Filed 10/10/24 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082633
v. (Super.Ct.No. RIF103887)
MARIO ISRAEL SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary Polk, Judge.
Affirmed.
Mario Israel Sanchez, in pro. per.; and Susan S. Bauguess, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant Mario Israel Sanchez appeals from an order of the
Riverside County Superior Court denying his Penal Code section 1172.6 petition for
resentencing.1
BACKGROUND
In September 2023, after joint trial, a jury convicted defendant and his two
codefendants, Francisco Javier Vallejo and Salomon Frank Vallejo, of two counts of
attempted murder (§§ 187, 664, counts 1 & 2) and discharging a firearm from a motor
vehicle (former § 12034, subd. (c), count 3). Defendant was also convicted of being a
felon in possession of a firearm (§ 12021, subd. (a)(1), count 4). (People v. Vallejo et al.,
(June 13, 2005, E034555) [nonpub. opn.] (Vallejo).)
The jury also found true several other allegations, including (i) that, in connection
with the two counts of attempted murder, a principal personally and intentionally
discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); (ii) that the defendants acted
willfully, deliberately, and with premeditation (§ 664, subd. (a)); and (iii) that the
defendants acted in concert because of the victims’ actual or perceived race (a “hate
crime”). (§ 422.75, subd. (c).) Defendant also admitted one prior serious or violent
felony conviction and a prior strike conviction.
We affirmed defendant’s conviction in his appeal from the judgment, but ordered
correction of his sentence and abstract of judgment. As corrected, defendant's sentence
imposed for the attempted murder convictions are as follows: as to count 1, a life term
1 All further statutory references are to the Penal Code.
2 with a minimum parole eligibility date of 30 years, plus a consecutive term of 25 years to
life for the enhancement of causing great bodily injury by personally discharging a gun,
and a three-year consecutive term for the hate crime enhancement; as to count 2, a life
term with a minimum parole eligibility date of 30 years to run currently with the sentence
imposed for count 1, plus stayed terms of 20 years for the principal discharge
enhancement, three years for the hate crime enhancement. (Vallejo, supra, E034555.)
In June 2023, defendant filed a section 1172.6 petition for resentencing in which
he averred in relevant part that he was charged and convicted of attempted murder in a
manner that allowed him to be prosecuted on a theory of imputed malice or under the
natural and probable consequences doctrine, and that he could not presently be convicted
of attempted murder. At the prima facie hearing, counsel for the People represented he
had given a copy of the jury instructions to defendant’s counsel, and that the instructions
given related only to a theory of aiding and abetting, and did not include instructions on
felony murder, natural and probable consequences, or any other theory by which malice
could be imputed to the defendant on account of another’s actions. Defendant’s counsel
agreed with the People’s representation and submitted. The trial court indicated it had
taken a “quickie look” at the instructions, that it agreed with the People and denied
defendant’s petition.
Defendant timely noticed this appeal and we appointed appellate counsel to
represent him.
3 DISCUSSION
On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth a statement of the case but does not present any issues for adjudication.2 Counsel
requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216,
232 to conduct an independent review of the record in appeals from denials of section
1172.6 petitions, and notes an issue considered by counsel, that is, whether the trial court
erred when it denied defendant’s petition at the prima facie stage.
Upon receipt of the opening brief, we notified defendant that (i) his counsel had
filed a brief stating no arguable issues could be found, and (ii) this court is not required to
conduct an independent review of the record but may do so in its discretion. We also
invited defendant to file any supplemental brief deemed necessary.
In response to our invitation, defendant submitted a carefully handwritten
supplemental brief in which he argues he is entitled to relief for several reasons, as
follows:
(i) Defendant argues it is clear that a theory of malice was imputed in his case
because the jury instruction given concerning attempted murder (CALJIC No. 8.66)
contains the word “malice,” and the instruction given with respect to shooting from a
vehicle at a person (CALJIC No. 9.05) contains the word “maliciously.” What defendant
2 Counsel did not include a statement of facts underlying defendant’s conviction on the theory that the facts are not relevant because the court may only deny a petition for resentencing at the prima facie stage only if the defendant is ineligible for relief as a matter of law.
4 overlooks is those instructions do not permit the jury to attribute someone else’s malice to
defendant, that is, the requirement of malice in those instructions is not “imputed.”
(ii) Defendant correctly notes that, in response to an inquiry by the jury during
deliberations following his trial, the trial court mentioned CALJIC No. 3.02, which is the
natural and probable consequences jury instruction. He argues the mention of the
instruction is not only a trial court error but also “guarantees” him the benefits of that
instruction with respect to his petition for resentencing. He is mistaken.
The court stated:
“The Court has received an inquiry from the jury that I observe you
all have. It’s not very specific. It looks like it’s a potential
question is the way it’s worded. I rather suspect that they’re
struggling with how this is interpreted with instructions 3.00, 3.01
and 3.02, but they don’t ask that question.”
It appears the court’s reference to “3.02” was either a misstatement or a
typographical error. The jury’s question did not mention a jury instruction and, in all
events, the inquiry did not relate to the attempted murder charges. Rather, the jury
request was for “a verbal clarification on count 3 regarding the shooting at a person from
a vehicle charge. We are unclear on how to apply the law on this particular count.” The
court, with the agreement of the parties, responded, ‘“Please refer to instruction 9.05,”’
which is the CALJIC instruction for shooting from a vehicle.3
3 We note defendant had initially requested CALJIC No. 3.02, but the request was withdrawn and the instruction was not given to the jury.
5 (iii) Defendant points to People v.
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 10/10/24 P. v. Sanchez 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, E082633
v. (Super.Ct.No. RIF103887)
MARIO ISRAEL SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary Polk, Judge.
Affirmed.
Mario Israel Sanchez, in pro. per.; and Susan S. Bauguess, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant Mario Israel Sanchez appeals from an order of the
Riverside County Superior Court denying his Penal Code section 1172.6 petition for
resentencing.1
BACKGROUND
In September 2023, after joint trial, a jury convicted defendant and his two
codefendants, Francisco Javier Vallejo and Salomon Frank Vallejo, of two counts of
attempted murder (§§ 187, 664, counts 1 & 2) and discharging a firearm from a motor
vehicle (former § 12034, subd. (c), count 3). Defendant was also convicted of being a
felon in possession of a firearm (§ 12021, subd. (a)(1), count 4). (People v. Vallejo et al.,
(June 13, 2005, E034555) [nonpub. opn.] (Vallejo).)
The jury also found true several other allegations, including (i) that, in connection
with the two counts of attempted murder, a principal personally and intentionally
discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); (ii) that the defendants acted
willfully, deliberately, and with premeditation (§ 664, subd. (a)); and (iii) that the
defendants acted in concert because of the victims’ actual or perceived race (a “hate
crime”). (§ 422.75, subd. (c).) Defendant also admitted one prior serious or violent
felony conviction and a prior strike conviction.
We affirmed defendant’s conviction in his appeal from the judgment, but ordered
correction of his sentence and abstract of judgment. As corrected, defendant's sentence
imposed for the attempted murder convictions are as follows: as to count 1, a life term
1 All further statutory references are to the Penal Code.
2 with a minimum parole eligibility date of 30 years, plus a consecutive term of 25 years to
life for the enhancement of causing great bodily injury by personally discharging a gun,
and a three-year consecutive term for the hate crime enhancement; as to count 2, a life
term with a minimum parole eligibility date of 30 years to run currently with the sentence
imposed for count 1, plus stayed terms of 20 years for the principal discharge
enhancement, three years for the hate crime enhancement. (Vallejo, supra, E034555.)
In June 2023, defendant filed a section 1172.6 petition for resentencing in which
he averred in relevant part that he was charged and convicted of attempted murder in a
manner that allowed him to be prosecuted on a theory of imputed malice or under the
natural and probable consequences doctrine, and that he could not presently be convicted
of attempted murder. At the prima facie hearing, counsel for the People represented he
had given a copy of the jury instructions to defendant’s counsel, and that the instructions
given related only to a theory of aiding and abetting, and did not include instructions on
felony murder, natural and probable consequences, or any other theory by which malice
could be imputed to the defendant on account of another’s actions. Defendant’s counsel
agreed with the People’s representation and submitted. The trial court indicated it had
taken a “quickie look” at the instructions, that it agreed with the People and denied
defendant’s petition.
Defendant timely noticed this appeal and we appointed appellate counsel to
represent him.
3 DISCUSSION
On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth a statement of the case but does not present any issues for adjudication.2 Counsel
requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216,
232 to conduct an independent review of the record in appeals from denials of section
1172.6 petitions, and notes an issue considered by counsel, that is, whether the trial court
erred when it denied defendant’s petition at the prima facie stage.
Upon receipt of the opening brief, we notified defendant that (i) his counsel had
filed a brief stating no arguable issues could be found, and (ii) this court is not required to
conduct an independent review of the record but may do so in its discretion. We also
invited defendant to file any supplemental brief deemed necessary.
In response to our invitation, defendant submitted a carefully handwritten
supplemental brief in which he argues he is entitled to relief for several reasons, as
follows:
(i) Defendant argues it is clear that a theory of malice was imputed in his case
because the jury instruction given concerning attempted murder (CALJIC No. 8.66)
contains the word “malice,” and the instruction given with respect to shooting from a
vehicle at a person (CALJIC No. 9.05) contains the word “maliciously.” What defendant
2 Counsel did not include a statement of facts underlying defendant’s conviction on the theory that the facts are not relevant because the court may only deny a petition for resentencing at the prima facie stage only if the defendant is ineligible for relief as a matter of law.
4 overlooks is those instructions do not permit the jury to attribute someone else’s malice to
defendant, that is, the requirement of malice in those instructions is not “imputed.”
(ii) Defendant correctly notes that, in response to an inquiry by the jury during
deliberations following his trial, the trial court mentioned CALJIC No. 3.02, which is the
natural and probable consequences jury instruction. He argues the mention of the
instruction is not only a trial court error but also “guarantees” him the benefits of that
instruction with respect to his petition for resentencing. He is mistaken.
The court stated:
“The Court has received an inquiry from the jury that I observe you
all have. It’s not very specific. It looks like it’s a potential
question is the way it’s worded. I rather suspect that they’re
struggling with how this is interpreted with instructions 3.00, 3.01
and 3.02, but they don’t ask that question.”
It appears the court’s reference to “3.02” was either a misstatement or a
typographical error. The jury’s question did not mention a jury instruction and, in all
events, the inquiry did not relate to the attempted murder charges. Rather, the jury
request was for “a verbal clarification on count 3 regarding the shooting at a person from
a vehicle charge. We are unclear on how to apply the law on this particular count.” The
court, with the agreement of the parties, responded, ‘“Please refer to instruction 9.05,”’
which is the CALJIC instruction for shooting from a vehicle.3
3 We note defendant had initially requested CALJIC No. 3.02, but the request was withdrawn and the instruction was not given to the jury.
5 (iii) Defendant points to People v. Underwood (2024) 99 Cal.App.5th 303
(Underwood) in support of his claim that, “per the amended law,” the evidence is
insufficient to prove he harbored murderous intentions towards the victim.
The facts in defendant’s case are readily and decisively distinguishable from
Underwood. There, a jury found Underwood guilty of first degree murder and robbery
based upon his participation in a 1987 spontaneous mugging of a pedestrian during
which an accomplice stabbed and killed the victim with a knife. (Underwood, supra, 99
Cal.App.5th at pp. 306-307.) Underwood’s resentencing petition made pursuant to
former section 1170.95 (now § 1172.6) was denied by the trial court after an evidentiary
hearing. (Underwood, at pp. 306-307, 311.) The Court of Appeal reversed, finding
insufficient evidence to support the trial court’s conclusion that Underwood intended to
kill the victim or that he acted with reckless indifference to human life. (Id., at p. 321.)
Contrary to the trial court’s finding, the accomplice’s ordering the victim to “‘give me the
wallet or I’ll kill you’” was a threat inherent in robberies and did not establish an intent to
kill. (Id., at p. 314.) Moreover, Underwood was unarmed and there was no evidence he
knew the accomplice was armed, the robbery was a very brief interaction, and it appeared
Underwood’s intent was simply to overpower the victim and take his wallet. (Id., at
pp. 314-321.)
Here, on the other hand, the crimes leading to defendant’s conviction were not
spontaneous random events that took place without his knowledge that guns and shooting
would be involved. He and his codefendants were active gang members acting for the
benefit of a criminal street gang who were found to have discharged a gun out of a motor
6 vehicle at persons targeted because of their actual or perceived race. The shootings were
part of a pattern of shootings taking place in May 2002 between the defendants’ gang
(East Side Riva, a Hispanic gang) and members of a rival gang, 1200 Blocc Crips,
described as an African-American-based street gang. Moreover, the incidents forming
the basis of defendant’s convictions for attempted murder occurred approximately 45
minutes apart, which underscores the conclusion that defendant was aware of and
intentionally participating in the activities leading to his conviction for attempted murder.
Defendant is correct that the record contains a statement (made by the prosecutor)
at the time of sentencing that defendant was the only one of the three defendants who
expressed remorse about what he had done. Defendant was also the only one that
cooperated with law enforcement and helped them locate the firearms. While we agree it
was appropriate for the People to request the trial court to consider defendant’s remorse
and cooperation when deciding whether to impose a midterm instead of a upper term for
the hate crime enhancement, and running the resulting sentence concurrently instead of
consecutively, defendant's remorse and cooperation are not relevant considerations with
respect to the issue whether defendant is entitled to section 1172.6 resentencing relief.
(iv) In the course of his insufficient-evidence-of-intent-under-Underwood
argument, defendant claims he could not have been the shooter in the attempted murder
set forth in count 2. The issue whether there was substantial evidence to support
defendant’s conviction on that count was raised and decided in his appeal from the
judgment, and may not be relitigated in this appeal.
7 (v) Defendant posits that he would have prevailed on his petition were it not for
the failure of his trial counsel to contact him for the purpose of planning a strategic
defense or counsel’s failure to address the issues concerning jury instructions he raises in
his supplemental brief. As suggested by our discussion of the issues raised by defendant
set forth in paragraphs (i) through (iv), ante, even if counsel had argued those points at
the prima facie hearing on defendant’s petition, defendant would not have prevailed.
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J. CODRINGTON J.