THE PEOPLE, Plаintiff and Respondent, v. JOSE ALBERTO HURTADO, Defendant and Appellant.
2d Crim. No. B319381
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 3/27/23
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 2015020888) (Ventura County)
We affirm the trial court on the doctrine of harmless error even though there is no error.
Jose Alberto Hurtado appeals an order denying his petition for resentencing under
In February 2022, Hurtado filed a petition for resentencing under
FACTS
On March 16, 2015, Felipe Sandoval was driving his car. His passengers were Jose Medina Gamez (Gamez) аnd Francisco Sandoval (Francisco).
Sandoval drove to an intersection and stоpped. The white Impala “got there and blocked [his] way.” (People v. Hurtado, supra, B271115.) Sandoval testified that Hurtado “pulled out” a “firearm,” pointed it at him, and “tried firing at [him].” (Ibid.) The gun “didn‘t fire.” (Ibid.) Hurtado pulled the trigger several times because the gun would not fire. He “racked the gun” by moving the top portion of the gun slide “back and forth” two or three times. (Ibid.) He pulled the trigger several times after he racked the gun, but the gun was jammed. Not surprisingly, Sandoval believed Hurtado was trying to kill him. Sandoval put the car “in reverse” and drove away. (Ibid.)
Gamez testified Hurtado “tried killing [them]” with a “nine-millimeter” gun. (People v. Hurtado, supra, B271115.) Hurtado pointed the gun “at [them]” and was “racking the slide” of the gun because it “jammed.” (Ibid.) Francisco testified that a white Impala “cut [them] off.” (Ibid.) Hurtado pointed a black gun at them; the gun “jammed.” (Ibid.) He appeared “to be angry.” (Ibid.) Francisco was “scared for [his] life.” (Ibid.) Police Detective James Crilly testified that a semiautomatic handgun has “a magazine that you load thе ammunition into and you put it into the grip frame or the pistol grip. You have to cycle the slide to get a round into the chamber so it can be fired.” (Ibid.) If there is a malfunction, one could rack the slide to fix the problem or “to get another round into the chamber.” (Ibid.) A video surveillance camera from a liquor store at the date and time of the incident showed a car pаssing by matching the description of the white Impala. Police found a white Impala at Hurtado‘s residence.
Police Detective Edgar Fernandez testified that Hurtado‘s brother, Luis, was a suspect in a “December 2014 serious and violent crime.” (People v. Hurtado, supra, B271115.) Sandoval witnessed the crime and had spoken with Fernandez “on several occasions.” (Ibid.) Police Officer Jaime Miranda testified that Sandoval was a friend of the victim in that case and that victim had died. Sandoval provided the police with information concerning the crime.
In 2022, Hurtado filed a petition for resentencing under
DISCUSSION
Noncompliance with the Statutory Resentencing Procedure
The statute allows defendants convicted of murder to file a resentencing petition by alleging thеy could not currently be be convicted of murder because of the changes in the law required by Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38 Cal.App.5th at p. 417.) If the petitioner made a prima facie showing for relief, the trial cоurt was required to issue an order to show cause for an evidentiary hearing. (
In 2021, the Legislature passed Senate Bill No. 775 (2021 Reg. Sess.) amending
Here the trial court did not appoint counsel for Hurtado, set a briefing schedule, or hold a hearing before deciding Hurtаdo did not make a prima facie showing for resentencing. It did not comply with the statutory requirements.
Violation of Hurtado‘s Constitutional Rights
Hurtado contends by not following the statutory procedure the trial court violated his cоnstitutional rights.
But a trial court‘s statutory omissions at the first step of the
“Thus, the trial court‘s failure to appoint counsel to represent Lewis was state law error only.” (Ibid.) “Typically, when an ‘error is purely one of state law, the Watson harmless error test applies.‘” (Ibid.)
Senate Bill No. 775 and the Lewis Harmless Error Rule
People v. Lewis, supra, 11 Cal.5th 952, was decided before the enactment of Sеnate Bill No. 775. Senate Bill No. 775 created a uniform procedure to be applied to all petitions for resentencing. When the Legislature creates a mandatory procеdure for courts to follow, noncompliance may require reversal of judgments rendered without compliance with that procedure. (In re J.W. (2020) 53 Cal.App.5th 347, 356-357; In re Jasmine G., supra, 127 Cal.App.4th at p. 1115; People v. Slutts, supra, 259 Cal.App.2d at p. 894.)
But in enacting Senate Bill No. 775, the Legislature knew thаt Lewis applied a harmless error standard in appropriate cases. The Legislature did not intend to replace the Lewis harmless error rule with an automatic reversal. Senate Bill Nо. 775 contains significant references to Lewis. Legislators stated the bill “[a]ddresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, [11 Cal.5th] at pр. 970-972).” (Stats. 2021, ch. 551, § 1, subd. (d), italics added.) They indicated that Senate Bill No. 775 “[c]odifies the holdings of People v. Lewis” involving the right to counsel and “the standard for determining the existence of a prima facie case.” (Stats. 2021, сh. 551, § 1, subd. (b), italics added.)
Senate Bill No. 775 reaffirmed Lewis with modifications, preserving Lewis‘s recognition of the trial court‘s authority to promptly screen out petitions by categorically ineligible defendants. The Legislature intended the Lewis harmless error standard tо continue following the enactment of Senate Bill No. 775.
The trial court found Hurtado‘s petition was not credible after reviewing the record of conviction. “‘[I]f the record . . . “contain[s] fаcts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.“‘” (People v. Lewis, supra, 11 Cal.5th at p. 971.) “The record of conviction will necessarily inform the triаl court‘s prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Ibid.)
The record supports the trial court‘s decision tо deny the petition because Hurtado was not eligible for relief. He alone attempted to commit murder. As the attempted murderer, he is “ineligible for relief” as “a matter of law,” and “therе is no reasonable probability [Hurtado] would have obtained a more favorable result if counsel had been appointed and given the opportunity to file a memorandum supрorting the petition“; consequently, the trial court‘s errors were “harmless.” (People v. Mancilla (2021) 67 Cal.App.5th 854, 864.)
But here harmless error is a misnomer. The trial court committed no error. But in cases like this one, the harmless error doctrine provides a reasonable method to avoid protracted hearings in past cases that are final and should stay that way. This also frees overburdened courts to decide current cases. We hope the Legislature solves this anomaly.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Richard B. Lennon, 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, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.