APPEAL
from a judgment of the Superior Court of Tulare County. No.
VCF211993C Gary L. Paden, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier
Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric Christoffersen and Jeffrey D. Firestone, Deputy
Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
Richard
Rodriguez Larios appeals from an order denying a petition for
recall of sentence and resentencing pursuant to Penal Code
section 1170.95. (Statutory references are to the Penal Code
unless otherwise stated.) This order is appealable pursuant
to section 1237, subdivision (b), as an order after judgment
affecting the substantial rights of the defendant. (See
Teal v. Superior Court (2014) 60 Cal.4th 595,
600-601 [denial of petition for recall and resentencing
appealable as order after judgment].) The convictions upon
which Larios had petitioned were three counts of attempted
murder, which were final at the time he filed his petition.
Larios's counsel has raised no issue on appeal and asked
this court for an independent review of the record to
determine whether there are any arguable issues. (People
v. Wende (1979) 25 Cal.3d 436.) Larios's counsel
advised Larios, as did this court, of his right to file a
supplemental brief to bring to this court's attention any
issue he believes deserves review. (People v. Kelly
(2006) 40 Cal.4th 106, 120.) Larios filed a supplemental
brief in which he challenges the applicability of the natural
and probable consequences doctrine to his case, and he
requests resentencing under section 1170.95. After initial
consideration of his arguments, this court requested briefing
from counsel on the scope and applicability of Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) to the
crime of attempted murder, and in particular, final
convictions of attempted murder. We directed counsel to
discuss the recent cases of People v. Munoz (2019)
39 Cal.App.5th 738, review granted November 26, 2019, S258234
(Munoz) and People v. Lopez (2019) 38
Cal.App.5th 1087, review granted November 13, 2019, S258175
(Lopez), which have addressed similar issues.
Although we find ourselves in fundamental disagreement with
the Lopez and Munoz decisions on the scope
and legal ramifications of Senate Bill 1437 as it pertains to
attempted murder, we agree with their ultimate conclusion
that section 1170.95 provides no relief for the crime of
attempted murder. Consequently, we affirm the trial
court's order denying relief to Larios on his petition.
Procedural
and Factual History
We
grant Larios's request to take judicial notice, pursuant
to Evidence Code section 452, subdivision (d), of the
unpublished opinion in People v. Larios (Aug. 19,
2011, F059866) (Larios I). This court summarized the
relevant facts and judicial proceedings in Larios I
as follows:
“…
Larios and his codefendant Ronnie Zuniga were two of three
Norteno occupants of a brown or tan Mercury Cougar automobile
that stopped to get gas at a convenience store on Bardsley
Avenue in Tulare. Already there at a gas pump was a black
Nissan Maxima occupied by two Surenos, Irving Rodriguez and
Juan Saucedo, and a friend of Rodriguez's since
childhood, 17-year-old Stephanie G. After some staring or
‘mad dogging' between the rival gang members at the
gas pumps, and a brief verbal exchange between Norteno Zuniga
and Sureno Saucedo when the two men went inside the store to
pay for gas, the Cougar followed the Maxima when the Maxima
drove away from the convenience store. A short distance away,
approximately five gunshots were fired from the Cougar, at
least four of which struck the Maxima. None of the bullets
struck any of the three occupants of the Maxima, although
Stephanie G. received cuts from shattered window glass.
“A
first trial ended in a mistrial when the jury could not reach
a verdict. In the second trial, the subject of this appeal, a
jury found both Larios and Zuniga guilty of three counts of
premeditated attempted murder (Pen. Code, §§
664/187, subd. (a)) and one count of shooting at an occupied
motor vehicle (§ 246). The jury also found that the
crimes were committed for the benefit of a street gang
(§ 186.22, subd. (b)(4)) and that a principal personally
discharged a firearm in the commission of each crime (§
12022.53, subds. (c) and (e)(1)). Each defendant was
sentenced to a term of 54 years to life.” (Larios
I, supra, F059866, fn. omitted.)
In
Larios I, this court directed the trial court to
strike the 20-year section 12022.53 enhancement imposed and
stayed on count 4, but in all other respects, affirmed.
The
remittitur on the appeal in Larios I issued on
November 3, 2011.
On
January 2, 2019, Larios filed a petition seeking relief under
recently enacted section 1170.95, in the Tulare Superior
Court. In a preprinted form request for resentencing
petition, Larios alleged he was convicted of first or second
degree murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine, and he could not
now be so convicted because of newly effective changes to
sections 188 and 189. The petition further alleged he was
eligible for resentencing because he was not the actual
killer; he did not intend to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree; he
was not a major participant in the felony or he did not act
with reckless indifference to human life during the course of
the crime or felony; and the victim of the murder was not a
peace officer in the performance of his or her duties.
On
January 9, 2019, the trial court summarily denied the
petition, stating Larios was convicted of three counts of
attempted murder, in violation of sections 664 and 187, and
was “unable to establish a prima facie basis of
eligibility for relief.”
DISCUSSION
In his
brief, Larios emphasizes that he was not the shooter, there
was no evidence at trial that he knew or should have known
that another person in the vehicle was armed with or was
going to use a firearm, and there was no evidence that he
aided or abetted in the commission of this crime. To the
extent Larios is asking us to reconsider the sufficiency of
the evidence as it pertains to his convictions, that time has
long passed. As for his request that we grant his appeal for
resentencing ...