People v. Venegas CA4/3

Filed 08/21/23 P. v. Venegas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061649
v. (Super. Ct. No. 05NF0836)
GABRIEL LARRY VENEGAS, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
M. Marc Kelly, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
A jury convicted defendant Gabriel Larry Venegas of conspiracy to commit
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murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a); count 1), two counts of
attempted murder with premeditation and deliberation (§§ 187, subd. (a), 664; counts 2 &
3), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 4), and street terrorism
(§ 186.22, subd. (a); count 5). The jury also found true allegations that counts 1, 2, 3, and
4 were committed for the benefit of or to promote a criminal street gang (§ 186.22, subd.
(b)(1)) and defendant personally discharged a firearm causing great bodily injury with
regard to counts 1, 2, and 3 (§ 12022.53, subd. (d)).
The court sentenced defendant to a determinate term of 7 years and a
consecutive indeterminate term of 115 years to life. In 2011, another panel of this court
affirmed a modified judgment. (People v. Venegas (Feb. 15, 2011, G041958) [nonpub.
opn.].)
In March 2022, defendant filed a petition for resentencing under former
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section 1170.95 (now § 1172.6). The trial court summarily denied defendant’s petition
for resentencing. Defendant timely filed a notice of appeal. His appointed counsel
advised the court he was unable to find an issue to argue on defendant’s behalf and
requests that we review the entire record. (People v. Wende (1979) 25 Cal.3d 436.)
Consistent with Anders v. California (1967) 386 U.S. 738, appointed counsel also
identified two issues to assist in our independent review: (1) whether the court engaged
in improper factfinding when it denied defendant’s petition for resentencing; and (2)
whether the court erred by failing to consider if Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 699) required the conspiracy to commit murder and attempted
murder charges to be proven without reference to gang evidence that would be
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All further statutory references are to the Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6,
with no change in text (Stats. 2022, ch. 58, § 10).
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inadmissible today. Defendant was given the opportunity to file written argument on his
own behalf, but he has not done so. Although defendant has not filed a supplemental
brief, we exercise our discretion to conduct an independent review of the record and
appointed counsel’s Wende brief. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
We have examined the entire record and have not found an arguable issue
on appeal. Accordingly, we affirm the postjudgment order.
FACTS
In March 2022, defendant filed a petition for resentencing. In his petition,
defendant averred: “1. A complaint, information, or indictment was filed against me that
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, or attempted
murder under the natural and probable consequences doctrine. [Citation.] [¶] 2. I was
convicted of murder, attempted murder, or manslaughter following a trial or I accepted a
plea offer in lieu of a trial at which I could have been convicted of murder or attempted
murder. [Citation.] [¶] 3. I could not presently be convicted of murder or attempted
murder because of changes made to [sections] 188 and 189, effective January 1, 2019.”
The court appointed counsel for defendant, received additional briefing
from the parties, and conducted a prima facie hearing. The court then denied defendant’s
petition for resentencing. With respect to count 1, the court concluded defendant was
ineligible for relief as a matter of law because section 1172.6 did not apply to convictions
for conspiracy to commit murder. With respect to counts 2 and 3, the court held the jury
instructions and verdict forms established defendant was ineligible for relief as a matter
of law. The court noted the jury was given instructions pertaining to aiding and abetting
liability (CALCRIM Nos. 400, 401) but did not receive any instructions on the natural
and probable consequences doctrine (CALCRIM Nos. 402, 403). The court also
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emphasized the jury found true allegations that defendant personally discharged a firearm
causing great bodily injury. As to this jury finding, the court explained the jury received
CALCRIM No. 3149, which instructed that “the People had to prove [defendant]
discharged a firearm during the commission of the attempted murder, [defendant]
intended to discharge the firearm, and [defendant’s] act caused great bodily injury.” The
jury further received CALCRIM No. 601, which instructed that “the People had to prove
[defendant] intended to kill when he acted and [defendant] deliberated if he carefully
weighed the considerations for and against his choice and, knowing the consequences,
decided to kill.” Given these instructions and the jury’s true finding, the court held the
jury necessarily found defendant, the actual shooter, acted with intent to kill during the
commission of the attempted murders.
DISCUSSION
Relief under section 1172.6 is restricted to those convicted of murder
“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 . . . .” (Id., subd. (a)(1).) In determining whether the
petitioner has made a prima facie case for relief under section 1172.6, the trial court may
rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971.) The
record of conviction includes the court’s own documents, including “the trial evidence,
the jury instructions, and closing arguments of counsel.” (People v. Lopez (2022) 78
Cal.App.5th 1, 13.) As our Supreme Court explained, “The record of conviction will
necessarily inform the trial court’s prima facie inquiry . . . allowing the court to
distinguish petitions with potential merit from those that are clearly meritless.” (Lewis, at
p. 971.)
Here, defendant’s petition lacks merit because the record of conviction
establishes he was not convicted based on felony murder or under a natural and probable
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consequence theory. He was convicted of conspiracy to commit murder as evidenced by
the jury verdict forms and the abstract of judgment. As a matter of law, a defendant
convicted of such a crime is not eligible for resentencing under section 1172.6. (People
v. Whitson (2022) 79 Cal.App.5th 22, 34-36; see People v. Medrano (2021) 68
Cal.App.5th 177, 183 [conviction of conspiracy to commit murder requires finding of
intent to kill].)
With respect to the attempted murders, the jury was never instructed on the
natural and probable consequences. Instead, the jury received instructions pertaining to
aiding and abetting liability (CALCRIM Nos. 400 & 401). The jury also was instructed it
could find the deliberation and premeditation allegation on the attempted murder counts
true only if defendant “intended to kill,” “carefully weighed the considerations for and
against [his] choice and, knowing the consequences, decided to kill,” and “decided to kill
before acting.” (CALCRIM No. 601.) The jury was further instructed on the firearm
enhancement allegations: “If you find the defendant . . . guilty of the crimes charged in
Counts 1-3, you must then decide whether . . . the People have proved the additional
allegation that the defendant personally and intentionally discharged a firearm during the
crime causing (great bodily injury).” (CALCRIM No. 3149.) The instructions stated the
People had to prove: (1) the defendant “personally discharged a firearm during the
commission of that crime;” (2) the defendant “intended to discharge the firearm;” and (3)
his “act caused [great bodily injury] to a person who was not an accomplice to the
crime.” (CALCRIM No. 3149.) The record accordingly demonstrates defendant was not
convicted based upon felony murder, the natural and probable consequences theory, or
other theory under which malice is imputed.
As noted ante, appointed counsel questions whether the court erred by
failing to consider if Assembly Bill No. 333 (Stats. 2021, ch. 699) required the
conspiracy to commit murder and attempted murder charges to be proven without
reference to gang evidence that would be inadmissible today. She notes Assembly Bill
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No. 333 added section 1109, which requires gang enhancement allegations to be
bifurcated and tried after a guilt phase. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.)
This contention is not cognizable on appeal because defendant failed to raise the
argument below. (People v. Vargas (2022) 84 Cal.App.5th 943, 949, fn. 5.) Even
assuming no forfeiture, Assembly Bill No. 333 does not apply to defendant because his
judgment was final long before its enactment. (People v. Boukes (2022) 83 Cal.App.5th
937, 946 [noting Assembly Bill No. 333’s substantive changes apply in cases where the
judgment is not yet final]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039; People v.
Padilla (2022) 13 Cal.5th 152, 162 [“a judgment becomes final ‘“where the judgment of
conviction was rendered, the availability of appeal exhausted, and the time for petition
for certiorari ha[s] elapsed”’”].)
DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
MOTOIKE, J.
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