Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA053907, John V. Meigs, Judge.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Carlos Miguel Iraheta, appeals the judgment entered following his conviction, by jury trial, for second degree murder with firearm use findings (Pen. Code, §§ 187, subd. (a), 12022.53).
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is reversed.
FACTUAL BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established the following.
1. Prosecution evidence.
On December 20, 2002, a man stared hard at Noe Martinez as he stood in line at an Inglewood liquor store. Two hours later, Martinez passed the liquor store while riding in his car and saw the same man standing outside. The man was talking to some people in a car being driven by defendant Iraheta. After the man pointed at Martinez, Iraheta began following Martinez’s car. Martinez became concerned and asked his friend Michael Orozco, who was driving, to stop at the side of the road. Orozco did and Martinez got out of the car. Iraheta pulled up next to Martinez’s car, produced a revolver, reached across the front passenger seat and fired one shot out the window. The shot hit Orozco in the neck, killing him.
The police apprehended Iraheta shortly thereafter. A revolver found in Iraheta’s car had fired the fatal bullet.
2. Defense evidence.
Iraheta testified he was not a gang member, but he carried a handgun for protection because he had been beaten up earlier that year. On the day of the incident, Iraheta was out driving with his girlfriend and his brothers when he stopped at the liquor store to see his friend, Herman. Herman said the occupants of a passing white car had given him problems. Herman did not, however, tell Iraheta to shoot the people in the white car. After Iraheta left the liquor store, he saw the white car stopped in the middle of the street in front of him. Martinez was standing next to the car. As Iraheta slowly maneuvered around the white car, one of his brothers said, “[K]eep moving; he’s got a gun.” Orozco was sitting in the driver’s seat with something in his hand, which Iraheta thought was a small handgun. Iraheta reached for his own gun, fired a single shot out the passenger-side front window of his car, and sped away.
Although there was testimony from a number of other defense witnesses, including Iraheta’s girlfriend and his brothers, none of it shed any further light on what occurred at the exact moment of the shooting. However, the general tenor of this other testimony contradicted the prosecution theory that Iraheta had aggressively gone after the white car in order to assault its occupants.
PROCEDURAL BACKGROUND
On December 12, 2004, Iraheta’s appellate counsel filed an opening brief contending the trial court had erred by giving inadequate jury instructions on imperfect self-defense and by coercing a verdict from the jury. The Attorney General filed a responsive brief, but Iraheta’s attorney did not file a reply brief or ask for oral argument. On January 26, 2006, this court issued an unpublished opinion rejecting Iraheta’s contentions and affirming his conviction. There was no petition for rehearing or petition seeking review by the California Supreme Court. We issued the remittitur on March 30, 2006.
On February 6, 2007, this court received a letter from Iraheta. He inquired about the status of his case, indicating that his retained appellate attorney, who had agreed to file a reply brief and present oral argument, had not been in touch with him. On April 16, this court, acting sua sponte, issued an order recalling the remittitur, vacating the opinion, reinstating the appeal and directing the appointment of new counsel on appeal. Our order stated: “[I]t appears that appellant’s retained counsel on appeal... abandoned the representation of [appellant] prior to the conclusion of the appeal by failing to communicate with [appellant] or participate in the litigation of the appeal after the filing of the appellant’s opening brief.”
Newly appointed appellate counsel filed a new opening brief raising different issues than the ones briefed by Iraheta’s previous attorney. On April 30, 2008, this court affirmed the conviction. The Supreme Court subsequently granted Iraheta’s petition for review and, on June 10, 2009, transferred the case back to us with directions to vacate our decision and reconsider the cause in light of People v. Chun (2009) 45 Cal.4th 1172. We have received supplemental briefing from the parties and we now reverse Iraheta’s conviction.
CONTENTIONS
1. The Attorney General contends the remittitur should not have been recalled.
2. Iraheta contends he was improperly convicted of second degree felony murder.
DISCUSSION
1. Remittitur was not improvidently recalled.
The Attorney General contends the appeal should be dismissed because recall of the remittitur was improvidently granted. We disagree.
“The legal principles applicable to the recall of remittiturs are fairly well settled. ‘Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error.... [A] decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error.’ [Citation.] ‘[W]hile the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued, a mistake or an improvident act which results in prejudicial error or miscarriage of justice may nevertheless be corrected upon a recall of remittitur.’ ” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 165; see Rowland v. Kreyenhagen (1864) 24 Cal. 52, 60 [remittitur properly recalled if “the order or judgment had been irregularly made; that is, made upon a false suggestion, or under a mistake as to the facts of the case”].)
Thus, in People v. Hickok (1949) 92 Cal.App.2d 539, the remittitur was recalled to save a criminal appeal that had been dismissed when confusion between newly retained and former counsel led to a failure to file the opening brief: “[T]he appellant, the real party in interest, was not at fault. He was incarcerated and was doing all that he could to protect his rights, and thought that he had done so.... In a proper case the court... has power to recall a remittitur inadvertently or improperly issued. [Former California Rules of Court, r]ule 25(d) provides that ‘A remittitur may be recalled by order of the reviewing court on its own motion, on motion after notice supported by affidavits, or on stipulation setting forth facts which would justify the granting of a motion.’ This is an inherent power of the court and was recognized long before the above rule was adopted. [Citations.] Under these cases, and others that could be cited, and under the rule, one of the grounds for exercising the power is that the court has been induced to decide the case under a misapprehension of the true facts. That rule is applicable here.” (Id. at pp. 540-541.) The current version of rule 25(d) is California Rules of Court, rule 8.272(c)(2), which provides: “On a party’s or its own motion or on stipulation, and for good cause, the court may stay a remittitur’s issuance for a reasonable period or order its recall.”
In the case at bar, this court was operating under the mistaken belief Iraheta was being actively represented by counsel when, in fact, he was not. Iraheta’s attorney filed an opening brief, but then failed to carry out promises to file a reply brief and appear for oral argument. Subsequently, the attorney failed to inform Iraheta his appeal had been denied. Our docket indicates the clerk of the court twice sent Iraheta’s attorney a copy of our former opinion in this matter, and twice the opinion was returned to the clerk as undeliverable. These facts established good cause for recalling the remittitur.
Hence, we reject the Attorney General’s contention that recall of the remittitur was improvidently granted.
2. Iraheta was improperly convicted of second degree felony murder.
Iraheta contends his conviction must be reversed because the jury was improperly instructed on second degree felony murder and the error was prejudicial. This claim is meritorious.
Iraheta also contends the entire concept of second degree felony murder violates both due process and the power of the Legislature to establish crimes and punishments. But Iraheta acknowledges that, despite continued criticism of the second degree felony-murder doctrine, it remains the law of the land in California (see People v. Robertson (2004) 34 Cal.4th 156, 174-175 (conc. opn. of Moreno, J.)), which we are required to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
The jury was instructed on three possible theories of second degree murder: (1) an intentional killing where the evidence was insufficient to prove premeditation and deliberation; (2) an unintentional killing resulting from a dangerous act performed with conscious disregard for human life; and, (3) second degree felony murder based on a killing committed while violating section 246 (shooting at an occupied motor vehicle). When Iraheta’s case was initially before this court, he claimed his conviction had to be reversed because the felony-murder instruction should have been excluded by the merger doctrine set forth in People v. Ireland (1969) 70 Cal.2d 522. We rejected this claim, citing the analyses in People v. Hansen (1994) 9 Cal.4th 300, People v. Robertson, supra, 34 Cal.4th 156, and People v. Randle (2005) 35 Cal.4th 987.
In People v. Chun, supra, 45 Cal.4th 1172, our Supreme Court overruled Hansen, Robertson, and Randle. Chun reviewed the history of the Ireland merger doctrine and held: “When the underlying felony is assaultive in nature... we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An ‘assaultive’ felony is one that involves a threat of immediate violent injury. [Citation.] In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive.... This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive. [¶] This conclusion is also consistent with our repeatedly stated view that the felony-murder rule should not be extended beyond its required application. [Citation.] We do not have to decide at this point exactly what felonies are assaultive in nature, and hence may not form the basis of a felony-murder instruction, and which are inherently collateral to the resulting homicide and do not merge. But shooting at an occupied vehicle under section 246 is assaultive in nature and hence cannot serve as the underlying felony for purposes of the felony-murder rule.” (People v. Chun, supra, at p. 1200, fn. omitted.)
The Attorney General acknowledges that, based on Chun, the trial court erred by instructing Iraheta’s jury on felony murder based on the crime of shooting at an occupied vehicle. However, citing People v. Hach (2009) 176 Cal.App.4th 1450, and the ultimate result in Chun, the Attorney General argues the error was harmless because the jury had been properly instructed as to implied malice murder. We disagree.
In Hach, the defendant found his common law wife alone with her new lover in a car and fired a single gunshot, killing the lover. Chun was decided after briefing in Hach was complete. Hach explained the harmless error analysis in Chun:
“In determining whether the instructional error was prejudicial, the Chun court relied on a test set forth by Justice Scalia in a concurring opinion in California v. Roy (1996) 519 U.S. 2 [136 L.E.2d 266].) In Roy, the error was permitting a defendant to be convicted of a crime as an aider and abettor solely due to his knowledge of the crime, without requiring a finding he shared the perpetrator’s intent. The Chun court found this error similar to that in the case at hand, where the defendant could be convicted of felony murder without requiring a finding of a valid theory of malice. [Citation.] In his concurring opinion in Roy, Justice Scalia stated the test for prejudice thus: ‘The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.’ [Citation.] The Chun court found this test worked well for an improper instruction on second degree felony murder. ‘If other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for conscious-disregard-for-life malice, the erroneous felony-murder instruction was harmless.’ [Citation.]
“Applying this test, the court found any juror who relied on felony murder ‘necessarily found that defendant willfully shot at an occupied vehicle.’ [Citation.] The undisputed evidence was that three people in the car were hit by multiple gunshots fired at close range. The Chun court concluded: ‘No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life – which is a valid theory of malice. In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice. The error in instructing the jury on felony murder was, by itself, harmless beyond a reasonable doubt.’ [Citation.]” (People v. Hach, supra, 176 Cal.App.4th at pp. 1456-1457.)
Hach then applied this analysis to its defendant: “We find the harmless error analysis of Chun applicable. To find defendant guilty of second degree felony murder, a juror must have found he willfully shot at an occupied vehicle. Indeed, we know the jury so found because, unlike in Chun, the jury convicted defendant of violating section 246. The factual distinctions from Chun are not significant. Defendant was only 10 feet away from the car and knew there were two people in it. He fired an SKS rifle directly into the car. As in Chun, the jury must have found defendant committed an act that is dangerous to life, knew of the danger, and acted with conscious disregard for life. In other words, the jury found defendant acted with implied malice. Accordingly, as in Chun, the error in instructing on second degree felony murder was harmless beyond a reasonable doubt.” (People v. Hach, supra, 176 Cal.App.4th at p. 1457.)
The Attorney General contends that here, as in both Chun and Hach, the error in instructing on second degree felony murder was harmless beyond a reasonable doubt: “Appellant, who was an army reservist trained in firearms, shot his unsuspecting victim in the neck at a range of three feet.... [T]he jury was properly instructed regarding, inter alia, implied malice murder. Appellant, who testified on his own behalf, claimed self-defense, primarily on an unreasonable self-defense theory.... Thus, the jury was instructed that if appellant acted ‘in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,’ then ‘he is not guilty of murder.’ [¶] As in Chun and Hach, under these facts, even if the jury had relied on a theory that appellant shot at the car (or near the car) and not directly at Orozco, appellant clearly committed an act that is dangerous to life, knew of the danger, and acted with conscious disregard for life. That is, he acted with implied malice under a ‘depraved heart’ theory. Indeed, even taking the most strained interpretation of appellant’s own version of events, [i.e., that] he intended to scare Orozco by firing a gun at or around the car at close range in some sort of ‘self-defense,’ he obviously consciously committed an act dangerous to human life. Moreover, in finding appellant guilty of murder, the jury even rejected this, his only defense. Thus, under the facts of this case, any instructional error was harmless beyond a reasonable doubt.”
But the Attorney General has overlooked the following significant aspect of the Hach opinion: “One distinction from Chun is that the jury in this case was presented with voluntary manslaughter. Therefore, we consider whether the error in instructing on second degree felony murder was not harmless because its effect was to remove from the case defendant's defense of heat of passion provocation to reduce the killing to manslaughter. In denying defendant’s motion for a new trial, the trial court noted the ‘problem’ with felony murder is that it does not permit mitigation to manslaughter. [¶] Here the trial court instructed the jury on heat of passion manslaughter. The defense argued the killing was provoked by heat of passion. The jury, however, was instructed: ‘Provocation does not apply to a prosecution under a theory of felony murder.’ [¶] We find defendant’s heat of passion defense does not render the instruction on felony murder prejudicial because the facts of this case are inadequate to reduce the killing to manslaughter as a matter of law.” (People v. Hach, supra, 176 Cal.App.4th at p. 1458.)
“The felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder.... [¶] Because malice has been eliminated as an element, circumstances that may serve to reduce the crime from murder to manslaughter, such as provocation or imperfect self-defense, are not relevant in the case of a felony murder. [Citations.]” (People v. Robertson, supra, 34 Cal.4th at p. 165; see People v. Seaton (2001) 26 Cal.4th 598, 665 [“under the felony-murder rule, a killing in the commission of certain felonies specified in section 189 is first degree murder, not manslaughter, even if the killer acts in unreasonable self-defense”]; People v. Tabios (1998) 67 Cal.App.4th 1, 9 [“defendants’ claim of imperfect self-defense is irrelevant to the charge of second degree felony murder”].)
Hach concluded the evidence showed, as a matter of law, no basis for a heat of passion defense because, although “there was quarreling and defendant’s passion was aroused,... this provocation occurred over several days,” and the defendant “had sufficient time to cool down....” (People v. Hach, supra, 176 Cal.App.4th at pp. 1458, 1459.)
But in Iraheta’s case, there is no claim his imperfect self-defense theory was invalid as a matter of law. And, contrary to the situation in Hach, the misinstruction of Iraheta’s jury could well have led it to completely disregard Iraheta’s imperfect self-defense testimony. That is because Iraheta’s jury was instructed: “To establish that a killing is murder other than felony-murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.” Moreover, the prosecutor told the jury during closing argument: “[A]n actual but unreasonable belief in the need to use self-defense will bring a normal murder down to voluntary manslaughter, but it will not bring a second degree felony murder down to manslaughter. So if you determine that he intended to shoot at that vehicle... then it’s a second-degree murder because the actual but unreasonable belief in self-defense doesn’t apply to this type of murder.”
Hence, we agree with Iraheta’s assertion “it simply cannot be said beyond a reasonable doubt that the jury verdict rejected [his] claim of imperfect self-defense. Appellant presented his defense; the jury simply never had to consider it. As such, this Court cannot determine beyond a reasonable doubt that the jury made the requisite findings to render the error harmless.” (See People v. Chun, supra, 45 Cal.4th at p. 1204 [where one of multiple theories is legally invalid, error is harmless “ ‘only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well’ ”].)
DISPOSITION
The judgment is reversed.
We concur: CROSKEY, J., ALDRICH, J.