Filed 6/ 7/23 P. v. Corrales CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

GE ORGE CORRALES,

Defendant and Appellant. B 324793

(Los Angeles County Super. Ct. No. BA179619 )

APPEAL from a n order of the Superior Court of
Los Angeles County, George G onzalez Lomeli , Judge. Affirmed

. Lenore De Vita , 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, Jason Tran and Kristen J. Inberg , Deputy Attorneys General, for Plaintiff and Respondent.

____________________________2 The r esentencing court denied petitioner George Corrales’s petition for resentencing pursuant to Penal Code former section
1170.95 renumbered in 2023 as section 1172.6. 1 Corrales argues the trial court made several errors but does not dispute respondent’s argument that, as a matter of law, he is not entitled to resentencing. We agree with respondent that as a matter of law, Corrales is not entitled to resentencing becau se he was not convicted based on a felony murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice. Because Corrales is not eligible for resentencing relief as a matter of law, the errors he alleges could not ha ve prejudiced
him.

BACKGROUND

1. Amended i nformation

In an amended information fil ed March 15, 2000, the People alleged one count of willful, deliberate, premeditated attempted murder. The People further alleged that Corrales personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (c).

2. Jury i nstructions
With respect to the attempted murder

, the jury was instructed: “In order to prove attempted murder, each of the following elements must be pr oved [ : ] [¶] 1. A direct bu t ineffectual act was done by one person towards killing another
human bei n g; and [¶] 2. The person committing t he act

1 Undesignated statutory citations are to the Penal Code.3

harbored express malice aforethought, namely

, a specific intent to kill unlawfully another human being.”
The court furt h er instructed the jury on the meaning of willful, deliberate, and prem ed itated murder as follows in pertinent part: “If you find the defendant guilty of atte m pted murder you mus t determine whether this allegation is true or not

true. [¶] ‘Willf

u l’ means intentional. ‘Deliberate’ means formed
or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed
course of act ion. ‘Premeditated ’ means considered beforehand. [¶] If you find that the attempted murder was prece d ed and

acc o mpanied by a clear, deliberate intent to kill, which w a s the result of deliberation and premeditation, so that it must have been formed upon pre

- existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and

prem e ditated murder.” The court also instructed the jury that if it found defendant

g uilty of attempted murder

, the jury “ must determine whether
the defendant intentiona l ly and personally discharged a firearm in the commission” of the attempted murder. “The term ‘intentionally and pe r sonally discharged a firearm,’ as used in
this i n struct ion, means that the defendant [himself] must have intentionally discharged it. ” The court did not instruct the jury on felony murder , the natural and probable consequences doctrine , or any other theory of imputed malice

.

3. Jury v erdict
The jury found true the allegation that defendant committed an attempted murder willfully, deliberately, and with4

premeditat i on. The jury also found true that Corrales personally
and int e ntionally discharged a firearm.

4. 2019 petition for resentencing

On March 26, 2019, Corrales petitioned for resentencing pursuant to former section 1170.95, now section 1172.6. Without appointing counsel for Corrales and without his presence

, the resentencing court denied his resentencing petition. The court stated: “Having reviewed the overall court record in this matter, including the C ourt of A ppeal decision affirming the defendant’s conviction (B144143), this court rules that the petitioner is not eligible for relief pursuant to Penal Code section 1170.95 as he
was the ac tual killer and/or shooter which caused the death of the underlying victim in the case. The section [former § 1170.95 ] specifically provides that no relief shall be extended to any individual who was the actual killer in a given scenario. [¶] The
record reflects that in 2000, the petitio ner was convicted of premeditated murder with the jury also finding true the various alleged firearm allegations associated with the charge in the case. The trial court sentenced the petitioner to a term of 20 years to
l ife in state prison. The conviction arises as a result of an incident that occurred in 1998 wherein the petitioner pers o nally shot and killed a perceived rival gang member. [¶] In his petition filed pursua n t to P.C. 1170.95, the petitioner
Mr. Corrales, claims that he is entitled to relief for resentencing. However, as reflected by the overall evidence surround ing the incident the petitioner herein was the actual shooter who w a s responsible for the victim’s death. Thus, as the actual killer
Mr. Corrales is not eligible for sentencing relief pursuant to P.C.

1170.95

. See P.C. section s 189(a)(1) and 1170.95(a)(3). The section fails to provide relief under circumstances where an5

individual was the actual killer in a given scenario.” The court
als o found section 1170.95 unconstitutional, a claim that appellate courts have since rejected. ( People v. Cruz (2020)

46 Cal.App.5th 740, 747.) As Corrales points out, the resentencing court incorrectly stated that he was convicted of premeditated murder w hen instead he was convicted of premeditated attempted murder.

5

. 2022 resentencing petition
Corrales filed a second petition for res ente ncing pursuant
to section 1172.6 in 2022. The resentencing court held a hearing

at which Corrales was represented b y counsel but di d not personally attend. The resentencing court indicated it was “standing by” its prior order. The court referred to Corrales as
the “actual killer and/or shooter who caused the death of the underlying victim in the case.” The court als o incorrectly r eferred to Corrales as having been convicted of prem e ditated murder when Corrales was convicted of premeditated attempted murder

.
DISCUSSION
On appeal, Corrales argues: (1) the resentencing judge “mistakenly believes appellant was the ac tual killer convicted of premed it ated murder” and the error shows the judge did not carefully review the record or was “confused” or “mixed up the facts of two separate cases, or something else” ; (2) the resentencing court erred in “standing by” its prior opinion and failing to reconsider the constitutionality of section 1172.6 ; and (3) the resente n cing court erred in relying on facts in the appellate opinion considering Corrales’s direct appeal from the judgment of conviction

. With respect to prejud ice Corrales argues: “The error in consi d ering the facts from the prior opinion6

is not harmless. As the State relied on the facts in the opinion and the trial court did as well, the harm to appellant is clear.” Respondent argues

, among other things

, t hat the resentencing court properly denied the petition because

, as a matter of law

, Corrales is ineligible for relief. Corrales offers no

retort having not filed a reply brief, and we agree with respondent.

A. In 2019, the Legislature Changed the Law With
R espect to Murder and Allowed Eligible Persons T o Petition for Resentencing
“Senate Bill 1437 ‘amend[ed] 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, § l, subd. (f).)” ( People v. Gentile (2020) 10 Cal.5th 830,
842 ( Gentile ) .) “To further that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony

- murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘ A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kil l, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifferenc e to human life, as7

described in subdivision (d) of Section 190.2.’ ” ( Gentile

, supra , 10 Cal.5th at p. 842.) “Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘ Except [for felony

- murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of

mu rder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime. ’ ” ( Gentile

, supra , 10 Cal.5th at

pp. 842

– 843.) “Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above.” ( Gentile

, supra , 10 Cal.5th at p. 843.) The Legislature subsequently amended
section 1170.95 to include attempted murder and manslaughter
and then renumbered it as section 1172.6. ( People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3.) “Under newly enacted section 1172.6, the process begins with the filing of a petitio n containing a declaration that all requirements for eligibility are met [ citation ], including that

‘ [t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code]
Section 188 or 189 made effective Januar y 1, 2019, ’ the effective
date of Senate Bill 1437 [citation]

. ” ( People v. Strong (2022)

13 Cal.5th 698, 708 ( Strong ) .) “When the trial court receives a petition containing the necessary declaration and other required information, the court
must evaluate the petition ‘ to determine whether the petitioner has made a prima facie case for relief. ’ [Citations.] If the petition8

and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citation s .] I f, instead, the defendant has made a prima facie showing of entitlement to relief, ‘ the court shall issue an order to
show cause. ’ [Citation.] ” ( Strong

, supra , 13 Cal.5th at p. 708.)

B. Corrales Is Not Eligible f or Resentencing Relief
Here the record in the case establishes conclusively that
Corrales is ineligible for relief. The jury was not instructed on felony murder

, the natural and probable consequences doctrine

, or any other theory of imputed malice . The amendments to
sections 1 88 and 189 do not apply to Corrales. Therefore, as a matter of law, Corrales cannot show that he “ ‘ could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019, ’ the e ffective date of Senate Bill 1437 (§ 1172.6,
subd. (a)(3)).” ( Strong

, supra , 13 Cal.5th at p. 708.) Even if we assume the resentencing court committed all the errors Corrales identifies, there is no basis to reverse the court’s
order. None of the erro rs Corrales identifies prejudiced him. (See People v. Lewis (2021) 11 Cal.5th 952, 973 [applying People
v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice to denial of counsel to represent petitioner in section 1170.95 proceeding].) Corrales’s ter se statement that the “harm to appellant is clear” does not demonstrate that it is reasonably probable absent any error he would have obtained a more
favorable result. Corrales could not have obtained a more favorable result on his section 1172.6 petition because the jury was not instructed on felony murder, the natural and probable consequences doctrine, or any other theory of imputed malice. As
a matter of law

, Corrales is thus ineligible for resentencing under9

section 1172.6, and cannot show prejudice from purported error by the trial court. (§ 1172.6, subd. (a) [ “A person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court” to have the conviction vacated].)

DISPOSITION
The order denying George Corrales’s petition for

resentenc ing is affirmed.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

C HANEY, J.

WEINGAR T

, J.