Opinion
F085433
10-09-2023
THE PEOPLE, Plaintiff and Respondent, v. LACEY LEE GIVENS, Defendant and Appellant.
John F. Schuck, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County, No. VCF073120C Melinda Myrle Reed, Judge.
John F. Schuck, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2004, appellant and defendant Lacey Lee Givens (appellant) and her husband and codefendant Todd Givens were convicted after a joint jury trial of two counts of first degree murder, for the murders of Barry Holstone and his sister Patreace Holstone. A multiple murder special circumstance was found true as to both counts. Appellant was sentenced to two consecutive terms of life in prison without the possibility of parole (LWOP) and her convictions were affirmed on direct appeal. Todd was sentenced to death and his appeal is pending before the Supreme Court.
In 2019, appellant filed a petition for resentencing pursuant to former section 1170.95 of the Penal Code. The trial court summarily denied the petition and appellant did not file an appeal from that ruling.
All further statutory citations are to the Penal Code unless otherwise indicated.
In 2022, appellant filed a second petition for resentencing under the amendments to former section 1170.95 that became effective that year. The trial court appointed counsel, conducted a hearing, and denied the petition because it found the ruling on appellant's first petition barred relief on the second petition.
Appellant now appeals from the trial court's denial of her second petition for resentencing. Appellant asserts she was entitled to file a second petition after the amendments to former section 1170.95 became effective on January 1, 2022, and the matter must be remanded for an evidentiary hearing. The People respond appellant was ineligible for resentencing because her first petition was properly denied, and the jury instructions and verdicts show appellant was convicted of both counts as acting with the intent to kill and not based on any theory of imputed malice.
We grant the People's request to take judicial notice of this court's records from appellant's direct appeal. We find the trial court improperly denied appellant's second petition as a successive motion, but conclude the court's error was not prejudicial because the jury instructions show appellant was ineligible for resentencing as a matter of law.
As will be discussed in issue I, below, the People requested this court take judicial notice of our own records and the nonpublished opinion that affirmed appellant's convictions on direct appeal in People v. Givens (Sept. 12, 2006, F045834) [nonpub. opn.] (Givens), and appellant filed opposition.
The following facts and procedural history are from the record and this court's nonpublished opinion in appellant's direct appeal. 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 (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, 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 recited the factual statement from appellant's direct appeal to place her arguments in context, and will not rely on that factual statement to resolve her appeal from the trial court's order that found her petition did not state a prima facie case for relief.
"Todd Givens (Todd) is a validated member of the Nazi Low Riders (NLR). His gang moniker is 'Stomper.' Barry Holstone (Barry) was also a validated NLR member. His gang moniker was 'Joker.'
For the sake of clarity, we will frequently refer to appellant Lacey Givens and codefendant Todd Givens, and the victims Barry and Patreace Holstone, by their first names. No disrespect is intended.
"The NLR is a White supremacist prison gang that is affiliated with the Aryan Brotherhood (AB). A violent gang, the NLR's stated goal is to control narcotics distribution (particularly methamphetamine) and the White subculture inside an institution. To gain membership, a person must assault someone or do something significant for the organization, and must demonstrate [a] willingness to back up the organization. A person moves up through the gang's hierarchy based on time in the organization and earning the respect of the membership. This is done by demonstrating a willingness to do what is best for the organization, even if it means killing someone. Although women are not accepted as members of the NLR, they assist the gang outside of prison by moving drug labs, providing members with places to stay, getting narcotics into the institution, facilitating collections, and the like.
"In gang parlance, a 'check' usually refers to a lightweight assault used to punish someone. A member may be 'put in check'for some transgression, and then be in good standing with the gang afterward. A 'hit'or being 'in the hat'means that a contract has been put out on a person, who is to be killed. The gang takes priority over personal relationships, and a gang member will frequently be asked to hit a friend because he can get closer to that person. If someone is 'in the hat' and an NLR member knows it, the NLR member is supposed to assault the other person if the opportunity arises. It is not unusual, however, for someone who is 'in the hat'to associate with NLR members who are in good standing, usually because that person is doing something for the NLR member.
"A hit may be ordered for various reasons. For instance, the gang's philosophy is 'blood in, blood out,' and dropping out is not allowed. A drop-out may be targeted even after he is released on parole. Alignment with FTB ('F[***] the Brand,' i.e., the AB), a faction that broke off from NLR and refused to follow AB orders, is also cause for a hit. The FTB faction does not get along with the NLR, and the AB has decreed that all FTB members are 'in the hat' and are not to be given a second chance. Showing disrespect to another NLR member is another reason for a hit. Respect is very important within the gang. If an NLR member living in the community committed a burglary against a fellow member, this would be seen as an act of disrespect and would be cause for a hit. If the burglar put a sticker with his moniker on the victim's garage door after the theft, it would be an even greater act of disrespect. If the victimized gang member knew the perpetrator's identity and did not retaliate, he would be viewed as weak. Being weak is incompatible with being a good member of the organization. The fact that other people knew about the theft would increase the need to respond.
"Ronald Buck was Todd's cellmate at Corcoran State Prison approximately seven years before trial. Barry was in the same prison, albeit a different section. At one point in 1999, Todd placed Barry's name on a hit list due to a 'private beef' they had had in another prison. Since a personal matter was involved, however, the hit was not approved by the prison unit's 'shot caller' for the AB. As a result, there was no hit on Barry.
"Joseph Argott, a former member of the Mexican Mafia, was housed next door to Barry at North Kern State Prison. Sometime in 2000 or 2001, he and Barry were drinking prison-brewed alcohol when Barry started an argument with the AB 'shot caller' in the unit. This led to a vote being taken concerning whether Barry should be hit. Argott subsequently saw Todd make a stabbing motion to another inmate who was an NLR associate. About three days later, Barry was stabbed on the yard. Todd and other NLR members were on the yard at the time, and the inmate to whom Todd had made the motion was standing right next to Barry. According to Stephen Worthen, who was an NLR member at the time, the stabbing was intended as a hit, but the knife broke on Barry and he got the best of the two people who jumped him. Although Worthen had thought, at the time the vote was taken, that Todd and Barry were inseparable, Todd held enough power and influence to override the vote if desired. Although it appeared as if Barry was in good standing with the gang when he was released on parole shortly after the attack, he was not. Being 'in the hat' follows a person even after he leaves prison and he is still subject to a hit.
"Sometime in early March 2001, Todd and appellant visited Ursula Jones at Melissa Dungan's house. Douglas Son, who was storing his late grandfather's belongings in Dungan's garage, asked Todd and appellant if they wanted any of the items. Todd took an antique washboard and a sickle.
"Around the middle of March 2001, Jason Ashford, who was not allowed to possess firearms because he was on parole, gave a shotgun to Todd and told him to do whatever he wanted with it. Ashford did not discern any animosity between Todd and Barry, who was present in Todd's garage during the exchange. Appellant, however, was not present. Ashford, who had been good friends with appellant for years, described her as not being comfortable around guns and 'not really a violent person.' He had never known her to use a weapon. Moreover, where people like Todd, Barry, and Ashford (a self-described skinhead) were concerned, it was an unspoken rule that women were not involved when business was being discussed. Despite this fact, the women often were fiercely loyal to their men. In Ashford's opinion, appellant loved Todd. She always seemed happy, and he never saw them argue or fight.
"A short time prior to April 1, 2001, John Galafate gave Barry a ride to Todd's house. Galafate remained in the car, while Barry went inside. Appellant and Todd were under the influence of drugs that evening, which was a Friday. It was Galafate's understanding, from what Barry told him, that Todd owed Barry money; that Todd and appellant were going to Pismo Beach for the weekend; that Todd would be returning with a large quantity of methamphetamine; and that Barry would make some money when Todd returned. Samuel Albright, who was also at the house that night, saw Todd and Barry interact. They seemed friendly.
"Over the course of the weekend, Barry and Galafate made four trips to the Givens['s] property, during which Barry took a toolbox full of tools, a motorcycle, and numerous other items from the mobile home, unattached garage, and Cheryl's garage. On at least two of the trips, Barry spoke to Cheryl. Barry subsequently sold the items. Patreace helped sell some of the tools.
Appellant, Todd, and his mother Cheryl lived on adjoining rural parcels that were bounded by Avenue 344 on the north and an unpaved access road on the east. Todd and appellant lived in a mobile home on the northernmost parcel. An unattached garage was just south of the mobile home, and a paved driveway led from it to the access road. The home of Cheryl ... was located on the parcel directly south of where Todd and appellant resided, and her home was serviced by the same access road.
"On the morning of April 1, Todd telephoned ... Ashford and asked him to come out to the house. Ashford assumed that Todd wanted a ride into town, which Ashford had furnished in the past. Todd called again during the middle of the afternoon to ask if Ashford was coming out. Ashford said yes, but that he had to go to a family barbecue first and would be out after that. He did not hear from Todd again.
"Barry and Galafate were together for much of the day. At some point, Barry made three or four telephone calls and then asked Galafate to go with him to Todd's house. Barry made it seem like he did not want to go unless Galafate accompanied him. Galafate refused, and instead took Barry to the home of Barry's sister, Patreace, between 5:00 p.m. and 6:00 p.m., Barry was wearing jeans, hiking boots, and a blue cap. When they arrived at Patreace's house, he pulled a small-caliber, silver, pearl-handled weapon from under the seat and stuck it in his left boot. Galafate also knew Barry to carry a foldable knife, and to use drugs. He had seen Patreace use methamphetamine a couple of times.
Barry had been shot and then struck by a train in January 2001. According to his aunt, he came home from the hospital in February, having lost 50 pounds and much of his strength. In addition, he had severe damage that left him with the mental state of a 14 year old. According to Galafate, however, although Barry was still trying to regain his strength and was smaller than he used to be, he was not weak. In Galafate's opinion, Barry could fight pretty well.
"Michelle Hunter and Patreace were at their home in Porterville when Barry arrived sometime after 6:00 [p.m.] that evening. He made a number of telephone calls. It was originally decided that he, Patreace, and Hunter would all go to Todd's house, but he and Hunter argued because Hunter wanted to bring her dog. At that point, Patreace said she would take Barry, and the two of them drove off in her car. At no time that night did Hunter see either Barry or Patreace in possession of a weapon.
"Between 8:00 p.m. and 9:00 p.m., David Munson, his son Mike Munson, and his nephew Carsten Waltjen were outside the Munson residence when they heard a banging sound, like metal against metal, as if someone was doing body work on a car. At the same time, they heard what sounded like a man and a woman arguing. The voices, which were coming from the unattached garage, were quite loud, but muffled by distance. These sounds stopped, then there were two loud gunshots. Everything grew quiet, then the men saw Todd and appellant moving quickly down the driveway from the garage toward Cheryl's house. Later, Waltjen recognized appellant's voice as she was coming from the area of Cheryl's house and heading back to the garage. She was running and she said, 'Come on babe. Hurry up. Let's go.' Waltjen subsequently heard what sounded like an attempt to close a trunk and then a car drove away. Immediately after, Cheryl's Toyota Avalon came down the driveway from the direction of Cheryl's house and followed the first car. Both vehicles turned east on Avenue 344.
The Munson residence was located on the parcel directly west of where Todd, who did auto body work, and appellant lived.
"The men subsequently saw smoke coming from the unattached garage. Waltjen and Michael Munson drove over to see what was going on, then left when they saw a lot of blood on the garage floor. From the Munson house, they called the fire department, and Waltjen's aunt called 911. While they were waiting for help to arrive, they saw the garage begin to flame up. The three men ran back to the Givens['s] property and used a hose to extinguish the fire, which was burning the wall of the garage. ... Ashford and another man drove up around this time in response to Todd's earlier telephone call.Fire engines also arrived on the scene.
According to Waltjen, the men said they had received a call or page, about 30 minutes earlier, saying that Todd needed a ride.
"A crime scene was found inside the garage. There were sawhorses near the rear of an El Camino, and pools of blood by the sawhorses. There were bloody drag marks leading away from those pools. There was enough space between the left side of the El Camino and the south wall of the garage for someone to walk in the area, and there were large amounts of blood droplets on the floor of that space. There was a projectile hole in the El Camino. Plastic wadding from a shotgun shell and shotgun pellets were embedded in the south wall of the garage. Four single holes of varying height went completely through the wall, and there were two holes in the large (car) garage door on the east side of the structure. Nine 9-millimeter shell casings were found in the garage. Several projectiles or partial projectiles were also found, as were pieces of skin and hair. Hair was also found in blood on the garage floor near the north side (walk-through) door and on the doorjamb. A paint thinner can, bearing bloody palm and finger impressions, was seized from a shelf along the west wall of the garage.
"A burned area was found on top of a work bench mounted along the interior north wall. An area of the north wall had burned through. The fire subsequently was determined to have been caused by arson, and appeared to have been set in haste.
"A shell casing and plastic wadding were found on the work bench. Blood droplets and bloody shoe prints were found in the driveway next to the side door. A sickle was found in large amounts of blood just outside the side door, with a blue baseball cap nearby. There was blood on the bill of the cap, which was the one Barry wore that day. A blue towel was found in the doorway, and a green towel was found nearby, on the walkway. It appeared, from smears and pools of blood, that something had been taken through the north side door and then loaded up. Two spent .12-gauge shotgun shells were found on top of an air conditioning unit that was attached to the mobile home and located between it and the garage.
"Bloody shoe prints in the driveway bore the same tread pattern as, and were similar in size to, a pair of Puma [tennis] shoes that were later seized in Las Vegas. Partial shoe tracks with the same pattern were also found near the sickle and in the center of the garage, next to a shell casing. Shoe prints with a different tread pattern, which appeared to be similar to hiking boots, were found between the El Camino and the south wall of the garage. Shoes matching that pattern were never found. Both types of prints were from a larger shoe.
"Meanwhile, at approximately 9:19 [p.m.] that same evening, firefighters responded to a car fire in an olive grove near Avenue 344 and Road 156, just under a mile, by vehicle, from the Givens['s] property. The automobile was fully engulfed in flames, and the fire-which subsequently was determined to have been caused by arson-was so hot that it was scorching the surrounding trees. After the fire was extinguished, a human arm was discovered protruding from the trunk. Two bodies were found inside. Dental records identified them as Barry and Patreace. When Patreace's body was removed from the car, her brain fell to the ground. X-rays revealed that it contained shotgun pellets. A burnt folding knife was found under the seat springs of the right front seat of the vehicle.
"Later that evening, Gene Serpa was at a house in Tulare when he was told that a friend of his had asked to borrow a pair of his pants. While looking for this individual, Serpa came upon Todd and appellant in the back bedroom. They appeared casual and relaxed. Todd was holding a black semiautomatic handgun, while appellant was holding a single-shot shotgun. The breech was open and the weapon was unloaded. A bandage was wrapped around Todd's hand. That night, someone stole a Suzuki Samurai jeep that belonged to one of the residents of the house.
"Cheryl's house was searched the next day. Blood was found on the front walkway of, and inside, the residence. Her telephone answering machine contained two messages to Todd from someone who identified himself as Joker, stating he was on his way over. Blood was also found inside her car, and appellant's, Todd's, and Cheryl's fingerprints were found on the car's exterior.
"Todd telephoned ... Albright a couple of days after Albright heard about the homicides on the news. Todd said that they had gone out in the garage, and things had gotten out of control and he had had to take care of it. Todd related that ... Ashford had been called to the scene as a sort of decoy, and that, if everything had gone right, he would have been the one to take the fall for the murder. Todd also said something about burning something to get rid of evidence, and he said he burned the bodies.
"On April 4, [2001,] appellant was spotted at the Klondike Hotel in Las Vegas by Las Vegas police officers who were there in connection with another matter. She was taken into custody at that time. When asked Todd's whereabouts, appellant said that they had split up and he had gone somewhere else. Officers discovered, however, that they had a room at the hotel and, although Todd initially claimed to be someone else, he surrendered after being told appellant was in custody. He had a deep, half-circular cut on his right index finger. Appellant had scrapes and bruises on her legs and back, some of which appeared to be several days old.
"A search of the hotel room, which was on the second floor, revealed a pair of blood-stained Puma tennis shoes; a room receipt, showing that appellant had checked into the room on April 2 and provided an address on Avenue 344 in Visalia; and keys to a Suzuki Samurai, which was located in the hotel parking lot. Directly below the bathroom window, which was at the rear of the building, were a single-shot, sawed-off shotgun and a black nine-millimeter handgun. The shotgun was broken in half at the stock, and the barrel had a .12-gauge round of number eight shot in the chamber. The handgun held a magazine that was fully loaded with nine live cartridges. Although there was no round in the chamber, there were five live copper-jacketed rounds on the ground near the weapon. The shotgun, which was the one ... Ashford had given Todd, subsequently was determined to have fired the two shotgun shells found on the air conditioner at the Givens['s] property. The pistol subsequently was determined to have fired the nine expended shell casings found in the unattached garage. Because of damage to the expended bullet and copper jacket also found there, a positive identification could not be made. However, nothing indicated they were not fired from that gun.
"Around April 7, after her return to Tulare County, appellant was placed in a cell for a short while with Crystal Silva, whom she had known for several years. Silva, who had seen appellant on television, asked her what happened. Appellant responded, 'I got that bitch.' She said she shot Patreace in the back of the head with a shotgun. Her demeanor when she said this was '[e]vil.'
Pursuant to the Tulare County jail's classification system, anyone charged with murder is classified as a 'keep separate.' Silva explained that, although she and appellant were not the same classification level and were not supposed to be housed together, some kind of disturbance between Todd and one of the deputies caused a lock-down situation in which Silva, who was in the process of being booked into jail, was placed in the nearest holding tank. It contained appellant. Deputy Carrillo, who was assigned to the pretrial facility in April 2001, confirmed that, although the common practice and policy was to not mix inmates of appellant's classification with other inmates, mistakes sometimes occurred, and such mixing occasionally occurred during the booking process. It was possible Silva and appellant could have been locked in the same cell together. Jennifer Stanton, who had known Silva for approximately 12 years, described her reputation in the community for honesty as not good. Lucy Chavez, who was housed in the same unit in jail as appellant, saw Silva making obscene gestures and saying profanities to appellant through the window in her unit. Appellant was crying and upset as a result. Eventually, jail staff had to cover the window. On November 25, 2003, defense investigator Ruben Armenta interviewed Silva in jail. She related that, when interviewed by the prosecution about her conversation with appellant, she was 'loaded out of her mind on medication.' She also said she made things up when talking to them.
"Patreace's autopsy revealed multiple shotgun pellets in the face, skull, and brain. The cause of death was a shotgun wound to the head, with the gun probably pointed at the left side of her face and head. Barry's autopsy showed no bullets related to the present incident. There were two stab wounds, both of which could have been caused by the sickle found outside the garage. One was in the left side, toward the back, and entered the lung. The other was to the front of the chest and penetrated the heart. The cause of death was exsanguination due to laceration of the heart and left lung. Carbon monoxide saturation levels suggested both victims were dead at the time they were burned. Both had high levels of methamphetamine in their blood that fell within the toxic range for the drug; however, habitual users can tolerate a toxic level.
Although entry and exit wounds would be very difficult to ascertain due to the severe carbonization of the body, a through-and-through wound should have left a track. There was none. The limbs were largely gone. It was possible that either of the victims could have suffered a through-and-through wound from being shot with a nine-millimeter handgun, and that fact not been detected due to the condition of the bodies.
"DNA testing was performed on various items of evidence. Almost everything appeared to have genetic profiles from at least two, and sometimes more, individuals. Patreace's genetic profile was consistent with blood at various locations, including on the blue towel, the doorjamb of the side garage door, and the shotgun barrel. In addition, one of the two pools of blood on the floor near the sawhorses consisted of Patreace's blood. Barry's genetic profile was consistent with blood found, among various places, on the handle of the nine-millimeter pistol, the El Camino, the floor between the El Camino and south wall of the garage, and the Puma [tennis] shoes. In addition, the second pool of blood on the floor near the sawhorses consisted of Barry's blood. Todd's genetic profile was consistent with blood found on the garage floor in the area between shell casings and the shelves on the west wall, the paint thinner can, and the shotgun barrel, as well as inside and on the front walkway of Cheryl's house. Appellant's genetic profile was consistent with blood found on the sickle.
"Tom Bevel, a crime scene reconstruction expert, reviewed a wide variety of reports, photographs, and other information in connection with this case. Based on these materials, he opined that, with respect to the shotgun blast that left wadding in the south wall of the garage, the shooter was on the north side of the El Camino, firing at about a 90-degree angle from the garage wall. The greater the distance, the more the pellets would spread, and there was no large spread here. Taking into account the number of pellets accounted for with respect to this shot, as well as the number of pellets shown by x-ray to have entered Patreace's cranium, this was probably a missed shot. In order to fire two rounds in succession from the shotgun involved in this case, someone had to have manually opened the shotgun, extracted the spent shotgun shell, and inserted a fresh shell. The spent shells were not where they would have been expected to be; since they were found outside the scene itself, somebody had to transport them.
"The shots fired from the nine-millimeter handgun were fired from inside the garage. The shooter did not fire all the shots from a stationary location; instead, there were at least three different positions from which the gun was fired. The evidence was consistent with a shooter who was adjusting his or her aim due to a moving target. Nine shell casings were found, but only seven projectiles were accounted for. It was possible the two additional projectiles simply were not found; some of the bullets fragmented; or one or both of the victims sustained a wound to the extremities, which was not discovered during the autopsy because the extremities essentially were destroyed in the fire. This possibility was supported by the blood on the side of the El Camino.
"Analysis of the blood stains between the south wall of the garage and the El Camino, as well as on the vehicle itself, indicated that someone with a boot-type pattern on the bottom of his or her shoes was moving back and forth in the area. Blood stains also showed movement along the tailgate of the El Camino, by the sawhorses, and near the main garage door, which was closed. It was apparent the sawhorses had been moved during the blood loss; the physical evidence was consistent with blood being dripped or transferred onto them both before and after they were knocked over. There was no evidence within the blood stain of actual physical struggle, although Bevel could not rule out the possibility that some sort of physical struggle occurred before the blood loss began. Blood droplets near the center of the garage, between the west wall shelves and some shell casings, were consistent with Todd's genetic profile. They could have been caused by the cut on Todd's hand, which could have been produced by a sharp instrument. The cut's location was consistent with either self-defense or the use of a weapon that slipped.
"Based on all of the information before him, Bevel opined that blood stain patterns on the El Camino and south of the vehicle were consistent with Barry being behind the El Camino, trying to protect himself from the assault. The type and volume of blood were not what would be expected if the heart laceration had been inflicted at that time. Instead, these were consistent with blood from a gunshot wound to an extremity, although Bevel could not rule out the possibility that the blood was the product of a laceration. Although Bevel was unable to identify Barry's actual position when he was stabbed, it was likely that those wounds were inflicted at, or shortly before Barry reached, the area of the sawhorses, where he left the large pool of blood. The evidence was consistent with him being on the ground when the blood pooled.
"Bevel further opined that, at the time she was shot, Patreace and the shooter were both north of the El Camino. A very short time after Patreace was wounded, she went to the ground at the location of the blood pool near the sawhorses. The evidence was consistent with a blood source already on the floor, then some sort of impact such as her head hitting into the blood source, and blood pooling beneath her head. Her head would have been near the floor at the time of the blood loss.
"There was no evidence of volitional movement by either victim after the blood pools, which were quite near each other, were created. In Bevel's opinion, the pools of blood near the sawhorses had already begun to coagulate prior to creation of the drag marks leading away from those pools toward the side garage door, meaning the bodies had to have lain there for at least 15 to 30 minutes. Drag marks led toward the side garage door, then there was more pooling of blood. In Bevel's opinion, this pool was formed with the blood source being very close to the floor when the blood was lost. The absence of a drag trail leading from it suggested that the source of the blood was picked up as opposed to being dragged across the floor. The blood stains in the doorway were smaller than the other pools, but heavier in concentration, meaning the source was there for a shorter period of time.
"Blood stains on the doorjamb and just outside the doorway were consistent with expectorant blood, i.e., blood that was expelled from Patreace's mouth. Such blood can only be expelled if a person is trying to clear his or her air passage. In Bevel's opinion, the blood pattern on the door would have been lower had Patreace's head been against the ground. There were two possible explanations for how her head came to be up from the floor: she was able to lift it, which was inconsistent with other physical evidence; or someone was lifting or carrying at least the upper portion of her body. It was possible two people could have carried her out.
"The drag marks outside the side door faded as they reached the east side of the sidewalk. It was possible the bodies were picked up and loaded into the car at that point. It was also possible the towels found in the area were used to try to stem the blood flow.
Todd presented the bulk of the defense evidence. As was the case at trial, this court's opinion in appellant's direct appeal treated it as applying equally to appellant.
"James Reed, Rex Dickey, and Frank Millette were all NLR members who had been housed in prison with Barry and Todd. All confirmed that Barry and Todd were close friends and that Todd had come to Barry's defense on a number of occasions when Barry was involved in various incidents in prison. They also affirmed that Barry was never 'in the hat,' either while in prison or at the time he paroled, and that the prison yard stabbing that took place in September 2000 was a check to keep him in line, as he had questioned authority. They denied that Barry was FTB, that Todd ever put a hit on him, or that Todd participated in the assault on the yard.
"According to Reed, Barry could fight well and was 'kinda violent.' Reed considered him to be a drug addict. When Barry was out of custody and using drugs a lot, he had no conscience about what he stole or where or from whom he stole it. Barry had a strong craving for methamphetamine and heroin. Stealing from a comrade is against NLR code. If one NLR member allowed another to get away with that, he would bring disrespect to himself and the gang, and would be looked down upon as being weak.
According to Patreace's former parole officer, she also had a long-standing drug problem, particularly with heroin, and had a fairly strong craving for drugs.
"According to Reed, women are considered equals by men in the NLR [gang], as a woman has to be tough to be with an NLR member. However, 'Rider business is [R]ider business,' and women are to be protected and kept away from that. A woman is there to support and take care of her man. In Dickey's experience, the women of NLR members definitely do not get involved in NLR business. The women would not even be in the same room when the men talked business, and they would understand that.
"Miguel Caraves was the person who shot Barry on January 16, 2001. The men formerly had been close friends, but that night, Barry was angry and armed with a pocket knife, and Caraves feared for his life. When Barry was 'strung out' like he was at the time of this shooting, he would act crazy. He would do anything it took to get more methamphetamine. After Barry got out of the hospital following the shooting and train accident, he went back to injecting methamphetamine. Caraves knew him to carry a pocket knife then. Barry's mental state was normal. He led others, but not Caraves, to believe there was something wrong with him mentally. Caraves saw Barry the day before the latter's death. Barry was 'as high as a kite.' When he was on drugs, he was not himself. He was 'evil' very aggressive, angry, and unpredictable.
"Millette had a conversation with Barry sometime near the end of March 2001, in which Barry talked about Todd going to the coast to pick up a large quantity of methamphetamine. The conversation was mostly centered around the fact that Barry was going to 'come-up'off of this large quantity of methamphetamine. Millette understood the reference to mean that Barry was going to rob a connection.
"Based on an anonymous tip that there were narcotics at the residence, Todd's probation officer, Rhonda Jennings, and Tulare County Sheriff's Sergeant Ludwig conducted a probation search of the mobile home and garage on March 29, 2001. No one was there, but the back door of the mobile home was unlocked and a screen that had been on the window adjacent to the back door was inside the back washroom. It appeared as though someone had been looking for something inside the house. No drugs were found. There was a sticker on the window next to the side garage door, which was also unlocked. The sticker, which Ludwig had not noticed during previous visits to the premises, was a cartoon-type character, like a court jester or a joker, and it appeared out of place.
"Dr. Alan Barbour, a forensic toxicologist, examined the toxicology report on Barry. It revealed 588 nanograms per milliliter of methamphetamine in his blood, a very high level of the drug that could be associated with violent and irrational behavior. The report on Patreace revealed 465 nanograms per milliliter. This level, like that present in Barry's blood, was 'well into the abusive range, well into the range where subjects may exhibit highly unusual behavior.' Habitual users build up a tolerance to the drug, and the probability of developing abnormal psychiatric problems grows with the amount of drug taken and the period of time over which it is abused. People who exhibit violent and apparently irrational behavior generally have methamphetamine values in excess of 150 nanograms per milliliter. This does not mean, however, that those with values in excess of that amount will exhibit those particular symptoms. Who will exhibit what symptoms cannot absolutely be predicted.
A therapeutic level of methamphetamine ranges from 10 to 20 or occasionally 50 nanograms per milliliter.
"Todd testified on his own behalf that he met Barry in prison in approximately 1998 or 1999. They usually ended up in the same prisons since they were from the same geographical area and the same gang. They also associated outside of prison, and Todd knew him like a brother. Although Barry frequently talked about Patreace, Todd had never met her or talked to her prior to April 1, 2001, and Barry was his sole source of information about her. Although Todd was not afraid of Patreace, his information led him to believe she might be violent.
"Placing either a hit or a check on someone requires a vote of gang members. A check is used for disciplinary purposes. A person can be checked and still be in good standing with the gang. Where a hit is involved, however, the person is no longer any good and is not welcome anywhere there are active gang members. A hit should be performed with a steel shank, because the intent is to kill. In a check, on the other hand, the intent is to punish or to send a message to the recipient to correct his conduct. Plastic would never be used if the intent was to kill. The instrument used on Barry was plastic and, in fact, broke during the attack. There was a vote taken with respect to that incident; a check and a hit both were discussed. Todd did not want Barry hit, so the vote was to check him, and what subsequently took place on the yard was a check. Todd was not aware of any hit ever being put on Barry. Barry was released on parole shortly after the incident in the yard. After Todd was released, he associated with Barry. He would not have associated with somebody who had a hit on him.
According to Officer Roper of the Institutional Gang Investigations Unit, plastic shanks are very common in prison because they cannot be found by the metal detectors that are frequently used. Roper was not aware of any code or policy among White gangs that prohibited the use of plastic shanks for hits.
Roper was aware that inmates used ploys to make it appear that someone was in good standing after an attack, so that they could get at him again and finish what they started.
"Barry came to Todd's house two or three times following his release from the hospital after the January 2001 shooting and train accident. The first two times, he came with a girl. The third time, which was at the end of March, he came with John Galafate. Barry and Galafate were already at the house when Todd, appellant, ... Albright, and Jones arrived. As Galafate was sleeping, the others left him in the car and went inside. Eventually, appellant began getting her and Todd's things ready, as they were going to Pismo Beach that night. Barry wanted to get high and, when Todd said he had some drugs, Barry asked if he could have them. Todd gave him what methamphetamine he had. Barry was broke and wanted some money for gas for Galafate's car, but Todd-who did not owe Barry money-was also broke. Todd said that Barry could stay at the house, but warned that he (Todd) was on probation, so officers often came around. Barry decided to leave. Todd, appellant, Albright, and Jones left in appellant's Honda; Barry got in Galafate's car, and Todd believed they also left, although he did not see them pull out of the driveway. He did not pay much attention, as he did not care if Barry stayed at the house. Whatever Barry did after that was beyond Todd's knowledge.
"Todd and appellant stayed at the beach for two or three days. On the way there, Todd telephoned his mother to ask to borrow some money. She informed him that some of the stuff from his house was missing, and that parole and probation officers had been there. When Todd called her back later, she said Barry was there. Todd spoke to him and asked about the information he had previously received from Cheryl. This conversation took place about two days before Todd returned home. Appellant's Honda remained at the beach, and Cheryl came to bring Todd and appellant home.
Because the registration tags on the car had expired, Todd had used the license plates from his mother's car. When he saw police pull up to his location, he and appellant ran. When he sees police, he assumes he will be arrested, and so he runs. Appellant ended up with scratches and bruises from their flight. Todd admitted, however, that some of the bruises observed on appellant's body after her arrest were caused when he and she got into a fight in the motel room and he picked her up and slammed her down into the bathtub. This was not the first time he had been physically abusive toward and had injured appellant; for instance, a couple of months before this, he had shoved a screwdriver into her neck. On another occasion, he damaged her nose.
"When Todd returned home on March 31, there were messages from Barry that he wanted to come over and needed to talk to Todd, and that it was urgent. Todd also found a sticker on the garage window that either had a picture of a joker on it or said 'Joker.' Todd had a lot of tools because he did auto body repair work to support himself, and many of those items were missing from the garage. They were important to him. In addition, there were things tossed everywhere inside the mobile home. A television and VCR, Todd's clothing, appellant's underwear, frozen meat, and Easter presents for Todd's and appellant's children were among the items gone from the house. Todd was angry, although he did not suspect Barry until he saw the sticker and put it together with a can he found of the type of soda Barry preferred and the fact Barry had been at Cheryl's house. Although Todd did not want to believe Barry had done it because they were like brothers, he conceded that if he knew who took from him, did not respond to that person, and had contact with him, he would be labeled a 'punk' (a term associated with weakness) and lowered in the eyes of the gang. The same result would occur if he allowed someone physically to harm him and did not respond.
"On April 1, [2001], Todd telephoned ... Ashford and asked him to come to the house to take Todd and appellant to the mall or somewhere. Todd did not care where. He also contacted Barry and asked him to come over. Todd wanted to ask him whether he had seen anyone at the house or knew anything about the missing items. Todd was not thinking about killing Barry, but simply wanted to have a discussion with him. Todd was conducting an investigation of sorts. Barry said he would try to come over. Where he was concerned, one could not prearrange anything. Meanwhile, Todd knew . Ashford had a barbecue to attend, so there was no definite time at which Ashford would pick him up.
"When Barry arrived, he parked at Todd's house and then went to Cheryl's residence, where Todd was. Todd, who was still angry about the theft, talked to Barry at the door, then told him to wait a minute. Because he did not trust Barry due to the way he was acting, Todd then got the .12-gauge shotgun from a room in Cheryl's house and put it in his pants. Earlier that day, Todd had retrieved the weapon from Cheryl's attic and assembled it. He could not recall when he loaded it; it was either when he retrieved it from the attic or when he asked Barry to wait.
To Todd, Barry was not acting normally, but instead seemed '[w]eird, angry, spun,' the latter meaning someone who is under the influence of a large quantity of methamphetamine and whose brain is not functioning normally. Todd had seen Barry both when he was under the influence [of] methamphetamine and when he was sober, and the way Barry was acting on this occasion was unlike either state. His facial expressions were very angry and contorted, and Todd felt that something was 'going down' that was not right with Barry because Todd had never before dealt with that type of behavior from him. Barry was calling Todd names and his tone of conversation was demanding, and the two had never talked like that before.
"Todd and Barry headed toward Todd's garage, at which time Todd saw an unfamiliar vehicle in his driveway. He could tell someone was inside, but did not know who. Barry said it was Patreace. She remained in the car as the two men went to the garage.
"Once inside the garage, Todd let the door swing closed, but did not lock it. He then asked Barry about the missing items, but Barry denied any knowledge of them and said he thought they were going to get high, as the garage was where they usually went to get high. When Todd said he wanted to discuss the other stuff first, Barry started to get aggravated and asked whether Todd had the drugs or not. Todd said he did not have any drugs; Barry insisted he did, and told him to break it out right then. Todd maintained he did not have any drugs-which was true-and said he was not going to break anything out until Barry told him what happened to his belongings. At that point, Barry got really angry and moved to pull something out of his waistband. Todd did not know what it was, although he believed Barry was going to pull a gun on him. There was a struggle; both men fell to the ground, and Todd gained possession of the gun, a nine-millimeter. He then shot Barry with it because Barry kept making aggressive moves toward him. He believed he shot Barry in the chest, although he supposed he could have missed. Todd did not intend to kill Barry, but was concerned for his own safety because he believed Barry was intent on killing him.
"The struggle took place toward the middle of the garage. When Todd fired the first shot, he was standing in front of the work bench. Barry did not go down, but instead turned and ran. He jumped over the bumper of the El Camino and got between it and the south garage wall. Todd yelled at him to stay there, but Barry kept trying to come around both ends of the El Camino. Todd, who believed Barry was still trying to get at him, then emptied the gun in an attempt to keep him behind the El Camino. He did not shoot at Barry to kill him, but instead shot in front of Barry in order to keep him behind the El Camino.
"When Todd ran out of bullets, he threw down the gun. Barry started making his way around the sawhorses toward Todd. At about the same time, the side door to the garage slammed open, and he felt arms wrap around him. At that point, he did not know it was Patreace, but simply thought he was being attacked from behind. The shotgun was still stuffed inside his pants, and Patreace's hands were right where the butt of the gun was. Todd was not going to let anyone take anything from him, especially a shotgun that could be used to kill him, so he turned around and struck her with his elbow as hard as he could. He had to elbow her two or three times before her arms came off his waist. Patreace took a couple of steps back, then came toward him. Barry was yelling at her to get Todd and that Todd was trying to kill him. Patreace was a little closer than four feet away when Todd pulled out the shotgun and shot her one time with it. Todd took the action he did only because he knew his life was threatened. At the time, he did not know what part of Patreace's body was struck by the shotgun pellets. He did not know whether he killed her with one shot; there was a noise, but he did not know what it meant. In any event, no more violence was inflicted on her person after that one gunshot to the head.
This was the only time the shotgun was fired that day. Todd had fired the weapon in the garage around the time he obtained it, because he wanted to see if it worked.
"Patreace fell down when she was shot, but meanwhile Barry was coming at Todd from his position near the sawhorses. About this time, appellant entered the garage. There was a bunch of stuff on the workbench, and Todd thought there had to be something he could use to defend himself against Barry. He ordered appellant to get him something, and she handed him a sickle that was either on or hanging above the work bench. Todd felt the need to get another weapon only because he still believed Barry would hurt or kill him. Near the right rear wheel of the El Camino, he and Barry 'locked up' again; Todd had his arms around Barry and hit him in the back with the sickle. Todd pushed Barry away, but Barry came at him again. This time, Todd struck him in the chest with the weapon. They separated, then Barry came at Todd a third time. He had a pocket knife in his hand. Todd tried to grab it and there was another struggle, during which Barry deeply cut Todd's hand. Todd grabbed the hand holding the knife and disarmed Barry, throwing down the knife. When Barry came at him yet again, Todd pushed him down. Barry went to one knee, and Todd went to push him down again. He kept telling Barry to get down and stay down, but Barry grabbed onto him again. Todd then stabbed him with the sickle a third time, embedding the sickle in his skull, and this time Barry did not get up.
Todd's tone of voice was such that a person would not think twice about complying with his order, and, as he expected her to do, appellant obeyed as quickly as she could. She was crying and scared.
Pathological examination ruled out a penetrating stab wound to Barry's skull, although the possibility of blunt injury or a superficial stab wound could not be excluded.
Todd now was wondering what to do. There had been no advance planning; it 'just happened.' He was scared, confused, and extremely concerned about going back to jail. Given his prior prison commitments and run-ins with law enforcement, and being a known gang member, he did not trust law enforcement to conduct an honest and fair investigation. As a result, he tried to cover things up and get away.
"To this end, Todd took Patreace's car keys from her pants pocket and backed her car up in the driveway. He then dragged the bodies through the door. He had told appellant to go next door, get their stuff, pack them a bag of clothes, and tell Cheryl that they needed a ride, and he now waited for her to return. He then put the bodies in the trunk of the car. One was very heavy, and he told appellant to help him. Still crying and emotionally out of control, she obeyed. Patreace's body was first. Todd was unable to close the trunk all the way because Barry's arm kept falling out. Todd closed it as best he could, then returned to the garage. There, he got a can of lacquer thinner from a shelf, poured the liquid all over the work bench, and set it on fire. He was trying to burn down the garage to destroy evidence. He took the shotgun, the nine-millimeter, and Barry's pocket knife. At some point, he told appellant to get into Cheryl's car. She obeyed.
"Cheryl, who was crying and terrified, was parked on the access road. Todd, who never went into Cheryl's house that night, spoke to her, then drove Patreace's car down the street to an olive orchard and on into the orchard itself. He did not really know what he was going to do with the bodies until he turned into the orchard. He looked through the car to see if it contained anything that would burn and, finding a bunch of bags and things in the back seat, set them on fire. He did this in an attempt to avoid apprehension, as he did not want anybody to know who was in the car. Appellant did not help him, and he did not use any kind of flammable liquid. He then got into the back seat of Cheryl's car and they left. Cheryl was driving, and appellant was in the front passenger seat. He had not told Cheryl or appellant what he was planning to do with the bodies, and he never had a conversation with them inside Cheryl's house about disposing of the bodies.
"At Todd's direction, they went to a house in Tulare, where Todd and appellant obtained another vehicle (the Suzuki Samurai) and a change of clothes for Todd, who burned his bloody clothing in the barbecue in back of the house. Todd had the nine-millimeter and the shotgun at the time, but appellant did not touch them. At that point, they were his; besides, she did not like guns. The couple ended up in Victorville, where Todd obtained some money from his uncle. They then went to Las Vegas, where they stayed for approximately two days. Although Todd telephoned someone while there, it was not Sam Albright. He did not telephone Albright until he was in custody in Tulare County. He never discussed the details of this case with Albright.
According to Jones, Todd telephoned Albright while in custody in Tulare County. At some point during these events, Albright told Jones that he would like to inform the police concerning Todd's and appellant's whereabouts so he could get out of some criminal charges that were pending against him. Jones described Albright's reputation for truth and veracity as being bad.
"Todd was the one who threw the guns out of the hotel room window in Las Vegas. The shotgun had been in one piece, and both weapons were loaded. In addition, the Puma [tennis] shoes were his, and were the shoes that made some of the bloody footprints in the garage and on the driveway." (End of quotation from the opinion in case No. F045834.)
PROCEDURAL SUMMARY
On September 27, 2001, an information was filed in the Superior Court of Tulare County jointly charging appellant and Todd with the following offenses:
Count 1: the murder of Barry (§ 187, subd. (a)), with a multiple murder special circumstance (§ 190.2, subd. (a)(3)); and special allegations that appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and that codefendant Todd personally used a deadly weapon, a sickle, in the commission of the offense (§ 12022, subd. (b)(1)), and he personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); and
Count 2: the murder of Patreace (§ 187, subd. (a)); with special allegations that appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and that codefendant Todd personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53 subds. (c), (e)(1)).
Appellant and Todd were also charged with count 3, arson of a structure (§ 451, subd. (c)); count 4, arson of the property of another (§ 451, subd. (d)); and counts 5 and 6, that codefendant Todd and appellant, respectively, possessed firearms while ex-felons (former § 12021.1). The information alleged prior conviction allegations as to both defendants.
In count 7, codefendant Cheryl Givens, Todd's mother, was separately charged as an accessory after the fact who aided Todd (§ 32). The record is silent as to the disposition of her case. (Givens, supra, F045834, opn. at fn. 2.)
Jury Instructions
Appellant and codefendant Todd were tried together. The jury was instructed on first and second degree murder, express and implied malice, premeditation and deliberation, lying in wait, that first degree murder required the specific intent to kill, and the multiple murder special circumstance.
The jury was also instructed on principals and aiders and abettors, and the uncharged conspiracy theories for murder and/or arson that included language on the natural and probable consequences doctrine.
The jury instructions will be extensively discussed in issue IV, below.
CONVICTIONS AND SENTENCES
On February 5, 2004, the 46th day of their joint jury trial, the jury returned the verdicts for both defendants.
Appellant's Convictions
Appellant was convicted of both counts 1 and 2, the first degree murders of Barry and Patreace. The jury also found true the special circumstance, that "the offenses charged in counts 1 and 2 are a special circumstance of MULTIPLE MURDER CONVICTIONS ._" (Italics added.)
As to count 1, the murder of Barry, the jury found it was not true that appellant personally and intentionally discharged a firearm in the commission of the offense.
As to count 2, the murder of Patreace, the jury found true the allegation that appellant personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the offense (§ 12022.53, subd. (d)).
Appellant was also convicted of count 4, arson of property, and count 5, being an ex-felon in possession of a firearm.
Appellant was found not guilty of count 3, arson of a structure.
Codefendant Todd's Convictions
Codefendant Todd was also convicted of counts 1 and 2, the first degree murders of Barry and Patreace, with the multiple murder special circumstances found true for both offenses.
As to count 1, the murder of Barry, the jury found true the allegation that Todd personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and he personally used a deadly weapon, a sickle (§ 12022, subd. (b)(1)).
As to count 2, the murder of Patreace, the jury found not true the allegation that he personally and intentionally discharged a firearm.
Todd was also convicted of counts 3, 4, and 5. The court found the prior conviction allegations true for both defendants.
Penalty Phase and Sentencing
On February 9, 2004, the penalty phase began before the jury, and the prosecution sought the death penalty.
On March 8, 2004, the jury found the appropriate punishment for appellant was LWOP, and the appropriate punishment for Todd was the death penalty. (Givens, supra, F045834, opn. at fn. 2.)
On May 24, 2004, the court sentenced appellant to LWOP for count 2, plus 25 years for the personal discharge enhancement; with a consecutive term of LWOP for count 1; and the determinate terms of two years for count 4 plus one year for the prior prison term enhancement; the term for count 5 was stayed.
The September 12, 2006, reporter's transcript and minute order state the trial court imposed consecutive terms of LWOP for counts 1 and 2; the abstract of judgment states the sentence for count 2 was LWOP, but with a consecutive sentence of life with parole for count 1. On February 13, 2020, the Department of Corrections and Rehabilitation advised the trial court about the inconsistencies between the minute order and the abstract of judgment, and requested clarification of appellant's sentence. On February 26, 2020, the court filed an amended minute order stating that appellant was sentenced to consecutive LWOP terms for both counts 1 and 2.
Direct Appeal
On September 12, 2006, this court filed the nonpublished opinion that affirmed appellant's convictions. We rejected appellant's contentions that her motion for mistrial based on alleged ineffective assistance should have been granted, and that the court should have reduced her convictions for first degree murder to voluntary manslaughter.
We also rejected appellant's claim that the court should have granted her motion for acquittal as to count 1, the murder of Barry, and there was insufficient evidence to support the conviction. In doing so, we noted that the prosecution "proceeded on a theory of derivative liability, contending that appellant was guilty as an aider and abettor and/or coconspirator." (Givens, supra, F045834.)
"Viewed as a whole in the light most favorable to the prosecution's case, the evidence presented in the prosecution's case-in-chief was sufficient to establish appellant's guilt on the challenged counts. There was ample evidence from which jurors could have concluded that Todd planned and premeditated Barry's murder. Appellant contends that, since the NLR was an all-male group, any NLR-related motive was irrelevant as to her, but we disagree. Regardless of whether any problems that arose between Barry and Todd in prison directly concerned appellant, the evidence established that respect and not appearing weak were important concepts in NLR society, and that women involved with NLR members often were fiercely loyal to their men. Jurors reasonably could have inferred that it would be important to appellant that her husband be respected and not perceived as weak. Barry's burglaries of the Givens['s] residences were a major sign of disrespect to Todd. Moreover, they involved the theft of the tools necessary to Todd's livelihood, as well as household goods, including presents for Todd's and appellant's children and even appellant's underwear. While appellant need not have shared Todd's motive, only his intent, jurors reasonably could have concluded that the evidence of motive was very strong as to both Todd and appellant, and that it supported an inference with respect to intent and premeditation.
"In addition, jurors reasonably could have concluded, from the number of victims and weapons used, that there was more than one killer. Appellant would have us separate Barry's murder from that of Patreace. She says the prosecution's crime scene expert described Barry's death in terms of a one-on-one confrontation, and she contends her admission that she killed Patreace had nothing to do with Barry's death. We do not view events in such a fragmented manner. Although the original plan was to kill Barry, jurors reasonably could have concluded that, once Patreace's presence became known, the plan expanded to include her. Jurors could have determined that appellant shot Patreace, and that Patreace was killed in furtherance of the plan to kill Barry. [Citation.] Whether Todd and appellant contemplated that appellant would be directly involved from the outset, or whether she only became physically involved after the confrontation between Todd and Barry began, does not matter. The evidence sufficiently established that appellant knew of Todd's plan to kill Barry, and that she was prepared to do whatever was necessary to assist him, including removing Patreace as an obstacle to the plan's successful completion. Jurors reasonably could have considered appellant's demeanor and conduct after the murders (especially her directing Todd to come on and hurry up, her relaxed manner and casual fondling of the shotgun later that evening, and her demeanor when she admitted to Silva that she killed Patreace) as further evidence of her full involvement in all the events of the evening, including Barry's murder and the burning of Patreace's vehicle." (Givens, supra, F045834, opn. at *37-38, italics added.)
"This court further found that [a]t least one part of Todd's testimony in fact bolsters our conclusion with respect to appellant's culpability: according to Todd, appellant handed him the sickle that was used to inflict the fatal blows. Although Todd attempted to imply that appellant undertook this action only because Todd ordered her to do so, we find it significant that, under Todd's version of events, he directed appellant to get him something, and she promptly chose a manifestly deadly weapon." (Givens, supra, F045834, opn. at *39, fn. 26.)
As noted above, Todd was sentenced to death, and his automatic appeal is pending before the California Supreme Court (People v. Givens 2021 Cal. LEXIS 4299 (S127119)).
FIRST PETITION FOR RESENTENCING
On September 17, 2019, appellant filed, in propria persona, a petition for resentencing pursuant to former section 1170.95 and requested appointment of counsel. Her supporting declaration was a preprinted form where she checked boxes indicating that she was convicted of first or second degree murder based on the felony-murder rule or the natural and probable consequences doctrine; she could not be convicted of murder after the amendments to sections 188 and 189; she was not the actual killer; she did not, with the intent to kill, aid, abet, or assist the actual killer in the commission of the murder; and she was not a major participant or act with reckless indifference.
The trial court did not appoint counsel or conduct a hearing. On September 23, 2019, the court filed an order that summarily denied appellant's petition, finding that "[a] review of the Court file demonstrates that [she] is not eligible for relief."
Appellant did not file an appeal from the denial of her first petition.
SECOND PETITION FOR RESENTENCING
The instant appeal is from the denial of appellant's second petition for resentencing, filed in propria persona on August 10, 2022, pursuant to section 1172.6. Appellant requested appointment of counsel.
Appellant filed her first petition in 2019 pursuant to former section 1170.95, and her second petition in 2022 under the amended statute. Former section 1170.95 was substantively amended effective January 1, 2022, and renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
Appellant's supporting declaration consisted of a preprinted form where she checked boxes that stated (1) a complaint, information, or indictment was filed against her that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine; (2) she was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which she could have been convicted of murder or attempted murder; and (3) she could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
On August 23, 2022, the court appointed counsel to represent appellant.
The People's Opposition
On November 21, 2022, the prosecutor filed opposition and argued the trial court denied appellant's first petition for resentencing in 2019, there had been no changes in her case since the first petition, and her second petition was barred by res judicata. The prosecutor further argued that even if her petition was considered on the merits, she was convicted as the actual killer and was ineligible for resentencing.
Hearing on the Prima Facie Determination
On November 30, 2022, the trial court held a hearing as to whether appellant's petition stated a prima facie case for relief. Appellant was present with her attorney.
The trial court stated it had reviewed the file and agreed with the prosecution's opposition. "My tentative ruling is to deny the finding of a prima facie case based on the Court's previous ruling, denying the motion and the law of the case which demonstrates [appellant] was an actual perpetrator, or at least a direct aider and abettor harboring the personal intent to kill."
Appellant's counsel argued her first petition was not denied with prejudice, so she was entitled to file a second petition to seek resentencing based on the amendments to section 1172.6. Counsel further argued the jury's finding under section 12022.53, subdivision (d) was insufficient to find her petition did not state a prima facie case for relief.
The prosecutor replied that appellant's first petition was denied for lack of a prima facie case, nothing had changed in her case since then, and the jury's finding on the firearm enhancement showed she was the actual killer.
The Trial Court's Denial of the Petition
The trial court stated that appellant's first petition was denied under former section 1170.95, but the statute was subsequently amended to expand the eligible convictions for resentencing. However, the court stated appellant's second petition "was essentially the same reasons and for the same issues" as her first filed petition. The court also found appellant's first petition was denied on the merits, and it was not denied "without prejudice. It was denied, and the assumption is it was with prejudice."
The trial court stated it was going to deny appellant's second petition "procedurally" because her first petition was denied in 2019, and "there's been no authority submitted that just because the statute was amended procedurally in 2022, that [appellant] is entitled to a second bite of the apple."
The trial court declined to decide whether the petition lacked merit based on the jury's finding on the section 12022.53, subdivision (d) firearm enhancement, that she personally and intentionally discharged a firearm, because the court was not prepared "to make the ruling on the merits."
On December 12, 2022, appellant filed a timely notice of appeal from the trial court's denial of her second petition for resentencing.
DISCUSSION
I. The People's Request for Judicial Notice
While this appeal was pending, the People filed a request for this court to take judicial notice of our own records and nonpublished opinion from appellant's direct appeal in Givens, supra, F045834. The People attached the following records that were part of the judicial notice request: the minute orders, instructions, and verdict forms from the clerk's transcript in case No. F045834; the court's reading of the instructions and the parties' closing arguments from the reporter's transcript in case No. F045834; and this court's nonpublished opinion that affirmed her conviction in the direct appeal.
Appellant filed opposition to the judicial notice request and argued the record from her jury trial was not before the trial court when it denied appellant's second petition for resentencing, the prosecution did not rely on the jury instructions when it opposed appellant's petition, and the court did not rely on such materials when it issued its ruling. Appellant argued the question was whether the court correctly denied appellant's second petition for resentencing without issuing an order to show cause (OSC), and the court did not consider the prior record, including the jury instructions, when it made that ruling.
Appellant's argument is based on case law standing for the general proposition that appellate courts generally do not take judicial notice of evidence not presented to the trial court. Contrary to counsel's assertions, however, appellate courts routinely take judicial notice of the records of their own cases under Evidence Code sections 452, subdivision (d) and 459. (See, e.g., Rel v. Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 886 ["On our own motion, we take judicial notice of [two prior opinions in same case] as well as the underlying appellate records. (See Evid. Code, § 452, subd. (d))"]; People v. Bilbrey (2018) 25 Cal.App.5th 764, 769, fn. 7 [taking judicial notice of related appeal in writ proceeding]; People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1 ["We take judicial notice of the record on appeal filed in this court in [prior appeal in same case], as well as of this court's unpublished opinion in that matter. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)"].)
In addition, if the trial court erroneously denies a petition for resentencing without issuing an OSC, the California Supreme Court has clarified the question for the reviewing court is whether the trial court's error was prejudicial pursuant to People v. Watson (1956) 46 Cal.2d 818, 836, and whether it is reasonably probable that, absent the error, her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; Williams v. Superior Court (2017) 3 Cal.5th 531, 554 [The reviewing court may affirm a judgment or order "on any basis fairly supported by the record ...."].)
In determining whether a petitioner made a prima facie case for resentencing, the court may review the record of conviction from the petitioner's case, that allows the court "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that . culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, supra, 11 Cal.5th at pp. 971-972 &fn. 6.) The record from a petitioner's direct appeal is part of the record of conviction. (Lewis, at p. 972.) The jury instructions are also part of the record of conviction and may be reviewed to make the prima facie determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 599.)
Accordingly, we reject appellant's arguments and grant the People's request to take judicial notice of our own records from appellant's direct appeal. (Evid. Code, §§ 450, 452, subd. (d), 459.)
II. Successive Petitions
Appellant contends the court improperly denied her second petition "procedurally" because her first petition was denied in 2019. Appellant argues she was entitled to file the second petition to seek resentencing based on the amendments to section 1172.6 that became effective in 2022.
Contrary to the trial court's ruling, 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 California Supreme Court's ruling in Lewis and other published cases 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 the defendant was still ineligible for relief as a matter of law based upon the jury's findings. (Id. at p. 947.)
Analysis
When appellant filed her first petition in 2019, former section 1170.95 only permitted resentencing if a murder conviction was based on the felony-murder rule or the natural and probable consequences doctrine. The trial court summarily denied her petition without granting her request for appointment of counsel or conducting a hearing on the prima facie issue.
As a result of the amendments that became effective in 2022, the statute was expanded to permit resentencing of murder convictions resulting from other theories "under which malice is imputed to a person based solely on that person's participation in a crime ..." (§ 1172.6, subd. (a)(1).) The amended statute also requires the trial court to appoint counsel if requested by the petitioner, conduct a hearing on whether the petition stated a prima facie case, state reasons for the denial of the petition, and set forth the evidentiary rules at a hearing on the merits. (§ 1172.6, subds. (b)(3), (c), (d).)
Appellant's second petition was filed in 2022 and was based on new authority that did not exist at the time of her first petition, as to both the procedural and substantive requirements of section 1172.6. She was thus entitled to file a successive petition based on the statutory amendments to section 1172.6 that were not effective at the time of her first petition.
When the trial court denied appellant's petition, it expressly stated that it was doing so "procedurally" because her first petition was denied in 2019, and "there's been no authority submitted that just because the statute was amended procedurally in 2022, that [appellant] is entitled to a second bite of the apple." The court declined to decide whether the petition lacked merit based on the jury's finding on the section 12022.53, subdivision (d) firearm enhancement, that she personally and intentionally discharged a firearm, because the court was not prepared "to make the ruling on the merits."
While the trial court correctly appointed counsel and conducted a hearing on appellant's second petition, the court's decision to deny the petition, on the sole basis that she was procedurally barred from filing a successive petition, was erroneous.
III. Prejudice
As noted above, to demonstrate prejudice from the trial court's erroneous denial of a section 1172.6 petition before issuing an OSC, appellant must show it is reasonably probable that, absent the error, her petition would not have been denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; People v. Watson, supra, 46 Cal.2d at p. 836.)
In making this determination, we may review the record of conviction, which includes the jury instructions (People v. Williams, supra, 86 Cal.App.5th 1244, 12511252; People v. Offley, supra, 48 Cal.App.5th 588, 599; People v. Harden (2022) 81 Cal.App.5th 45, 50, 54-55), the closing arguments, and the verdict. (People v. Lopez (2022) 78 Cal.App.5th 1, 13; People v. Ervin (2021) 72 Cal.App.5th 90, 106; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.)
IV. The Court's Error was Not Prejudicial
The trial court improperly denied appellant's petition based on the prior ruling in 2019, but the court's error was not prejudicial based on the record of conviction. We will review the still-valid theories of aiding and abetting, and the jury instructions and verdicts, to conclude appellant was ineligible for resentencing as a matter of law.
A. Senate Bill Nos. 1437 and 775
"Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden, supra, 81 Cal.App.5th 45, 5051; People v. Strong (2022) 13 Cal.5th 698, 707-708.)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis, supra, 11 Cal.5th 952, and also" '[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra, supra, 84 Cal.App.5th at p. 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 715, fn. 3.) Section 1172.6, subdivision (a) thus states that a person may file a petition for resentencing if "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 ...."
B. Direct and Indirect Aiding and Abetting
"Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. [Citation.] An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor can also be held liable for any crimes that were not intended, but were reasonably foreseeable (nontarget offenses). [Citation.] Liability for intentional, target offenses is known as 'direct' aider and abettor liability; liability for unintentional, nontarget offenses is known as the '" 'natural and probable consequences' doctrine." '" (In re Loza (2018) 27 Cal.App.5th 797, 801; People v. Williams (2015) 61 Cal.4th 1244, 1268.)
Under the direct theory, the prosecution "must show that the defendant acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.'" (People v. Gomez (2018) 6 Cal.5th 243, 279.) "Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought." (People v. Gentile (2020)10 Cal.5th 830, 848.)
Under the indirect theory, where the offense that "the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offenses that are reasonably foreseeable consequences of the act originally aided and abetted." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.) Under the natural and probable consequences theory as it previously applied to aiding and abetting 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.)
The question in this case is whether the record of conviction shows appellant was convicted in counts 1 and 2, the first degree murders of Barry and Patreace, as the actual killer; not as the actual killer but, with the intent to kill, acted as a direct aider and abettor; or as an aider and abettor under the now-abolished natural and probable consequences doctrine.
As we will explain, the jury in this case was instructed on the natural and probable consequences doctrine, but the entirety of the instructions and verdicts show that appellant was convicted of counts 1 and 2 based on being the actual killer and/or a direct aider and abettor who acted with the intent to kill, and not based on an imputed malice theory. We thus turn to the jury instructions given at appellant's trial.
C. Instructions on Principals and Aiding and Abetting
The trial court gave CALJIC No. 3.00, that stated persons who are involved in committing a crime are referred to as principals, and "[e]ach principal, regardless of the extent or manner of participation[,] is equally guilty." (Italics added.) Principals were defined as "[t]hose who directly and actively commit the act constituting the crime," or "[t]hose who aid and abet the commission of the crime."
The court gave CALJIC No. 3.01, that stated in relevant part that, "[a] person aids and abets the commission of a crime when he or she: [¶] (1) [w]ith knowledge of the unlawful purpose of the perpetrator, and [¶] (2) [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) [b]y act or advice aids, promotes, encourages, or instigates the commission of the crime."
Analysis
In order to convict a defendant of first degree premeditated murder as a direct aider and abettor, "the prosecution must show 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." (People v. Chiu (2014) 59 Cal.4th 155, 167, superseded by statute in part as stated in People v. Gentile, supra, 10 Cal.5th at pp. 848-849 and Lewis, supra, 11 Cal.5th at p. 959, fn. 3.) "Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought." (Gentile, at p. 848.)
As given to the jury, CALJIC No. 3.00 "generally stated a correct rule of law. All principals, including aiders and abettors, are 'equally guilty' in the sense that they are all criminally liable." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) However, the "equally guilty" language has been held misleading "if the principals in a particular case might be guilty of different crimes and the jury interprets the instruction to preclude such a finding," and the pattern instruction has since been amended. (Ibid.; see, e.g., People v. Nero (2010) 181 Cal.App.4th 504, 517-520; People v. Langi (2022) 73 Cal.App.5th 972, 982-983.)
In People v. Johnson (2016) 62 Cal.4th 600 (Johnson), the court addressed the "equally guilty" phrase in aiding and abetting instructions. Defendant was convicted as a direct aider and abettor of first degree murder. The jury was instructed with former CALCRIM No. 400 on principals and aiders and abettors, that also used the "equally guilty" phrase. (Johnson, at p. 638.) Defendant argued the phrase permitted the jury to convict him of first degree murder based on the culpability of the perpetrator without considering defendant's own mental state. (Ibid.)
Johnson held there was no reasonable likelihood the" 'equally guilty'" language allowed the jury to convict defendant of first degree murder based on the perpetrator's mental state, rather than on his own mental state in aiding and abetting the killing. (Johnson, supra, 62 Cal.4th at p. 641.) "The court introduced the subject of aider and abettor liability by reading [former] CALCRIM No. 400. It then instructed the jury with CALCRIM No. 401, which sets out the requirements for establishing aider and abettor liability. The jury therefore was informed that for them to find defendant guilty of murder as an aider and abettor the prosecution must prove that defendant knew [the perpetrator] intended to kill [the victim], that he intended to aid and abet [the perpetrator] in committing the killing, and that he did in fact aid him in that killing, which would have cleared up any ambiguity arguably presented by CALCRIM former No. 400's reference to principals being 'equally guilty.'" (Id. at pp. 640-641.)
CALCRIM No. 401 states that to find a defendant guilty as an aider and abettor, the jury must find that the defendant "knew the perpetrator intended to commit the crime," defendant "intended to aid and abet the perpetrator in committing the crime," and by words or conduct "did in fact aid and abet the perpetrator's commission of that crime." In this case, CALJIC No. 3.01 stated in relevant part that a person aids and abets the commission of a crime when he or she (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." As in Johnson, there is no reasonable likelihood jurors would have understood the "equally guilty" phrase in CALJIC No. 3.00 to convict appellant of first degree murder based on the perpetrator's mental state rather than on appellant's own mental state and intent to kill.
D. Uncharged Conspiracy
While the aiding and abetting instructions undermine appellant's claims about imputed malice, we must also consider the instructions the jury received on uncharged conspiracy theories.
CALJIC No. 6.10.5 stated in relevant part: "A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder and/or arson, and with the further specific intent to commit that crime, 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, but is not charged as such in this case." This instruction further defined overt acts.
CALJIC No. 6.11 defined the uncharged conspiracy theory and included the definition of the natural and probable consequences doctrine.
"Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy.
"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
"A member of a conspiracy is not only guilty of the particular crime that to his or her knowledge his or her confederates agreed to and did commit, but is also liable for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy, even though that act was not intended as a part of the agreed upon object and even though he or she was not present at the time of the commission of that crime act.
"You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Counts [1, 2, 3], and [4] were perpetrated by a co-conspirators in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy.
"In determining whether a consequence is 'natural and probable' you must apply an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural consequence' is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen." (Italics added.)
As explained above, counts 1 and 2 charged appellant with murder, and counts 3 and 4 were two separate arson charges.
Analysis
"Under the 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, supra, 22 Cal.App.5th at p. 683.)
" '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.]'" (People v. Joseph (2021) 63 Cal.App.5th 1058, 1065.)
However, "[c]ommission of the target offense in furtherance of the conspiracy satisfies the overt act requirement." (People v. Jurado (2006) 38 Cal.4th 72, 121.) Moreover, "[t]he 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.)
In this case, the jury was instructed with CALJIC No. 6.10.5, that the uncharged conspiracy theory was "an agreement between two or more persons with the specific intent to agree to commit the crime of murder and/or arson, and with the further specific intent to commit that crime . . .." In addition, CALJIC No. 6.11 clearly defined the natural and probable consequences doctrine as a possible theory for conviction of the murder and/or arson charges under the uncharged conspiracy theory.
"[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; People v. Medrano (2021) 68 Cal.App.5th 177, 183.) Appellant was found not guilty of count 3, arson of a structure, and guilty of count 4, arson of the property of another. If appellant had been found not guilty of both arson charges, the jury's verdicts for murder would have indicated that it did not rely on the uncharged conspiracy theory based upon arson to convict her of the two murder charges.
However, CALJIC No. 6.10.5 stated the uncharged conspiracy theory, based on the natural and probable consequences doctrine, applied "to commit the crime of murder and/or arson, and with the further specific intent to commit that crime . _." The instruction did not state "murder or arson," or clarify whether it applied to one or both of the arson counts.
As a result, the jury's not guilty verdict for count 3, arson of a structure, does not eliminate the possibility that it convicted appellant of murder based on the uncharged conspiracy instructions and the natural and probable consequences doctrine defined in CALJIC No. 6.11 since it found appellant guilty of count 4, arson of the property of another.
E. Instructions on Murder and the Special Circumstance
We next review the instructions given on murder and the special circumstance, to determine whether the jury's guilty verdicts of first degree murder were based on imputed malice.
CALJIC No. 8.10 stated that both defendants were accused in counts 1 and 2 of murder, that every person who unlawfully kills a human being with malice aforethought is guilty of murder; and the elements were that (1) a human being was killed, (2) the killing was unlawful, and (3) the killing was done with malice aforethought.
CALJIC No. 8.11 defined express and implied malice, and malice was express "when there is manifested an intention unlawfully to kill a human being."
CALJIC No. 8.70 stated that murder was divided into two degrees, and if the jury found a defendant guilty of murder, it had to determine and state in the verdict whether it found the murder was of the first or second degree.
CALJIC No. 3.31 stated the crime of first degree murder "requires the specific intent to kill."
CALJIC No. 6.20 defined willful, deliberate, and premeditated murder as murder of the first degree, and the word" 'willful,' as used in this instruction, means intentional. [¶] The word 'deliberate' means 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. [¶] The word 'premeditated' means considered beforehand." (Italics added.)
CALJIC No. 8.25 stated murder "which is immediately preceded by 'lying-in-wait' is murder of the first degree," and defined the phrase as "a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise even though the victim is aware of the murderer's presence. The lying-in-wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. [¶] The word 'premeditation' means considered beforehand. [¶] The word 'deliberation' means 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." Finally, the jury was instructed with CALJIC No. 8.80.1 on the multiple murder special circumstance.
"If you find a defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true[.]
"The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.
"If you find the defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree.
"You must decide separately as to each of the defendants the existence or nonexistence of each special circumstance alleged in this case. If you cannot agree as to both [of] the defendants, but can agree as to one or more of them, you make your finding as to the one or more upon which you do agree.
"You must decide separately each special circumstance alleged in this case as to each of the defendants. If you cannot agree as to all of the special circumstances, but can agree as to one or more of them, you must make your finding as to the one or more upon which you do agree. [¶] In order to find the special circumstance alleged in this case to be true or untrue, you must agree unanimously. [¶] You will state your special finding as to whether the special circumstance is or is not true on the form that will be supplied.
"To find that the special circumstance referred to in these instructions as multiple murder convictions is true, it must be proved that a defendant has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder of the first or second degree." (Italics added.)
Appellant was convicted of both counts 1 and 2, the first degree murders of Barry and Patreace. The jury found true the" '[s]pecial allegation [to] Counts 1 and 2, that the offenses charged in Counts 1 and 2 are a special circumstance of multiple murder convictions within the meaning of . . . Section 190.2 subdivision] (e)(3).'"
F. Analysis
The multiple-murder special circumstance pursuant to section 190.2, subdivision (a)(3) requires the jury to find either that the defendant was the actual killer, or that he or she acted with intent to kill in aiding and abetting the murders. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 45.) "When there is evidence from which a jury could base its convictions for multiple counts of murder on the theory that the defendant was guilty as an aider and abettor, and not as the actual perpetrator, the trial court must instruct the jury that to find true a multiple-murder special-circumstance allegation as to that defendant, it must find that the defendant intended to kill the murder victims." (Ibid.)
We note that "[t]o find true the multiple-murder special-circumstance allegation, a jury must find that the defendant has been convicted of at least two counts of murder, at least one of which must be first degree murder, and that the defendant either actually killed or intended to kill at least one of the victims." (People v. Mora &Rangel (2018) 5 Cal.5th 442, 495.) However, our courts "have never held that the multiple-murder special circumstance requires a jury to find the defendant intended to kill every victim." (People v. Dennis (1998) 17 Cal.4th 468, 516; People v. Holmes, McClain, &Newborn (2022) 12 Cal.5th 719, 785; People v. Maciel (2013) 57 Cal.4th 482, 521.)
In this case, however, the jury found true the multiple murder special circumstance that "the offenses charged in Counts 1 and 2 are a special circumstance of multiple murder convictions within the meaning of ... Section 190.2 subdivision] (e)(3)." (Italics added.)
In addition, the instructions for the multiple murder special circumstance clarify the jury's verdicts on counts 1 and 2 were not based on any theories of imputed malice. The jury was correctly instructed that if it found "the defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." As a result, the jury had to find appellant was either the actual killer, or aided and abetted the commission of first degree murder with the intent to kill, to find the special circumstance true. (People v. Nunez and Satele, supra, 57 Cal.4th at p. 45; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.)
We conclude the jury's true finding on the multiple-murder special circumstance as to both counts 1 and 2 constituted a finding that appellant was either the actual killer or acted with intent to kill in aiding and abetting. Appellant's convictions for the first degree murders of Barry and Patreace were based on her own express malice and intent to kill, and were not under the natural and probable consequences doctrine stated in the uncharged conspiracy instructions.
As a result, the trial court's erroneous finding that appellant could not file a successive petition is not prejudicial because appellant is ineligible for resentencing as a matter of law.
DISPOSITION
The court's order of November 30, 2022, finding appellant's petition did not state a prima facie case, is affirmed.
[*] Before Hill, P. J., Levy, J. and DeSantos, J.