People v. Segura

1

THE PEOPLE, Plaintiff and Respondent, v. OSCAR SEGURA, Defendant and Appellant.

B330137

California Court of Appeals, Second District, Eighth Division

January 19, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No KA077015, Rogelio G. Delgado, Judge. Affirmed.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

STRATTON, P. J.

Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we review this appeal of an order denying a petition for resentencing brought under Penal Code section 1172.6. ^[1] We affirm.

BACKGROUND

On February 10, 2015, the People filed an information charging appellant Oscar Segura alone with the attempted murders of Jose Acevedo and Samantha Cohen in violation of sections 187 subdivision (a) and 664. It was further alleged Segura acted willfully, deliberately and with premeditation. (§ 664 subd. (a).) A third count charged possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). As to the attempted murder counts, Segura was also charged with gang and firearm enhancements pursuant to sections 186.22 subdivision (b)(4), and 12022.53, subdivisions (b), (c) and (d). Prior convictions within the meaning of sections 667.5, subdivision (b), 667, subdivisions (a)(1) and (b) through (i), and the Three Strikes law were also alleged. A jury found Segura guilty as charged in all counts and enhancements except for the attempted murder of Samantha Cohen, of which he was acquitted.

The trial court sentenced Segura to 60 years to life in state prison. This court affirmed the judgment of conviction. (People v. Segura (Feb. 16, 2017, B268752) [nonpub. opn.].)

The facts are brief for purposes of the resentencing petition and we set them out from our appellate opinion for context only.

In the early morning hours of November 1, 2006, Segura and two fellow gang members were drinking and playing pool at the back of a small, crowded bar. Three men approached victim Acevedo. One of the men asked Acevedo for the cigarette behind his ear. Acevedo declined to give it to him, said "Fuck you," and a fight ensued. One of the three men pulled out a gun and started shooting at Acevedo, who was shot four times in the chest, waist and legs.

Appellant was identified as the shooter by surveillance video which recorded him shooting the victim at close range.

On September 19, 2022, Segura filed a petition for resentencing. The trial court appointed counsel, issued an order to show cause, and considered briefing on the issue of whether Segura had made a prima facie showing to warrant an evidentiary hearing. The trial court denied Segura's petition, finding him ineligible for relief because the jury was not instructed on the natural and probable consequences doctrine or any other theory of imputed malice. The court also noted Segura was convicted of premeditated attempted murder, evidence that the jury found he had an intent to kill. The jury also found Segura had personally used a firearm to shoot victim Acevedo. Segura timely appealed.

We appointed counsel to represent Segura on appeal. On November 7, 2023, counsel filed a no-issue brief pursuant to People v. Delgadillo. Counsel advised us she had told Segura he may file his own supplemental brief within 30 days. Counsel sent Segura transcripts of the record on appeal as well as a copy of the brief.

On November 7, 2023, this court sent Segura notice that a brief raising no issues had been filed on his behalf. We advised him he had 30 days within which to submit a supplemental brief or letter stating any grounds for appeal he believes we should consider. We also advised him that if he did not file a supplemental brief, the appeal may be dismissed as abandoned.

On December 4, 2023, Segura filed a 57-page supplemental brief, in which he contends: 1) he did not act with intent to kill; 2) he never actually killed anyone; 3) he acted under the influence of alcohol and the heat of passion; 4) he had no time to premeditate; 5) the trial court erroneously failed to instruct on attempted voluntary manslaughter (CALCRIM No. 604) and the defenses of heat of passion and imperfect self-defense; 6) the trial court erroneously failed to instruct on voluntary intoxication (CALCRIM No. 604); 7) trial counsel provided ineffective assistance by failing to insist that the jury see more video of the events leading up to the shooting, which would have shown Segura drinking excessively; 8) appellate counsel provided ineffective assistance on direct appeal by failing to move to unseal the transcript of the hearing on Segura's motion to represent himself at sentencing; 9) trial counsel provided ineffective assistance by failing to investigate the crime scene to obtain receipts showing how much alcohol Segura drank on the night of the shooting; 10) the trial court erroneously allowed the gang detective to testify to hearsay statements; 11) the victim was coached by the gang detective; 12) trial counsel did not let him see the police reports; 13) the trial court showed bias when it failed to instruct on lesser charges; 14) the trial court failed to instruct on reasonable doubt; 15) the trial was unfair due to cumulative errors; 16) the trial court erroneously denied his motion to represent himself at sentencing; 17) the trial court erroneously denied his motion to strike prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497; 18) CALCRIM No. 601 confused the jury and trial counsel provided ineffective assistance by not objecting to it; 19) his prior strike conviction (a robbery) did not qualify as a strike or a serious violent felony; 20) he was not prosecuted until seven years after the shooting so the statute of limitations barred the prosecution; 21) his substantial rights were violated when the trial court sentencing him on the gang and firearm enhancements; 22) the gang evidence was insufficient; and 23) the victim provoked the shooting by saying "fuck you" when asked for a cigarette and then throwing the first punch.

With his supplemental letter brief, Segura also provided a declaration attesting to his excessive intoxication on the night of the shooting. He declared under penalty of perjury: "I do believe I shot the man, but due to my alcohol consumption, I couldn't think straight or right, much less premeditate or intent to kill him. I simply 'snapped,' when I shot, as he 'snapped' by saying fuck you to a person he didn't even know." He also declared: "To be honest, I don't know why I shot him, because he was outnumbered, but that's what the alcohol does; makes you do things you would not normally do."

DISCUSSION

Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as a basis for liability for murder (and later, attempted murder). It also limited the scope of the felony murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry out the intent of Senate Bill No. 1437 which was "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, at p. 967.) Senate Bill No. 1437 changed the elements of murder by limiting the circumstances in which malice can be implied. (People v. Solis (2020) 46 Cal.App.5th 762, 779.) Petitions under section1172.6, then, address convictions where a defendant was not the shooter, but was held vicariously liable on one of several theories of liability identified in the statute.

We reject Segura's contention that he is entitled to relief. First, the People's only theory at trial was that appellant was the actual shooter who acted with express malice and premeditation in attempting to kill the victim. Vicarious liability was not a theory presented to the jury. The prosecutor's closing argument could not have been more clear on this point: "Defendant decided to try and kill [Acevedo] by pulling out a gun and pointing it straight at [Acevedo's] chest and trying to shoot him not once not twice, but at minimum five times. And we know five times because we have five bullet casings in the bar and he actually got hit four times.... [¶] These steps are the...