California Court of Appeal May 18, 2023 No. E079683Unpublished
Filed 5/18/23 P. v. Limon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079683
v. (Super.Ct.No. RIF118583)
DANIEL MARTINEZ LIMON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge.
(Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Alan L. Amman, Assistant Attorney General, and Kristen Kinnaird Chenelia,
Deputy Attorney General, for Plaintiff and Respondent.
1
Defendant and appellant, Daniel Martinez Limon, filed a petition for resentencing
pursuant to Penal Code former section 1170.95,1 which the superior court denied. On
appeal, defendant contends the court erred in denying his petition without holding an
On July 25, 2004, defendant’s codefendant, Jesus Sanchez, drove his car alongside
another vehicle containing six individuals. Defendant, the passenger in Sanchez’s car,
demanded to know where the individuals in the vehicle were from. One of the victims
responded, “I ain’t from nowhere, bro’. . . . I don’t gang bang.” Defendant responded,
“This is South Side Fontana Locotes,” and “What the fuck [are] you looking at?”
As Sanchez blocked the victims’ vehicle with his car, defendant jumped out and
fired a shotgun at the vehicle’s front windshield, shattering it and striking three victims.
Defendant later admitted aiming at the victims’ vehicle and firing the shotgun. He
expressed surprise that he injured three people because he was trying to hit the front of
the truck.
1 All further statutory references are to the Penal Code. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
2 By order dated January 12, 2023, we granted respondent’s request to take judicial notice of this court’s opinion from defendant’s appeal from the judgment. (People v. Limon (Oct. 13, 2006, E040000) [nonpub. opn.] (Limon).) We derive our factual recitation from Limon.
2
On October 19, 2005, a jury convicted defendant of eight criminal counts: three
counts (counts 1, 3, and 4) of attempted murder (§§ 187, subd. (a) and 664); one count
(count 2) of engaging in gang crime (§ 186.22, subd. (a)); three counts (counts 5, 6, and
7) of assault with a firearm (§ 245, subd. (a)(2)); and one count (count 8) of shooting at
an occupied car. (§ 246.) Defendant was acquitted on count 9 for shooting from a car.
(§ 12034, subd. (d).) Additionally, the jury found true the charged enhancements for
personally discharging a firearm, causing great bodily injury (§ 12022.53, subd. (d));
personally using a firearm. (§ 12022.5 subd. (a)); and committing all crimes, except
count 2, to benefit a criminal street gang. (§ 186.22, subd. (a).) The jury also found true
the deliberation enhancement (§ 664, subd. (a)(1)) on count 1 but not on counts 3 and 4.
The court pronounced a collective sentence of 40 years to life.3
Defendant appealed. This court affirmed the judgment.
On April 13, 2022, defendant filed a form petition for resentencing pursuant to
former section 1170.95 alleging he had been convicted under a theory in which malice
was imputed to him solely on his participation in a crime and that he could not now be so
convicted. At a hearing on August 12, 2022, at which defendant was represented by
counsel, the People asked that the court deny the petition: “The opinion and instructions
3 The jury apparently convicted Sanchez of the same substantive counts. However, that same month, the court granted Sanchez a mistrial based on juror misconduct. In September 2009, Sanchez pled guilty to the attempted murder of one of the victims (§§ 664/187, count 1) and the gang-related assault with a firearm as to another victim (§ 245, subd. (a)(2), count 3.) Additionally, Sanchez admitted his commission of the count 1 offense was gang related (§ 186.22), and that a principal personally discharged a firearm (§ 12022.53, subds. (c) and (e)). (People v. Sanchez (May 21, 2010, E049529) [nonpub. opn.].)
3
are in imaging, and I have provided them to counsel. The petitioner admits shotgunning
the victim’s car through the windshield, injuring three of the occupants. Nothing
regarding natural and probable consequences or felony murder were contained in the
instructions.”
Defense counsel responded, “I did review the jury instructions, and while there is
no natural and probable consequences or felony murder instructions, the jury was
instructed on aiding and abetting, and I don’t believe it will be appropriate at this time to
dismiss the petition, and I ask to move on to the prima facie stage.”
The People replied, “Aiding and abetting in and of itself does not qualify millions
of cases involving aiding and abetting, but unless those two specific theories that are no
longer viable were instructed to the defendant’s jury, he is not eligible. So aiding and
abetting does not constitute a grounds to have a prima facie hearing or go past the prima
facie stage.” The court denied the petition.
II. DISCUSSION
Defendant contends the court erred in summarily denying his petition because the
jury instructions, as given, could have allowed the jury to convict him without a finding
of any malice: “The jury could have found that codefendant Sanchez committed the
initial ‘direct but ineffectual act’ by swerving his vehicle in front of the victims’ vehicle
with the intent to instigate a homicidal confrontation. The jury could have further found
that Sanchez’s act of cutting off the victims’ vehicle incited appellant to aid and abet in
4
the assault by getting out of the car and discharging his shotgun at the front of the
vehicle, albeit without forming an intent to kill.” We disagree.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent ‘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. Strong (2022) 13 Cal.5th 698, 707-708.)
“Senate Bill 1437 also created a special procedural mechanism for those convicted under
the former law to seek retroactive relief under the law as amended. [Citations.] Under
newly enacted section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met [citation], including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . . relief, the
prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
5
credibility grounds without first conducting an evidentiary hearing.’ ” (People v. Lewis
(2021) 11 Cal.5th 952, 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) “[T]he ‘prima facie
bar was intentionally and correctly set very low.’ ” (Ibid.)
Where “the record of conviction does not conclusively negate the possibility that
the jury found” the defendant guilty under a theory which imputed malice to him by the
actions of the actual perpetrator, “an evidentiary hearing is required.” (People v. Langi
(2022) 73 Cal.App.5th 972, 984 (Langi).) On the other hand, where the record of
conviction reflects that the defendant was not convicted under any theory of imputed
malice, no evidentiary hearing is required. (People v. Patton (2023) 89 Cal.App.5th 649,
657 [“As the sole and actual perpetrator of the attempted murder of” the victim, a
defendant “is ineligible for resentencing as a matter of law.”]; People v. Soto (2020) 51