Opinion
C085831
06-11-2019
In re PETER SCHOEMIG on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-064573D) OPINION ON REMAND
Peter Schoemig was convicted by jury of first degree murder and sentenced to state prison for a term of 25 years to life. We affirmed the judgment entered against him in a nonpublished opinion. (People v. Sherman et al. (Nov. 9, 2012, C064156) [nonpub. opn.].) Our Supreme Court denied his petition for review.
We grant Schoemig's request to take judicial notice of the record in that appeal, C068971, brought in this court. (Evid. Code, § 452, subd. (d).)
One of the theories pursued by the prosecution at the trial was that Schoemig could be convicted of first degree murder based on his aiding and abetting the crime of torture or false imprisonment by violence or menace because a reasonable person in Schoemig's position would have known such a murder was a natural and probable consequence of either underlying crime. This is not a viable theory of first degree murder. As our Supreme Court held in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), an aider and abettor of a target offense may not be convicted of first degree murder under the natural and probable consequences doctrine. Instead, "punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine." (Id. at p. 166.)
Following Chiu, Schoemig filed a petition for writ of habeas corpus in the trial court asserting the decision in Chiu, supra, 59 Cal.4th 155 applies retroactively to his case and requires reduction of his first degree murder conviction to second degree murder. However, in affirming Schoemig's conviction on appeal, we concluded the jury must have convicted him of first degree murder under one of the prosecution's other theories of first degree murder, i.e., deliberate and premeditated murder or murder by poison. This was because, as we explained, "the natural and probable consequences theory as stated in the instructions, which we presume the jury followed, applied only to second degree murder" and "the jury convicted Schoemig of first degree murder, not second degree murder"; therefore, the jury "could not have relied on the natural and probable consequences theory." (People v. Sherman, supra, C064156, italics added.) The trial court agreed with this assessment and denied Schoemig's habeas corpus petition on that basis.
This claim was initially presented in a petition for writ of habeas corpus filed in this court in case No. C085107. We denied the petition without prejudice to filing in the superior court.
Thereafter, we summarily denied the same claim raised anew in the present habeas corpus petition. Our Supreme Court granted review and transferred the matter to this court with directions to vacate our order denying the petition and to issue an order to show cause returnable to this court as to why Schoemig is not entitled to the relief requested, citing Chiu, supra, 59 Cal.4th 155 and In re Martinez (2017) 3 Cal.5th 1216 (Martinez). Having done so, and having reviewed the return to the order to show cause, as well as Schoemig's traverse thereto, we conclude Schoemig is entitled to relief.
In Chiu, supra, 59 Cal.4th 155, our Supreme Court approved of the Court of Appeal's remedy "revers[ing] the first degree murder conviction" and "allowing the People to accept a reduction of the conviction to second degree murder or retry the greater offense" under a theory or theories other than natural and probable consequences. (Id. at p. 168.) In the context of a habeas corpus petition, the appropriate remedy would be to vacate, rather than reverse, that conviction and remand the matter to the trial court for the same election. (See In re Lopez (2016) 246 Cal.App.4th 350, 361-362.) However, following the enactment of Senate Bill No. 1437 (SB 1437), effective January 1, 2019, natural and probable consequences is no longer a viable theory of second degree murder. (Stats. 2018, ch. 1015, § 2.) The parties agreed during oral argument that Schoemig may not directly avail himself of SB 1437's ameliorative benefits in this matter. (See People v. Martinez (2019) 31 Cal.App.5th 719, 727-728; In re White (2019) 34 Cal.App.5th 933, fn. 2.) "Instead, [Penal Code] section 1170.95 establishes a procedure for such defendants to apply to the sentencing superior court to have their murder conviction vacated and be resentenced on any remaining counts, where certain conditions are met. ([Pen. Code, ]§ 1170.95, subd. (a)(1)-(3).)" (In re White, supra, at p. 933, fn. 2.) Nevertheless, the premise behind allowing the reduction to second degree murder as part of the Chiu remedy is even assuming the jury convicted the defendant of first degree murder under the improper theory, he or she was still guilty of second degree murder under that theory. While this was true at the time of Schoemig's conviction, we are vacating that conviction under Chiu and remanding the matter to the trial court. What happens on remand is governed by the law as it currently stands. Because the natural and probable consequences doctrine does not presently support conviction for second degree murder, we decline to direct the trial court to allow the People to accept reduction of Schoemig's conviction to second degree murder. Instead, we shall simply vacate the judgment of conviction and remand the matter for further proceedings, noting the People may retry Schoemig for murder on all currently viable theories.
FACTS
We provide a condensed version of the facts previously recited in our unpublished opinion affirming Schoemig's murder conviction.
During the Labor Day weekend in 2006, a group of friends and acquaintances, associated through their usage and dealing of drugs, converged on defendant Sherman's residence in Penryn. The residence included a house and detached garage that contained a separate room that served as an office. Sherman was a drug dealer. In the group was a man named Guy Farmer, who used drugs and participated in Sherman's drug business. Also in the group was defendant Schoemig, who met Sherman through a mutual drug connection. During the weekend, Sherman discovered chemicals used for making illegal drugs were missing. He became angry and accused Farmer and Schoemig of taking them. Both men denied taking the chemicals. Sherman threatened that if Farmer did not tell him where the chemicals were, Sherman would call someone to interrogate him. Sherman made good on this threat.
During the early morning hours of Wednesday, September 6, three men arrived at Sherman's residence (the interrogators). Sherman spoke with the men and pointed out Farmer and Schoemig as the ones to be interrogated, although it does not appear that Schoemig ever became the subject of interrogation. The men in the group went into the garage, and the women were told to stay in the house with the children. The interrogators questioned Farmer. He denied knowing where the chemicals were, so they hit him in the face and head with their fists. Farmer was afraid and urinated on himself. When Farmer swore that he did not know where the chemicals were, the men kicked and stomped on him, hit him in the knees and chest with hammers, and threatened to cut off his fingers. While Farmer screamed and vomited, Sherman and Schoemig demanded that he reveal the location of the chemicals.
During the interrogation, Farmer lost consciousness three times. Sherman provided methamphetamine to give to Farmer to wake him up. Schoemig administered three injections of the substance. At some point, Farmer threatened to call the police and tried to use a phone, but the interrogators stopped him. They also gagged and tied Farmer up with ropes provided by Schoemig. As Farmer lay on the ground in the fetal position, the interrogators tied his hands in front of his crotch. Sherman lit a blow torch and gave it to the interrogators. They burned the ropes around Farmer's wrists and, in the process, burned his crotch. They also burned Farmer's steel-toed boots. Farmer yelled for Sherman, but Sherman continued to demand to be told where the chemicals were. Farmer's feet caught fire, and he vomited profusely. Finally, Farmer said that he took the chemicals.
Sherman and Schoemig went into the office and prepared another injection of methamphetamine. Back in the garage, Farmer was unconscious, so the men covered him with a tarp and returned to the office to use methamphetamine. Later in the morning, Sherman paid the interrogators. Before they left, one of the interrogators told members of the group, including Schoemig, to make Farmer disappear within 48 hours. That night, someone used Sherman's home computer to research pharmaceuticals.
During the early morning hours of Thursday, September 7, one of the men heard noises coming from the garage. Sherman grabbed a handgun. Schoemig picked up a shotgun. They went to the garage, along with some of the other men who were at the residence. One of the men in the group entered through a window in the office area, and then let some of the men in through the office door that had been locked by Farmer. At the same time, Sherman entered the garage after he opened the garage door by using a keypad on the exterior of the garage. Farmer, who was not armed, ran to a truck inside the garage and locked himself in the cab. Sherman pointed the handgun at Farmer and told him to get out of the truck. Farmer complied and lay down on the floor, pleading with Sherman not to kill him. The men retied Farmer and gagged him.
Sherman and Schoemig went into the house, where they retrieved duct tape, a bandana, and handcuffs. Sherman also went into his master bathroom where he stored his own prescribed pain medications. They took the items back to the garage. Schoemig told Sherman that he needed to decide what to do with Farmer. Sherman replied: "Well, you know what's got to be done."
Schoemig injected something into Farmer, after which Farmer snored loudly, a sign of opiate overdose. The men again left Farmer in the garage, and Schoemig told at least one of the other men that they had given Farmer more drugs. Schoemig checked on Farmer twice during the next couple of hours. After checking on Farmer the second time, Schoemig returned to the residence to report that Farmer was dead.
Still early on Thursday morning, Schoemig and one of the other men used Sherman's truck to dispose of Farmer's body in an abandoned mine in Nevada. The following day, on Sherman's orders, Schoemig and another man thoroughly cleaned Sherman's garage using water and bleach. Sherman specifically ordered Schoemig to wipe down the blood splatter. Several days later, some of the other men disposed of rags containing vomit and blood. Sherman disposed of a tarp from the garage in a dumpster in Sacramento. The following month, Sherman had Schoemig remove tiles from the garage floor. Despite the thorough cleaning of the garage, a search revealed a blood stain containing Farmer's DNA.
Farmer's body was found in the abandoned mine about a month after the murder. An autopsy revealed Farmer died of either (1) strangulation or asphyxiation, or (2) lethal injection.
DISCUSSION
Schoemig "brings this writ proceeding to vindicate his rights under the California Supreme Court's recent opinion in [Chiu, supra, 59 Cal.4th 155]," arguing this decision applies retroactively to his case and requires reduction of his first degree murder conviction to second degree murder. We agree Chiu applies retroactively to Schoemig's case. We also conclude that while the precise error that occurred in Chiu did not occur in this case, ambiguity in the jury instructions coupled with the prosecutor's clear statements the jury could convict Schoemig of first degree murder on a natural and probable consequences theory entitles Schoemig to the relief he seeks.
I
General Principles Governing Habeas Corpus Relief
"The right to habeas corpus is guaranteed by the state Constitution and 'may not be suspended unless required by public safety in cases of rebellion or invasion.' (Cal. Const., art. I, § 11.) Frequently used to challenge criminal convictions already affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her freedom, such as a prisoner, to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner's last chance to obtain judicial review. . . . 'Historically, habeas corpus provided an avenue of relief for only those criminal defendants confined by a judgment of a court that lacked fundamental jurisdiction, that is, jurisdiction over the person or subject matter' [citation], but that view has evolved in modern times and habeas corpus now 'permit[s] judicial inquiry into a variety of constitutional and jurisdictional issues' [citation]. 'Despite the substantive and procedural protections afforded those accused of committing crimes, the basic charters governing our society wisely hold open a final possibility for prisoners to prove their convictions were obtained unjustly. [Citations.] A writ of "[h]abeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate." ' [Citations.]" (In re Reno (2012) 55 Cal.4th 428, 449-450 (Reno).)
Notwithstanding "the importance of the 'Great Writ,' " our Supreme Court has established procedural rules limiting its use. (In re Clark (1993) 5 Cal.4th 750, 763-764, superseded by statute on other grounds as stated in Briggs v. Brown (2017) 3 Cal.5th 808.) One such rule "has come to be known as the Waltreus rule; that is, legal claims that have previously been raised and rejected on direct appeal ordinarily cannot be reraised in a collateral attack by filing a petition for a writ of habeas corpus." (Reno, supra, 55 Cal.4th at p. 476.) This rule is "consistent with the very nature of habeas corpus" as "an extraordinary remedy applicable when the usual channels for vindicating rights—trial and appeal—have failed." (Id. at p. 477.) And because "habeas corpus cannot serve as a substitute for an appeal, . . . in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." (In re Dixon (1953) 41 Cal.2d 756, 759 (Dixon).) This has come to be known as the Dixon rule.
In re Waltreus (1965) 62 Cal.2d 218.
There are, however, exceptions to these rules. "One such exception applies 'when there has been a change in the law affecting the petitioner.' [Citation.] To trigger this exception, the change in the law must have retroactive effect." (Martinez, supra, 3 Cal.5th at p. 1222.) Schoemig argues this exception applies to his claim of Chiu error. (Chiu, supra, 59 Cal.4th 155.) As we explain immediately below, our Supreme Court has answered this question in Schoemig's favor.
II
Retroactivity of the Chiu Decision
In Chiu, supra, 59 Cal.4th 155, our Supreme Court held an aider and abettor of a target offense may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. (Id. at p. 166.) There, after words were exchanged between the defendant (Chiu) and another young man (Gonzales) outside a pizzeria, "a full-scale brawl" broke out "with as many as 25 people fighting." During the melee, Chiu told one of his friends (Che) to "[g]rab the gun." Che retrieved a gun from the trunk of a car and pointed it at Gonzales, who ran away. Che then shot and killed one of Gonzales's friends as Chiu yelled, "shoot him, shoot him." (Id. at pp. 159-160.)
At trial, the prosecution argued two theories of first degree murder, both based on principles of aiding and abetting. The first was that Chiu directly aided and abetted Che's commission of first degree murder. The second was that Chiu aided and abetted either assault or disturbing the peace, the natural and probable consequence of which was murder. (Chiu, supra, 59 Cal.4th at p. 160.) With respect to the latter theory, the jury was instructed with CALCRIM No. 403, stating the jury was required to determine whether or not: (1) Chiu aided and abetted either target offense; (2) a coparticipant, i.e., Che committed murder during the commission of the target offense; and (3) a reasonable person in Chiu's position would have known the commission of the murder was a natural and probable consequence of the commission of the target offense. If the jury answered each in the affirmative, Chiu was guilty of murder. (Ibid.) With respect to whether or not that murder was of the first degree, the jury was instructed, "the People had to prove that the perpetrator acted willfully, deliberately, and with premeditation . . . ." (Id. at p. 161, italics added.) Thus, under these instructions, the jury could find Chiu guilty of first degree murder if he was guilty of murder under the natural and probable consequences doctrine and Che acted willfully, deliberately, and with premeditation, regardless of whether or not Chiu shared that more culpable mental state.
Our Supreme Court held this was error, explaining: "In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. [Citation.] It is also consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citation.] [¶] However, this same public policy concern loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder. First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator commits a nontarget offense of murder with or without premeditation and deliberation has no effect on the resultant harm. The victim has been killed regardless of the perpetrator's premeditative mental state. Although we have stated that an aider and abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [citation], the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above-stated public policy concern of deterrence." (Chiu, supra, 59 Cal.4th at pp. 165-166.)
The court then turned to the question of whether or not the instructional error allowing the jury to convict Chiu of first degree premeditated murder under the natural and probable consequences doctrine was harmless error, setting forth the following standard of prejudice: "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder." (Chiu, supra, 59 Cal.4th at p. 167.) The court held the error was prejudicial under this standard and affirmed the Court of Appeal's disposition reversing the first degree murder conviction and allowing the People to either accept a reduction of the conviction to second degree murder or retry Chiu for first degree murder. (Id. at p. 168.)
In Martinez, supra, 3 Cal.5th 1216, our Supreme Court held, "Chiu is retroactive" (id. at p. 1222), citing In re Lopez, supra, 246 Cal.App.4th 350, in which our colleagues at the Fourth Appellate District came to the same conclusion. (Id. at p. 359.) As the Lopez court explained: " 'Whenever a decision undertakes to vindicate the original meaning of an enactment, putting into effect the policy intended from its inception, retroactive application is essential to accomplish that aim.' " (Id. at p. 359, quoting Woosley v. State of California (1992) 3 Cal.4th 758, 794.)
Thus, Chiu applies retroactively to this case. Whether it entitles Schoemig to the habeas corpus relief he seeks is another matter. We now turn to that question.
III
Schoemig is Entitled to Reduction of his First Degree Murder Conviction
The prosecution argued four theories of first degree murder against Schoemig: (1) murder by poison; (2) willful, deliberate, and premeditated murder; (3) felony murder (torture); and (4) the invalid natural and probable consequences theory, i.e., Schoemig aided and abetted either torture or false imprisonment by violence or menace, the natural and probable consequence of which was murder.
Here, as in Chiu, the jury was instructed with CALCRIM No. 403. As delivered to the jury, this instruction provided in relevant part: "To prove that the Defendant is guilty of murder the People must prove that, first, the Defendant is guilty of false imprisonment by violence or menace; second, during the commission of false imprisonment by violence or menace a coparticipant in that false imprisonment by violence or menace committed the crime of murder; and, third, under all of the circumstances a reasonable person in the Defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the false imprisonment by violence or menace." Thus, as in Chiu, supra, 59 Cal.4th 155, if the jury found each of these elements was proven, it could convict Schoemig of murder. But it is only a Chiu violation if the jury could have found Schoemig guilty of first degree murder under this theory.
Prior to giving this instruction, the jury was instructed on principles of aiding and abetting and on the elements of the crime of false imprisonment by violence or menace.
The jury was also instructed with CALCRIM No. 402 on the natural and probable consequences theory with torture, a charged offense, as the target offense. However, because the jury acquitted Schoemig of the crime of torture, it could not consistent with this instruction have found him guilty of murder under the prosecution's torture-based natural and probable consequences theory. We therefore mention this version of the theory no more.
With respect to the crime of murder and its degrees, also like Chiu, the jury was instructed with CALCRIM Nos. 520 and 521. The former instruction properly informed the jury regarding the elements of murder. The latter instruction, as delivered to the jury in this case, provided: "If you decide that the Defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The Defendant has been prosecuted for first degree murder under four theories: First, willful deliberate premeditated murder; second, murder by poison; third, felony murder rule; and, fourth, aiding and abetting. [¶] The Defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The Defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill. The Defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone is not determinative. [¶] [The] Defendant is guilty of first degree murder if the People have proved that the Defendant murdered by using poison. Poison is a substance applied externally to the body or introduced into the body that can kill by its own inherent qualities. [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden you must find the Defendant not guilty of first degree murder." (Italics added.)
The jury was then instructed with CALCRIM Nos. 540A and 540B regarding the felony murder theory of first degree murder. However, as we stated in our unpublished opinion affirming Schoemig's murder conviction, because the jury acquitted him of the crime of torture, it was "foreclosed from finding him guilty of first degree murder under the felony-murder (torture) theory." (People v. Sherman, supra, C064156.)
As the italicized portions of the instructions quoted above illustrate, the precise instructional error that occurred in Chiu did not occur in this case. Unlike Chiu, where the jury was instructed it could find Chiu guilty of first degree murder if it found him guilty of murder under the natural and probable consequences doctrine and the perpetrator, i.e., Che, acted willfully, deliberately, and with premeditation (Chiu, supra, 59 Cal.4th at p. 161), a careful reading of the instructions delivered in this case reveals the jury was instructed it could find Schoemig guilty of murder under the natural and probable consequences doctrine, but that murder was of the second degree unless he acted willfully, deliberately, and with premeditation, or he murdered by poison, or the felony murder rule applied.
Ordinarily, we presume jurors are able to understand, correlate, and follow instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) However, to expect the jury in this case to have grasped such a nuanced understanding of the instructions is asking too much, particularly when the prosecutor, trained in the law, stated several times that the jury could indeed find Schoemig guilty of first degree murder under the natural and probable consequences theory and defense counsel, also trained in the law, did not object. What we have in this case is not a situation of Chiu instructional error, but one of prosecutorial misstatement of the law. Defense counsel's failure to object to the argument is excused by the fact that Chiu, supra, 59 Cal.4th 155 had not yet been decided at the time of the argument. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237-238.)
Nor can we conclude these prosecutorial misstatements were harmless. "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 717, italics added.) Here, however, the correlated meaning of the quoted instructions is not in obvious conflict with the prosecutor's statements such that the jury was likely to have followed the former and disregarded the latter. This is especially true when one considers the fact that CALCRIM No. 521 also informed the jury Schoemig "has been prosecuted for first degree murder under four theories," one of which was "aiding and abetting." Aiding and abetting what the instruction does not say. But, as Schoemig argues, the jury might have understood this to mean aiding and abetting a target crime, the natural and probable consequence of which was murder. While this introductory line merely informs the jury Schoemig was being prosecuted for first degree murder under such a theory, not that the jury could convict him of that degree of murder, and while a nuanced reading of all the instructions did not support the prosecutor's argument in this regard, this ambiguity in the instructions makes it difficult to conclude the jury did not follow the prosecutor down the path of convicting Schoemig of first degree murder based on the improper theory.
Moreover, there is an instructional error in this case that bolsters our conclusion the prosecutor's misstatements were not harmless. As Schoemig points out, the jury was instructed with a prior version of CALCRIM No. 400 that informed the jury: "A person may be guilty of a crime in two ways: One, he or she may be direct -- may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed a crime. A person is guilty -- excuse me. A person is equally guilty of the crime whether he or she committed personally or aided and abetted the perpetrator who committed it. [¶] Under some circumstances if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during commission of the first crime." (Italics added.) The "equally guilty" language has been removed from the instruction as misleading. As the Court of Appeal explained in People v. Samaniego (2009) 172 Cal.App.4th 1148: " '[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person's guilt is determined by the combined acts of all the participants as well as that person's own mens rea. If that person's mens rea is more culpable than another's, that person's guilt may be deemed greater even if the other might be deemed the actual perpetrator.' " (Id. at p. 1164, quoting People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The court then explained the same reasoning "leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state," and concluded: "Consequently, [former] CALCRIM No. 400's direction that '[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether or not he or she committed it personally or aided and abetted the perpetrator who committed it' [citation], while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified." (Id. at pp. 1164-1165.) Similarly, People v. Nero (2010) 181 Cal.App.4th 504, involving former CALJIC No. 3.00, held analogous "equally guilty" language was "confusing and should be modified" even in unexceptional cases. (Id. at p. 518.)
This "equally guilty" language is especially troubling in conjunction with the prosecutor's Chiu-related misstatements in this case. This is because it provided support for the prosecutor's argument that Schoemig could be found guilty of first degree murder as an aider and abettor under the natural and probable consequences theory. In other words, while an aider and abettor cannot be found guilty of first degree murder under the natural and probable consequences theory, even where the murder that foreseeably results is committed by the perpetrator with premeditation and deliberation, the "equally guilty" language suggests both may be convicted of first degree murder. As Chiu, supra, 51 Cal.4th 155 makes clear, this is not the law.
This claim of instructional error was available to Schoemig at the time of his direct appeal. As we previously noted, "habeas corpus cannot serve as a substitute for an appeal, . . . in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." (Dixon, supra, 41 Cal.2d at p. 759.) However, here, we are merely noting additional confusion in the instructions prevents us from concluding the issue that is properly before us was harmless error.
DISPOSITION
The petition for a writ of habeas corpus is granted. Peter Schoemig's conviction for first degree murder is vacated and the matter is remanded to the trial court for further proceedings. The People shall have 30 days after the remittitur is filed to give notice of their intent to retry Schoemig for murder under a theory or theories other than natural and probable consequences.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.