People v. Aguilar

1

THE PEOPLE, Plaintiff and Respondent, v. CRUZ AGUILAR, Defendant and Appellant.

B326991

California Court of Appeals, Second District, Sixth Division

February 20, 2024

NOT TO BE PUBLISHED

Hayden A. Zacky, Judge Superior Court County of Los Angeles No PA075131

Law Offices of Brad Poore and Brad J. Poore, 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, Noah P. Hill, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN J.

Cruz Aguilar appeals from the judgment entered after he was resentenced pursuant to Penal Code section 1172.6.^[1] The trial court vacated his prior conviction of attempted murder, redesignated it as a conviction of simple kidnapping, imposed the upper term for that conviction, and imposed consecutive terms for first degree robbery and a firearm-use enhancement.

Appellant claims the trial court erred in redesignating the attempted murder conviction and imposing a prison term for the firearm-use enhancement. In addition, appellant argues that by imposing prison terms for both kidnapping and robbery, the court violated section 654's proscription against multiple punishment.

Finally appellant contends the trial court erroneously imposed the upper term for kidnapping. If we conclude that he forfeited this contention because his counsel failed to object, appellant maintains he was denied his constitutional right to effective assistance of counsel. We affirm.^[2]

Section 1172.6

Section 1172.6 was added to the Penal Code by Senate Bill No. 1437 and became effective on January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Section 1172.6, subdivision (a) provides in relevant part, "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts when" certain conditions apply.

After a facially valid section 1172.6 petition is filed and "[a]fter the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (Id., subd. (c).)

If an order to show cause is issued, the court shall conduct an evidentiary hearing to determine the petitioner's eligibility for relief. (Id., subd. (d)(1).) "At the hearing . . . the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of . . . attempted murder . . . ." (Id., subd. (d)(3).) "If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (Ibid.)

Factual Background

Appellant and his co-defendants, David Valle and Carmen Garcia, were tried before a jury. During the trial, appellant and Garcia agreed to a plea bargain. The trial of Valle continued, and the jury convicted him.^[3]

After the trial court had scheduled an evidentiary hearing on appellant's section 1172.6 petition, appellant filed a brief containing a statement of facts based on the evidence presented at the jury trial. We quote below from the brief's statement of facts. We omit citations to the reporter's transcript of the trial.

"On November 1, 2012, victim Avila agreed to pick up $6000 for a drug dealer .... Avila called [appellant] and they arranged to meet ....[Appellant] arrived in a white GMC Tahoe with co-defendant Valle. When [appellant] realized that Avila did not bring drugs to give him, he made a phone call. Shortly thereafter a man wearing a mask, whom Avila later referred to as 'Palmdale,' arrived in [a] green Toyota Corolla. [Appellant] pointed a semi-automatic handgun with an extended magazine at Avila. [Italics added.] Valle and Palmdale also pointed guns at Avila. [Appellant] ordered Avila to get back into his car but ordered him to sit in the passenger seat. Palmdale drove Avila's car, with Valle in the back seat. Palmdale took Avila's keys, phone and wallet....

"After driving for approximately an hour, Palmdale stopped on a dead end street. [Appellant] pulled beside them. A woman got out of [appellant's] car. The men ordered [Avila] into [appellant's] car. The woman drove Avila's car away....

"[Appellant] drove to a strip mall. Palmdale ordered Avila into a Mitsubishi driven by an unknown man. Valle and Palmdale got into the Mitsubishi with Avila. [Appellant] drove away.

". . . They drove in the Mitsubishi to a donut store with an ATM machine where Palmdale was able to withdraw money using Avila's bank card.

"Next, they took Avila to a motel in Sylmar.... [Appellant] met them there....

"[¶] . . . [Appellant] . . . was . . . upset with Avila. [He] ordered Avila to call someone to get drugs.... [Appellant] continued to press Avila for drugs and asked him whether he had drugs at his house. Avila lied and said there were a lot of people at the house besides his wife and children.

"[¶] . . .

"[Appellant] left the motel room about 30 minutes to an hour before Avila and the remaining defendants left the motel room and got into Avila's car. [Appellant] was not seen again by Avila after [appellant] left the motel room ....

"Valle and Garcia then forced Avila into his own car, that had been moved into the motel parking lot.... Garcia drove Southwest for some distance before exiting the freeway. He looked around before he stopped and ordered Avila out of the car. As Avila walked away as instructed, Valle tried to shoot him with a silver revolver. The gun malfunctioned. Avila pled for his life. Valle pulled a semi-automatic gun from his waistband and shot at Avila five times, hitting him in his buttocks, waist and legs." Avila survived the shooting.

Appellant's Plea Bargain

An information charged appellant with 11 counts of various felony offenses. They included attempted first degree murder (§§ 664, 187, subd. (a)), "first degree automated teller machine [ATM] robbery" (§§ 211, 212.5, subd. (b)), and simple kidnapping (§ 207, subd. (a)).

Appellant pleaded no contest to attempted second degree murder and first degree ATM robbery. He admitted a gang allegation within the meaning of section 186.22, subdivision (b)(1)(C). He was sentenced to prison for 20 years, four months: the upper term of nine years for attempted murder, plus consecutive terms of 10 years for the gang enhancement and one year, four months for the robbery. Pursuant to the plea bargain, the court dismissed the remaining charges and enhancements, including simple kidnapping and an allegation that appellant had personally used a firearm within the meaning of section 12022.53, subdivision (b).

Appellant's Resentencing Pursuant to Section 1172.6

The trial court scheduled the matter for an evidentiary hearing (§ 1172.6, subd. (d)(1)), but the hearing did not occur. Appellant acknowledges that "neither side objected to the waiver of an evidentiary hearing."

On the date set for the evidentiary hearing, the People conceded that appellant was eligible for resentencing on the attempted murder conviction. The trial court vacated that conviction, redesignated it as a conviction of the target offense of simple kidnapping, and imposed the upper term of eight years. The court imposed a consecutive 10-year term for the previously dismissed allegation that appellant had personally used a firearm within the meaning of section 12022.53, subdivision (b). In addition, the court imposed a consecutive term of one year, four months for the first degree robbery conviction. Accordingly, appellant's aggregate sentence was 19 years, four months - one year less than the original sentence.

The court stated that "[t]here were multiple target offenses" and that it was trying "to keep alive the letter and spirit of [the plea] agreement."

Redesignation of Attempted Murder Conviction as Conviction of Simple Kidnapping

Section 1172.6, subdivision (d)(3) provides that where, as here, a conviction of attempted murder is vacated, "the petitioner shall be resentenced on the remaining charges." Because of the plea bargain, the only remaining charge against appellant is the first degree robbery count. Appellant claims "the superior court was obligated to resentence appellant on that count alone" and could not redesignate the attempted murder conviction as a conviction of simple kidnapping.

Subdivision (d)(3) should not be viewed in isolation from the other subdivisions of section 1172.6." 'Rules of statutory construction obligate us to read a statute, and its various subdivisions, as a cohesive whole.'" (People v Watson (2021) 64 Cal.App.5th 474, 487 (Watson).) Section 1172.6, subdivision (d)(3) must be read together with subdivision (e), which provides: "The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged." (Italics added.)

Appellant asserts that section 1172.6, subdivision (e) is inapplicable. He argues that "the trial court did not have the authority to redesignate appellant's conviction [of simple kidnapping] as a target offense or underlying felony because the target offense [of ATM robbery] had already been charged."...