People v. Muniz CA2/3

Filed 1/15/21 P. v. Muniz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306955
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA072234
v.
LUIS MIGUEL MUNIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rogelio G. Delgado, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 2007, Luis Miguel Muniz was convicted of first degree
murder in which he personally used a firearm. After the
enactment of Senate Bill No. 1437 (S.B. 1437) (Stats. 2018, ch.
1015), Muniz petitioned for resentencing under Penal Code
section 1170.95. The trial court denied the petition and Muniz
appeals. We affirm.
BACKGROUND
In an information filed in September 2006, Muniz was
charged in count one with the murder of Gustavo Ramirez (Pen.
Code,1 § 187, subd. (a)), in count two with shooting a firearm from
a motor vehicle (§ 12034, subd. (c)), in count three with the
attempted murder of Hector Escamilla (§§ 664/187, subd. (a)),
and in count four with the attempted murder of Carlos Molinar
(§§ 664/187, subd. (a)). As to count one, the information alleged
that Muniz personally and intentionally discharged a firearm
causing Ramirez’s death within the meaning of section 12022.53,
subdivision (d). As to the other counts, the information also
alleged firearm use enhancements.
The jury convicted Muniz of all counts, including first
degree murder, and found the firearm use enhancement
allegations true, including the enhancement under subdivision
(d) of section 12022.53 for “personally and intentionally
discharg[ing] a firearm and proximately caus[ing] … death.” On
February 14, 2007, Muniz was sentenced to an aggregate term of
1 All undesignated statutory references are to the Penal Code.
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100 years to life. The judgment was affirmed in 2009. (People v.
Muniz (Jan. 16, 2009, B197185) [nonpub. opn.].)
In June 2020, Muniz filed a form petition for resentencing
under section 1170.95. He asked the court to vacate his murder
conviction and resentence him under section 1170.95. The form
petition alleged that the information filed against Muniz allowed
the prosecution to try him under a theory of felony murder or
murder under the natural and probable consequences doctrine,
that he was convicted under one of those theories, and that he
could not now be convicted of murder under the recent changes to
the Penal Code contained in S.B. 1437, of which section 1170.95
was a part. He also asked the court to appoint counsel to
represent him.
Muniz attached four exhibits to his form petition, including
excerpts from the trial transcript and a probation report. Per the
trial transcript, Muniz stipulated that the driver of the vehicle
fired the bullets that killed the deceased. And, per the probation
report, Muniz fired multiple shots at the victims from his vehicle,
striking Ramirez in the torso and killing him.
On July 14, 2020, the court summarily denied the petition.
The court noted that Muniz was convicted of first degree murder
and the jury found that he personally and intentionally
discharged a firearm which caused the victim’s death. The court
also noted that Muniz was not convicted under a theory of felony
murder or the natural and probable consequences doctrine.
Specifically, the court explained that the jury was not instructed
on aiding and abetting, felony murder, or the natural and
probable consequences doctrine.
Muniz filed a timely notice of appeal from the order, and we
appointed counsel to represent him. Appointed counsel filed a
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brief in which he raised no issues and asked us to follow the
procedures set forth in People v. Serrano (2012) 211 Cal.App.4th
496. We notified Muniz that his attorney had filed a brief that
raised no issues and that he could submit by brief or letter any
grounds for an appeal, or contentions or arguments he wished
this court to consider. Muniz submitted a supplemental letter
brief stating that he was prevented from testifying at trial or
calling unnamed alibi witnesses by his lawyer after his lawyer
spoke to the prosecutor. Muniz stated that the prosecutor
threatened to have the F.B.I. testify against Muniz if he and his
alibi witnesses testified at trial. Muniz also complains that he
was not allowed to select the jurors because his lawyer and the
prosecutor had “something planned.”
DISCUSSION
Currently before the Supreme Court are the issues (1)
whether a trial court can rely on the record of conviction to
conclude that a defendant has failed to make a prima facie
showing of eligibility for relief under section 1170.95 and (2)
when the right to appointed counsel arises under that statute.
(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar.
18, 2020, S260598.) Here, however, the documents attached or
referenced by Muniz in his resentencing petition establish that he
intentionally killed Ramirez by shooting him. Further, Muniz’s
trial jury was not instructed on felony murder or the natural and
probable consequences doctrine. This distinction is critical
because potential relief under section 1170.95 extends only to
those convicted of murder under the felony-murder rule or the
natural and probable consequences doctrine. (People v. Soto
(2020) 51 Cal.App.5th 1043, 1056, review granted Sept. 23, 2020,
S263939.) Because Muniz was convicted under a valid theory of
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murder that survived the changes to sections 188 and 189, he is
ineligible for relief under section 1170.95, and any possible error
is harmless.
Assuming, without deciding, that a defendant is entitled to
an independent review of the record under People v. Wende (1979)
25 Cal.3d 436 in an appeal from the denial of a petition under
section 1170.95, we have examined the entire record, and are
satisfied appellate counsel has fully complied with counsel’s
responsibilities and no arguable issues exist in the appeal before
us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; Wende, at p.
443.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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