Opinion
F085356
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. SENGALOUN KHATTIYAVONG, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erin Doering and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County, No. 240598 Shawn D. Bessey, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Erin Doering and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Pena, Acting P. J., Smith, J. and DeSantos, J.
OPINION
THE COURT [*]
INTRODUCTION
During the early morning hours of February 21, 1999, appellant Sengaloun Khattiyavong (appellant) and codefendants Dale Guttierrez (Dale) and Juan Martin Padilla (Mono) "were leaving a crowded party when they pulled out concealed firearms and began shooting at the unarmed crowd, killing 15-year-old Johnny Saycocie (Johnny), and wounding three other young men." (Padilla et al., supra, F038205.)
In People v. Khattiyavong, F038295, People v. Guttierrez, F038296, and People v. Padilla, F038205, appellant and the two codefendants filed direct appeals from their convictions. This court consolidated the appeals with People v. Padilla et al. (June 25, 2003, F038205) (Padilla et al.)) as the lead case and filed a nonpublished opinion that corrected sentencing errors and affirmed their convictions. After notice to the parties and without objection, this court takes judicial notice of our records in People v. Khattiyavong, supra, F038295 and Padilla et al., supra, F038205, which consist of the transcripts from their joint jury trial and direct appeals. (Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22 Cal.App.5th 284, 286-287, fn. 2.) The following facts and procedural background are from this court's nonpublished opinion in Padilla et al., supra, F038205, which was filed by the prosecution as an exhibit in opposition to appellant's petition for resentencing. In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We have stated the facts from the record of appellant's direct appeal to place his arguments in context and do not rely on these facts to resolve appellant's appeal.
In 2001, appellant and the two codefendants were convicted after a joint jury trial of first degree murder, conspiracy to commit murder, four counts of premeditated attempted murder, and participation in a criminal street gang, with firearm, great bodily injury, and gang enhancements. They were each sentenced to 155 years to life in prison. In their joint direct appeal, this court modified their sentences and affirmed the judgment as modified.
In 2019, the trial court summarily denied appellant's petition for resentencing of his murder conviction, filed under former section 1170.95 of the Penal Code. In 2022, the court denied appellant's current petition for resentencing of his murder and attempted murder convictions pursuant to section 1172.6, and found he was ineligible for relief as a matter of law.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellant argues the matter must be remanded for issuance of an order to show cause and an evidentiary hearing because the jury was instructed on the natural and probable consequences doctrine. We find appellant was ineligible for resentencing under section 1172.6 as a matter of law and affirm the trial court's order.
This appeal only involves the trial court's denial of appellant's section 1172.6 petition. Codefendant Padilla separately filed a section 1172.6 petition for rehearing. On February 22, 2023, this court affirmed the trial court's denial of that petition. (People v. Padilla (Feb. 22, 2023, F082966) [non.pub. opn.].) Codefendant Guttierrez is not part of the instant appeal.
FACTS
Appellant "is a member of the Asian Boyz, which is a nationwide 'stand alone' Asian criminal street gang. Witnesses Patton Souphaphone (Patton), Gifford Pathmmavong (Gifford), Roger Bounnhaseng (Roger) and Brian Prak (Brian) are members of the Asian Boyz, as was the murder victim, 15-year-old Johnny.
In the direct appeal, this court's nonpublished opinion exclusively referred to appellant by his moniker of "Froggy." (Padilla et al., supra, F038205.) For purposes of this factual summary and for ease of reference, we will replace that moniker with "appellant," as indicated by the brackets.
"A gang expert, Modesto Police Detective Allen Brocchini, opined that Dale and Mono are 'Nortenos,' which is a Northern California Hispanic criminal organization. [Brocchini] testified that Dale claims membership in a Norteno-affiliated 'stand alone' street gang named Four Korners Krazy and that Mono is an 'associate' of this gang.
However, [Brocchini] also testified that there is really no difference between a Norteno gang member who simply claims 'Norte' and one who claims a particular street gang or set, other than that the former has been 'schooled' (i.e., has been to prison or has family members in prison) and knows that Nortenos are Nortenos regardless of whether they claim to be members of a particular set. Mono told Modesto Police Detective Timothy Helton that he 'hangs with' the Four Korners Krazy gang. [Helton] asked Mono if he was a Norteno; Mono did not deny it, but would not admit it either. One of the shooting victims, Sammy Bergara, is a Four Korners Krazy member.
"In February 1999, Asian Boyz was allied with Four Korners Krazy. Four Korners Krazy did not get along with other Norteno-affiliated street gangs and Asian Boyz did not get along with other Asian street gangs. Four Korners Krazy had a particular rivalry with another Norteno-affiliated gang, West Side Boyz; the two gangs were competing for control of the same territory." (Padilla et al., supra, F038205.)
The Firearms
"Louise Long lived with Dale's parents, Thomas and Gloria Guttierrez. Many of Dale's friends, including [appellant] and Mono, often came to the house. A few days to a week before the shooting Louise purchased a box of nine-millimeter bullets for defendants and some other boys. She testified that '[t]he boys needed a particular type of bullet. I can't tell you what kind it was, but you had to have a picture ID to be able to purchase it. I was [the] only one in the house with a picture ID.' She testified that when she said 'the boys,' this included" '[t]hose three right there: Dale, [appellant], Mono.' Dale asked her to buy the bullets and gave her the money. Dale, [appellant], Sammy, Roger, and a few other boys drove with her to Wal-Mart to buy the bullets. Not all of the boys who were at the house went with them to buy the bullets; Mono did not go. The bullets the boys wanted her to purchase were called 'cop killers' on the street. This type of bullet was designed for deep penetration. However, Wal-Mart only had one box of standard nine-millimeter ammunition and so this was what she bought. When she got outside the store, she gave the bullets to Dale." When they got home, the other boys were still at the house. Later, Louise saw 'these guys, three defendants' loading their guns. She had seen Mono, [appellant], Dale and other boys clean and load guns at Dale's house at least a dozen times prior to this occasion. It was their usual practice to wear white cotton gloves to polish the bullets before loading the firearms so that no fingerprints would be on the casings. Whenever they cleaned their guns, they would polish the bullets in this manner. When she saw the defendants loading firearms this time, they followed their usual practice of polishing the bullets to eliminate fingerprints.
"Roger testified that on the evening of February 20, he went to Dale's house; Mono and [appellant] were already there. Roger brought a nine-millimeter [Mac 11 pistol] with him. Roger had borrowed the pistol from a friend named Clipper. Roger saw the defendants with [a] Ml assault rifle (the Ml rifle) and a nine-millimeter handgun .... The nine-millimeter handgun was Mono's gun; Mono had brought it with him when he came to Dale's house and Mono said it belonged to him. The Ml rifle belonged to Dale. Dale loaded the Mac ll pistol and the Ml rifle. Roger thinks the nine-millimeter handgun was already loaded. Dale and Mono 'switched guns' because they were thinking of trading. While the guns were being loaded, Roger heard Dale, Mono and [appellant] say 'we're going to go to the party with them in case something was to happen, to bring them.' After about an hour, Roger went to Patton's house. Roger took the Mac ll pistol with him. After about 30 or 40 minutes, [appellant] telephoned Roger and said that it was time for them to go to the party. [Appellant] told Roger to bring the Mac ll pistol back with him. Roger and Patton drove back to Dale's house. Roger had heard about the party by word of mouth and from Sammy. Everyone he hung around with had heard about the party.
"Meanwhile, Brian, Johnny, Gifford and Mike Ruiz had arrived at Dale's house. Around l0:00 p.m., Brian telephoned Sarouth Dy and asked her to come over to Dale's house and drive them to a birthday party on Laurel Street. Once she arrived at Dale's house, Sarouth switched cars with Brian; she drove [a van] belonging to Brian's mother to the party and Brian drove Sarouth's [car]. The boys wanted Sarouth to drive the van because defendants were armed. Sarouth had a valid driver's license and she was not on probation so the police would not have a reason to search the van if she were stopped. Sarouth drove Dale, Mono, Johnny and Brian to the party in the [van]. They met Roger, Patton, Brian and Sammy at the party." (Padilla et al., supra, F038205.)
"When they arrived at the party, Dale concealed the nine-millimeter handgun inside his jacket pocket. Mono stuffed the M1 rifle into a leg of his pants. They initially left the Mac 11 pistol in Sarouth's car but [appellant] and Roger later retrieved the Mac 11 pistol and [appellant] concealed it in the waistband of his pants. [¶] Sarouth stayed in the van and slept. Thirty minutes to an hour later, Mono and Roger woke her and she drove them to the store to buy beer. When they returned, she parked the van within shouting distance from the party and went back to sleep in the driver's seat.
"The party was crowded with at least 50 young people in the house and garage. Roger testified that the majority of the partygoers were looking strangely at him and his Asian friends. He thought it might be because most of the party attendees were Hispanic and rival gang members. There was both racial and gang tension.
"During the party Mono and [appellant] showed their weapons to a 'Mexican guy' and they said something 'like, you know, if there was any trouble or something, then we got guns.' Mono brought out a clip, showed his gun and said, '[i]f the funk starts, this is how it will end.'
"An argument started between Juan Montoya (Montoya) and Benjamin Castillo. Mono pushed them apart and told them that they should 'kick back.'
"After this argument, the party became tenser. Gang members began standing together and casting hostile looks at each other. Four Korners Krazy members were standing by [Asian] Boyz members. People began shouting out their gang identity to one another and flashing hand signals. Mike and Sammy were yelling 'Four Korners.' Roger, [appellant] and Johnny were yelling 'Asian Boyz.' Other people were yelling different gang names, including West Side Boyz and SPN." (Padilla et al., supra, F038205.) The Shootings
"A woman announced that the party was over and people began to leave, heading down the driveway. As Roger jogged toward the van, he saw Mono holding the M1 rifle in his hands parallel across his body with the end of the barrel pointing toward the house. Mono asked Roger 'what was going on.' Roger said, 'I don't know.'
"Aaron Miller was standing at the gate to the driveway. He heard a male voice shout out, 'get strap,' which is a reference to obtaining guns. About 30 to 40 seconds later, Aaron heard gunshots.
"Dale began shooting at the crowd. He was firing the gun through his jacket pocket. He was walking backward and firing toward the house and crowd of people. After the second shot, Johnny fell to the ground. Then Mono and [appellant] began shooting. Sarouth and Roger testified that defendants fired at the house and at people. Defendants fired until their clips were empty.
"Defendants were the only people shooting. No one saw any sparks or flames coming from the direction of the other party guests. No one testified that he or she saw anyone at the party except defendants with knives or other weapons. Party attendees Lucy Quezada and Juan Lopez as well as Roger all testified that Montoya did not have a gun. No one testified that anyone behaved aggressively toward defendants prior to the shooting.
"Roger got into the van and told Sarouth to start the engine. Sarouth could see flashes and hear gunfire coming from the back of the van. Luis Dominguez and [appellant] got into the van and [appellant] pulled Johnny inside. Mono, Sammy and Dale got into the van. Johnny and Sammy had each been shot once. Johnny had been hit in the upper abdomen and a bullet had passed through one of Sammy's thighs and a portion of his buttocks. Sarouth saw Mono holding [a] M1 rifle and [appellant] holding a Mac 11 pistol. Sammy told Sarouth to drive them to his aunt's house because she was a nurse. Mono put the M1 rifle and [appellant] put the Mac 11 pistol under the seat.
"They arrived at a house occupied by Sammy's aunt and uncle, Lucy and Edward Hernandez. Everyone but Sarouth exited the van. They left Johnny and Sammy on the driveway. Dale told Luis not to say anything about the shooting and Dale and Mono threatened Luis with their weapons. Lucy came outside and said that an ambulance was on the way. She told the boys to leave. Dale went inside the house and changed clothes. He came back outside. Dale and [appellant] told everyone to say that the two of them had not been at the party. Everyone except Dale drove away in the van; Sarouth eventually took the rest of them to Dale's house. Dale went inside Edward and Lucy's house and Edward took the nine-millimeter handgun away from him. Johnny died on the driveway. When a Modesto police officer encountered Dale inside the house, Dale told him that he had been inside sleeping." (Padilla et al., supra, F038205.) The Investigation
As previously noted, Johnny, appellant, and the codefendants were members of the same gang.
"Meanwhile, the police had arrived at the shooting scene. They discovered that Rigo Moreno had been shot in the leg and Adam Caballero had been shot in the knee. Both underwent surgery.
"Fifty-two cartridge casings and an expended nine-millimeter bullet were recovered from the shooting scene. Twenty-six of the casings were nine-millimeter and [26] of the casings were .30 caliber. It appeared that the shooters had been moving east to west or west to east as they fired.
"On February 24, Mono's father reported to police that his nine-millimeter ... handgun had been stolen. He last saw the gun around February 17. When he reported the gun stolen, he told the police that he thought Mono [had] taken it.
"Police eventually recovered the Mac 11 pistol and the M1 rifle. The nine-millimeter handgun used in the shooting was not recovered. Criminalist Richard Takenaga test fired the two weapons and matched the ejected shell casings to several of the shell casings recovered at the shooting scene. Twenty-six of the shell casings matched the M1 rifle and 12 of the spent nine-millimeter casings matched the Mac 11 pistol. The remaining 14 nine-millimeter shell casings could have been fired from a . nine-millimeter handgun.
"The van belonging to Brian's mother was processed. It had a bullet hole on the driver's door that had been repaired and there were bloodstains in the rear passenger area." (Padilla et al., supra, F038205.)
Pretrial Statements by Appellant and the Codefendants
"[Helton] testified that he encountered Mono on March 2. Mono told him that Robert Gratton had ordered him 'to check' one of his 'homeys' because the homey had done something disrespectful to Gratton's daughter. Gratton is a Nuestra Familia leader. Nuestra Familia is the Norteno prison gang. Nuestra Familia leaders try to govern the behavior of Nortenos who are out of prison. Mono refused, telling Gratton 'that he may run things in the prison, but that he didn't tell him what to do on the streets.' Mono did not say when this conversation occurred. [Helton] spoke to Gratton. Gratton confirmed that this conversation had taken place on the day after the shooting. Mono also told [Helton] that Gratton was marketing a CD entitled GUN and sending the money raised this way back into the prisons to help with the effort to unify Nortenos. He had seen Gratton go into [a grocery store] and attempt to sell GUN CD's [sic] to the clerk. After Gratton left, he had approached the clerk and told him not to buy the CD's [sic].
"After [appellant] was arrested in May, Dale decided to go into hiding. Dale, Thomas and Louise traveled to Idaho. While they were there, Louise overheard a discussion in which Dale said that 'he set up the boys to go to the party. It was his idea.' He said '[t]hat he knew that it was a rival gang members' party, and by being there, he knew that it would be trouble.' Dale said that he yelled out, 'They've got a gun,' and started shooting as a way of instigating the shooting. Dale actually did not know if someone had a gun or not. Dale said that he wanted to start a war between rival gangs because he wanted to be the gang leader. If he could dissolve the other gang then he would have control over all the territory. Dale went to the party to fire his gun. Louise understood Dale's comment that he had 'set his friends up,' to mean that they did not know what he was going to do before the shooting.
"During an interview with the police, [appellant] admitted firing all of the rounds in the Mac 11 pistol. He said that Montoya had brandished a gun and shot at them first. He began firing in Montoya's direction. There was a crowd of people around Montoya. [Appellant] said that he did not think he could have shot Johnny because he tripped over him while he was walking backward and firing. Dale and Mono were shooting also. Mono fired the first two shots in the air. Then he lowered the M1 rifle, pointed it toward Montoya and the crowd and fired more than six shots.
"During interviews with an assistant district attorney and an investigator, Mono admitted firing the M1 rifle into the air above the crowd. He said that he did so because Johnny had been shot and he did not know what was happening. He said that Montoya did not have a gun and no one was shooting at them. He brought the M1 rifle to the party for protection because he had been assaulted a few months earlier by Surenos (Southern California Hispanic gang members)." (Padilla et al., supra, F038205.)
PROCEDURAL SUMMARY
On or about February 6, 2001, a first amended indictment returned by a grand jury was filed in the Superior Court of Stanislaus County that jointly charged appellant and the two codefendants with the following offenses:
Count I: Murder of Johnny Saycocie (§ 187);
Count II: Conspiracy to commit murder, and a separate charge of conspiracy to commit assault with a firearm (§§ 182, 187);
Counts III, V, VII, and IX: Premeditated attempted murders of Bergara, Moreno, Caballero, and John Doe (§§ 664/187);
Counts IV, VI, VIII and X: Assault with a semiautomatic firearm on Bergara, Moreno, Caballero, and John Doe (§ 245, subd. (b)); and
Count XI: Active participation in a criminal street gang (§ 186.22, subd. (a)).
As to all counts and defendants, the amended indictment alleged firearm (§§ 12022.5, 12022.53, subds. (b)-(e)), great bodily injury (§ 12022.7), and gang enhancements (§ 185.22, subd. (b)(1)).
On January 9, 2001, the joint jury trial began for appellant and the two codefendants.
CONVICTIONS AND SENTENCE
On February 9, 2001, the jury found appellant guilty of count I, first degree premeditated murder of Johnny, with the enhancements that appellant was a principal in the offense and, in the commission of the offense, at least one principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)); at least one principal intentionally and personally discharged and personally used a firearm (§ 12022.53, subds. (c), (e)(1)); at least one principal intentionally and personally discharged and used a firearm proximately causing great bodily injury (§ 12022.53, subds. (d), (e)(1)); and appellant personally used a firearm (§ 12022.5); and the gang enhancement (§ 186.22, subd. (b)(1)).
In count II, appellant was convicted of conspiracy to commit murder, with the enhancements that he personally used a firearm (§ 12022.5), personally inflicted great bodily injury on Bergara, Moreno, and Caballero (§ 12022.7); and the gang enhancement.
As to the separate charge alleged in count II, appellant was found not guilty of conspiracy to commit assault with a semiautomatic firearm.
In counts III, V, VII, and IX, appellant was convicted of the premeditated attempted murders of Bergara, Moreno, Caballero, and John Doe, with the enhancements that appellant was a principal in the offense and, in the commission of the offense, at least one principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)); at least one principal intentionally and personally discharged and personally used a firearm (§ 12022.53, subds. (c), (e)(1)); at least one principal intentionally and personally discharged and used a firearm proximately causing great bodily injury (§ 12022.53, subds. (d), (e)(1)); appellant personally used a firearm (§12022.5); and the gang enhancement (§ 186.22, subd. (b)(1)).
As to the premeditated attempted murder convictions in counts III, V, and VII, the jury found appellant did not personally inflict great bodily injury on Bergara, Moreno, and Caballero. This enhancement was not alleged for count IX, premeditated attempted murder of John Doe.
In count XI, appellant was convicted of active participation in a criminal street gang, with an enhancement for personally using a firearm.
In counts IV, VI, VIII, and X, appellant was found not guilty of assault with a semiautomatic firearm on Bergara, Moreno, Caballero, and John Doe.
Appellant's two codefendants were convicted of first degree premeditated murder, conspiracy to commit murder, four counts of premeditated attempted murder, and active participation in a criminal street gang, with firearm, great bodily injury, and gang enhancements.
On April 5, 2001, the court sentenced appellant and the codefendants each to an aggregate term of 155 years to life.
Direct Appeal
On June 25, 2003, this court filed the nonpublished decision in the joint direct appeal by appellant and the codefendants. The prosecution conceded the trial court improperly imposed a three-year term for the section 12022.7 great bodily injury enhancement attached to count II, conspiracy to commit murder; and the court erroneously imposed a term of 20 years to life for the section 12022.53, subdivision (c) firearm enhancement attached to count IX, attempted murder, since the correct determinate term was 20 years. We ordered the sentences to be corrected and otherwise affirmed the judgment. (Padilla et al., supra, F038205, at pp. 45-47.) An amended and corrected abstract of judgment was subsequently filed.
FIRST PETITION FOR RESENTENCING
In 2019, appellant filed a petition for resentencing of his first degree murder conviction pursuant to former section 1170.95.
On March 14, 2019, the trial court filed an order that summarily denied the petition because appellant was convicted of first degree premeditated murder, and "[t]he evidence at trial showed that [appellant] and two co-perpetrators fired over 50 rounds of ammunition into a crowd of unarmed people at a party, killing 15-year-old Johnny Saycocie. The jury was not instructed as to the theory of felony murder or the doctrine of natural and probable consequences, although the phrase 'natural and probable consequences' was part of the conspiracy instruction. Senate Bill No. 1437 'amend[ed] the felony murder rule and the natural and probable consequences doctrine as it relates to murder.' [Citation.] The law as to conspiracy is unchanged." Appellant did not file an appeal from this order.
SECOND PETITION FOR RESENTENCING
On May 5, 2022, appellant filed, in propria persona, the current petition for resentencing pursuant to section 1172.6, and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that stated he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The Prosecution's Opposition
On June 30, 2022, the prosecution filed opposition, with supporting exhibits consisting of the jury instructions, this court's nonpublished opinion in the joint direct appeal, and the trial court's order that summarily denied appellant's first petition for resentencing.
The prosecution argued that appellant could not file the current petition for resentencing of his murder conviction because the court had already denied his first petition. The prosecution acknowledged that appellant could challenge his attempted murder convictions, given the subsequent amendments to section 1172.6, but argued he was ineligible for resentencing as a matter of law because the jury was not instructed on felony murder or murder under the natural and probable consequences doctrine, and appellant was convicted of first degree premeditated murder and premeditated attempted murder.
Appointment of Counsel
On July 6, 2022, the trial court filed an order that acknowledged it had previously denied appellant's first petition. However, the court found that former section 1170.95 had been subsequently amended to permit appellant to file a petition for resentencing of an attempted murder conviction and obtain appointment of counsel upon request. The count appointed counsel for appellant and provided for further briefing.
Appellant's Reply
On August 3, 2022, appellant's counsel filed a reply, and argued his current petition was not barred by collateral estoppel because his first petition was summarily denied without the court's appointment of counsel, section 1172.6 was subsequently amended to provide for counsel and a hearing on the petition, and the court's denial of his first petition was erroneous because the jury was instructed on the natural and probable consequences doctrine.
THE TRIAL COURT'S DENIAL OF THE SECOND PETITION
On November 10, 2022, the trial court held a hearing as to whether appellant's second petition stated a prima facie case for resentencing for both the murder and attempted murder convictions. Defense counsel waived appellant's presence, and the parties submitted the matter.
On the same day, the trial court filed an order that denied appellant's second petition as to both his murder and attempted murder convictions.
"On February 21, 1999, [appellant and the two codefendants] were leaving a crowded party when they pulled out concealed firearms and began shooting at the unarmed crowd. [Appellant] and his group fired over 50 rounds of ammunition into the crowd at the party, killing 15-year-old Johnny ..., and wounding three other young men. [Appellant] was convicted after jury trial of premeditated [first degree] murder, conspiracy to commit murder, four counts of premeditated attempted murder and participation in a criminal street gang.
"The reason for this denial is based on the above facts and the record of conviction which establish that [appellant] would still be convicted of murder and attempted murder under revised [sections] 188 and 189. As a matter of law, [appellant] is not entitled to, nor is he eligible for resentencing for his murder conviction because this [c]ourt has already decided that he is not entitled to relief because he was convicted of premeditated murder and not felony murder, murder under the natural and probable consequences doctrine, or any other theory where malice was imputed to him. As a matter of law, [appellant] is not entitled to, nor is he eligible for resentencing because he was not convicted of attempted murders based on the natural and probable consequences doctrine." (Italics added.)
On December 1, 2022, appellant filed a timely notice of appeal.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) became effective in 2019, and "altered the substantive law of murder in two areas. First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189, subdivision (e) ._ Under that provision, 'A participant in the perpetration or attempted perpetration of a [specified felony] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 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 person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2'" (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
"Second, 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. [Citation.] 'Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citation.] One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine. [Citation.] '[U]nder the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the "natural and probable consequence" of the crime the accomplice aided and abetted (i.e., the nontarget offense). [Citation.] A nontarget offense is the natural and probable consequence of a target offense "if, judged objectively, the [nontarget] offense was reasonably foreseeable." [Citation.] The accomplice need not actually foresee the nontarget offense. "Rather, liability' "is measured by whether 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." '"' [Citation.] Thus, under prior law, a defendant who aided and abetted an intended assault could be liable for murder, if the murder was the natural and probable consequence of the intended assault. [Citation.] The defendant need not have intended the murder or even subjectively appreciated the natural and probable consequences of the intended crime. [Citation.] Senate Bill 1437 ended this form of liability for murder." (Curiel, supra, 15 Cal.5th at p. 449.)
"Senate Bill 1437 also enacted former section 1170.95, which created a procedural mechanism 'for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief' where the two substantive changes described above affect a defendant's conviction. [Citation.] [Effective in 2022,] the Legislature amended the statute to expand the population of eligible offenders [to include attempted murder], codify certain aspects of our decision in Lewis, [supra, 11 Cal.5th 952,] and clarify the procedure and burden of proof at the evidentiary hearing stage of proceedings. [Citation.] One year after that, former section 1170.95 was renumbered as section 1172.6 without substantive change." (Curiel, supra, 15 Cal.5th at p. 449.)
Section 1172.6 states: "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 ...." (§ 1172.6, subd. (a).)
When a petition for resentencing is filed, the trial court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id. subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
The prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971.) The record of conviction includes the jury instructions. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v Offley (2020) 48 Cal.App.5th 588, 599; People v. Harden (2022) 81 Cal.App.5th 45, 50, 54-55.)
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 957-958, 972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Successive Petitions
We first note the instant appeal involves appellant's second petition for resentencing. A petitioner may file a successive petition under section 1172.6 if it is based on new legal authority. (People v. Farfan (2021) 71 Cal.App.5th 942, 946-947, 950-951.) Farfan held the defendant in that case could file a successive petition because the Supreme Court's ruling in Lewis demonstrated the "still-evolving state of [former section] 1170.95 jurisprudence" such that a second petition would not be barred by collateral estoppel. (Farfan, at p. 950.) While Farfan held the defendant in that case could file a second petition, it also held defendant was still ineligible for relief as a matter of law based upon the jury's findings. (Id. at p. 947.)
In this case, appellant was convicted of first degree premeditated murder and four counts of premeditated attempted murder. Appellant filed his first petition in 2019 and it was summarily denied. At that time, former section 1170.95 only permitted a defendant to file a petition if convicted of murder based upon the felony-murder rule or the natural and probable consequences doctrine; it was not settled whether a petition could be filed for attempted murder convictions, or whether appointment of counsel or a hearing on the prima facie issue was required. As of January 1, 2022, the statute was amended to clarify a petitioner could request resentencing if he was convicted of attempted murder based on a theory of imputed malice, and established procedural requirements for appointment of counsel and a hearing on the prima facie issue. (See, e.g., People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388; People v. Sanchez (2022) 75 Cal.App.5th 191, 193-194.)
As correctly noted by the trial court, appellant's second petition was based on new statutory and case authorities that were not applicable at the time the court denied his first petition. As the court correctly found, his second petition was filed in 2022, and cognizable for both his murder and attempted murder convictions.
III. The Trial Court's Ruling
When the trial court denied appellant's second petition, it filed an order that summarized the underlying facts and was likely based on this court's opinion in the direct appeal. The court found appellant failed to state a prima facie case "based on the above facts and the record of conviction which establish that [appellant] would still be convicted of murder and attempted murder under revised [sections] 188 and 189."
To the extent the trial court may have erroneously made factual findings on the prima facie issue, the appellant must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; People v. Watson, supra, 46 Cal.2d at p. 836.) As we will explain, any error was not prejudicial.
IV. Appellant's Convictions and the Instructions
Appellant contends his petition stated a prima facie case and the matter must be remanded for an evidentiary hearing for his murder and attempted murder convictions because the jury was instructed on the natural and probable consequences theory.
A. The Instructions
The jury was instructed with CALJIC No. 3.01, which defined direct aiding and abetting when a person "(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."
The jury was also instructed with CALJIC No. 3.02, which defined indirect aiding and abetting based on the natural and probable consequences doctrine and target and nontarget crimes:
"One who aids and abets in the commission of a crime or crimes is not only guilty of that crime or crimes but is also guilty of any other crime or crimes committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
"In order to find a defendant, under this theory, guilty of the crimes or crimes of murder or any lesser offense thereto, attempted murder or any lesser offense thereto, or assault with a firearm, you must be satisfied beyond a reasonable doubt that:
"1. One of the originally contemplated crimes of murder or any lesser offense thereto, conspiracy to commit murder and/or assault with a firearm, attempted murder or any lesser offense thereto, assault with a firearm or active participation in a criminal street gang was committed.
"2. That the defendant aided and abetted the originally contemplated crime or crimes.
"3. That a co-principal in that crime or crimes committed the crime of murder or any lesser offense thereto or attempted murder or any lesser offense thereto or assault with a firearm.
"4. That one of those crimes listed in [No.] 3 (murder or any lesser offense thereto, attempted murder or any lesser offense thereto or assault with a firearm) was a natural and probable consequence of the commission of the crime or crimes originally aided and abetted." (Italics added.)
Murder
As to count I, murder, the jury was instructed on the elements of the offense and the definitions of express and implied malice. CALJIC No. 8.20 defined premeditation, deliberation, and willfulness for first degree murder.
The jury was instructed on second degree murder, and voluntary and involuntary manslaughter as lesser included offenses of murder, and justifiable and excusable homicide, perfect and imperfect self-defense, and sudden quarrel or heat of passion.
CALJIC No. 8.65 defined transferred intent and stated that when "one attempts to kill a certain person, but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been killed." (Italics added.)
Attempted Murder
CALJIC No. 8.66 defined attempted murder as a direct but ineffectual act being done by a person towards killing another human being, and the person committing the act harbored malice aforethought, namely, a specific intent to kill unlawfully another human being. The jury was also instructed on the premeditation allegation for attempted murder. (CALJIC No. 8.67.)
The jury was instructed on attempted voluntary manslaughter as a lesser included offense of attempted murder.
Conspiracy
In count II, the information charged appellant with two separate conspiracy offenses: conspiracy to commit murder and a separate charge of conspiracy to commit assault with a firearm.
The jury was instructed that appellant was charged in count II with conspiracy to commit the crime of homicide, in violation of section 187; and a separate charge of conspiracy to commit assault with a firearm, in violation of section 245; the jury had to find beyond a reasonable doubt that defendants conspired to commit one or more of said crimes; the jury "must unanimously agree as to which particular crime or crimes they conspired to commit"; and a special verdict form was provided for this count. (CALJIC No. 6.25.) (Padilla et al., supra, F038205.)
CALJIC No. 8.26 defined conspiracy to commit murder:
"If a number of persons conspire together to commit murder, and if the life of a person is taken by one or more of them in the perpetration of, or an attempt to commit that crime, and if the killing is done in furtherance of the common design and to further that common purpose, or is an ordinary and probable result of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental." (Italics added.)
CALJIC No. 6.11 further addressed conspiracy and stated in relevant part:
"A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime, or act of a co-conspirator to further the object of the conspiracy, even though that crime or act was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime or act." (Italics added.)
CALJIC No. 8.69 stated a person is guilty of conspiracy to commit murder if he or she "conspires with any other person or persons to commit the crime of murder .. [¶] ... [¶] A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [¶] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being." (Italics added.)
The jury was separately instructed on the elements of the second conspiracy charge alleged in count II, conspiracy to commit assault with a firearm, and also on the elements of assault with a firearm.
Verdicts
As explained above, appellant was convicted of count I, first degree premeditated murder. In count II, the jury returned a special verdict that found him guilty of conspiracy to commit murder; and found him not guilty of conspiracy to commit assault with a firearm.
Appellant was also found guilty of four counts of premeditated attempted murder, and not guilty of four counts of assault with a firearm alleged as to the same victims.
B. First Degree Premeditated Murder
Appellant argues he made a prima facie case for resentencing on his conviction of first degree premeditated murder because the jury was instructed with CALJIC No. 8.26, which defined conspiracy and the natural and probable consequences doctrine. Appellant asserts this instruction permitted the jury to convict him of murder based on conspiracy and an imputed malice theory "even though he did not fire a shot at the victim, nor intend that the victim die" and the instruction "allowed the jury to impute and attribute malice to him for an unintended act."
As explained above, the jury herein was instructed with CALCRIM Nos. 8.26 and 6.11 on the natural and probable consequences doctrine. The record of conviction, however, establishes appellant was ineligible for resentencing as a matter of law because the entirety of the instructions and verdicts show the jury did not rely on that doctrine to find him guilty of first degree premeditated murder.
"Under the [former] natural and probable consequences theory of aiding and abetting a murder, a defendant can be found guilty of murder if he or she aids and abets a crime (i.e., the target crime) and murder (i.e., the nontarget crime) is a natural and probable consequence of that target crime." (People v. Chavez (2018) 22 Cal.App.5th 663, 683.)
As to conspiracy," '[a] conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy.'" (People v. Joseph (2021) 63 Cal.App.5th 1058, 1065.) "The act of one conspirator is the act of all. Each is responsible for everything done by his coconspirators, including those things that follow as the probable and natural consequence of the execution of the conspiracy." (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.)
"[C]onspiracy to commit murder can only take a single form: It 'requires a finding of unlawful intent to kill, i.e., express malice' [citation] and 'is necessarily conspiracy to commit premeditated and deliberated first degree murder.'" (People v. Ware (2022) 14 Cal.5th 151, 167.) "[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder." (People v. Cortez (1998) 18 Cal.4th 1223, 1237; People v. Beck and Cruz (2019) 8 Cal.5th 548, 641 (Beck and Cruz); People v. Medrano (2021) 68 Cal.App.5th 177, 183.)
"A jury's finding that a defendant is guilty of conspiracy to murder, when a murder has in fact been committed, is 'in effect [a finding] that [the defendant] was a direct aider and abettor of the killings.'" (People v. Whitson (2022) 79 Cal.App.5th 22, 36.) In this case, the jury was correctly instructed with CALJIC No. 8.69 that "[t]he crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being." The jury was also correctly instructed with CALJIC No. 3.01 on direct aiding and abetting, which has not been eliminated by the amendments enacted by Senate Bill 1437 and Senate Bill No. 775 (Senate Bill 775) (2021-2022 Reg. Sess.) "because a direct aider and abettor to murder must possess malice aforethought." (People v. Gentile (2020) 10 Cal.5th 830, 848.)
Appellant was convicted of first degree premeditated murder and conspiracy to commit murder, and found not guilty of conspiracy to commit assault with a firearm. The verdicts, together with the language of CALJIC No. 8.29, refute any possibility that the jury relied on an imputed malice theory to find him guilty of murder. By convicting appellant of conspiracy to commit murder, the jury necessarily concluded that appellant harbored express malice. (Beck and Cruz, supra, 8 Cal.5th at p. 642.)
Moreover, to the extent the jury may have relied on the transferred intent instruction to return the first degree murder conviction, the imputed malice theories of homicide eliminated by Senate Bills 1437 and 775 are not implicated by the doctrine of transferred intent because "the intent required for the crime at issue [(murder)] was already established with respect to [the intended victim] and was transferred to the ultimate victim." (People v. Vasquez (2016) 246 Cal.App.4th 1019, 1026; People v. Lopez (2024) 99 Cal.App.5th 1242.)
Appellant further argues his conviction for conspiracy to commit murder does not negate the impact of CALJIC No. 8.26's instruction on the natural and probable consequences doctrine, because section 1172.6 permits petitions "where a conviction is based on any theory permitting the imputation of malice by the jury solely on the [defendant's] participation in a crime," and thus prohibits convictions based on conspiracy to commit murder. To the contrary, "the Legislature did not intend to provide relief from convictions for conspiracy to murder through the filing of a petition under section [1172.6]." (People v. Whitson, supra, 79 Cal.App.5th at pp. 35-36.)
C. Premeditated Attempted Murder
Appellant separately argues that he was not ineligible for resentencing as a matter of law on his four convictions for premeditated attempted murder. Appellant asserts CALJIC No. 6.11's language on the natural and probable consequences doctrine permitted the jury to find him guilty of attempted murder "as a natural and probable consequence of entering [into] a conspiracy to commit an assault with a firearm or murder."
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177-178; see People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Implied malice cannot support a conviction of attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327.) Thus, while murder may be premised on a conscious disregard for life (implied malice), attempted murder requires the specific intent to kill. (Smith, at p. 739.)
"[U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement." (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)" 'Willful' is synonymous with 'express malice': in other words, a specific intent to kill. [Citation.] Premeditation occurs when the [attempted] killing is' "considered beforehand,"' and deliberation occurs when the decision to kill is' "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." '" (Id. at p. 604.)
An allegation of "conspiracy to commit attempted murder ... is a conclusive legal falsehood. This is because the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not to do the same act ._" (People v Iniguez (2002) 96 Cal.App.4th 75, 79.) "[U]nder a traditional conspiracy approach, one cannot conspire to try to commit a crime." (People v. Johnson (2013) 57 Cal.4th 250, 264.)
As previously explained, the former natural and probable consequences doctrine provided that" 'an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the "natural and probable consequence" of the crime the accomplice aided and abetted (i.e., the nontarget offense).'" (Curiel, supra, 15 Cal.5th at p. 449; People v. Vasquez, supra, 246 Cal.App.4th at p. 1025.)
Appellant theorizes that under the natural and probable consequences instruction, assault with a firearm could have been the target offense and attempted murder the non-target offense, so that he could have been convicted of attempted murder based on an imputed malice theory. Appellant is correct that assault with a firearm could serve as the target offense that he aided and abetted which, in turn, could make him liable for the nontarget offense of attempted murder under the former natural and probable consequences doctrine. (People v. Medina (2009) 46 Cal.4th 913, 916, 919-920.)
In this case, however, the jury instructions and verdicts refute that possibility. As previously explained, the jury found appellant not guilty of conspiracy to commit assault with a firearm, and not guilty of the separately charged offenses of assault with a firearm. Moreover, appellant was convicted of "conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility [he was] found guilty of [attempted] murder on a natural and probable consequences theory." (Beck and Cruz, supra, 8 Cal.5th at p. 645.) The instructions and verdicts show the jury found him not guilty of the alleged target offense of assault with a firearm, and did not rely on the natural and probable consequences theory to convict him of premeditated attempted murder.
V. Appellant's Convictions and Curiel
After briefing was completed in this appeal, the Supreme Court decided Curiel, supra, 15 Cal.5th 433, which addressed section 1172.6 and the natural and probable consequences doctrine. This court ordered the parties to file supplemental briefs on whether Curiel affected the issues in this case.
A. Curiel
In Curiel, the defendant was convicted in 2006 of first degree murder, and the jury found the gang-murder special circumstance true. The jury instructions identified defendant's accomplice as the alleged actual perpetrator of the murder. The gang-murder special circumstance instruction required the jury to find the defendant had the specific intent to kill the victim. (Curiel, supra, 15 Cal.5th at pp. 440-441, 445-446.)
The jury was instructed on direct aiding and abetting. It was also instructed on aiding and abetting based on the natural and probable consequences doctrine; the target offenses were identified as disturbing the peace and carrying a concealed firearm by a gang member, and the jury was instructed on the elements of those offenses. The jury was also instructed on conspiracy liability for murder based on those target crimes. (Curiel, supra, 15 Cal.5th at pp. 445-447.) Curiel explained that while the jury found the defendant guilty of first degree murder with the special circumstance, "it was not required to identify which theory it found persuasive." (Id. at p. 467, italics added.)
After the enactment of Senate Bill 1437 and the amendments to sections 188 and 189, the defendant filed a section 1172.6 petition for resentencing and alleged he was convicted of first degree murder under the natural and probable consequences doctrine. The trial court denied the petition for failing to state a prima facie case based on the jury instructions, and held the jury was required to find he had the intent to kill for the gang-murder special circumstance, and that finding refuted his allegation that he could not be convicted of murder under current law and therefore precluded relief. (Curiel, supra, 15 Cal.5th at pp. 440, 447.)
Curiel held the trial court's ruling was erroneous and remanded the matter for an evidentiary hearing. The instructions showed the jury "could have relied on the natural and probable consequences doctrine to convict [the defendant] of murder, and the findings required under that theory-even when combined with the finding of intent to kill required by the gang-murder special circumstance-do not encompass all of the elements of any theory of murder under current law." (Curiel, supra, 15 Cal.5th at p. 471.)
The amendments to section 188 enacted by Senate Bill 1437 "did not simply 'add the element of malice aforethought' to existing theories of murder liability. [Citation.] It eliminated the doctrine of natural and probable consequences in its entirety: 'By limiting murder liability to those principals who personally acted with malice aforethought, section 188[, subd.] (a)(3) eliminates what was the core feature of natural and probable consequences murder liability: the absence of a requirement that the defendant personally possess malice aforethought." (Curiel, supra, 15 Cal.5th at p. 462.) As a result, "a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought. [Citation.] It is an invalid theory. Murder liability requires a different, valid theory, such as direct aiding and abetting." (Ibid.)
"Because the jury was instructed on the natural and probable consequences doctrine, the jury was required to find only that [the defendant] knew that [the direct perpetrator] intended to commit one of the underlying target offenses [disturbing the peace or carrying a concealed firearm by a gang member] and that [the defendant] intended to aid him in that offense, not murder. Nor was the jury required to find that the underlying target offenses, themselves, were dangerous to human life. While the jury separately found [the defendant] intended to kill, such an intent standing alone is insufficient to establish the requisite mens rea for aiding and abetting murder.... Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another's acts. The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator's acts that confers liability on the aider and abettor." (Curiel, supra, 15 Cal.5th at p. 468.)
The jury's finding of the defendant's intent to kill pursuant to the special circumstance instruction" 'shed[s] no light on whether [the defendant] actually encouraged or assisted the perpetrator in carrying out the murder'" as required for direct aiding and abetting. (Curiel, supra, 15 Cal.5th at p. 468.) "[T]he mens rea required of a direct aider and abettor includes knowledge of the perpetrator's intent to commit an unlawful act constituting the offense and the intent to aid the perpetrator in its commission. [Citation.] The jury's verdicts, viewed in light of the court's jury instructions, do not show the jury necessarily made factual findings covering these elements. Thus, the trial court could not reject [the defendant's] prima facie showing on this basis, and it should have proceeded to an evidentiary hearing on [the defendant's] resentencing petition." (Id. at p. 441.)
B. Appellant's Arguments
Appellant asserts that Curiel supports his arguments that the matter must be remanded for an evidentiary hearing on his convictions for first degree murder and premeditated attempted murder. Appellant argues that "the jury's finding on the conspiracy count, just as the finding by the Curiel jury on the [special-circumstance] gang enhancement, does not suffice to deny a resentencing petition. Viewed in 'isolation,' it proves nothing. Curiel directs that the court must determine whether the jury, in addition to finding intent to kill, also made a finding as to the aider and abettor's knowledge that the principal intended to commit murder, and his intent to help him accomplish that aim." (Italics added.) Appellant further argues the natural and probable consequences instructions in CALJIC Nos. 6.11 and 8.26 show the jury could have convicted him of both murder and attempted murder without finding he also shared his accomplices' malice and intent to kill.
C. Analysis
In his letter brief, appellant relies on Curiel's discussion of viewing an instruction in "isolation" to assert that remand for an evidentiary hearing is required. The entirety of Curiel's discussion, however, undermines appellant's interpretation of the "isolation" language:
"The jury's finding of intent to kill does not, itself, conclusively establish that [the defendant] is ineligible for relief. [The defendant's] allegation that he could not currently be convicted of murder because of the changes in substantive law enacted by Senate Bill 1437 put at issue all the elements of murder under current law. Murder liability as an aider and abettor requires both a sufficient mens rea and a sufficient actus reus. A finding of intent to kill, viewed in isolation, establishes neither.
"But that conclusion does not end the prima facie inquiry. The jury necessarily made other findings, which bear on [the defendant's] liability for murder [but] ... they too are insufficient to rebut [the defendant's] allegation of nonliability and conclusively establish that he is ineligible for relief. For example, the mens rea required of a direct aider and abettor includes knowledge of the perpetrator's intent to commit an unlawful act constituting the offense and the intent to aid the perpetrator in its commission. [Citation.] The jury's verdicts, viewed in light of the court's jury instructions, do not show the jury necessarily made factual findings covering these elements. Thus, the trial court could not reject [the defendant's] prima facie showing on this basis, and it should have proceeded to an evidentiary hearing on [the defendant's] resentencing petition." (Curiel, supra, 15 Cal.5th at p. 441, italics added.)
Curiel thus did not reach its conclusion by focusing on a single instruction "in isolation," but by considering the entirety of the instructions and the verdict. The instant case requires a similar analysis. We have already found the entirety of the instructions and the verdicts establish that appellant was not convicted of murder and attempted murder based on the natural and probable consequences doctrine as defined in CALJIC Nos. 6.11 and 8.26.
As the Supreme Court has also acknowledged, "the findings necessary for conspiracy to commit murder and the findings necessary for the gang-murder special circumstance are materially different. Conspiracy to murder requires not only intent to kill, but also intent to agree and actual agreement." (In re Lopez (2023) 14 Cal.5th 562, 588.)
Unlike the defendant in Curiel, "appellant was convicted of conspiracy to commit first degree murder. Thus, the target offense was not an underlying offense other than murder, such as assault with a firearm. The target offense was murder.... 'The mental state elements of conspiracy require the prosecution to demonstrate the defendant had the specific intent both to agree to the conspiracy and to commit the object offense.' [Citation.] . 'First degree murder was the object of the conspiracy, not the natural and probable consequence of an act committed to further the object of the conspiracy.'" (People v. Medrano (2024) 98 Cal.App.5th 1254, 1267.)
Curiel cautioned that its holding was limited to the jury instructions and verdict in that case and did not necessarily apply "to other cases where the jury found intent to kill, or even other cases where the jury found true the gang-murder special circumstance. The jury instructions in other cases might be materially different, and they might therefore have required different factual findings by the jury." (Curiel, supra, 15 Cal.5th at p. 471.) In this case, the jury instructions and verdicts are materially different from those in Curiel, and the court's holding in Curiel does not assist appellant.
We thus conclude that appellant was ineligible for resentencing as a matter of law and, to the extent the trial court improperly made factual findings on the prima facie issue, the court's error was not prejudicial.
DISPOSITION
The trial court's order of November 10, 2022, denying appellant's petition for resentencing, is affirmed.