People v. Sanchez CA2/7 ( 2023 )

Filed 5/16/23 P. v. Sanchez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318937
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA272661-02)
v.
BRYAN SANCHEZ,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee, Supervising Deputy
Attorney General, David E. Madeo, Deputy Attorney General, for
Plaintiff and Respondent.
Bryan Sanchez and three codefendants were found guilty of
the murder of Juan Monsivais and the attempted willful,
deliberate and premeditated murder of Manuel De La Rosa in a
gang-related drive-by shooting on September 6, 2003. Sanchez
was sentenced to an aggregate indeterminate state prison term of
35 years to life for the murder and attempted murder with the
associated criminal street gang enhancements. We affirmed
those convictions. (People v. Flores (July 19, 2010, B211207)
[nonpub. opn.].)
Following an evidentiary hearing on March 3, 2022, the
superior court denied Sanchez’s postjudgment petition for
resentencing pursuant to Penal Code section 1172.6 (former
1
section 1170.95), ruling Sanchez was “structurally ineligible for
relief.” The court found beyond a reasonable doubt that,
although not the shooter, Sanchez had acted with express malice
when aiding and abetting the crimes or, in the alternative, acted
with implied malice based on his “mental state of knowing the
dangerousness of his conduct.” The court additionally found as to
attempted murder the evidence established Sanchez’s intent to
kill (express malice) beyond a reasonable doubt.
On appeal Sanchez does not challenge the sufficiency of the
evidence to support the superior court’s express malice findings.
He argues only that the court erred by refusing to consider
evidence of youth-related mitigating factors in assessing whether
he—17 years old at the time of the crimes—was guilty of implied
malice murder. Sanchez also contends the court deprived him of
his right to be present and to present a full defense when it
ordered the court reporter to stop recording Sanchez’s comments
1
Statutory references are to this code.
2
following the court’s ruling. Although we agree with Sanchez
that youth-related mitigating factors must be considered when
evaluating whether a defendant acted with conscious disregard
for human life to establish implied malice murder, the court’s
error in refusing to do so in this case was harmless, as was any
possible error in not allowing Sanchez to continue to argue the
merits after the court had denied his petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Sanchez’s Convictions for Murder and Attempted Murder
The principal witnesses concerning the September 6, 2003
drive-by shooting at the joint trial of Sanchez, his girlfriend
Jazmin Rossier, Rafael Fuentes, Edgar Flores and Pedro Aguilar
were Norberto Pacheco and brothers Santos and David Kuk. The
evidence established that Sanchez, Rossier and Fuentes were
members of the Red Shield clique of the 18th Street gang, the
2
largest Hispanic criminal street gang in the United States.
Flores was a member of the Grandview clique of the 18th Street
gang. The two cliques were known to cooperate in joint gang
activities. (Pacheco was a member of the Red Shield clique;
2
At the hearing to determine whether Sanchez was eligible
for resentencing, the superior court admitted into evidence,
without objection from Sanchez, the People’s evidentiary hearing
brief prepared for the section 1172.6, subdivision (d)(3), hearing
for Sanchez’s codefendant Jazmin Rossier. That brief included
significant excerpts from the factual summary in our opinion
affirming Sanchez’s and Rossier’s convictions for second degree
murder and attempted willful, deliberate and premediated
murder (People v. Flores, supra, B211207), annotated with
citations to the trial transcript. Our summary of the underlying
facts is based on that evidentiary presentation.
3
Santos and David Kuk were members of the Grandview clique.)
The 18th Street gang’s rivals included the Temple Street gang.
On Saturday, September 6, 2003, while members of the Red
Shield and Grandview cliques were drinking beer and socializing
together, someone (Sanchez, according to Pacheco) suggested
they go on a mission to exact revenge against the Temple Street
gang, apparently because one of its members had assaulted
Santos Kuk.
Sanchez drove a stolen minivan. Rossier, Flores, Fuentes
and Eric Vasquez, another 18th Street gang member, as well as
the Kuk brothers, were inside the minivan. The group traveled
to a commercial location where Pacheco provided them with
two guns and then left the group. Flores took the shotgun, and
Fuentes the rifle.
At one point the group saw a rival gang member who had
been identified as a target, but Sanchez said not to shoot because
there was a woman with a baby nearby. Sanchez continued to
drive around the neighborhood for several hours looking for
“enemies” to shoot. As the minivan drove past the Kuk brothers’
home, which was in Temple Street gang territory, several
Temple Street gang members were seen drinking across the
street. After some discussion inside the minivan, Fuentes pulled
out the rifle, shouted a derogatory comment and fired repeatedly
out the front passenger side window. Flores tried, but was
unable, to get the shotgun to fire out the window of the minivan’s
side door. Sanchez then drove the minivan away. Pacheco
testified that Sanchez, Rossier, Flores and Fuentes all spoke to
him after the incident and acknowledged their participation in
the shooting.
4
Monsivais, who had been drinking outside his home with
several of his cousins and a friend (at least one of whom was a
Temple Street gang member), was shot and killed by a single
gunshot wound to the back. De La Rosa was hit by bullets in the
chest and hand and spent several days in the hospital after the
shooting.
The trial court’s instructions on the counts charging
murder and attempted murder included CALCRIM No. 401,
describing the elements necessary to prove direct aiding and
abetting, and CALCRIM No. 403, explaining the natural and
probable consequences doctrine and identifying assault with a
firearm as the target offense. The jury found Sanchez guilty of
second degree murder; Fuentes, the shooter, was found guilty of
first degree murder. Sanchez and Fuentes were both convicted of
attempted willful, deliberate and premeditated murder. The jury
found true the allegations both offenses had been committed to
benefit a criminal street gang, but as to Sanchez found not true
various firearm-use allegations. We affirmed those convictions
on appeal. (People v. Flores, supra, B211207.)
2. Sanchez’s Petition for Resentencing
On May 28, 2019 Sanchez petitioned for resentencing relief
under former section 1170.95. The superior court summarily
denied the petition without first appointing counsel, ruling
Sanchez was ineligible for resentencing because the evidence at
trial and our opinion on appeal demonstrated Sanchez had either
aided and abetted the actual shooter with the intent to kill or had
acted as a major participant in the crimes and with a reckless
indifference to human life. The court also ruled Sanchez was not
entitled to relief because former section 1170.95 was
unconstitutional.
5
We reversed that order and remanded for the superior
court to appoint counsel for Sanchez and to consider, after
briefing by both sides, whether Sanchez had established a
prima facie case for resentencing relief. (People v. Sanchez
3
(Aug. 18, 2020, B300319) [nonpub. opn.].)
On remand the court appointed counsel for Sanchez.
Sanchez thereafter moved to supplement the record with
information concerning youth-related mitigating factors in
anticipation of a hearing pursuant to People v. Franklin (2016)
4
63 Cal.4th 261. The People filed a memorandum in response to
3
We held former section 1170.95 was constitutional, as had
every other court of appeal that considered the issue. In addition,
we held the superior court erred in ruling, even if not a direct
aider and abettor, Sanchez could be still be convicted of
Monsivais’s murder as a major participant in the underlying
crimes who had acted with a reckless indifference to human life—
the standard for a conviction of felony murder under section 189,
subdivision (e)(3)—explaining there had been no felony-murder
instruction at Sanchez’s trial, nor could there have been because
aggravated assault cannot provide the basis for a charge of felony
murder.
4
The Supreme Court in People v. Franklin, supra, 63 Cal.4th
at pages 283-284 held a defendant eligible for a youth offender
parole hearing must be permitted at the time of sentencing to
make a record of those factors, a proceeding that has since
become known as a Franklin proceeding. The Court in In re Cook
(2019) 7 Cal.5th 439, 458 held a juvenile offender with a final
judgment could move in a postjudgment proceeding under
section 1203.01 (rather than through a petition for a writ of
habeas corpus) to present evidence of youth-related factors.
6
Sanchez’s petition but did not object to issuance of an order to
show cause. The superior court found that Sanchez had made a
prima facie case for resentencing relief with respect to both the
murder and attempted murder convictions and set a date for an
evidentiary hearing. Sanchez filed a reply to the People’s
memorandum.
3. The Evidentiary Hearing and the Court’s Ruling
Denying Sanchez’s Petition
Sanchez and his counsel both appeared via Webex at a
status hearing on March 3, 2022. The court granted Sanchez’s
motion to represent himself, and Sanchez stated he wanted to
proceed immediately to the evidentiary hearing. Without
objection from Sanchez, the court admitted into evidence an
evidentiary hearing brief filed by the People in Rossier’s case,
which had been set for a hearing on an order to show cause on
that date. Following a recess the court conducted the evidentiary
hearing, which began with the court taking judicial notice of the
record of conviction in Sanchez’s case, Sanchez’s petition and
other documentation filed by the parties and the Rossier brief.
The prosecutor argued the evidence established beyond a
reasonable doubt that Sanchez had acted as an aider and abettor
of Fuentes with the intent to kill and, at minimum, with a
conscious disregard for human life proving implied malice.
Sanchez argued he had been convicted of second degree murder
under the natural and probable consequences doctrine, the jury
had not convicted him of first degree murder as a direct aider and
abettor of Fuentes, and it was improper for the People to now
argue he was guilty of second degree implied malice murder—a
theory that had not been presented at his trial. He also insisted
the fact he was a teenager at the time of the offenses was
7
material in determining whether he had acted with conscious
5
disregard for human life.
At the outset of its ruling the court rejected Sanchez’s
contention that youth-related mitigating factors were relevant,
stating, “You are going way outside of the record in this case by
bringing up theories of juvenile incapacity which could have been
and were not presented to the appellate court. This is not the
time for the court to consider citations without any evidentiary
background or requirement.”
The court then noted it was the People’s burden to prove
beyond a reasonable doubt to the court, as fact finder, the
requisite mens rea and actus reus to prove murder under current
law. Considering the entire record of conviction, the court ruled,
“The petitioner absolutely had the mens rea of actual and/or
implied malice.” After reviewing the evidence before it, the court
continued, “Under existing law, there was express malice. The
court does not have to make a determination whether it was
willful, deliberate, and premediated, but whether there was
malice. I found and find that there was and is that mental state.
It’s overwhelming that Mr. Sanchez had that mental state. The
court also certainly can and does conclude that in addition to the
theory of express malice second degree murder, there is implied
malice second degree murder based upon Mr. Sanchez’s mental
state of knowing the dangerousness of his conduct, combined
with the actions he took. So there are alternative valid current
theories of culpability in the case based upon express second
5
At the conclusion of his argument, and before the court’s
ruling, Sanchez stated, “I submit, Your Honor.”
8
degree malice and implied second degree malice.” The court
denied the motion, finding Sanchez “statutorily ineligible.”
The prosecutor asked the court to confirm that its analysis
with respect to the existence of express malice applied to the
attempted murder count. The court responded, “Unlike count 1,
which necessarily doesn’t have a requirement of express malice,
count 2 does have that requirement under existing law and there
is more than sufficient evidence to establish that requirement of
express malice beyond a reasonable doubt.”
The court then asked Sanchez, “Do you have anything else
you wish to address right now, Mr. Sanchez?” Sanchez responded
by again asserting that implied malice second degree murder was
not a theory presented at trial. Emphasizing that Sanchez had
previously made this argument and the court had considered it,
the court directed the court reporter to stop recording Sanchez,
explaining to him, “The record is more than sufficient to
demonstrate your theory and theories and your objections, which
you have noted and re-noted. I’m not going to go over things time
and time again.” Sanchez acknowledged the denial of his motion,
stated he would file a notice of appeal and inquired about the
status of his Franklin proceeding. The court granted Sanchez’s
request to reappoint his counsel and scheduled a status
conference with respect to the Franklin proceeding.
Sanchez filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill No. 1437 (Stats. 2018, ch. 1015) substantially
modified the law relating to accomplice liability for murder,
eliminating the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder (People v. Gentile
9
(2020) 10 Cal.5th 830, 842-843) and significantly narrowing the
felony-murder exception to the malice requirement for murder.
(§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022)
13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952,
957.) It also authorized, through former section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not now be convicted of
murder because of Senate Bill No. 1437’s changes to the
definitions of the crime. (See Strong, at p. 708; Lewis, at p. 957;
Gentile, at p. 843.) As amended by Senate Bill No. 775
(Stats. 2021, ch. 551, § 2), these ameliorative changes to the law
now expressly apply to attempted murder and voluntary
manslaughter.
If the petition contains all the required information,
including a declaration by the petitioner that he or she is eligible
for relief (§ 1172.6, subd. (b)(1)(A)), the court must appoint
counsel to represent the petitioner, if requested (§ 1172.6,
subd. (b)(3)), and direct the prosecutor to file a response to the
petition, permit the petitioner to file a reply and determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (§ 1172.6, subd. (c); see People v. Lewis, supra,
11 Cal.5th at pp. 962-963.)
When, as here, a petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
10
(§ 1172.6, subd. (d)(1).) At that hearing “the burden of proof shall
be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The
court may consider evidence “previously admitted at any prior
hearing or trial that is admissible under current law,” including
witness testimony. The petitioner and the prosecutor may also
offer new or additional evidence. (Ibid.)
The superior court’s decision to deny the petition after an
evidentiary hearing, if the proper standard and burden of proof
was applied, is reviewed for substantial evidence. (People v.
Vargas (2022) 84 Cal.App.5th 943, 951; People v. Ramirez (2021)
71 Cal.App.5th 970, 985; People v. Hernandez (2021)
60 Cal.App.5th 94, 113.)
2. The Superior Court Erred in Refusing To Consider
Youth-related Mitigating Factors When Assessing the
Mens Rea Necessary for Implied Malice Murder, but Its
Error Was Harmless
a. Youth-related mitigating factors are relevant to
evaluating conscious disregard for human life
In Miller v. Alabama (2012) 567 U.S. 460 (Miller) the
United States Supreme Court held it violated the Eighth
Amendment’s ban on the infliction of cruel and unusual
punishment to impose a mandatory life without parole sentence
on a juvenile convicted of murder because that mandatory
penalty “precludes consideration of [the juvenile’s] chronological
age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It
prevents taking into account the family and home environment
that surrounds him—and from which he cannot usually extricate
11
himself—no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of his
participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that he
might have been charged and convicted of a lesser offense if not
for incompetencies associated with youth—for example, his
inability to deal with police officers or prosecutors (including on a
plea agreement) or his incapacity to assist his own attorneys.”
6
(Id. at pp. 477-478.) The Miller Court identified three significant
differences between juveniles and adults that directly bear on
culpability—what are now commonly referred to as youth-related
7
mitigating factors: “First, children have a ‘“lack of maturity and
an underdeveloped sense of responsibility,”’ leading to
recklessness, impulsivity, and heedless risk-taking. [Citation.]
Second, children ‘are more vulnerable . . . to negative influences
and outside pressures,’ including from their family and peers;
they have limited ‘contro[l] over their own environment’ and lack
the ability to extricate themselves from horrific, crime-producing
6
Miller, supra, 567 U.S. 460 followed and expanded on Roper
v. Simmons (2005) 543 U.S. 551, 568-569, in which the Supreme
Court held the Eighth Amendment categorically prohibited
imposition of the death penalty on juvenile offenders, defined as
youths under the age of 18, and Graham v. Florida (2010)
560 U.S. 48, 74, in which the Court held it violated the Eighth
Amendment to impose a sentence of life without parole on a
juvenile offender who had not committed homicide.
7
See, e.g., People v. Franklin, supra, 63 Cal.4th at page 275;
People v. Hardin (2022) 84 Cal.App.5th 273, 288, review granted
January 11, 2023, S277487; People v. Ochoa (2020)
53 Cal.App.5th 841, 850.)
12
settings. [Citation.] And third, a child’s character is not as ‘well
formed’ as an adult’s; his traits are ‘less fixed’ and his actions less
likely to be ‘evidence of irretrievabl[e] deprav[ity].’” (Id. at
p. 471.)
This court in People v. Ramirez, supra, 71 Cal.App.5th at
page 987, relying on the youth-related principles articulated in
Miller, supra, 567 U.S. 460, reversed the superior court’s order
denying a petition for resentencing under section 1172.6, holding,
“‘[A] defendant’s youth is a relevant factor in determining
whether the defendant acted with reckless indifference to human
life.’” Similarly, the court of appeal in In re Moore (2021)
68 Cal.App.5th 434, 453-454 applied the Miller factors and found
the evidence in the record was insufficient to establish the
subjective element of reckless indifference: “‘Children “generally
are less mature and responsible than adults”’ and ‘“often lack the
experience, perspective, and judgment to recognize and avoid
choices that could be detrimental to them.”’” (See People v.
Harris (2021) 60 Cal.App.5th 939, 960, review granted Apr. 28,
2021, S267802, review dismissed Sept. 28, 2022 [reversing
summary denial of section 1172.6 petition and remanding for
evidentiary hearing, observing that “given [petitioner’s] youth at
the time of the crime, particularly in light of subsequent case
law’s recognition of the science relating to adolescent brain
development [citations], it is far from clear that [petitioner] was
actually aware ‘of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants’”].)
In challenging the prosecutor’s theory of implied malice
murder, Sanchez urged the court to consider his age and the
concomitant youth-related mitigating factors, insisting the
13
evidence was insufficient to prove he had the requisite mental
state: “Mr. Sanchez [was] a child in the eyes of the law. Age is a
relevant factor in determining whether he acted with conscious
disregard for human life.” The superior court’s refusal to do so
when finding Sanchez had acted with implied malice—that is,
that he harbored a conscious disregard for human life during the
September 6, 2003 incident—was badly misguided. As discussed,
the court reasoned Sanchez could have presented the issue “to
the appellate court,” but failed to do so. Yet the direct appeal
from Sanchez’s conviction (People v. Flores, supra, B211207) was
decided by this court in July 2010, nearly two years before the
decision in Miller, supra, 567 U.S. 460. Moreover, as Sanchez
explained to the court at the evidentiary hearing in March 2022,
the People had not advanced an implied malice theory at the
2008 trial. In addition, the appeal from the earlier summary
denial of his petition for resentencing under section 1172.6
(People v. Sanchez, supra, B300319) considered only procedural
issues—the failure to appoint counsel and improper fact finding
8
at the prima facie stage. There was neither an opportunity nor a
reason prior to the March 3, 2022 hearing for Sanchez to advance
the argument that his youth should be considered in determining
whether he was guilty of implied malice murder.
The People’s argument it was not error for the superior
court to refuse to consider youth-related factors is hardly any
better. Acknowledging the decisions in In re Moore, supra,
8
Our decision denying Sanchez’s petition for habeas corpus
relief considered only the claim his defense counsel had provided
ineffective assistance during the trial by entering an ill-advised
stipulation after failing to adequately preserve an alibi defense.
(In re Sanchez (July 23, 2012, B218637) [nonpub. opn.].)
14
68 Cal.App.5th 434 and People v. Harris, supra, 60 Cal.App.5th
939, the Attorney General notes those cases concerned reckless
indifference to human life, the mens rea requirement for felony
murder, while implied malice requires a conscious disregard for
human life. With that and no more, the Attorney General asserts
that Sanchez’s youth was, therefore, not a relevant factor in
determining whether he acted with implied malice.
The Attorney General’s ipse dixit cannot withstand even
minimal scrutiny. The Supreme Court in People v. Lasko (2000)
23 Cal.4th 101, 107, explained that the statutory definition of
implied malice “‘has never proved of much assistance in defining
the concept in concrete terms’ [citation], and that juries instead
should be instructed that malice is implied ‘when the killing
results from an intentional act, the natural consequences of
which are dangerous to life, which act was deliberately performed
by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.’” “Implied
malice contemplates a subjective awareness of a higher degree of
risk than does gross negligence, and involves an element of
wantonness which is absent in gross negligence.” (People v.
Watson (1981) 30 Cal.3d 290, 296; accord, People v. Butler (2010)
187 Cal.App.4th 998, 1008 [“[i]mplied malice murder requires a
defendant’s conscious disregard for life, meaning that the
defendant subjectively appreciated the risk involved”].)
“[R]eckless indifference to human life” for purposes of the
felony-murder rule in section 189, subdivision (e)(3), and a
special-circumstance finding under section 190.2,
subdivision (a)(17), is not too different. The Supreme Court in
People v. Clark (2016) 63 Cal.4th 522, 617, held reckless
indifference had both a subjective and objective element. “The
15
subjective element is the defendant’s conscious disregard of risks
known to him or her.” (Ibid.; see People v. Banks (2015)
61 Cal.4th 788, 801 [“With respect to the mental aspect of
culpability, [courts] look to whether a defendant has ‘“knowingly
engag[ed] in criminal activities known to carry a grave risk of
death.”’ [Citation.] The defendant must be aware of and
willingly involved in the violent manner in which the particular
offense is committed, demonstrating reckless indifference to the
significant risk of death his or her actions create”]; see also In re
Scoggins (2020) 9 Cal.5th 667, 677 [“‘only knowingly creating a
“grave risk of death”’ satisfies the statutory requirement”].)
In sum, “reckless indifference to” and “conscious disregard
for” human life both require proof the defendant had a subjective
awareness of the significant risk of death in the activities being
pursued. (Compare CALCRIM No. 520 [“The defendant had
implied malice if: [¶] . . . [¶] 3. At the time (he/she) (acted/[or]
failed to act), (he/she) knew (his/her) (act/[or] failure to act) was
dangerous to human life; [¶] AND [¶] 4. (He/She) deliberately
(acted/[or] failed to act) with conscious disregard for (human/ [or]
fetal) life”] with CALCRIM No. 703 [“[a] person acts with reckless
indifference to human life when he or she knowingly engages in
criminal activity that he or she knows involves a grave risk of
death”].) A youth’s lack of maturity, impulsivity and
vulnerability to peer pressure—youth-related mitigating
factors—are no less relevant to determining one mental state
than the other. It was error for the superior court to refuse to
consider those factors when finding Sanchez was guilty of implied
malice murder.
16
b. The court’s error in refusing to consider youth-related
mitigating factors was harmless in light of its finding of
express malice
Although we are troubled by the superior court’s failure to
recognize its obligation to consider youth-related factors when
evaluating whether the evidence proved 17-year-old Sanchez
acted with a conscious disregard for human life (and by the
Attorney General’s perfunctory effort to justify the court’s
decision), the implied malice murder finding was an alternative
ruling. The superior court also found beyond a reasonable doubt
that Sanchez had acted with express malice—an intent to kill—
when he aided and abetted Fuentes’s actions in shooting
Monsivais and De La Rosa. Sanchez does not challenge the
sufficiency of the evidence to support that finding, which
established he was not entitled to resentencing relief.
Accordingly, the court’s error in finding Sanchez guilty of implied
malice murder was harmless.
3. The Superior Court’s Direction To the Court Reporter
Not To Record Sanchez’s Post-ruling Argument Was Not
Prejudicial Error
Section 1044 provides, “It shall be the duty of the judge to
control all proceedings during the trial, and to limit the
introduction of evidence and the argument of counsel to relevant
and material matters, with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved.” (See
People v. Strum (2006) 37 Cal.4th 1218, 1237 [“[t]he trial court
has a statutory duty to control trial proceedings”]; People v.
Marshall (1996) 13 Cal.4th 799, 854-855 [“the trial court retains
discretion to impose reasonable time limits and to ensure that
argument does not stray unduly from the mark”].)
17
Here, the prosecutor, who had the burden of proof, made an
initial argument after the superior court briefly described what
evidence was before it and the matters as to which it was taking
judicial notice. Sanchez then presented his argument, including
that the theory of second degree implied malice murder had not
been argued by the People at trial and should not be a basis for
finding him ineligible for resentencing. When he concluded,
Sanchez stated, “I’ll submit on the record.” The court thanked
Sanchez and told him, “I will give you a further opportunity, if
you wish, recognizing that the court has discretion to order and
reorder the nature of argument.” The prosecutor responded to
Sanchez’s argument, in part, by citing this court’s decision in
People v. Hernandez, supra, 60 Cal.App.5th at page 111, which
held the People at an evidentiary hearing under section 1172.6,
subdivision (d)(3), can rely on any currently valid theory of
murder liability to prove the petitioner is not entitled to relief.
The court gave Sanchez an opportunity to respond. Although
Sanchez again stated “I submit” when he finished, the court
asked Sanchez how he distinguished his argument from the
decision in Hernandez. Following further argument, Sanchez for
the third time said “I submit.”
At this point, the superior court denied Sanchez’s petition
and explained its ruling in detail. The court then asked Sanchez,
“Do you have anything else you wish to address right now,
Mr. Sanchez?” Sanchez responded that he wanted to put on the
record his objections to the court’s findings and began to again
argue, while speaking over the court, that it was improper for the
prosecutor to advance a theory of liability that had not been
asserted at trial. The court directed the court reporter not to
report and notified Sanchez it had done so, explaining Sanchez
18
was “persist[ing] in going over old territory.” The court added
that Sanchez had made focused arguments that the court had
considered and assured Sanchez the record was more than
sufficient to reflect his theories and objections.
Following this explanation Sanchez stated, “I get the
denial, that’s fine. I’ll file a notice of appeal,” and inquired about
his ability to make a record in a Franklin proceeding. After
colloquy with the prosecutor, Sanchez and Sanchez’s former
counsel, the court reappointed counsel and set a status hearing
on that matter.
To reiterate, Sanchez, acting as his own counsel, was not
physically present in the courtroom, participating in the March 3,
2022 hearing via Webex. Under these circumstances the court’s
instruction to the court reporter to stop recording Sanchez’s
repetitive objections to the court’s ruling—a direction that was
made only after Sanchez kept talking when the court attempted
to stop him and was followed by a full discussion with Sanchez
about unrelated matters (the Franklin proceeding)—was well
within the court’s authority to control the proceedings.
Sanchez disputes that conclusion, arguing the court’s
actions violated his constitutional rights to be present at the
evidentiary hearing (see People v. Basler (2022) 80 Cal.App.5th
46, 56-59 [petitioner who establishes a prima facie case for
resentencing relief has state and federal constitutional rights to
be personally present at the section 1172.6, subdivision (d)(3),
evidentiary hearing absent a knowing, intelligent and voluntary
waiver of those rights]; see also People v. Guerrero (2022)
76 Cal.App.5th 329, 336) and precluded him from presenting a
full defense. Neither contention has merit.
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Sanchez was present and active throughout the hearing.
The court simply precluded him from continuing to argue the
merits of the case after the ruling had been announced—an
entirely permissible restriction and one universally imposed by
trial courts. And Sanchez fails to explain how the court’s decision
not to allow him to continue to argue after he had submitted the
matter and the court had denied the petition prevented him from
presenting a full defense. To the contrary, it plainly appears
Sanchez was simply attempting once again to object to
consideration of a theory of implied malice murder—a defense
fully presented before the court ruled. In any event, as discussed,
the unchallenged finding of express malice necessarily made any
possible error with regard to the implied malice murder theory
harmless.
DISPOSITION
The postjudgment order denying Sanchez’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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