People v. Guerrero CA4/2

Opinion

Filed 5/3/22 P. v. Guerrero 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078570

v. (Super.Ct.No. RIF123125)

JUAN ANTONIO GUERRERO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Juan Antonio Guerrero, in pro. per., and Jeffrey S. Kross, under appointment by

the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant, Juan Antonio Guerrero, filed a petition for resentencing

pursuant to Penal Code section 1170.95,1 which the superior court denied. After defense

counsel filed a notice of appeal, this court appointed counsel to represent defendant.

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 facts and a

statement of the case. Defendant was offered the opportunity to file a personal

supplemental brief, which he has done. Defendant contends that the amendments to

section 1170.95 (Stats. 2021, ch. 551, § 2) enacted by Senate Bill No. 775 (2020-2021

Reg. Sess.), provide that all persons convicted of murder under any theory in which

malice is imputed to the defendant solely based on their participation in a crime,

including direct aiding and abetting, are eligible for relief. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND2

On April 10, 2005, Anthony Lopez was traveling on Mission Boulevard in his

1988 Cadillac and saw a friend, Richard Gutierrez, riding his bicycle near Mission

Boulevard. Lopez stopped near Lee’s Market, and Gutierrez came over to the driver’s

side window of Lopez’s car to talk to him. A few minutes later, a car stopped quickly

near them, and a man, later identified as defendant’s son, Edwardo Guerrero, got out of

1 All further statutory references are to the Penal Code unless otherwise indicated.

2On the court’s own motion, we take judicial notice of the nonpublished opinions from defendant’s appeal from the judgment and his appeal from his previous section 1170.95 petition. (See People v. Guerrero (Feb. 22, 2008, E041870) [nonpub. opn.] (Guerrero I) & People v. Guerrero (Aug. 24, 2021, E075851) [nonpub. opn.] (Guerrero II).) (Evid. Code, § 459.)

2 the driver’s seat of the vehicle. Edwardo approached Gutierrez and asked him, “‘What

the fuck is your problem?’” Edwardo then produced a handgun from his waistband and

shot Gutierrez once in the arm. (Guerrero I, supra, E041870.)

Gutierrez ran toward Lee’s Market, and Edwardo chased after him and fired more

shots at him. Gutierrez entered the market and tried to hold the glass door shut, but

Edwardo fired a shot that shattered the glass door. Edwardo then entered the market and

fired multiple shots at Gutierrez, changing the magazine in the gun at one point.

Gutierrez was hit multiple times and died at the scene. (Guerrero I, supra, E041870.)

After Edwardo entered the market, Lopez looked over at the car in which Edwardo

had arrived and saw defendant sitting in the driver’s seat. Lopez believed that defendant

had slid over from the passenger seat to the driver’s seat. While Edwardo was in the

store, defendant warned Lopez that he better not leave. When Edwardo came out of the

store and jumped into the passenger side of the car, Lopez, fearing that he might be the

next victim, quickly pulled out of the parking lot. Defendant and Edwardo chased Lopez

for a considerable distance at a high speed before Lopez lost them. (Guerrero I, supra,

E041870.)

On April 12, 2005, police arrested defendant and Edwardo. Defendant’s defense

was that he had been mistakenly identified as the driver of the getaway car.

Alternatively, he claimed that if he was in the vehicle, he did not know his son Edwardo

intended to shoot Gutierrez and that he only aided his son in escaping from the area after

the offense had been committed. (Guerrero I, supra, E041870.)

3 In support of the latter defense, defendant’s counsel pointed to Lopez’ testimony

that defendant was in the passenger seat when they arrived at the market and argued that

this indicated that he did not know what his son intended at that time. Defendant’s

counsel also noted that there was no evidence that he gave any aid to Edwardo, other than

driving him away from the scene after the offense had been committed. (Guerrero I,

supra, E041870.)

On September 27, 2006, a jury found defendant guilty of first degree murder.

(§ 187, subd. (a).) The superior court sentenced defendant to 25 years to life.

(Guerrero I, supra, E041870; Guerrero II, supra, E075851.)

Defendant appealed his conviction contending the superior court prejudicially

erred and violated his constitutional rights when it refused to instruct the jury on the

elements of accessory after the fact and that his counsel was ineffective when counsel

failed to request a pinpoint instruction concerning his defense theory that he was only an

accessory after the fact. (Guerrero I, supra, E041870.)

In rejecting defendant’s contentions on appeal, this court noted that the jury was

properly instructed on aiding and abetting. The jury was informed that an aider and

abettor must have knowledge of the perpetrator’s intent to commit the crime, that the

defendant intended to aid and abet the perpetrator in committing the crime before or

during the commission of the crime, and that the defendant’s words or conduct did in fact

aid and abet the perpetrator’s commission of the crime. (Guerrero I, supra, E041870.)

4 On January 2, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95. (Guerrero II, supra, E075851.) The People filed a response based, in

large part, on the purported unconstitutionality of section 1170.95. However, the People

also alleged that defendant was not entitled to relief because he directly aided and abetted

the killing with the intent to kill or was a major participant acting with reckless

indifference to human life. In a reply, defendant’s counsel argued that the evidence

showed that defendant was not the actual killer and was convicted on a natural and

probable consequences theory. (Guerrero II, supra, E075851.)

At the hearing on the petition, the superior court observed, “A review of the record

in this case shows it was a two defendant case. [Defendant] was convicted of first-degree

murder, sentenced to 25 years to life. The jury instructions do not include felony murder

or natural and probable [consequences] instructions. The 2008 appellate opinion in

imaging shows he’s not the shooter, but he was the getaway driver, and the theory was

direct aiding and abetting.” Defense counsel submitted, and the court summarily denied

the petition. Defense counsel lodged an objection for the record. (Guerrero II, supra,

E075851.)

Defendant appealed contending the court erred in summarily denying his petition

prior to issuing an order to show cause. We held that the court properly denied

defendant’s petition. The court’s review of the jury instructions expressly refuted the

allegation in defendant’s petition that he had been convicted under the felony-murder

theory or murder under the natural and probable consequences doctrine. The superior

court correctly concluded that the theory upon which defendant was convicted was

5 “direct aiding and abetting.” Thus, defendant had failed to make a prima facie case for

relief because he was per se ineligible for section 1170.95 relief. (Guerrero II, supra,

On November 10, 2021, defendant filed a second form petition for resentencing

pursuant to section 1170.95 as amended by Senate Bill No. 775. Defendant again

contended he had been convicted pursuant to the felony-murder rule or natural and

probable consequences doctrine. On January 21, 2022, defendant filed a third form

petition for resentencing.

At a hearing on February 18, 2022, the People noted, “This is a brand-new

petition, but this petitioner previously filed.” Defendant “apparently is filing invoking

the SB 775 change, but that has no implications for him because he was convicted of

murder. Your Honor previously denied the petition. The Court of Appeal affirmed it

because of the lack of instructions supporting a summary denial.”

Defense counsel observed that the court had previously, “at the prima facie

stage . . . reviewed the opinion and also the transcript of the jury instructions and

determined that there were no felony murder instructions or natural and probable

consequence instructions that were given to the jury; so the Court denied the 1170.95

petition under SB 1437. It was affirmed on appeal, and then [defendant] filed it under

SB 775.”

The court ruled, “This petition is denied with prejudice to the extent that I can.

It’s already been denied and that denial has been affirmed by the Court of Appeals.”

6 II. DISCUSSION

Defendant contends that the amendments to section 1170.95, enacted by Senate

Bill No. 775, provide that all persons convicted of murder under any theory in which

malice is imputed to the defendant solely based on their participation in a crime,

including direct aiding and abetting, are eligible for relief. We disagree.

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] was enacted to ‘amend the felony

murder rule and the natural and probable consequences doctrine, as it relates to murder,

to ensure that murder liability is not imposed on a person who is 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. Cortes (2022)

75 Cal.App.5th 198, 203.) Senate Bill No. 775 “modifies section 1170.95 to clarify ‘that

persons who were convicted of attempted murder or manslaughter under a theory of

felony murder and the natural probable consequences doctrine are permitted the same

relief as those persons convicted of murder under the same theories.’” (Ibid.)

“Pursuant to amended section 1170.95, an offender must file a petition in the

sentencing court averring that: ‘(1) A complaint, information, or indictment was filed

against the petitioner 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[;] [¶]

(2) The petitioner was convicted of murder, attempted murder, or manslaughter following

a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been

7 convicted of murder or attempted murder[;] [¶] [and] (3) The petitioner could not

presently be convicted of murder or attempted murder because of changes to Section 188

or 189 made effective January 1, 2019.” (Cortes, supra, 75 Cal.App.5th at pp. 203-204.)

“If a petition fails to comply” with these requirements “‘the court may deny the petition

without prejudice to the filing of another petition.’” (People v. Lewis (2021) 11 Cal.5th

952, 960 (Lewis).)3

“A denial at [the prima facie] stage is appropriate only if the record of conviction

demonstrates that ‘the petitioner is ineligible for relief as a matter of law.’ [Citations.]

This is a purely legal conclusion, which we review de novo.” (People v. Murillo (2020)

54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; accord, People v.

Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142.)

“The record of conviction will necessarily inform the trial court’s prima facie

inquiry under section 1170.95, allowing the court to distinguish petitions with potential

merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) “‘[I]f

the record, including the court’s own documents, “contain[s] facts refuting the allegations

made in the petition,” then “the court is justified in making a credibility determination

adverse to the petitioner.”’” (Ibid.)

3 The Legislature’s amendment of section 1170.95, effective January 1, 2022 “codifies certain holdings in Lewis . . . .” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2.)

8 Here, the record of conviction refuted the allegations in defendant’s petition that

he had been convicted pursuant to the felony-murder rule or natural and probable

consequences doctrine. The absence of instructions on the felony-murder rule or the

natural and probable consequences doctrine means that the jury could only have

convicted defendant as a direct aider and abettor of the killing acting with malice

aforethought. Therefore, defendant was ineligible for section 1170.95 relief as a matter

of law. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596 [“The change” in the law

“did not, however, alter the law regarding the criminal liability of direct aiders and

abettors of murder because such persons necessarily ‘know and share the murderous

intent of the actual perpetrator.’”].)

Indeed, defendant expressly concedes that he was convicted as a direct aider and

abettor. Thus, defendant’s petitions were facially insufficient. Therefore, the court

properly denied and dismissed defendant’s petitions.

“[T]he direct aider and abettor must have the same mental state as the actual

perpetrator of the charged crime: the direct aider and abettor must act with knowledge

that the act is dangerous to human life and with conscious disregard for human life.”

(People v. Glukhoy (Apr. 18, 2022, C084169) ___ Cal.App.5th ___ [2022 Cal.App.

Lexis 322, *22-*23].) Thus, there is no imputation of malice to a direct aider and abettor

based solely on his participation in a crime. The superior court properly denied

defendant’s petition.

9 III. DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

SLOUGH J.

MENETREZ J.