Opinion
A169175
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. KIRTI KANT BHAGWAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 138087)
BROWN, P. J.
Kirti Kant Bhagwan appeals from the trial court's denial of his petition for resentencing under Penal Code section 1172.6 without issuing an order to show cause. That statute allows a "person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to petition to have the murder conviction vacated and to be resentenced if the conviction would not be valid under the recent amendments to sections 188 and 189. (§ 1172.6, subd. (a); Stats. 2018, ch. 1015, §§ 2, 3.) Those amendments changed the law so that a defendant must "act with malice aforethought" to be convicted of murder and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime," except in cases of felony murder. (§ 188, subd. (a)(3); see § 189, subd. (e).) Bhagwan argued that when he was convicted of second degree murder after killing someone while driving under the influence (DUI), malice was imputed to him based on his prior DUI convictions. The trial court disagreed and ruled that Bhagwan was convicted based on an implied malice theory, not an imputed malice theory. Bhagwan renews his argument on appeal, but we agree with the trial court's sound reasoning and will therefore affirm.
Undesignated statutory citations are to the Penal Code.
BACKGROUND
As described in our prior opinion in this matter, "in the early evening of November 17, 1999, defendant drove his car at a speed of at least 50 miles per hour on the streets of downtown Oakland, eventually driving into the rear of a car waiting at a red light. The latter car was driven by Elias Guillen and also occupied by Mr. Guillen's wife and two daughters. As a result of the collision, all of the members of the Guillen family were injured. One of them, Brenda, died from her injuries. After the collision, two half-empty bottles - one of Scotch whiskey and one of malt liquor - were found on the floorboards of defendant's car. His blood alcohol content was 0.41 percent, which an expert witness described as 'astronomically high' and sufficient to cause severe impairment or even death.
"A five-count information filed March 2, 2000, charged defendant with (1) murder (Pen. Code, § 187); (2) injurious drunk driving, with priors (Veh. Code, §§ 23153, subd. (a), 23566, subd. (b)); (3) injurious driving with excessive blood alcohol content, with priors (Veh. Code, §§ 23153, subd. (b), 23566, subd. (b)); (4) drunk driving, with priors (Veh. Code, §§ 23152, subd. (a), 23550); and (5) driving with excessive blood alcohol content, with priors (Veh. Code, §§ 23152, subd. (a), 23550). Sentence enhancements based on the infliction of great bodily injury were alleged under Penal Code section 1203.075, Vehicle Code section 23558, and Penal Code section 12022.7, subdivision (a)." (People v. Bhagwan (May 16, 2002, A092788) [nonpub. opn.].)
At trial, the parties entered three stipulations relevant here. First, "The defendant was arrested on October 28, 1992, for driving under the influence. The defendant was convicted of a misdemeanor violation of Vehicle Code Section 23103.5, reckless driving involving alcohol, on February 11, 1993. As part of his sentence, the defendant was ordered to complete the 12-week drinking and driving education program for first time offenders. The defendant completed that program on June 26, 1993." Second, "The defendant was arrested on December 12, 1996, for driving under the influence. The defendant was convicted on a misdemeanor violation of Vehicle Code Section 23152(b), driving with .08 percent or more of alcohol in his blood, on April 23, 1997. As part of his sentence, the defendant was ordered to complete the 18-month drinking and driving education program for repeat offenders." Finally, "The defendant was arrested on April 24, 1998, for driving under the influence. The defendant was convicted of a misdemeanor violation of Vehicle Code Section 23152(a), driving under the influence of alcohol, on October 21, 1998. As part of his sentence, the defendant was ordered to complete the 18-month drinking and driving education program for repeat offenders."
One of the jury's instructions stated: "Evidence has been admitted that the defendant has suffered multiple prior convictions for driving under the influence of alcohol and reckless driving involving alcohol. Evidence has also been admitted that the defendant was ordered to attend drinking driving education programs as a part of his sentence in those cases. That evidence was admitted for a limited purpose.
"You may not assume that the defendant committed the offenses charged in the information based solely upon his prior convictions.
"You may, however, consider the evidence of his prior convictions and his attendance at the drinking driving education programs to determine whether or not the defendant had knowledge of the risk of death or injury associated with drinking and driving.
"For the limited purpose for which you may consider such evidence, you must weight it in the same manner as you do all other evidence in the case.
"You are not permitted to consider such evidence for any other purpose."
The instruction was apparently modeled after the instruction given in People v. Brogna (1988) 202 Cal.App.3d 700, 705, fn. 4.
The jury found defendant guilty on all counts. (People v. Bhagwan, supra, A092788).) The trial court imposed a sentence of 24 years to life in prison.
Bhagwan filed a petition for resentencing under section 1172.6, alleging that he could not be convicted of second degree murder because of the changes to sections 188 and 189 that took effect in January 2019 (Stats. 2018, ch. 1015, §§ 2, 3). The trial court appointed counsel but denied the petition because it concluded Bhagwan had not made a prima facie showing that he was entitled to relief. The trial court ruled that Bhagwan was ineligible for resentencing because he was convicted under a theory of implied malice, not imputed malice.
DISCUSSION
I. Relevant legal principles and standard of review
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)" 'to more equitably sentence offenders in accordance with their involvement in homicides.' [Citation.] The Legislature recognized, 'It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.'" (People v. Curiel (2023) 15 Cal.5th 433, 448.) As relevant here, "Senate Bill 1437 imposed a new requirement that, except in cases of felony murder, 'a principal in a crime shall act with malice aforethought' to be convicted of murder. (§ 188, subd. (a)(3).) 'Malice shall not be imputed to a person based solely on his or her participation in a crime.' (Ibid.)" (Curiel, at p. 449.) As before, "malice may be express or implied," and "[m]alice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a) &(a)(2).) A "willful, deliberate, and premeditated killing" and certain other types of killings are first degree murder, and "[a]ll other kinds of murders are of the second degree." (§ 189, subds. (a) &(b).)
Senate Bill 1437 also added what is now section 1172.6 to the Penal Code. (Stats. 2018, ch. 1015, § 4; see also Stats. 2022, ch. 58, § 10; People v. Allen (2023) 97 Cal.App.5th 389, 394-395.) In its current form and as relevant here, section 1172.6 allows a "person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to petition "to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts." (§ 1172.6, subd. (a).) As relevant here, a defendant is eligible to petition for resentencing "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory 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 ....[¶] (2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder .... [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
" '[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)) ....' [Citation.] 'When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition "to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c); [citation].) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. (See § 1172.6, subd. (c); [citation].) If, instead, the defendant has made a prima facie showing of entitlement to relief, "the court shall issue an order to show cause." (§ 1172.6, subd. (c).)'" (People v. Curiel, supra, 15 Cal.5th at p. 449.)
"A petitioner is ineligible for section 1172.6 relief as a matter of law if, for example, the jury instructions show that jurors were not instructed on any theory of liability affected by Senate Bill 1437's changes to sections 188 and 189. [Citation.] A petitioner is also ineligible for relief if the record of conviction shows that their conviction was based on a theory of liability that remains valid under Senate Bill 1437. [Citation.] We review de novo a trial court's prima facie determination that a petitioner is ineligible for section 1172.6 relief as a matter of law." (People v. Allen, supra, 97 Cal.App.5th at p. 395.)
II. Analysis
Bhagwan was convicted of murder based on the implied malice theory approved in People v. Watson (1981) 30 Cal.3d 290, 299-301 (Watson). Watson began from the established principle "that second degree murder based on implied malice has been committed when a person does '" 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Id. at p. 300.) Watson then reasoned that a defendant could be held on an implied malice murder charge based on evidence that he drove to a bar, became intoxicated, drove home at a high rate of speed, narrowly avoided colliding with one vehicle, and did collide with another vehicle, killing two of its occupants. (Id. at pp. 300-301.) The court explained," 'One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (Ibid.) "Implied malice murder involving drunk driving is now 'colloquially known as a Watson murder.'" (People v. Alvarez (2019) 32 Cal.App.5th 781, 785, fn. 2.). Subsequent Court of Appeal decisions have built on Watson and concluded that evidence of a defendant's prior DUI convictions is admissible to help prove the defendant's mental state supporting a finding of implied malice when charged with murder by means of a vehicle, especially but not only when the murder charge involves driving under the influence. (People v. Ortiz (2003) 109 Cal.App.4th 104, 112-116.)
Consistent with this case law, Bhagwan's jury was instructed that it could "consider the evidence of his prior convictions and his attendance at the drinking driving education programs to determine whether or not [he] had knowledge of the risk of death or injury associated with drinking and driving." The jury was told not to assume that Bhagwan had committed the charged offenses based solely on his prior convictions.
According to Bhagwan, this jury instruction allowed the jury to impute malice to him based on his prior DUI convictions, since those convictions established his conscious disregard for the danger to human life. As the jury was permitted to impute malice based on his participation in non-homicide crimes, Bhagwan contends that section 1172.6 authorizes resentencing relief because he was convicted of murder under a "theory under which malice is imputed to a person based solely on that person's participation in" non-homicide crimes. (People v. Langi (2022) 73 Cal.App.5th 972, 978.) Bhagwan therefore contends the trial court erred in concluding he was ineligible for resentencing as a matter of law.
Bhagwan's argument conflates the distinct and independent concepts of imputed malice and implied malice pursuant to Watson. Prior to Senate Bill 1437, the Supreme Court clarified that "the felony-murder rule 'act[ed] as a substitute' for conscious-disregard-for-life malice" by "imput[ing] the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to life.'" (People v. Chun (2009) 45 Cal.4th 1172, 1184.) When Senate Bill 1437 amended section 188 to declare that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime," it likely used "imputed" in this sense of a substitution. Analyses of Senate Bill 1437 throughout the legislative process quoted a statement by the bill's author that under then-existing law, "prosecutors [we]re able to replace the intent to commit murder with the intent to commit a felony if the felony results in a death." (Sen. Com. on Public Safety, Rep. on Sen. Bill 1437 (Apr. 23, 2018), p. 3; Assem. Com. on Public Safety, Rep. on Sen. Bill 1437 (June 25, 2018), p. 4; Assem. Floor Analysis of Sen. Bill 1437 (Aug. 21, 2018), p. 5.) The Supreme Court has described Senate Bill 1437 as limiting this practice of substitution or replacement, as when the court declared that in Senate Bill 1437, "the Legislature intended to restrict culpability for murder outside the felony-murder rule to persons who personally possess malice aforethought." (People v. Gentile (2020) 10 Cal.5th 830, 847, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.)
Using evidence of prior DUI convictions to prove Watson murder is not a substitute for evidence of implied malice but rather a means of satisfying that element. As People v. Ortiz, supra, 109 Cal.App.4th at page 112 explained, "courts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway - whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator - sensitizes him to the dangerousness of such life-threatening conduct." "A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving - whether intoxication, rage, or willful irresponsibility - the driver's subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior." (Id. at p 115.) Thus, Bhagwan's prior DUI convictions did not serve as a substitute for evidence that he had a conscious disregard for life. Rather, as Bhagwan himself describes it, "those convictions supplied the evidence of the requisite knowledge of, and conscious disregard for, the danger to human life necessary for second-degree murder." Supplying evidence of implied malice is different than imputing implied malice.
People v. Carr (2023) 90 Cal.App.5th 136 (Carr) fully supports this conclusion. The defendant there drove under the influence and collided with a pickup truck, killing one child in his car and seriously injuring the other occupants of his car and the pickup truck. (Id. at pp. 139-140.) A few years before this collision, the defendant had been arrested for speeding and driving recklessly in a school zone and, in a separate incident, for driving under the influence and causing property damage. (Id. at p. 139.) The defendant was convicted of murder. (Id. at p. 140.) Carr affirmed the trial court's summary denial of the defendant's later petition under section 1172.6. (Carr, at pp. 141, 146.)
As relevant here, Carr, supra, 90 Cal.App.5th at pages 144 to 145 rejected the defendant's argument that he was eligible for resentencing under section 1172.6 because his conviction for second degree murder pursuant to Watson constituted an" 'other theory under which malice is imputed to a person based solely on that person's participation in a crime.'" The court reasoned, "a Watson theory does not involve the imputation of malice. It requires proof - in addition to the mere fact that the defendant killed someone while driving while intoxicated - that the defendant personally harbored implied malice." (Carr, at p. 144.) Carr found such evidence in the circumstances of the offense, including the defendant's intoxication despite knowing of the need to drive afterwards, allowing the children in his car to ride without seatbelts, the speed at which the defendant drove, the distance he traveled, and his actions in running red lights and driving on the wrong side of the road. (Ibid.) Carr also noted the defendant's prior DUI arrest in which he caused property damage. (Id. at p. 145.)
Bhagwan attempts to distinguish this case from Carr, arguing that Carr pre-dates the legislative amendment that authorized resentencing petitions by defendants who were convicted under any theory of imputed malice. This is incorrect, as Carr noted the amendment and quoted the precise language that Bhagwan relies on here. (Carr, supra, 90 Cal.App.5th at pp. 142-144.)
Carr relied in part on People v. Roldan (2020) 56 Cal.App.5th 997, 1002, review dismissed Dec. 22, 2021, S266031 [ordered partially noncitable to the extent inconsistent with People v. Lewis (2021) 11 Cal.5th 952]. Roldan did apply the earlier version of section 1172.6, but we need not discuss it or rely on it in light of Carr and our own independent analysis, ante.
Bhagwan also argues that Carr did not consider the effect of jury instructions instructing the jury that it could consider the commission of non-homicide offenses as imputing malice. He contends that Carr noted that the prosecutor there did not argue that malice could be imputed based on driving under the influence and that Carr merely found that the implied malice jury instructions given there did not permit the jury to find the natural and probable consequences of driving while intoxicated were dangerous to human life. Here, too, Bhagwan misreads Carr. The court noted specifically that the prosecutor cited the defendant's prior DUI as evidence to demonstrate his conscious disregard of human life. (Carr, supra, 90 Cal.App.5th at p. 145.) As for the jury instructions, the instructions given in Carr stated that implied malice required that (1) the killing resulted from an intentional act, (2) the natural and probable consequences of that act were dangerous to human life, and (3) the defendant committed the act with knowledge of the danger and with conscious disregard for human life. (Ibid.) Carr concluded that these instructions were proper and did not allow implied malice to be imputed solely from the natural consequences of the act, because they required the jury to find the defendant's knowledge and conscious disregard. (Ibid.)
The jury instructions here were no different. The relevant instruction told the jury it could "not assume that the defendant committed the offenses charged in the information based solely upon his prior convictions." The instructions allowed the jury to "consider the evidence of his prior convictions and his attendance at the drinking driving education programs to determine whether or not the defendant had knowledge of the risk of death or injury associated with drinking and driving." The instruction finally told the jury, "You are not permitted to consider such evidence for any other purpose."
These instructions did not conclusively impute malice to Bhagwan. They merely allowed the jury to consider whether Bhagwan's prior convictions proved that he actually harbored the requisite mental state. By instructing the jury that it had to weigh the evidence of his convictions like any other evidence, the jury instructions left the jury free to conclude that the prior convictions were insufficient to demonstrate a conscious disregard for human life, whether because of the age of the convictions or for some other reason. By contrast, imputation of malice, like under the felony-murder rule, is conclusive and leaves no room for a jury finding to the contrary. Accordingly, like Carr, we conclude Bhagwan is ineligible for relief under section 1172.6 because the jury was not instructed on any theory of relief affected by Senate Bill 1437 and his conviction for murder based on implied malice under Watson rested on a theory of liability that remains valid. (People v. Allen, supra, 97 Cal.App.5th at p. 395.)
DISPOSITION
The trial court's order is affirmed.
WE CONCUR: STREETER, J. GOLDMAN, J.