People v. Vallejo CA4/2

Opinion

Filed 10/17/24 P. v. Vallejo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083186

v. (Super.Ct.No. RIF103887)

SALOMON FRANK VALLEJO, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Helios Hernandez, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

Salomon Frank Vallejo, Jr., in pro. per.; and Robert L. Hernandez, under

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

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Salomon Frank Vallejo, Jr., appeals from an order of the

Riverside County Superior Court denying his Penal Code section 1172.6 petition for

resentencing.1

BACKGROUND2

In September 2023, after joint trial, a jury convicted defendant and his two

codefendants, Mario Israel Sanchez and Francisco Javier Vallejo (defendant’s brother) 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).

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).)

As to count one, the trial court sentenced defendant to life with the possibility of

parole, plus a consecutive term of 25 years to life for the enhancement of causing great

1 Defendant’s petition was made pursuant to section 1170.95 petition. That section was later renumbered as section 1172.6 with no change in text (Stats. 2022, ch. 58, § 10) and we refer to the provision using the new number. All further statutory references are to the Penal Code.

2 We have taken judicial notice on our own motion of the record in defendant’s appeal from the judgment (P. v. Vallejo et al. (June 13, E034555) [nonpub. opn.] (Vallejo I)) and of our opinion in his appeal from the first denial of his 1172.6 petition (P. v. Vallejo et al. (Mar. 4, 2022, E074099) [nonpub. opn.] (Vallejo II).)

2 bodily injury by personally discharging a gun, and a consecutive term of four years (the

upper term) for the hate crime. A 20-year term for discharge of a firearm by a principal

was stayed under section 654.

As to count 2, defendant received a consecutive life term, a consecutive 20-year

term for the principal’s discharge of a firearm, and a consecutive one-year term for the

hate crime enhancement. The court imposed but stayed unspecified terms for count 3 and

all the gang enhancements.

Defendant appealed. (Vallejo I, supra, E034555.) We ordered correction of his

abstract the judgment and otherwise affirmed the judgment against him. (Ibid.)

In 2019, following the enactment of section 1172.6, defendant filed a petition for

resentencing. The trial court dismissed the petition, and we affirmed, because the statute

did not at the time apply to convictions for attempted murder. Defendant’s petition for

review was granted and held by the California Supreme Court. While review was

pending, the Legislature passed Senate Bill No. 775, amending section 1172.6 to make it

applicable to persons convicted of attempted murder and manslaughter. The Supreme

Court transferred defendant’s case back to this court, we vacated our opinion and

reversed the trial court’s order, and remanded with instructions to conduct a new hearing

on defendant’s petition. (Vallejo II, supra, E074099.)

In January 2024, the trial court held a prima facie hearing on defendant’s 1172.6

petition. Counsel for the People represented that the instructions given to the jury 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

3 imputed to the defendant on account of another’s actions. Defendant’s counsel submitted

the matter, commenting only that he had reviewed all of the jury instructions, and that the

People’s representation was accurate. 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.

DISCUSSION

On appeal, defendant’s appointed appellate counsel filed an opening brief that sets

forth statements of the case and facts, but does not present any issues for adjudication.

Counsel requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th

216, 232 to conduct an independent review of the record. He notes he considered the

issue 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 handwritten supplemental

brief, which he subsequently amended. In his amended brief, he argues he did not have

the requisite mens rea to be convicted on a theory of aiding and abetting. Along the way,

he claims that the jury instruction set forth in CALJIC No. 3.01 does not accurately set

forth the law of aiding and abetting, that he was not at the scene, and a jury would not

4 hold him liable now as evidenced by the jurors at his trial not being in agreement until the

judge advised them.

Those issues were addressed in our opinion in defendant’s appeal from the

judgment, which has long since become final.

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.