People v. Manzo CA4/1

Filed 8/30/23 P. v. Manzo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081439
Plaintiff and Respondent,
v. (Super. Ct. No. SCS212840)
MARTIN MANZO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Timothy R. Walsh, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, A.
Natasha Cortina, Lynne G. McGinnis, and Christine Levingston Bergman,
Deputy Attorneys General, for Plaintiff and Respondent.
Martin Manzo appeals the order denying his Penal Code section 1172.6
petition for resentencing on his first degree murder conviction. The trial
court ruled Manzo was ineligible for relief without holding an evidentiary
hearing on the ground that the record of conviction showed he was the actual
killer. We affirm.
BACKGROUND
Manzo fatally shot Jose Miguel Valadez with a pistol as Valadez and
Jose Eduardo Estrada sat inside Manzo’s truck and Manzo stood outside it.
Manzo also pointed the gun at Estrada, but the pistol misfired. (People v.
Manzo (2012) 53 Cal.4th 880, 883-884 (Manzo).)
The People filed a complaint against Manzo and Estrada charging them
with the murder of Valadez. (Pen. Code, § 187, subd. (a); undesignated
section references are to this code). The People alleged Manzo had two prior
convictions that constituted serious felonies and strikes. (§§ 667, 1170.12.)
The People later filed an information that dropped Estrada as a
defendant. They reasserted the murder charge (§ 187, subd. (a)), and added
firearm enhancement allegations (§§ 12022.5, subd. (a), 12022.53, subds.(b),
(d)). The People added charges of shooting at an occupied vehicle (§ 246),
with firearm and great bodily injury enhancement allegations (§§ 12022.5,
subd. (a), 12022.53, subds. (b), (d), 12022.7, subd. (a)); willful, deliberate, and
premeditated attempted murder of Estrada (§§ 21a, 187, subd. (a)), with
firearm enhancement allegations (§§ 12022.5, subd. (a), 12022.53, subd. (b));
and unlawful possession of ammunition (former § 12316, subd. (b)(1)). The
People reasserted the allegations of prior serious felony and strike convictions
(§§ 667, 1170.12), and added allegations that Manzo had served three prior
prison terms (former § 667.5, subd. (b)).
The case went to trial before a jury on the theory that Manzo shot
Valadez to steal methamphetamine that was hidden in his cell phone.
(Manzo, supra, 53 Cal.4th at p. 884.) The trial court instructed the jury on
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two theories of murder: malice aforethought (CALCRIM No. 520) and felony
murder (CALCRIM Nos. 540A, 540B). The felony murder instructions were
based on a killing during the commission of a robbery, and advised the jury
Manzo could be found guilty if he committed a robbery and during the
robbery did an act that killed Valadez (CALCRIM No. 540A), or if he
committed or aided and abetted another person in committing a robbery and
during the robbery the other person did an act that killed Valadez
(CALCRIM No. 540B). The court separately instructed the jury on robbery
(CALCRIM No. 1600) and aiding and abetting (CALCRIM Nos. 400, 401,
1603). The court also instructed the jury that it did not need to decide any
charge against Estrada (CALCRIM No. 206), and that in evaluating his
testimony the jury needed to decide whether he was an accomplice to the
crimes charged against Manzo (CALCRIM No. 334).
The jury found Manzo guilty of first degree murder and found true the
attached firearm enhancement allegations. It also found him guilty of the
other charges and found true the attached enhancement allegations. In a
separate proceeding, Manzo admitted allegations concerning his prior
convictions and prison terms. The trial court sentenced him to prison for an
aggregate term of five years plus 150 years to life.
After Manzo’s judgment became final, legislation narrowed the scope of
liability for felony murder and abolished liability for murder based on the
natural and probable consequences doctrine. (§§ 188, 189, as amended by
Stats. 2018, ch. 1015, §§ 2, 3.) The legislation enacted former section
1170.95, which established a procedure for persons to seek relief if they were
convicted of murder before the legislation took effect but could not have been
convicted had the legislation been in effect at the time of the killing. (Stats.
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2018, ch. 1015, § 4.) The procedure is now codified as section 1172.6. (Stats.
2022, ch. 58, § 10.) We use that statutory number for simplicity.
Manzo, representing himself, filed a form petition for resentencing
under section 1172.6. He checked boxes stating he was convicted of murder
on a theory of felony murder, natural and probable consequences doctrine, or
some other theory on which malice is imputed based on participation in a
crime; and he could not presently be convicted of murder because of the
legislative changes described in the immediately preceding paragraph.
Manzo requested appointment of counsel.
The People filed a response asking the trial court to deny the petition.
They contended Manzo was ineligible for relief because the jury’s verdict that
he was guilty of the first degree murder of Valadez and its associated finding
that he personally and intentionally discharged a firearm causing death
showed he was the actual killer. The People attached several documents to
the response, including the information, the jury’s verdicts, and the jury
instructions.
Manzo, represented by the public defender, filed a reply to the People’s
response. The reply included a generalized discussion of the requirements for
stating a prima facie case for relief under section 1172.6 and the People’s
burden of proof at an evidentiary bearing, but said nothing specific about
Manzo’s case. Manzo asserted he had stated a prima facie case for relief, and
asked the trial court to issue an order to show cause and set a hearing to
decide the petition on the merits.
The trial court held a prima facie review hearing and denied the
petition. The court reviewed the jury’s verdicts and associated findings on
the firearm enhancement allegations, and stated: “[T]he jury implicitly found
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[Manzo] was the actual killer,” and “changes to sections 188 and 189 are in
the [c]ourt’s view, therefore, inapplicable.”
DISCUSSION
Manzo contends the trial court erred by denying his petition for
resentencing at the prima facie review stage by making a factual finding he
was the actual killer. He argues that because the jury was instructed on
felony murder and malice aforethought as alternative bases for murder
liability and was also instructed on principles of aiding and abetting and
accomplice liability, it cannot be determined based on the limited record
before the trial court that he was the actual killer. According to Manzo,
because “the first degree murder verdict did not state upon which theory of
guilt the jury found [him] guilty,” “[f]or all the instructions and verdicts show,
someone other than [he] may have been the perpetrator.” He asks us to
reverse the order and remand the matter with directions to the trial court to
issue an order to show cause and hold an evidentiary hearing.
Reviewing the challenged order de novo (People v. Harden (2022) 81
Cal.App.5th 45, 53 (Harden); People v. Coley (2022) 77 Cal.App.5th 539, 545),
we conclude the trial court correctly denied Manzo’s petition without holding
an evidentiary hearing. Although at the prima facie review stage a court
presented with a section 1172.6 petition may not engage in factfinding that
requires weighing evidence or exercising discretion, the court may consider
jury instructions, jury verdicts, and other documents that are part of the
record of conviction to determine whether the petitioner satisfies the criteria
for relief. (§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 970-972
(Lewis); Harden, at pp. 51-52; Coley, at pp. 545-548.) As we shall explain,
Manzo was ineligible for resentencing because “the jury instructions and
verdicts conclusively establish—with no factfinding, weighing of evidence, or
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credibility determinations—that [he] was convicted as the actual killer.”
(Harden, at p. 47.)
In its verdict on the murder charge, the jury found Manzo guilty of first
degree murder in violation of section 187, subdivision (a), and found that in
committing the murder he personally and intentionally discharged a firearm
and proximately caused great bodily injury or death within the meaning of
section 12022.53, subdivision (d). The verdict thus established a killing
(§ 187, subd. (a) [murder is unlawful killing of human being with malice
aforethought]) that Manzo himself caused by discharging a firearm (see
Harden, supra, 81 Cal.App.5th at p. 55 [“natural meaning of ‘personally
inflicted’ is that the defendant herself inflicted the injury”]). In other words,
the verdict established that Manzo was the “actual killer.” (See People v.
Cornelius (2020) 44 Cal.App.5th 54, 56, 58 [by finding defendant guilty of
murder and finding § 12022.53, subd. (d) allegation true, “the jury implicitly
found [defendant] was the ‘actual killer’ ”]; Webster’s 3d New Internat. Dict.
(2002) pp. 22 [defining “actual” as “existing in act <our ~ intentions> :
existent — contrasted with potential and possible”], 1242 [defining “kill” as
“cause the death of” and “killer” as “one that kills”].)
The jury was instructed, as already noted, on two theories of murder:
killing with malice aforethought and felony murder. Although the verdict on
the murder charge does not state which theory the jury adopted, Manzo
would not be entitled to relief under section 1172.6 on either theory. If the
jury found him guilty on a malice theory, he would be ineligible for
resentencing because section 1172.6 applies only when the petitioner’s
murder conviction was based on felony murder, the natural and probable
consequences doctrine, or another theory under which malice is imputed
based solely on the petitioner’s participation in a crime. (§ 1172.6, subd. (a);
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Harden, supra, 81 Cal.App.5th at p. 53.) If the jury found Manzo guilty of
felony murder, he would also be ineligible for resentencing because under the
legislation that narrowed the scope of liability for felony murder the actual
killer remains liable. (§ 189, subd. (e)(1), as amended by Stats. 2018, ch.
1015, § 3; People v. Garcia (2022) 82 Cal.App.5th 956, 973; Harden, at p. 53.)
Hence, based on the verdicts and jury instructions, the trial court correctly
denied Manzo’s section 1172.6 petition.1
Manzo insists the record of conviction does not establish, as a matter of
law, that he was the actual killer and therefore is not entitled to
resentencing. He points out that Estrada was also charged in the complaint
with the murder of Valadez, the jury was instructed on aiding and abetting
and accomplice liability, and the felony murder instructions advised the jury
that Manzo could be guilty of murder “even if another person did the act that
resulted in the death” (CALCRIM No. 540B). Although consideration of those
parts of the record by themselves leaves open the possibility that Estrada
was the actual killer, they are not the only parts that must be considered.
Estrada was dropped as a defendant in the information, and the case went to
trial against Manzo only. The jury returned a verdict finding him guilty of
first degree murder and also finding that in committing the murder he
proximately caused Valadez’s death by personally and intentionally
discharging a firearm. As we explained above, those findings establish that
Manzo was the actual killer, and as such he is not entitled to relief under
section 1172.6.
1 Because the jury verdicts and instructions are included in the clerk’s
transcript and are sufficient for us to decide the appeal, we deny the People’s
motion for judicial notice of the record in Manzo’s appeal of the judgment.
(See, e.g., People v. Acosta (2002) 29 Cal.4th 105, 119, fn. 5 [declining to take
judicial notice when neither necessary nor helpful to resolution of appeal];
Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, 819 [same].)
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Manzo cites People v. Offley (2020) 48 Cal.App.5th 588, 592, to argue
that “an enhancement under section 12022.53, subdivision (d) does not in
itself preclude a petitioner from obtaining relief under section [1172.6].”
Offley is not on point, however. In that case the issue was not whether the
defendant was the actual killer, but whether he acted with actual malice.
Offley was one of five defendants who took part in a gang-related shooting
that resulted in a death. (Offley, at p. 592) The trial court instructed the
jury that a member of a conspiracy is liable not only for the particular crime
he knows his coconspirators agreed upon and committed, but also for the
natural and probable consequences of any crime a coconspirator committed to
further the objective of the conspiracy. (Id. at p. 593.) The jury found Offley
guilty of murder and found true the attached enhancement allegation that
his personal and intentional discharge of a firearm proximately caused the
victim’s death. (Ibid.) The Court of Appeal held that because the finding on
the firearm enhancement allegation did not establish that Offley acted with
malice aforethought, and the jury could have found him guilty of murder
based solely on his participation in a conspiracy to commit assault with a
firearm, he was not ineligible for relief as a matter of law. (Id. at pp. 598-
599.) Unlike in Offley, the jury in Manzo’s case was not instructed on a
conspiracy theory or on the natural and probable consequences doctrine
through which malice could be imputed to him based on his participation in a
crime other than the murder. Rather, as we have explained, Manzo was tried
for murder on theories of malice aforethought and felony murder, and under
either theory the jury’s finding that he personally caused Valadez’s death by
shooting him makes Manzo ineligible for resentencing under section 1172.6
as a matter of law. (See Harden, supra, 81 Cal.App.5th at p. 56, fn. 9
[distinguishing Offley].)
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Manzo’s final argument is that the trial court engaged in impermissible
factfinding at the prima facie review stage when it determined he was the
actual killer. We disagree. The type of factfinding prohibited at the prima
facie review stage “ ‘involv[es] the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) The trial court did not
weigh any evidence or exercise any discretion in denying Manzo’s
resentencing petition. It heard counsel’s arguments based on the jury
instructions and verdicts, reviewed the verdicts, and determined the jury had
found Manzo was the actual killer and thus ineligible for relief under section
1172.6. “[T]he parties can, and should, use the record of conviction to aid the
trial court in reliably assessing whether a petitioner has made a prima facie
case for relief under subdivision (c).” (Lewis, at p. 972; see Harden, supra, 81
Cal.App.5th at pp. 47-48, 51-52 [court may consider jury instructions and
verdicts at prima facie review stage].) There was no error in doing so in this
case.
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DISPOSITION
The order denying the petition for resentencing is affirmed.
IRION, J.
I CONCUR:
McCONNELL, P. J.
I CONCUR IN THE RESULT ONLY:
BUCHANAN, J.
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