Opinion
B325017
04-03-2024
THE PEOPLE, Plaintiff and Respondent, v. OMAR LATEEF JONES, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA142596-02 Ronald S. Coen, Judge. Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
A jury convicted defendant and appellant Omar Lateef Jones of two counts of first degree murder. More than two decades later, Jones filed a petition for resentencing under former Penal Code section 1170.95. The superior court summarily denied the petition, finding Jones ineligible for resentencing as a matter of law. Jones contends the superior court erred because the jury instructions at his trial allowed the jury to convict him of murder by imputing malice to him. We disagree and affirm.
References are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
FACTS AND PROCEDURAL BACKGROUND
As the truth of the facts of the crime are not necessary for our resolution of this appeal, we summarize them only for the basis of Jones's conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 459-460.)
At about 3:25 a.m. on September 22, 1996, Larry Darnele Logan was driving his car with Aaron Patrick Johnson in the passenger seat. The car stalled at an intersection. Jones drove alongside Logan's car and stopped. Jones's passenger John Levae Post said, "What's up, blood?," produced a handgun, and fired two shots into Logan's car. Both Logan and Johnson were killed.
In October 1999, a jury found Jones guilty of the first degree murder of both victims. The jury found true an allegation that, in the commission of the crimes, a principal was armed with a firearm. The jury also found true a special circumstance of multiple murder. The trial court sentenced Jones to a term of life without parole plus one year (for the firearm), as well as a term of 25 years to life, plus one year (again, for the firearm), to be served concurrently. This division affirmed Jones's conviction. (People v. Jones (May 29, 2001, B137784) [nonpub. opn.].)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) took effect, Jones-representing himself- filed a petition for resentencing under section 1170.95. On September 3, 2020, without having appointed counsel to represent Jones, the superior court issued a minute order denying the petition. We reversed the order and remanded the matter for the superior court to appoint counsel and permit briefing concerning whether it should issue an order to show cause and conduct an evidentiary hearing. (People v. Jones (Dec. 29, 2021, B308232) [nonpub. opn.].)
On remand, the court appointed counsel to represent Jones. Jones retained private counsel, who filed a brief urging the superior court to issue an order to show cause. According to Jones, the jury instructions at his trial allowed the jury to convict him of first degree murder under an aiding and abetting theory without having to find he acted with malice.
After considering the parties' briefs and oral argument, the superior court summarily denied Jones's petition. The court concluded Jones was not entitled to relief as a matter of law, noting the jury had not received instructions on felony murder, murder under the natural and probable consequences theory, or any other theory by which it could impute malice to him.
Jones timely appealed.
DISCUSSION
1. Relevant law
Senate Bill 1437 took effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
The Legislature then passed Senate Bill No. 775 to expand relief to people convicted of attempted murder and manslaughter. As relevant here, the bill also eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. Senate Bill 775 took effect on January 1, 2022. (See Stats. 2021, ch. 551, § 2.)
Individuals convicted of murder or manslaughter under a now-invalid theory may petition to vacate their convictions and be resentenced. (§ 1172.6, subd. (a).) If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of (in this case) murder under the amended law. (§ 1172.6, subds. (c), (d)(3).)
Individuals convicted of attempted murder under the natural and probable consequences doctrine may also petition to vacate their convictions and be resentenced. (§ 1172.6, subd. (a).)
"The record of conviction will necessarily inform the trial court's prima facie inquiry under section 117[2.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The jury instructions are part of the record of conviction, because the instructions "given at a petitioner's trial may provide 'readily ascertainable facts from the record' that refute the petitioner's showing, and reliance on them to make the eligibility or entitlement determinations may not amount to 'factfinding involving the weighing of evidence or the exercise of discretion,'" which may not take place until after an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, abrogated on other grounds in Lewis, supra, 11 Cal.5th 952; see People v. Estrada (2022) 77 Cal.App.5th 941, 943-944, 946 [jury instructions showed trial court never instructed the jury on the natural and probable consequences doctrine; summary denial of petition affirmed].)
2. The instructions did not permit the jury to convict Jones by imputing malice to him
Jones acknowledges the trial court did not instruct the jury on felony murder or the natural and probable consequences doctrine. Nevertheless, relying on three recent cases-People v. Powell (2021) 63 Cal.App.5th 689 (Powell), People v. Langi (2022) 73 Cal.App.5th 972 (Langi), and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado)-he contends the court's aiding and abetting instructions allowed the jury to convict him of first degree murder by imputing malice to him. Jones argues that, because the record of conviction does not conclusively rule out the possibility the jury convicted him under a now-invalid theory of murder, the superior court was required to issue an order to show cause and conduct an evidentiary hearing on his resentencing petition. We disagree.
The Attorney General argues that, instead of determining whether the jury instructions conclusively show Jones is ineligible for relief, we should ask whether it is reasonably likely the jurors understood the instructions as permitting conviction on an improper theory. We need not reach that issue because, applying either standard, we would conclude Jones is ineligible for relief.
The trial court instructed the jury with the standard CALJIC instructions on murder and aiding and abetting. As to murder, the court instructed the jury with CALJIC No. 8.10, which informed the jurors murder requires malice aforethought. The court explained malice may be either express or implied. It is express when "there is manifested an intention unlawfully to kill a human being." Malice is implied when the killing resulted from an intentional act, the natural consequences of the act were dangerous to human life, and the act was performed with conscious disregard for human life.
The court further instructed the jury that murder may be of the first or second degree. Murder is of the first degree when it is willful, deliberate, and premeditated. Murder alternatively is of the first degree when it is "perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death." We refer to this form of murder as drive-by first degree murder.
The court gave the jury two instructions on aiding and abetting. The first-CALJIC No. 3.00-told the jury, "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation[,] is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime."
The court also instructed the jury with CALJIC No. 3.01 as follows:
"A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and
(2) with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and
(3) by act or advice[,] aids, promotes, encourages or instigates the commission of the crime."
Contrary to Jones's contentions, these instructions did not permit the jury to convict him of first degree murder by imputing malice to him. Because Jones was charged only with murder, the jury would have understood the phrase "the crime" in CALJIC No. 3.01 to refer to murder. (See Powell, supra, 63 Cal.App.5th at p. 714 [noting the phrase "the crime" in CALCRIM No. 401 refers to murder].) Accordingly, the jurors would have understood that, to convict Jones of murder under an aiding and abetting theory, CALJIC No. 3.01 required they find (1) Jones knew the perpetrator had an unlawful purpose; (2) Jones intended to encourage or facilitate a murder; and (3) Jones aided, promoted, encouraged, or instigated a murder. In other words, CALJIC No. 3.01 required the jury to find Jones knowingly and intentionally helped the perpetrator commit murder. As our Supreme Court has explained, "one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice." (People v. McCoy (2001) 25 Cal.4th 1111, 1123.) Therefore, by explicitly requiring the jury to find Jones knowingly and intentionally helped the perpetrator commit murder, CALJIC No. 3.01 implicitly required the jury to find he acted with some form of malice. The instruction precluded the jury from convicting Jones by imputing malice to him.
Jones's reliance on Powell, Langi, and Maldonado is misplaced. In Powell, supra, 63 Cal.App.5th 689, 714, the court held the standard CALCRIM aiding and abetting instruction- CALCRIM No. 401-misstates the law when applied to implied malice murder. CALCRIM No. 401 states an aider and abettor must (1) know the perpetrator intended to commit "the crime," (2) intend to aid and abet the perpetrator in committing "the crime," and (3) aid the perpetrator's commission of "the crime." (Powell, at p. 706.) The court explained the instruction's use of the phrase "the crime" is misleading when applied to implied malice murder. According to the court, "the crime" refers to murder, yet "the aider and abettor of implied malice murder need not intend the commission of the crime of murder. Rather, relative to the aider and abettor's intent, he or she need only intend the commission of the perpetrator's act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life." (Id. at p. 714.)
In Langi, supra, 73 Cal.App.5th 972, the court identified a similar issue with the standard CALJIC instructions. The court explained that, for implied malice murder, "while the perpetrator must have deliberately performed the fatal act 'with knowledge of the danger to, and with conscious disregard for, human life' (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator's purpose need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent. . . . [U]nder the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, appellant need only have intended to encourage the perpetrator's intentional act-in this case, punching [the victim]-whether or not appellant intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing." (Langi, at pp. 982- 983.)
In Maldonado, supra, 87 Cal.App.5th 1257, 1266, the court held the same ambiguity exists when the aiding and abetting instructions are applied to first degree murder under a lying-in-wait theory. The court reasoned that, because lying-in-wait first degree murder does not require an intent to kill, "the jury may have found the perpetrator's purpose was only to injure or intimidate the victim in a surprise attack. Thus, using Langi's reasoning, the jury could have construed the instructions such that, 'to be guilty as an aider and abettor of [lying in wait first degree] murder, appellant need only have intended to encourage the perpetrator's intentional act-in this case, [a surprise attack on the victim]-whether or not appellant intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing.'" (Ibid.)
The ambiguities identified by the courts in Powell, Langi, and Maldonado present themselves only when the standard aiding and abetting instructions are applied to implied malice murder. Here, the jury convicted Jones of two counts of first degree murder, and there is no possibility it did so under a theory he aided and abetted an implied malice murder. The trial court instructed the jury that murder is of the first degree under two circumstances: (1) the murder is willful, deliberate, and premeditated; or (2) the murder was "perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death." The instructions for both theories explicitly require the perpetrator to have acted with an intent to kill. In other words, both theories of first degree murder required the jury to find the perpetrator harbored express malice. Given this requirement, to the extent the jury convicted Jones under an aiding and abetting theory, it necessarily found he intended to encourage or facilitate an express malice murder. Unlike in Powell, Langi, and Maldonado, there is no risk the jury found Jones intended to encourage or facilitate some other intentional act. Any potential ambiguity in CALJIC No. 3.01 does not present itself under these circumstances.
Jones argues the fact the jury convicted him of first degree murder is not determinative because the court's CALJIC No. 3.00 instruction was misleading. The Supreme Court has explained CALJIC No. 3.00 "generally state[s] a correct rule of law. All principals, including aiders and abettors, are 'equally guilty' in the sense that they are all criminally liable." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) Nevertheless, the court has cautioned the instruction's use of the phrase "equally guilty" could be "misleading if the principals in a particular case might be guilty of different crimes and the jury interprets the instruction to preclude such a finding." (Ibid.)
Here, we are not concerned with whether the jury might have mistakenly believed Jones must be guilty of the same crime as the direct perpetrator. Instead, we are concerned only with whether it is possible the jury convicted Jones 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." (§ 1172.6, subd. (a).) Therefore, the fact that CALJIC No. 3.00 can be misleading is relevant only if the misdirection allowed the jury to convict Jones of felony murder, murder under the natural and probable consequence doctrine, or some other theory of imputed malice. We conclude it did not.
Jones argues the jury may have misunderstood the "equally guilty" language in CALJIC No. 3.00 to mean anyone who participated in the drive-by first degree murder is guilty of first-degree murder, regardless of whether that person harbored the requisite mental state for the crime. According to Jones, this interpretation would have allowed the jury to "impute malice to [him] based solely on his participation in a crime (driving the vehicle) where the perpetrator, with intent to inflict death, fired a gun from the vehicle, without having to find that Jones personally acted with malice." Jones contends the prosecutor increased the chance the jury misunderstood the instruction by arguing in closing, "[T]he people who helped the shooter are also equally liable under the law just like as if they pulled the trigger themselves . . . ."
On July 27, 2023, Jones filed a request that we take judicial notice of the reporter's transcripts of the opening statements and closing arguments from his trial. We grant his request and take judicial notice of the transcripts. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
Jones's argument is based on a faulty premise: that CALJIC No. 3.00 states anyone who "participates" in a crime is equally guilty. The instruction instead more narrowly states anyone who is a "principal" in a crime is equally guilty. The instruction goes on to define "principal" to be a person who (1) directly commits the act, or (2) "aid[s] and abet[s] the commission of the crime." Considering these provisions together, the instruction plainly and correctly conveys only direct perpetrators and aiders and abettors are "equally guilty" of a crime.
The prosecutor also reinforced the proper interpretation of CALJIC No. 3.00 in his closing argument. Immediately after telling the jury anyone who helped the shooter is "equally liable," the prosecutor rhetorically asked, "What do you have to have for aider and abettor liability?" The prosecutor went on to summarize the evidence showing Jones was on a "mission to kill" and acted with "the knowledge and intent to aid and abet this killing."
Given these instructions and argument, there is no doubt the jury would have understood Jones was "equally guilty" of murder only if he aided and abetted the crime. As we discussed above, to conclude Jones was an aider and abettor of murder, CALJIC No. 3.01 required the jury to find he harbored some form of malice. It follows that, before the jury would even have considered the "equally guilty" language in CALJIC No. 3.00, it necessarily would have determined Jones acted with malice. Under these circumstances, there is no risk the jury believed CALJIC No. 3.00 allowed it to convict Jones by imputing malice to him. (See People v. Amezcua and Flores (2019) 6 Cal.5th 886, 918-919 [holding CALJIC No. 3.00 was not misleading because CALJIC No. 3.01 "sufficiently explained the required mens rea" for aiding and abetting murder].)
DISPOSITION
We affirm the order.
We concur: LAVIN, Acting P. J. ADAMS, J.