Opinion
H046911
07-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS981989A
ELIA, ACTING P.J.Defendant Juan Manuel Gonzalez appeals from an order, issued after briefing and a hearing at which defendant was represented by counsel, denying his petition to vacate his murder and attempted murder convictions pursuant to Penal Code section 1170.95. On appeal, defendant argues that the superior court erred in finding that he was not entitled to relief under section 1170.95. In addition, he attempts to challenge the underlying judgment on the grounds that the trial court committed instructional error and that his sentence was unauthorized. We affirm the order denying defendant's petition under section 1170.95.
All further statutory references are to the Penal Code unless otherwise indicated.
I. Background
In August 1998, Hugo Ochoa and Samsun Lara were riding Lara's bike home in Salinas. As they rode, a red Chevrolet pickup truck drove past them going in the same direction. Moments later, two males walked towards them and asked about their gang affiliation. Ochoa responded, “nothing.” The men said something, drew guns, and shot Ochoa and Lara. One assailant shot at least five rounds from a.45-caliber handgun; the other shot at least four rounds from a.380-caliber handgun. Ochoa was shot six times and survived. Lara was hit three times and died. A resident heard a motor and gunshots “[a]lmost simultaneously.” The resident saw a red Chevrolet pickup truck pass by with its headlights off.
Salinas police began to look for a red Chevrolet pickup truck. About 20 minutes after the shooting, defendant was found driving a red Chevrolet pickup truck. An officer observed defendant drop off a passenger and continue driving. It was later established that the truck belonged to defendant's stepfather.
Police secured defendant's residence, which was near the site of the shooting, while they sought a search warrant. At one point, defendant's sister attempted to leave the residence with a laundry basket, saying she wanted to do her laundry elsewhere. Police refused to let her leave without searching the laundry basket. After obtaining a search warrant, police found the.45-caliber and.380-caliber semiautomatic handguns used to shoot Ochoa and Lara in the laundry basket. Police found additional weapons and indicia of defendant's membership in a Norteño street gang in the residence.
After the shooting, defendant's mother told police she had spoken to defendant about his role in the shootings. Defendant told his mother that he did not “touch the gun, ” and that “he was just driving. That was it.” Police later interviewed defendant. He denied any involvement or knowledge of the shooting. He stated that he picked up a friend, but that the friend was drinking from an open container of alcohol, so he asked the friend to leave the truck. While defendant was in jail awaiting trial, he spoke to a fellow gang member and asked him to claim that defendant was somewhere else at the time of the shooting.
At trial, defendant testified that he was not directly involved in the shooting, but rather that he unwittingly lent his truck to the shooters, whom he refused to identify, and then held their guns for them. Defendant also claimed that he was told to give the two men a ride home. Defendant declined to identify the two men, stating he feared for his and his family's safety. He explained that he asked a fellow gang member to provide an alibi because he was scared.
Defendant was convicted by jury trial of second degree murder (count 1; § 187) and attempted murder (count 2; §§ 664, 187). The jury found that defendant committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found true enhancements in count 1 for personal discharge of a firearm (§ 12022.53, subd. (c)) and in count 2 for discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). Defendant was sentenced to an indeterminate term of 67 years to life in state prison, comprised of 15 years to life for second degree murder plus a consecutive term of 20 years to life for the personal discharge of a firearm enhancement, a consecutive term of 7 years for attempted murder, and a consecutive term of 25 years to life for the firearm discharge with great bodily injury enhancement. The court imposed two-year terms of imprisonment on the criminal street gang enhancements, but stayed those terms pursuant to section 12022.53, subdivision (e)(2). Defendant appealed, and this court affirmed the judgment. (People v. Gonzalez (Apr. 5, 2001, H020233) [nonpub. opn.].)
In January 2019, defendant petitioned the trial court to vacate his murder and attempted murder convictions under newly enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The petition indicated, by checking the appropriate boxes, that defendant “was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” The prosecution opposed the petition. Defense counsel was appointed to represent defendant, and a briefing schedule was established.
The trial court denied the petition. The court first noted it was not reaching the question of whether section 1170.95 was unconstitutional because it had determined that defendant was not eligible for relief. The court stated: “In this case, the complaint alleged willful deliberate premeditated murder. The defendant was convicted on a theory of aiding and abetting. The case was not prosecuted on a theory of felony murder, nor was it prosecuted on a theory of natural and probable consequences. [¶] It is important to note that the jury was not instructed on either of those theories. Consequently, the jury necessarily found malice aforethought based on their verdict. [¶] Additionally, the petitioner could still be convicted under the current state of the law. [¶] Petitioner has failed to state a prima facie showing for relief. The petition is denied.”
Defendant timely appealed from the order denying section 1170.95 relief.
II. Discussion
Defendant argues that he is entitled to relief under section 1170.95. He contends that his conviction for second degree murder was “based on something less than malice” because there was “no evidence of intent to kill, the only theory on which the jury was instructed” at trial.
1. Background
For count 1, the jury was instructed with CALJIC No. 8.10: “Every person who unlawfully kills a [human being] [with malice aforethought] is guilty of the crime of murder in violation of section 187 of the Penal Code. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] The killing was unlawful; and [¶] 3. The killing [was done with malice aforethought]....” The trial court also gave the jury CALJIC No. 8.11, which told it: “ ‘Malice' may be either express or implied.” “Malice is express when there is manifested an intention unlawfully to kill a human being.” The instruction further described that “[t]he mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed, ” and “[t]he word ‘aforethought' does not imply deliberation or the lapse of a considerable time. It only means that the required mental state must precede rather than follow the act.”
After giving the jury CALJIC No. 8.20, which described the elements of first degree murder, the court gave CALJIC No. 8.30, which set forth the elements of second degree murder: “Murder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.”
For count 2, the trial court gave the jury CALJIC No. 8.66, which set forth the elements of attempted murder: “Every person who attempts to murder another human being is guilty of a violation of Penal Code sections 664 and 187. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove attempted murder, each of the following elements must be proved; [¶] 1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.”
The court also described the law of principals with CALJIC No. 3.00: “Persons who are involved in [committing] [or] [attempting to commit] a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively [commit] [or] [attempt to commit] the act constituting the crime, or [¶] 2. Those who aid and abet the [commission] [or] [attempted commission] of the crime.” The court then gave the jury CALJIC No. 3.01, which set forth the requirements to find that defendant aided and abetted the commission of a crime. Finally, the court also gave the jury CALJIC No. 3.31, stating that for counts 1 and 2 “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the [crime] to which it relates [is not committed].”
As stated in its closing argument, the prosecution's theory of the case was that defendant was guilty of murder and attempted murder as “a principal” based on aiding and abetting the actual shooters.
2. Applicable Law
Senate Bill 1437 was enacted to “amend the felony murder rule and the natural and probable consequences doctrine... to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (§ 188, subd. (f); Stats. 2018, ch. 1015, § 1.) To achieve these goals, Senate Bill 1437 amended sections 188 and 189. As amended, section 188, subdivision (a)(3) now provides that “in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Section 189 now provides that a participant in qualifying felonies during which a death occurs generally will not be liable for murder unless (1) he or she was “the actual killer, ” (2) he or she, “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, ” or (3) he or she “was a major participant in the underlying felony [who] acted with reckless indifference to human life.” (§ 189, subds. (e)(1)-(3); Stats. 2018, ch. 1015, § 3.)
The effect of these changes was to restrict the application of the felony murder rule and the natural and probable consequences doctrine as applied to murder. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.) Senate Bill 1437 did not “alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily ‘know and share the murderous intent of the actual perpetrator.' [Citations.] One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.” (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
Senate Bill 1437 also added section 1170.95, which allows “[a] person convicted of felony murder or murder under the natural and probable consequences theory” to petition the sentencing court to vacate the murder conviction. To do so, all three of the following conditions must apply: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[, and] [¶] (3) The petitioner could not be convicted of first or second degree murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
“Under subdivision (b)(2), a trial court may deny a petition without prejudice if the petition lacks any of the information required by subdivision (b)(1). [Citation.] In this ‘initial review,' the trial court ‘determines the facial sufficiency of the petition.' ” (People v. Drayton (2020) 47 Cal.App.5th 965, 974 (Drayton).)
Section 1170.95, subdivision (c), “contemplates a more substantive review by the trial court.... Section 1170.95(c) provides ‘[t]he court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response... and the petitioner may file and serve a reply.... If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.' ” (Drayton, supra, at pp. 974-975.)
“By its text, section 1170.95[, subdivision] (c) thus requires the trial court to make two assessments. The first is whether the petitioner has made a prima facie showing of eligibility for relief. A petitioner is eligible for relief if he or she makes a prima facie showing of the three criteria listed in section 1170.95[, subdivision] (a).” (Drayton, supra, 47 Cal.App.5th at p. 975, italics omitted.) “The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493.)
“If the trial court determines a petitioner has made a prima facie showing of eligibility for relief, the court proceeds to the ‘second' inquiry into the prima facie showing under section 1170.95[, subdivision] (c). [Citation.] In this second step, the trial [court] considers whether the petitioner has made a prima facie showing of entitlement to (rather than eligibility for) relief.” (Drayton, supra, 47 Cal.App.5th at p. 976, italics omitted.) At this stage, “the burden of proof shifts to the prosecution, ” and “ the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ‘ineligible for resentencing.' (§ 1170.95, subd. (d)(3).)” (Id. at p. 980.)
3. Analysis
In People v. Soto (2020) 51 Cal.App.5th 1043 (Soto), review granted Sept. 23, 2020, S263939, the defendant was the driver of a car carrying another man who shot the victim to death. The defendant was convicted of second degree murder. As to the offense of murder, the jury was instructed on “principles of aider and abettor liability. The instructions informed the jury that a person aids and abets the commission of a crime when he, ‘with knowledge of the unlawful purpose of the perpetrator' and ‘with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime.' ” (Id. at p. 1050.) The jury was not given instructions that the defendant “could be liable for [second degree murder] either as the natural and probable consequence of the commission of another crime or based upon the felony murder rule.” (Ibid.)
The defendant petitioned for resentencing under section 1170.95, and the trial court denied the petition. (Soto, supra, 51 Cal.App.5th at p. 1048, review granted.) This court affirmed, holding that “the jury instructions themselves demonstrate as a matter of law that [the defendant] could not make a prima facie showing that he is entitled to relief.” (Id. at p. 1055.) The court reasoned that the defendant's “jurors were not provided any instruction on which they could have found [the defendant] guilty of murder under [the natural and probable consequences] doctrine.” (Ibid.) Accordingly, “under the instructions, the jury necessarily found [the defendant] culpable for murder based on his own actions and mental state as a direct aider and abettor of murder.” (Ibid.)
Here, the prosecution established beyond a reasonable doubt that defendant was not entitled to relief under section 1170.95 because he was convicted of second degree murder as a direct aider and abettor. At trial, the prosecution's only theory of guilt was that defendant aided and abetted the perpetrators of the offenses. The jury was given instructions consistent with this theory: the court instructed the jury on aiding and abetting, the necessity of a union of act and intent, and the necessity and definition of “malice aforethought” for second degree murder. As in Soto, the jury was not given instructions on the felony murder rule or the natural and probable consequences doctrine. Rather, under the instructions given, the jury necessarily found defendant culpable for murder based on his own actions and mental state as a direct aider and abettor. Accordingly, defendant was not entitled to resentencing under section 1170.95 for his second degree murder conviction.
As for defendant's conviction for attempted murder, we conclude that defendant was also not entitled to relief because the resentencing procedures in section 1170.95 are not available to defendants convicted of attempted murder. By section 1170.95's plain terms, only persons “convicted of felony murder or murder under a natural and probable consequences theory may file a petition....” (§ 1170.95, subd. (a), italics added.) “The repeated references to murder convictions in section 1170.95, as opposed to attempted murder convictions, make clear that Senate Bill 1437's ameliorative benefit was meant to reach only the completed offense of murder, not the distinct offense of attempted murder.” (People v. Alaybue (2020) 51 Cal.App.5th 207, 223.) Nor does it violate equal protection principles to exclude attempted murder from the offenses covered by section 1170.95 because “those charged with, or found guilty of, murder are, by definition, not similarly situated with individuals who face other, less serious charges.” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1109, review granted Nov. 13, 2019, S258175.) Finally, even assuming section 1170.95 applied to attempted murder, the record clearly establishes that defendant's conviction for attempted murder, like his conviction for second degree murder, was based on a theory of direct aiding and abetting liability. It was not based on a natural and probable consequences theory or the felony murder rule. Thus, defendant was not entitled to resentencing under section 1170.95, and the trial court did not err by denying defendant's petition.
B. Instructional Error
Defendant contends that the trial court erred during his underlying trial by not giving a natural and probable consequences instruction. He admits that the court's failure to do so was not prejudicial at the time, but he argues that it is now prejudicial because, had the court so instructed, his “current entitlement to section 1170.95 relief would then be obvious.”
Defendant's contentions do not address the superior court's ruling on his section 1170.95 petition. Rather, defendant seeks to raise issues involving his trial, from which defendant already appealed. Section 1170.95 does not provide convicted defendants an opportunity to challenge or relitigate the merits of their underlying judgments of conviction. Any argument regarding instructional error with respect to the underlying judgment is not properly within the scope of an appeal from an order denying a section 1170.95 petition. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [“In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment”].) Thus, we do not address defendant's claim of instructional error.
C. Firearm Enhancement
Defendant argues that the firearm enhancements imposed under section 12022.53, subdivision (e), are unauthorized. He contends that the prosecution failed to plead a section 12022.53, subdivision (e) firearm enhancement, and therefore the trial court was not permitted to impose a sentence under that provision. He further contends that because the sentence is unauthorized, this court has jurisdiction to correct it.
As with the instructional error challenge, we conclude that this claim is not cognizable in an appeal from an order denying relief in a section 1170.95 proceeding. The only issue before this court is whether the superior court erred in denying section 1170.95 relief. A challenge to the underlying judgment is not properly before this court. The proper procedure for challenging the propriety of the vicarious firearm enhancement findings is to bring a petition for habeas corpus. (See People v. Gomez (2020) 52 Cal.App.5th 1, 16-17, review granted Oct. 4, 2020, S264033 [agreeing that section 1170.95 does not provide a defendant with an opportunity to relitigate the merits of an underlying judgment of conviction; proper procedure is to bring petition for habeas corpus].)
III. Disposition
The order denying defendant's section 1170.95 petition is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, J.DANNER, J.