Opinion
E080305
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. KIRK ALBERT ROMERO, Defendant and Appellant.
Jan B. Norman, 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, Christine Y. Friedman, Alan L. Amann and Eric A. Swenson, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI024187. John P. Vander Feer, Judge. Affirmed.
Jan B. Norman, 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, Christine Y. Friedman, Alan L. Amann and Eric A. Swenson, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
Defendant contends the trial court erred by denying his petition for resentencing. (Pen. Code, § 1172.6.) We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
A. TRIAL
At defendant's murder trial, the trial court instructed the jury on the law pertaining to the direct commission of a crime as well as the law of aiding and abetting. The murder instruction provided information about both express and implied malice. The portion regarding implied malice provided, "The defendant 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." (CALCRIM No. 520.)
The lying-in-wait instruction given to the jury provided, in relevant part: "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder....[¶] The defendant murdered by lying in wait if: [¶] 1. He concealed his purpose from the person killed; [¶] 2. He waited and watched for an opportunity to act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed." (CALCRIM No. 521.)
The jury found defendant guilty of murder. (Pen. Code, § 187, subd. (a).) The jury found the murder was (1) willful, deliberate, and premeditated murder, and/or (2) committed by lying in wait. The trial court sentenced defendant to prison for a term of 25 years to life. This court affirmed the judgment. (People v. Romero (Mar. 12, 2013, E054543) [nonpub. opn.] [2013 WL 942836, *14].)
B. RESENTENCING PETITION
In March 2019, defendant petitioned the trial court for resentencing on the basis that he could no longer be convicted of murder due to changes to sections 188 and 189. Defendant asserted that he was not the actual shooter and, at the time of the killing, he intended to participate in an assault-not a murder.
C. OPPOSITION
The People contended that the changes in the law only affected people convicted "under either the felony murder theory or the natural and probable [consequences] doctrine." The People asserted, "The two theories provided to the jury [were] that the murder was committed willfully, deliberately and with premeditation or that the murder was committed while lying-in-wait. [¶] Here, the record of conviction proves that [defendant] was convicted on theories that require an intent to kill. The jury was not instructed on either the felony murder theory or the natural [and] probable consequences doctrine."
D. HEARING AND RULING
At a hearing, the trial court said it was focused on "the jury instructions, which present[] the theory of the case. And the theory of the case was premeditation and lying in wait. There was no felony murder, no natural probable consequences presented to the jury." The trial court found defendant was ineligible for resentencing and denied his petition.
DISCUSSION
A. CONTENTION AND LAW
We examine whether the trial court erred by denying defendant's petition for resentencing. For a murder conviction to be vacated, the defendant must not have had either (1) an intent to kill or (2) a conscious disregard for life combined with knowledge that the relevant act was dangerous to life. (People v. Gentile (2020) 10 Cal.5th 830, 850 [abrogated by statute on another point] (Gentile).) Thus, we examine the mental state findings for defendant's murder conviction.
B. STANDARD OF REVIEW
Jury instructions are part of the record of conviction, which the trial court can consider when determining if a petitioner has made "a prima facie case for resentencing relief." (People v. Lopez (2022) 78 Cal.App.5th 1, 13-14.) A denial at the prima facie stage"' "is a purely legal conclusion, which we review de novo." '" (Id. at p. 14.) In reading the jury instructions, we consider" 'the way a reasonable juror could have interpreted the instruction[s].'" (People v. Reyes Martinez (1993) 14 Cal.App.4th 1412, 1416-1417; see also People v. Reliford (2003) 29 Cal.4th 1007, 1014 ["how a juror could reasonably interpret the instructions"].)
C. DEFENDANT AS THE PERPETRATOR OF AN IMPLIED MALICE MURDER
We begin with the theory of implied malice murder, in which defendant was the killer. The requirements of implied malice given to the jury included: "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." (CALCRIM No. 520.) With this instruction, in order for the jury to convict defendant on a theory of implied malice murder, it had to find that he consciously disregarded life and knew his act was life threatening. Those mental elements meet the requirements for the still existing form of implied malice murder. (Gentile (2020) 10 Cal.5th at p. 850.) Therefore, if the jury found defendant guilty of murder on the theory of implied malice murder, then defendant's conviction stands.
We note that the implied malice murder instruction also provided, "1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life." (CALCRIM No. 520.) The natural and probable consequences portion of the instruction pertains to the act-not defendant's mental state. For defendant's mental state, the jury had to find that defendant "knew his act was dangerous to human life" and that he consciously disregarded life. (CALCRIM No. 520.) If the jury found implied malice murder, then those mental state findings pertain to a form of murder that still exists-a killing wherein the killer knows his "conduct endangers the life of another and acts with conscious disregard for life." (Gentile, supra, 10 Cal.5th at p. 850.)
D. AIDING AND ABETTING IMPLIED MALICE MURDER
Next, we address the theory of defendant aiding and abetting implied malice murder. The aiding and abetting instruction provides: "To prove that the 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 [italics added for emphasis, original italics omitted].)
Defendant asserts one could understand "the crime" to be assault, such that defendant intended only to aid and abet an assault. The jury was not instructed on the crime of assault. The only crime defined for the jury was murder. Accordingly, a reasonable juror would not understand "the crime" to mean assault when murder was the only crime defined in the instructions. A reasonable juror could only have understood the aiding and abetting instruction as requiring findings that defendant knew the perpetrator intended to commit a life threatening act and defendant intended to aid and abet the perpetrator's commission of the life threatening act. If the jury found defendant guilty under a theory of aiding and abetting implied malice murder, then his conviction stands.
Defendant relies on People v. Maldonado (2023) 87 Cal.App.5th 1257, 1266, in which the appellate court wrote, "[T]he jury was instructed that a person aids and abets a crime if 'he or she knows 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.' The murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death.... [T]he jury may have found the perpetrator's purpose was only to injure or intimidate the victim in a surprise attack. Thus, . . . 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.' "
We do not find the discussion in Maldonado to be persuasive because, in discussing murder, the appellate court matched the aiding and abetting instruction with the lying-in-wait instruction. In our view, when discussing murder, one should pair the aiding and abetting instruction with the murder instruction. The lying-in-wait instruction is not relevant to determining if a murder was committed. Rather, it pertains to fixing the degree of murder and thus is relevant only after a jury has found a defendant guilty on a murder charge. Accordingly, we are not persuaded by defendant's reliance on Maldonado. Therefore, we will not use the lying-in-wait instruction to analyze the jury's murder finding in the instant case.
Moreover, at the time defendant's trial took place in 2011, "California law was already clear that a direct aider and abettor could not be convicted of lying-in-wait murder on an imputed malice theory. Specifically, the Supreme Court had ruled that: (1) the perpetrator of a first degree murder by means of lying in wait must act with malice aforethought [citations]; and (2) a direct aider and abettor of murder must at a minimum 'know and share the murderous intent of the actual perpetrator.'" (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 935.)
Accordingly, if there were an ambiguity in the wording of the jury instruction that would have permitted the jury to convict defendant of first-degree lying-in-wait murder on a theory of imputed malice, then that is" 'a routine claim of instructional error' that 'could have been raised on appeal from the judgment of conviction.'" (People v. Berry-Vierwinden, supra, 97 Cal.App.5th at p. 936.) It is not a basis for relief under section 1172.6.
E. CONCLUSION
If defendant were found guilty on a theory of being a direct perpetrator of an implied malice murder, then his conviction stands because the jury found that defendant knew his act was dangerous to human life and he consciously disregarded life. (CALCRIM No. 520; see also Gentile, supra, 10 Cal.5th at p. 850.)
If defendant were found guilty on a theory of aiding and abetting an implied malice murder, then his conviction stands because the jury found he knew the perpetrator intended to commit an act dangerous to human life, and defendant intended to aid and abet the perpetrator in committing that life threatening act. (CALCRIM No. 401.) In sum, the trial court did not err.
DISPOSITION
The order is affirmed.
We concur: CODRINGTON J. FIELDS J.