Opinion
F085935
06-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL ALARDIN, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County, No. 205545 Nancy A. Leo, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2001, appellant and defendant Juan Manuel Alardin (appellant) was convicted after a jury trial of first degree murder and sentenced to 25 years to life in prison; the judgment was affirmed on direct appeal. In 2021, appellant filed a petition for resentencing pursuant to former section 1170.95 of the Penal Code, and it was denied by the trial court. Appellant filed an appeal from that order. While that appeal was pending, appellant filed another petition for resentencing. This court subsequently affirmed the denial of appellant's first petition, and appellant's petition for review was denied.
All further statutory citations are to the Penal Code.
The People requested this court take judicial notice of the records and nonpublished opinions from appellant's direct appeal that affirmed his conviction in People v. Alardin (April 9, 2003, F039369), rev. denied June 25, 2003, S115662 (Alardin I); and affirmed the trial court's denial of appellant's first petition for resentencing in People v. Alardin (August 24, 2022, F082777), rev. denied Nov. 9, 2022, S276518 (Alardin II). Appellant filed a separate request for judicial notice of the record and nonpublished opinion from his appeal from the denial of his first petition for resentencing (Alardin II), and acknowledged that opinion also addressed the record from his trial and conviction. On October 16, 2023, this court granted appellant's request for judicial notice of the record in Alardin II, which affirmed the trial court's denial of his first petition. In Alardin II, this court took judicial notice of the record from appellant's direct appeal from the judgment of conviction in Alardin I. We thus need not address the People's judicial notice request. We further note that the prosecution filed this court's nonpublished opinion in Alardin II as an exhibit in support of its opposition to appellant's second petition, without objection. The following factual and procedural backgrounds are from the records judicially noticed in Alardin I and Alardin II, and the record in this appeal.
Thereafter, the trial court conducted proceedings on appellant's second petition, and found that it was foreclosed by this court's ruling on the first petition based on collateral estoppel.
Appellant has now filed an appeal and argues that collateral estoppel did not bar the trial court from considering his second petition because there have been changes in the law and the court's ruling on his first petition was factually and legally erroneous. The People assert the second petition was barred by collateral estoppel, and there have been no changes in facts or law to prevent application of the collateral estoppel doctrine or to permit reconsideration of his petition.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
"On March 7, 1999, Robert Ybarra was standing outside a market in the small community of Grayson in Stanislaus County. A vehicle stopped near the market, a masked person got out of the front passenger door with a shotgun, and the gunman fired multiple shots into Ybarra's head and upper torso. Ybarra died at the scene.
"Appellant . . ., and codefendants Felipe Solorio (Felipe) and Jeffrey Muniz, were charged with first degree murder. Felipe evaded arrest and was not apprehended. Muniz entered into a negotiated disposition and pleaded guilty to assault with a deadly weapon in exchange for his testimony against appellant. Miguel 'Mike' Garcia was present during the murder and turned himself in to the sheriff's department shortly after the shooting; he was later released from custody and not charged with any offenses in exchange for his testimony against appellant." (Alardin II, supra, F082777.)
Appellant's trial
"On July 12, 2000, an information was filed in Stanislaus County Superior Court charging appellant Alardin, and codefendants Felipe Solorio and Jeffrey Muniz, with count 1, first degree murder of Robert Ybarra (§ 187).
"As to appellant, it was further alleged he personally used a firearm (§ 12022.5) and was a principal in the offense when at least one principal intentionally and personally discharged a firearm, proximately causing bodily injury to a person other than an accomplice (§§ 12022.7, 12022.53, subds. (d) &(e)(1).) Appellant pleaded not guilty and denied the enhancements.
"On February 15, 2001, the [trial] court granted appellant's motion for severance of his trial from the codefendants.
"In approximately March 2001, codefendant Muniz pleaded guilty to assault with a firearm pursuant to a negotiated disposition in which he agreed to testify against appellant and was sentenced to four years in prison. An arrest warrant was issued for codefendant Solorio, but he was still wanted at the time of appellant's trial.
"On April 9, 2001, appellant's jury trial began with motions in limine." (Alardin II, supra, F082777.)
"Based on testimony from Garcia, Muniz, and the victim's friends, the prosecution introduced evidence that appellant, [Solorio], Muniz, and Garcia were in the car, Muniz supplied the shotgun, Felipe was driving, appellant was the gunman, and the motive was revenge because Ybarra had previously been in a fight with Felipe's brother. Appellant relied on an alibi defense based on the testimony of family and friends, who belatedly came forward at trial to claim he was elsewhere at the time of the shooting." (Alardin II, supra, F082777.)
Convictions and Sentence
"[O]n May 2, 2001, the jury found appellant guilty of first degree murder. The jury was unable to reach a finding on the personal discharge enhancement. The court declared a mistrial ... and granted the prosecution's motion to dismiss." (Alardin II, supra, F082777.)
On September 18, 2001, the trial court denied probation and sentenced appellant to 25 years to life for first degree murder, to be served consecutively to the sentence imposed in an unrelated case.
Direct Appeal
On April 9, 2003, this court filed the nonpublished opinion in Alardin I, appellant's direct appeal, and affirmed the judgment.
FIRST PETITION FOR RESENTENCING
"On March 12, 2021, appellant filed, in pro. per., a petition for resentencing of his first degree murder conviction pursuant to former section 1170.95, and requested appointment of counsel.
"Appellant filed a supporting declaration consisting of a preprinted form, and checked boxes that he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and he could not now be convicted of first or second degree murder under the amended versions of sections 188 and 189 because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of first degree murder, and he was not a major participant and did not act with reckless indifference to life." (Alardin II, supra, F082777.)
The Trial Court's Denial of the Petition
The trial court did not appoint counsel, request a response from the People, or hold a hearing on appellant's petition.
"On or about April 9, 2021, the court filed an order that denied appellant's request for counsel, and his petition without issuing an order to show cause. The court's order summarized the procedural history leading to appellant's conviction and sentence, addressed the statutory requirements to obtain relief that were applicable at the time, and made the following findings.
" 'Prior to the appointment of counsel, the trial court shall review the petition and determine if the petitioner has made a prima facie showing that the petition falls within the provisions of this section. [Citation.] The court determines, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief. [Citation.] The court is not limited to the allegations in the petition when determining whether the petitioner has stated a prima facie claim for relief under [former] section 1170.95. The court may consider the entire record of conviction and subsequent appellate opinion. [Citation.]
" '[Appellant] has not made a prima facie showing he is entitled to relief. Though [appellant] avers otherwise the record of proceedings clearly indicated [appellant] was the actual killer and could still be convicted of murder under revised ... sections 188 and 189. The record of conviction establishes [appellant's] ineligibility for resentencing as a matter of law. [(Italics omitted.)]
" 'The court has now provided a "brief statement of the reasons" why the petition is denied. (Cal. Rules of Court, rule 4.551(g).) Because the court concludes [appellant] is not reasonably entitled to relief, and because this determination does not require resolution of a contested question of fact, no evidentiary hearing is necessary (Cal. Rules of Court, rule 4.551(f).)' (Italics added.) "On May 10, 2021, appellant filed a notice of appeal from the court's order that denied his petition." (Alardin II, supra, F082777, fn. omitted.)
As we will explain, the superior court denied appellant's first petition based on a series of cases that were applicable at the time but have since been overruled by the Supreme Court and statutory amendments. (See, e.g., People v. Lewis (2021) 11 Cal.5th 952, 957-958 (Lewis).)
THIS COURT'S OPINION ON THE FIRST PETITION
On August 24, 2022, this court filed the nonpublished opinion in Alardin II that affirmed the trial court's denial of appellant's first petition for resentencing.
We noted that when appellant filed his petition and the trial court ruled on it, then-existing authorities permitted the court to make the prima facie determination without appointing counsel or conducting a hearing. We explained the procedures to make the prima facie determination were clarified in Lewis, supra, 11 Cal.5th 952 and amendments to former section 1170.95, later renumbered as section 1172.6. The statutory amendments codified the holding in Lewis that "[u]pon receiving a petition in which the information required by this subdivision is set forth .., if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1172.6, subd. (b)(3).) After the petition is filed, the prosecution shall file a response and the petitioner may serve a reply. (Id., subd. (c).) After the parties have the opportunity to submit briefs, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172,6, subd. (c).) If the petitioner makes the prima facie showing, "the court shall issue an order to show cause." (Ibid.) If the court declines to issue an order to show cause, "it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
The prima facie determination is a question of law, and the trial court may deny a petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) Lewis held the opinion from a petitioner's direct appeal is part of the record of conviction that may be considered to determine whether the petition made a prima facie showing of resentencing eligibility. (Lewis, at p. 972.) The role of the appellate opinion is circumscribed, however, and the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at p. 972, fn. omitted.)
Lewis announced a prejudicial error standard under People v. Watson (1956) 46 Cal.2d 818 (Watson), that if the trial court failed to appoint counsel or violated the petitioner's statutory rights under section 1170.95, the petitioner must "therefore 'demonstrate there is a reasonable probability that in the absence of the error he [or she] .. would have obtained a more favorable result.'" (Lewis, supra, 11 Cal.5th at p. 974.)
Therefore, to demonstrate prejudice from the denial of a petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; Watson, supra, 46 Cal.2d at p. 836.)
In Alardin II, we found Lewis and the amendments to section 1172.6 were retroactive and applicable to appellant's case because it was not yet final on appeal. Under the newly applicable procedures, we held the trial court erroneously made the prima facie determination on appellant's petition without granting his request for appointment of counsel, obtaining briefing from the parties, or conducting a hearing. The court's decision to deny the petition without issuing an order to show cause appeared to be based on making impermissible factual findings that appellant was the actual killer. (Alardin II, supra, F082777.)
We held "[t]he superior court thus violated section 1172.6 by denying appellant's petition without appointing counsel, requesting briefing, conducting a hearing, and possibly engaging in premature factfinding at the prima facie stage. (§ 1172.6, subds. (c), (d)(3).) [¶] Nevertheless, we may affirm the court's denial of the petition if appellant was not prejudiced by these statutory errors. (Lewis, supra, 11 Cal.5th at pp. 972-974.) Appellant must show that absent the statutory errors, there is a reasonable probability he would have obtained a more favorable result. (Ibid.; Watson, supra, 46 Cal.2d at p. 836.)" (Alardin II, supra, F082777.)
We turned to the procedural history and record of conviction to determine if the trial court's statutory errors when it denied appellant's petition were prejudicial. We explained that in making the prima facie determination, the record of conviction included the jury instructions and the parties' closing arguments.
Appellant argued that even if the jury instructions were considered, the jury was instructed on both the felony-murder rule and the natural and probable consequences doctrine, and an order to show cause should be issued for an evidentiary hearing. We acknowledged that based on the jury's inability to reach a finding on the firearm enhancement, the instructions raised the possibility that the jury did not convict appellant as the actual killer but as an aider and abettor to first degree premeditated murder. (Alardin II, supra, F082777, fn. omitted.)
We concluded the entirety of the record of conviction, consisting of the instructions, closing arguments, and the verdict, "establish he was convicted as a direct aider and abettor, and not on an indirect theory based on an imputed malice and the natural and probable consequences doctrine." The jury was instructed on the felony-murder rule, but "another instruction clarified felony murder and assault with a firearm only applied to second degree murder" and the jury was instructed that "it could only rely on assault with a firearm to convict appellant of second degree murder, a verdict that was not returned in this case." The trial court correctly instructed on direct aiding and abetting, but also included an instruction with language about the natural and probable consequences doctrine. "However, the jury was not instructed about any target or nontarget offenses that could have resulted in appellant's conviction for first degree premeditated murder being based on indirect aiding and abetting, the natural and probable consequences doctrine, or a theory of imputed malice. While the jury was instructed about other offenses in addition to the charged crime of murder, the entirely of the instructions prohibited the jury from relying on any of the other offenses to convict appellant of first degree premeditated murder." (Alardin II, supra, F082777, fn. omitted.)
"We thus conclude the instructions did not permit the jury to convict appellant of first degree premeditated murder based on the commission of assault with a firearm, misdemeanor brandishing, or any other target/nontarget offenses that would have implicated imputed malice. The instructions only permitted the jury to convict appellant of first degree premeditated murder based on express malice and his intent to kill, and the aiding and abetting instructions were limited to the direct theory and did not permit a first degree murder conviction under an indirect theory of imputed malice. We presume the jury followed the court's instructions in reaching its verdict. While the instructional language about natural and probable consequences was partially correct in law, it was irrelevant to the jury's verdict of first degree premeditated murder and it 'must have been understood, and dismissed, by the jury as mere surplusage' that was 'too insignificant to have affected the outcome within a "reasonable probabilit[y]"' under Watson." (Alardin II, supra, F082777.)
The trial court's statutory errors and improper factual findings were "not prejudicial under Watson because the jury instructions and verdict establish that appellant was convicted of first degree premeditated murder based on direct aiding and abetting, and [he] was ineligible for relief as a matter of law." (Alardin II, supra, F082777.)
On November 9, 2022, the Supreme Court denied appellant's petition for review in Alardin II.
APPELLANT'S SECOND PETITION
On May 18, 2022, while his appeal from the first petition in Alardin II was pending before this court, appellant filed, in propria persona, a second petition for resentencing in the trial court, again checking boxes on a preprinted form that requested resentencing and declared he was eligible for resentencing.
The second petition was filed in May 2022, but appellant signed and dated the document on March 4, 2021-the same date he signed the first petition.
As set forth above, on August 24, 2022, this court filed the nonpublished opinion in Alardin II that affirmed the trial court's order that denied appellant's first petition without issuing an order to show cause, and found the court's statutory errors were not prejudicial because appellant was ineligible for resentencing as a matter of law.
On October 13, 2022, the trial court appointed counsel to represent appellant on his second petition for resentencing.
On December 8, 2022, the prosecution filed an opposition and attached Alardin II as a supporting exhibit. The prosecution asserted that appellant's petition for resentencing had already been denied and the trial court's order had been affirmed on appeal, and argued his second petition should also be denied based on the collateral estoppel effect of the appellate opinion.
On December 15, 2022, appellant's counsel filed a reply and reviewed the applicable legal and statutory authorities. The reply stated the court could not make factual findings and it should independently review the record to "determine whether he has presented a prima facie case for relief or whether he is estopped from seeking further relief," and issue an order to show cause.
On appeal, appellant states his reply brief argued "that under prevailing law the trial court should accept appellant's factual allegations as true and decide such issues only after issuing an order to show cause and an evidentiary hearing, citing, inter alia, People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, and People v. Davenport (2021) 71 Cal.App.5th 476, 483." Appellant's reply brief generally reviewed the applicable law based on Lewis and the amendments to section 1172.6, and it did not make any specific arguments about why the record of conviction in this case supported issuance of an order to show cause on his second petition.
Denial of Second Petition
On February 24, 2023, the trial court held a hearing on appellant's second petition.
The parties submitted the matter on the briefs. The court denied the petition and stated that based on this court's nonpublished opinion on his first petition, appellant was estopped from filing the second petition. The court filed an order that reviewed the procedural background for appellant's trial, conviction, and first petition for resentencing.
"On August 24, 2022, the Fifth Appellate District Court issued an unpublished decision affirming the summary denial of [appellant's] petition. The appellate court determined that [appellant] was convicted on a theory of direct aiding and abetting with malice and not on any theory of imputed malice. As a matter of law, the appellate court found that [appellant] is not entitled to resentencing. The appellate court also considered the [p]etition in light of the new language under Senate Bill [No.] 775 [(2021-2022 Reg. Sess.) (Senate Bill 775)] and [Lewis, supra,] 11 Cal.5th 952.
"Based on the [c]ourt's review of the record of conviction, [appellant] cannot meet the prima facie standard for resentencing. Because [appellant] was a direct aider and abettor who acted with malice, he is not entitled to resentencing as a matter of law and his petition is denied."
DISCUSSION
The instant appeal is from the trial court's denial of appellant's second petition for resentencing. Appellant argues the doctrine of collateral estoppel does not apply to this court's ruling in Alardin II because we relied on "an alternative legal theory to deny a section 1172.6 petition at the prima facie stage." Appellant further argues there has been a "subsequent ... significant development in relevant law" that negates application of collateral estoppel.
I. Subsequent Petitions
We first address whether appellant could have filed a second petition for resentencing while his appeal was pending on the denial of his first petition.
A petitioner may file a successive petition under section 1172.6 if it is based on new legal authority. (People v. Farfan (2021) 71 Cal.App.5th 942, 946-947, 950-951.) Farfan held the defendant in that case could file a successive petition because the Supreme Court's ruling in Lewis demonstrated the "still-evolving state of [former section] 1170.95 jurisprudence" such that a second petition would not be barred by collateral estoppel. (Farfan, at p. 950.) While Farfan held the defendant in that case could file a second petition, it also held defendant was still ineligible for relief as a matter of law based upon the jury's findings. (Id. at p. 947.)
In this case, appellant filed his first petition in 2021, it was summarily denied, and he filed the appeal in Alardin II. At the time the trial court denied his petition, former section 1170.95 was being interpreted to permit the court to make factual findings and summarily deny the petition without appointing counsel, conducting a hearing, or issuing an order explaining its reasons. (See, e.g., Lewis, supra, 11 Cal.5th at pp. 957-958.)
While his appeal in Alardin II was pending, Lewis was decided and section 1172.6 was substantially amended, clarifying the requisite procedures for the trial court to make the prima facie determination.
In 2022, appellant filed his second petition after Lewis was decided and the amendments to section 1172.6 became effective. The trial court correctly declined to address the second petition until the appeal on the first petition was completed. (See, e.g., People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.) Once Alardin II was filed, the court properly considered the second petition because there were the new statutory and case authorities that did not exist at the time the court summarily denied his first petition.
Appellant was thus permitted to file the second petition because there were the new statutory and case authorities that did not exist at the time the trial court summarily denied his first petition. Whether his second petition was meritorious is a different matter.
II. The Merits of Appellant's Second Petition
While appellant's second petition would have been determined based on the amendments to section 1172.6, appellant already received the benefits of those amendments in Alardin II. This court held Lewis and section 1172.6 were fully retroactive to appellant's appeal from the trial court's denial of his first petition. As explained above, we applied the newly-applicable legal authorities to find the trial court erroneously made factual findings and failed to appoint counsel when it summarily denied his first petition. We then found the court's statutory errors were not prejudicial under Lewis and Watson since appellant was ineligible for resentencing as a matter of law because as the record of conviction established, he was convicted of first degree murder as a direct aider and abettor.
Thus, appellant was not foreclosed from filing a second petition under the circumstances but, by the time the trial court considered appellant's second petition, this court's opinion in Alardin II had been filed based on the newly applicable law, and the Supreme Court denied appellant's petition for review in that case.
Appellant asserts the trial court erroneously relied on collateral estoppel to deny his second petition, and argues the doctrine is inapplicable to the instant case because the court's denial of his first petition was not upheld in Alardin II. Appellant notes Alardin II held the court erroneously made factual findings when it denied his first petition. Appellant asserts issue preclusion cannot apply because this court affirmed the denial of appellant's first petition based on legal theories of direct aiding and abetting that were not addressed by the court when it denied appellant's first petition. Appellant further argues there have been significant changes in the law that warrant re-examination of the issues raised by his petition.
A. Collateral Estoppel.
" 'In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel.' [Citation.] 'The doctrine of collateral estoppel, or issue preclusion, is firmly embedded in both federal and California common law. It is grounded on the premise that "once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed." [Citation.] "Collateral estoppel ... has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." '" (People v. Curiel (2023) 15 Cal.5th 433, 451 (Curiel).)
" 'As traditionally understood and applied, issue preclusion bars relitigation of issues earlier decided "only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding."' [Citation.] 'The party asserting collateral estoppel bears the burden of establishing these requirements.'" (Curiel, supra, 15 Cal.5th at pp. 451-452.)
An equitable exception to the general rule of issue preclusion" 'holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.' [Citation.] 'This exception ensures basic fairness by allowing for relitigation where "the change in the law [is] such that preclusion would result in a manifestly inequitable administration of the laws." [Citation.] It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion- "preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation" [citation]-are at an ebb.'" (Curiel, supra, 15 Cal.5th at p. 454.)
As noted by the parties, there is a disagreement in section 1172.6 cases as to whether collateral estoppel may be applied to a subsequent petition when the previously-decided contested issue is the trial court's prima facie determination. (People v. Medrano (2024) 98 Cal.App.5th 1254, 1259 [appellate court opinion that affirmed a trial court's prima facie finding on a § 1172.6 petition constitutes law of the case to bar defendant's second petition]; cf. People v. Harden (2022) 81 Cal.App.5th 45, 50 ["the law-of-the-case doctrine cannot conclusively establish disentitlement" to a prima facie determination before an evidentiary hearing is held].)
Assuming without deciding that this court's opinion in Alardin II constitutes law of the case to bar consideration of appellant's second petition, we turn to appellant's contentions that there have been subsequent developments in the law that require remand of the matter for issuance of an order to show cause and an evidentiary hearing on his second petition.
B. Direct Aiding and Abetting
As previously explained, this court concluded in Alardin II that the trial court's failure to appoint counsel and other statutory errors were not prejudicial under Lewis and Watson. We reviewed the record of conviction consisting of the jury instructions, closing arguments, and verdicts, and concluded appellant was convicted as a direct aider and abettor who acted with the intent to kill. The Supreme Court denied review in Alardin II in November 2022. Since our opinion in Alardin II, the definition of "the record of conviction" has not been changed or modified to exclude jury instructions, closing arguments, and verdicts. (See, e.g., People v. Bodely (2023) 95 Cal.App.5th 1193, 1201; People v. Lovejoy (2024) 101 Cal.App.5th 860; People v. Flores (2023) 96 Cal.App.5th 1164.)
In addition, direct aiding and abetting continues to be a valid theory of murder after the amendments to sections 188 and 189. "[A]fter the enactment of Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.) (Senate Bill 1437)], a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought. [Citation.] It is an invalid theory. Murder liability requires a different, valid theory, such as direct aiding and abetting." (Curiel, supra, 15 Cal.5th at p. 462.) "In general, to establish liability for murder under the theory of direct aiding and abetting, 'the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.'" (Id. at p. 466.) "[T]he requisite mens rea for direct aiding and abetting [is] 'knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends.' [Citation.] In other words, the aider and abettor must have 'knowledge of the unlawful purpose of the perpetrator' and 'the intent or purpose of committing, encouraging, or facilitating' the commission of the offense." (Id. at p. 468.)
We turn to appellant's arguments based on subsequently decided opinions.
C. Reyes
Appellant asserts Alardin II also has been undermined by People v. Reyes (2023) 14 Cal.5th 981 (Reyes) because it "clarified the law regarding the legal requirements for a finding of direct aiding and abetting second degree murder." (Italics added.)
In Reyes, the defendant was convicted of second degree murder. He was present with several other members of a gang when the killing occurred, the evidence showed he was not the actual killer, and the prosecutor conceded he was not the shooter. The prosecutor's principal arguments were that the defendant intended to aid either an assault or disturbing the peace, or he conspired to commit one of those offenses. The jury was instructed on the then-applicable natural and probable consequences theory, that the defendant could be convicted of second degree murder if the jury determined he aided and abetted one of those target crimes and the murder was a natural and probable consequence of the offense. (Reyes, supra, 14 Cal.5th at pp. 984, 989.) The prosecutor "relied on two theories of aiding and abetting to establish [the defendant's] liability for murder. After conceding that [the defendant] was not the shooter, the prosecutor informed the jury that it could find [the defendant] guilty of second degree murder under a theory of direct aiding and abetting or under a natural and probable consequences theory." (Id. at p. 990.) The trial court denied the defendant's section 1172.6 petition for resentencing and found he was still guilty of murder under the implied malice instruction, in that he was a direct perpetrator who acted with implied malice. (Id. at pp. 987-988.)
Reyes reversed the trial court's ruling and held "it cannot be said that [the defendant] committed an act that 'proximately caused' [the victim's] death. [Citation.] The prosecutor proceeded on the theory that [another suspect] shot [the victim], and no evidence was presented that [the defendant's] conduct was a 'substantial factor' that contributed to the shooting." (Reyes, supra, 14 Cal.5th at pp. 988-989.)
Reyes held the trial court did not "properly underst[and] the elements of direct aiding and abetting" based on implied malice murder. (Reyes, supra, 14 Cal.5th at p. 990.) In denying the defendant's petition, the court "said it was 'guided by the principles' of implied malice murder in CALCRIM No. 520. That instruction alone, however, does not encompass the elements of aiding and abetting implied malice murder .... By relying exclusively on the legal principles outlined in CALCRIM No. 520, the trial court did not appear to recognize that implied malice murder requires, among other elements, proof of the aider and abettor's knowledge and intent with regard to the direct perpetrator's life endangering act." (Reyes, supra, 14 Cal.5th at p. 991, italics in original.)
Reyes concluded "the trial court erred in sustaining [the defendant's] second degree murder conviction, whether it relied on a direct perpetrator theory or on a direct aiding and abetting theory. We find no substantial evidence to support a finding that [the defendant] was the direct perpetrator of [the victim's] murder. And to the extent the trial court denied [the defendant's] petition under a direct aiding and abetting theory, the court committed reversible error by misunderstanding the legal requirements of direct aiding and abetting implied malice murder. We agree with the Attorney General that remand is appropriate under these circumstances.." (Reyes, supra, 14 Cal.5th at p. 992.)
D. Curiel
Appellant asserts Alardin II also has been undermined by Curiel. In Curiel, the defendant was convicted of first degree murder, and the jury found the gang-murder special circumstance true. The jury instructions identified the defendant's accomplice as the alleged actual perpetrator of the murder. The gang-murder special circumstance instruction required the jury to find the defendant had the specific intent to kill the victim. (Curiel, supra, 15 Cal.5th at pp. 440-441, 445-446.) The jury was instructed on both direct aiding and abetting; and also on aiding and abetting based on the natural and probable consequences doctrine, with the target offenses identified as disturbing the peace and carrying a concealed firearm by a gang member. The jury was also instructed on conspiracy liability for murder based on those target crimes. (Curiel, at pp. 445-447.) While the jury found the defendant guilty of first degree murder with the special circumstance, "it was not required to identify which theory it found persuasive." (Id. at p. 467.)
The trial court denied the defendant's petition for resentencing based on the jury instructions, and held the jury was required to find he had the intent to kill for the gang-murder special circumstance and that finding refuted his allegation that he could not be convicted of murder under current law. (Curiel, supra, 15 Cal.5th at pp. 440, 447.)
Curiel held the trial court's ruling was erroneous because the instructions showed the jury "could have relied on the natural and probable consequences doctrine to convict [the defendant] of murder, and the findings required under that theory-even when combined with the finding of intent to kill required by the gang-murder special circumstance-do not encompass all of the elements of any theory of murder under current law." (Curiel, supra, 15 Cal.5th at p. 471.)
Curiel held the amendments to section 188 enacted by Senate Bill 1437 "did not simply 'add the element of malice aforethought' to existing theories of murder liability. [Citation.] It eliminated the doctrine of natural and probable consequences in its entirety ...." (Curiel, supra, 15 Cal.5th at p. 462.) As a result, "a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought. [Citation.] It is an invalid theory. Murder liability requires a different, valid theory, such as direct aiding and abetting." (Id. at p. 462.)
"Because the jury was instructed on the natural and probable consequences doctrine, the jury was required to find only that [the defendant] knew that [the direct perpetrator] intended to commit one of the underlying target offenses and that [the defendant] intended to aid him in that offense, not murder. Nor was the jury required to find that the underlying target offenses, themselves, were dangerous to human life. While the jury separately found [the defendant] intended to kill, such an intent standing alone is insufficient to establish the requisite mens rea for aiding and abetting murder..... Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another's acts. The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator's acts that confers liability on the aider and abettor." (Curiel, supra, 15 Cal.5th at p. 468, italics in original.)
Curiel concluded the jury's finding of the defendant's intent to kill pursuant to the special circumstance instruction" 'shed[s] no light on whether [the defendant] actually encouraged or assisted the perpetrator in carrying out the murder'" as required for direct aiding and abetting. (Curiel, supra, 15 Cal.5th at p. 468, italics in original.) "[T]he mens rea required of a direct aider and abettor includes knowledge of the perpetrator's intent to commit an unlawful act constituting the offense and the intent to aid the perpetrator in its commission. [Citation.] The jury's verdicts, viewed in light of the court's jury instructions, do not show the jury necessarily made factual findings covering these elements. Thus, the trial court could not reject [the defendant's] prima facie showing on this basis, and it should have proceeded to an evidentiary hearing on [the defendant's] resentencing petition." (Id. at p. 441.)
Curiel cautioned that its holding was limited to the jury instructions and verdict in that case, and did not necessarily apply "to other cases where the jury found intent to kill, or even other cases where the jury found true the gang-murder special circumstance. The jury instructions in other cases might be materially different, and they might therefore have required different factual findings by the jury." (Curiel, supra, 15 Cal.5th at p. 471.)
E. Analysis
The holdings in Reyes and Curiel have not undermined this court's analysis in Alardin II-that the record of conviction showed appellant was convicted as a direct aider and abettor, and not on an indirect theory based on implied malice and the natural and probable consequences doctrine. In contrast to Reyes, appellant was convicted of first degree premeditated murder, and not second degree implied malice murder; and in contrast to Curiel, we did not rely on intent to kill language in a special circumstance instruction to find appellant was ineligible for resentencing.
As we extensively discussed in Alardin II, "[t]he jury was instructed on direct aiding and abetting, a theory that remains valid after the amendments enacted by Senate Bills 1437 and 775-that a person aids and abets when, 'with knowledge of the unlawful purpose of the perpetrator, and . . . with the intent or purpose of committing or encouraging or facilitating the commission of the crime, . . . by act or advice aids, promotes, encourages, or instigates the commission of the crime,' and that the aider and abettor must 'share the criminal intent with which the crime was committed.' The entirety of the instructions for murder, premeditation, and malice establishes the jury could only convict appellant of first degree premeditated murder if it found he committed a murder 'perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought.' (Italics added.)" We further found that while the jury was instructed on felony murder, the instruction expressly limited that theory to second degree murder. Finally, while the jury received an instruction with partial language about natural and probable consequences, "the jury was not instructed about any target or nontarget offenses that could have resulted in appellant's conviction for first degree premeditated murder being based on indirect aiding and abetting, the natural and probable consequences doctrine, or a theory of imputed malice. While the jury was instructed about other offenses in addition to the charged crime of murder, the entirely of the instructions prohibited the jury from relying on any of the other offenses to convict appellant of first degree premeditated murder."
We thus conclude there have been no new legal developments to undermine this court's conclusion in Alardin II that appellant was ineligible for resentencing as a matter of law. We again find that while the trial court erroneously denied appellant's petition without complying with section 1172.6's procedural requirements, the court's errors were not prejudicial because appellant was ineligible for resentencing as a matter of law.
DISPOSITION
The trial court's order of February 24, 2023, denying appellant's second petition for resentencing, is affirmed.
[*]Before Levy, Acting P. J., Poochigian, J. and Detjen, J.