Opinion
G057050
06-26-2020
In re JORGE ARMANDO GARCIA on Habeas Corpus.
Jorge Armando Garcia, in pro. per.; and Allen G. Weinberg, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan-Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07CF3830) OPINION Original proceedings; petition for a writ of habeas corpus to challenge a judgment of the Superior Court of Orange County, Richard W. Stanford, Judge. Petition granted. Jorge Armando Garcia, in pro. per.; and Allen G. Weinberg, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan-Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Respondent.
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Jorge Armando Garcia petitions for a writ of habeas corpus on the ground his first degree murder conviction must be reversed in light of the California Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which was issued after his trial and appeal. In Chiu, the Supreme Court held "a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Id. at p. 167.) At petitioner's trial, the natural and probable consequences doctrine was one of the theories the jury was instructed it could use to find petitioner guilty of first degree murder. Because we cannot conclude beyond a reasonable doubt that the jury relied on a legally valid theory in convicting petitioner, we grant the petition. We vacate petitioner's first degree murder conviction, reducing it to second degree murder. On remand, the prosecution may accept the second degree murder conviction or elect to retry petitioner for first degree murder under valid theories. (Id. at p. 168.)
FACTS
We summarize the facts from this court's unpublished opinion in petitioner's prior appeal. (People v. Garcia et al. (Jan. 29, 2013, G045371) (Garcia I).) We previously granted petitioner's request for judicial notice of the record in his prior appeal.
On November 18, 2007, petitioner was living in an apartment complex in disputed gang territory claimed by both the Lyon Street and Los Crooks gangs. That afternoon, when petitioner pulled up in his vehicle, Jose "Kid" Granillo and several other Lyon Street members were hanging out in the complex's parking area, drinking beer and doing drugs. Granillo puffed out his chest, glared at petitioner, and claimed Lyon Street. In response, petitioner announced his allegiance to Los Crooks. Granillo then made a derogatory reference to Los Crooks and challenged petitioner to fight. But petitioner did not stick around. "He told Granillo, 'I'll be right back' and promptly left the area in his vehicle." (Garica I, supra, G045371.)
About 30 minutes later, petitioner returned. This time, he was not alone. When he pulled up to Granillo's group, a man wearing a hooded sweatshirt, later identified as petitioner's brother Juan Garcia, exited the vehicle and approached Granillo. "Granillo set down his beer and assumed a fighting stance. However, [Juan] pulled out a gun and fatally shot Granillo in the chest with a single bullet. [Juan] then rejoined [petitioner] in [the] vehicle, and they drove away." (Garica I, supra, G045371.)
Because the brothers share the same surname, we will refer to Juan by his first name to avoid confusion.
The police arrested petitioner at the apartment complex two days after the shooting. Petitioner told the police that on the day of the shooting, he and his family were having a birthday party for his son at his apartment. At one point during the party, he went out to move his vehicle and saw Granillo and others in the parking lot. Granillo started "'mad-dogging'" him, so petitioner asked him, "'What's up, homey?'" Granillo called out Lyon Street, and petitioner said he was from Los Crooks. Then Granillo told petitioner, "'Fuck, cucarachas,'" which is a derogatory term for Los Crooks, and challenged him to fight. Being outnumbered, petitioner drove away instead. He admitted squabbling with Granillo that day, but he denied driving back to the complex with the gunman. When the police told him that witnesses had identified him as being at the scene of the shooting, petitioner responded, "'I can't say that I was there.'" (Garica I, supra, G045371.)
Petitioner told the police his brother Juan had moved to Mexico a couple of weeks before the shooting and that he had not seen him since then. The police spotted Juan driving on the freeway nine days after the shooting, and after a high-speed police chase, he was arrested. (Garica I, supra, G045371.)
At trial, the prosecution's gang expert opined both petitioner and Juan were active members of Los Crooks at the time of the shooting and that the shooting would have promoted, furthered, or assisted the criminal activities of the gang.
In their defense, petitioner and Juan presented alibi evidence from several of their relatives. Some relatives testified that petitioner was with them at the birthday party for his son at the time of the shooting, and others testified that Juan was with them at an unrelated barbeque that day. "Several people who attended the barbeque told police that someone, possibly a 'brother,' came and picked up Juan and that the two of them were gone for some period of time." Petitioner also presented character evidence from his employer, who testified that he was a reliable employee and never displayed any violent tendencies. (Garica I, supra, G045371.)
PROCEDURAL BACKGROUND
Following a joint trial, a jury convicted petitioner and Juan of first degree murder (Pen. Code, § 187, subd. (a); count 1) and active participation in a criminal street gang (§186.22, subd. (a); count 2). As to petitioner's first degree murder conviction, the jury found true several allegations, including the special circumstance that petitioner committed the murder while an active gang participant and for a criminal street gang purpose (§190.2, subd. (a)(22)); the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and a principal in the offense intentionally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). Petitioner was sentenced to life in prison without the possibility of parole for the first degree murder conviction plus a consecutive term of 25 years to life for the firearm enhancement. The court imposed a concurrent two-year sentence on the active gang participant conviction.
All further statutory references are to the Penal Code unless otherwise stated. --------
Petitioner timely appealed. In his appeal, a panel of this court rejected petitioner's challenges to the sufficiency of the evidence that the killing was gang related and to the admission of lay testimony concerning the accuracy of a witness's identification. The judgment, however, was modified to stay the sentence on the active gang participation conviction. (Garica I, supra, G045371.)
Following his appeal, petitioner filed a petition for writ of habeas corpus, in propria persona, in the superior court, presenting claims of: instructional error; prosecutorial misconduct during closing argument; a denial of due process based on the trial judge's failure to recuse himself; and denial of his right to the effective assistance of trial and appellate counsel. The superior court denied the petition in September 2014. Petitioner then filed a habeas petition in this court, which we summarily denied in November 2014, and the Supreme Court denied his petition for review in January 2015.
In 2018, the superior court denied petitioner's new habeas petition, in which he sought reversal of his first degree murder conviction under Chiu. Petitioner then filed the instant petition for writ of habeas corpus in this court. We appointed counsel, who filed a supplemental petition which contends petitioner's first degree murder conviction should be reversed based on Chiu because the record does not demonstrate beyond a reasonable doubt that the jury relied on a legally valid theory in convicting him of the offense. After considering the Attorney General's informal response and petitioner's reply, we issued an order to show cause. The parties have filed a return and traverse, framing the issue for our determination. (People v. Duvall (1995) 9 Cal.4th 464, 476.)
DISCUSSION
As described above, the evidence at trial showed petitioner did not personally shoot and kill the victim but that the shooter, instead, was his brother Juan. The jury was instructed petitioner could be convicted of murder under three alternate legal theories, one of which was an uncharged conspiracy to commit an assault with a deadly weapon, the natural and probable consequence of which was murder. Petitioner contends the court committed instructional error by instructing the jury he could be convicted of first degree premeditated murder based on the natural and probable consequences doctrine. Our analysis of this issue must begin with a discussion of the Supreme Court's decision in Chiu.
In Chiu, the defendant was convicted of first-degree premeditated murder either on the theory that he directly aided and abetted the murder or that he aided and abetted the target offense of disturbing the peace or assault and the natural and probable consequence of the target offense was murder. (Chiu, supra, 59 Cal.4th at p. 158.) After examining the doctrinal and statutory bases of the natural and probable consequences doctrine (id. at pp. 163-166), our Supreme Court held "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Id. at pp. 158-159.) Instead, an aider and abettor's liability for first degree premeditated murder "must be based on direct aiding and abetting principles." (Id. at p. 159.) Explaining its reasoning, the court observed first degree murder "has the additional elements of willfulness, premeditation, and deliberation, which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (Id. at p. 166.) Under the natural and probable consequences doctrine, "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder . . . ." (Ibid.) But under the direct aiding and abetting theory of liability, a defendant can be convicted of first degree premeditated murder (ibid.) as this theory requires the prosecution to prove that "the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." (Id. at p. 167.)
Chiu's reasoning was then applied to uncharged conspiracy liability, a theory of vicarious liability similar to aiding and abetting. (People v. Rivera (2015) 234 Cal.App.4th 1350, 1355-1357.) In Rivera, the Court of Appeal held that the trial court erred in instructing the jury that the defendant could be convicted of first degree premeditated murder if it found the defendant conspired to commit the target crime of discharging a firearm at an occupied vehicle and first degree murder was a natural and probable consequence of the target crime of the uncharged conspiracy. (Id. at p. 1357.) Thus, a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine, either as an aider and abettor of the target crime or as a coconspirator as to the target crime. This rule from Chiu applies retroactively to cases, like petitioner's, in which the judgment was final prior to the Supreme Court's decision. (In re Martinez (2017) 3 Cal.5th 1216, 1222.)
Here, the jury found petitioner guilty of first degree premeditated murder after being instructed on three alternate theories: (1) direct aiding and abetting of murder (CALCRIM Nos. 400, 401, 520); (2) uncharged conspiracy to commit murder (CALCRIM No. 416); and (3) uncharged conspiracy to commit an assault with a deadly weapon, the natural and probable consequence of which was murder (CALCRIM Nos. 417, 875). The first two theories are legally valid; the third theory is now invalid under Chiu and Rivera.
In Chiu, the Supreme Court found instructional error because the court's instructions permitted the jury to convict the defendant of first-degree premeditated murder under a natural and probable consequences theory based on the perpetrator's premeditation and deliberation. (Chiu, supra, 59 Cal.4th at pp. 160-161.) There, the jury was instructed that if it found the defendant guilty of murder as an aider and abettor, either direct aiding and abetting or under the natural and probable consequences doctrine, it also "had to determine whether the murder was in the first or second degree." (Ibid.) The instruction on first degree murder (CALCRIM No. 521) told the jury that the defendant could be convicted of first degree murder if the People proved "the perpetrator acted willfully, deliberately, and with premeditation, and that all other murders were of the second degree." (Id. at p. 161.)
The Attorney General contends Chiu is distinguishable because "here the jury was not instructed that petitioner could be found guilty of first degree murder under the natural and probable consequences doctrine if the perpetrator acted with the requisite intent to kill." In petitioner's case, CALCRIM No. 521, the instruction on first degree murder, read in pertinent part: "The defendant is guilty of first degree murder if the People have proved that [he] acted willfully, deliberately, and with premeditation. The defendant acted willfully if [he] intended to kill. The defendant acted deliberately if [he] carefully weighed the considerations for and against [his] choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if [he] decided to kill before completing the act[s] that caused death." The Attorney General contends this instruction made "clear that petitioner could be found guilty of first degree murder only if he intended to kill the victim and acted with premeditation" and deliberation.
The Attorney General made a similar argument in In re Loza (2018) 27 Cal.App.5th 797 (Loza) and it was rejected by a panel of this court. (Id. at pp. 803-804.) In Loza, the jury was instructed as to first degree murder: "'If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion . . . it is murder of the first degree.' [Citation] . . . 'To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to and does kill.'" (Id. at pp. 802-803.) The Attorney General argued this instruction was distinguishable from the one given in Chiu because "'it referred to the "defendant's" mental state'" rather than "'the perpetrator's mental state.'" (Loza, at p. 803.) Based on differences in the instruction, the Attorney General asserted the jury in Loza could have found the defendant guilty only if it found he intended to kill the victim and personally acted with deliberation and premeditation. (Id. at pp. 803-804.)
Loza found "two fundamental flaws with the Attorney General's argument." (Loza, supra, 27 Cal.App.5th at p. 804.) First and pertinent here, because it "was a joint trial of four defendants," "the jury could have interpreted the word 'defendant' to mean any of the four defendants. So when the court instructed the jury that it had to find that the 'defendant' premeditated and deliberated, the jury could have (and likely did) understand the word 'defendant' to mean [the shooter]." (Ibid.) The jury, therefore, would have not determined whether Loza individually acted with premeditation and deliberation. The second flaw was that the instruction given in Loza "essentially mirrored" that in Chiu, using "the word 'slayer' instead of the word 'perpetrator'" (ibid.) to indicate that the shooter's mental state is sufficient "'[t]o constitute a deliberate and premeditated killing.'" (Ibid.) Therefore, Loza found instructional error under Chiu. (Loza, at p. 805.)
We reach the same conclusion as that in Loza but based on a slightly different analysis. Here, in a joint trial, as in Loza, "the jury could have interpreted the word 'defendant'" in the first degree murder instruction as referring only to the shooter. (Loza, supra, 27 Cal.App.5th at p. 804.) The jury could have read the instruction to mean it only had to decide whether Juan (the shooter) acted willfully, and with premeditation and deliberation and that it did not have to determine whether petitioner personally had the requisite mental state. This possibility becomes a certainty when we look at the prosecutor's statements to the jury regarding this instruction.
In his argument, the prosecutor repeatedly told the jury that the instruction on first degree murder applied only to Juan, the "shooter," and that he need not prove intent to kill and premeditation and deliberation as to petitioner. Discussing "the mental state required for first degree murder," the prosecutor stated he was "talking about the mental state of the shooter, because" petitioner's guilt, as the aider and abettor, was the same as the shooter's. When defense counsel objected, the court stated the parties were "free to argue the wording of the instructions." The prosecutor continued, explaining first degree murder required an intent to kill and premeditation and deliberation but that he only had to prove these elements as to the shooter. In arguing these elements had been proved, the prosecutor focused on the evidence concerning Juan's intent to kill and his premeditation and deliberation. The prosecutor did not discuss whether these elements had been proved as to petitioner. Proposing a way for the jury to simplify its consideration of the charges, the prosecutor suggested the jury first determine whether Juan was guilty of first or second degree murder because petitioner "is guilty of the same." When defense counsel again objected that the prosecutor had misstated the law, the prosecutor responded by telling the jury that it was "not going to see anything in the instructions that says [petitioner] has to have the intent to kill."
This theme continued in the prosecutor's rebuttal argument as he repeatedly argued it was not necessary for him to prove that petitioner wanted to kill. The prosecutor told the jury: The "[a]ider and abettor is guilty of the same crimes as the shooter. Sorry the [d]efense doesn't like that, but that's the law. Take a look at the law. And the aider and abettor does not have to have the specific intent to kill for first degree murder." The prosecutor's argument clearly told the jury that it could find petitioner guilty of first degree murder based on Juan's premeditation and deliberation and that the prosecution did not have to prove petitioner intended to kill, deliberately and with premeditation.
The jury was admonished to follow the court's instructions if it believed an attorney's comments conflicted with the court's instructions (CALCRIM No. 200), and we presume the jury did so. (People v. Osband (1996) 13 Cal.4th 622, 717.) But here, the jury may not have believed the prosecutor's comments conflicted with the court's instruction on first degree murder as the instruction was somewhat ambiguous as to whether it applied to both defendants or only Juan. The term "defendant" in the instruction could have been interpreted to apply only to Juan, as the prosecutor argued. Nothing in the instruction actually conflicted with the prosecutor's argument and when defense counsel objected, the court did not contradict the prosecutor but only stated that both parties were "free to argue the wording of the instructions." At the time of petitioner's trial, prior to Chiu, a defendant could be convicted of first degree murder based on the perpetrator's or shooter's premeditation and deliberation. Thus, as in Loza, the jury could have and likely did understand the instruction as applying to Juan only. (Loza, supra, 27 Cal.App.5th at p. 804.) The jury, therefore, could have convicted petitioner of first degree murder under the natural and probable consequences theory without finding he acted with premeditation and deliberation.
It is for this reason that we find distinguishable People v. Stevenson (2018) 25 Cal.App.5th 974. In Stevenson, the jury was instructed the defendants could be convicted of murder under the natural and probable consequences doctrine and the jury was given a slightly different version of CALCRIM No. 521, the instruction on first degree murder. (Stevenson, at pp. 981-982.) There, the instruction read, "'A defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation'" (ibid.), using the indefinite article a for defendant. Stevenson found the court's instructions required the jury find each defendant committed the offense with the requisite premeditation and deliberation before finding that defendant guilty of first degree murder. (Id. at p. 984.) In contrast here, the jury instructions and the prosecutor's argument allowed the jury to find petitioner guilty of first degree murder based solely on Juan's premeditation and deliberation. The error was prejudicial.
Having concluded the jury was able to convict petitioner of first degree murder based on an invalid theory, we must reverse petitioner's conviction unless the People demonstrate beyond a reasonable doubt that the verdict was based on a legally valid theory. (In re Martinez, supra, 3 Cal.5th at p. 1218; People v. Aledamat (2019) 8 Cal.5th 1, 12.) This is the same as the familiar "'beyond a reasonable doubt' standard of review" articulated in Chapman v. California (1967) 386 U.S. 18, 24. (Aledamat, at p. 3; id. at pp. 12-13.) In applying this standard, we examine "the entire cause, including the evidence, and consider[ ] all relevant circumstances" (id. at p. 13), including the prosecutor's argument, jury's inquiries, and other aspects of the verdict to determine whether the error was harmless beyond a reasonable doubt. (Id. at pp. 12-13; Martinez, at pp. 1226-1227.) The Attorney General contends the jury's true finding on the gang special circumstance "shows beyond a reasonable doubt that the jury based its verdict on the legally valid theory of direct aiding and abetting." We disagree.
The jury was instructed that if it found a "defendant guilty of first degree murder" then it must also decide if the prosecution had proved the special circumstance and to consider "each special circumstance separately for each defendant." (CALCRIM No. 700.) The instruction on the gang special circumstance told the jury that: "To prove that this special circumstance is true, the People must prove that: [¶] 1. A defendant intentionally killed J. Granillo; [¶] 2. At the time of the killing, the defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out to further the activities of the criminal street gang." (CALCRIM No. 736.) A separate instruction explained the intent requirement for the special circumstance allegation, telling the jury that "[i]f the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that [he] acted with the intent to kill for the special circumstance to be true." (CALCRIM No. 702.)
Citing People v. Anthony (2019) 32 Cal.App.5th 1102, the Attorney General contends the jury's true finding on the gang special circumstance "'strongly suggests' that the jury's first degree murder verdict was based on direct aiding and abetting" rather than the natural and probable consequences doctrine. In Anthony, the Court of Appeal indicated that the jury's findings that the accomplices intended to kill the victim "strongly suggests that its first degree murder verdicts for each . . . were based on its conclusion that each aided and abetted or conspired to murder [the victim], not merely assault him." (Id. at p. 1145.) But whether there is a strong suggestion that the jury relied on a legally valid theory is not the standard. As Loza explained: "'The [Chapman] test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.'" (Loza, supra, 27 Cal.App.5th at p. 805.)
Here, there is a reasonable possibility the error might have contributed to petitioner's first degree murder conviction and the jury's finding of intent to kill, as part of its findings on the special circumstance allegation, is insufficient to establish the error was harmless. The jury's finding of intent to kill is not the same as finding petitioner acted with premeditation and deliberation, as required for first degree murder.
In arguing the case to the jury, the prosecutor argued petitioner was guilty of murder as an aider and abettor. But as a fallback theory, he argued petitioner could be convicted under the natural and probable consequences theory if the defendants conspired to commit an assault with a deadly weapon and a murder resulted from that offense. He told the jurors that they could rely on this theory to convict petitioner if one of them thought petitioner "agreed only to scare the victim" and did not intend to aid and abet the murder Juan committed. The defense argued petitioner has a reputation for nonviolence and that the prosecution had failed to produce any evidence that he knew Juan was going to kill Granillo. Granted, there was strong circumstantial evidence that petitioner and Juan conspired to kill Granillo, but we cannot conclude beyond a reasonable doubt that one or more of the jurors did not rely on the natural and probable consequences theory to convict petitioner of murder. Based on the court's instructions and prosecutor's arguments, we cannot find the error harmless beyond a reasonable doubt.
DISPOSITION
The petition for a writ of habeas corpus is granted, and petitioner's conviction for first degree murder is vacated. The matter is remanded to the trial court with directions to allow the People to either accept a reduction of the conviction to second degree murder or to retry petitioner for first degree murder under legally valid theories. If the People accept the reduction of the conviction to second degree murder, the court shall resentence petitioner accordingly. The order to show cause is discharged.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.