Opinion
C099238
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN ALMEDA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 13F00543)
Feinberg, J.
Defendant Michael John Almeda appeals the trial court's denial of his petition for resentencing under Penal Code section 1172.6. We conclude that the instructions at defendant's trial and the resulting jury verdict conclusively establish that the jury convicted defendant on a still-valid theory of murder. We therefore affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In September 2013, the People filed an amended information charging defendant and codefendant Rodolfo Villa with murder (§ 187, subd. (a)) and with discharging a firearm at an occupied vehicle (§ 246). The information further alleged that the two defendants were armed with a firearm (§ 12022, subd. (a)(1)). It also alleged as a special circumstance that the murder was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)).
At trial, the prosecution presented evidence that defendant and codefendant were in a car and shot the victim in a drive-by shooting. (People v. Almeda (2018) 19 Cal.App.5th 346, 353-354.) According to a jailhouse informant, codefendant said that defendant was driving the car and that the two of them fired several shots at the victim. (Ibid.)
The trial court instructed the jury on the elements of first degree murder using CALCRIM No. 521. That instruction included two theories of first degree murder: (1) that the murder was "willful, deliberate, and premeditated"; or (2) that "the murder was committed by discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death." With respect to the first theory, the instruction explained (among other things) that the defendant acted "willfully if he intended to kill." With respect to the second theory, the instruction stated that, to return a guilty verdict, the jury had to find that he shot a firearm from a vehicle, intentionally shot at a person outside the vehicle, and "intended to kill that person."
The trial court also instructed the jury that a person may be guilty of a crime as either the perpetrator who "directly committed the crime" or as an aider and abettor of the perpetrator. Using CALCRIM No. 401, the court instructed jurors that, to find a defendant guilty of a crime based on aiding and abetting, the prosecution had to prove that: (1) the perpetrator committed the crime; (2) the defendant knew that the perpetrator intended to commit the crime; (3) before or during the crime's commission, the defendant intended to aid and abet the perpetrator in committing the crime; and (4) the defendant did in fact aid and abet the perpetrator's commission of the crime. The instruction further explained that "[s]omeone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." The court did not instruct the jury on theories of felony murder or the natural and probable consequences doctrine.
The court also provided the jury with instructions concerning special circumstances. Using CALCRIM No. 735, the court instructed jurors that they could find true the special circumstance of committing murder by shooting a firearm from a vehicle in violation of section 190.2, subdivision (a)(21) if the People proved that defendant shot a firearm from a motor vehicle, killing the victim; intentionally shot at a person who was outside the vehicle; and at the time of the shooting, intended to kill. Although the prosecution had not alleged any special circumstances that relied on section 190.2, subdivision (d), which involves aiding and abetting specified felony-murder offenses, the trial court also instructed the jury with CALCRIM No. 703. That instruction said that if the jury decided that defendant was guilty of first degree murder but was not the actual killer, then, when considering the special circumstance of discharging a firearm from a vehicle at another person, the jury also had to decide whether defendant acted "either with intent to kill or with reckless indifference to human life." It further stated that the People had to prove either that defendant intended to kill or all of the following: defendant's participation in the crime began before or during the killing; defendant was a major participant in the crime; and when defendant participated in the crime, he acted with reckless indifference to human life.
The jury found defendant and codefendant guilty of first degree murder (§ 187, subd. (a)). The jury also found true the allegation that defendant was armed with a firearm (§ 12022, subd. (a)(1)) and the special circumstance allegation that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)). The jury did not sign a verdict on the discharging a firearm charge (§ 246), and that charge was dismissed. The trial court sentenced defendant to life without the possibility of parole plus one year. We affirmed the judgment. (People v. Almeda, supra, 19 Cal.App.5th at p. 369.)
In September 2022, defendant filed a petition for resentencing under section 1172.6. After a hearing, the trial court issued a written order denying the petition without issuing an order to show cause or holding an evidentiary hearing. The court ruled that the jury's finding on the special circumstance under section 190.2, subdivision (a)(21) established that defendant was ineligible for resentencing. The court reasoned that, by finding that special circumstance true, the jury necessarily concluded that defendant harbored an intent to kill, and "[i]ntent to kill is the equivalent of express malice aforethought."
Defendant filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We cite to the current section 1172.6 throughout this opinion.
DISCUSSION
I.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. (People v. Das (2023) 96 Cal.App.5th 954, 959.) The Legislature adopted the law "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Among other things, the enactment amended section 188 to require that, except in cases of felony murder, a principal convicted of murder "act with malice aforethought." (Stats. 2018, ch. 1015, § 2, subd. (a)(3).) It further provided that malice "shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2, subd. (a)(3).) It also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to be resentenced on any remaining counts. (Stats. 2018, ch. 1015, § 4; Das, at p. 959.)
The Legislature's revisions to substantive murder law did not eliminate direct aiding and abetting liability for murder. (People v. Gentile (2020) 10 Cal.5th 830, 848, superseded by statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869; People v. Curiel (2023) 15 Cal.5th 433, 462.) That is because a direct aider and abettor to murder must possess malice aforethought. (Gentile, at p. 848.)
As amended (and as relevant here), section 1172.6 provides that a person convicted of murder may file a petition to have his or her conviction vacated when: (1) the charges filed against the person allowed the prosecution to proceed on a theory of murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime; (2) the person was convicted of murder after trial or accepted a plea in lieu of a trial at which he or she could have been convicted of murder; and (3) the person could not presently be convicted of murder because of changes to section 188 made effective January 1, 2019. (§ 1172.6, subd. (a)(1)-(3).)
After briefing on the petition, the trial court must hold a hearing and determine whether the petitioner has made out a prima facie case for resentencing. (§ 1172.6, subd. (c).) If the petition and record "establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708.) If instead the petition shows a prima facie entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of murder under section 188 as amended. (Ibid.; § 1172.6, subds. (c), (d)(1), (3).) If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges. (§ 1172.6, subd. (d)(3).)
A trial court's inquiry into whether a petitioner has stated a prima facie case is "limited." (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court takes the petitioner's"' "factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Ibid.) Trial courts may examine the record of conviction to determine whether a petitioning defendant has established a prima facie entitlement to relief. (Id. at pp. 970972.) If the jury instructions provided at trial foreclose the possibility, as a matter of law, that a defendant was convicted on a now-invalid theory of murder, the trial court may deny the petition at the prima facie stage. (See People v. Curiel, supra, 15 Cal.5th at p. 470.) But a trial court may "not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at p. 972.) As our state high court has explained, the" 'prima facie bar was intentionally and correctly set very low.'" (Ibid.) We review de novo a trial court's decision to deny a section 1172.6 petition at the prima facie stage. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
II.
Under these principles, we conclude that defendant failed to establish a prima facie entitlement to relief. Neither the instructions nor the verdict indicate whether the jury convicted defendant of first degree murder as a direct perpetrator or as an aider and abettor. But under either theory, the instructions and verdict conclusively negate the possibility that defendant was convicted of first degree murder based on imputed malice.
As explained above, the jury was instructed on two theories of first degree murder: willful, deliberate, and premeditated murder and murder committed through a drive-by shooting with intent to kill. Each of those required the jury to find an intent to kill, and " 'proof of unlawful "intent to kill" is the functional equivalent of express malice.'" (People v. Catlin (2001) 26 Cal.4th 81, 151; see also § 188, subd. (a)(1).) Accordingly, if the jury convicted defendant on the theory that he was a direct perpetrator, it is clear that he is ineligible for relief.
Defendant is also ineligible for relief if his conviction rested on an aiding and abetting theory. As noted above, Senate Bill 1437 left intact murder liability for direct aiding and abetting. Direct aiding and abetting requires the prosecution to prove" '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 facilitating its commission.'" (People v. Curiel, supra, 15 Cal.5th at p. 466; see also People v. McCoy (2001) 25 Cal.5th 1111, 1118 ["outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator"].) Here, the relevant instruction tracked that definition, requiring the People to prove that defendant "know[ ] of the perpetrator's unlawful purpose" and "specifically intend[ ] to" and in fact "aid, facilitate, promote, encourage, or instigate the perpetrator's commission" of the crime.
Defendant argues that the wording of that instruction is ambiguous and could have allowed the jury to convict him of murder based on a finding that he only intended to assist the shooting-and not that he aided the shooting with the intent to kill. But the instruction stated that to "prove that the defendant is guilty of a crime based on aiding and abetting that crime," the defendant must have "intended to aid and abet the perpetrator in committing the crime." Because defendant was convicted of first degree murder, the terms "that crime" and "the crime" in the instruction could only have referred to the same crime: first degree murder. Accordingly, defendant could still be convicted of murder after the amendments to section 188. (People v. Williams (2022) 86 Cal.App.5th 1244, 1257.)
In light of this conclusion, we decline to address defendant's arguments that the trial court erred in relying on the special circumstance instructions and true finding in denying relief at the prima facie stage. (Travis v. Brand (2023) 91 Cal.App.5th 996, 1006 ["we review results and not reasoning"].)
DISPOSITION
The trial court's order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: Mauro, Acting P. J., Duarte, J.