People v. Arzate

1

THE PEOPLE, Plaintiff and Respondent, v. DAVID ARZATE, Defendant and Appellant.

F084720

California Court of Appeals, Fifth District

July 5, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Stanislaus County No 1105533. Carrie M. Stephens, Judge.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Catherine Tennant Nieto Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

In 2007, appellant and defendant David Arzate (defendant) was convicted of attempted premeditated murder with an enhancement that he personally used and discharged a firearm in the commission of the offense. His convictions were affirmed on direct appeal, with this court correcting his sentence to 25 years to life plus 26 years.

In 2022, defendant filed a petition for resentencing pursuant to Penal Code section 1172.6^[1] and alleged he was convicted of attempted murder based on a theory of imputed malice. The trial court appointed counsel, conducted a hearing, and found he was ineligible as a matter of law.

On appeal, defendant argues the trial court improperly made factual findings based upon this court's opinion in the direct appeal, that he was the actual perpetrator of the attempted murder, and the matter must be remanded for an evidentiary hearing. We find that, to the extent the trial court improperly made factual findings, the error was not prejudicial because the entirety of the jury instructions establish that defendant was not convicted of attempted premeditated murder based on any theories of imputed malice and we affirm.

FACTS^[2]

"Kari Moncibaiz and her estranged husband, Joel Moncibaiz, were arguing in the parking lot of their mutual place of employment. Defendant, who was dating Kari and by whom Kari was then pregnant, happened to call Kari on her cellular telephone while the argument was in progress. Joel took the telephone and exchanged taunts and heated words with defendant. After the call, Kari drove away.

"A short time later, Kari returned to the parking lot, followed by defendant and two other men in a separate car. Defendant came out of the car, and he and Joel immediately began fighting. During a lull in the action, Kari approached defendant, lifted his shirt, and took a handgun from defendant's waistband. She returned to her car and defendant and Joel resumed their fight.

"Joel, a much larger man than defendant, was getting the better of defendant in the fight. Defendant broke off the fight and went to Kari's car, entering on the passenger side. He and Kari struggled over the gun, then Kari threw the gun out the window. Defendant got out of the car and recovered the gun.

"Defendant pointed the gun at Joel, who was then 20 to 25 feet from him. Defendant began firing. Joel turned and ran in a zig-zag motion until he fell down, unharmed. In all, defendant fired about seven times.

"Joel stood up again and began yelling. Kari left in her car, and defendant and the other two men left in their car." (People v. Arzate, supra, F053074.)

PROCEDURAL BACKGROUND

On March 21, 2007, a second amended information was filed in the Superior Court of Stanislaus County charging defendant with count 1, attempted premeditated murder (§§ 664, 187); count 2, assault with a firearm (§ 245, subd. (a)(2)); count 3, participation in a criminal street gang (§ 186.22, subd. (a)); and count 4, possession of a firearm by a felon (§ 12021, subd. (a)), with firearm, gang, and prior conviction allegations. No other parties were alleged to have committed offenses in this case.

Trial and Jury Instructions

On March 19, 2007, defendant's jury trial began. No other defendants were tried with him.

On March 27, 2007, the court instructed the jury. The court gave CALCRIM No. 600 on the elements of count 1, attempted murder: that defendant took direct but ineffective steps toward killing another person, and he intended to kill that person. The jury also received CALCRIM No. 601, that if it found defendant guilty of attempted murder, it had to determine if the People proved the attempted murder was done willfully, and with premeditation and deliberation. "The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting." (Italics added.)

CALCRIM No. 3148 stated that if the jury found defendant guilty of attempted murder, it had to determine whether the People proved the additional allegation that the defendant "personally and intentionally discharged a firearm during that offense." (§ 12022.53, subd. (c).) To prove this allegation, the People had to prove defendant "personally discharged a firearm during the commission of the crime," and he "intended to discharge the firearm." (Italics added.)

The jury was instructed on the separate charges and enhancements alleged in counts 2, 3, and 4. The jury was not instructed on the felony murder rule, the natural and probable consequences doctrine, principals and accomplices, aiding and abetting, or conspiracy.

Convictions and Sentence

On March 28, 2007, after a jury trial, defendant was convicted of count 1, attempted premeditated murder, and the jury found true the section 12022.53, subdivision (c) allegation, that he personally and intentionally discharged a firearm; count 2, assault with a firearm; count 3, participation in a criminal street gang; and count 4, possession of a firearm by a felon. The jury found the gang enhancements attached to counts 1 through 3 were not true. The court found the prior conviction allegations true.

On May 17, 2007, the court sentenced defendant as to count 1, attempted premeditated murder, to 45 years to life, plus 26 years for the firearm and prior conviction enhancements. The court imposed and stayed the sentence for count 2 pursuant to section 654; and imposed concurrent terms for each of counts 3 and 4.

Direct Appeal

On April 2, 2009, this court filed the nonpublished opinion that corrected defendant's sentence for count 1, attempted premeditated murder. (People v. Arzate, supra, F053074.)

"The prescribed sentence for willful, deliberate, and premeditated attempted murder (count [1]) is life in prison with the possibility of parole. (§ 664, subd. (a).) Under normal circumstances, the minimum period prior to parole is seven years. (§ 3046, subd. (a)(1).) Defendant, however, was found to have three qualifying "strikes," so his sentence must be calculated under section 667, subdivision (e)(2)(a). That section provides that the minimum term of imprisonment must be the greater of three options set forth there. In this case, the second of those options, 25 years, provides the greatest minimum imprisonment. Accordingly, the correct sentence on count [1] is 25 years to life. [¶] The trial court pronounced a sentence of 45 years to life on this count. We will modify the sentence on count [1] to conform to the statutory requirement of 25 years to life."

This court ordered defendant's sentence modified and corrected, and otherwise affirmed the judgment.

On October 7, 2007, an amended abstract of judgment was filed that corrected defendant's sentence on count 1 to 25 years to life plus 26 years.

PETITION FOR RESENTENCING

On April 15, 2022, defendant filed a petition, in pro. per., for resentencing of his attempted murder conviction and requested appointment of counsel.

Defendant's supporting declaration consisted of a preprinted form where he checked boxes that stated (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.

The People's Opposition

On April 4, 2022, the prosecution filed opposition and argued defendant was ineligible for resentencing as a matter of law because he was convicted of attempted murder as the actual perpetrator and not based on any theories of imputed malice.

The People's opposition was supported by this court's opinion from defendant's direct appeal; the instructions given at his jury trial only as to attempted murder; and the verdict forms and abstract of judgment.

On May 18, 2022, the court appointed counsel to represent defendant and ordered further briefing.

Defendant's Reply

On or about June 7, 2022, defendant's counsel filed a reply to the opposition, and argued the petition set forth a prima facie case for relief, the trial court could not make factual findings based on this court's opinion that affirmed defendant's conviction, and defendant should receive an evidentiary hearing pursuant to section 1172.6.

The Court's Hearing

On July 5, 2022, the court held a hearing on defendant's petition. Defendant was not present but represented by his appointed counsel.

The court stated it was going to deny the petition because defendant was ineligible for relief as a matter of law:...