Opinion
G056354
12-03-2021
In re ALAN HUNTER on Habeas Corpus.
Robert E. Boyce, under appointment by the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
Original proceeding; petition for a writ of habeas corpus to challenge a judgment of the Superior Court of Orange County, No. 11CF2479 Cheri T. Pham, Judge. Petition denied.
Robert E. Boyce, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Respondent.
OPINION
BEDSWORTH, ACTING P. J.
In this habeas proceeding, petitioner Alan Hunter contends his conviction for first degree provocative act murder must be reversed in light of People v. Chiu (2014) 59 Cal.4th 155 (Chiu), which held a defendant cannot be convicted of first degree premeditated murder based on the natural and probable consequences theory of aiding and abetting. Although Chiu has some parallels to petitioner's case, we find the reasoning of that decision inapt and deny relief on that basis.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011, petitioner conspired with six other men to rob a jewelry store in San Juan Capistrano at gunpoint. However, the robbery did not turn out as they planned. While petitioner was keeping watch outside, his confederate Robert Avery entered the store and threatened its workers with a gun. In response, the workers not only shot and killed Avery, they shot and killed coconspirator Desmond Brown, who entered the store after Avery.
Following a jury trial, petitioner was convicted of attempted robbery and first degree murder. (Pen. Code, §§ 664, 211, 187.) The underlying murder was based on the provocative act doctrine, which required the jury to find five elements to be true: 1) Petitioner was Avery's accomplice in the attempted robbery; 2) during that offense, Avery intentionally committed a provocative act; 3) Avery knew the natural and probable consequences of that act were dangerous to human life and acted in conscious disregard of that risk; 4) in response to the provocative act, the store workers killed Brown; and 5) Brown's death was a natural and probable consequence of the provocative act. (See CALCRIM No. 561 [provocative act by accomplice].)
Unless noted otherwise, all further statutory references are to the Penal Code.
We grant petitioner's unopposed request to take judicial notice of the jury instructions that were given at his trial. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
After finding petitioner guilty of murder, the jury affixed the degree of murder as first degree based on two additional findings: 1) As a result of Avery's provocative act, Brown was killed during an attempted robbery; and 2) Avery specifically intended to commit robbery when he carried out the provocative act. (See CALCRIM No. 561.)
For sentencing purposes, petitioner was also found to have suffered a prior serious felony conviction. The trial court sentenced him to 30 years to life in prison for his crimes.
On appeal, petitioner raised a discovery issue and challenged the sufficiency of the evidence to support his conviction under the provocative act doctrine. The evidentiary challenge concerned the causal relationship between Avery's actions and Brown's death; it did not have anything to do with the Chiu case, which was decided while petitioner's trial was pending. We affirmed the judgment, and the California Supreme Court denied further review. (People v. Hunter (2017) 15 Cal.App.5th 163, rev. den. Dec. 20, 2017, S244767.)
After petitioner's petition for a writ of habeas corpus was denied in the superior court, he renewed it here. Petitioner contends his conviction for first degree provocative act murder is invalid under Chiu, and his appellate attorney was ineffective for failing to so argue on direct appeal. Having appointed petitioner counsel and ordered the People to show cause, we now take up the merits of the petition.
DISCUSSION
We begin with the Supreme Court's decision in Chiu, which examined the parameters of the natural and probable consequences theory of aiding and abetting. Under that theory, "'"A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime."' [Citations.]" (Chiu, supra, 59 Cal.4th at p. 161.) Because culpability under this theory is vicarious in nature, it does not depend on whether the aider and abettor possessed the requisite mental state for the nontarget offense. (Ibid.) Rather, liability turns on whether the nontarget offense was a reasonably foreseeable consequence of the target offense. (Id. at p. 164.) Consequently, the natural and probable consequences theory can have far-reaching ramifications for aiders and abettors, even if they only set out to commit a relatively minor offense. (Id. at p. 161 [noting an aider and abettor who only intends to commit assault may be liable for murder if that offense was a natural and probable consequence of the assault].)
The Chiu court was concerned about an overly rigid application of the natural and probable consequences doctrine. Indeed, Chiu made clear that in determining whether the doctrine can lawfully be applied in a particular case, courts must "keep[] in mind the rational function that the doctrine is designed to serve" and "avoid[] any unfairness which might redound from too broad an application." (Chiu, supra, 59 Cal.4th at p. 164.)
With respect to the crime of murder, Chiu found "the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing." (Chiu, supra, 59 Cal.4th at p. 165.) Therefore, a defendant can be convicted of second degree murder for aiding and abetting a target offense that naturally and probably results in murder. (Id. at p. 166.)
However, Chiu determined this rationale did not extend to the crime of first degree premeditated murder. (Chiu, supra, 59 Cal.4th at p. 166.) That's because the mental state required for the commission of that offense is "uniquely subjective and personal." (Ibid.) As the court put it, "[T]he connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence." (Ibid.)
In so holding, Chiu noted, "An aider and abettor's liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule. [Citation.]" (Chiu, supra, 59 Cal.4th at p. 166.) Thus, the Chiu decision "does not affect or limit an aider and abettor's liability for first degree felony murder under section 189." (Ibid.)
Chiu did not mention, let alone analyze, provocative act murder, which is a distinctive type of murder. (People v. Concha (2009) 47 Cal.4th 653, 665.) A murder of that variety occurs when the perpetrator of a crime maliciously commits a provocative act that is likely to result in death, and the victim kills in reasonable response to that act. (People v. Gonzalez (2012) 54 Cal.4th 643, 655.) In that situation, the perpetrator's liability is derived from the general principles of causation applicable to all homicide cases. The law treats the victim's deadly response as being directly attributable to the perpetrator's provocative conduct, not as an independent intervening cause of death. (Ibid.; People v. Concha, supra, 47 Cal.4th at p. 661.)
But, as the present case illustrates, liability for provocative act murder may extend beyond the provocateur to his accomplices. Whereas the provocateur's liability stems from having proximately caused the victim's death, "'a participant in the underlying crime who does not actually commit a provocative act himself may nevertheless be vicariously liable for the killing caused by his provocateur accomplice based upon having aided and abetted commission of the underlying crime. [Citations.]'" (People v. Johnson (2013) 221 Cal.App.4th 623, 629-631.)
That's precisely how petitioner was convicted of murder in this case. Because he aided and abetted Avery in the underlying crime of attempted robbery, he was found vicariously liable for Avery's provocative actions that led to Brown's death. In that regard, petitioner's situation is not much different from the defendant in Chiu, who was convicted of murder under the natural and probable consequences doctrine. Just as the perpetrator's malicious conduct was imputed to the defendant in that case, so too was Avery's malicious conduct imputed to appellant based on his involvement in the underlying offense.
However, this similarity with Chiu does not advance petitioner's cause because, as explained above, the Supreme Court upheld the imposition of second degree murder liability in that case. It did so because such liability is "commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably and foreseeably result in a murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 166.)
The same is true when a defendant aids and abets a target offense in which his accomplice commits a provocative act that is likely to result in death. Under those circumstances, there is a sufficient connection between the defendant's culpability and the perpetrator's actions to justify the imposition of murder liability on the defendant. Therefore, Chiu does not avail petitioner in his attempt to invalidate his underlying murder conviction.
Of course, we know from Chiu that there are logical limits on how far the law may extend vicarious liability on aiders and abettors. If an aider and abettor does not possess the uniquely subjective and personal mental state required for first degree premeditated murder, Chiu precludes his conviction for that offense under the natural and probable consequences doctrine. By logical extension, Chiu would likely apply to preclude an aider and abettor's conviction for first degree murder under the provocative act doctrine if the sole basis for elevating the murder to first degree was the fact that the provocateur harbored a premeditated mindset.
However, we need not decide that question because petitioner's murder was elevated to the first degree for reasons wholly unrelated to Avery's state of mind. The reason petitioner was convicted of murder in the first degree is because the jury found the provocative act leading to Brown's death was done to facilitate an attempted robbery, which is one of the felonies listed in section 189. Indeed, the law is well established that just as section 189 may be used to establish the degree of the murder in cases involving the felony murder rule, so too may it be used to establish the degree of murder in cases involving the provocative act doctrine. (People v. Gilbert (1965) 63 Cal.2d 690, 705.) Consequently, a provocative act murder may "be first degree murder if it occurs during the course of a section 189 felony. [Citations.] This is so because even though the actual killing is not committed to perpetrate the underlying felony, the provocative act which makes the killing a murder is. [Citation.]" (People v. Mejia (2012) 211 Cal.App.4th 586, 619.)
Because petitioner's liability for first degree murder was attributable to the nature of the underlying felony Avery's provocative act was intended to facilitate, and not Avery's mental state, Chiu has no bearing on petitioner's conviction for that offense. (Cf. People v. Gastelum (2020) 45 Cal.App.5th 757 [Chiu inapt where basis for aider and abettor's first degree murder liability was lying-in-wait as opposed to premeditation].)
In arguing otherwise, petitioner points out the scope of the felony murder rule was restricted by Senate Bill No. 1437 (SB 1437), which became effective in 2019.Before SB 1437 was enacted, any person involved in the commission of a felony that resulted in death was liable for murder under the felony murder rule, regardless of their specific intent or conduct. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275-276.) However, SB 1437 amended the felony murder statute so the felony murder rule only applies if the defendant 1) was the actual killer, 2) harbored the intent to kill and assisted the actual killer in committing first degree murder, or 3) was a major participant in the underlying felony and acted with reckless indifference to human life. (Id. at p. 276; § 189, subd. (e); see generally In re Bennett (2018) 26 Cal.App.5th 1002 [applying the major participant and reckless indifference requirements in the context of a petition for writ of habeas corpus].)
Petitioner asks us to take judicial notice of SB 1437, which was still pending at the time he filed his habeas petition with this court in 2018. However, now that the bill has passed into law, we can consider it without having to resort to judicial notice. Therefore, the request for such is denied as moot.
Given this statutory narrowing of the felony murder rule, petitioner claims it would be fundamentally unfair to allow his conviction for provocative act murder to stand without imposing the new restrictions applicable to that rule. However, "The mere fact that a second degree provocative act murder may be elevated to first degree murder pursuant to felony-murder principles neither intertwines provocative act murder with felony murder nor transforms the former into the latter . . . ." (People v. Swanson (2020) 57 Cal.App.5th 604, 616, review granted Feb. 17, 2021, S266262.)
These two varieties of murder may share some common features, but unlike the provocative act murder doctrine, the felony murder rule historically applied regardless of whether the defendants acted with malice. (People v. Cavitt (2004) 33 Cal.4th 187, 205.) The Legislature's decision to amend the felony murder rule to account for this fact does not undermine the legitimacy of petitioner's conviction for provocative act murder, which was based on the malicious provocation of his attempted robbery victims. (See People v. Johnson (2020) 57 Cal.App.5th 257, 271 [malice requirement of provocative act murder distinguishes that theory from felony murder for purposes of equal protection].)
In assessing petitioner's arguments, we must also remember his habeas petition is based solely on the reasoning of the Chui case. He has not invoked section 1170.95, which is the procedural mechanism for seeking resentencing based on the new murder restrictions set forth in SB 1437, although he does have a section 1170.95 petition currently pending in the trial court. Accordingly, we express no opinion on whether petitioner is entitled to relief under that section. We simply hold that Chui does not provide grounds for invalidating petitioner's conviction for first degree provocative act murder. Therefore, his attorney was not ineffective for failing to argue otherwise on direct appeal.
Petitioner filed the petition in 2019. The trial court initially denied it on the basis SB 1437 was unconstitutional, but we reversed that decision in People v. Hunter (Aug. 11, 2020, G058167) [nonpub. opn.] and remanded the matter for consideration on the merits.
DISPOSITION
The petition for a writ of habeas corpus is denied.
WE CONCUR: MOORE, J., FYBEL, J.