Filed 9/26/24 P. v. Sandoval CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL FIGUEROA SANDOVAL,

Defendant and Appellant. B331508

(Los Angeles County Super. Ct. No. TA126752)

APPEAL from a n order of the Superior Court of

Los Angeles County, Laura R. Walton , Judge. Affirmed.

Matthew Alger , 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, Noah P. Hill and Steven E. Mercer , Deputy Attorneys General, for Plaintiff and Respondent.

______________________________2 Defendant and appellant M anuel Figueroa Sandoval
appeals from the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6 1 (former
§ 1170.95). 2 Because defendant is ineligible for section 1172.6
relief as a matter of law, we affirm.

BACKGROUND

In 2013 , an information was filed charging defendant with
second degree murder (§ 187, subd. (a)); unlawful possession of a
firearm by a felon (§ 29800, subd. (a)(1)); and unlawful firearm
activity (former § 29805). It also alleged that defendant
personally used and intentionally discharged a firearm, causing
great bodily injury and death. (§ 12022.53, subds. (b), (c) & (d).)
Later that year

, a jury convicted defendant of all three
offenses, and found the firearm allegations true. The trial court
sentenced defendant to a total of 40 years to life (15 years to life
on the murder charge and a consecutive term of 25 years to life
for the firearm enhancement). 3
On direct appeal, we affirmed the judgment. ( People v.

Sandoval (May 12, 2015, B25 4 512) [nonpub. opn.] ( Sandoval )

. )
Nine years later, defendant filed a petition for resentencing
pursuant to section 1172.6. The prosecution opposed the petition

,

1 All further references are to the Penal Code unless
otherwise indicated.

2 Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the section by its new numbering.

3 Sentences on all other charges were stayed pursuant to
section 654.3

arguing that defendant was ineligible for section 1172.6 relief as

a matter of law. As exhibits, it attached copies of the jury
instructions given at trial, the verdict, and our prior opinion in
defendant’s direct appeal ( Sandoval

, supra , B254512 )

. Defendant’s appointed counsel filed a one

- sentence written reply
“submit[ting] on the prosecution’s

. . . response[

. ]”
In June 2023, the trial court denied defendant’s petition. It
“f[ound] that the defense has not met the threshold for a prima
facie hearing based on the fact that

. . . it was a one

- defendant

case.” The court explained that defendant “was found [guilty] by
a jury and was convicted of second degree murder

. . . and the
jury found true the allegations that in the commission of the
murder, [defendant] personally and intentionally discharged a
firearm, which caused great bodily injury and death to” the

victim. Taken together, the verdict thus established that

defendant was “the actual shooter because no other defendants
were alleged to be involved.”
Appellant timely appealed.

DISCUSSION

I. Applicable Law
Effective January 1, 2019, the Legislature enacted Senate

Bill No. 1437 (2017

- 2018 Reg. Sess.) to “amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, 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).) Among other things, the bill
amended section 188 to require that, when the felony

- murder
rule does not apply, a principal in the crime of murder “shall act4

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).)
“Section 1172.6 provides a mechanism whereby people ‘who
believe they were convicted of murder for an act that no longer
qualifies as murder following the crime’s redefinition in 2019[]
may seek vacatur of their murder conviction and resentencing by
filing a petition in the trial court.’ [Citation.]” ( People v. Arnold
(2023) 93 Cal.App.5th 376, 382.)
In order to obtain resentencing relief, a defendant convicted

of murder must allege that (1) an information was filed against
him allowing the prosecution to proceed under a theory of murder
under the felony murder rule, the natural and probable
consequences doctrine, or any “other theory under which malice
is imputed to a person based solely on that person’s participation

in a crime” (§ 1172.6, subd. (a)(1) ); (2) he was convicted of murder
(§ 1172.6, subd. (a)(2)) ; and (3) he could not now be convicted
“because of changes to Section 188 or 189 made effective
January 1, 2019” (§ 1172.6, subd. (a)(3))

. Upon the filing of a properly pleaded petition for
resentencing

, the trial court must conduct a prima facie analysis
to determine the defendant’s eligibility for relief. (§ 1172.6,
subds. (b)(3) & (c) .) “[T]he prima facie inquiry

. . . is limited

. . . ‘ “ [T]he court takes [a] [defendant]’s factual allegations as true
and makes a preliminary assessment regarding whether the
[defendant] would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause”’” and set the matter for an evidentiary hearing.
( People v. Lewis (2021) 11 Cal.5th 952, 971 ( Lewis ) .)5 In making this assessment, the trial court may consider the
defendant’s record of conviction. ( Lewis

, supra , 11 Cal.5th at

pp. 970

– 971.) As our Supreme Court explained in Lewis , “[t]he
record of conviction will necessarily inform the trial court’s prima
facie inquiry

. . . allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” ( Lewis

,

supra , at p. 971.) However, “the court should not make
credibility determinations or engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” ( Id. at

p. 9 53 .)

II. Standard of Review

We review de novo the trial court’s denial of a section
1172.6 petition at the prima facie stage. ( People v. Coley (2022)
77 Cal.App.5th 539.)

III. Analysis

A

. Reliance on Prior Appellate Opinion
In 2021, the Legislature passed Senate Bill No. 775 (202 1

– 202 2 Reg Sess.) (Stats. 2021, ch. 551), which amend ed section

1172.6 to clarify that “the factual summary in a [] [prior]
appellate opinion is not evidence that may be considered at an
evidentiary hearing to determine a petitioner ’ s eligibility for
resentencing.” ( People v. Flores (2022) 76 Cal.App.5th 974, 988
( Flores ) ; see § 1172.6, subd. (d)(3) .) Several appellate courts have
recently held that , “[b] y logical extension, the factual summary
also may not be used to determine a petitioner ’ s eligibility at the
prima facie stage. ” ( People v. Lee (2023) 95 Cal.App.5th 1164,

11 83 ; see also, e.g.

, Flores

, supra , 76 Cal.App.5th at p. 9 88 .)
Defendant argues that the trial court violated this precept
by improperly rel ying on the factual summary in Sandoval

,6

supra , B254512

, to deny defendant’s section 1172.6 petition. He
is wrong.

The trial court based its denial on the procedural history of

defendant’s case. At the prima facie hearing, it did not so much
as mention any of the facts underlying defendant’s convictions.
Instead, the court explained that it would deny the petition

because (1) defendant was the sole person charged with the

murder of the victim ; (2) the jury found that defendant personally
and intentionally discharged a firearm resulting in the victim’s

death ; and (3) taken together, these two things established that

defendant must have been the actual killer.

Even if the trial court took this information directly from
our prior opinion

— as opposed to the numerous other documents

before it

— both the number of persons charged with the victim’s
murder and the jury’s verdict are procedural matters. And unlike
factual summaries, t he court is free to consider the “procedural
history of the case recited in any prior appellate opinion” at any stage of section 1172.6 proceedings. (§ 117 2.6 , subd. (d)(3).)
Accordingly, the court did not erroneously rely on our opinion in

Sandoval

, supra , B254512

. Defendant contends that the trial court should not have

relied on any of the exhibits to the prosecution’s opposition,
presumably including the copy of our prior opinion in Sandoval

,

supra , B254512 , because those exhibits were never properly

authenticated. But defendant never objected to the submission of
those documents, either in his written opposition to the
prosecution’s motion or orally at the prima facie hearing. His
“failure to object

. . . on grounds of

. . . lack of authentication7

procedurally bars him from asserting those contentions on
appeal.” 4 ( People v. Farnam (2002) 28 Cal.4th 107, 159.)
Alternatively, defendant insists that the trial court must

have relied on the factual summary in our prior appellate opinion
in some capacity , because any contrary suggestion would
improperly imply that the trial court was derelict in its duty to
read and consider all evidence presented to it. Not so. C ourts routinely encounter and review pieces of evidence that they do
not ultimately rely on to render judgment. And d efendant cites

no legal authority for the novel proposition that a trial court
necessarily relies on every portion of every piece of evidence
presented to it by a party

. ( People v. Stanley (1995) 10 Cal.4th
764, 793 [“ ‘ [E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on
a particular point, the court may treat it as waived, and pass it

without consideration. [Citations.] ’ ”].)

B. Firearm Sentence Enhancement
Defendant also argues that the trial court improperly relied
on the jury’s firearm use finding to deny his section 1172.6
petition, citing case law holding that “an enhancement under

section 12022.5 3 , subdivision (d) does not in itself preclude a

4 This argument also fails on the merits, since the trial court could have gotten the same data it relied on

— the number of persons charged with the victim’s murder and the jury’s findings

— from other documents in the record, namely, the copy
of the information and the 2013 minute order detailing the jury’s verdicts. If the trial court’s sole error was taking procedural information from the prosecution’s exhibits rather than the other places it appeared in the record, that error would be patently harmless. ( People v. Watson (1956) 46 Cal.2d 818, 836

– 837.)8

petitioner from obtaining relief under section” 1172.6. ( People v.
Offley (2020) 48 Cal.App.5th 588, 592 ( Offley ) .)

It is true that the mere existence of “a [firearm]

enhancement

. . . does not establish as a matter of law that a
defendant acted with malice aforethought .” ( Offley

, supra , 48 Cal.App.5th at p. 597.) But where, as here, the jury finds that

defendant was the only person charged who personally used a
firearm to commit murder, that finding does establish that

defendant was the actual killer. 5 (Compare People v. Garrison
(2021) 73 Cal.App.5th 735, 743

– 744 [although a personal gun use finding “does not automatically show the defendant is the actual

killer

. . . when the record shows only one person

. . . used a gun

. . . the true finding on a personal use enhancement demonstrates

that th [at] p[erson] was the actual killer ”] with Offley

, supra , at

p. 597 [ rever sing the denial of a defendant’s resentencing petition

because the jury’s finding “ show ed only that a principal to the
crime, not [the defendant] himself, fired [the murder] weapon ”].)
Accordingly, the trial court did not err by determining that,

in the context of this case, the jury’s firearm finding establishes

that defendant was the actual killer. And as such, d efendant is
ineligible for resentencing relief under section 1172.6

. ( People v. Garcia (2022) 82 Cal.App.5th 956, 973 [“ As a matter of law,

5 Defendant suggests that only a review of the entire record of conviction could “foreclose the possibility

. . . that [defendant] was subject to vicarious liability under an alternative theory that he was an aider and abettor who was responsible for someone
else’s acts.” The notion that defendant could have been convicted as an aider and abettor is wholly unsupported by the record; the jury at defendant’s trial was not instructed on aiding and abetting liability.9

resentencing relief under section 1172.6 is not available to an

‘ actual killer. ’ [Citations.]”].)

We thus conclude that the trial court correctly denied

defendant’s resentencing petition at the prima facie stage.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

_____________________, Acting P. J.
ASHMANN

- GERST

We concur:

________________________, J.
CHAVEZ

________________________, J.
HOFFSTADT