Opinion
A149484
01-16-2020
In re LAVAR COLEMAN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C151836B)
Petitioner Lavar Coleman seeks reversal of one of two first degree murder convictions, asserting prejudicial instructional error. He argues that, in violation of People v. Chiu (2014) 59 Cal.4th 155 (Chiu), decided after the trial in this case, the jury was improperly allowed to convict him of first degree premeditated murder under the natural and probable consequences doctrine. The Attorney General argues there was no Chiu instructional error and any error was harmless beyond a reasonable doubt. We conclude the instructions here violated Chiu, and there was insufficient evidence to support a verdict that Coleman harbored the specific intent to kill one of the victims. Accordingly, we vacate one of the convictions for first degree murder and remand the case to the trial court. On remand the district attorney shall be afforded the opportunity to retry Coleman for first degree murder on the basis that he personally harbored an intent to kill the victim or alternatively the trial court shall enter judgment reflecting a conviction of second degree murder and sentence Coleman accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2007 Trial Court Proceedings
Following a joint trial in September and October 2007, Coleman and his codefendant Willie Louis Thompson were convicted of the first degree murders of Dante Wallace and Ronnell Hodge. (People v. Thompson (Sept. 29, 2010; A120613, A123062) [nonpub. opn.] (Thompson).) Our factual statement is taken from our opinion in Coleman and Thompson's direct appeals at pages two through ten, and we set forth only those facts necessary to resolve this proceeding:
In the early morning of April 25, 2004, Wallace and Hodge were killed in a shooting incident on 65th Avenue between 14th Street (International Boulevard) and Eastlawn Street in an area of Oakland referred to as " 'The Village.' " At that time the area was known for " 'a lot of dope traffic,' " and gunfire was heard in the area " 'a lot,' " at least three or four times a week.
Thompson, Coleman (known as Moonie), Wallace (known as DT), Hodge, and Matthew Cobbs had grown up together and were supposedly friends. By the time of the 2004 shooting, the men were in their late twenties and mid-thirties. Both defendants were still friends with Wallace but Coleman was no longer talking to Hodge. Cobbs considered Hodge to be his best friend. None of the men lived in The Village but Wallace's parents lived in The Village in an apartment located on Eastlawn Street. During the six months preceding the murders, Thompson, Coleman, and Cobbs would hang out in The Village on a daily basis, but it had been two or three years since Wallace and Hodge had been seen there regularly.
Cobbs was the only witness to the shooting incident who testified at the trial. He arrived in The Village at about 1:30 a.m. He had his .357-caliber revolver concealed in his waistband. Cobbs explained that he carried a gun in The Village for his own protection (he had been shot in 2003) and because it was necessary to be armed when he sold drugs. At the time of the shooting, Cobbs owned a .22-caliber rifle. Approximately 10 days before the shooting, his girlfriend gave his rifle to Coleman to hold for Cobbs. He also hid guns around The Village so he would not be found armed if he was stopped and searched by the police. He had also seen both defendants armed in The Village on numerous occasions and had seen both men stash guns around The Village. At the time, Cobbs consumed alcohol every day. That evening he had consumed about two or three 40-ounce beers, but he had a high tolerance for alcohol. Cobbs saw defendants and others drinking on 65th Avenue. According to Cobbs, Thompson was " 'not very much' " intoxicated, and both defendants were " 'normal.' "
Cobbs asked Coleman for a ride to a liquor store. Cobbs was in the back seat and Coleman and Thompson were in the front seat. The three men bought the largest bottle of gin they could find to share with the people back at The Village. On the trip to and from the liquor store, Coleman and Thompson started talking mostly about Hodge and Wallace. Coleman said Hodge was " 'not cool,' " and asked Cobbs why he still " 'mess[ed] around' " with Hodge. Cobbs replied Hodge was cool to him, and Coleman, in a serious voice, repeated Hodge " 'just ain't cool.' " Thompson then asked, " 'what's up with DT,' " referring to Wallace. Cobbs replied Wallace was cool too, but both Thompson and Coleman responded " 'they not cool.' " Coleman asked Cobbs why he still dealt with Wallace and Hodge. Coleman also asked Cobbs to call Hodge and ask him to come out that night if he was a " 'homeboy,' " but Cobbs refused to do so. Thompson and Coleman were not joking, and they seemed angry based on the tone of their voices and how they were speaking.
When the men arrived back at 65th Avenue, Cobbs saw Hodge on the sidewalk. Wallace was also there, a few feet away from Hodge, kneeling and talking to someone in a car. Coleman said, " 'Ooh.' " They drove past Hodge, made a U-turn, and parked on the same side of the street a few feet behind Hodge. Thompson and Coleman got out of the car " 'fast' " and headed in separate directions. Coleman went to a nearby parking lot and Thompson crossed the street and went into some bushes. Cobbs believed both men were retrieving stashed weapons based on the way they had been talking in the car and how they acted when they got out.
" 'Right after' " Thompson and Coleman left the car and walked away, Cobbs approached Hodge, shook his hand and hugged him. As he broke off the hug, Cobbs gave Hodge his .357. Cobbs attempted to conceal the gun by the way he was standing near Hodge. Thompson and Coleman had already " 'walked off.'["] Hodge put the gun in his waistband. Cobbs said, " 'What's up? What you doing out here? These [] tripping.' " Hodge replied, " 'I know.' " Cobbs was trying to warn Hodge that defendants were " 'tripping off' " that Hodge was out there. Cobbs told Hodge he should leave, and the two men started walking towards Hodge's car. Cobbs was approximately two feet behind Hodge. Wallace was walking approximately 8 to 10 feet in front of Cobbs and Hodge.
Racial slur omitted.
Cobbs saw Thompson walk from the bushes into the middle of the street in front of him and Hodge. Thompson had his hands in his pockets. Cobbs turned around and saw Coleman a few feet behind him on the sidewalk. Coleman had Cobbs' rifle under his arm. As the men walked, Cobbs tried to position himself between Coleman and Hodge so that nothing would happen to Hodge. Meanwhile, Thompson and Wallace were arguing and cussing loudly at each other. Coleman did not participate in the argument between Thompson and Wallace. However, Coleman pulled and lightly shoved Cobbs' right shoulder backwards two or three times, telling Cobbs to get out of the way. Cobbs replied, " 'No,' " because he did not want anything to happen to Hodge. Cobbs finally moved out of the way when the group reached Eastlawn Street.
Another witness, who lived on 65th Avenue near East 14th Street, testified that just before the gunfire, she heard loud talking from the sidewalk outside her second-floor living room window. She saw Thompson walking with two men on the sidewalk underneath her window. Thompson did not say anything, but he repeatedly bumped his chest into the shoulder of one of the men, then jumped back and put his hands up. In response to the repeated bumping, one of the men repeatedly said, " 'Man, we don't want no problems. We don't want no trouble.' " As the men continued walking towards Eastlawn Street, the two men continued to beg to be left alone. The witness called 911 and told the operator " 'someone was fixing to get killed,' " and then hung up. Almost immediately thereafter, the witness heard more than five gunshots that sounded all the same from the direction of Eastlawn. When the 911 operator called back, the witness said, " 'it was too late. They were dead.' " As the witness was talking to the 911 operator, she saw two men " 'run out the side parking lot and jump in a white car.' " The witness could not identify the men.
At some point, Hodge was on a little walkway approximately 20 feet from the sidewalk. Cobbs stayed on the sidewalk, and Wallace went out into the street within two or three feet of Thompson. Wallace was a large man, weighing 250 to 300 pounds. He said something like, " 'Let's get them up, let's fight,' " and " 'I'm done. Let's just do this.' " Wallace did not raise his fists or have any weapons. Thompson's immediate reaction was to pull a handgun from his pocket and fire five or six shots at Wallace from two to three feet away. Cobbs saw Wallace's head " 'ducking forward' " while Wallace was " 'bending at the waist,' " but Cobbs did not see Wallace actually fall to the street. As Thompson fired at Wallace, Cobbs crouched behind a car. Cobbs then heard more gunshots coming from behind him.
Out of his peripheral vision, Cobbs saw Coleman aim his rifle and begin firing in the direction where Cobbs last saw Hodge in the walkway. Cobbs heard the rifle expend its entire capacity in one sequence. Cobbs also heard six rounds from the .357 he had earlier given to Hodge. Cobbs thought the first 10 shots were from Thompson's gun, which sounded like a .9 millimeter pistol. Thompson's gun was fired at the same time as Coleman's rifle, and right before Hodge fired the .357. After Thompson stopped shooting at Wallace, Thompson walked to the sidewalk and fired up the walkway in Hodge's direction. The .357 fired before Thompson moved to the sidewalk and started firing in Hodge's direction. Cobbs heard Thompson fire his gun first, and the last gun he heard was the .357. Coleman left one or two seconds before Thompson fired his last shot and fled. Wallace was lying in the street. Hodge left a blood trail from the walkway around the corner to Eastlawn Street in front of Wallace's parents' apartment.
Wallace's parents testified concerning the gunfire in the street that they heard from inside their second-floor apartment. Wallace's father heard gunshots that sounded like they came from at least two different guns. The first gunshots " 'sounded heavier' " or " 'louder,' " than the later gunshots. He was sure he heard different caliber guns going off at the same time with no significant pauses. The gunshots might have been fired from a .9-millimeter pistol or revolver, and more gunshots could have been from a .22-caliber rifle, which came after the other louder noises. He was sure the quieter gun was the last gun he heard, although the shots were " 'right behind each other.' " Wallace's mother heard " 'a whole bunch' " of " 'real loud' " gunshots, in rapid succession, for 15 seconds or a minute or two, with no delays or breaks. Ten or 15 minutes later, while Wallace's father was still in his apartment, he heard Hodge calling to him from some bushes directly below one of the bedroom windows. Hodge said, " 'Help me, . . . . They got me,' " and " 'call my mother.' " Wallace's mother heard Hodge say, " 'They got me, they got me, Moonie got me,' " and " 'call my mom.' " When Wallace's father was at Hodge's side, Hodge said, " 'I'm dying,' " " 'They got me,' " and he had been shot. Hodge also said he was sorry " 'for bringing all this stuff round to your house.' " Wallace was found lying on 65th Avenue around the corner from his parents' apartment. He appeared to have a gunshot wound to his head and other gunshot wounds to his upper body. Within 75 feet of where Wallace was found, the police recovered eight .22-caliber shell casings, and 15 .9-millimeter casings.
A police firearms expert testified a gunshot from a .22-caliber rifle sounds like a " 'pop,' ", and not particularly loud, a gunshot from a .9-millimeter pistol would be loud but sound like a crack breaking the sound barrier, and a gunshot from a .357-caliber revolver would be the " 'heaviest' " of the three gunshots and would sound like a boom instead of a crack sound. Cobbs also testified that of the three guns, the .357 was the " 'loudest gun.' " --------
Hodge died of his wounds that morning. An autopsy report indicated he was shot four times, and died due to blood loss from a gunshot wound. A .22 caliber bullet was recovered from his abdomen. Wallace survived for a time. He had multiple gunshot wounds to his arms, shoulder, and back, and a graze injury caused by a bullet plowing through the top left side of his head just above the ear. Bullets perforated his right lower lung and hit the right side of his liver. No bullets were recovered from Wallace's body. While he was in the hospital recovering from his wounds, he died when a blood clot traveled from his leg to his lung. The autopsy pathologist was of the opinion that the gunshot wounds set in motion a series of events resulting in a pulmonary thromboembolism; in other words, "but for those gunshot wounds, the blood clot would not have occurred."
On April 27, 2004, police stopped a vehicle in The Village. The front seat passenger discarded a bag as he fled and avoided capture by the police. Inside the bag, the police found a .9-millimeter pistol and a .22-caliber rifle, both with clips. Cobbs identified the rifle as his. The guns matched both the revolver casings and rifle casings found after the shootings and the rifle bullet recovered from Hodge. A few weeks after the shooting, Cobbs' .357 containing six expended cartridges was found on the roof of the apartment building where Wallace's parents lived on Eastlawn Street. Cobbs denied tossing his .357 on the roof.
Defendants presented no witnesses; they offered into evidence several photographs depicting evidence found at the crime scene, including the bullet casings, a diagram of the crime scene on which an evidence technician had marked the location of the bullet casings found in the street, and a diagram of the crime scene on which Cobbs had marked the location of Thompson and Coleman, both victims, and himself, " 'right before the shots go off.' " Defendants' primary defense was that credible evidence would support findings that defendants' " 'trash talk' " about the victims was not evidence of a conspiracy or intent to kill the victims. Defendants had armed themselves with guns only after they saw Cobbs hand his .357 to Hodge. Although defendants followed the victims as they walked on 65th Avenue towards Eastlawn Street, where Thompson had a verbal altercation with Wallace, Hodge overreacted to the situation by firing the .357 first. Defendants argued they were entitled to respond in justifiable self-defense.
The jury found each defendant guilty of two first degree murders and possession of a firearm by a felon. The jury also found that (a) during the murder of Wallace, Thompson personally used and intentionally discharged his firearm, which caused great bodily injury and the death of Wallace, and Coleman was armed with a firearm; and (b) during the murder of Hodge, Coleman personally used and intentionally discharged his firearm, which proximately caused great bodily injury and the death of Hodge, and although Thompson personally used and discharged his firearm, the discharge did not proximately cause great bodily injury or the death of Hodge.
Coleman was sentenced to consecutive terms of 25 years to life for first degree murder (two counts), plus consecutive terms of 25 years to life and one year for related firearm use enhancements, plus a determinate term of three years for possession of a firearm by a felon.
II. 2010 Direct Appeal
On direct appeal in 2010, this court affirmed Coleman's first degree murder of Wallace. We specifically found unavailing Coleman's argument that there was no evidence from which the jury could reasonably find he had foreseen Thompson's deliberate and premediated shooting of Wallace. In so concluding, we explained:
"Concededly, there was no evidence Coleman attempted to or shot at Wallace. Nevertheless, 'whether as a matter of fact,' defendants were joint participants 'was for the jury to decide.' [Citation.] Contrary to Coleman's contention, the jury could have accepted portions of the testimony of the prosecution's witnesses and the forensic evidence, and drawn the following reasonable inferences: Before the shootings both Thompson and Coleman had exhibited [their] animus against both Hodge and Wallace. Even assuming Coleman saw Cobbs hand a gun to Hodge, Coleman did not leave the area but prepared for a confrontation by retrieving a loaded firearm. Coleman told Cobbs to stay out of the way, and physically attempted to move Cobbs away, in order to protect Thompson against Wallace if need be. When the opportunity arose, Coleman joined in the altercation by firing his gun at Hodge, who returned gunfire. 'In brief, [Coleman] voluntarily entered into an altercation which would probably lead to trouble, stood by prepared to take a hand in the fight and aggressively entered it when he thought the proper time had arrived. The two [defendants] stood together and fought together. There was concert of action and purpose which clearly proved [Coleman] to have been a participant in the entire fight' against both victims. [Citation.]" (Thompson, supra, A120613, A123062 at p. 13.)
We also rejected Coleman's argument that his conviction for first degree murder of Wallace should be reversed because of improper instructions on accomplice liability and the natural and probable consequences doctrine using language in CALJIC Nos. 3.01 and 3.02. (Thompson, supra, A120613, A123062 at pp. 37-42, 42-44.) In so concluding, we explained, in pertinent part:
"Defendants argue the use of language in CALJIC Nos. 3.01 and 3.02 was prejudicial because everything in the instructions 'implies a nonkiller is automatically liable for first-degree murder as long as the actual killer' acts with premeditation; and the instructions failed 'to explain the actual killer's premeditation (not just any second-degree murder) must be foreseeable to a nonkiller.' However, 'if the instructions were susceptible of the interpretation defendant[s] now assert[ ], counsel likely would have objected at trial on this basis.' [Citation.] Additionally, the given instructions using the language in CAJIC Nos. 3.01 and 3.02 could not reasonably be interpreted as defendants suggest. CALJIC No. 3.01 focused the jury's attention on and held defendants accountable for their own mental states with regard to the victims' murders. [Citation.] The jury instructions given on first degree murder (CALJIC Nos. 8.00, 8.10, 8.11, 8.20), second degree murder (CALJIC No. 8.30), and voluntary manslaughter (CALJIC No. 8.40), made it clear that defendants could not be found guilty of those offenses without possessing the required mental state. The jury was to consider separately whether either defendant was guilty of first degree murder, second degree murder, or voluntary manslaughter (CALJIC Nos. 8.50, 8.70, 8.71, 8.72, 8.74, 8.75), and [to] specify the crimes committed by each defendant, if any, in the verdict sheet (CALJIC No. 8.70, 17.00, 17.02). Any doubt as [to] a defendant's liability for murder in the first degree, murder in [the] second degree, or manslaughter, had to be resolved in that defendant's favor (CALJIC Nos. 8.71, 8.72), and there had to be unanimous agreement as to whether a defendant was guilty of first degree murder, second degree murder, or manslaughter (CALJIC No. 8.74). As part of its duty 'to determine whether the defendant is guilty or not guilty of murder in the first degree or of any lesser crime thereto,' the jury was told it had the 'discretion to choose the order in which [it] evaluate[d] each crime and consider[ed] the evidence pertaining to it.' There is no reasonable likelihood the jury misunderstood the instructions, when considered as a whole." (Thompson, supra, A120613, A123062 at pp. 39-40.)
We further stated that even if the court's instructions did not adequately instruct the jury on the issue of accomplice liability, reversal was not required. "The evidence established each 'defendant "weigh[ed] and consider[ed] the question of killing" before deciding' to actually commit or aid and abet the other in committing first-degree murders of Wallace and Hodge. (People v. Prieto (2003) 30 Cal.4th 226, 253 . . . .) Before the incident, both defendants discussed their animus against Hodge and Wallace. When Hodge was seen on the street, the car was stopped and defendants quickly secured loaded weapons. Both defendants then followed both victims as the victims attempted to leave The Village. When the opportunity arose (Wallace said, 'Let's fight'), Thompson responded by firing his gun at Wallace, and then firing his gun at Hodge. At about the same time, Coleman fired his rifle at Hodge. In light of this evidence, there is no reasonable doubt the jury found that each defendant personally acted with willfulness, deliberation, and premeditation, once it rejected defendants' principal claim that Hodge was the first person who fired a gun causing defendants to respond in justifiable self-defense. 'Accordingly, any omission in the instructions, even if erroneous, was harmless under both Chapman v. California (1967) 386 U.S. 18, 24, and [People v.] Watson (1956) 46 Cal.2d [818, 836 . . .].)' [Citations.]" (Thompson, supra, A120613, A123062 at pp. 41-42.)
III. Coleman's Trial Court Petition for Writ of Habeas Corpus
Five years later, in June 2015, Coleman filed a petition for writ of habeas corpus in the trial court, claiming his conviction for first degree murder of Wallace was invalid under Chiu, supra, 59 Cal.4th 155. In Chiu, the Supreme Court held, for the first time, that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles. [Citation.]" (Id. at pp. 158-159.)
Coleman contended the jury had been instructed that his liability for Wallace's murder could be premised on either direct aiding and abetting principles, direct coconspirator principles, or the natural and probable consequences doctrine vis-à-vis accomplice and coconspirator liability, and the record did not establish beyond a reasonable doubt that the jury convicted him on a legally valid theory. After the issuance of an order to show cause, the trial court denied the petition, concluding that, assuming the standard of review for prejudice was the test articulated in Chapman v. California, supra, 386 U.S. at page 24 (Chapman), any Chiu error was harmless beyond a reasonable doubt based on a review of the evidence and the prosecutor's closing arguments.
IV. Coleman's Appellate Petitions for Writ of Habeas Corpus and for Review
In October 2016, Coleman filed his petition for writ of habeas corpus in this court. He argued that even taking into account the evidence and the prosecutor's arguments, "no court could determine beyond a reasonable doubt" that the jury had based its verdict on a legally valid theory for the first degree murder of Wallace. Following consideration of an informal response and an informal reply, we summarily denied the petition.
On March 29, 2017, the Supreme Court granted Coleman's petition for review and deferred consideration of his petition pending disposition of a pending case that would address the standard of review to be applied in a collateral proceeding alleging a Chiu error. Thereafter, in In re Martinez (2017) 3 Cal.5th 1216, 1218 (Martinez), the Supreme Court held the Chapman standard of review applies in such a collateral proceeding. On February 28, 2018, the Supreme Court transferred Coleman's petition to this court, with directions that we reconsider the matter in light of Martinez. After reconsidering the matter in light of Martinez, we again summarily denied Coleman's petition.
On April 16, 2018, Coleman filed another petition for review in the Supreme Court, contending the Martinez decision required reversal for an evidentiary hearing, or reduction of the first degree murder of Wallace to second degree, as it was impossible on this record to determine which theory of liability the jury chose to support its verdict. On June 13, the Supreme Court granted Coleman's petition for review and transferred the petition to this court, with directions to issue an order directing the trial court to show cause why petitioner is not entitled to the requested relief, citing to Chiu, supra, 59 Cal.4th at page 167 and Martinez, supra, 3 Cal.5th at page 1225. We issued an order to show cause; the Attorney General filed a return and Coleman filed a traverse. The parties also filed responses to our request that they address the applicability of In re Loza (2018) 27 Cal.App.5th 797 (Loza), which was decided after the filing of the return and traverse. Following oral argument, we now grant Coleman's petition for writ of habeas corpus and vacate his conviction for the first degree murder of Wallace.
DISCUSSION
I. Instructions Given in this Case Violated Chiu
The instructions in this case told the jury that to return a verdict of first degree murder it was required to determine that the defendant had a clear and deliberate intent to kill. The Attorney General argues this instruction was materially different than the first degree murder instruction given in Chiu, where the jury was told to determine the mental state of the perpetrator of the murder. Thus, the Attorney General argues the instructions in this case did not violate Chiu because they focused on each defendant rather than the "perpetrator." This argument was considered and rejected in Loza, supra, 27 Cal.App.5th 797, which, as we noted, was decided after the parties filed their papers in response to our order to show cause. We agree with Loza's analysis and reject the People's argument.
Like Loza, this is a multiple defendant case. So, the jury could have interpreted the word defendant to mean either Coleman or Thompson. Also, as in Loza, the jury here was told that, "To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice. . . ." (Italics added.) Again, on this instruction the jury could have concluded Thompson premediated but not Coleman. "This is precisely the type of instructional error that our Supreme Court identified and found unacceptable in Chiu, supra, 59 Cal.4th 155 . . . ." (Loza, supra, 27 Cal.App.5th at p. 804.)
Additionally, although defendants here were not specifically charged with the crime of conspiracy, the trial court gave a conspiracy instruction. The prosecutor argued that both defendants could be convicted of first degree murder because the evidence supported an inference that an agreement existed between them to confront and kill both victims. (Thompson, supra, A120613, A123062 at p. 42.) And, as allowed by the court's instructions, the prosecutor alternatively argued a theory invalidated by Chiu, that even if there was only a conspiracy to kill Hodge, and Wallace was not the subject of the conspiracy, his murder occurred during the furtherance of the conspiracy and as a natural and probable consequence of it. (Ibid.; see People v. Rivera (2015) 234 Cal.App.4th 1350, 1356 [an uncharged conspiracy cannot be the basis for first degree murder liability under the natural and probable consequences doctrine]; see also In re Brigham (2016) 3 Cal.App.5th 318, 328-329 [Chiu's reasoning applies even where the targeted crime and untargeted crime are both premeditated murder].) II. Chiu Error Was Prejudicial and Compels Reversal
A. Standard of Review
In both Chiu, supra, 59 Cal.4th 155, and Martinez, supra, 3 Cal.5th 1216, cited in the remand order to this court, the Supreme Court discussed the standard of review to be applied when considering the effect of instructional error regarding the elements of first degree murder.
In Chiu, the court said that "[w]hen 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 [that defendant directly aided and abetted the premeditated murder]. [Citations.]" (Chiu, supra, 59 Cal.4th at p. 167.) The Chiu court went on to conclude the instructional error in that case was prejudicial because questions from the jury during deliberations "show[ed] that the jury may have based its verdict of first degree premeditated murder on the [erroneous theory]." (Ibid.) Accordingly, the Chiu court could not "conclude beyond a reasonable doubt that the jury ultimately based its first degree murder verdict on a different theory, i.e., the legally valid theory that defendant directly aided and abetted the murder." (Id. at p. 168.)
In Martinez, the Supreme Court held "that on a petition for writ of habeas corpus, as on direct appeal, Chiu error requires reversal 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." (Martinez, supra, 3 Cal.5th at p. 1218.) The Martinez court went on to also conclude the instructional error in that case was prejudicial because "the prosecutor argued the natural and probable consequences theory to the jury at length during closing argument and rebuttal," and a jury inquiry during deliberations "suggested that it was considering the natural and probable consequences theory of liability." (Id. at pp. 1226-1227.)
Since the filing of the parties' papers in response to our order to show cause, our Supreme Court has clarified the harmless error analysis where a jury is instructed on both a legally correct theory of guilt and a legally incorrect one. In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), the court specifically rejected a contention "that, by focusing on what the jury actually did, Chiu and Martinez stated a standard different, and higher, than Chapman's reasonable doubt standard." (Aledamat, supra, at p. 12.) Rather, as the court in Aledamat explains: "Chiu and Martinez were only a specific application of the more general reasonable doubt test stated in cases like [Neder v. United States (1999)] 527 U.S. 1 and [People v. Merritt (2017)] 2 Cal.5th 819. The test stated in Chiu and Martinez was taken from [People v. Chun (2009)] 45 Cal.4th [1172,] 1203-1205. (See Chiu, supra, 59 Cal.4th at p. 167.) Chun also stated that the error 'requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict.' (Chun, at p. 1201.) Finding beyond a reasonable doubt that the error did not contribute to the verdict is essentially the same as finding the error harmless beyond a reasonable doubt." (Aledamat, supra, at pp. 12-13.)
B. Analysis
In analyzing whether the Chiu error here was prejudicial and compels reversal, we consider a number of factors, including evidence of the defendant's participation in the nontarget first degree murder, other jury instructions, jurors' requests for clarification of the natural and probable consequences instructions, any verdicts on special findings, and counsels' closing arguments.
In 2010, when we discussed the sufficiency of the evidence in our affirmance of Coleman's convictions for two first degree murders, we said, " 'In brief, [Coleman] voluntarily entered into an altercation which would probably lead to trouble, stood by prepared to take a hand in the fight and aggressively entered it when he thought the proper time had arrived. The two [defendants] stood together and fought together. There was concert of action and purpose which clearly proved [Coleman] to have been a participant in the entire fight' against both victims." (Thompson, supra, A120613, A123062 at p. 13.) We borrowed our characterization of the evidence from People v. Luna (1956) 140 Cal.App.2d 662 (Luna), a case in which the defendant was held liable for an assault committed by someone else based upon evidence of his participation in the events surrounding the assault but not the act itself. (Id. at p. 665.)
Coleman's participation in the murderous scheme involved in this case readily invites the comparison to Luna. But Chiu requires that we now consider the evidence of Coleman's participation in the murder of Wallace through a different lens. When we do, there is insufficient evidence of his intent to kill that would permit us to conclude beyond a reasonable doubt that the jury did not rely on the natural and probable consequences doctrine when it convicted Coleman of first degree murder of Wallace.
Although the prosecution argued that Coleman and Thompson were each guilty of the murders of Wallace and Hodge under a direct aiding and abetting theory because they were "acting as a team" that night and "in lockstep, they acted as one," the evidence is largely silent on the details of any conspiracy and Coleman's intent to kill Wallace. The prosecutor tried to explain the silence on this point by arguing "no words were necessary" between them because "[t]hey knew what their course of action was." But the prosecutor also relied on the natural and probable consequences doctrine to support verdicts of first degree murder.
In arguing to the jury, the prosecutor said: "Now, there are different theories by which someone may be responsible for a crime: Being the actual perpetrator, being an aider and abettor. [¶] Another is if you are a member of a conspiracy. And a conspiracy is simply two or more people agreeing to commit a crime and at least one of those people engaging in some act to further the goal of the conspiracy. [¶] Now, there's no conspiracy charged in this case. There doesn't have to be. You can consider it as a theory of criminal liability. [¶] You don't need to have evidence that there was a conversation in which two people, by their words, entered into an agreement to commit a crime. You can infer the existence of the agreement by the actions of the participants. [¶] Each member of a conspiracy is responsible for the crimes of other members if the crimes are carried out to further the conspiracy and are a natural and probable consequence of the conspiracy.
"So let's say we have got our A and B and C and D again. Let's say they just conspire to kill C. They arm themselves and they begin their pursuit. But then D interferes and tries to protect this friend, C. B kills D. A is just as responsible for the killing since killing—D when he interfered—was done to further the conspiracy, and it was a natural and probable consequence of the effort to kill C.
"Now, you may, in analyzing the evidence in this case, you may say I think that this particular defendant is guilty as an aider and abettor and a coconspirator, or I think this particular defendant is an actual perpetrator. It really doesn't matter. All of these options are available to you in deciding who is responsible for specific acts whether or not they are the actual perpetrator.
"So when you are taking a look at the question of [Coleman's] responsibility for the murder of [Wallace], it doesn't matter in the slightest that there's no evidence that [Coleman] fired a shot at [Wallace]. You can conclude that he aided and abetted [Thompson], you can conclude that they conspired and that it was a natural and probable consequence of the conspiracy.
"It's all for you to decide. You'll have the law in the jury deliberation room in written form. You can take a look at it and think about it any way you choose."
The evidence relevant to the prosecutor's argument showed Coleman asked Cobbs about why he hung around with Hodge, and initially said nothing about Wallace. Coleman thought Hodge was " 'not cool,' " and when Thompson asked Cobbs about Wallace, Coleman joined Thompson's assessment that both Hodge and Wallace were " 'not cool.' " But when they arrived at the scene of the murders, Cobbs saw Hodge on the street. Coleman said, " 'Ooh.' " The trio parked and Coleman and Thompson retrieved weapons. The evidence showed Coleman concentrated his attention on Hodge. He walked behind him, and moved Cobbs out of the way when Cobbs got between him and Hodge. Although Wallace was nearby and confronted by Thompson, nothing in the evidence shows Coleman said anything to Wallace or displayed any animus toward him. It was Thompson who was Wallace's aggressor. The deadly altercation began when Thompson pulled out a handgun he had concealed in his jacket and shot Wallace. Then, Coleman shot Hodge. While Thompson turned his attention to Hodge and shot at him after shooting Wallace, Coleman never fired a shot at Wallace. Coleman left the scene after shooting Hodge.
In light of the instructions and the prosecutor's argument, when viewed together with the evidence, we cannot rule out the natural and probable consequences doctrine as the basis for the verdict against Coleman for the first degree murder of Wallace. While it may appear likely the jury concluded both defendants acted together with the intent to kill Wallace and Hodge, a likelihood does not satisfy the harmless error analysis test we are to employ under Chiu and Martinez. We must be convinced beyond a reasonable doubt that the natural and probable consequences theory did not contribute to the verdict. (Aledamat, supra, 8 Cal.5th at p. 1204.) We are not. Our assessment of all the circumstances requires reversal, as the jury's finding of first degree murder on a natural and probable consequences theory was a reasonable possibility (Chapman, supra, 386 U.S. at p. 24).
III. Coleman's Ancillary Claims Must First be Brought in the Trial Court
In his supplemental letter brief filed on January 23, 2019, Coleman states he may be entitled to relief due to changes in the law since his convictions.
He first contends he must be given the opportunity to present relevant mitigating evidence relating to his youthful offender status for his eventual use at a future youth offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261. But in In re Cook (2019) 7 Cal.5th 439 at page 458, the Supreme Court held that for inmates like Coleman "who seek to preserve evidence following a final judgment," the proper avenue for relief is to file a motion in the trial court under the original caption and case number, citing to Penal Code section 1203.01 and In re Cook, supra, 7 Cal.5th 439.
Coleman also contends he may be entitled to resentencing under Senate Bill No. 620 (amending Penal Code section 12022.53, effective January 1, 2018). However, the Supreme Court remanded to this court on the issuance of an order to show cause specifically to determine if Coleman is entitled to relief under Chiu and Martinez. Accordingly, he must first seek relief based on this new sentencing law in the trial court. We express no opinion on how the trial court should resolve any petition Coleman may file in that court based on this new law.
Lastly, Coleman contends he may be entitled to resentencing under Senate Bill No. 1437 (amending Penal Code sections 188 and 189, and enacting Penal Code section 1170.95, subdivision (a)(1)-(3), effective January 1, 2019). In light of our vacating the first degree murder conviction of Wallace, there is no reason to address the possible effect of Senate Bill No. 1437 in this case.
DISPOSITION
The petition for a writ of habeas corpus is granted. Coleman's conviction for first degree murder of Dante Wallace is vacated. We remand this case to the trial court. On remand the district attorney shall be afforded the opportunity to retry Coleman for first degree murder on the basis that he personally harbored an intent to kill Dante Wallace, or alternatively the trial court shall enter judgment reflecting a conviction of second degree murder and sentence Coleman accordingly.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.