Opinion
F081878
06-17-2024
THE PEOPLE, Plaintiff and Respondent, v. SANSON NOE ANDRADE, Defendant and Appellant.
Randy S. Kravis, 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 Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, Super. Ct. No. CRM012561B Carol K. Ash, Judge.
Randy S. Kravis, 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 Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Petitioner Sanson Noe Andrade petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his murder conviction (§ 187, subd. (a)). The trial court summarily denied the petition at the prima facie stage on the ground the jury's verdict, including its true finding on a gang-murder special circumstance, established petitioner's ineligibility for resentencing as a matter of law. On appeal, petitioner contends the trial court prejudicially erred by denying the petition for resentencing without first appointing counsel.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
In our initial opinion, we held the court erred in failing to appoint counsel, but the error was harmless because the special circumstance finding established petitioner was ineligible for resentencing as a matter of law. Accordingly, we affirmed the trial court's order denying the petition.
Petitioner petitioned the California Supreme Court for review. The high court granted review (S273659) and eventually transferred the matter to us with directions to vacate our opinion and reconsider the cause in light of People v. Curiel (2023) 15 Cal.5th 433 (Curiel). Pursuant to the high court's order, we vacated our prior opinion. The parties submitted supplemental briefing in which they now agree that the record does not establish petitioner's ineligibility for resentencing as a matter of law and the trial court's order denying the petition must be reversed.
We accept the People's concession that the record does not establish petitioner's ineligibility for resentencing as a matter of law. We therefore reverse the order denying the petition and remand with directions to issue an order to show cause and conduct such further proceedings as necessary pursuant to section 1172.6, subdivision (d).
We dispense with a statement of facts as the facts underlying the offense are not pertinent to our consideration of the issues raised on appeal.
On May 29, 2012, the Merced County District Attorney filed a first amended information charging petitioner with the first degree murder of Tommy H. (§ 187, subd. (a); count 1), the premeditated attempted first degree murder of Randy H. (§§ 187, subd. (a), 189, 664, subd. (a); count 2), assault with a semiautomatic firearm as to both Tommy and Randy (§ 245, subd. (b); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). As to count 1, the information alleged a gang-murder special circumstance. (§ 190.2, subd. (a)(22).) As to counts 1 through 3, the information alleged petitioner committed the offense for the benefit of and in furtherance of a criminal street gang (§ 186.22, subd. (b)(1), (5)). As to counts 1 and 2, the information alleged a principal personally used a firearm proximately causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
On June 6, 2012, a jury found petitioner guilty as charged and found all enhancements and the special circumstance true. On July 16, 2012, the trial court sentenced petitioner to a term of life without the possibility of parole on count 1, plus a term of life with the possibility of parole on count 2, plus two consecutive terms of 25 years to life for the associated firearm enhancements. The gang enhancements to counts 1 and 2 were stricken. Sentence on the remaining counts and enhancements was imposed and stayed. On appeal, this court affirmed. (People v. Andrade (Oct. 31, 2014, F065468 [nonpub. opn.] (Andrade).)
On June 10, 2019, petitioner, in propria persona, filed a petition for resentencing on his murder conviction pursuant to section 1172.6. The trial court did not appoint counsel or permit further briefing before denying the petition on June 19, 2019. In its order denying the petition, the trial court recognized that petitioner was prosecuted under various theories, including a natural and probable consequences theory. However, the trial court surmised that the jury's intent-to-kill finding on the gang-murder special circumstance established that the jury did not find petitioner guilty under a natural and probable consequences or felony-murder theory. It appears petitioner did not appeal this ruling.
In reaching this conclusion, the trial court relied in part on this court's similar conclusion in Andrade, supra, F065468.
On August 25, 2020, petitioner filed a second petition for resentencing on his murder conviction pursuant to section 1172.6. Once again, the trial court did not appoint counsel or permit further briefing before denying the petition on August 28, 2020. The court stated, "This subsequent petition is denied on the same grounds as the previous petition." More specifically, the court explained:
Neither of the petitions referred to petitioner's conviction for attempted murder. Former section 1170.95 was amended, effective January 1, 2022, to expressly permit resentencing of persons convicted of attempted murder under certain circumstances. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, §§ 1-2.) Because petitioner's eligibility for resentencing on his attempted murder conviction was not raised below, we do not address it. In our initial opinion, we stated petitioner could file a separate petition for resentencing on his attempted murder conviction in the trial court, if desired. We now additionally note that petitioner retains any such remedies available to him in the trial court on remand.
"The jury found [petitioner] guilty of murder in the first degree, finding the special circumstance and enhancement allegations true. The verdict included findings that the murder was willful, deliberate, and premeditated. The finding made it clear that the jury found petitioner intentionally helped Isaac [Espinosa] commit murder. Therefore there is no likelihood the natural and probable consequences instructions caused them to reach a murder verdict they otherwise would not have reached. The jury's intent finding removes the possibility that the jury relied on the natural and probable consequences doctrine. These findings apply to the conviction under section 187, not the special allegation under [section] 190.2[, subdivision ](a)(22)."
Espinosa was petitioner's codefendant in the underlying criminal case. However, their cases were severed for trial.
This timely appeal followed.
DISCUSSION
I. Section 1172.6 Procedure
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) "amend[ed] the felony murder rule and the natural and probable consequences doctrine . . . 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, § 1, subd. (f); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) Relevant here, the bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The bill also amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subds. (e), (f); accord, Strong, at p. 708.)
Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons 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" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a).) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met." (Strong, supra, 13 Cal.5th at p. 708.) Upon the filing of such petition, the court must appoint counsel, if requested. (§ 1172.6, subd. (b)(3).) After further briefing, the sentencing court must then determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); accord, Strong, at p. 708.)
Our Supreme Court has emphasized that "the prima facie inquiry . . . is limited." (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Id. at p. 972.) The court may not engage in" 'factfinding involving the weighing of evidence or the exercise of discretion'" at the prima facie stage. (Ibid.) Rather, the court must take the petitioner's factual allegations as true and must issue an order to show cause unless the record of conviction"' "contain[s] facts refuting the allegations made in the petition." '" (Id. at p. 971.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Curiel, supra, 15 Cal.5th at p. 450.) If the trial court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder [or attempted murder] conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).)
We review the court's prima facie inquiry de novo. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
II. The Court Erred in Failing To Appoint Counsel
Petitioner contends the court erred in failing to appoint counsel before denying his petition at the prima facie stage.
It is now well-settled that a petitioner is entitled to the appointment of counsel upon the filing of a petition that contains the information required by section 1172.6, subdivision (b)(1). (Lewis, supra, 11 Cal.5th at p. 966.) It is undisputed that the trial court erred in disposing of the petition without complying with this procedure.
III. The Court's Error Was Prejudicial
The parties agree that the court's error was prejudicial because the record does not establish petitioner's ineligibility for resentencing as a matter of law. We accept the People's concession on this point.
A. Standard of Review
To demonstrate prejudice from the court's failure to appoint counsel, a petitioner must show that, absent the error, it is reasonably probable his or her petition would not have been denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Applicable Law
Following the enactment of Senate Bill No. 1437, direct aiding and abetting remains a viable theory of murder. (See Curiel, supra, 15 Cal.5th at p. 462.) Thus, if the record of conviction conclusively establishes every element of a homicide offense under a direct aiding and abetting theory, the petition may be denied at the prima facie stage. (Id. at p. 463.) As relevant here, "to be liable for murder under a theory of implied malice, an aider and abettor must aid in the commission of a life-endangering act, with' "knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life." '" (Ibid.)
The jury instructions reflect that the People did not prosecute petitioner under a theory that he was a direct perpetrator of the murder.
In Curiel, our Supreme Court considered whether a jury's true finding on a gangmurder special circumstance conclusively established the petitioner's ineligibility for resentencing under section 1172.6. (Curiel, supra, 15 Cal.5th at pp. 440-441.) The high court held that the trial court was bound by the jury's true finding on the gang-murder special circumstance, and specifically its finding that the petitioner acted with intent to kill, for purposes of assessing the petitioner's resentencing eligibility. (Ibid.) However, "[t]he jury's finding of intent to kill [did] not, itself, conclusively establish that [the petitioner] [was] ineligible for relief." (Id. at p. 441.) More specifically, the intent-to-kill finding did not establish the mens rea nor the actus reus required for murder liability as a direct aider and abettor. (Ibid.)
The court further concluded that the jury's remaining findings also were insufficient to rebut the petitioner's allegations and to conclusively establish he was ineligible for relief. (Curiel, supra, 11 Cal.5th at pp. 441, 465.) First, the court noted that the jury was instructed on the natural and probable consequences doctrine, including two underlying target offenses. (Id. at p. 466.) Further, the jury was not required to identify the theory of liability it found persuasive, nor was it required to find that the petitioner knew of the direct perpetrator's unlawful purpose or intended to commit, encourage, or facilitate that purpose. (Id. at pp. 467, 469.) The high court surmised that the jury could have found that the petitioner knew that the perpetrator "intended to commit one of the underlying target offenses and also intended to aid him in that offense." (Id. at p. 470.) However, the jury was not required to find that the petitioner subjectively appreciated that the conduct he intended to aid was dangerous to human life. (Ibid.) Significantly, the jury's intent-to-kill finding did not establish that the petitioner knew the perpetrator intended to commit a life-endangering act or that the petitioner intended to aid in that act. (Ibid.)
C. Additional Background: Petitioner's Jury Instructions and Verdict
As set forth below, petitioner's jury was instructed on murder, generally, as well as first or second degree murder committed with malice aforethought, and first degree murder committed willfully, deliberately, and with premeditation (CALCRIM Nos. 500, 520, 521). The jury also was instructed on attempted murder, generally, as well as attempted murder committed with deliberation and premeditation (CALCRIM Nos. 600, 601). The jury also was instructed on three theories of vicarious murder liability: (1) direct aider and abettor liability (CALCRIM No. 401), (2) the natural and probable consequences doctrine based on a target crime of assault with a deadly weapon (CALCRIM No. 402), and (3) an uncharged criminal conspiracy (CALCRIM No. 417). Lastly, as relevant here, the jury was instructed at length on the elements of the gangmurder special circumstance (CALCRIM Nos. 700, 702, 736).
As noted above, the jury found petitioner guilty of first degree murder committed willfully, deliberately, and with premeditation. The jury also found true the gang-murder special circumstance. The jury also found petitioner guilty of attempted murder committed willfully, deliberately, and with premeditation.
i. Murder Liability
Relevant here, the jury was instructed with CALCRIM No. 520, regarding murder with malice aforethought, in relevant part as follows:
"To prove that [petitioner] is guilty of [murder], the People must prove that:
"1. [Petitioner] committed an act that caused the death of another person; "AND
"2. When [petitioner] acted, he had a state of mind called malice aforethought.
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"[Petitioner] acted with express malice if he unlawfully intended to kill. "[Petitioner] acted with implied malice if:
"1. He intentionally committed an act;
"2. The natural and probable consequences of the act were dangerous to human life;
"3. At the time he acted, he knew his act was dangerous to human life; "AND
"4. He deliberately acted with conscious disregard for human life."
With regard to first degree murder, the jury was instructed with CALCRIM No. 521, in relevant part as follows: "[Petitioner] is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [Petitioner] acted willfully if he intended to kill. [Petitioner] acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. [Petitioner] acted with premeditation if he decided to kill before completing the act that caused death."
ii. Attempted Murder Liability
The jury was instructed with CALCRIM No. 600, regarding attempted murder, in relevant part as follows:
"[Petitioner] is charged in Count 2 with attempted murder.
"To prove that [petitioner] is guilty of attempted murder, the People must prove that:
"1. The perpetrator took at least one direct but ineffective step toward killing another person; "AND
"2. The perpetrator intended to kill that person."
The jury also was instructed with CALCRIM No. 601, regarding attempted murder with deliberation and premeditation, in pertinent part as follows:
"If you find [petitioner] guilty of attempted murder under Count 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.
"Isaac Espino[s]a acted willfully if he intended to kill when he acted. Isaac Espino[s]a deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. Isaac Espino[s]a premeditated if he decided to kill before acting."
iii. Aider and Abettor Liability
Petitioner's jury was instructed with CALCRIM No. 400 on general principles of aiding and abetting as follows:
"A person may be guilty of a crime in two ways. One, he or she 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 the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.
"Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."
The jury also was instructed with CALCRIM No. 401 regarding aiding and abetting intended crimes as follows:
"To prove that [petitioner] is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime; "2. [Petitioner] knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, [petitioner] intended to aid and abet the perpetrator in committing the crime;
"AND
"4. [Petitioner]'s words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.
"If all of these requirements are proved, [petitioner] does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude that [petitioner] was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether [petitioner] was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor."
iv. Natural and Probable Consequences Doctrine
The jury was instructed with CALCRIM No. 402, regarding the natural and probable consequences doctrine, in relevant part as follows:
"[Petitioner] is charged in Count 3 with Assault with a deadly weapon a semi-automatic firearm and in Counts 1 &2 with Murder &Attempted Murder.
"You must first decide whether [petitioner] is guilty of Assault with a deadly weapon a semi-automatic firearm. If you find [petitioner] is guilty of this crime, you must then decide whether he is guilty of Murder &Attempted Murder.
"Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. "To prove that [petitioner] is guilty of Murder and/or Attempted Murder, the People must prove that:
"1. [Petitioner] is guilty of Assault with a deadly weapon a semi-automatic firearm;
"2. During the commission of Assault with a deadly weapon a semi-automatic firearm a co-participant in that Assault with a deadly weapon a semi-automatic firearm committed the crime of Murder and/or Attempted Murder;
"AND
"3. Under all of the circumstances, a reasonable person in [petitioner]'s position would have known that the commission of Murder and/or Attempted Murder was a natural and probable consequence of the commission of the Assault with a deadly weapon a semi-automatic firearm."
v. Conspiracy Liability
The jury was instructed with CALCRIM No. 416, regarding evidence of an uncharged conspiracy, in relevant part as follows:
"The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.
"To prove that [petitioner] was a member of a conspiracy in this case, the People must prove that:
"1. [Petitioner] intended to agree and did agree with Isaac Espino[s]a to commit Murder, Attempted Murder, and/or Assault with Deadly Weapon, a Semiautomatic Firearm;
"2. At the time of the agreement, [petitioner] and the other alleged member of the conspiracy intended that one or more of them would commit Murder, Attempted Murder, and/or Assault with Deadly Weapon, a Semiautomatic Firearm;
"3. [Petitioner], or Isaac Espino[s]a, or both of them committed one of the following overt acts to accomplish Murder, Attempted Murder, and/or Assault with Deadly Weapon, a Semiautomatic Firearm to wit: obtained a semiautomatic firearm and/or drove together to [the location of the offense] in Dos Palos and/or shot Randy [H.] and Tommy [H.];
"AND "4. At least one of the above overt acts was committed in California. [¶] . . . [¶]
"To decide whether [petitioner] and the other alleged member of the conspiracy intended to commit Murder, Attempted Murder, Assault with Deadly Weapon, a Semiautomatic Firearm, please refer to the separate instructions that I will give you on one or more of those crimes.
"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit Murder, Attempted Murder, Assault with Deadly Weapon, a Semiautomatic Firearm.... [¶] . . . [¶]
"The People contend that [petitioner] conspired to commit one of the following crimes: Murder, Attempted Murder, Assault with Deadly Weapon, a Semiautomatic Firearm. You may not find [petitioner] guilty under a conspiracy theory unless all of you agree that the People have proved that [petitioner] conspired to commit at least one of these crimes, and you all agree which crime he conspired to commit. You must also all agree on the degree of the crime."
vi. Gang-murder Special Circumstance
The jury was instructed with CALCRIM No. 736, regarding the elements of the gang-murder special circumstance, in relevant part as follows:
"[Petitioner] is charged with the special circumstance of committing murder while an active participant in a criminal street gang.
"To prove that this special circumstance is true, the People must prove that: "1. The perpetrator Isaac Espino[s]a intentionally killed Tommy [H.] (Count 1); "2. At the time of the killing, [petitioner] was an active participant in a criminal street gang;
"3. [Petitioner] knew that members of the gang engage in or have engaged in a pattern of criminal gang activity;
"AND "4. The murder was carried out to further the activities of the criminal street gang."
The jury also was instructed with CALCRIM No. 702, regarding the intent requirement for accomplices with regard to the special circumstance, in relevant part as follows:
"If you decide that [petitioner] is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance of committing murder while an active participant in a criminal street gang, you must also decide whether [petitioner] acted with the intent to kill.
"In order to prove this special circumstance for a [petitioner] who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that [petitioner] acted with the intent to kill."
CALCRIM No. 705 similarly advised the jury, in relevant part: "In order to prove the special circumstance of committing murder while an active participant in a criminal street gang, you must also decide whether [petitioner] acted with the intent to kill."
D. Analysis
In finding the gang-murder special circumstance true, petitioner's jury necessarily found that he acted with intent to kill. However, this finding, standing alone, is insufficient to establish petitioner's ineligibility for resentencing as a matter of law. (Curiel, supra, 15 Cal.5th at p. 463.) Accordingly, we must look to the jury's other findings to determine whether they establish petitioner's ineligibility for relief. (Id. at pp. 441, 465.)
As in Curiel, petitioner's jury was instructed on the natural and probable consequences doctrine. Also as in Curiel, the jury was not required to identify the theory of liability upon which petitioner was convicted. (Curiel, supra, 15 Cal.5th at pp. 466467.) Based on the natural and probable consequences instruction, the jury could have found petitioner guilty of murder based solely on his intent to aid in an assault with a deadly weapon, and without finding that petitioner subjectively appreciated the life-endangering nature of the conduct he intended to aid. (Id. at p. 470.) We therefore accept the People's concession that the record is insufficient to rebut the petitioner's allegation of resentencing eligibility pursuant to Curiel. (Id. at p. 471.)
Accordingly, the record does not establish petitioner's ineligibility for resentencing as a matter of law and, as such, the court's failure to appoint counsel was prejudicial. We therefore reverse the order denying the petition and remand for further proceedings.
DISPOSITION
The order denying the petition is reversed. The matter is remanded with directions to issue an order to show cause and to conduct such further proceedings as necessary pursuant to section 1172.6, subdivision (d).
[*] Before Hill, P. J., Levy, J. and Detjen, J.