Filed 12/11/19 P. v. Guzman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ABRAHAM GUZMAN,

Defendant and Appellant.

E073387

(Super.Ct.No. FVA1001864)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

In 2010, during a fight at a party, defendant and appellant Jose Abraham Guzman fatally stabbed the victim with a knife. Defendant was convicted of first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true that defendant used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) in the commission of the murder. The trial court sentenced defendant to 26 years to life in state prison.

Defendant appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). Based on our independent review of the record, we affirm the order.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Defendant and his wife, Yesenia Vega (Vega), lived in an apartment in Rialto with an apartment mate, Erika Valle (Erika). In the early hours of December 5, 2010, defendant, Vega, and Erika had a party at their apartment. Alexandro Alvarado (the victim) attended the party with his date, Lisa Ramirez (Ramirez). The victim had known Ramirez for approximately two weeks. Ramirez knew a few of the people at the party, including Rosa Valle (Rosa), but the victim did not know anyone at the party other than Ramirez. Most people at the party were drinking and appeared intoxicated. Defendant was drinking at the party. Defendant began drinking beer around 9:00 p.m. Defendant drank approximately eight beers during the course of the party.

During the party, at approximately 2:00 or 2:20 a.m., Rosa argued with her boyfriend, David Castrejon (Castrejon). Erika tried to intervene; Rosa and Erika are sisters. Castrejon then began arguing with Erika. The victim intervened, telling Castrejon to “calm down and drink another beer.” Castrejon left, but then returned. The victim’s date, Ramirez, decided to leave the party.

Before the party, the victim had purchased beer, which Ramirez and the victim brought with them. As the victim and Ramirez were leaving the party, Ramirez picked up their remaining beer, in order to take it with them. Vega grabbed the beer from Ramirez’s hands and began yelling because Ramirez was taking the beer. Vega pushed Ramirez to the floor. The victim tried to pull Vega off of Ramirez and told Vega to “stop.” Vega fell to the ground when the victim pushed her.

People at the party crowded around Vega, Ramirez, and the victim. The victim “pulled out a knife,” in order to keep the crowd away. The victim waved the knife around as he walked backwards, toward the front door of the apartment; the victim appeared to be angry. The victim gave Ramirez the keys to his truck and told her to start it. Ramirez exited the apartment, followed by the victim. Erika closed the apartment door behind them because it appeared the victim was trying to reenter the apartment. The victim used his knife to break a window on the apartment’s front door. The victim said to the people inside the apartment, “[You] don’t know who [you]’re messing with.”

Erika opened the apartment door and asked, “‘What did you do?’” Erika exited the apartment along with Vega and defendant. The victim and Ramirez were backing down the walkway. The victim responded, “‘You don’t know who you’re messing with.’” Ramirez walked to the passenger side of the truck. Erika tried to photograph the victim’s truck’s license plate. The victim stood in front of the truck’s rear license plate, to block the photograph. The victim was still holding his knife.

Erika moved to the front of the truck and tried to photograph the front license plate. The victim demanded Erika’s telephone. Erika threw her telephone to the victim. The victim caught the telephone, removed the battery, and “threw it” toward the apartment. It appeared the victim was “trying to get [Erika] with his knife.” At that point, Gustavo Robles (Robles) began fighting with the victim. Robles swung at the victim. The victim used his knife to cut Robles’s finger; Robles’s finger began bleeding.

Vega went to the passenger side of the truck and banged on the window, “trying to get [Ramirez] out.” Ramirez was scared. Defendant “got pissed off cause [the victim] crossed the line.” Defendant went inside the apartment and retrieved a butcher knife. Castrejon then joined Robles in fighting the victim. The victim waved his knife from side to side and moved away from Castrejon and Robles.

Defendant, with the butcher knife in his hand, exited the apartment and joined Castrejon, Robles, and the victim. Defendant told the victim to leave. The victim said, “‘Yes I’m going,’” but moved toward Erika or another person. Castrejon and Robles “grabbed” the victim and were hitting him. While Castrejon and Robles were “holding” the victim, defendant stabbed the victim.

The victim said to defendant, “‘Did you see you fucked me up?’” Defendant responded, “‘Asshole because I’m telling you go, asshole.’” The victim explained, “‘Look you already fucked me up.’” The victim walked or ran down the street, leaving a trail of blood. Defendant, Castrejon and Robles chased after the victim.

Eventually, defendant, Castrejon, and Robles went back to the area outside defendant’s apartment. Castrejon yelled at Rosa to get in the car so they could leave. Defendant said, “he poked him, poked him twice.” Defendant had the knife in his left hand and blood on his left hand and on his shirt. Defendant went inside his apartment. Defendant told Vega “[I] cut him,” and “I don’t want to go to jail, help me.” Vega yelled at defendant asking him, “[W]hat did [you] do?”

At 2:45 a.m., City of Rialto Police Officer Hintz was dispatched to the area down the street from defendant’s apartment. Hintz arrived at 2:50 a.m. and saw the victim on the ground. The victim did not have a pulse and was not breathing. The victim appeared to be deceased. People standing near the victim directed Hintz to defendant’s apartment. Hintz went to defendant’s apartment. Hintz “banged” on the door, but no one responded. Hintz and other officers used a battering ram to forcefully open the door.

Inside the apartment, upstairs, officers encountered another locked door. Officers kicked open the door and found defendant inside the room. Defendant struggled with the officers for a few seconds, but was “tackled” to the floor and restrained. During a police interview, Detective Quinonez asked defendant how many beers he drank. Defendant said he drank approximately eight beers—Bud Light and Modelo.

When discussing how “the whole show started,” defendant explained that Vega “hates” it when someone brings beer to a party and then takes it when s/he leaves. Defendant said he tried to calm Vega saying, “‘Well let her [take it] it’s her beer.’” Defendant told Vega to “move away go over there,” presumably away from the arguing or fighting. Defendant said he and everyone else at the party “were all very scared” and “were all like scared” by the victim’s behavior with the knife.

When describing the fight outside, defendant explained that he repeatedly told the victim to leave. For example, defendant said, “‘Just leave please, we [are] fine.’” When discussing the stabbing, defendant said, “What needed to happen happened.”

Defendant said he could not recall where he stabbed the victim. When the detective asked if the victim was stabbed in the chest or back, defendant said, “I don’t know what happened . . . .” Defendant explained to the detective, “I was pissed . . . well I let myself be go [sic] because of the beers, you follow me.” Defendant believed the victim had “crossed the line,” which caused defendant to be “pissed off.” Defendant explained to the detective, “I got mad because I was like what do you mean they’re fighting, even my wife.” Defendant said he became upset when the victim “start[ed] doing all this shit,” such as breaking the window in the door.

The victim died as a result of a stab wound in his left armpit. The knife plunged six inches into the victim’s chest cavity, severing a large vein and cutting his left lung, which collapsed. The victim’s arm would have been fully extended, away from his body, at the time of the stabbing because the armpit area could not be accessed if the victim’s arm were down at all, next to his body. At the time of his death, the victim’s blood-alcohol level was between 0.08 and 0.12 percent.

B. Procedural Background

On September 29, 2011, defendant was convicted of first degree murder (§ 187, subd. (a)) with the use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and sentenced to 26 years to life in state prison.

On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.), which amended the felony murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f), eff. Jan. 1, 2019.) Senate Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)

On February 13, 2019, defendant filed a petition for resentencing pursuant to section 1170.95.

On April 18, 2019, the People filed an informal response, arguing defendant had failed to set forth a prima facie case for relief as required by section 1170.95, and therefore, no order to show cause should issue and the petition should be denied. In support, the People attached this court’s prior nonpublished opinion from defendant’s prior appeal, case No. E057027.

The trial court heard defendant’s petition on June 27, 2019. At that time, the trial court found as follows: “In reviewing the Court of Appeals opinion, the defendant was actually the one who committed the murder. He stabbed, to death, the victim in this matter. So he is not within the provision of re-sentencing under 11[7]0.95 of the Penal Code. This is not a basis for felony murder, nor was it a basis of natural and probable consequences.” The trial court therefore denied defendant’s section 1170.95 petition, concluding defendant had failed to make a prima facie showing he falls within the provisions of section 1170.95.

On August 5, 2019, defendant filed a timely notice of appeal.

III

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

On September 30, 2018, the Governor signed Senate Bill 1437. “The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)

Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144.) “This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed ‘“for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’ [Citation.]” (In re R.G., at p. 144.) Aider and abettor liability under the doctrine was thus “vicarious in nature.” (People v. Chiu, at p. 164.)

Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer ‘be imputed to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100; Martinez, supra, 31 Cal.App.5th at p. 723.) “Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice,” or—when the felony murder doctrine is at issue—“was not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez, at p. 723.)

Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1); Martinez, at pp. 723-724.) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); Martinez, at pp. 723-724.)

In this case, defendant’s record of conviction demonstrates he is not eligible for relief under the provisions of section 1170.95. Defendant’s record of conviction shows that he was the actual killer. Accordingly, defendant cannot make a prima facie showing he is entitled to relief under section 1170.95.

An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

IV

DISPOSITION

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.