People v. Brizuela CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN317396
- Trial judge
- Richard R. Monroy
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Truc T. Do, Buchanan
Analysis
The trial court denied Brizuela's petition for resentencing under Penal Code section 1170.95, finding he was ineligible as a matter of law because the record showed he was convicted as a direct aider and abettor or actual killer, not under a felony murder or natural and probable consequences theory. The Court of Appeal affirmed the denial, concluding that the jury's conviction for first-degree murder precluded reliance on the natural and probable consequences instruction, which would have resulted in a second-degree murder conviction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found Brizuela was ineligible for relief as a matter of law. The court found the record demonstrated Brizuela was tried as a direct aider and abettor or as the actual killer. The jury was not instructed on felony murder or natural and probable consequences. The court denied the petition by written order.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when filing a no-merit brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify potential issues and the court to review the record independently in no-merit appeals.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court denied Kevin Brizuela's Penal Code section 1170.95 resentencing petition at the prima facie stage, finding him ineligible as a matter of law because the record showed he was tried as the actual killer or a direct aider and abettor rather than under felony murder or natural and probable consequences. On appeal, counsel filed a Wende brief, Brizuela filed a supplemental brief arguing the jury was instructed on natural and probable consequences (former CALCRIM 403), and the Court of Appeal affirmed, reasoning that because that instruction limited any natural-and-probable-consequences murder verdict to second degree, the first degree murder verdicts necessarily rested on direct aiding and abetting.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition at the prima facie stage on the ground that Brizuela was ineligible for relief as a matter of law because the jury was not instructed on felony murder or natural and probable consequences“In this case, the jury convicted Brizuela of first degree murder, which would have been based on a direct aider and abettor theory.” | unclear | correct | agree with court The appellate court's logic is sound as to the murder counts: former CALCRIM 403 expressly told the jury that a murder verdict under the natural and probable consequences theory had to be fixed at second degree (consistent with People v. Chiu), so first degree verdicts show the jury did not rely on that theory, and drawing that conclusion from the instructions and verdicts is permissible record-of-conviction review under People v. Lewis without factfinding. However, the trial court's stated basis that the jury 'was not instructed on ... natural and probable consequences' was inaccurate on this opinion's own account, the appellate court cited no section 1170.95 authority, and it did not address the attempted murder counts, for which the instruction contained no degree limitation and which became eligible under SB 775 before this opinion issued. |
Trial court's reliance on the factual recitation in the prior appellate opinion (stating Brizuela was a direct aider and abettor) in finding him ineligible“He contends the court erred in relying on facts set forth in the previous opinion of this court where we stated that Brizuela was a direct aider and abettor.” | unclear | not reached | unsure The appellate court did not directly answer this argument; it instead rested affirmance on the jury instructions and verdicts, which independently establish ineligibility on the murder counts. Under Lewis, a prior appellate opinion's factual summary has limited value at the prima facie stage, so the argument had some force, but any error in relying on it was rendered immaterial by the instruction-and-verdict analysis. The court should have said so explicitly. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel who finds no arguable issues may file a brief asking the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-issue brief should identify issues considered that might arguably support the appeal.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the section 1170.95 prima facie stage the court may consult the record of conviction, including jury instructions and verdicts, but may not engage in factfinding or weigh evidence, and prior appellate opinions have limited probative value on factual questions; the court should accept the petitioner's allegations as true unless the record refutes them as a matter of law.
- missed: People v. Chiu (2014) 59 Cal.4th 155 — An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine; liability under that theory is limited to second degree murder, which is why former CALCRIM 403 required the jury to fix the degree at second degree.
The appellate opinion: sound with gaps — The result is defensible because the first degree murder verdicts, read against former CALCRIM 403's second-degree limitation, show as a matter of law that the jury did not convict on a natural and probable consequences theory, which is proper record-of-conviction analysis. But the opinion cites no section 1170.95 authority (notably Lewis or Chiu), does not acknowledge that the trial court's stated rationale that no NPC instruction was given was inaccurate, does not answer the argument about reliance on the prior appellate opinion, and does not address the attempted murder counts, where the instruction had no degree limitation and SB 775 had extended relief to attempted murder before this opinion was filed.
How this analysis was made · dispute it
record incompleteOpinion
Filed 5/27/22 P. v. Brizuela CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079531
Plaintiff and Respondent, v. (Super. Ct. No. SCN317396)
KEVIN BRIZUELA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Kevin Brizuela, in pro. per.; and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted Kevin Brizuela of two counts of first degree murder (Pen. Code,1 § 187, subd. (a)) and two counts of attempted murder (§§ 187, subd. (a) & 664). Gang enhancement under section 186.22 and 1 All further statutory references are to the Penal Code unless otherwise specified. firearm enhancements under section 12022.53 were found true as to each of the counts. The trial court sentenced Brizuela to an indeterminate term of 100 years to life. Brizuela appealed and this court affirmed the convictions. However, the court conditionally reversed the judgment and directed the trial court to conduct a transfer hearing under Welfare and Institutions Code section 707. (People v. Brizuela (Oct. 11, 2018, D071364) [nonpub. opn.].) On remand, the trial court held a transfer hearing and denied transfer to juvenile court. The court also denied motions to strike the firearm enhancements. Brizuela, again, appealed and this court affirmed the judgment in an unpublished opinion. (People v. Brizuela (July 19, 2021, D078376) [nonpub. opn.].) In July 2021, Brizuela filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found Brizuela was ineligible for relief as a matter of law. The court found the record demonstrated Brizuela was tried as a direct aider and abettor or as the actual killer. The jury was not instructed on felony murder or natural and probable consequences. The court denied the petition by written order. Brizuela filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Brizuela the opportunity to file his own brief on appeal, and he has responded with a supplemental brief. We will discuss his submission later in this opinion.
2 STATEMENT OF FACTS The facts of the offenses are set forth in our prior opinion. (People v. Brizuela, supra, D071364.) Appellate counsel has provided a short summary of those facts which we will incorporate here to provide context for the appeal. “On March 13, 2013, David G., Edgar, Melanie, and David R. were in Libby Lake Park in Oceanside. The park was claimed by the Mesa Locos gang. David R. was affiliated with this gang. Four individuals approached them and fired multiple firearms. Melanie and Edgar died. Ballistic analysis of the recovered rounds showed three firearms were used. Police investigation identified Brizuela as one of the participants in the shooting. Brizuela was a member of the Vista Home Boys gang which had a rivalry with the Mesa Locos gang.” DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue which was considered in evaluating the potential merits of this appeal: Whether the court erred in denying Brizuela’s petition for resentencing. Brizuela filed a brief in which he argues he made prima facie showing of eligibility for resentencing under section 1170.95. He contends the court erred in relying on facts set forth in the previous opinion of this court where we stated that Brizuela was a direct aider and abettor. He contends the trial court gave an instruction on liability for murder based on natural and probable consequences where death results from a non-target crime. The 3 court did give former CALCRIM 403.2 However, if the jury had relied on the theory in that instruction, it would have been required to find the defendant 2 Former CALCRIM 403 states as follows:
“Under this theory, before you may decide whether the defendant is guilty of murder and attempted murder, you must decide whether he is guilty of assault with a firearm or assault by force likely to produce great bodily injury. “To prove that the defendant is guilty of murder and attempted murder, the People must prove that: “1. The defendant is guilty of assault with a firearm or assault by force likely to produce great bodily injury; “2. During the commission of assault with a firearm or assault by force likely to produce great bodily injury a co-participant in that assault with a firearm or assault by force likely to produce great bodily injury committed the crime of murder and attempted murder; “AND “3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder and attempted murder was a natural and probable consequence of the commission of the assault with a firearm or assault by force likely to produce great bodily injury. “A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. “A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
4 guilty of second degree murder. In this case, the jury convicted Brizuela of first degree murder, which would have been based on a direct aider and abettor theory. Brizuela’s submission does not raise any arguable issues for reversal on appeal based on this record. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Brizuela on this appeal.
“To decide whether crime of murder and attempted murder was committed, please refer to the separate instructions that I have given you on those crimes. “Under this theory, the People are alleging that the defendant originally intended to aid and abet assault with a firearm or assault by force likely to produce great bodily injury. “If you decide that the defendant aided and abetted one of these crimes and that murder and attempted murder was a natural and probable consequence of that crime, the defendant is guilty of murder and attempted murder. You do not need to agree about which of these crimes the defendant aided and abetted. “If you find the defendant guilty beyond a reasonable doubt of murder as charged in Counts One and Two under this theory, you shall set the degree of murder as Second Degree Murder.”
5 DISPOSITION The order denying Brizuela’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12