People v. Saravia CA2/1 ( 2022 )

Filed 1/26/22 P. v. Saravia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B312100
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA206053)
v.
CARLOS SARAVIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lynne Hobbs, Judge. Affirmed.
Jonathan E. Demson, 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, Assistant
Attorney General, Charles S. Lee, Jr. and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Carlos Saravia, found guilty by a jury in 2003 of one count
of premeditated attempted murder, challenges the trial court’s
denial of his petition to be resentenced pursuant to Penal Code
section 1170.95.1
In January 2021, when Saravia filed his petition, section
1170.95 did not provide relief for defendants challenging their
convictions for attempted murder. For this reason, the trial court
summarily denied Saravia’s petition without appointing counsel
or holding a hearing. During the pendency of this appeal,
however, Senate Bill No. 775 (2021-2022 Reg. Sess.) became
effective, which now permits those convicted of attempted murder
to petition for resentencing under section 1170.95 (Stats. 2021,
ch. 551, § 2).
Nevertheless, Saravia remains ineligible for resentencing
as a matter of law because the jury found him guilty of attempted
murder committed with premeditation and actual malice. This
theory of murder liability remains valid under amended section
1170.95. Any assumed error in the failure to appoint counsel or
hold a hearing did not prejudice him.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
A. Factual Summary from Prior Opinion
In our prior opinion involving Saravia’s direct appeal
(People v. Saravia (Feb. 9, 2005, B171623) [nonpub. opn.]
1Subsequent undesignated statutory citations are to the
Penal Code.
2
(Saravia I)), we described the facts of the case, which we now
summarize.2
On the evening of August 14, 2000, Mirna Pena, Claudia
Garcia, and Maria Plaites were sitting in a car talking to Jose
Solis. Pena was Saravia’s girlfriend. Solis was outside the
vehicle standing on the sidewalk. Saravia entered the area as he
drove by the parked car and parked nearby. After walking to use
a pay phone, Saravia then left, driving his truck around the area
five to seven times. Plaites witnessed Saravia stop his truck on
the final time as he circled the area. Plaites then witnessed
Saravia bend down and fire his weapon into the parked car.
Several bullets struck Solis. Saravia then fled. (Saravia I,
supra, B171623.)
When the police arrived, Pena and Garcia told the officers
that Saravia had been driving a red truck around the area and
that he had shot Solis. Plaites left before the police could
interview her. The police found a red truck abandoned nearby
registered to Saravia. (Saravia I, supra, B171623.)
The defense case included Los Angeles Police Officer Paul
Lopez’s interview of Solis that he conducted at the site of the
shooting. Solis told the officer that he saw the passenger of a red
car get out of the vehicle, remove a shotgun from the trunk,
approach him with the shotgun and shoot him. After the
shooting, the person got back into the car and fled. Solis did not
say whether or not he knew the shooter. (Saravia I, supra,
B171623.)
2 In evaluating a section 1170.95 petition, we may rely on
the record of conviction including this court’s prior opinions.
(People v. Lewis (2021) 11 Cal.5th 952, 972.)
3
B. Saravia’s Conviction and Prior Appeal
On November 10, 2003, the jury found Saravia guilty of one
count of attempted willful, deliberate, and premeditated murder
(§§ 187, subd. (a), 664, subd. (a)). The jury also found true the
allegation that he personally and intentionally discharged a
firearm thereby inflicting great bodily injury (§§ 12022.53,
subds. (c)-(d), 12022.7, subd. (a)).
On November 19, 2003, the court sentenced Saravia to life
with the possibility of parole plus a consecutive term of 25 years
to life. (Saravia I, supra, B171623.)
On February 9, 2005, we affirmed Saravia’s conviction on
his direct appeal. (Saravia I, supra, B171623.)
C. Petition for Resentencing and the Trial Court’s
Order
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.), which, among other revisions to the law
of murder, abolished the natural and probable consequences
doctrine in cases of murder. (See People v. Gentile (2020) 10
Cal.5th 830, 842-843.) The legislation also enacted section
1170.95, which established a procedure for vacating murder
convictions for defendants who could no longer be convicted of
murder because of the changes in the law and resentencing those
who were so convicted. (Stats. 2018, ch. 1015, § 4.)
Recently enacted Senate Bill No. 775, effective January 1,
2022, amended section 1170.95 to, among other things, permit
those convicted of attempted murder to petition for resentencing
under that newly-amended section.
On January 25, 2021, Saravia filed a petition for
resentencing pursuant to section 1170.95. In his petition, he
alleged that he had been convicted of first or second degree
4
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine, that he could not now be
convicted of first or second degree murder because of the changes
to sections 188 and 189, and requested the appointment of
counsel.
On March 29, 2021, without appointment of counsel or
briefing from either party, the trial court found that, because
Saravia “was convicted of Penal Code section[s 187 and 664],” his
“conviction is not a qualifying one that makes him eligible for
relief.”
Saravia timely appealed.
DISCUSSION
To be convicted of attempted murder, a jury must find a
specific intent to commit the crime as well as a direct but
ineffectual act done toward its commission. (§ 29.2, subd. (a);
People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) Express
malice is required for attempted murder. (People v. Beck (2005)
126 Cal.App.4th 518, 522.)
Senate Bill No. 1437, which became effective January 1,
2019, amended section 189, which defines the degrees of murder,
to limit murder liability based on felony murder or a natural and
probable consequences theory for a person who: (1) was the actual
killer; (2) though not the actual killer, acted “with the intent to
kill” and “aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer” in the
commission of first degree murder; or (3) 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, subd. (e).)
5
Senate Bill No. 1437 also amended the definition of malice
in section 188 to provide that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) The effect of this amendment was to abolish
the natural and probable consequence doctrine in cases of
murder. (People v. Larios (2019) 42 Cal.App.5th 956, 964, review
granted Feb. 26, 2020, S259983.)
In addition to amending sections 188 and 189, the
Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4,
eff. Jan. 1, 2019) which authorizes a person convicted of felony
murder or murder under a natural and probable consequences
theory to file a petition with the sentencing court requesting to
vacate the conviction and be resentenced. (§ 1170.95, former
subd. (a).)
During the pendency of this appeal, section 1170.95 was
amended by Senate Bill No. 775 and became effective January 1,
2022. Among other changes, Senate Bill No. 775 amends section
1170.95 by “[c]larif[ying] that persons who were convicted of
attempted murder or manslaughter under a theory of felony
murder and the natural probable consequences doctrine are
permitted the same relief as those persons convicted of murder
under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).)3
We assume without deciding that the trial court should
have appointed counsel and held a hearing on Saravia’s petition.
(§ 1170.95, subds. (b)(1)(C)(3) & (c), as amended by Stats. 2021,
3 The amendment also codifies certain holdings of People v.
Lewis, supra, 11 Cal.5th 952, reaffirms the burden of proof at a
resentencing hearing, and addresses the evidence a court may
consider at a resentencing hearing. (Stats. 2021, ch. 551, § 1,
subds. (b)-(d).)
6
ch. 551, § 2.) However, the record of conviction establishes
beyond doubt that Saravia was neither tried nor convicted of
attempted murder under a natural and probable consequences
theory. To the contrary, the jury found him guilty of committing
attempted murder with premeditation and deliberation.
The attempted murder instruction required the jury to find
“[t]he person committing the act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another
human being.”4 On the jury’s verdict form, it found true “the
allegation that the aforesaid attempted murder was committed
willfully, deliberately and with premeditation.” The jury form
explicitly found true “the allegation that in the commission and
attempted commission of the above offense, the defendant,
[Saravia], personally and intentionally discharged a firearm,
which proximately caused great bodily injury to [Solis].”
When the jury convicted Saravia, it necessarily found he
acted with deliberation and premeditation, in other words, with
an intent to kill. Saravia’s petition therefore fails because intent
to kill is the equivalent of express malice (People v. Saille (1991)
54 Cal.3d 1103, 1114-1115), and express malice remains a valid
theory of attempted murder liability following Senate Bill
Nos. 775 and 1437. (§ 188, subd. (a)(1).) Accordingly, any
assumed error did not prejudice Saravia because he is ineligible
for resentencing as a matter of law. (See People v. Lewis, supra,
11 Cal.5th at pp. 973-974 [denial of statutory right to counsel in a
§ 1170.95 proceeding implicates state law only and is evaluated
for error under People v. Watson (1956) 46 Cal.2d 818].)
4 We take judicial notice of the jury instructions from the
record filed in Saravia I. (Evid. Code, §§ 451, 459.)
7
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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