California Court of Appeal Jun 14, 2023 No. E079398Unpublished
Filed 6/14/23 P. v. Salcido 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079398
v. (Super.Ct.No. INF062246)
FRANCISCO SALCIDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed.
Cynthia M. Jones, 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, A. Natasha Cortina, Lynne G.
McGinnis and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff
and Respondent.
1
Defendant and appellant Francisco Salcido appeals from the trial court’s order
denying his petition for resentencing under Penal Code1 section 1170.95.2 For the
reasons set forth post, we affirm the court’s order.
On April 19, 2011, a jury found defendant guilty of unlawfully carrying a loaded
firearm while an active participant in a criminal street gang under section 12031,
subdivision (a)(2)(c) (count 2), and unlawfully participating in a criminal street gang
under section 186.22, subdivision (a) (count 3). The jury hung on attempted murder on a
peace officer (count 1), and assault with a deadly weapon on a peace officer (count 4).
After a second trial on the hung counts, on October 13, 2011, a jury convicted
defendant of attempted premeditated and deliberate murder on a peace officer under
sections 664 and 187, subdivision (a) (count 1), and assault with a deadly weapon on a
peace officer under section 245, subdivision (d)(1) (count 4). Moreover, the jury found
true that in the commission of counts 1 and 4, defendant personally used a firearm under
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 While this appeal was pending, the Legislature amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 in this opinion, even though 1170.95 was the operative designation at the time of the underlying proceedings.
3 On December 23, 2022, we granted the People’s request for judicial notice filed on November 14, 2022. The order states: “[T]his court TAKES JUDICIAL NOTICE of the record of appellant’s prior appeal in case No. E055709.”
2
sections 12022.5, subdivision (a) and 1192.7, subdivision (c)(8); and that defendant
personally discharged a firearm under sections 12022.53, subdivision (c) and 1192.7,
subdivision (c)(8).) The jury also found true that defendant committed count 1 for the
benefit of, at the direction of, or in association with a criminal street gang under section
186.22, subdivision (b)(1)(c)).
In a bifurcated hearing on January 13, 2012, defendant admitted a strike allegation
under sections 667, subdivisions (c) and (e)(1). Thereafter, the trial court sentenced
defendant to prison for a total term of 56 years to life.
After defendant appealed, this court reversed the gang participation conviction
(count 3). In all other respects, we affirmed the judgment. (People v. Salcido (Jul 30,
2014, E055709) [nonpub. opn.] (Salcido).)
On March 21, 2022, defendant filed a petition for resentencing under section
1172.6. On July 15, 2022, the trial court denied defendant’s petition without issuing an
order to show cause.
On July 18, 2022, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY4
“A. Prosecution
“1. The shooting
“On May 26, 2008, [Desert Hot Springs Police Sergeant Robert] Ritchie
[(Ritchie)] attended a morning briefing at the police station. He was informed at the
4 The facts are taken from the unpublished opinion in Salcido, case No. E055709.
3
briefing that an officer-involved shooting had occurred on Friday, May 23. The suspect
in the shooting was a [West Side Locos (WDL)] gang member named Anthony Paez.
Paez had shot at California Highway Patrol officers. Ritchie had been involved in two
other incidents with Paez. During the first incident Paez ran from Ritchie, and in the
second incident, Paez had been in possession of a shotgun.
“Around 3:00 p.m., Ritchie was on patrol in the area of Third Street in Desert Hot
Springs. He was in full uniform and was driving a marked patrol car. His service
weapon was a nine-millimeter firearm that he had loaded in the morning. As he was
driving on Third Street, he observed a dark blue BMW. He recognized the car as one that
he had seen Paez driving during a previous contact.
“Ritchie requested a records check of the car while he followed it. There was a
female driver and [a] male passenger. The male passenger was moving around in his seat
and then sat low in the seat. The passenger had a bald head which was consistent with
Paez.
“Ritchie confirmed the BMW was the same one Paez had previously been seen
driving. He followed the car and radioed for additional units because he believed that
Paez was armed and dangerous. Ritchie did not immediately activate his lights and siren
because he did not want to stop the car without assistance. He radioed to other units that
they should come with lights and sirens activated.
“Suddenly, the car stopped near First and Cactus Streets. Ritchie stopped his car
in the middle of the road and got out of his car. Ritchie stood behind the open driver’s
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side door of his car and pulled out his gun. He pointed his weapon at the passenger’s side
door of the BMW but did not issue any commands.
“Defendant exited the passenger’s side door. Ritchie immediately recognized it
was not Paez in the car. He contacted police dispatch to advise the other responding
officers that it was not Paez in the car. Ritchie relaxed but continued to train his weapon
at the BMW. He dropped his gun two to three inches. Ritchie gave no commands to
defendant because he had nothing to say to him. He also was talking to dispatch and did
not have time to issue commands.
“Defendant faced away from Ritchie and his hands were not visible. Initially,
Ritchie did not see a gun. Defendant closed the passenger’s side door and the BMW
drove away. Ritchie was going to wait for other units to arrive and then detain defendant.
“Defendant walked three to four steps. He suddenly turned to his left and fired
first at Ritchie. Defendant continued to shoot. Ritchie shot back at defendant and
emptied his entire magazine; his full magazine contained 17 bullets. Ritchie described
the incident as a ‘full on gun battle.’ Ritchie crouched behind his car door. Bullets hit the
push bar in the front of the car and the bottom right corner of the driver’s side door.
Defendant ran into a nearby empty field and could not be found.
“The recordings from Ritchie’s calls to dispatch were played for the jury. He
relayed that he thought Paez was in the BMW. He also stated that the BMW was pulling
to the curb at Cactus and First Streets. Ritchie stated that it was not Paez, and then the
provides, “Notwithstanding subdivision (c), every person, not the actual killer, who, with
reckless indifference to human life and as a major participant, aids, abets, counsels,
commands, induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in the death of some person
or persons, and who is found guilty of murder in the first degree therefor, shall be
punished by death or imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.”
SB 1437 also created a process through which convicted persons can seek
resentencing if they could no longer be convicted under the reformed homicide law.
(§ 1172.6, subd. (a).) Section 1172.6, subdivision (a), provides in part, “A person
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining counts.” (Italics added.)
Section 1172.6, subdivision (c), provides, “Within 60 days after service of a
petition . . . , the prosecutor shall file and serve a response. The petitioner may file and
serve a reply within 30 days after the prosecutor’s response is served. These deadlines
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shall be extended for good cause. After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause. If the court
declines to make an order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.” If the petitioner makes a prima facie showing he is eligible for
relief under section 1172.6, the court shall hold an evidentiary hearing. (§ 1172.6, subds.
(c) & (d)(1).) At this hearing, either party may present new evidence and the prosecution
bears the burden of proving the petitioner could still be convicted beyond a reasonable
doubt. (§ 1172.6, subd. (d)(3).)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the California Supreme Court
found that former section 1170.95 entitled a defendant to have appointment of counsel
after filing a proper petition and was entitled to have the opportunity for counsel to file
briefing in response to any opposition filed by the People before the trial court makes its
prima facie determination. (Lewis, at pp. 961-972.) As noted ante, this has been codified
in section 1172.6, subdivision (c).
Thereafter, the California legislature passed Senate Bill No. 775, effective January
1, 2022. Senate Bill No. 775 amended former section 1170.95 to expand its scope to
those convicted of “attempted murder under the natural and probable consequences
doctrine.” (§ 1172.6, subd. (a).) The bill also codified the holdings of Lewis regarding a
petitioner’s right to counsel and the standard for determining the existence of a prima
facie case.
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If a section 1172.6 petition contains all the required information, including “[a]
declaration by the petitioner that the petitioner is eligible for relief,” the trial court must
appoint counsel if requested (§ 1172.6, subds. (b)(1)(A) & (b)(3)); the prosecutor must
“file and serve a response” to the petition, to which the petitioner may reply (id., subd.
(c); and “[a]fter the parties have had an opportunity to submit briefings, the court shall
hold a hearing to determine whether the petitioner has made a prima facie case for relief.”
(Ibid.)
However, a trial court’s failure to comply with these statutory requirements is
harmless if the record of conviction establishes that a defendant is ineligible for section
1172.6 relief as a matter of law. (See Lewis, supra, 11 Cal.5th at p. 973 [trial court’s
statutory omissions at the first step process under section 1172.6 are not state or federal
constitutional violations]; see also People v. Hurtado (2023) 89 Cal.App.5th 887, 893
(Hurtado).) “ ‘Typically, when an “error is purely one of state law, the Watson harmless
error test applies.” ’ ” (Id. at p. 892, quoting Lewis, at p. 973.)
2. THE TRIAL COURT’S ERROR WAS HARMLESS
Defendant contends that “the lower court erred in denying appellant’s petition for
resentencing pursuant to . . . (now section 1172.6) without reviewing any briefing
presented by either party or the record of conviction.”
We agree with defendant that the trial court failed to comply with the statutory
requirements under section 1172.6. Notwithstanding the trial court’s failure, we find the
error harmless. Even if the court complied with the statutory requirements, there is no
reasonable possibility that the court would have issued an order to show cause because
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defendant was ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 892;
see also Hurtado, supra, 89 Cal.App.5th at p. 893.)
In this case, after defendant filed his pro. per. petition for resentencing, the trial
court appointed counsel and scheduled a date for a status conference. The People did not
file a response to the petition.
At the hearing on the petition on July 15, 2022, the prosecutor and defense counsel
appeared. The prosecutor stated as follows:
“We’ve examined the opinion [from the underlying appeal, issued by this court]
and the instructions that are both in imaging. It appears the defendant acted alone when
firing a gun at a peace officer. He was found guilty by the jury of premeditated attempted
murder on a peace officer. The charge in and of itself is not rendering the defendant
ineligible because it was an attempt, not a completed murder on a police officer.
Regardless, none of the jury instructions [that] would render [defendant] eligible were
given. Nothing on aiding and abetting, natural and probable consequences, or felony
murder.” The prosecutor then asked the court to deny defendant’s petition.
Defense counsel did not object. Instead, counsel stated: “I did review the record
and jury instructions. I’m in agreement that [defendant] did not—they were not
instructed on aiding and abetting, natural and probable consequences or felony murder.”
The trial court summarily denied defendant’s petition.
In addition to statements made by the prosecutor and defense counsel at the
hearing on defendant’s petition, the record shows that defendant alone attempted to
murder the peace officer. Moreover, there is nothing in the record to indicate that the
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jury was instructed with felony murder, aiding and abetting, or the natural and probable
consequences instructions.
“ ‘ “[I]f the record . . . ‘contain[s] facts refuting the allegations made in the
petition,’ then ‘the court is justified in making a credibility determination adverse to the
petitioner.’ ” ’ [Citation.] ‘The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section [1172.6], allowing the court to distinguish
petitions with potential merit from those that are clearly meritless.’ ” (Hurtado, supra, 89
Cal.App.5th at p. 892, quoting Lewis, supra, 11 Cal.5th at p. 971.) Hence, “[a]s the
attempted murderer, [defendant] is ‘ineligible for relief’ as ‘a matter of law,’ and ‘there is
no reasonable probability [defendant] would have obtained a more favorable result if’ ”
the trial court had conducted an evidentiary hearing; “consequently, the trial court’s
errors were ‘harmless.’ ” (Hurtado, supra, 89 Cal.App.5th at p. 893, quoting People v.
Mancilla (2021) 67 Cal.App.5th 854, 864.).)
Here, because defendant acted alone and the jury was not given the pertinent jury
instructions on felony murder, aiding and abetting, or under a natural and probable
consequences theory, defendant is ineligible for relief under section 1172.6 as a matter of
law. (People v. Whitson (2022) 79 Cal.App.5th 22, 34-36.) Therefore, even if the trial
court had reviewed the briefing from the parties or the underlying record, there is no
reasonable probability that an order to show cause would have been issued because the
record of conviction conclusively demonstrates that defendant is ineligible for relief.
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DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court's failure to follow statutory procedures under Penal Code section 1172.6 was harmless error because the record of conviction conclusively established the defendant's ineligibility for relief as a matter of law.
Issues
Whether the trial court erred in denying a petition for resentencing under Penal Code section 1172.6 without reviewing briefing or the record of conviction.
Whether the defendant is eligible for relief under Penal Code section 1172.6 as a matter of law.