Opinion
G062275
03-21-2024
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MEDINA LOPEZ, Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Felicity A. Senoski and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 97NF1797 Robert A. Knox, Judge. Affirmed.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Felicity A. Senoski and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
In 1998, defendant Victor Medina Lopez was convicted of an assault on and the murder of his infant daughter. He was sentenced to 15 years to life. In August 2022, Lopez filed a form petition for resentencing pursuant to former Penal Code section 1170.95 (now § 1172.6). The court appointed counsel. At a hearing, the court denied the resentencing petition, finding that no prima facie case for relief had been stated.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). Subsequent statutory references are to the Penal Code.
Lopez now appeals, arguing that because the jury was instructed on the definition (but not the theory) of implied malice, it is possible they might have impermissibly imputed malice to him based on the assault. We conclude that Lopez has conflated imputed malice, which is completely irrelevant here, with implied malice, which continues to be a valid theory of murder. Accordingly, we find the trial court correctly denied the petition as a matter of law, and we affirm the order.
I
FACTS
Underlying Facts
We draw the facts from the previous appellate opinion. (People v. Lopez, (Jan. 3, 2001, D036407) [nonpub. opn.].) On Thanksgiving Day, 1996, 10-month-old Gabriella was left in the care of her father, Lopez, while her mother Ramona Villa went shopping. After Villa's return, while she was in another room, she heard Gabriella crying. Thereafter, Lopez was yelling, and Ramona saw Gabriella "'flopping all over the place.'" Lopez said Gabriella had fallen off the couch. Paramedics responded, and found Gabriella jaundiced and not breathing. They observed black and blue marks on her chest and abdomen. Gabriella died in the emergency room. According to medical evidence, most of Gabriella's injuries had been inflicted less than two hours before she died. Her injuries included repeated blunt force trauma, which left extensive bruises. There were lacerations to multiple organs and other internal injuries. She died from a ruptured heart and liver. It was not reasonably possible the injuries resulted from a fall from a couch. Lopez testified that Gabriella fell from the couch, and when he picked her up, her body was "'bent.'" He "denied hitting or beating Gabriella."
Procedural History
On October 20, 1997, Lopez was charged with the murder of Gabriella (§ 187, subd. (a), count one) and assault on a victim under the age of eight that caused death (§ 273ab, count two). After a jury trial, Lopez was found guilty of second degree murder and the assault. The court sentenced Lopez to 15 years to life on count one and to a concurrent term of 15 years on count two. Appropriate custody credits were applied. The judgment was affirmed by Division One of this court. (People v. Lopez, supra, D036407.)
Resentencing Petitions
On his own behalf, Lopez filed two separate form petitions for resentencing, each dated August 1, 2022. While somewhat different in their details, each requested sentencing pursuant to section 1172.6 and asserted that he could not, under present law, be convicted of murder. The court appointed the public defender to represent Lopez.
The District Attorney filed an opposition, arguing the record of conviction demonstrated that Lopez did not meet the criteria for resentencing. The District Attorney contended that the jury had not been instructed on felony murder, the natural and probable consequences doctrine, or any other theory of murder where malice is imputed solely based on the petitioner's participation in a crime.
In January 2023, the court held a hearing on the petition. The court denied the resentencing petition, finding no prima facie case had been stated. The court also issued a written statement of decision. The court noted it had reviewed only the petition and responsive filings. The court declined to consider the factual summary in the original appellate opinion in reaching its decision. The court stated: "The People correctly note that the jury was only instructed as to general homicide principles (CALJIC [Nos.] 8.00, 8.10), the definition of malice aforethought (CALJIC [No.] 8.11), and degrees of murder (CALJIC [Nos.] 8.30, 8.31). The jury was also instructed as to the lesser included offenses of voluntary and involuntary manslaughter. There is no reference to any other perpetrator in the Information or instructions, nor was the jury instructed as to coconspirators, felony murder, or natural and probable consequences." Because juries are presumed to follow the instructions given, "[i]f the jury was not instructed on any theory of liability for murder that required that malice be imputed to him, then petitioner is ineligible for resentencing under Pen. Code, § 1172.6." Accordingly, the court determined: "The jury could not have convicted petitioner on a theory of imputed malice and as such, he would still be guilty of second-degree murder under the current version of Pen. Code, § 188. Petitioner is therefore ineligible for relief under Pen. Code § 1172.6."
Lopez now appeals, arguing that his petition stated a prima facie case for relief, and further, that the original trial court's instruction on the definition of implied malice alone in CALJIC No. 8.11 is sufficient to raise a factual question as to whether the jury in this case "assessed the evidence, concluded that Gabriella Lopez died from appellant's participation in the crime of illegal beating, and that implied malice applied to appellant's actions in beating Gabriella, then appellant's petition stated a prima facie case for relief."
II
DISCUSSION
Statutory Framework and Standard of Review
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, §§ 2-4)], 'to amend . . . the natural and probable consequences doctrine, as it relates to murder, 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
Effective 2022, the Legislature further amended the law, which, among other things, codified Lewis. It also expanded relief for convictions based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a)(2).)
In addition to changing the substantive law of murder, Senate Bill No. 1437 also created former section 1170.95, which gave those convicted of first or second degree murder the right to petition for resentencing under certain circumstances. Procedurally, there are multiple steps in a petition under former section 1170.95. First, the petitioner must file a declaration that states he or she is eligible for relief. The petition must also include the case number, date of conviction, and state whether the petitioner requests appointment of counsel. (Former § 1170.95, subd. (b)(1)(A)-(C).) If the petition complies with these requirements, the court appoints counsel. (Lewis, supra, 11 Cal.5th at p. 963.)
The court then evaluates the petition to determine if it makes a prima facie showing that relief is available, and if so, it issues an order to show cause (OSC). (§ 1172.6, subd. (c).) At the prima facie stage, the bar was "'intentionally and correctly set very low'" (Lewis, supra, 11 Cal.5th at p. 972), but it is not nonexistent. The court may use the record of conviction to determine if the petitioner is disqualified from relief under the statute as a matter of law. (Id. at pp. 970-971.)
The court's review, however, "is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963.) "A petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, (3) the petitioner was a major participant in the underlying felony and acted with reckless indifference to human life, or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime." (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
If the court finds the petition meets the prima facie requirements, it issues an OSC and an evidentiary hearing is held after further briefing. (§ 1172.6, subd. (c).)
The trial court's denial of Lopez's petition without issuing an OSC "is a purely legal conclusion, which we review de novo." (People v. Murillo (2020) 54 Cal.App.5th 160, 167, abrogated on other grounds by People v. Strong (2022) 13 Cal.5th 698, 711.)
Lopez's Petition
Lopez's petition stated, as relevant here, that he was convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine; he could not, under current law, be convicted of first or second degree murder; he was not the actual killer; he did not, with the intent to kill, aid or abet the actual killer; and he was not a major participant in the felony or did not act with reckless indifference to human life.
Accepting the petition as true, as we must, Lopez appeared to have met the prima facie requirements of a petition under section 1172.6. (Lewis, supra, 11 Cal.5th at p. 971.) The only basis on which the court could deny the issuance of an OSC is if the record of conviction revealed defendant was not entitled to relief as a matter of law. (Ibid.) The record of conviction informs the prima facie inquiry as it permits "the court to distinguish petitions with potential merit from those that are clearly meritless." (Ibid.)
It is undisputed that the jury was not instructed on any theory of accomplice liability, aiding and abetting, or conspiracy. The only reasonable inference from the record of conviction is that the jury found Lopez was the actual killer.
Beyond that, however, Lopez argues that he is entitled to resentencing, based not on an instruction as to the prosecution's theory of the case, but on an instruction that defined express and implied malice murder (CALJIC No. 8.11). CALJIC No. 8.11, as given to the jury, read: "'Malice' may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word 'aforethought' does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act."
The original instruction includes brackets around some sentences, but they are omitted here. It appears that the entire instruction was given, based on the court's use of a marker pen to black out portions of other instructions that were not given.
Lopez argues that "the second part of that jury instruction provides a definition of malice which specifically addresses a killing where malice is implied, not express." That is indisputably true. He next contends that because the 2022 amendment to the resentencing statute expanded the grounds for relief to convictions based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a)(1).) Thus, he conflates implied malice, which is defined by CALJIC No. 8.11, to imputed malice, which is not mentioned at all by that instruction. He contends: "If the jury in this case focused on and applied the second part of CALJIC [No.] 8.11 when reaching its verdicts, then appellant's petition stated a prima facie case for relief. In other words, if the jury assessed the evidence, concluded that Gabriella Lopez died from appellant's participation in the crime of illegal beating, and that implied malice applied to appellant's actions in beating Gabriella, then appellant's petition stated a prima facie case for relief."
Imputed malice and implied malice are different theories. In People v. Carr (2023) 90 Cal.App.5th 136, the defendant, convicted of second degree murder after a drunk driving accident, made essentially the same argument that Lopez offers here. The defendant argued "that the theory under which he was convicted - causing death unintentionally but with implied malice while driving drunk [citation] - is an 'other theory under which malice is imputed to a person based solely on that person's participation in a crime' within the meaning of section 1172.6." (Id. at p. 138.) The court squarely rejected this argument: "Not so. Implied malice is not imputed malice. It requires that the perpetrator actually and personally harbor malice. [I]mplied malice may be inferred from a defendant's conduct before, during, and after driving drunk - not imputed from the bare fact of driving drunk. Petitioner's contrary argument is an artificial concoction that takes the words 'natural consequences' and/or 'natural and probable consequences' out of their proper legal contexts and dumps them all together into a confused semantic stew." (Id. at p. 139.) "The natural and probable consequences doctrine is a theory of liability for aiding and abetting. It made an aider and abettor guilty of a murder committed by the perpetrator, even if the aider and abettor lacked malice . . ." (id. at p. 143), if certain other requirements are met. An implied malice murder while driving drunk - colloquially known as a Watson murder - does not involve aiding and abetting, indeed, "it is hard to imagine how it could. Rather, Watson requires that the defendant - the person who kills unintentionally while driving drunk - act with implied malice." (Carr, at p. 143.)
See People v. Watson (1981) 30 Cal.3d 290.
Although implied malice is partly defined by an act, the "natural consequences" of which are dangerous to human life, it is not equivalent to the "natural and probable consequences" theory of murder, which applied to aiders and abettors. "'[T]he use of the term "natural consequences" in the . . . definition of implied malice does not import into the crime of murder the case law relating to the distinct "natural and probable consequences" doctrine developed in the context of aiding and abetting liability.'" (People v. Carr, supra, 90 Cal.App.5th at p. 144.) The changes to the law in Senate Bill No. 1437 "did nothing to remove implied malice as a basis for a second degree murder conviction." (People v. Roldan (2020) 56 Cal.App.5th 997, 1005.)
Imputed malice, however, is different. It involved using the acts and mental state of another person to hold a defendant vicariously liable for a crime. This was the now-extinct natural and probable consequences doctrine. That species of liability arose when "'"'a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.'"'" (People v. Roldan, supra, 56 Cal.App.5th at p. 1004.) For example, in the context of a gang case, a gang member who intended to commit and agreed with another gang member to commit an assault could be liable for a murder if the assault resulted in death. Imputed malice has no relevance to this case, as it did not involve any form of vicarious liability, and the jury was never instructed on it.
In his reply brief, Lopez admits that "implied malice and imputed malice are different legal theories," but nonetheless argues that this might make no difference to a lay jury, because "implied and imputed are synonyms," and the jury might have understood CALJIC No. 8.11 to impute responsibility for the murder to Lopez if they found he was guilty of beating Gabriella. This, however, is pure speculation, supported by no case law and no evidence whatsoever. Lopez is suggesting that the jury, on its own and without instruction to do so, essentially invented a form of the "natural and probable consequences theory" on its own (albeit one that did not involve vicarious liability).
We reject this argument. CALJIC No. 8.11 was a correct statement of the law that explained the difference between express and implied malice, both of which are still current and viable theories. Lopez was not charged with felony murder, or natural and probable consequences murder - which would have made no sense as he was the only person charged or named as the perpetrator. He was charged with, and the jury was instructed on, implied malice second degree murder. In addition to the instruction on malice, the jury was also instructed with CALJIC No. 8.31, which explained the elements of second degree murder. The jury was further instructed on the lesser included offenses of involuntary manslaughter and voluntary manslaughter. The jury instructions given at trial establish as a matter of law that Lopez was not convicted of murder under a now impermissible theory. The jury was not instructed on the natural and probable consequences doctrine, felony murder, or any other theory of murder where malice is imputed based solely on the person's participation in a crime. The jury was not instructed on aiding and abetting or any vicarious liability theory. The jury was instructed only on valid theories of murder. Under the instructions given, the jury necessarily found Lopez guilty of second degree murder based on his actions and mental state. Thus, the record of conviction demonstrates Lopez is ineligible for relief under section 1172.6 as a matter of law.
III
DISPOSITION
The order denying Lopez's petition is affirmed.
WE CONCUR: GOETHALS, J., GOODING, J.