Filed 10/3/23 P. v. Castaneda CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
ISAAC SCOTT CASTANEDA, Defendant and Appellant. F085424
(Super. Ct. No. 12

- CM

- 1522HTA)



### OPINION

THE COURT * APPEAL from an order of the Superior Court of Kings County. Randy L. Edwards, Judge. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

- ooOoo

-

* Before Levy, Acting P. J., Franson, J. and Snauffer, J.2

. INTRODUCTION Appellant and defendant Isaac Scott Castaneda (appellant) was convicted after a jury trial of premeditated attempted murder with firearm and gang enhancements, and
sentenced to 25 years plus 45 years to life.
In 202 3 , the trial court denied appellant ’s Penal Code 1 section 1172.6 petition for resentencing. On appeal, appellate counsel filed a brie f which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th
216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a supplemental
brief raising several issues. We will address his contentions and affirm the trial court’s denial of his petition.
PROCEDURAL SUMMARY On August 6, 2013, a second amended information was filed in the Superior Court of Kings County charging appellant with count 1, premeditated attempted murder ( §§ 664/187, subd. (a) ) , with personal use and discharge allegations ( § 12022.53,
subds. (b), (c)) ; and count 2, possessi on of a firearm by a felon (§ 29800, subd. (a)(1)) ; with gang enhancements as to both counts ( § 186.22, subd. (b)(1) ) and prior conviction allegations. On the same day, appellant’s jury trial began.
The J ury I nstructions
The c ourt instructed the jury on the elements of count 1, attempted murder: “To prove that the defendant is guilty of attempted murder, the People must prove that, one, the defendant took at least one direct but ineffective step toward killing another person; and, two, the defendant intended to kill that person.... A direct step indicates a definite and unambiguous intent to kill.”

1 All further statutory citations are to the Penal Code

.3

.

The jury was further instructed that if it convicted appellant of attempted murder,
it had to decide whether he committed the offense “willfully and with deliberation and premeditation.” “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.” The jury was separately instructed on the elements of count 2, and the firearm and gang enhancement s

. The jury was not instructed about principals, aiders and abettor s, accomplices, the natural and probable consequences doctrine, the felony

- murder rule, conspiracy, or any theory of imputed malice.
Convictions and S entence On August 9, 2013, the jury found appellant guilty of count 1 , premeditated attempted murder, and count 2, possession of a firearm by a felon. The jury found true the personal use and discharge enhancements attached to count 1 , a nd gang
enhancement s for both counts . Appellant admitted the prior conviction allegations

. On February 13, 2014, the court held the sentencing hearing and imposed an aggregate term of 25 years plus 45 years to life, based on 15 years to life for count 1 , tripled to 45 years to life pursuant to the “T hree S trikes ” law ( § 667, subd. (e)(2)(A)(i)) , plus 20 years for the section 12022.53, subdivision (c) personal discharge enhancement and five years for the prior serious felony enhancement. The court stayed the remaining
terms and enhancements.
On appeal this court affirmed the judgment. ( People v. Castaneda ( Feb. 4, 2016, F069066) [nonpub. opn.].)4

. PETITION FOR RESENTENCING On June 27, 2022, appellant filed , in pro pria per sona , a petition for resentencing pursuant to section 1172.6 (former § 1170.95 renumbered ) , and requested appointment of
counsel

. Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed against him tha t 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 under 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 in which he could
have been convicted of murder or attempted murd er ; and (3) he could not presently be convicted of murder or attempted murder because of changes made to section s 188 and 189, effective January 1, 2019. On August 2, 2022, the court appointed counsel. The People’s Opposition On September 30, 2022, t he People filed opposition and argued appellant was ineligible for resentencing as a matter of law because the jury was not instructed on the natural and probable consequences theory, and the attempted murder instructions required the jury to find appellan t acted with the specific intent to kill.
The C ourt’s D enial of the P etition On November 17, 2022, the court held a hearing on appellant’s petition. Appellant was present with his attorney, who argued the petition established a prima facie
case and an evidentiary hearing should be held. The prosecutor replied that appellant was ineligible for resentencing because the jury was not instructed on any imputed malice
theories.5

.

The court held appellant was ineligible for resentencing as a matter of law: “A review of the jury instruction [s] shows that the jury was not instructed by the trial judge on either the felony murder or the natural and probable consequences doctrines. [¶] The jury received the standard jury instructions for attempt[ed] murder and for premeditation.” The court also issued a written order that stated the petition was denied
for the same reasons. On December 9, 2022, appellant filed a timely notice of appeal.
DISCUSSION As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo

. The brief also include d counsel’s declaration that appellant was advised he could file his own brief with this court. In response to this court’s order, appellant filed a s upplemental brief. We review appellant’s contentions.
A . Appellant’s arguments about his jury trial

. Appellant asserts th at his petition should be granted because he raised the defense of “actual innocence,” he was wrongfully convicted, and he has been unlawfully
incarcerated because his convictions were the result of a “ fundamental miscarriage of justice

. ” Appellant further states his family would not have retained private counsel to represent him if he had committed the charged offenses. Appellant’s claims based on his jury trial and conviction are not cognizable in this appeal. “The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the e vidence supporting the jury ’ s findings. To the contrary, ‘[n]othing in the language of
section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior factfinding.... The purpose of section [1172.6] is to give defendants the be nefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do

- over on factual disputes that have already been resolved.’ ” ( People v.6

.

Farfan (2021) 71 Cal.App.5th 942, 947 ; People v. DeHuff (2021) 63 Cal.App.5 th 428, 438.) B. Appellant’s arguments about his petition

. “The record of conviction will necessarily inform the trial court ’ s prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” ( People v. Lewis (2021) 11 Cal.5th 952, 971.) The record of conviction includes the jury instructions. ( People v. Williams (2022) 86 Cal.App.5th 1244, 1251

– 1252; People v. Offley (2020) 48 Cal.App.5th 588, 599; People v. Har

den (2022) 81 Cal.App.5th 45, 50, 54

- 55.) Appellant contends he was not the actual shooter or an aider and abettor. The jury was instructed that to find appellant guilty of attempted murder, it had to find he took a direct but ineffective step toward kill ing another person, and that he “intended to kill that person.... A direct step indicates a definite and unambiguous intent to kill.” “A tt empted
murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing .” ( People v. Lee (2003) 31 Cal.4th 613,
623 ; People v. Perez (2010) 50 Cal.4th 222, 224.) The instructions establish that appellant was convicted as the actual shooter who acted with the intent to kill, and not as an aider and abettor. Appellant a sserts he was convicted based on the natural and probable consequences doctrine. As set forth above, however, the jury in this case was not instructed on that doctrine or any theory of imputed malice. Appellant nex t declares that “[a]ll instructions to the jury were invalid” because the instructions permitted the jury to convict him based on imputed malice. The jury was not instructed on any theory of imputed malice. Appellant asserts the statutory procedures rega rding the admission of evidence at an evidentiary hearing under section 1172.6 violate his due process right to prove his actual innocence. Appellant was not entitled to an evidentiary hearing because he failed7

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to establish the prima facie showing require d by section 1172.6 since he was ineligible for resentencing as a matter of law. Finally, appellant requests this court to independently review the record because
the court summarily denied his petition and violated his due process rights. The court did not summarily deny his petition. The court complied with section 1172.6 and appointed counsel, provided for further briefing, conducted a hearing on the petition, heard argument s from the parties, stated reasons for issuing its order to deny the petition , and
filed an order that restated those reasons . (§1172.6, subds. (b), (c).) The trial court correctly found appellant was ineligible for resentencing as a matter of law

. DISPOSITION The court’s order of November 1 7, 2022 , denying appellant’s section 1172.6 petition for resentencing, is affirmed.