People v. Trent

96 Cal.App.5th 33

313 Cal.Rptr.3d 911

The PEOPLE, Plaintiff and Respondent,

v.Patrick Allen TRENT, Defendant and Appellant.

C096306

Court of Appeal, Third District, California.

Filed October 3, 2023

Certified for Partial Publication.^*

The Law Office of Brad K. Kaiserman and Brad K. Kaiserman, 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, Erin Doering and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

Krause, J.

In 1999, a jury convicted defendant Patrick Allen Trent of first degree murder ( Pen. Code, § 187 )¹ and street terrorism (§ 186.22, subd. (a)), but found not true the enhancements that defendant had personally used a knife (§ 12022, subd. (b)(1)) and that the murder had been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court sentenced defendant to 25 years to life plus eight months. This court affirmed that judgment in an unpublished opinion in 2001.² (People v. Vasquez et al . (Sept. 25, 2001, C032492) [nonpub. opn] (Vasquez ).) Defendant's first degree murder conviction was later reduced to second degree murder in light of People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972, resulting in the reduction of defendant's aggregate term to 15 years to life plus eight months.

Thereafter, in July 2020, defendant filed a petition for resentencing pursuant to former section 1170.95 (now section 1172.6 ),³ which the trial court granted in a written ruling issued February 28, 2022. On March 28, 2022, the trial court redesignated the murder conviction as assault with force likely to cause great bodily injury with a great bodily injury enhancement and resentenced defendant to an aggregate term of six years eight months, comprised of: the middle term of three years for the felony assault, plus three years consecutive for the great bodily injury enhancement, plus a consecutive eight months (one-third the middle term) for the street terrorism conviction.

Defendant timely appealed and complains the trial court prejudicially erred in: (1) failing to retroactively apply Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) to his substantive gang conviction, and (2) imposing a great bodily injury enhancement to the redesignated offense. Finally, defendant requests that we correct the abstract of judgment to reflect that defendant's convictions were by jury, rather than by plea. The People oppose defendant's first two arguments, but agree the abstract of judgment requires correction.

We agree with the parties that the abstract of judgment should be corrected to reflect conviction by jury. We also agree with defendant that he is entitled to the retroactive application of Assembly Bill 333, requiring reversal of his section 186.22 conviction and remand for further proceedings. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The underlying murder

We summarize the evidence from our previous appellate opinion for context. Defendant and his codefendant Nico Luciano Vasquez were convicted of murdering Primotivo Villasana, a heroin addict and former member of "Northern Structure," a criminal street gang. The People theorized "the murder was the gang execution of a dropout to advance the defendants’ status in Northern Structure." (Vasquez, supra , C032492.) In support of this theory, the People presented evidence that Tony Giminez, the leader of Northern Structure in Stockton who had turned state's evidence, identified defendant and Vasquez as Villasana's killers. Defendant and Vasquez killed Villasana because he was on the gang's "hit list." (Ibid .)

Vasquez's former girlfriend B.T. testified that Vazquez and defendant helped her move into an apartment near the murder scene on the day of the murder. The pair ran into Villasana at the door to her apartment, and the three men stayed outside talking and drinking while B.T. unpacked her belongings. "Vasquez came into the apartment twice—once to get more beer, and once to take something she could not see from a kitchen drawer that contained knives. She later identified a broken knife handle and knife blade found at the scene, and testified her knives were not broken when she last saw them." (Vasquez, supra , C032492.)

"Vasquez told [B.T.] he was going for a walk around the corner. She watched defendants and Villasana head toward the park as it was starting to get dark. Vasquez returned about 45 minutes later, went to the drawer, and got a butcher knife with a wooden handle. He told [B.T.] the first knife had broken because it was too skinny. Vasquez said he needed the knife to take care of his business. [B.T.] testified Vasquez was mad, out of breath, but uninjured at the time.

"Vasquez returned 15 or 20 minutes later, looking like he had been fighting. His shirt was torn, and he was bleeding. He had a bloody knife with him, which [B.T.] put in the sink. Vasquez told her to clean it with alcohol or Clorox. He also told [B.T.] to say she had not seen him if the police came. [B.T.] cleaned the wound on Vasquez's hand, and put a towel over it. Vasquez took her car, saying he was going to take [defendant] home, then return. Vasquez did not return to the apartment that night.

"[B.T.] saw Vasquez at his sister's house several days after Villasana was killed. He showed [B.T.] a newspaper article about the murder and explained, ‘This is what I did last night.’ He said he threw the clothes he was wearing into a creek behind his mother's house. Vasquez later told [B.T.] he cut Villasana's throat, and one of the knives broke during the assault. Vasquez and [defendant] met with [B.T.] to discuss what to tell police about the night of the murder.

"At some point after the murder, [B.T.] watched while [defendant] had a star tattooed under his eye. Vasquez said, ‘He's a killer now.’ [B.T.] also heard Vasquez tell [defendant] ‘he done killed a man.’ " (Vasquez, supra , C032492.)

Xavier Lozano testified as part of a plea agreement. According to Lozano, "he previously held the highest position in Northern Structure, responsible for overall security inside and outside of prison. He testified that Vasquez had been a gang member for three or four years, and [defendant] was a sympathizer. While Lozano was imprisoned at Pelican Bay, he received instructions that all dropouts in Stockton should be killed. He relayed the information directly to Giminez and Vasquez upon his parole. Lozano explained that by killing Villasana, defendants would gain status within Northern Structure, and possibly become eligible for membership in Nuestra Familia." (Vasquez, supra , C032492.)

Defendant testified in his defense, acknowledging he left B.T.’s apartment with Vasquez and Villasana to get more beer. The other men were behind him, and defendant turned around to see Vasquez and Villasana wrestling on the ground. Vasquez repeatedly punched Villasana, but defendant denied seeing a knife or "kicking, punching, or touching Villasana in any way." (Vasquez, supra , C032492.) Defendant left the park, and Vasquez eventually caught up. Defendant admitted obtaining the star tattoo, but denied it held "special significance." (Ibid .)

B. Legal background

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) significantly limited the scope of the felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key provisions. (Stats. 2018, ch. 1015, § 1, subd. (f) ; see People v. Strong (2022) 13 Cal.5th 698, 707-708, 296 Cal.Rptr.3d 686, 514 P.3d 265 ( Strong ).) First, Senate Bill 1437 amended section 189 so that "[d]efendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participant[s] in the underlying felony and acted with reckless indifference to human life.’ " ( Strong, supra , at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265, citing § 189, subd. (e)(3).) Second, it amended section 188 to provide that when the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where they acted "with malice aforethought," and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." ( § 188, subd. (a)(3) ; see People v. Gentile (2020) 10 Cal.5th 830, 842-843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Senate Bill 1437 also established a new procedure to allow defendants who could not have been convicted under the new law to petition the sentencing court to vacate their murder conviction and resentence them on any remaining counts. (See § 1172.6, subd. (a) ; Strong, supra , 13 Cal.5th at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265.) After receiving a petition containing the required information, "the court must evaluate the petition ‘to determine whether the petitioner has made a prima facie case for relief.’ " ( Strong , at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265, citing § 1172.6, subd. (c).) If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. ( § 1172.6, subds. (c), (d)(3).)

Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) amended section 1172.6 to clarify certain aspects of the law, including that (1) the burden of proof at a resentencing hearing under this section is "on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder" under California law as amended by Senate Bill 1437, and (2) "[a] finding that there is substantial evidence to support a conviction for murder ... is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." ( § 1172.6, subd. (d)(3) ; see also Stats. 2021, ch. 551, § 1, subd. (c).) Senate Bill 775 also clarified that the...