California Court of Appeal Jul 31, 2023 No. E078581Unpublished
Filed 7/31/23 P. Oates 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078581
v. (Super.Ct.No. FWV018708)
JIMMIE LEE OATES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Marilee Marshall, 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, Paige B. Hazard, Anthony Da
Silva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Jimmie Lee Oates appeals from the trial court’s denial of
his petition for resentencing under Penal Code section 1170.95 (now section 1172.61).
For the reasons set forth post, we affirm the court’s order.
On October 4, 1999, an information charged defendant—and codefendants
Anthony Joseph Garcia and Octavio Munoz Benavides2—with attempted willful,
deliberate, premedicated murder of Gustavo Barrera (count 1), Victor Mendoza (count 3),
Walter Ramirez (count 4), Manuel Castrejon (count 5), and Jose Gonzalez (count 6), in
violation of sections 664 and 187; aggravated mayhem on Gustavo Barrera under section
205 (count 2); and possession of a firearm by a felon under section 12021, subdivision
(a)(1) (count 8).3 With respect to count 1, the information alleged that defendant
personally inflicted great bodily injury on the victim, who was not an accomplice to the
offense, under section 12022.7, subdivision (a). Moreover, with respect to counts 1
through 6, the information alleged that defendant, with intent to do so, inflicted great
bodily injury and death on Barrera as a result of discharging a firearm from a motor
1 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.
2 Neither codefendant is a party to this appeal.
3 Count 8 was alleged only against defendant. Count 7, evading an officer under Vehicle Code section 2800.2, subdivision (a), was alleged only against Garcia.
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vehicle under section 12022.55. Additionally, with respect to counts 1 through 7, the
information also alleged that a principal intentionally discharged and personally used a
firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d). The
information further alleged that all counts were committed for the benefit of, at the
direction of, and in association with a criminal street gang under section 186.22,
subdivision (b)(4). Furthermore, the information alleged that defendant suffered a prior
conviction for violating section 215, subdivision (a).
“Following a jury trial, defendant was convicted of five counts of attempted
premeditated murder, as to each of the five victims (counts 1, and 3 through 6) (§ 187,
subd. (a)); mayhem (count 2), as to Barrera (§ 205); and possession of a firearm by a
felon (count 8) (§ 12021, subd. (a)(1)). The jury also found true the enhancement
allegations that a principal personally used and discharged a firearm, which caused great
bodily injury (§ 12022.53, subds. (b), (c), & (d)), and that the offenses were committed to
benefit a criminal street gang (§ 186.22, subd. (b)(4)). Defendant admitted the truth of
the allegation that he had previously suffered a prior strike (§ 667, subds. (b)-(i),
§ 1170.12). The jury deadlocked on, and the court dismissed, the enhancement
allegations that defendant personally inflicted great bodily injury under section 12022.7,
subdivision (a) and discharged a firearm from a motor vehicle, causing great bodily
injury (§ 12022.55).
“In 2001, the court sentenced defendant to an aggregate indeterminate prison term
of 85 years to life plus a determinate term of 20 years (2001 sentence). Defendant
appealed his convictions and sentence. This court affirmed the lower court judgment but
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modified the sentence by striking multiple section 12022.53, subdivision (d)
enhancements. The California Supreme Court reversed solely as to the enhancements
imposed under section 12022.53, subdivision (d), and remanded the case back to this
court. (People v. Oates (2004) 32 Cal.4th 1048, 1069.) In accordance with the Supreme
Court decision, this court issued a second opinion (People v. Oates (Aug. 31, 2004)
E029354), opn. ordered nonpub., review dism. Apr. 19, 2006, S128181) in which we
remanded the case to the trial court for resentencing consistent with the Supreme Court's
decision. [Citation.]
“Defendant petitioned for Supreme Court review of our second decision.
Meanwhile, the trial court prematurely resentenced defendant while the case was before
the Supreme Court. The trial court imposed consecutive, as opposed to concurrent
sentences, as to counts 3, 4, and 6. Defendant appealed the resentencing and this court
issued a third opinion reversing the 2001 sentence on the ground the trial court lacked
jurisdiction to resentence defendant because the case was pending before the Supreme
Court. [Citation.]
“On April 19, 2006, the Supreme Court dismissed defendant’s petition seeking
review of our second decision, in which we remanded the case to the trial court solely for
resentencing in accordance with the Supreme Court’s decision in People v. Oates, supra,
32 Cal.4th at page 1069. [Citation.]
“After remand to the trial court for resentencing, the trial court resentenced
defendant on February 21, 2007. . . . Rather than imposing concurrent sentences as to
counts 3, 4, and 6, as the trial court had originally done, the trial court imposed
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consecutive sentences to these counts. As a consequence, defendant’s sentence was
substantially increased from an aggregate indeterminate term of 8 years to life, to an
aggregate indeterminate term of 195 years to life.” We affirmed the conviction but
modified the sentence to run counts 2, 4, and 6 concurrently.4
On January 10, 2022, defendant filed a petition for resentencing under section
1172.6. After appointing counsel and reviewing the Supreme Court’s decision, the trial
court denied the petition. The court found that defendant was ineligible as a matter of
law. The court noted that “defendant was found guilty by a jury of five counts of
attempted premeditated murder, one for each person in the group at which he fired, it
says. And he was also convicted of or found true of all the associated 12022.53
enhancement allegations.” The court went on and stated that defendant “was not
convicted under a natural and probable consequence doctrine for attempted murder; but
instead was convicted of attempted murder with premeditation, deliberation based upon
his actual conduct and his intent to kill. [¶] So the petition will be denied.”
On February 28, 2022, defendant filed a timely notice of appeal.
On June 6, 2022, we granted defendant’s unopposed request for judicial notice.
We then took judicial notice of our published opinion in defendant’s prior appeal in case
No. E029354, and our unpublished opinions in defendant’s prior appeals in case Nos.
E037177 and E042645. Moreover, on July 7, 2022, we reserved our ruling on (1) the
People’s request for judicial notice filed on June 27, 2022, requesting that we take
4 People v. Oates (Nov. 29, 2007, E042645) [nonpub. opn.] 2007 WL 4201256, at [1]-2.)
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judicial notice of the record in appeal on case No. E0293564; and (2) defendant’s
opposition to the request for judicial notice filed on July 6, 2022. As will be discussed
post, we grant the People’s request for judicial notice of the record in case No. E0293564.
After the parties submitted their briefs, on November 30, 2022, we issued an order
directing the parties to file supplemental briefs “addressing the relevance of the Supreme
Court opinion People v. Strong (2022) 13 Cal.5th 698 [(Strong)], to the issues raised on
appeal.” Both parties filed supplemental briefs.
Thereafter, on December 28, 2022, defendant filed a request for judicial notice
asking that this court take judicial notice of the legislative history of “Senate Rules
Committee, Office of Senate Floor Analyses, Bill No. SB 775 dated September 1, 2021.”
On January 3, 2023, the People filed an opposition to the motion for judicial notice, and
defendant filed a reply to the opposition on January 5, 2023. We hereby grant
defendant’s request and take judicial notice of SB 775’s legislative history
B. FACTUAL HISTORY5
“This case involves an attempt to kill rival gang members during a drive-by
shooting. During the afternoon of September 11, 1999, Gustavo Barrera, Victor
Mendoza, and Walter Ramirez, members of the North Side Ontario gang (NSO), entered
East Side Ontario gang (ESO) territory. Mendoza got into a fistfight with an individual
associated with the ESO, defendant’s gang. After the fight, the NSO members visited
NSO member, Manuel Castrejon. Around 10:00 p.m., while Mendoza, Barrera,
5 The facts are taken from the unpublished opinion in case No. E042645.
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Castrejon, Ramirez, and Jose Gonzalez socialized outside Castrejon’s house, defendant
and two companions drove by, fired two shots at the five NSO gang members, and sped
off. Gustavo Barrera was shot in the leg, resulting in its amputation. No one else was
injured. Shortly thereafter, California Highway Patrol officers pulled over defendant and
his companions and arrested them.”
DISCUSSION
A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE
FOR RELIEF UNDER SECTION 1172.6
On appeal, defendant contends that the trial court erred in denying his petition for
resentencing on his murder conviction without conducting an evidentiary hearing. For
the reasons set forth post, we affirm the court’s denial of defendant’s petition.
Senate Bill 1437 (SB 1437) became effective January 1, 2019. “[SB 1437]
modified California’s felony murder rule and natural and probable consequences doctrine
to ensure murder liability is not imposed on someone unless they were the actual killer,
acted with the intent to kill, or acted as a major participant in the underlying felony and
with reckless indifference to human life.” (People v. Cervantes (2020) 46 Cal.App.5th
213, 220.) As relevant here, SB 1437 added section 189, subdivision (e), which provides,
“A participant in the perpetration or attempted perpetration of [qualifying felonies] in
which a death occurs is liable for murder only if one of the following is proven: [¶] (1)
The person was the actual killer. [¶] (2) The person was not the actual killer, but, with
the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree. [¶] (3) The
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person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189,