Filed 3/22/22 P. v. Chavez CA2/7

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael R. Johnsen, Deputy Attorneys General for Plaintiff and Respondent.

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In 2011 a jury convicted David Chavez of the attempted willful, deliberate, and premeditated murder of Christian Contreras and assault with a firearm on Mario Olivares. The jury also found true multiple firearm enhancement allegations as to the attempted murder, including that in the commission of the offense, Chavez personally and intentionally discharged a firearm. We affirmed the judgment. (People v. Chavez (Aug. 15, 2012, B234522) [nonpub. opn.] (Chavez I).)

In 2019 Chavez, representing himself, filed a petition for resentencing seeking to vacate his attempted murder conviction and be resentenced pursuant to Penal Code section 1170.95.^[1] The trial court summarily denied Chavez’s petition without appointing counsel on the basis Chavez was ineligible for resentencing as a matter of law because he was not convicted of murder. We again affirmed. On December 22, 2021 the Supreme Court granted review and transferred the case to us with directions to vacate our decision and reconsider Chavez’s appeal in light of amendments to section 1170.95 by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022.

In supplemental briefing, Chavez argues the trial court’s order denying his petition should be reversed and the case remanded to the trial court for the court to appoint counsel for Chavez and to perform a prima facie review of Chavez’s petition in light of the amendments made by Senate Bill 775. The People argue in their supplemental letter brief that Chavez remains ineligible for relief under the amendments to section 1170.95 because Chavez was the direct perpetrator of attempted murder and acted with actual malice, and therefore any error in not appointing counsel for Chavez and considering the petition under the amendments to section 1170.95 was harmless. We agree and affirm the postjudgment order denying Chavez’s petition.

• FACTUAL AND PROCEDURAL BACKGROUND

1. 1. The Evidence at Trial

As we described in our opinion in Chavez I, B234522, Chavez and Contreras were friends and members of the same criminal street gang. However, once Chavez was labeled an informant (a “snitch”) by his gang, he became a target for attack by Hispanic gang members, and Contreras was told he “better do something” about Chavez, which Contreras understood to mean he needed to injure Chavez, or Contreras would be targeted. In response, when Chavez drove up to Contreras’s house, Contreras punched him through the open window of Chavez’s car, and Chavez drove away.

Ten months later, after Contreras completed a drug and alcohol rehabilitation program, Contreras rode his bicycle to Chavez’s house “to make peace and try to explain.” Contreras was told that Chavez was not there, and Contreras returned home. When Contreras pulled into his driveway, he saw Chavez driving down the street, steering with his left hand and holding a nine-millimeter handgun in his right hand. Chavez shot several times through his open passenger-side window toward Contreras’s home. Contreras took cover behind a van parked in front of his house. Contreras’s brother, Olivares, heard the gunshots and came out of the house as Chavez was turning the car around. According to Olivares, Chavez made eye contact with him and shot a few more times in Olivares’s direction while driving away.

Chavez, testifying in his own defense, did not deny he shot at Contreras and Olivares. Instead, he went to Contreras’s house to tell Chavez to leave him alone, and he brought his gun because the gang was trying to kill him. As he approached Contreras’s house, Chavez saw Contreras standing in the driveway. Contreras pulled a revolver from his pants and shot at Chavez first. Chavez shot back in self-defense, drove his car around the median, then shot a few more times and left.

The trial court instructed the jury with CALCRIM No. 600 that to convict Chavez of attempted murder, the People needed to prove Chavez “took at least one direct but ineffective step toward killing another person” and he “intended to kill that person.” The court also instructed the jury with CALCRIM No. 601 that to find the attempted murder was willful, deliberate, and premeditated, the jury had to find Chavez “intended to kill when he acted.” The court did not instruct the jury on aiding and abetting principles, the natural and probable consequences doctrine, or felony murder.

The jury convicted Chavez of the attempted willful, deliberate and premeditated murder of Contreras (§§ 187, subd. (a), 664)) and assault with a firearm on Olivares (§ 245, subd. (a)(2)), and it found true, among other firearm enhancements, the special allegation Chavez personally and intentionally discharged a firearm in the commission of the attempted murder (§ 12022.53, subd. (c)). The trial court sentenced Chavez to an aggregate indeterminate state prison term of life plus 20 years (including a concurrent three-year term for the aggravated assault).

1. 2. Chavez’s Petition for Resentencing and the Trial Court’s Ruling

On July 1, 2020 Chavez, representing himself, filed a petition for resentencing seeking to vacate his attempted murder conviction and be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. In his petition, Chavez declared he “was convicted of 1st or 2nd degree murder pursuant to the [felony] murder rule or [the] natural and probable consequences doctrine,” and he “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code [§§] 188, and 189, effective January 1, 2019.” Chavez requested the court appoint him counsel.[2] On July 17, 2020 the trial court summarily denied Chavez’s petition, finding Chavez was ineligible for resentencing as a matter of law because he was not convicted of murder. The court did not appoint counsel for Chavez.

• DISCUSSION

1. 1. Senate Bill No. 1437 and Senate Bill 775

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) The legislation also provided a procedure in new section 1170.95 for an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437’s changes to sections 188 and 189. (Lewis, at p. 959; Gentile, at p. 847.)

If the section 1170.95 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1170.95, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must direct the prosecutor to file a response to the petition and permit the petitioner to file a reply, and the court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (See § 1170.95, subd. (c).) Where a petitioner makes the requisite prima facie showing he or she falls within the provisions of section 1170.95 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).)

At the time Chavez filed his petition, the Courts of Appeal agreed that, by its express terms, section 1170.95 as enacted by Senate Bill 1437 did not provide relief for a petitioner convicted of attempted murder. However, section 1170.95, subdivision (a), as amended by Senate Bill 775, now provides for relief where the petitioner was convicted of “attempted murder under the natural and probable consequences doctrine” and “could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a) & (a)(3).)

1. 2. The Trial Court’s Error in Denying Chavez’s Petition for Resentencing Without Appointing Counsel Was Harmless

Chavez contends we should reverse the trial court’s denial of his petition and remand for the trial court to appoint counsel for him and consider his petition in light of Senate Bill 775 because section 1170.95 now applies to attempted murder. Although the summary denial constituted error, we agree with the People that the error was harmless because Chavez is ineligible for relief as a matter of law as a direct perpetrator who acted with actual malice.

Under Lewis, supra, 11 Cal.5th 952, which was decided one week after our initial decision affirming the order summarily denying Chavez’s petition for resentencing, once a petitioner files a facially sufficient petition under section 1170.95 and requests appointment of counsel, the superior court must appoint counsel before performing a prima facie review under section 1170.95, subdivision (c). (Lewis, at p. 963 [“petitioners who file a complying petition requesting counsel are to receive counsel upon filing of a compliant petition”].) As discussed, the amendments to section 1170.95 under Senate Bill 775 likewise provide for appointment of counsel at the prima facie review stage. (§ 1170.95, subd. (b)(3).) Under Lewis and Senate Bill 775, therefore, it was error for the trial court to deny Chavez’s petition for resentencing without first appointing counsel.

However, error in failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, reviewable for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) As the Lewis court explained, “[A] petitioner ‘whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.”’” (Id. at p. 974.)

As discussed, the record of conviction, including the instruction to the jury that it could only find Chavez guilty of attempted murder if the People proved he intended to kill, establishes that Chavez committed attempted murder with actual malice. As the sole perpetrator of the attempted murder who acted with the intent to kill, Chavez is ineligible for resentencing under section 1170.95 as a matter of law because he continues to be guilty of attempted murder under sections 188 and 189 as amended by Senate Bills 1437 and 775. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864, 866 [error in not appointing counsel before denying facially sufficient section 1170.95 petition was harmless error because conviction of provocative act murder necessarily required proof defendant personally harbored malice].) Because there is no reasonable probability Chavez would obtain a more favorable result if on remand the trial court were to appoint counsel and allow counsel an opportunity to file a memorandum supporting Chavez’s petition under the amended law, the court’s error in denying Chavez’s petition was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)

The order denying Chavez’s petition for resentencing under section 1170.95 is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

[1] Further statutory references are to the Penal Code.

[2] Chavez also filed a petition for writ of habeas corpus in which he requested resentencing on his attempted murder conviction as well as other relief, but his appeal is from the denial of his petition for resentencing.