California Court of Appeal Sep 28, 2023 No. E079617Unpublished
Filed 9/28/23 P. v. Becerra CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079617
v. (Super.Ct.No. SWF1201058)
FERNANDO BECERRA, 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.
Sandra Gillies, 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, Christopher P. Beesley and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 2015, on direct appeal, we affirmed Fernando Becerra’s conviction of first
degree murder, as well as the jury’s true findings on alleged gang and firearms
enhancements and special circumstances. (People v. Becerra (Nov. 2, 2015, E061398)
[nonpub. opn.] [2015 Cal.App.Unpub.Lexis 7927] (Becerra I). In 2020, we affirmed the 1 trial court’s denial of his petition for resentencing under former Penal Code section
1170.95, since renumbered as section 1172.6. (People v. Becerra (July 10, 2020,
E072936) [nonpub. opn.] [2020 Cal.App.Unpub.Lexis 4343] (Becerra II).) He now
appeals from the denial of a second petition for resentencing, arguing recent changes to
section 1172.6 and case authority interpreting those changes mean he might be entitled to
relief.
The People concede, and we agree, that the trial court’s reasoning for its denial of
Becerra’s petition was incorrect. Nevertheless, any error was harmless because the jury 2 instructions used in Becerra’s trial demonstrate that he is ineligible for relief. The jury
could not have returned the verdict it did without finding that Becerra acted with intent to
kill, which means he is not entitled to resentencing under section 1172.6.
1 Undesignated statutory citations are to the Penal Code. 2 We grant the People’s request that we judicially notice the entire record on appeal of Becerra I. We previously granted the People’s separate request that we take judicial notice of our opinions in Becerra I and Becerra II. Appellate courts routinely take judicial notice of the records in their own cases under Evidence Code sections 452, subdivision (d), and 459. (See, e.g., People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1.) Moreover, in Becerra II, Becerra himself moved to augment the record of that appeal with the record of Becerra I. We construed Becerra’s motion to augment as a request for judicial notice and granted it. Becerra’s opposition to the People’s substantively identical request is not well taken.
2
BACKGROUND
In 2012, Becerra was charged with first degree murder (§ 187, subd. (a)). The
information alleged the special circumstances that the murder was gang motivated
(§ 190.2, subd. (a)(22)) and committed by firing a gun from a car (§ 190.2, subd. (a)(21)).
The information also alleged a gang enhancement (§ 186.22, subd. (b)) and a vicarious
firearm enhancement (§ 12022.53, subds. (d), (e)). The jury found Becerra guilty as
charged, and the trial court sentenced him to life without the possibility of parole for the
murder, plus an additional 25 years to life for the firearms enhancement.
Becerra appealed, and this court affirmed his judgment. (Becerra I, supra,
E061398.) Our opinion noted Becerra “was prosecuted solely as an aider and abettor to
the murder.” (Ibid.) As such, the trial court had erred by instructing the jury that Becerra
could be found guilty under a natural and probable consequences theory. (Ibid.; see
People v. Chiu (2014) 59 Cal.4th 155, 158 [aider and abettor may not be convicted of
first degree premeditated murder under natural and probable consequences doctrine].)
Nevertheless, we found the error harmless because the “jury was not misled into basing
its finding on the natural and probable consequences doctrine or on a theory of reckless
indifference.” (Becerra I, supra, E061398.) We reasoned “[t]he record show[ed] the
verdict was based on a valid legal ground,” since the verdict included the jury’s “special
finding that [Becerra] murdered [the victim] by aiding and abetting in a shooting from a
vehicle ‘with the intent to inflict death.’” (Ibid. [quoting jury verdict form for § 190.2,
subd. (a)(21) special circumstance].) We also commented “the evidence that defendant
3
aided and abetted first degree murder was overwhelming,” so “[a]ny instructional error
was harmless beyond a reasonable doubt.” (Ibid.)
In Becerra II, we affirmed the trial court’s denial of Becerra’s petition for
resentencing under former section 1170.95. (Becerra II, supra, E072936.) Our
conclusion was based on Becerra I’s analysis that the jury’s verdict showed it found
Becerra acted with intent to kill, so the murder conviction did not rest on the natural and
probable consequences doctrine or a theory of reckless indifference. (Becerra II, supra,
E072936, quoting Becerra I, supra, E061398.)
In 2022, Becerra filed a second petition for resentencing. During the hearing on
the motion, the prosecutor commented that the jury instructions and “opinion”—
apparently referring to Becerra I—were “both in imaging and provided to counsel.” The
prosecutor’s argument focused on the underlying facts as described in Becerra I, and our
comment there that the evidence Becerra aided and abetted first degree murder was
“‘overwhelming.’” The defense argued that, “because of the issue with the natural and
probable consequences [instruction] having been given, unless the Court finds the
decision of the Court of Appeals binding, I would ask that the petition not be dismissed at
this time.” The trial court inquired “Why wouldn’t I find it binding,” to which the
defense responded that “this is a different proceeding” and “the 1437-1170.95 issues
were not before the Court” in Becerra I. The trial court denied the petition without
issuing an order to show cause, commenting as follows: “Based upon representations of
4
[the prosecutor]—and defense counsel’s comments are noted—the Court believes that the
petition should be denied at this time.”
DISCUSSION
A. Applicable law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats.
2018, ch. 1015; S.B. 1437) amended the state’s murder statutes to curtail the use of two
theories of vicarious liability for murder. These theories are grounded in situations where
the defendant intended to commit some crime other than murder, yet a death resulted.
The theories are known as felony murder and the natural and probable consequences
doctrine. At the same time, S.B. 1437 also created a statutory procedure for convicted
defendants to benefit retroactively from these changes to the law, which is now codified
as section 1172.6. This procedure allows eligible defendants to have convictions based
on an abrogated theory of vicarious liability vacated and be resentenced. (§ 1172.6, subd.
(a).)
Once the court determines a section 1172.6 petition contains the required
information, the court must “hold a hearing to determine whether the petitioner has made
a prima facie case for relief.” (§ 1172.6, subd. (c); see also id, subd. (b)(1)(c) [petition
requirements].) In making this determination, the court may rely on the record of
conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis).) However, the
prima facie inquiry is limited and, at this stage of the proceedings, the court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’”
5
(Id. at p. 972.) If the court determines the petitioner has made a prima facie showing, the
court must issue an order to show cause and hold an evidentiary hearing to determine
whether the petitioner is entitled to relief. (§ 1172.6, subds. (c), (d).) “If the court
declines to make an order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.” (Id., subd. (c).)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 551; S.B. 775) expanded the petition process enacted by S.B. 1437 to include
not only individuals convicted under a felony murder or natural and probable
consequences theory of murder, but also any “other theory under which malice is imputed
to a person based solely on that person’s participation in a crime.” (§ 1172.6, subd. (a).)
These changes also allow a defendant convicted of “attempted murder under the natural
and probable consequences doctrine, or manslaughter” to file a petition for relief. (Ibid.)
S.B. 775 also clarified the evidentiary rules applicable to consideration of a section
1172.6 petition. (§ 1172.6, subd. (d)(3).) As relevant here, under current law, the court
“may . . . consider the procedural history of the case recited in any prior appellate
opinion.” (Ibid.) This provision has been interpreted to mean a court may not rely on a
prior appellate opinion for its recitation of the facts underlying the murder conviction.
(People v. Flores (2022) 76 Cal.App.5th 974, 988 (Flores).) This restriction applies not
only at an evidentiary hearing after issuance of an order to show cause, but also at the
prima facie stage. (Ibid. [“If such evidence may not be considered at an evidentiary
hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how
6
such evidence could establish, as a matter of law, a petitioner’s ineligibility for
resentencing at the prima facie stage”].)
To demonstrate prejudice from the denial of a section 1172.6 petition at the prima
facie stage, the petitioner must show it is reasonably probable that, absent error, his or her
petition would not have been summarily denied without an evidentiary hearing. (Lewis,
supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Analysis
The trial court erred to the extent, in denying Becerra’s section 1172.6 petition, it
relied on Becerra I—or, more precisely, the prosecutor’s characterization of Becerra I—
for more than that opinion’s recitation of the procedural history of the case. (§ 1172.6,
subd. (d)(3); Flores, supra, 76 Cal.App.5th at p. 988.) It is also questionable whether the
trial court’s comments satisfied the requirement of a “statement fully setting forth its
reasons” for denying Becerra’s petition. (§ 1172.6, subd. (c).)
Nevertheless, Becerra’s record of conviction demonstrates the trial court was
correct to deny his section 1172.6 petition at the prima facie stage because the jury’s
verdict was based on a ground that remains valid under current law. The jury was
instructed that the drive-by shooting and gang special circumstances “include as an
element an intent to kill.” (See CALJIC No. 8.80.1.) The special circumstances
instruction further specified that “If you find that a defendant was not the actual killer of
a human being . . . you cannot find the special circumstance to be true . . . unless you are
satisfied beyond a reasonable doubt that such defendant with the intent to kill [aided,]
any actor in the commission of the murder in the first degree . . . .” (CALJIC No. 8.80.1,
italics added.) The verdict form used by the jury for the section 190.2, subdivision
(a)(21) special circumstance says it found “the murder of [the victim] was committed by
the defendant, FERNANDO BECERRA, and that the murder was intentional and
perpetrated by means of discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent to inflict death.” Under
these instructions, the jury necessarily found Becerra personally acted with intent to kill,
which remains a viable theory of murder for both actual killers and aiders and abettors.
Thus, there is no possibility Becerra might be entitled to relief under section 1172.6, and
his petition was properly denied at the prima facie stage.
Becerra’s reliance on People v. Langi (2022) 73 Cal.App.5th 972 in support of a
different conclusion is misplaced. Langi addressed an ambiguity in standard aiding and
abetting instructions that is potentially significant in the context of a defendant convicted
or possibly convicted of aiding and abetting second degree murder. (Id. at pp. 980-983.)
Based on that ambiguity, the Langi court found that the “record of conviction does not
conclusively negate the possibility that the jury found appellant guilty of second degree
murder by imputing to him the implied malice of the actual killer, without finding that he
personally acted ‘with knowledge of the danger to, and with conscious disregard for,
human life.’” (Id. at p. 984.) Thus, the court reversed the summary denial of Langi’s
petition and remanded for an evidentiary hearing to determine whether, under the new
8
language added by S.B. 775, he was entitled to relief because malice was imputed to him
based solely on his participation in a crime. (Langi, supra, at p. 984.) There is no similar
ambiguity in Becerra’s record of conviction, which conclusively establishes his jury
found that he personally acted with intent to kill.
DISPOSITION
We affirm the order denying Becerra’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1172.6 because the jury's verdict and special circumstance findings conclusively established that he acted with the intent to kill. Although the trial court erred in its reasoning for denying the petition, the error was harmless as the record of conviction precludes relief as a matter of law.
Issues
Whether the trial court erred in denying a petition for resentencing under Penal Code section 1172.6 at the prima facie stage.
Whether the jury's special circumstance findings regarding intent to kill preclude relief under Penal Code section 1172.6.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The jury could not have returned the verdict it did without finding that Becerra acted with intent to kill, which means he is not entitled to resentencing under section 1172.6.”
“Under these instructions, the jury necessarily found Becerra personally acted with intent to kill, which remains a viable theory of murder for both actual killers and aiders and abettors.”