Summary
In People v. Sanchez (2022) 75 Cal.App.5th 191, the appellate court addressed the effect of Senate Bill 775 on an attempted murder conviction where the trial court instructed the jury on a valid theory (aiding and abetting) and an invalid theory (natural and probable consequences).
Summary of this case from People v. GonzalezOpinion
F076838
02-15-2022
The PEOPLE, Plaintiff and Respondent, v. Martin SANCHEZ, Defendant and Appellant.
Cynthia Lee Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion.
Cynthia Lee Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
SNAUFFER, J. Martin Sanchez was convicted of attempted murder and assault with a firearm after his acquaintance fired a shotgun during a confrontation with other men. To prove attempted murder, the prosecutor argued Sanchez directly aided and abetted the shooter and, alternatively, that attempted murder was a natural and probable consequence of assault with a firearm.
Previously, we addressed three claims on appeal. One, was the evidence sufficient to prove attempted murder? Two, does the natural and probable consequences doctrine violate due process? Three, did Senate Bill No. 1437 (Stats. 2018, ch. 1015) (SB 1437), which added section 1170.95 to the Penal Code and amended sections 188 and 189, eliminate the natural and probable consequences doctrine as a basis to prove an accomplice committed attempted murder?
Undesignated statutory references are to the Penal Code.
We held the evidence sufficiently proved attempted murder and the natural and probable consequences doctrine did not violate due process, but, pursuant to SB 1437, the natural and probable consequences doctrine no longer attached accomplice liability to attempted murder. Accordingly, we reversed the judgment.
SB 1437 did not explicitly apply to attempted murder but we interpreted section 1170.95 and the amendments to sections 188 and 189 to also eliminate the natural and probable consequences doctrine as a basis to attach accomplice liability to attempted murder.
The People petitioned the Supreme Court for review. The petition was granted on June 10, 2020. ( People v. Sanchez , (2020), 263 Cal.Rptr.3d 711, 465 P.3d 465.) Prior to resolution by the Supreme Court, the Legislature enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775). That law clarified SB 1437 by amending section 1170.95 to make clear the natural and probable consequences doctrine no longer supplies accomplice liability to attempted murder.
Thereafter, the Supreme Court transferred the matter back to this court with directions to vacate our prior opinion and reconsider in light of SB 775. ( People v. Sanchez , (2022), 288 Cal.Rptr.3d 597, 502 P.3d 1.) Having done so, we again reach the same conclusions: The evidence was sufficient to prove attempted murder, but the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder. Because we are unable to conclude the jury did not rely on this now-invalid theory, we must vacate the judgment and reverse the attempted murder conviction.
As noted, in the original opinion we addressed Sanchez's claim the natural and probable consequences doctrine violates due process. We do not again discuss the merits because it is technically moot after SB 775. We note, however, our Supreme Court to date has rejected similar challenges. (See People v. Richardson (2008) 43 Cal.4th 959, 1021-1022, 77 Cal.Rptr.3d 163, 183 P.3d 1146 ; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107, 17 Cal.Rptr.3d 710, 96 P.3d 30 ; People v. Garrison (1989) 47 Cal.3d 746, 777-778, 254 Cal.Rptr. 257, 765 P.2d 419.)
BACKGROUND
The Kern County District Attorney filed an information charging Sanchez with the following felonies stemming from an incident occurring on May 30, 2016: attempted murder ( § 187, subd. (a) ; count 1), with a weapon enhancement ( § 12022, subd. (a)(1), and assault with a firearm ( § 245, subd. (a)(2) ; count 2).
Trial Evidence
While Sanchez was at a local park with his family, he was confronted by four men concerning title to a vehicle. The men threatened Sanchez physically and challenged his masculinity. Sanchez, angered, left the park and drove his family home.
But Sanchez did not stay home. Instead, he picked up an acquaintance known as "poder negro[,] which translates to black power." Sanchez informed his acquaintance, the eventual shooter, about the earlier confrontation. The shooter entered the pickup with an "object ... covered" in a sunshade. Sanchez claimed he believed the shooter was concealing "a bat or something" but expressed no concern or reservation about the weapon. Sanchez, knowing a fight might result, drove back to the park.
Once at the park, Sanchez and the shooter approached the men involved in the earlier confrontation. The parties separated into two groups. The shooter and two men walked towards the river. The shooter eventually dropped the sunshade, revealed a shotgun, and fired towards the victim. As the victim ran, the shooter gave chase and fired once more. The victim was shot in the face and back.
After the gunshots, a witness in the park heard "tires screeching" and "burning rubber" as a pickup drove towards the shooter. The shooter entered the pickup, driven by Sanchez, and headed towards the exit. The witness believed their efforts were coordinated.
Instructions and Argument
The court, in part, instructed the jury as follows:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. ... Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.
"A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.
"Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." ( CALCRIM No. 400.)
The court next instructed the jury on direct aiding and abetting principles. ( CALCRIM No. 401.)
The court then explained the natural and probable consequences doctrine:
"[A] person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove the defendant is guilty of attempted murder ... the People must prove that:
"1. The defendant is guilty of assault with a firearm ...;
"2. During the commission of assault with a firearm ... a coparticipant in that assault with a firearm ... committed the crime of attempted murder ...;
"AND
"3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of attempted murder ... was a natural and probable consequence of the commission of assault with a firearm ...." ( CALCRIM No. 402.)
The prosecutor argued both theories to the jury: "[Y]ou can find him guilty as an aider and abettor or you can find him guilty of wanting to do a crime that naturally leads to attempted murder."
Verdict and Sentence
Sanchez was found guilty as charged. The verdicts did not specify an attempted murder theory. He was sentenced to serve eight years in prison. DISCUSSION
We first address whether the evidence was sufficient to prove attempted murder. We then discuss the natural and probable consequences doctrine relative to attempted murder and SB 775. Finally, we analyze the resulting prejudice in this case.
I. The Evidence Sufficiently Proved Attempted Murder *
II. SB 775 Eliminates the Natural and Probable Consequences Doctrine As a Basis To Prove An Accomplice Committed Attempted Murder
SB 775 amended section 1170.95. As relevant, it now reads: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018)." ( § 1170.95, subd. (g).) Because section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in a crime, the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder. Accordingly, the natural and probable consequences doctrine theory urged in the underlying trial is now invalid.
The People declined to address the issue after the Supreme Court ordered us to reconsider in light of SB 775.
III. The Resulting Prejudice Requires Reversal
Because an accomplice-defendant cannot be convicted of attempted "murder under the natural and probable consequences doctrine, we must determine whether giving the instructions here allowing the jury to so convict defendant was harmless error. When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] [Sanchez's attempted] murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that [he] directly aided and abetted the [attempted] murder." ( Chiu, supra , 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972.)
We presume the legally invalid theory infected the verdict because jurors are not " ‘ "equipped to determine whether a particular theory of conviction submitted to them is contrary to law ...." ’ " ( In re Martinez (2017) 3 Cal.5th 1216, 1224, 226 Cal.Rptr.3d 315, 407 P.3d 1.) We "must reverse the conviction[s] unless, after examining the entire cause, including the evidence, and considering all relevant circumstances," we determine the error is "harmless beyond a reasonable doubt." ( People v. Aledamat (2019) 8 Cal.5th 1, 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.)
The court instructed the jury on both direct aiding and abetting and the natural and probable consequences doctrine as theories to prove attempted murder. The prosecutor argued both theories to the jury. The jury returned a general verdict finding Sanchez guilty of attempted murder.
After carefully reviewing the record, we conclude it does not provide any insight into the jury's deliberations and the theory underlying the verdict is impossible to divine. The resulting error is not harmless beyond a reasonable doubt and we must reverse the attempted murder conviction.
DISPOSITION
The judgment is vacated and the attempted murder conviction is reversed.
WE CONCUR:
SMITH, Acting P. J.
MEEHAN, J.
* See footnote *, ante .