Opinion
B319578
09-05-2023
THE PEOPLE, Plaintiff and Respondent, v. JUAN ZUNIGA, Defendant and Appellant.
Richard Lennon and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael C. Keller and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A703688, David W. Stuart, Judge. Reversed and remanded with directions.
Richard Lennon and Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael C. Keller and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
In 1985 a jury convicted Juan Zuniga of the first degree murder of Jose Venegas, Jr., and found true a principal was armed with a firearm during the commission of the offense. Zuniga appealed, and we affirmed. (People v. Zuniga (May 17, 1991, B019590) [nonpub. opn.] (Zuniga I).)
In 2019 Zuniga filed a petition for resentencing pursuant to Penal Code former section 1170.95 (now section 1172.6). The superior court appointed counsel to represent Zuniga, and after hearing argument, the court denied the petition without issuing an order to show cause, finding Zuniga did not establish a prima facie case for relief because the jury convicted him as a direct aider and abettor of first degree murder who harbored an intent to kill.
Further statutory references are to the Penal Code.
On appeal, Zuniga contends the superior court erred because he was not the actual shooter, the jury was instructed on the natural and probable consequences doctrine, and the record does not establish he personally harbored malice. We agree the record of conviction does not preclude the possibility Zuniga was convicted under the natural and probable consequences doctrine. We reverse and direct the superior court to issue an order to show cause and hold an evidentiary hearing on Zuniga's petition.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a recitation of the facts as set forth in Zuniga I, supra, B019590 only as background.
The People presented evidence at trial that at approximately noon on July 4, 1985 Venegas went to a car show at the Hansen Dam in Pacoima with Jose Cortez and Abraham Rodriguez. Venegas was a member of the Pacoima Thirteen gang. Sometime between 3:00 and 4:00 p.m., Zuniga drove by in a blue car. Juan Peralta was a passenger in Zuniga's car. As Zuniga's car passed Venegas's group, one of the car's occupants said, "Diez y ocho," which was a gang challenge on behalf of the Eighteenth Street gang. Venegas responded, "Pacoima." Zuniga stopped the car, put it in reverse, and drove back to Venegas's group. Zuniga and Peralta got out of the car and approached the group, saying, "Eighteenth Street." Peralta was carrying a .25-caliber semiautomatic pistol, and Zuniga was carrying a revolver.
As Venegas and his companions began to flee, Zuniga and Peralta chased them and intercepted Venegas between two parked cars. Peralta shot Venegas three to four times, and Zuniga ran back to the car. Zuniga and Peralta then left the scene.
Venegas died from multiple gunshot wounds. A search warrant was executed at Zuniga's home. Police found the blue car Zuniga had driven to Hansen Dam, and a search of his bedroom revealed a box of .25-caliber ammunition and an address book filled with gang information and graffiti.
Zuniga testified at trial that he was not at the Hansen Dam at the time of the shooting. He drove there earlier in the day and participated in a competition with his car, but he drove home at approximately 12:15 p.m. to repair a broken solenoid (an electromagnet), which took two to three hours to fix. Zuniga then drove to a tire shop to have a tire repaired and returned home. He did not leave again until 5:00 p.m. or later. Zuniga denied he was a gang member. Other defense witnesses, including an employee of the tire shop, testified in support of Zuniga's alibi defense.
On December 27, 1985 the jury found Zuniga guilty of first degree murder (§ 187) and found true the special allegation a principal was armed with a firearm in the commission of the murder. (§ 12022, former subd. (a).) On February 25, 1986 the trial court sentenced Zuniga to 25 years to life in state prison, plus one year on the firearm enhancement, for an aggregate term of 26 years to life.
In Zuniga I, supra, B019590, Zuniga contended the trial court erred in admitting as rebuttal evidence a tape recording of his post-arrest interview in which he did not describe his trip to the tire shop. He also argued the trial court erred in instructing the jury with CALJIC No. 2.62 on inferences to be drawn from Zuniga's failure to explain or deny the adverse evidence.
B. Zuniga's Petition for Resentencing
On February 28, 2019 Zuniga, representing himself, filed a form petition with a supporting declaration in the superior court stating he was eligible for relief under former section 1170.95. He checked the box on the form stating he was convicted of first degree felony murder and could not be now convicted because he was not the actual killer; he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the omission of murder in the first degree"; he was not a major participant in a felony and did not act with reckless indifference to human life; and the victim was not a peace officer. He also requested the appointment of an attorney.
Zuniga did not check the box on the form petition stating "I was convicted of 2nd degree murder under the natural and probable consequences doctrine . . . and I could not now be convicted of murder." The form used by Zuniga did not include a box for a conviction of first degree murder under the natural and probable consequences doctrine. Although the Supreme Court in People v. Chiu (2014) 59 Cal.4th 155, 166 held that the natural and probable consequences doctrine is not a valid basis for a first degree murder conviction, the People concede it was a valid basis at the time of Zuniga's conviction in 1985.
In his supporting declaration, Zuniga stated he was convicted of aiding and abetting Peralta, and although he had been convicted of first degree murder, another jury had convicted Peralta as the actual shooter of second degree murder. Zuniga also denied he was present at the scene of the shooting.
At the time of Zuniga's trial, Peralta had not been apprehended. As described in exhibits to Zuniga's resentencing petition, Peralta fled to Mexico after the shooting and was not arrested until 1987. In 1988 a jury convicted Peralta of second degree murder.
The People in their opposition argued Zuniga was ineligible for relief because he was convicted of first degree murder as a direct aider and abettor who acted "with the intent to assist his fellow gang member in the ambush and murder of an enemy." The People asserted the jury was not instructed on either felony murder or the natural and probable consequences doctrine, and Zuniga was not convicted under either theory. The People attached to their opposition the information, the jury instructions, the minute order recording the jury's verdict, the abstract of judgment and judgment, and the respondent's brief filed by the People in Zuniga I, supra, B019590.
Among the jury instructions attached to the People's opposition, CALJIC No. 3.00 ("Principals-Defined"), requested by the People, stated: "The persons concerned in the commission of a crime who are regarded by the law as principals in the crime thus committed are equally guilty thereof include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime. [¶] One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly and intentionally aided or encouraged." (Brackets omitted.)
On April 27, 2023, at the People's request, we augmented the record to include the reporter's transcript from the 1985 trial. The transcript reflects that the trial court instructed the jury that an aider and abettor "is also liable for the natural and reasonable or possible consequences of any act that he knowingly and intentionally aided or encouraged" rather than the "natural and . . . probable consequences," as stated in the printed jury instructions included in the clerk's transcript. (Italics added.) The parties do not address this discrepancy, and the People concede the jury was instructed on the natural and probable consequences doctrine.
The superior court appointed counsel to represent Zuniga. Zuniga's attorney filed a response and two memoranda, each requesting issuance of an order to show cause. Zuniga argued the jury was instructed on the natural and probable consequences doctrine and the People failed to demonstrate Zuniga was not convicted under that theory.
After hearing argument from counsel, on March 14, 2022 the superior court denied Zuniga's petition. The court found the jury was "not given the natural and probable consequences theory as a whole, as a possibility, as a way to find the defendant guilty." Although "there was language in there" referring to natural and probable consequences, the jury "was never instructed on any target crimes" that resulted in the homicide. There was also no instruction on felony murder. Accordingly, "malice has not been imputed based on [Zuniga's] participation in the crime. The jury found that [Zuniga], when he was running around with a gun, . . . chasing after this guy in a park, that he had the intent to kill, even though he wasn't . . . the one who actually fired the shots." Therefore, Zuniga did not make a prima facie case for relief from his first degree murder conviction.
Zuniga timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder except under the revised felony-murder rule as set forth in section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842843.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life "as described in subdivision (d) of Section 190.2," the felony-murder special-circumstance provision (§ 189, subd. (e)(3)). (See Strong, at p. 708.)
Section 1172.6 authorizes an individual convicted of murder under the natural and probable consequences theory or felony murder to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (People v. Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must direct the prosecutor to file a response to the petition and permit the petitioner to file a reply, and the court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing he or she falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
In determining whether the petitioner has made a prima facie showing under section 1172.6, subdivision (c), "[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) Rather, at the prima facie review stage, the court's review is limited to "'readily ascertainable facts'" in the record, such as the jury instructions, the record of the crimes committed, and jury findings on the enhancements. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see People v. Harden (2022) 81 Cal.App.5th 45, 50 [considering jury instructions and verdicts to determine whether the record of conviction conclusively established that defendant was actual killer]; People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering as part of the record of conviction the jury instructions, closing arguments, and verdicts, which did not show defendant was ineligible for relief based on jury's true findings on felony-murder special-circumstance allegation].) "[T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, at p. 972; accord, People v. Langi (2022) 73 Cal.App.5th 972, 979-980; see People v. Lopez (2023) 88 Cal.App.5th 566, 576 ["It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing."].)
On appeal from an order denying a section 1172.6 petition on the ground the petitioner failed to make a prima facie showing for relief, we review de novo whether the petitioner is ineligible for relief as a matter of law. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; People v. Lopez (2022) 78 Cal.App.5th 1, 14; People v. Ervin, supra, 72 Cal.App.5th at p. 101.)
B. The Record of Conviction Does Not Establish as a Matter of Law That Zuniga Is Ineligible for Resentencing
Zuniga contends he made a prima facie showing he was entitled to relief and the superior court erred in denying his petition without an evidentiary hearing because he was not the actual killer and the jury was instructed on the natural and probable consequences doctrine. According to Zuniga, because the jury was instructed on the natural and probable consequences doctrine, the jury could have convicted him of murder based on a finding he intended to aid Peralta in the commission of a crime other than murder (such as assault with a firearm), the natural and probable consequence of which was Peralta's commission of murder.
The People respond that notwithstanding the natural and probable consequences instruction, the only theory the prosecutor argued at Zuniga's trial was that Peralta, not Zuniga, was the actual shooter of Venegas, and Zuniga was guilty as a direct aider and abettor. In his closing argument, the prosecutor argued Zuniga was guilty of first degree murder because he harbored a specific intent to kill and acted with premeditation. Further, the jury was instructed with CALJIC No. 8.20 on deliberate and premeditated first degree murder, as well as second degree express and implied malice murder. The jury was not instructed on any target non-homicide crimes, and neither the prosecutor nor defense attorney addressed any target crimes.
We agree with Zuniga that in light of the instruction on the natural and probable consequences doctrine, the record of conviction does not preclude the possibility that Zuniga was convicted under this now-invalid theory, and the superior court therefore erred in summarily denying the petition. As discussed, the jury was instructed with a 1984 version of CALJIC No. 3.00 that stated an aider and abettor is "not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly and intentionally aided or encouraged." (Brackets omitted.)
At the time of Zuniga's 1985 trial, CALJIC No. 3.00 did not require identification of or instruction on a target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 263 (Prettyman) [tracing the evolution of jury instructions on the natural and probable consequences doctrine].) As the Supreme Court in Prettyman explained, it was not until 1992 that the CALJIC jury instruction (then CALJIC No. 3.02) required the jury to find in order to convict an accomplice of murder based on the natural and probable consequences doctrine that the accomplice intended to aid and abet a specific target crime, and further, that the trial court instruct on all target crimes. (Prettyman, at p. 258, fn. 3 [quoting the 1992 version of CALJIC No. 3.02]; id. at p. 264.)
In Prettyman, the Supreme Court clarified the distinction between the "target crime" and the "nontarget crime" in explaining the natural and probable consequences doctrine: "Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the 'natural and probable consequences' doctrine, the jury must find that, with knowledge of the perpetrator's unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant's confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Prettyman, supra, 14 Cal.4th at p. 254; accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 298-299.)
The Supreme Court in Prettyman resolved a split in the courts of appeal as to whether identification of and instruction on target crimes were necessary to convict an accomplice under the then-valid natural and probable consequences doctrine, concluding they were. (Prettyman, supra, 14 Cal.4th at p. 266.) As the Prettyman court explained, when a trial court instructs the jury on a natural and probable consequences theory, "it [has] a duty to issue instructions identifying and describing each potential target offense supported by the evidence." (Id. at p. 267.) The court disapproved the holding in People v. Solis (1993) 20 Cal.App.4th 264, 273, observing, "[A] conviction may not be based on the jury's generalized belief that the defendant intended to assist and/or encourage unspecified 'nefarious' conduct. To ensure that the jury will not rely on such generalized beliefs as a basis for conviction, the trial court should identify and describe the target or predicate crime that the defendant may have aided and abetted." (Prettyman, at p. 268, fns. omitted.) nontarget offense perpetrated by the confederate was a 'natural and probable consequence' of the target crime that the defendant assisted or encouraged." (Prettyman, supra, 14 Cal.4th at p. 254; accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 298-299.)
The People argue that absent identification of a target offense the jury must have found Zuniga guilty as a direct aider and abettor of murder. We disagree. The failure of the instruction to identify a target crime would have, if anything, broadened the scope of the natural and probable consequences doctrine to allow the jury to convict Zuniga of murder based on a mere finding Zuniga intended to aid and abet "unspecified 'nefarious' conduct" of which murder was a natural and probable consequence. (Prettyman, supra, 14 Cal.4th at p. 268.) And it is irrelevant whether it was error in 1985 to instruct the jury on the natural and probable consequences doctrine using CALJIC No. 3.00 because the validity of that conviction is not now before us. The concern expressed in Prettyman is precisely what makes it possible the jury convicted Zuniga of murder based on a nowinvalid theory-the jurors could have believed that Zuniga did not intend to kill Venegas, but rather, he intended to assist Peralta in an assault with a deadly weapon (or other nefarious conduct) as a gang challenge, the natural and probable consequences of which were that Peralta shot and killed Venegas.
Although the prosecutor and defense attorney never argued Peralta committed a non-homicide target crime, the jury heard testimony about assault crimes. The prosecution's gang expert testified that a challenge made to a rival gang member or in rival gang territory "provoke[es] a challenge to an assault. You're preparing for an assault and you're prepared to back it up." (Italics added.) A gang challenge "means you're there to do business, that you're there to inflict injury on that other person. That's why you go armed." The expert testified he had seen cases where a gang challenge resulted in deaths, as well as cases where rivals sustained nonfatal injuries, depending on the circumstances. In light of this testimony, which we do not consider for its truth, it is plausible the jury could have found that Zuniga's intent in challenging and pursuing Venegas was to aid and abet an assault of Venegas or to inflict nonfatal violence.
The People's reliance on People v. Soto (2020) 51 Cal.App.5th 1043 (Soto) is misplaced. In Soto, the defendant, who was the driver of the car in which the actual shooter was a passenger, was convicted of second degree murder. (Id. at p. 1048.) The jury was instructed that a defendant could be convicted of second degree implied malice murder based on "an unlawful killing resulting from an intentional act, the 'natural consequences' of which are 'dangerous to human life' and which 'was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.'" (Id. at p. 1049, quoting CALJIC No. 8.31.) The jury was not instructed on the natural and probable consequences theory for murder (or felony murder). (Id. at p. 1050.) As the Soto court correctly held, in affirming the superior court's denial of Soto's petition for resentencing under former section 1170.95, implied malice murder remains a valid theory of liability following Senate Bill 1437's changes to the definition of murder. (Soto, at p. 1057.)
The Court of Appeal explained, "Soto's argument rests on a similarity in the language in the jury instructions related to implied malice to those explaining the natural and probable consequence doctrine," but while both instructions "include similar language regarding a 'natural consequence,' they are distinctly different concepts." (Soto, supra, 51 Cal.App.5th at p. 1056.) "For implied malice murder, that intent is that the perpetrator '"knows that his conduct endangers the life of another and . . . acts with conscious disregard for life."' [Citation.] The 'physical component' required for implied malice murder 'is satisfied by the performance of "an act, the natural consequences of which are dangerous to life."'" (Id. at p. 1058.) "The natural and probable consequence doctrine, by contrast, is a theory of liability by which an aider and abettor who intends to aid a less serious crime can be convicted of a greater crime. This doctrine comes into play when 'an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense).'" (Ibid., quoting Prettyman, supra, 15 Cal.4th at p. 259.)
The People point out that the Soto court noted in passing that the trial court did not instruct the jury on any target offense. (See Soto, supra, 51 Cal.App.5th at pp. 1058-1059.) But the court made clear its holding was premised on the fact "[t]he 'natural consequences' language in the instruction for second degree murder does not transform Soto's conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95." (Id. at 1059.) And further, "the jurors were not provided any instruction on which they could have found Soto guilty of murder under [the natural and probable consequences] doctrine. Rather, under the instructions, the jury necessarily found Soto culpable for murder based on his own actions and mental state as a direct aider and abettor of murder." (Id. at p. 1055.)
The People's reliance on People v. Butler (2009) 46 Cal.4th 847-to argue the failure to identify a target offense prevented the jury from relying on the natural and probable consequences doctrine-fares no better. Butler was a direct appeal from a conviction of two counts of murder, among other offenses, in which the defendant argued the trial court committed instructional error when it instructed the jury with a version of CALJIC No. 3.02 that transposed the target crime of assault with a deadly weapon and the non-target crime of murder. (Id. at p. 870.) The court instructed the jury, "'In order to find the defendant guilty of the crime of murder, you must be satisfied beyond a reasonable doubt that: One, the crime of murder was committed; two, the defendant aided and abetted such crime; three, a co-principal in such crime committed the crime of assault with a deadly weapon; and four, the crime of murder was a natural and probable consequence of the commission of the crime of assault with a deadly weapon.'" (Id. at pp. 869-870, italics added.) The Supreme Court held this error was harmless because "[t]he transposition of murder and assault in the first and third elements of the instruction had only a subtle effect, and could only have made it more difficult for the prosecution to establish defendant's culpability for murder. Taken literally, the instruction could be read to require a finding that he intended to aid and abet a murder, rather than an assault." (Id. at pp. 870-871, fn. omitted.) As discussed, the question before us is not whether there was prejudicial error, but rather, whether the jury could have convicted Zuniga under the natural and probable consequences doctrine absent identification of a target crime. And in contrast to Butler, the failure to identify a target crime made it easier, not more difficult, to convict Zuniga of murder.
The superior court therefore erred at the prima facie review stage in finding Zuniga could not have been convicted under the natural and probable consequences doctrine notwithstanding the jury instruction. (See People v. Offley (2020) 48 Cal.App.5th 588, 599 [superior court improperly denied resentencing petition at the prima facie review stage where the court could not "rule out the possibility that the jury relied on the natural and probable consequences doctrine" in convicting defendant of first degree murder where the jury was given a conspiracy instruction that described natural and probable consequences liability].)
DISPOSITION
The order denying Zuniga's petition for resentencing is reversed. On remand, the superior court is to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur: PERLUSS, P. J., SEGAL, J.