Opinion
G061334
03-27-2023
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL REYES, Defendant and Appellant.
Marilee Marshall for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Lynne G. McGinnis and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 05WF3659, Kimberly Menninger, Judge. Reversed and remanded with directions.
Marilee Marshall for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Lynne G. McGinnis and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Juan Manuel Reyes appeals an order denying his petition to vacate his convictions for attempted premeditated murder and to be resentenced pursuant to former Penal Code section 1170.95. He contends the trial court erred in finding he failed to make a prima facie showing for relief, and we agree. In securing appellant's convictions, the prosecution utilized the natural and probable consequences theory of aiding and abetting, which is no longer a valid theory of liability in attempted murder cases. Because the record of conviction does not preclude the possibility the jury relied on this invalid theory in finding appellant guilty, we reverse and remand for further proceedings.
Penal Code section 1170.95 was recently renumbered without substantive change as section 1172.6. (Stats. 2022, ch. 58, § 10.) All statutory references are to the Penal Code.
Guerrero suffered a similar fate, as did Manzanares, who was tried separately. Solano was only convicted of street terrorism, and Moreno and Garcia ended up pleading guilty to manslaughter. Appellant's sentence has since been modified to 50 years to life in prison with a statutorily mandated youth offender parole hearing after 25 years. (See § 3051.)
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Facts and Original Judgment
On December 1, 2005, appellant was a 17-year-old member of Hard Times, a criminal street gang that claims territory in Garden Grove, including Santiago High School. That day, appellant "hit up" 16-year-old Abraham Ortega at the school by asking him what gang he was in. When Ortega replied "Santa Nita," a rival outfit, appellant said, "Fuck Santa Nita, this is Hard Times." However, before anything further transpired, campus security showed up and defused the situation.
Five days later, shortly after school let out, the gangs crossed paths again. Santos Gomez arrived at the rear of the school with fellow Santa Nita members Alejandro Chavez and Danny Funes in tow. Funes crossed out some Hard Times graffiti that was on a wall and replaced it with "VSN," which stands for Varrio Santa Nita, and the words "now what?" It didn't take long before the group, which soon included Ortega, drew the attention of others.
Hard Times member Juan Manzanares spotted them first. He talked to Baltazar Moreno about the situation, and the two of them tracked down appellant, who was hanging out at the school quad with several other Hard Times members. Manzanares told appellant about the Santa Nita members, whom he derogatorily referred to as "chonklas," and said, "[W]e are going to get them." Manzanares, appellant and Moreno then set off to confront their rivals.
As they made their way to the back of the school, Manzanares phoned Jesus Guerrero several times. He told him where the Santa Nita members were and urged him to bring a gun to that location. But Manzanares didn't wait for Guerrero to arrive before instigating a confrontation. With appellant and Moreno at his side, he asked Ortega where he was from. Ortega said Santa Nita, and one of his companions made a gang sign with his hands. Moreno then yelled out, "Fuck Santa Nita, this is Hard Times," and with that, the two groups started fighting.
Santa Nita initially had a four-to-three advantage in terms of manpower, but Hard Times supporter Rene Garcia soon joined in to even the numbers. At one point during the fight, someone from Hard Times said something like, "Where the fuck is Abel?" Then Guerrero, whose nickname is "Evil," and fellow Hard Times member Armando Solano came running up to the scene. Guerrero was holding a gun, and upon seeing him, the four Santa Nita members retreated to Gomez's nearby jeep. As they started to drive away, Solano told Guerrero "not to do it here," but someone else yelled "dump on them." At that point, Guerrero fired several shots at the jeep, one of which struck and killed Ortega.
Gang expert Jonathan Wainwright testified to the rivalry between Hard Times and Santa Nita, describing them as turf-orientated Hispanic street gangs. He also described the criminal activities of Hard Times, explaining that gang members often commit acts of violence to induce fear and achieve respect in the community. Based on the circumstances of this case, Wainwright believed appellant acted in association with, and for the benefit of, Hard Times. In fact, he said the actions of appellant and his fellow gang members were indicative of "a classic gang hit-up which ultimately ended in a homicide."
Appellant, Guerrero and Solano were jointly tried for first degree premeditated murder, three counts of attempted premeditated murder, shooting at an occupied vehicle, shooting in a school zone, and active participation in a criminal street gang. (§§ 187, subd. (a), 189, subd. (a), 664, subd. (a), 246, 626.9, subd. (d), 186.22, subd. (a).) Since appellant was not the shooter, the prosecution theorized he was guilty as an aider and abettor. Consistent with that theory, the trial court instructed the jury it could find appellant guilty if he directly aided and abetted the shooting, or it was a natural and probable consequence of a lesser crime that appellant and his companions intended to commit.
Without specifying which theory it adopted, the jury convicted appellant as charged. It also found true various gang and firearm allegations, including the special circumstances allegation that appellant intentionally killed Ortega to further the criminal activities of his gang. (§190.2, subd. (a)(22).) The trial court sentenced appellant to 2 prison for life without the possibility of parole for his crimes.
Direct Appeals in This Court
In affirming appellant's convictions on appeal, we made two rulings that pertain to the present proceeding insofar as they shed light on appellant's mental state at the time of the shooting. First, we found the trial court's instruction on the special circumstances allegation necessarily required the jury to find appellant harbored the intent to kill. Although the instruction did not refer to appellant by name and merely required a finding "the defendant" intentionally killed Ortega, we determined the jurors reasonably would have known the instruction applied to appellant because they were instructed the word defendant applied to each of the three defendants who were on trial. (People v. Reyes (June 27, 2013, G039743 [nonpub. opn.] at p. 6 (Reyes I).) As to that issue, we also determined there was nothing in the trial court's instructions or the prosecutor's closing argument that would have led the jury to believe the natural and probable consequences theory applied to the special circumstances allegation. (Id. at pp. 6-7.)
Our second ruling regarding appellant's mental state came two years later, when we were asked to decide the applicability of People v. Chiu (2014) 59 Cal.4th 155 (Chiu) to his case. Chiu held a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences theory of aiding and abetting. (Id. at p. 166.) But Chiu also recognized that instructions on that theory will be deemed harmless if the reviewing court is convinced beyond a reasonable doubt the jury actually based its verdict on the still-valid theory of direct aiding and abetting. (Id. at p. 167.) We were so convinced after reviewing the record of appellant 's case. In light of the jury's finding on the special circumstances allegation that appellant acted with the intent to kill, and given the factual circumstances surrounding Ortega's murder, we upheld appellant 's conviction for first degree premediated murder on the basis that he directly aided and abetted Guerrero in committing that offense. (People v. Reyes (June 29, 2015, G049842) [nonpub. opn.] at pp. 5-8 (Reyes II).) We also declined appellant's invitation to extend the holding of Chiu to his convictions for attempted premeditated murder. We left those convictions intact based on People v. Favor (2012) 54 Cal.4th 868 (Favor), which sanctioned the use of the natural and probable consequences theory of aiding and abetting to obtain a conviction for that offense, and which was left undisturbed in Chiu. (Reyes II, supra, G049842, at p. 8, fn. 4.)
Habeas Proceedings in Federal Court
In reviewing appellant's claim for habeas relief, the Ninth Circuit Court of Appeals agreed that Favor precluded appellant from obtaining relief on his attempted murder convictions. (Reyes v. Madden (9th Cir. 2019) 780 Fed.Appx. 436, 441 [nonpub. opn.].) However, the Ninth Circuit had a different take on appellant's murder conviction. In a divided opinion, the court concluded the trial court 's instructions and the prosecutor's closing argument were too confusing - and the evidence of premeditation too slim - to conclude beyond a reasonable doubt that appellant was convicted of first degree premeditated murder on the valid theory of direct aiding and abetting, as opposed to the invalid theory of natural and probable consequences. (Id. at pp. 437-440.) Therefore, it ordered the district court to vacate appellant's conviction for that offense and allow the People to either retry him with proper instructions or have him resentenced for second degree murder. (Id. at p. 440.) Based on the parties' representations in the present case, neither option was pursued, so appellant has been released from the consequences of his conviction for first degree premeditated murder.
Appellant's Resentencing Petition
With his murder conviction out of the way, appellant retrained his sights on his attempted murder convictions. Based on recent changes to California's murder law, he brought a petition for vacatur and resentencing under former section 1170.95. However, the trial court determined that, in convicting appellant of attempted premeditated murder and finding the special circumstances allegation true, the jury necessarily determined he acted with the intent to kill, i.e., express malice. Therefore, the court found appellant was ineligible for resentencing and denied his petition for failure to make out a prima facie case for relief.
DISCUSSION
Appellant argues the trial court's ruling was erroneous because the record of conviction does not rule out the possibility he was convicted of attempted murder under the natural and probable consequences theory of aiding and abetting. We agree.
Appellant's argument is grounded in Senate Bill No. 1437 (SB 1437), which narrowed the scope of vicarious liability for the crime of murder. (Stats. 2018, ch. 1015, §§ 2-4.) As relevant here, SB 1437 eliminated the natural and probable consequences theory for that offense by modifying the homicide statutes to provide that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) However, SB 1437 did not affect the direct theory of aiding and abetting. As such, "[o]ne who directly aids and abets another who commits murder is . . . liable for murder under the new law just as he or she was liable under the old law." (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
SB 1437 also created a statutory procedure, codified in former section 1170.95, by which defendants who have been convicted of murder based on the natural and probable consequences theory of aiding and abetting may petition for vacatur and resentencing if their conduct did not constitute murder under the new law. If the defendant's petition makes a prima facie showing to that effect, the trial court must issue an order to show cause and, absent a concession by the prosecution, conduct an evidentiary hearing. (Former § 1170.95, subds. (c), (d).) At the hearing, the prosecution must prove beyond a reasonable doubt the defendant is ineligible for resentencing. (Id., subd. (d)(3).) Otherwise, the trial court must vacate his murder conviction and resentence him on the remaining counts.
As originally enacted in 2019, section 1170.95 applied only to defendants who were convicted of murder. (Former § 1170.95, subd. (a).) But effective January 1, 2022, Senate Bill No. 775 amended the statute to include defendants who were convicted of attempted murder under the natural and probable consequences theory of aiding and abetting. (Stats. 2021, ch. 551.) That amendment applies to appellant's case since the trial court's order denying his resentencing petition is not yet final for purposes of direct appellate review. (People v. Porter (2022) 73 Cal.App.5th 644, 652.) We therefore proceed to the question of whether the trial court erred in denying appellant's petition at the prima face stage of the proceedings. Because that is a purely legal question, our review is de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court made clear the bar for establishing a prima facie case for resentencing is very low, and the trial court's role in determining whether that bar has been cleared in a given case is quite limited. (Id. at pp. 970-972.) While the trial court may consider the underlying record of conviction, it must take petitioner's factual allegations as true. (Ibid.) The court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.) Unless the record of conviction proves the defendant is ineligible for resentencing as a matter of law, the court must issue an order to show cause and conduct an evidentiary hearing on his eligibility for resentencing. (Id. at p. 971.)
To establish legal ineligibility for resentencing, the record must negate the possibility the defendant was convicted under a now-invalid theory of vicarious liability. (People v. Langi (2022) 73 Cal.App.5th 972, 984.) In the context of this case, that would require proof the jury actually convicted appellant based on the valid theory of direct aiding and abetting, as opposed to the invalid theory of natural and probable consequences. (See People v. Pacheco (2022) 76 Cal.App.5th 118, 124, review granted May 18, 2022, S274102.)
Generally speaking, the record of conviction includes prior appellate opinions in that case. (Lewis, supra, 11 Cal.5th at p. 972.) However, Lewis cautioned such opinions "'might not supply all the answers'" in determining whether the petitioner is eligible for resentencing. (Ibid., quoting People v Woodell (1998) 17 Cal.4th 448, 457.) In fact, the current statutory scheme suggests that beyond the recitation of the procedural history of the case, prior opinions have limited relevance with respect to that issue. (See § 1172.6, subd. (d)(3); People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9; People v. Flores (2022) 76 Cal.App.5th 974, 988.)
That brings us to the first aspect of appellant's argument. He contends the trial court placed too much stock in our opinion in Reyes II in adjudicating his petition. The record does show that the trial court discussed Reyes II, and even quoted passages from it, at the hearing on appellant's petition. But the court also made it clear it had independently reviewed several other aspects of the record, including the jury's instructions and its verdict. Indeed, the court ended up citing the jury's findings on the special circumstances allegation and the attempted murder charges as the primary basis for its decision. That being the case, its ruling is not flawed from a procedural perspective.
There is a problem with the substance of the court's decision, though. It ruled appellant was ineligible for resentencing because the jury's verdict proved he acted with the intent to kill. But standing alone, murderous intent does not establish ineligibility under the statutory framework. (People v. Pacheco, supra, 76 Cal.App.5th at p. 128.) In order for appellant to be ineligible for resentencing at the prima facie stage of the proceedings, the record of conviction would have to conclusively establish he "'had the requisite intent'" and "'engaged in the requisite acts'" to be guilty of attempted murder under current law, i.e., under the direct theory of aiding and abetting. (Ibid., quoting People v. Duchine (2021) 60 Cal.App.5th 798, 815.) That would require proof the jury found that he both intended to kill the attempted murder victims and that he actively encouraged or assisted the shooter to achieve that aim. (Ibid.; see generally Chiu, supra, 59 Cal.4th at p. 167 [direct aiding and abetting has both a mens rea requirement and a separate actus reus requirement].)
Without weighing the evidence, the record of appellant's conviction is devoid of such proof. As we explained in Reyes I, the jury did find appellant wanted to kill the people that Guerrero shot at. But there is nothing in the record that proves the jury also found appellant actively encouraged or assisted Guerrero in connection with the shooting, which is a necessary prerequisite for establishing his liability as a direct aider and abettor. Because the jury could have convicted appellant under the natural and probable consequences theory of attempted premeditated murder, it was error for the trial court to deny his petition at the prima facie stage. (People v. Pacheco, supra, 76 Cal.App.5th at p. 128.)
This conclusion is not at odds with our holding in Reyes II. In that opinion, we held it was harmless error to instruct on the natural and probable consequences theory in large part because the underlying facts of the case indicated that appellant directly aided and abetted the shooter. (Reyes II, supra, G049842, at p. 7.) But under Lewis, judicial factfinding is not part of the equation at the prima facie stage of the resentencing process. (Lewis, supra, 11 Cal.5th at pp. 971-972.) Rather, the trial court's scope of review is limited to the face of the documents contained in the record of conviction. Because those documents do not establish appellant's ineligibility for resentencing as a matter of law, the trial court erred in summarily denying his petition for relief. (People v. Pacheco, supra, 76 Cal.App.5th at p. 128.)
DISPOSITION
The trial court's order denying appellant's petition for resentencing is reversed, and the matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: O'LEARY, P. J. DELANEY, J.