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agreeing with the analyses of Medrano and Larios on the point
Summary of this case from People v. AlcarezOpinion
F076838
03-16-2020
The PEOPLE, Plaintiff and Respondent, v. Martin SANCHEZ, Defendant and Appellant.
Cynthia Lee Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I and II of the Discussion.
Cynthia Lee Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
SNAUFFER, J. Martin Sanchez was convicted of attempted murder and assault with a firearm after his acquaintance fired a shotgun during a confrontation with other men. To prove attempted murder, the prosecutor argued Sanchez directly aided and abetted the shooter and, alternatively, that attempted murder was a natural and probable consequence of assault with a firearm.
On appeal, Sanchez initially raised two issues. First, the evidence insufficiently proved his guilt. Second, the natural and probable consequences theory violates his due process rights.
We asked the parties to provide supplemental briefing on a third issue. Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1), enacted after Sanchez's trial, conviction, and sentence, now prohibits imputing malice "to a person based solely on his or her participation in a crime." ( Pen. Code, § 188, subd. (a)(3).) In People v. Medrano (2019) 42 Cal.App.5th 1001, 256 Cal.Rptr.3d 200 ( Medrano ), review granted March 11, 2020, S259948, a different panel of this court held the bill eliminates "the natural and probable consequences doctrine [as] a viable theory of accomplice liability for attempted murder." ( Id. at p. 1013, 256 Cal.Rptr.3d 200.) We reject Sanchez's initial two claims, but agree with this court's holding in Medrano, supra , and must reverse the attempted murder conviction.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The Kern County District Attorney filed an information charging Sanchez with the following felonies stemming from an incident occurring on May 30, 2016: attempted murder (§ 187, subd. (a); count 1), with a weapon enhancement (§ 12022, subd. (a)(1), and assault with a firearm (§ 245, subd. (a)(2); count 2).
Trial Evidence
While Sanchez was at a local park with his family, he was confronted by four men concerning title to a vehicle. The men threatened Sanchez physically and challenged his masculinity. Sanchez, angered, left the park and drove his family home.
But Sanchez did not stay home. Instead, he picked up an acquaintance known as "poder negro[,] which translates to black power." Sanchez informed his acquaintance, the eventual shooter, about the earlier confrontation. The shooter entered the pickup with an "object ... covered" in a sunshade. Sanchez claimed he believed the shooter was concealing "a bat or something" but expressed no concern or reservation about the weapon. Sanchez, knowing a fight might result, drove back to the park.
Once at the park, Sanchez and the shooter approached the men involved in the earlier confrontation. The parties separated into two groups. The shooter and two men walked towards the river. The shooter eventually dropped the sunshade, revealed a shotgun, and fired towards the victim. As the victim ran, the shooter gave chase and fired once more. The victim was shot in the face and back.
After the gunshots, a witness in the park heard "tires screeching" and "burning rubber" as a pickup drove towards the shooter. The shooter entered the pickup, driven by Sanchez, and headed towards the exit. The witness believed their efforts were coordinated.
Instructions and Argument
The court, in part, instructed the jury as follows:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime.... Two, he or she may have aided and abetted a perpetrator, who directly committed the crime.
"A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.
"Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." ( CALCRIM No. 400.)
The court next instructed the jury on direct aiding and abetting principles. ( CALCRIM No. 401.)
The court then explained the natural and probable consequences doctrine:
"[A] person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
"To prove the defendant is guilty of attempted murder ... the People must prove that:
"1. The defendant is guilty of assault with a firearm ...;
"2. During the commission of assault with a firearm ... a coparticipant in that assault with a firearm ... committed the crime of attempted murder ...;
"AND
"3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of attempted murder ... was a natural and probable consequence of the commission of assault with a firearm ...." ( CALCRIM No. 402.)
The prosecutor argued both theories to the jury: "[Y]ou can find him guilty as an aider and abettor or you can find him guilty of wanting to do a crime that naturally leads to attempted murder."
Verdict and Sentence
Sanchez was found guilty as charged. The verdicts did not specify an attempted murder theory. He was sentenced to serve eight years in prison. DISCUSSION
We first address Sanchez's initial claims. We then discuss why Senate Bill No. 1437 (SB 1437) eliminates the natural and probable consequences doctrine as it applies to attempted murder. Finally, we analyze the resulting prejudice in this case.
See footnote *, ante .
III. The Natural and Probable Consequences Doctrine and Attempted Murder
As mentioned, we asked the parties to brief SB 1437 and its application to the issues in this case. We now conclude the natural and probable consequences doctrine cannot prove attempted murder.
"Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature." ( Chiu, supra , 59 Cal.4th at p. 164, 172 Cal.Rptr.3d 438, 325 P.3d 972.) " ‘ "[A]ttempted murder requires a specific intent to kill ...." ’ " ( People v. Gonzalez (2012) 54 Cal.4th 643, 664, 142 Cal.Rptr.3d 893, 278 P.3d 1242.) Intent to kill is express malice. ( Id. at p. 653, 142 Cal.Rptr.3d 893, 278 P.3d 1242 ; People v. Beck and Cruz (2019) 8 Cal.5th 548, 642, 256 Cal.Rptr.3d 1, 453 P.3d 1038.) "[I]mplied malice cannot support a conviction of" attempted murder. ( People v. Bland (2002) 28 Cal.4th 313, 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) The natural and probable consequences doctrine therefore imputes specific intent to kill in attempted murder convictions. (See People v. Prettyman (1996) 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 [" ‘We euphemistically may impute the actions of the perpetrator to the accomplice ....’ "].)
The issue, however, is that SB 1437 now prohibits imputing malice "to a person based solely on his or her participation in a crime." ( § 188, subd. (a)(3).) Because malice in the murder context is no longer imputable, the Legislature has eliminated the natural and probable consequences doctrine as a viable theory to prove attempted murder. ( Medrano, supra , 42 Cal.App.5th 1001, 1013, 256 Cal.Rptr.3d 200 ; People v. Larios (2019) 42 Cal.App.5th 956, 968, 256 Cal.Rptr.3d 223 ( Larios ), review granted Feb. 26, 2020, S259983.)
We choose not to restate verbatim the arguments presented in Medrano and Larios. Suffice it to say, we agree with the analyses therein. (See Medrano, supra , 42 Cal.App.5th at pp. 1012-1016, 256 Cal.Rptr.3d 200 [under statutory construction principles, malice imputing prohibition applies to attempted murder]; Larios, supra , 42 Cal.App.5th at pp. 964-968, 256 Cal.Rptr.3d 223 [same].) Both Medrano and Larios disagreed with the contrary conclusions reached in People v. Munoz (2019) 39 Cal.App.5th 738, 753-756, 252 Cal.Rptr.3d 456 ( Munoz ), review granted November 26, 2019, S258234, and People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1107, 252 Cal.Rptr.3d 33 ( Lopez ), review granted November 13, 2019, S258175. We similarly disagree with Munoz and Lopez.
We offer an additional reason we conclude SB 1437 applies to attempted murder. Limiting SB 1437's malice imputing prohibition to murder has the absurd consequence of incentivizing murder.
" ‘ "[A] fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences." ’ " ( People v. Cook (2015) 60 Cal.4th 922, 929-930, 183 Cal.Rptr.3d 502, 342 P.3d 404.) Munoz and Lopez hold the absence of "attempt" in section 188, subdivision (a)(3), means the Legislature intentionally excluded attempted murder from its malice imputing proscription. ( Munoz, supra , 39 Cal.App.5th at pp. 754-756, 252 Cal.Rptr.3d 456 ; Lopez, supra , 38 Cal.App.5th at pp. 1104-1105, 252 Cal.Rptr.3d 33.) If this position is correct, then a criminal defendant's liability turns inversely on the victim's fortunes.
Consider, for example, the context within which these issues often arise: Criminal street gangs. Assume a hypothetical defendant sets out with his gang confederates to assault his rivals; if successful in their criminal enterprise, he may be guilty of assault and battery crimes with criminal street gang and injury enhancements. (E.g., §§ 245, 186.22, 12022.7.) However, if things go awry and one or more confederates intends to kill, the defendant's increased liability hinges on the victim's life or death.
If the hypothetical victim survives, the defendant may face a potential life sentence in a prosecution for an unintended attempted murder under the natural and probable consequences doctrine. (E.g., § 12022.53.) If instead the victim is killed, the defendant and all gang confederates who disavow the intent to kill face prosecution only for the intended assault and any other natural and probable crime committed to facilitate the murder, but not the murder itself.
They may, of course, still be prosecuted as direct aiders and abettors, a much more difficult task of circumstantially proving the defendant's intent to kill.
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A sophisticated and sinister criminal street gang would understand that ensuring a victim's death reduces the gang's liability as a whole. While the pros and cons of eliminating the natural and probable consequences doctrine's application to murder are debatable, incentivizing murder is an undoubtedly absurd consequence of abrogating its applicability to murder but not attempted murder.
This absurd consequence is counterintuitive to the natural and probable consequences doctrine's deterrence rationale. (See Chiu, supra , 59 Cal.4th at p. 165, 172 Cal.Rptr.3d 438, 325 P.3d 972 ["doctrine serves the legitimate public policy concern of deterring aiders and abettors"].) Rather than reinforcing this deterrence rationale, limiting SB 1437's malice imputing prohibition to murder has the opposite effect of encouraging and sanctioning an " ‘in for a penny in for a pound’ " mentality. (See generally People v. Martinez (1982) 132 Cal.App.3d 119, 140, 183 Cal.Rptr. 256 (dis. opn. of Staniforth, J.).)
For these reasons, we conclude SB 1437 abrogates the natural and probable consequences doctrine in attempted murder prosecutions. This conclusion applies retroactively on direct appeal. ( Medrano, supra , 42 Cal.App.5th at pp. 1018-1019, 256 Cal.Rptr.3d 200 ; In re Estrada (1965) 63 Cal.2d 740, 744, 48 Cal.Rptr. 172, 408 P.2d 948.) Accordingly, Sanchez was prosecuted under both a valid direct aiding and abetting legal theory and an invalid legal theory because the natural and probable consequences doctrine is no longer a viable theory to prove attempted murder.
IV. The Resulting Prejudice Requires Reversal
"Because we now hold that a defendant cannot be convicted of [attempted] murder under the natural and probable consequences doctrine, we must determine whether giving the instructions here allowing the jury to so convict defendant was harmless error. When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] [Sanchez's attempted] murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that [he] directly aided and abetted the [attempted] murder." ( Chiu, supra , 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972.)
We presume the legally invalid theory infected the verdict because jurors are not " ‘ "equipped to determine whether a particular theory of conviction submitted to them is contrary to law ...." ’ " ( In re Martinez (2017) 3 Cal.5th 1216, 1224, 226 Cal.Rptr.3d 315, 407 P.3d 1.) We "must reverse the conviction[s] unless, after examining the entire cause, including the evidence, and considering all relevant circumstances," we determine the error is "harmless beyond a reasonable doubt." ( People v. Aledamat (2019) 8 Cal.5th 1, 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The court instructed the jury on both direct aiding and abetting and the natural and probable consequences doctrine as theories to prove attempted murder. The prosecutor urged both theories to the jury. The jury returned a general verdict finding Sanchez guilty of attempted murder.
After carefully reviewing the record, we conclude it does not provide any insight into the jury's deliberations and consequently the theory underlying the verdict—direct aiding and abetting or the natural and probable consequences doctrine—is impossible to surmise. Because the evidence is sufficient under either theory, we cannot find the resulting error harmless beyond a reasonable doubt and accordingly must reverse the conviction.
DISPOSITION
The attempted murder conviction is reversed. We remand for further proceedings consistent with this opinion.
WE CONCUR:
SMITH, Acting P.J.
MEEHAN, J.