Opinion
B326952
01-19-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS ORTEGA, Defendant and Appellant.
James Koester, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. PA055043. David W. Stuart, Judge. Affirmed.
James Koester, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
LUI, P. J.
Juan Ortega appeals the denial of his petition for resentencing under Penal Code section 1172.6 (former § 1170.95). The superior court determined that appellant is not entitled to section 1172.6 relief as a matter of law because the jury was not instructed on attempted murder based on the natural and probable consequences doctrine. Appellant counters that the instructions allowed the jury to convict under some other theory of imputed malice, and a literal reading of section 1172.6, subdivision (a) limiting relief only to defendants convicted of attempted murder under the natural and probable consequences doctrine leads to absurd results, contradicts legislative intent, and violates appellant's federal and state constitutional rights to equal protection. Adopting a more expansive reading of the statute as applied to attempted murder convictions, appellant contends that the record does not conclusively establish he is ineligible for resentencing as a matter of law, and he is therefore entitled to remand for issuance of an order to show cause and an evidentiary hearing in accordance with section 1172.6, subdivisions (c) and (d). We disagree and affirm the denial of appellant's resentencing petition.
Undesignated statutory references are to the Penal Code.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
FACTUAL AND PROCEDURAL BACKGROUND
We granted the People's motion for judicial notice of the appellate record in People v. Edgar Hurtado et al. (Aug. 26, 2008, B200275) [nonpub. opn.] (Hurtado). The following facts are briefly summarized from this court's unpublished decision in appellant's direct appeal from his conviction. (Hurtado, supra, B200275.) We set forth this background to give context to our analysis of whether the jury instructions foreclose the existence of a prima facie case. (Cf. § 1172.6, subd. (d)(3) [facts set forth in appellate opinions may not be considered during the evidentiary hearing occurring after a prima facie case has been found to exist].)
On the night of April 12, 2006, Antonio Maldonado, Rene Galaviz, and Samuel Morales were leaving Galaviz's house, located on a dead-end street in Pacoima. When they exited the house, a white SUV drove by, turned around at the end of the street, and stopped in front of the Galaviz residence. Maldonado saw three people in the vehicle. One of them asked, "Where are you from?" Maldonado responded, "From nowhere." Either the driver or the front seat passenger then yelled a gang-related slur, and the passenger in the front seat opened fire. The three or four shots fired hit a tree behind Maldonado and the Galaviz house. The vehicle drove away. (Hurtado, supra, B200275.
Police apprehended appellant and Hurtado in the white SUV shortly after the shooting. Appellant was driving, and Hurtado was in the front passenger seat. (Hurtado, supra, B200275.)
On April 6, 2007, appellant was convicted following a jury trial on three counts of attempted murder (counts 1 through 3), among other charges. As to all three counts, the jury found true the allegation that a principal in the offense was armed with a firearm. The trial court sentenced appellant to a term of life with the possibility of parole on count 1, two concurrent life terms on counts 2 and 3, and one year for the firearm allegation.
Appellant filed his petition for resentencing under section 1172.6 on March 3, 2022. The superior court appointed counsel to represent appellant and ordered briefing. At a hearing on November 18, 2022, the superior court denied the petition on the ground that appellant's jury was not instructed on the natural and probable consequences doctrine.
DISCUSSION
Appellant Is Ineligible for Section 1172.6 Relief as a Matter of Law
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) in 2018, effectively abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) With one narrow exception (§ 189, subd. (f)), the legislation bars murder convictions premised on any theory of imputed malice-that is, any theory by which a person can be convicted of murder for a killing committed by someone else, such as felony murder or the natural and probable consequences doctrine-unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard for human life. (§§ 188, subd. (a)(3) &189, subd. (e).) Specifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder "shall act with malice aforethought" and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)
Effective January 1, 2022, Senate Bill No. 775 amended section 1172.6 to expand its coverage to individuals convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a); People v. Saibu (2022) 81 Cal.App.5th 709, 747.)
Senate Bill No. 1437 also enacted former section 1170.95 (now § 1172.6), which established a procedure for vacating the murder convictions of defendants who could no longer be convicted of murder because of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) After appointment of counsel (if requested) (Lewis, supra, 11 Cal.5th at pp. 963, 966), the superior court must conduct a prima facie analysis with briefing "to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 458, 469-470.)
In conducting this review, our Supreme Court has held that the superior court can and should look to the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971 ["The record of conviction will necessarily inform the [superior] court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless"].) And "[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the [superior] court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708.)
We review de novo the superior court's prima facie determination that a petitioner is ineligible for section 1172.6 relief as a matter of law. (People v. Coley (2022) 77 Cal.App.5th 539, 545 (Coley); People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
B. Based on the plain language of section 1172.6, subdivision (a), appellant is ineligible for relief as a matter of law because he was not convicted of attempted murder under the natural and probable consequences doctrine
As amended by Senate Bill No. 775, section 1172.6, subdivision (a) provides: "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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts." (Italics added.)
Appellant acknowledges the plain language of the statute restricts the ameliorative benefits of section 1172.6 to individuals convicted of attempted murder only if their convictions were based on the natural and probable consequences doctrine. (Coley, supra, 77 Cal.App.5th at p. 548 ["Section [1172.6] applies by its terms only to attempted murders based on the natural and probable consequences doctrine"].) Appellant also does not dispute the superior court's determination that no instructions on the natural and probable consequences doctrine were given to the jury in this case.
Nevertheless, appellant contends that the absence of these instructions does not categorically defeat his claim for relief under section 1172.6, arguing that a literal construction of the statutory language leads to absurd results, contradicts the Legislature's intent, and violates his federal and state constitutional rights to equal protection. Appellant thus maintains he is entitled to relief because language in former CALCRIM No. 400 permitted an attempted murder conviction on a theory of imputed malice. We disagree.
When construing a statute, our fundamental task is to ascertain the Legislature's intent so as to give effect to the law's purpose. (Lewis, supra, 11 Cal.5th at p. 961; People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) We start by determining whether the language of the statute is ambiguous (People v. Dieck (2009) 46 Cal.4th 934, 940), examining its words and giving them a plain and commonsense meaning (Gonzalez, at p. 1141)."' "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." '" (Dieck, at p. 940.)
According to the plain language of section 1172.6, a person convicted of attempted murder is eligible for relief only if that conviction was based on the natural and probable consequences doctrine. (Coley, supra, 77 Cal.App.5th at p. 548.) Where, as in this case, the instructions did not permit the jury to convict appellant of "attempted murder under the natural and probable consequences doctrine" (§ 1172.6, subd. (a)), appellant is ineligible for relief under section 1172.6 as a matter of law. (Coley, at p. 548; see also People v. Offley (2020) 48 Cal.App.5th 588, 599 ["if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied"].)
C. The jury instructions did not allow appellant to be convicted of attempted murder as an aider and abettor under any theory of imputed malice
Appellant argues that the Legislature intended section 1172.6 relief to be available for an attempted murder conviction based on any theory of imputed malice. Any contrary interpretation of the law, he argues, would controvert legislative intent and trigger serious equal protection concerns. Even accepting these contentions, however, appellant is still ineligible for resentencing as a matter of law because the jury instructions in this case did not permit the jury to convict appellant of attempted murder under any theory of imputed malice.
Appellant asserts that the "equally guilty" language in CALCRIM No. 400 given in this case permitted the jury to impute malice to him. We disagree: Reading the instructions as a whole, we find the only theory on which appellant's jury was instructed was direct aiding and abetting of attempted murder, which does not qualify for section 1172.6 relief.
To prove a defendant guilty of attempted murder, the trial court instructed that the People were required to prove: "1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person." (CALCRIM No. 600, parentheses and deleted text omitted.)
The trial court explained the general principles of aiding and abetting to the jury as follows:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the 'perpetrator.' A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (CALCRIM No. 400.)
The trial court then addressed a defendant's liability for a crime as an aider and abettor:
"To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant'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." (CALCRIM No. 401.)
The trial court also gave CALCRIM No. 203 regarding multiple defendants. That instruction informed the jury that both appellant and codefendant Hurtado were charged with attempted murder in counts 1 through 3, the jury "must decide each charge for each defendant separately" and "separately consider the evidence as it applies to each defendant." The instruction also stated that unless otherwise indicated, "all instructions apply to each defendant."
The trial court did not give CALCRIM No. 402 or No. 403 on the natural and probable consequences doctrine, or any other instruction allowing malice found as to one defendant to be imputed to the other.
In order to convict appellant of attempted murder as an aider and abettor, these instructions required the jury to find that appellant knew Hurtado's criminal purpose of attempting to kill the three victims, and with the intent to aid and abet Hurtado in attempting to kill, appellant in fact aided, facilitated, promoted, encouraged, or instigated the attempted murders by his own words or conduct. (CALCRIM No. 401.) When a jury has been instructed as appellant's jury was, our Supreme Court has declared that the jury must consider the aider and abettor's own mental state, and find that the person guilty of attempted murder as an aider and abettor independently possessed an intent to kill. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054; People v. Gonzalez (2012) 54 Cal.4th 643, 654, fn. 8.)
A review of the complete charge to the jury in this case thus reveals that in order to convict appellant of attempted murder as an aider and abettor, the instructions required appellant's jury to find that he personally shared the actual shooter's intent to kill. We presume the jury understood and followed the instructions given. (People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"]; People v. Thomas (2023) 14 Cal.5th 327, 382.) Because the verdict represents a determination by the jury that appellant personally intended to kill, appellant is ineligible for section 1172.6 relief as a matter of law. (See People v. Medrano (2021) 68 Cal.App.5th 177, 182-183.)
The "equally guilty" language in CALCRIM former No. 400 does not change our analysis, nor did it allow the jury to find appellant guilty of attempted murder without finding he personally had the requisite intent to kill. (See People v. Johnson (2016) 62 Cal.4th 600, 640-641 (Johnson).) In Johnson, our Supreme Court rejected the argument that CALCRIM former No. 400's "equally guilty" language allows a jury to convict an aider and abettor of first degree murder based on the perpetrator's culpability without considering the aider and abettor's own mental state. (Id. at pp. 638, 641.) The court noted that the instruction "generally stated a correct rule of law" in that" '[a]ll principals, including aiders and abettors, are "equally guilty" in the sense that they are all criminally liable.'" (Id. at p. 640, quoting People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
Johnson went on to hold that where the jury was instructed with CALCRIM No. 401, setting forth the requirements for establishing aider and abettor liability, "there was no reasonable likelihood the jurors would have understood the 'equally guilty' language in CALCRIM former No. 400 to allow them to base defendant's liability for first degree murder on the mental state of the actual shooter, rather than on defendant's own mental state in aiding and abetting the killing." (Johnson, supra, 62 Cal.4th at p. 641; People v. Estrada (2022) 77 Cal.App.5th 941, 947.)
Appellant cites People v. McCoy (2001) 25 Cal.4th 1111, 1122 (McCoy), People v. Samaniego (2009) 172 Cal.App.4th 1148 (Samaniego), and People v. Nero (2010) 181 Cal.App.4th 504 (Nero) to argue that the "equally guilty" language in CALCRIM former No. 400 allowed appellant's jury to impute malice to him. These cases do not support appellant's claim.
In 2010, the Judicial Council revised CALCRIM former No. 400 by removing the word "equally" from the phrase "equally guilty" after the courts in Samaniego and Nero concluded that the instruction was inconsistent with our Supreme Court's holding in McCoy. (Johnson, supra, 62 Cal.4th at pp. 639-640.) As Johnson explained, "In McCoy, this court rejected the notion that an aider and abettor cannot be found guilty of a greater offense than that committed by the perpetrator. As we observed, aider and abettor liability for a killing is based on the combined acts of all the principals and the aider and abettor's own mental state, which '" 'float[s] free'"' from the mental state of the perpetrator. ([McCoy, supra, 25 Cal.4th] at p. 1119.) When the aider and abettor's mental state is more culpable than that of the actual perpetrator, the aider and abettor may be guilty of a more serious crime. (Id. at p. 1120.)" (Johnson, at p. 639.)
The high court continued, "In People v. Samaniego, supra, 172 Cal.App.4th 1148, and People v. Nero[, supra, ] 181 Cal.App.4th 504, the Courts of Appeal understood McCoy's reasoning to support the further proposition that an aider and abettor's criminal liability may be less than that of the perpetrator, depending on the aider and abettor's mental state. (Samaniego, supra, at pp. 1163-1164; Nero, supra, at pp. 513517.)" (Johnson, supra, 62 Cal.4th at p. 639.) But in Samaniego, the court found the "equally guilty" language in CALCRIM former No. 400 "generally correct in all but the most exceptional circumstances," and only "misleading as applied to the unique circumstances" of that case. (Samaniego, at p. 1165.) The Samaniego court went on to conclude that any instructional error was harmless because "the jury necessarily resolved [the issue of the mental states for murder] against [defendants] under other instructions." (Ibid.) Specifically, because the jury was instructed with CALCRIM No. 401, it necessarily found the defendants guilty as aiders and abettors who acted deliberately and with premeditation. (Id. at pp. 1165-1166 ["It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required"].)
The court in Nero, however, held "that even in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading." (Nero, supra, 181 Cal.App.4th at p. 518.) The court cited the confusing series of instructions given in that case, which prompted the jury to ask during deliberations if they could find the aider and abettor guilty of a greater or lesser offense than the perpetrator. (Id. at pp. 518-520.) By simply rereading CALJIC No. 3.00 with its "equally guilty" language to answer the jury's questions (rather than correctly responding, "yes, the aider and abettor may be guilty of a greater or lesser offense"), Nero held that the trial court had misinstructed the jury, and the error could not be deemed harmless. (Ibid.)
The jury asked several questions, which indicated it was considering imposition of a lesser degree or offense on the aider and abettor. "It expressly asked whether Brown, as the aider and abettor, could 'receive a higher or lesser degree of murder, manslaughter, or innocence?' . . . [T]he foreperson [then] asked if, for example, they were to find defendant A guilty of second degree murder, would the aider and abettor also be guilty of second degree murder 'or could they be held to the level of the manslaughter, or completely innocent?' . . . [T]he jury's expressed concern was not whether it could acquit the aider and abettor, but whether the aider and abettor had to be found guilty of 'the same level, murder two or manslaughter, or could they be at a lower level?'" (Nero, supra, 181 Cal.App.4th at p. 519.) Instead of answering the jury's questions, the trial "court reread, twice, CALJIC No. 3.00, which states: 'Each principal, regardless of the extent or manner of participation, is equally guilty.'" (Ibid.)
Nero has no application to the instant case. In contrast to that case, the instructions given here clearly informed the jury that it "must decide each charge for each defendant separately." (CALCRIM No. 203.) The charge to appellant's jury also plainly explained that a defendant's liability as an aider and abettor must be based on the defendant's personal knowledge of the perpetrator's criminal purpose, his own intent to aid and abet the commission of the crime, and his own conduct that in fact aided the commission of the crime. (CALCRIM No. 401.)
Finally, Nero involved a claim of instructional error by the codefendant convicted of murder as an aider and abettor in a direct appeal from the judgment. (Nero, supra, 181 Cal.App.4th at pp. 507, 518-520.) This case does not concern prejudicial trial error resulting in a conviction. Rather, in this appeal from the denial of a petition for resentencing under section 1172.6, appellant is entitled to relief only if he "could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) But the law in effect at the time of appellant's trial and the jury instructions given already required that an aider and abettor to an attempted murder must personally intend to kill. The allegedly misleading language in CALCRIM former No. 400 did not transform appellant's case into a prosecution based on a" 'theory under which malice is imputed to a person based solely on that person's participation in a crime'" under section 1172.6, subdivision (a). (People v. Burns (2023) 95 Cal.App.5th 862, 865 (Burns).)
As the Burns court explained, "The problem with the 'equally guilty' language in [the] former version [of] CALCRIM No. 400 was not that it permitted the jury to rely on a nowinvalid theory of criminal liability, but that it may have misled the jury as to what was then required to convict [the defendant]. Use of the 'equally guilty' language in the instruction provided at [defendant's] trial created a potential issue of instructional error, but it did not operate to offer the jury a theory of legal liability that can no longer support a conviction for murder as a result of the recent statutory changes." (Burns, supra, 95 Cal.App.5th at pp. 868-869.)
In sum, the changes in the law effected by Senate Bill Nos. 1437 and 775 did not alter accomplice liability for attempted murder under direct aiding and abetting principles. (People v. Jenkins (2021) 70 Cal.App.5th 924, 931.) Accordingly, even if section 1172.6 relief were available for an attempted murder conviction based on a theory of imputed malice other than the natural and probable consequences doctrine, appellant would still be ineligible for relief because his jury was not instructed on any theory of imputed malice.
DISPOSITION
The order denying appellant's petition for resentencing under Penal Code section 1172.6 is affirmed. NOT TO BE PUBLISHED.
We concur: ASHMANN-GERST, J., HOFFSTADT, J.