearm use allegations were alleged as to Arzate. Defendant was
also alleged to have suffered a prior serious or violent felony
within the meaning of the “Three Strikes” law and section 667,
subdivision (a)(1).
In 2017, defendant and Arzate were tried jointly with
separate juries before Judge Raul A. Sahagun. The jury found
defendant guilty of second degree murder, acquitted him of first
degree murder and found not true all of the principal firearm use
allegations. Arzate’s jury convicted him of first degree murder
and found true the personal firearm use allegations.
Defendant requested a new trial on the grounds of new
evidence. Defense counsel attested he had been contacted after
trial by a Whittier Varrio Locos gang member who told him that
Arzate had been dating Yvette G., the sister of the murder victim,
but the relationship ended a few weeks before the shooting. No
declaration from the gang member was presented. The court
allowed Yvette to testify at the hearing on the motion. Yvette
confirmed she had gone out with Arzate a few times but broke it
off with him a couple of weeks before her brother was shot. She
did not say the relationship ended badly or in a manner that
would make Arzate come back to target her brother with
violence. Yvette denied being friends with defendant or knowing
G.E., a witness to the crimes. The court denied defendant’s
motion.
At the original sentencing hearing, the court granted
defendant’s motion to strike his strike prior. The court found the
prior conviction true for purposes of the five-year enhancement.
The court sentenced defendant to state prison for a term of
30 years to life (15 years to life on the murder, plus a consecutive
3
10-year term for the gang enhancement and a consecutive five-
year term for the prior felony enhancement; and a concurrent
term of seven years on the possession count).
In November 2019, we affirmed defendant’s conviction and
remanded for a new sentencing hearing in light of the passage of
Senate Bill 1393 while that appeal was pending. (People v. Delci
(Nov. 27, 2019, B292466) [nonpub. opn.].) We directed the court
on remand to strike the 10-year gang enhancement and to award
defendant two additional days of presentence custody credits. In
a separate opinion, we affirmed Arzate’s conviction. (People v.
Arzate (Feb. 27, 2019, B286532) [nonpub. opn.].) Arzate is not a
party to this appeal.
The Legislature also passed Senate Bill 1437 (2017–2018
Reg. Sess.) while defendant’s direct appeal was pending,
amending Penal Code sections 188 and 189 to narrow accomplice
liability for felony murder and eliminating the natural and
probable consequences doctrine as it relates to murder.
(Stats. 2018, ch. 1015, § 2, § 3.) Senate Bill 1437 also added
section 1172.6 which set forth a procedure for individuals
convicted of felony murder or murder under a natural and
probable consequences theory to petition for resentencing.
(Stats. 2018, ch. 1015, § 4.)
Defendant filed, in propria persona, a petition for
resentencing pursuant to section 1172.6. Judge Raul A.
Sahagun, the same judge that had presided over the trial, denied
the petition without prejudice, finding it premature in light of the
new sentencing hearing that had been scheduled following
remand from this court.
Defendant was resentenced on October 27, 2020. The court
imposed a sentence of 20 years to life (15 years to life on the
4
murder count, plus a consecutive five-year felony enhancement
and a concurrent seven-year term on the possession count).
Defendant then filed, in propria persona, a new form
petition for resentencing alleging he was convicted of second
degree murder under the natural and probable consequences
doctrine, and he could not be convicted of murder under current
law as amended by Senate Bill 1437. Defendant substituted
retained counsel who filed an amended petition on his behalf.
The amended petition included, among other things, a copy of the
verdict form for the murder charge and the natural and probable
consequence instruction given to the jury.
The People filed a response. Judge Sahagun found
defendant stated a prima facie case for relief and issued an order
to show cause.
The evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3) was held September 21, 2021. Defendant was
represented by counsel and appeared via Webex. Neither side
presented new evidence, relying instead on the evidence
presented at the 2017 trial. After entertaining argument, Judge
Sahagun denied defendant’s petition, finding sufficient evidence
to establish defendant’s guilt, beyond a reasonable doubt, of
second degree murder as a direct aider and abettor.
This appeal followed. We grant defendant’s request to take
judicial notice of the record in the direct appeal (No. B292466).
Defendant also filed a petition for habeas corpus alleging
ineffective assistance of counsel (No. B321013).
FACTUAL SUMMARY
We draw our facts from our opinion in Delci, supra
summarizing the trial testimony. For privacy reasons, we refer
to the witnesses and the victim by their first names only, and to
5
witness G.E. by his initials because he was a minor at the time of
the shooting and when he testified at trial.
On the afternoon of August 30, 2014, Joann R. was at her
home near La Cuarta Avenue and Washington Street in the city
of Whittier. Her adult son, Jonathan, one of her adult daughters,
Maria G., and several other family members were also there.
Maria, who had been on the front porch with Jonathan, came
inside and told her mother not to go outside because a white car
had driven by and someone in the car had been “throwing” gang
signs. (Delci, supra, B292466.)
A few minutes later, Joann and Jonathan went out into the
front yard to collect some things that had been left outside.
Joann saw a man (who she later identified as Arzate) standing in
the street in front of her house. Arzate yelled at Jonathan
“where you from?” Joann understood this to be gang talk.
Jonathan yelled back that he was “from nowhere,” to indicate he
had no gang affiliation. (Delci, supra, B292466.)
Looking through a window from inside the house, Maria
saw that the white car had returned and one of the passengers
was out in the street. She could hear her brother saying he was
“from nowhere.” (Delci, supra, B292466.)
Arzate kept yelling at Jonathan, so Joann said “he’s from
nowhere. What do you want?” By that point, Jonathan had
stepped out to the gate which was open to the sidewalk. Joann
noticed that Arzate was holding a “shiny” handgun. She yelled at
her son the man had a gun and Jonathan told her to run. Joann
turned and headed toward the backyard. From the window,
Maria saw her brother turn around as if to come back inside the
house. At that point, Arzate started shooting. (Delci, supra,
B292466.)
6
Joann heard a gunshot and Jonathan yelling. When she
turned back toward her son, she heard another shot and saw
Jonathan fall onto his knees, clutching at the gate. She heard a
total of four gunshots. Joann screamed for her daughter as she
tried to help her son. Maria and her boyfriend ran outside, and
someone called 911. (Delci, supra, B292466.)
Juan G. and his wife happened to be driving down La
Cuarta that afternoon and saw part of the incident. Juan saw
two men in the street who appeared to be in a “heated”
conversation. He could not hear what they were saying, but they
were about four feet apart from one another and he could see
they were yelling at each other. One of the men was wearing
black shorts, a black tank top and a baseball cap and was holding
a “shiny silver” revolver down at his side. Juan tried to drive
around them and make a left turn onto an alley, but a white
Honda CRV was blocking the way, so he made a right turn
instead. Almost immediately he heard four gunshots. When he
looked in his rearview mirror, he could see the Honda still in the
alley facing the street. The man in the black shorts ran to the
white Honda and jumped into the front passenger seat, and the
Honda sped off. (Delci, supra, B292466.)
Juan drove around the block and saw the Honda again,
stuck in traffic, which gave him time to write down the license
plate number. He waited for officers to arrive on the scene and
gave them the information. Juan did not get a good look at the
faces of the men involved in the argument, so he was unable to
identify anyone. (Delci, supra, B292466.)
Jonathan was transported to the hospital where he was
pronounced dead. His cause of death was multiple gunshot
wounds. (Delci, supra, B292466.)
7
Based on the license plate information provided by Juan,
the police were able to identify defendant as the owner of the car.
Around 10:00 that same night, defendant was located driving the
Honda, and police pulled him over. He made gestures with his
hands consistent with known gang signs before getting out of the
vehicle and being detained. A search of his car resulted in the
discovery of a stainless steel revolver with a “speed loader”
hidden inside a door panel. Subsequent ballistics testing
matched the revolver to the bullets recovered from Jonathan’s
body during the autopsy. (Delci, supra, B292466.)
Arzate was subsequently arrested on an unrelated robbery
charge. (Delci, supra, B292466.)
G.E., who was 14 years old, was identified as someone who
had been with defendant and Arzate during the shooting. G.E.
testified that on the night before the shooting, he had been
jumped into the Pico Nuevo gang by defendant, whose moniker
was Toker, and Arzate, whose moniker was Suspect. The next
day, August 30, 2014, G.E. was with defendant and Arzate
driving around in defendant’s white Honda CRV. Defendant was
driving, Arzate was in the front passenger seat, and G.E. was in
the back seat. Around noon, they arrived in Whittier. (Delci,
supra, B292466.)
When they pulled up to the intersection of La Cuarta
Avenue and Washington Street, G.E. saw some people standing
outside a house on the corner. G.E. thought they might be gang
members because they had a lot of tattoos. G.E. “threw a gang
sign” out the window—a “P” for Pico Nuevo. Defendant drove
around the block and then came back to that same intersection.
One of the men with tattoos was still standing outside the home
near some trash cans. Defendant stopped the Honda and backed
8
into an alley with the front of the car facing the street. Arzate
grabbed a silver handgun and got out of the car. Arzate had the
same gun with him the night before when he and defendant
jumped G.E. into the gang. After Arzate got out of the car, G.E.
asked defendant what was going on. Defendant said, “who
knows” and told G.E. to calm down and just be cool. Arzate
walked toward the other man who was now standing at the open
gate. (Delci, supra, B292466.)
G.E. saw Arzate holding the gun in his hand, with his arm
down at his side. Arzate and the other man started “banging on
each other,” meaning they were saying, “Ese, where you from?”
G.E. then heard at least three gunshots and saw the other man
fall to the ground near the gate. He noticed for the first time
there was an older woman in the yard, and she put her hands up
to her face. G.E. was shocked and “frozen” in the back seat.
Arzate ran back to the Honda, jumped into the front passenger
seat and exclaimed, “I got him.” Defendant asked Arzate “where
was he from?” Arzate said he was “VNE” (Varrio Nueva
Estrada). They then fled the scene. (Delci, supra, B292466.)
The audio recording of the pretrial interview of G.E. was
played for the jury. G.E. initially denied being with defendant
and Arzate on the day of the shooting, but eventually admitted
they had been driving around together. G.E. denied being the
shooter and said he was drunk. He said Arzate told him to throw
the gang sign at the men in the yard. G.E. also said defendant
told Arzate not to do anything, and that after Arzate jumped out
of the car, defendant told G.E. nothing was going to happen, that
Arzate knew the guy or something. During his trial testimony,
G.E. could not recall defendant making these statements and
only remembered defendant asking Arzate where the guy was
9
from. G.E. also testified that Whittier Varrio Locos was a gang
allied with Pico Nuevo and not a rival gang. (Delci, supra,
B292466.)
During her testimony describing the shooting, Maria
repeatedly denied her brother Jonathan was a gang member but
admitted one of her other brothers was a member of the Whittier
Varrio Locos gang. (Delci, supra, B292466.)
The prosecution presented the testimony of an expert on
the Pico Nuevo gang. (Delci, supra, B292466.)
Defendant exercised his right not to testify. Defendant
presented the testimony of a gang expert who, among other
things, testified the Pico Nuevo gang was allied with, and not a
rival of, Whittier Varrio Locos in 2014 when the shooting
occurred. He conceded defendant was a Pico Nuevo gang
member. (Delci, supra, B292466.)
DISCUSSION
1. Standard of Review
We review for substantial evidence a trial court’s factual
findings at an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3). (People v. Henley (2022) 85 Cal.App.5th 1003,
1017; People v. Mitchell (2022) 81 Cal.App.5th 575, 591
(Mitchell); People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) In
conducting this review, “we presume in support of the judgment
the existence of every fact that can be reasonably deduced from
the evidence, whether direct or circumstantial.” (Mitchell, at
p. 591; accord, People v. Brooks (2017) 3 Cal.5th 1, 57.)
We reject defendant’s suggestion that independent review
of the court’s factual findings is appropriate here because no new
evidence was presented at the evidentiary hearing. Defendant
says in such circumstances the question presented at the hearing
10
is predominantly legal as the court is tasked with assessing
whether the established facts in a “cold record” are sufficient to
support a finding of guilt under the amended murder statutes.
In so arguing, defendant relies on People v. Vivar (2021)
11 Cal.5th 510 which held that independent review was
appropriate in the context of a motion to vacate a conviction
pursuant to Penal Code section 1473.7 based solely on
declarations. But in so holding, Vivar expressly cautioned
against extending its rationale beyond section 1473.7. (Vivar, at
p. 528, fn. 7 [“Nothing we say here disturbs a familiar postulate:
when reviewing a ruling under the substantial evidence
standard, ‘an appellate court should defer to the factual
determinations made by the trial court,’ regardless of ‘whether
the trial court’s ruling[s are based] on oral testimony or
declarations.’ ”]; see also Mitchell, supra, 81 Cal.App.5th at p. 591
[discussing Vivar and rejecting de novo review of factual findings
made at a § 1172.6 evidentiary hearing].)
2. Substantial Evidence Supports the Court’s Factual
Finding that Defendant Is Guilty as a Direct Aider
and Abettor.
Defendant contends the jury’s acquittal on first degree
murder and the not true findings on the principal firearm use
allegations preclude him being found guilty as a direct aider and
abettor with the intent to kill, and the court erred in failing to
give those jury findings preclusive effect. Defendant relies on the
doctrine of collateral estoppel, or alternatively, the reasoning in
People v. Cooper (2022) 77 Cal.App.5th 393 (Cooper) in so
arguing.
At an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3), the trial court sits as an independent
11
factfinder and considers the evidence of the defendant’s guilt
anew, including any new evidence the parties may offer, in order
to determine whether the defendant is guilty under current law.
The court may also consider new theories of liability not
presented at trial. (People v. Duchine (2021) 60 Cal.App.5th 798,
813 [the Legislature “plainly intended” that new theories of
murder liability could be considered]; accord, People v. Schell
(2022) 84 Cal.App.5th 437, 444–445.)
The acquittal on first degree murder does not mean the
jury necessarily found defendant did not act with the intent to
kill. It means the jury concluded defendant did not act with the
requisite premeditation and deliberation. Intent to kill and
premeditation are not synonymous. (See, e.g., People v. Boatman
(2013) 221 Cal.App.4th 1253, 1264 [“ ‘the mere intent to kill is
not the equivalent of a deliberate and premeditated intent to
kill’ ”].) The court was free to consider the evidence anew and
determine if it established that defendant acted with the
requisite intent to kill for second degree murder.
The acquittal on the principal firearm use allegation does
not mean the jury necessarily found defendant did not know
Arzate was armed and did not aid and abet the murder. The
transcript of the resentencing hearing shows the court expressly
considered the defense argument that the jury’s not true finding
on the principal firearm use allegation supported an implied
finding the jury found defendant was not an aider and abettor
with knowledge that Arzate was armed. The court was not
persuaded that was a reasonable inference. The court explained,
“But there was no specific finding and the court’s not prepared to
accept that there was some type of implied finding that he was
not an aider and abettor.”
12
The court recited at length the facts in support of its
conclusion that defendant could be convicted of second degree
murder as an aider and abettor under current law.
“THE COURT: [¶] . . . [¶] [Defendant] makes a left onto
Washington, and this is the part that I really find probative in
the case, he slows down, he takes the car and he backs the car
into the alley ready for an escape.
“He doesn’t park on the side. . . . [I]f this was a drive-by
shooting, that would be a different argument, then we would
have the perpetrator doing something sudden without the
knowledge of the driver and there is a good argument could [sic]
be made that the driver did not know what was happening, but
the problem is [defendant] drives past the house, stops and backs
the car into the alley. He’s ready to make an escape.
“And inside the car we have Arzate is [sic] in the passenger
seat, G.E. in the back seat. G.E. sees Arzate fumble with the gun
or get the gun from the middle of the seat, sounds like a console.
“Now, if G.E. sees that gun from the back, almost certainly
[defendant] sees the gun, he’s right next to him.
“Also, what else do we know about the gun? We know that
Arzate had the gun the night before. How do we know that? G.E.
said Arzate had the gun in the presence of [defendant] the night
before.
“So we know that [defendant] knew Arzate had the gun.
We know that [defendant] knew or it’s [sic] strong evidence that
he sees the gun in [Arzate’s] hand before he alights [from] the
vehicle. Arzate gets out of the car with the gun at his side. What
does [defendant] think Arzate is gonna do when he stops the car?
What is he gonna do? It seems to me there is only one thing a
13
fellow gangster is gonna do when he confronts another gangster,
and, that is, he’s gonna shoot him.
“Now, one can argue, well, maybe he was gonna go over
there and engage in a fist fight.
“We have the expert testimony from the gang expert that
says that gun fights are much more common than fist fights.
And, also, don’t forget, that we know that there are two
gangsters—I shouldn’t say gangsters—there is [sic] two gang-
affiliated people in the house.
“So [Arzate] is gonna walk to this house by himself and
engage in a fist fight with two gang-affiliated guys? No. That’s
not gonna happen. So . . . what is [defendant] thinking when he
pulls the car, gets in a position to escape and then [Arzate] gets
out of the car? I think that’s strong, strong evidence that
[defendant] knew and was in on it of what was gonna happen.
“So what does Arzate do? He gets out. Where is the gun?
Is it in his waistband? No. The gun is at his side and he’s
walking, he’s walking to the victim who happens to be—Arzate is
about 30 feet away from the car. [Defendant], he’s right there,
and they engage. G.E. says they bang at each other, so they’re
talking gang stuff back and forth, and then Arzate shoots him
dead.
“He runs back—he runs back into the car, [defendant] says
‘Where’s he from’ he says, ‘VNE’ and then drives off, drives off,
and the gun is later found in the car, and when he stops, he
flashes his gang sign reinforcing the notion that these are
gangsters engaging in gang conduct.
“The other factor is they’ve got a young guy in the back and
they’re showing him the rough. He was jumped in the night
before.
14
“So when Arzate got back into the car he says, ‘I got him.’
“[Defendant’s] comments to G.E. about, ‘Don’t worry about
it, be calm, be cool,’ seems to me that those are comments by a
senior or veteran gang member telling the rookie just—just to
hang tight, be cool, just—just—just stay there. So I think that
with the evidence as I have recited it that there is sufficient
evidence to convict [defendant] of second degree murder as an
aider and abettor beyond a reasonable doubt.”
Defendant contends the court prejudicially erred by finding
defendant knew Arzate was armed despite the jury’s not true
finding on the principal firearm use allegation. Defendant cites
Cooper and Henley. In both those cases, the Courts of Appeal
reversed the denial of resentencing petitions where the trial
courts denied resentencing on the ground the defendants
themselves were personally armed and used a firearm, despite
contrary and inconsistent jury findings the defendants did not
use firearms.
The trial court here did not find defendant was armed or
used a firearm, but that defendant knew Arzate was armed and
planned to use a firearm. That was one of many other facts the
court found supported its conclusion that defendant aided and
abetted the murder. The jury’s not true finding on the principal
firearm use allegation is not contrary to or inconsistent with the
court’s finding that defendant directly aided and abetted the
murder. The court here did not turn an acquittal or not true
finding “ ‘into [its] opposite.’ ” (Cooper, supra, 77 Cal.App.5th at
p. 417.)
“[U]nder direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another if the
accomplice aids the commission of that offense with ‘knowledge of
15
the direct perpetrator’s unlawful intent and [with] an intent to
assist in achieving those unlawful ends.’ ” (People v. Gentile
(2020) 10 Cal.5th 830, 843.) The jury’s not true finding as to the
principal firearm use allegation has no bearing on defendant’s
guilt as a direct aider and abettor. A defendant’s presence at the
crime scene, companionship and conduct with the perpetrator
before and after the murder, and motive are all relevant factors
in determining aiding and abetting liability. (People v. Schell,
supra, 84 Cal.App.5th at p. 443.)
The evidence discussed above establishes all of these
factors. Defendant had a gang motive; he participated in gang
activities with the shooter the day before the murder, including
jumping 14-year-old G.E. into the gang; defendant drove Arzate
and the newly minted gangster G.E. to the victim’s home,
surveilled the scene as G.E. threw gang signs, and parked in an
alleyway that both gave full view of the shooting and blocked any
other car from interfering with the getaway; defendant waited for
Arzate in his car until after the shooting of a man they believed
to be a rival gang member; defendant drove the getaway car; and
he concealed the murder weapon in a door panel of his car.
Under the law, defendant is guilty of second degree murder as an
aider and abettor.
3. Ineffective Assistance of Counsel
Our Supreme Court recently reaffirmed “ ‘there is no
constitutional right to the effective assistance of counsel’ in state
postconviction proceedings.” (People v. Delgadillo (2022)
14 Cal.5th 216, 226; see also People v. Lewis (2021) 11 Cal.5th
952, 972 [“There is no unconditional state or federal
constitutional right to counsel to pursue collateral relief from a
judgment of conviction.”].)
16
However, in Wilson v. Superior Court of Los Angeles County
(1978) 21 Cal.3d 816, 823, the Supreme Court concluded that
once a substantial state created right has been conferred, due
process protects the effective exercise of that right to ensure that
the right “ ‘ “is not arbitrarily abrogated.” ’ ” Several courts have
followed Wilson and concluded that a right to counsel conferred
by statute is protected by due process and implicitly includes the
right to effective assistance. (See, e.g., People v. Hill (2013)
219 Cal.App.4th 646, 652–653 [“although the right to effective
assistance of counsel in SVPA proceedings is statutory, that right
is protected by the due process clause of the federal
Constitution”] & Conservatorship of David L. (2008)
164 Cal.App.4th 701, 710 [even if a proposed conservatee has no
constitutional right to effective assistance of counsel, once such a
right has been conferred by statute, it is protected by the due
process clause of the federal Constitution].)
Penal Code section 1172.6 expressly grants a petitioner
seeking postconviction resentencing the right to appointment of
counsel upon request. (Id., subd. (b)(3) [“if the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner”].) However, we need not decide whether that
statutory right to counsel includes the right of a petitioner to
raise an ineffective assistance claim. Even assuming defendant’s
ineffective assistance claim is cognizable, it lacks merit.
Defendant asserts the standard articulated in Strickland v.
Washington (1984) 466 U.S. 668 (Strickland) for assessing the
competency of counsel in criminal trial proceedings would be the
appropriate standard for resolving his claim. Accepting that as
true for purposes of our discussion, the Strickland standard has
two elements. A defendant must show both that “counsel failed
17
to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in
the absence of counsel’s failings.” (People v. Cudjo (1993)
6 Cal.4th 585, 623, citing Strickland, at pp. 687–696.)
Defendant’s claim is based on counsel’s alleged failure to
present new evidence at the hearing and his alleged
misunderstanding of the scope of the hearing. The transcript of
the hearing shows that counsel told the court he had no intent to
introduce new evidence because he believed it could create “huge”
problems and was inconsistent with the statutory purpose.
Counsel focused instead on strenuously arguing that the existing
evidentiary record was insufficient to establish any theory of
defendant’s guilt other than the now-invalid natural and
probable consequence theory, and that defendant was therefore
entitled to relief.
Strickland cautions that “[a] fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ”
(Strickland, supra, 466 U.S. at p. 689.)
Defendant has not shown that defense counsel’s chosen
strategy was unsound or otherwise fell outside the range of
reasonable professional assistance. Defendant also has not
18
established the likelihood of a more favorable outcome had
counsel offered additional evidence at the hearing related to
Arzate’s alleged personal motive for the shooting—evidence of
which the court was already aware from having heard and
resolved defendant’s motion for new trial.
DISPOSITION
The order denying Anthony Michael Delci’s petition for
resentencing is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
19