California Court of Appeal Aug 7, 2024 No. E080741Unpublished
Filed 8/7/24 P. v. Nunez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080741
v. (Super.Ct.No. FWV17003089)
RODOLFO NUNEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler,
Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B.
Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Rodolfo Nunez appeals an order denying his Penal Code1
section 1172.6 resentencing petition. The order was made at the prima facie stage of the
proceedings. This is his third petition for resentencing. We affirm.
On July 10, 2017, defendant and a fellow gang member, Alfredo Rodriguez, were
driving by the victim’s house in defendant’s car. The victim yelled at defendant to pick
up some trash that had been thrown from defendant’s car. Defendant refused, got out of
his car, and challenged the victim to a fight. Defendant and the victim began walking
toward each other with their fists up, but defendant took a few steps back and yelled to
Rodriguez to get out a gun. Rodriguez got out of defendant’s car with a gun and shot the
victim multiple times from about 10 feet away. Defendant and Rodriguez got back into
defendant’s car and fled the scene. The victim died from three gunshot wounds to his
leg. (Nunez, supra, E071815.)
PROCEDURAL BACKGROUND
A jury found defendant guilty of first degree premeditated murder (§ 187,
subd. (a)), and it found true that the offense was committed for the benefit of a street
gang (§ 186.22, subd. (b)) and that a principal personally and intentionally discharged a
1 All further statutory references will be to the Penal Code unless otherwise indicated.
2 On August 9, 2023, we took judicial notice of this court’s opinion in defendant’s prior appeal. (People v. Nunez (July 14, 2022, E071815 [nonpub. opn.].) This brief summary of facts is based on the factual background in that opinion.
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firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced
defendant to 25 years to life for the murder and a 25-year firearm enhancement, for a
total term of 50 years to life. It imposed and stayed the 10-year gang enhancement.
Defendant appealed the judgment. In an unpublished opinion, this court affirmed
the judgment as to the first degree premeditated murder conviction and vacated the gang
and firearm enhancements. (Nunez, supra, E071815.) One of the issues defendant raised
on appeal was whether he was entitled to a reversal of his murder conviction under
Senate Bill No. 1437. He argued that he was entitled to relief because the record did not
demonstrate beyond a reasonable doubt that the jury relied on a legally valid theory to
convict him, rather than on the natural and probable consequences theory, which was
now legally invalid. (Nunez, supra, E071815.) This court rejected that claim, finding
that the jury instructions “only allowed [him] to be convicted of first degree premeditated
murder as a direct aider and abettor.” (Id. at pp. 84-85, italics in original.) We concluded
that defendant was not entitled to relief under Senate Bill No. 1437. (Id. at pp. 83-85.)
On July 1, 2019, during the pendency of his appeal, defendant filed a petition for
resentencing under section 1172.6,3 also alleging that he was entitled to relief under
Senate Bill No. 1437. The court appointed counsel, and the People filed an informal
response, arguing that defendant was not entitled to relief since he was convicted of
murder under the theory that he aided and abetted Rodriguez and acted willfully,
3 At the time defendant filed this petition, this provision was found at section 1170.95. It was later renumbered as section 1172.6, without substantive change, effective June 30, 2022. (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2 (Strong).) Unless otherwise noted, this opinion will refer to the provision as section 1172.6.
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deliberately, and with premeditation. The People explained that the jury was proffered
two theories of liability: (1) defendant shared the intent of the shooter (Rodriguez) and
thus could be found guilty of first degree murder; and (2) the natural and probable
consequence of aiding someone brandishing a firearm is that someone could be killed, in
which case defendant could only be convicted of second degree murder. The People
stated that defendant was convicted of first degree murder, which meant the jury believed
he shared the shooter’s intent to kill; in other words, it did not convict him under the
natural and probable consequences theory. The People argued that defendant was
ineligible for relief under section 1172.6 since he was convicted of first degree murder
under the theory that he aided and abetted his codefendant and acted willfully,
deliberately, and with premeditation.
On August 23, 2019, the court denied defendant’s resentencing petition, finding
him ineligible for relief because he was found guilty of first degree murder under the
theory that he aided and abetted his codefendant.
On January 19, 2023, defendant filed a second resentencing petition pursuant to
section 1172.6. On January 25, 2023, the court summarily denied the second petition,
noting that defendant was appointed counsel and his first petition was denied on August
23, 2019, and that he remained ineligible for resentencing.
On February 8, 2023, defendant filed a third resentencing petition under section
1172.6. On February 10, 2023, the court summarily denied defendant’s petition again,
noting that, on two previous occasions, after being appointed an attorney, his
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resentencing petitions were denied. The court further stated that defendant remained
ineligible for resentencing, as “the only theory of liability was aiding and abetting the
commission of a first degree murder.”
Defendant filed a timely notice of appeal from the third petition for resentencing.
DISCUSSION
The Trial Court Properly Denied Defendant’s Third Resentencing Petition
Defendant contends the trial court erred in summarily denying his third
resentencing petition at the prima facie stage, without appointing him counsel and
offering the parties the chance for further briefing. He claims the record of conviction
did not establish he was ineligible for relief as a matter of law, since “the jury was
instructed on the natural and probable consequences theory as to second-degree murder,”
the prosecution relied on that theory to prove he was guilty of murder, and “the jury
could have relied at least in part [relied] on the natural and probable consequences theory
to convict [him] of first-degree murder.” He further claims the denial of his petition
violated his procedural due process rights, and the error was prejudicial since “there is a
reasonable chance” that, at an evidentiary hearing, the prosecution would be unable to
prove beyond a reasonable doubt that he is ineligible for resentencing. The People argue
the third resentencing petition is procedurally barred by the doctrines of collateral
estoppel and the law of the case. We conclude the court properly denied defendant’s
third petition.
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A. Resentencing Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Stats.
2018, ch. 1015 (Senate Bill 1437)) 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. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Senate Bill 1437 substantively amended sections 188 and 189 of the Penal
Code and “added section [1172.6] , which provides a procedure for convicted murderers
who could not be convicted under the law as amended to retroactively seek relief.”
(Ibid.; § 1172.6, subd. (a).)
Section 1172.6 provides a petition for relief must include: “(A) A declaration by
the petitioner that the petitioner is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case number and year of the
petitioner’s conviction. [¶] (C) Whether the petitioner requests the appointment of
counsel.” (§ 1172.6, subd. (b)(1)(A-C).) If the petition contains the required information
and the petitioner has requested the appointment of counsel, the trial court must appoint
counsel. (§ 1172.6, subd. (b)(3).) The court must then allow the prosecutor and the
petitioner to file briefs addressing whether the petitioner has made a prima facie showing
that resentencing relief is appropriate, and then hold a hearing on the issue. (§ 1172.6,
subd. (c).)
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A prima facie showing of entitlement to relief is based on the record of
conviction. (Lewis, supra, 11 Cal.5th at p. 970.) That record includes “documents in the
court file or otherwise part of the record of conviction that are readily ascertainable. . .
[including] the complaint, information or indictment filed against the petitioner; the
verdict form or factual basis documentation for a negotiated plea; and the abstract of
judgment.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, abrogated on
another ground by Lewis, supra, 11 Cal.5th at p. 967.) The record of conviction also
includes jury instructions and appellate opinions. (People v. Harden (2022) 81
Cal.App.5th 45, 56 (Harden); see People v. Williams (2022) 86 Cal.App.5th 1244, 1251-
1257 (Williams); Lewis, supra, 11 Cal.5th at p. 972 [“Appellate opinions . . . are
generally considered to be part of the record of conviction”]; People v. Offley (2020) 48
Cal.App.5th 588, 598-599 [trial court “may consider the entire record of conviction,
including any prior Court of Appeal opinions in the case”].) However, the factual
summary in the underlying appellate opinion may not be used to establish a defendant’s
ineligibility for relief, as a matter of law, at the prima facie stage. (People v. Flores
(2022) 76 Cal.App.5th 974, 987-988.)
B. Collateral Estoppel Bars Relitigation of the Issue of Defendant’s Entitlement
to Relief Under Senate Bill 1437
Collateral estoppel “bars relitigation of issues earlier decided ‘only if several
threshold requirements are fulfilled. First, the issue sought to be precluded from
relitigation must be identical to that decided in a former proceeding. Second, this issue
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must have been actually litigated in the former proceeding. Third, it must have been
necessarily decided in the former proceeding. Fourth, the decision in the former
proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former proceeding.’”
(Strong, supra, 13 Cal.5th at p. 716.)
Collateral estoppel applies here. As the People assert, defendant raises an issue
that was already decided by the court denying his first resentencing petition, as well as by
this court on direct appeal. In his first petition (and his second and third), as well as in
his appeal, defendant claimed he was entitled to relief under Senate Bill 1437 because he
was convicted of murder on a now invalid theory (i.e., the natural and probable
consequences doctrine). The court deciding his first petition determined that the record
of conviction established he was ineligible for relief because the jury found him guilty of
first degree murder as an aider and abettor.
Similarly, in defendant’s prior appeal, we considered the entire record and
determined that his murder conviction was legally valid, even in light of Senate Bill
1437. We concluded his actions and statements at the time of the shooting showed that,
“with premeditation and deliberation, he intended and directed Rodriguez to shoot and
kill [the victim].” (Nunez, supra, E071815.) Specifically, we found the jury was
properly instructed that, in order to convict defendant as an aider and abettor to the first
degree premeditated murder of the victim, it had to find that defendant, knowing that
Rodriguez intended to shoot and kill the victim, “aided, facilitated, promoted,
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encouraged, or instigated Rodriguez to shoot and kill” the victim. (Id. at p. 79.) This
court concluded that “the instructions as a whole prohibited [the] jury from convicting
[defendant] of first degree premeditated murder based on a natural and probable
consequences theory. . . .” (Ibid.) In other words, “the instructions only allowed
[defendant] to be convicted of first degree premeditated murder as a direct aider and
abettor to Rodriguez.” (Id. at pp. 84-85.)4 We accordingly held that “the record shows
beyond a reasonable doubt that [defendant] was not convicted of first degree
premeditated murder based on a natural and probable consequences theory.” (Id. at
p. 85.) Defendant cannot relitigate this issue. “[A] section [1172.6] petition is not a
means by which a [petitioner] can relitigate issues already decided.” (People v.
Coley (2022) 77 Cal.App.5th 539, 549; see People v. Medrano (2024) 98 Cal.App.5th
1254, 1265 (Medrano).)
We note defendant’s claim in his reply brief that the application of collateral
estoppel would not be fair, since his first petition was filed before Senate Bill No. 775
was approved in 2021; thus, the court did not decide his second and third petitions based
on “current law,” since it simply relied on its denial of his first petition. However, the
trial court’s conclusion that defendant was ineligible for relief because he was found
guilty of first degree murder as a direct aider and abettor was not affected by changes
made by Senate Bill No. 775 (e.g., the amendment of section 1172.6, subdivision (a) to
4 We note that “[i]t is well settled that Senate Bill 1437 ‘does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought.’” (Williams, supra, 86 Cal.App.5th at p. 1252.)
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expand eligibility to persons convicted of murder under any “other theory under which
malice is imputed to a person based solely on that person’s participation in a crime.”)
(See People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931-932.)
C. The Law of the Case Doctrine Also Bars Relief
“Under the law of the case doctrine, when an appellate court “‘“states in its
opinion a principle or rule of law necessary to the decision, that principle or rule becomes
the law of the case and must be adhered to throughout [the case’s] subsequent progress,
both in the lower court and upon subsequent appeal . . . .”’” (People v. Barragan (2004)
32 Cal.4th 236, 246; People v. Jurado (2006) 38 Cal.th 72, 94.) The doctrine of the law
of the case promotes finality of litigation and judicial economy by preventing a party
from relitigating questions previously decided by a reviewing court. (People v.
Gray (2005) 37 Cal.4th 168, 196.)
Again, in our prior decision, this court stated that “the instructions as a whole
prohibited [the] jury from convicting [defendant] of first degree premeditated murder
based on a natural and probable consequences theory.” (Nunez, supra, E071815) To the
extent that such statement could be viewed as a “principle or rule of law necessary” to
our determination that defendant was ineligible for relief under Senate Bill 1437, it is the
law of the case. (See Medrano, supra, 98 Cal.App.5th at p. 1264.) Accordingly, it must
be applied in all proceedings in this case, and it bars defendant from relief under section
1172.6.
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Defendant claims the law of the case doctrine is inapplicable at the prima facie
stage of a section 1172.6 proceeding, relying on Harden, supra, 81 Cal.App.5th 45.
There, the court held: “At the prima facie stage of an [1172.6] proceeding, it is of course
impossible to know what the evidence will ultimately be at an evidentiary hearing that
has not yet occurred. We thus agree with Harden that prior to a hearing under section
[1172.6], subdivision (d)(3), the law-of-the-case doctrine cannot conclusively establish
disentitlement [to relief under section 1172.6].” (Id. at p. 50.)
Harden is distinguishable. The issue in that case was whether the evidence was
sufficient to support a finding that the defendant was the actual killer. (Harden, supra, 81
Cal.App.5th at p. 50.) We agree with the conclusion of the court in Medrano, supra, 98
Cal.App.5th at page 1264, that “[t]he holding in Harden should be limited to prohibiting
application of the law of the case doctrine at a prima facie hearing where, as in Harden,
the appellate court’s prior determination concerned the sufficiency of the evidence at the
petitioner’s trial.” Unlike Harden, the issue in defendant’s prior appeal was not the
sufficiency of the evidence. Defendant contends the Harden holding should still apply
here since, “[it] is impossible to know what evidence [he] can present at an evidentiary
hearing that will help prove that he is entitled to resentencing relief.” However, in this
case, the defendant has already at a full jury trial with all of the concomitant rights
provided at trial, including the right to present evidence, and the right to cross-examine
the witnesses for the People. We had the entire record of that prior trial when filing our
prior opinion in the underlying case, including the jury instructions provided at trial.
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With that complete record, we determined that defendant was ineligible for relief under
Senate Bill 1437. We discern nothing that defendant could introduce at a new section
1172.6, subdivision (d) evidentiary hearing, that would affect the validity of the principle
of law enunciated in our 2022 opinion.
Ultimately, we decline to address defendant’s various arguments in this appeal
(i.e., the court erred in finding the verdict rested only on the aiding and abetting theory
without having an evidentiary hearing, the court denied him due process by foreclosing
the rest of the petition process) because we have already ruled on the validity of his
conviction for first degree murder under Senate Bill 1437. Furthermore, our ruling was
consistent with the trial court’s denial of the first petition. To the extent the court may
have erred by summarily denying defendant’s third petition without first appointing
counsel (§ 1172.6, subd. (b)(3)), any error was harmless, since defendant is ineligible for
relief as a matter of law.
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DISPOSITION
The order denying defendant’s third section 1172.6 petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's third resentencing petition, holding that the defendant is ineligible for relief as a matter of law because his murder conviction was based on a direct aiding and abetting theory, and his claims are barred by the doctrines of collateral estoppel and law of the case.
Issues
Whether the trial court erred in summarily denying the defendant's third resentencing petition at the prima facie stage without appointing counsel.
Whether the doctrines of collateral estoppel and law of the case bar the defendant from relitigating his eligibility for resentencing under Penal Code section 1172.6.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the instructions only allowed [defendant] to be convicted of first degree premeditated murder as a direct aider and abettor to Rodriguez.”
“To the extent the court may have erred by summarily denying defendant’s third petition without first appointing counsel (§ 1172.6, subd. (b)(3)), any error was harmless, since defendant is ineligible for relief as a matter of law.”