Opinion
A152748
09-25-2019
In re RICO RICARDO LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-32760)
Rico Ricardo Lopez was tried for murder under three different legal theories in connection with a 2002 gang-related stabbing. A jury convicted him of first degree murder and also found true the gang special circumstance that he intentionally killed the victim while an active participant in a criminal street gang (Pen. Code, § 190.2, subd. (a)(22)). After the Supreme Court held in People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu) that one of the theories under which Lopez was tried, the natural and probable consequences doctrine, could not be the basis of a first degree murder conviction, Lopez filed a petition for a writ of habeas corpus in the trial court. The trial court granted the petition, reversed Lopez's murder conviction, and remanded the matter for either retrial or the acceptance of a second degree murder conviction. The People appealed. We conclude that under the standards clarified in our Supreme Court's recent decision in People v. Aledamat (Aug. 26, 2019, S248105) ___ Cal.5th ___ (Aledamat), any error under Chiu was harmless beyond a reasonable doubt. We therefore reverse the trial court's order.
All statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the night of June 26, 2002, Lopez was in a Santa Rosa apartment with a group of men and women drinking beer, playing cards, and watching television. Lopez and at least four other men present were members of the Norteño street gang. Around midnight, members of the group heard the distinctive whistle of the rival Sureño gang coming from the other side of a fence that separated the apartment from Santa Rosa Creek, in an area in which the Norteño and Sureño gangs had rival claims. The five gang members ran to the kitchen, where at least some of them grabbed knives, then left the apartment. They ran down a path to the creek and confronted Ignacio Gomez, who was wearing blue clothing consistent with what Sureño gang members wear. Gomez was stabbed to death after suffering 38 to 40 wounds on his head, face, chest, back, and shoulders.
One of the gang members was seen before the murder with a butcher knife, and Lopez was seen after the murder with a knife handle. Two pieces of metal that appeared to be from a broken knife blade were found within 10 to 15 feet of the victim's body. Lopez also was seen after the murder with blood on his jersey and his shoes. One witness identified the person with the butcher knife as having stabbed the victim, but it was not established whether multiple people stabbed him. When the group returned to the apartment, Lopez said "this was for Cinco de Mayo," a reference to a member of their group being stabbed less than two months before the murder, and he also "was kind of like bragging like walking around with a little strut, stuff like that, kind of like a larger than life moment for him or something."
Lopez and the four other gang members were tried for first degree murder, with a special circumstance that they intentionally killed the victim while they were active participants in a criminal street gang, and that the crime was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)), along with an enhancement alleging they committed the crime for the benefit of a street gang (§ 186.22, subd. (b)(1)).
Defendants were tried for murder under three different theories: (1) that they were the actual perpetrators; (2) that they aided and abetted the murder; and (3) that they aided and abetted one of five "target crimes" (breach of peace, assault, battery, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury), and first degree murder was a natural and probable consequence of the target crime. During closing argument, the prosecutor explained all three of these theories, and also stated that jurors did not need to decide who actually stabbed the victim in order to convict defendants of first degree murder.
In explaining the natural and probable consequences doctrine to the jury, the prosecutor stated, "Natural and probable consequences does not require an intent to kill. It does not require premeditation. It does not require deliberation. That's very important because when you go out to confront a rival gang member in a breach of the peace situation or in a simple assault without the intent to kill and somebody is murdered, what happens? Do you have to share in the specific intent to kill? Do you have to have the same frame of mind as the person or persons who are repeatedly stabbing [the victim]? No, you do not." He further explained, "And once you're an aider and abettor in that target crime and that chain of events from the target leads all the way to [the victim's] murder, it's too bad. That is the law. You're a gang member and you planned in your own mind to commit a breach of the peace or an assault. And if murder was a natural and probable consequence of that, and on these facts, ladies and gentlemen, I'm asking you, then you also are guilty of murder and it does not matter whether you intended to kill." After explaining the three theories of guilt, the prosecutor proceeded to explain the difference between first degree and second degree murder. He said that second degree murder was "a good logical starting point" and that in order to find that defendants committed first degree murder, the jury would have to find that the murder was willful, deliberate, and premeditated.
On the fifth day of deliberations, the jury sent the trial court the following note: "We are having difficulties with the sentence [from CALJIC No. 8.20 (deliberate and premeditated murder)] '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 and, having in mind the consequences, he decides to and does kill[,'] versus deliberated and premeditated breach of peace or assault that results in a killing. [¶] We need more clarification of premeditation and deliberation and how to relate it to section [presumably, CALJIC No.] 3.02 [the instruction regarding the natural and probable consequences doctrine]." After discussion with the attorneys, the trial court sent the following response: "The term 'deliberate and premeditate' refers only to First Degree Murder. First Degree Murder is defined by jury instruction 8.20. [¶] The term 'deliberate and premeditate' is not an element of any of the following: Breach of the Peace, Assault, Battery, Assault by Means of Force likely to Produce Great Bodily Injury, or Assault with a Deadly Weapon. Those crimes are defined elsewhere in the Court's instructions: [¶] Breach of the Peace is defined in jury instruction 16.260. [¶] Assault is defined in jury instruction 9.00. [¶] Battery is defined in jury instruction 16.140. [¶] Assault by Means of Force likely to produce Great Bodily Injury is defined in jury instruction 9.02. [¶] Assault with a Deadly Weapon is defined in jury instruction 9.02. [¶] Jury instruction 3.02 may refer to First Degree Murder, Second Degree Murder or Voluntary Manslaughter, depending upon what you determine the facts to be. Those crimes are defined elsewhere in the court's instructions."
The next day, the jury found Lopez and three of his codefendants guilty of first degree murder, but the jury verdict forms did not reveal the theory upon which the murder conviction was based. As to all four of them, the jury also found true the gang allegations, including the special circumstance under section 190.2, subdivision (a)(22), which required jurors to find that defendants were active participants in a criminal street gang, that the murder was carried out to further the activities of that gang, and that they "intentionally killed the victim." The fourth codefendant was acquitted of murder but was convicted of being an accessory after the fact (§ 32).
The trial court sentenced Lopez to life without the possibility of parole. Lopez appealed but did not challenge the sufficiency of the evidence supporting his conviction and instead focused on the trial court's decision not to dismiss a juror for alleged bias and misconduct. Division Four of this court affirmed Lopez's conviction. (People v. Amante et al. (Sept. 3, 2009, A113655) [nonpub. opn.].)
Five years after Lopez's conviction was upheld, the Supreme Court held in Chiu, supra, 59 Cal.4th 155, that a first degree murder conviction cannot be based on an aiding and abetting theory under the natural and probable consequences doctrine. The decision is retroactive to cases already final. (In re Martinez (2017) 3 Cal.5th 1216, 1222.) Lopez filed a petition for a writ of habeas corpus in the trial court in February 2016 and argued that Chiu required the trial court to either reverse his sentence or reduce it to second degree murder. The district attorney disagreed, arguing that any error under Chiu was harmless because the verdict was otherwise based on a valid ground.
The Legislature has since amended section 189 to change some types of aider and abettor liability for murder. The amendments mean that a defendant cannot be convicted of murder unless the person was the actual killer, acted with the intent to kill, or was a major participant in an underlying felony who acted with reckless indifference to human life. (Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 3.) We requested supplemental briefing on the effect of the legislative amendments and the addition of section 1170.95, which permits those convicted under the previous version of the law to seek resentencing. We need not address the issues raised in those briefs in light of Aledamat, which was decided after those briefs were filed.
The trial court granted Lopez's petition. It concluded that although the jury could have convicted Lopez of first degree murder based on a valid theory, the Chiu error was not harmless beyond a reasonable doubt. The court reversed the conviction for first degree murder and directed the matter returned to the trial court where the People could either accept a conviction of second degree murder or retry Lopez for first degree murder. The People appealed.
II.
DISCUSSION
It is undisputed that Chiu error occurred at Lopez's trial. That is, jurors were instructed that they could convict Lopez of first degree murder under two valid theories and one invalid theory. They were validly instructed that they could convict him if they found that Lopez was a perpetrator or a direct aider and abettor. But they also were instructed that they could convict him on an aiding and abetting theory under the natural and probable consequences doctrine. Specifically, they were told under this theory that they could find Lopez guilty of first degree murder if they found that one of five target crimes was committed (breach of peace, assault, battery, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury), that Lopez aided and abetted one of those crimes, that a co-principal committed murder, and that first degree murder was the natural and probable consequence of the target crime. As summarized in a case decided before Chiu, for a defendant to be convicted under the natural and probable consequences doctrine, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn. omitted.)
Chiu held that the natural and probable consequences doctrine cannot support a conviction for first degree murder because it does not establish that the defendant had the requisite culpability. (Chiu, supra, 59 Cal.4th at p. 167.) Rather than focusing on whether the defendant had the relevant intent to commit first degree murder, the doctrine focuses on whether first degree murder was a reasonably foreseeable consequence of the target crime. (Id. at pp. 164-166.) The court noted that "[i]n the context of murder, 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. . . . It is also consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendants' position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Id. at pp. 165-166.) That same public policy concern is not present with respect to a defendant's liability for aiding and abetting a first degree premeditated murder because "whether a direct perpetrator commits a nontarget offense of murder with or without premeditation and deliberation has no effect on the resultant harm. The victim has been killed regardless of the perpetrator's premeditative mental state. Although we have stated that an aider and abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [citation], the connection between the defendant's culpability and 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." (Id. at p. 166.)
As the parties recognize, there was Chiu error here because the jury might have convicted Lopez of first degree murder based on his aiding in one of the five target crimes, and he may therefore have received a sentence—life without the possibility of parole—that was out of proportion to his role in aiding and abetting that target crime. The sole question we must decide is whether the error was prejudicial. Aledamat establishes that it was not.
"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." (Chiu, supra, 59 Cal.4th at p. 167.) Aledamat clarified that the "beyond a reasonable doubt" standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 for federal constitutional error applies in reviewing Chiu errors. That is, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[] the error was harmless beyond a reasonable doubt." (Aledamat, supra, ___ Cal.5th ___ [p. 1].) Under this standard, the error here was harmless.
In Aledamat, the defendant was charged with assault with a deadly weapon (a box cutter). (Aledamat, supra, ___ Cal.5th ___ [p. 1].) The trial court correctly instructed the jury that it could convict the defendant if it found that he used the box cutter in a deadly way. (Ibid.) But the court also instructed the jury that it could convict the defendant if it found that the box cutter was inherently deadly, which was erroneous because a box cutter is not inherently deadly as a matter of law. (Ibid.) The Court of Appeal reversed, believing that it was required to do so absent a basis in the record to conclude that the verdict was actually based on a valid ground; i.e., that there was a reason to conclude the jury had actually relied on a valid theory. (Id. at p. ___ [p. 4].) In briefing to the Supreme Court, the defendant in Aledamat relied on Chiu and In re Martinez, supra, 3 Cal.5th 1216, to argue that a reviewing court should properly focus on what a jury "actually did." (Aledamat, pp. ___ [pp. 14-15].) The Supreme Court disagreed and reversed, explaining that "[i]n both Chiu and Martinez, we examined the record and found that it affirmatively showed the jury might have based its verdict on the invalid theory. Because no other basis to find the error harmless beyond a reasonable doubt was at issue, we did not explore whether other ways of finding the error harmless existed. Those cases merely provide one way in which a court might evaluate harmlessness. They do not preclude other ways." (Id. at p. ___ [p. 16], italics added.) The court summarized the standard as follows: "The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Id. at p. ___ [p. 17], italics added.) Applying that standard, Aledamat analyzed the jury instruction, both attorneys' arguments to the jury, and the facts of the case, and concluded that no reasonable jury could have failed to find that the defendant used the box cutter in a way capable of causing or likely to cause death or great bodily injury. (Id. at pp. ___ [pp. 17-20].) The instructional error thus was harmless beyond a reasonable doubt.
Under Aledamat, we must consider all the relevant circumstances, including the evidence. This was a complex case with multiple defendants, and it would be difficult to determine which theory the jury relied on to convict each individual defendant. It is also beyond dispute that the jury was considering the natural and probable consequences doctrine because jurors sent a note to the trial court on the subject. But while it is impossible to determine what theory the jury actually relied upon in convicting each defendant, it is clear that as to Lopez the error was harmless beyond a reasonable doubt. (Aledamat, supra, ___ Cal.5th ___ [p. 1].)
This is so because the jury found true the gang special circumstance under section 190.2, subdivision (a)(22). The jury was instructed on the special circumstance as follows: "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." (CALJIC No. 8.80.1, italics added.) A true finding as to this circumstance required proof beyond a reasonable doubt that Lopez acted with an intent to kill, as opposed to the intent to commit one of the target crimes.
Chiu itself made clear that in some circumstances a defendant may be convicted of first degree, premeditated murder under direct aiding and abetting principles. (Chiu, supra, 59 Cal.4th at p. 166.) "Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitation its commission. [Citation.] Because the mental state component—consisting of intent and knowledge—extends to the entire crime, it preserves the distinction between assisting the predicate crime of second degree murder and assisting the greater offense of first degree premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder." (Id. at p. 167.) The findings on the gang special circumstance support a finding on such a mens rea here.
People v. Brown (2016) 247 Cal.App.4th 211, cited by the trial court and upon which Lopez relies, does not direct a contrary result. In Brown, the defendant was prosecuted for first degree murder under the same three theories at issue here. (Id. at p. 213.) During deliberations, the jury at one point sent a note stating it was unable to reach a verdict, and it also asked for clarification on the natural and probable consequences doctrine. (Id. at p. 226.) The jury convicted the defendant of first degree murder a few hours later, and it also found true the gang special circumstance under section 190.2, subdivision (a)(22). (Brown, at pp. 215, 225-226.) In evaluating whether the Chiu instructional error was harmless, Brown acknowledged that "[i]t is possible in a given case to conclude the giving of an erroneous natural and probable consequences instruction was harmless beyond a reasonable doubt when the jury finds the defendant guilty of first degree murder and finds the gang special circumstance true, because the special circumstance required finding the defendant intentionally killed. In such a situation, it might be concluded the jury necessarily rejected the natural and probable consequences theory of aider and abettor liability and instead found the defendant was either the actual killer or aided and abetted the actual killer while sharing the killer's intent to kill." (Brown, at p. 226.) The court was nonetheless unable to reach such a conclusion for several unique reasons. First, unlike here, there were multiple irregularities in the taking of the verdicts that also precluded finding the error harmless. (Id. at pp. 215, 227.) Second, the fact that the jury requested further instruction on the natural and probable consequences doctrine late in deliberations supported a reasonable inference that there were not sufficient votes to convict on a valid basis. (Id. at p. 226.) Third, the evidence against the defendant was not overwhelming, because the only person who identified him as the shooter was a witness who took a plea bargain for a six-year sentence in exchange for his testimony. (Id. at pp. 226-227.)
These circumstances were not present here. Although the jury requested clarification on the natural and probable consequences doctrine, there is no indication that jurors were considering this theory for Lopez specifically. And we need not infer that they were doing so, because the evidence against him was overwhelming. He was seen after the murder with blood on his clothes and shoes and holding a knife handle, and he also bragged about the stabbing afterward. His appellate attorney in the original appeal did not even challenge the sufficiency of the evidence supporting his first degree murder conviction, which was reasonable given the record. Under Aledamat, we conclude that Chiu error was harmless beyond a reasonable doubt.
III.
DISPOSITION
The trial court's order granting Lopez's petition for a writ of habeas corpus is reversed. The case is remanded with instructions to reinstate the original judgement against Lopez.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.