People v. Huizar CA2/2

Filed 7/29/24 P. v. Huizar CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B332670

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA005019) v.

FRANK JOE HUIZAR,

Defendant and Appellant.

THE COURT: Frank Joe Huizar appeals the order of the superior court denying his postjudgment petition for resentencing under Penal Code1 section 1172.6. (Former § 1170.95, Stats. 2022, ch. 58, § 10.) We appointed counsel to represent Huizar on appeal. After examination of the record, counsel filed an opening brief raising no issues and requesting that we exercise our discretion to independently review the record for arguable issues pursuant

1 Undesignated statutory references are to the Penal Code.

to People v. Delgadillo (2022) 14 Cal.5th 216, 228–232 (Delgadillo). BACKGROUND Huizar was convicted by jury of one count of first degree murder (§ 187, subd. (a)), with true findings on the allegations that during the commission of the offense Huizar personally used and discharged a firearm from an occupied motor vehicle causing great bodily injury and death (§§ 12022.5, 12022.55). The trial court sentenced Huizar to an aggregate term of 30 years to life. On December 6, 2022, Huizar filed a section 1172.6 petition for resentencing. The superior court appointed counsel, and the district attorney filed a response to the petition. Defense counsel did not file a reply. In its response, the prosecution argued that because the jury was not instructed on felony murder, the natural and probable consequences doctrine, or any other theory of culpability based on imputed malice, Huizar’s murder conviction did not rest on any of these theories, and he is ineligible for relief as a matter of law. Rather, the jury in this case “was instructed on only one theory of guilt for first-degree murder: willful, deliberate and premeditated murder which required proof beyond a reasonable doubt of [Huizar’s] intent to kill (See CALJIC No. 8.20).” Indeed, the jury made clear in its verdict that Huizar was the actual shooter who personally inflicted great bodily injury and death. The People further argued that the aiding and abetting instructions permitted conviction for murder only if the jury found “beyond a reasonable doubt that the aider and abettor ‘acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ (People v. Beeman (1984) 35 Cal.3d 547, 560; see also CALJIC No. 3.01).”