Opinion
G059039
07-10-2020
In re MANUEL CARDENAS AMEZOLA On Habeas Corpus
David M. McKinney for Petitioner. Xavier Becerra, Attorney General, and Lynne G. McGinnis, Deputy Attorney General for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 01WF0782) OPINION Original proceedings; petition for writ of habeas corpus. Petition granted with directions. David M. McKinney for Petitioner. Xavier Becerra, Attorney General, and Lynne G. McGinnis, Deputy Attorney General for Respondent.
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Before O'Leary, P.J., Moore, J., and Goethals, J. --------
A jury convicted petitioner Manuel Cardenas Amezola of first degree murder (count 1; Pen. Code, § 187, subd. (a)) and street terrorism (count 2; Pen. Code, § 186.22, subd. (a).) The trial court sentenced petitioner to prison for 25 years to life. We affirmed the judgment on appeal (People v. Morfin et al. (July 22, 2004, G030390) [nonpub. opn.]) and refer to our opinion deciding the appeal for a recitation of the underlying facts and a full procedural history.
In the instant habeas corpus proceeding, petitioner seeks relief from his first degree murder conviction. The jury was instructed it could convict petitioner of first degree murder based on the natural and probable consequences doctrine, i.e., as an aider and abettor of a lesser target offense, of which the natural and probable consequence was murder. Under current law, an aider and abettor of a target offense cannot be convicted of first degree murder under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155, 166-167 (Chiu).) Chiu instructional error requires reversal or relief via habeas petition unless the reviewing court concludes "beyond a reasonable doubt that the jury actually relied on a legally valid theory in convicting the defendant of first degree murder." (In re Martinez (2017) 3 Cal.5th 1216, 1218.)
In its informal response, the Attorney General concedes Chiu error and that the error was not harmless. According to the Attorney General, it cannot be determined beyond a reasonable doubt whether the jury's verdict was based on a legally valid theory. The Attorney General does not oppose the granting of relief and has therefore waived issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn.7.)
We agree with the parties that Chiu error occurred in petitioner's case and that the error was not harmless. The appropriate remedy is to reverse the first degree murder conviction, "allowing the People to accept a reduction of the conviction to second degree murder or to retry the greater offense." (Chiu, supra, 59 Cal.4th at p. 168.)
The petition for writ of habeas corpus is granted. Petitioner's first degree murder conviction is vacated, and the matter is remanded to the superior court with directions to allow the People to accept a reduction of the conviction to second-degree murder or to retry petitioner for first degree murder based solely on valid theories. Following the People's election and at the conclusion of further proceedings, the superior court is directed to amend the abstract of judgment accordingly, and to send a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.