Opinion
F084224
05-22-2023
THE PEOPLE, Plaintiff and Respondent, v. MANUEL ANTONIO CONTRERAS, Defendant and Appellant.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF136137A Nathan G. Leedy, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2006, appellant and defendant Manuel Antonio Contreras was convicted after a jury trial of conspiracy to commit murder, and three counts of attempted murder. He was sentenced to 25 years to life for conspiracy, plus a consecutive term of 25 years to life for a personal discharge enhancement, with concurrent terms for the attempted murder convictions and attached enhancements.
In 2022, appellant filed a petition for resentencing pursuant to Penal Code section 1172.6 and asserted he was entitled to relief because he was convicted based on theories of imputed malice. The superior court denied the petition. We affirm.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition in 2022 under the former version of section 1170.95, that became effective on January 1, 2022. The statute was renumbered as section 1172.6 without substantive change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3; Stats. 2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022.) As such, we refer to the subject statute by its current number throughout this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (People v. Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) This court advised the parties that it was considering taking judicial notice of our own records in appellant's prior appeals and invited briefing; the parties did not object. Accordingly, this court takes judicial notice of the records and nonpublished opinions in People v. Manuel Contreras (Apr. 18, 2008, F051645) (Contreras I) and People v. Manuel Contreras (Aug. 27, 2009; F056215) (Contreras II). (Evid. Code, § 450, § 452, subd. (d).) The following factual and procedural summary is from the records we have judicially noticed. We recite the factual statement from the prior appeals to provide context for the trial court's ruling and the parties' appellate arguments, and do not rely on the factual statement to resolve the issues presented in this appeal. (§ 1172.6, subd. (d)(3).)
Appellant Manuel Contreras is a member of the criminal street gang known as the Surenos. On October 29, 2003, appellant's family residence was shot at while he and other gang members were present. Appellant believed members of the rival Nortenos gang were responsible for the shooting. Appellant asked fellow Sureno, Pablo Salazar, to procure a gun for his family's protection. The next day, Salazar brought a sawed-off shotgun to appellant's house. Appellant, Salazar, and others took turns passing the gun around. They met again on October 31, 2003, and specifically spoke of getting "payback" for the October 29 shooting by stealing a car, finding Nortenos and shooting at them.
Later that night, appellant set out in a borrowed truck belonging to his friend Lucio Delgadillo. Appellant was accompanied by Salazar and Alberto Corona. Appellant drove past a house where a Halloween party was in progress, and they thought they recognized a few Nortenos among the partygoers in front of the house.
After appellant drove by the house a couple more times, Salazar fired the shotgun at a group of three people who were standing closely together in front of the house. All three were struck by shotgun pellets discharged as a result of the single shot Salazar fired from a distance of about 15 feet: Javier Espindola was struck in the face and permanently blinded in both eyes, one of which had to be removed, Lorenzo Ruiz was also struck in the face and permanently blinded in one eye, and Edward Alonzo was hit by a single shotgun pellet which lodged in his shoulder.
The Charges
On April 7, 2005, an information was filed in the Superior Court of Tulare County charging appellant with 11 felony counts consisting of three counts of conspiracy to commit murder; three counts of attempted premeditated murder; three counts of assault with a firearm; mayhem; and permitting another to shoot from a vehicle; with multiple special allegations.
Trial and Jury Instructions
On September 25, 2006, appellant's jury trial began.
On October 3, 2006, the court instructed the jury. As will be discussed below, the jury was instructed with CALCRIM Nos. 400 and 401 on aiding and abetting; CALCRIM Nos. 415 and 417 on conspiracy to commit murder; CALCRIM Nos. 600 and 601 on attempted murder; and CALCRIM No. 875 on assault with a deadly weapon.
Verdicts
On October 5, 2006, the jury convicted appellant of the following offenses:
Counts 1, 2, and 3: conspiracy to commit murder of, respectively, Espindola, Ruiz, and Alonzo (§§ 182, 187) with true findings on the attached gang enhancements (§ 186.22, subd. (b)), and that a principal personally discharged a firearm that proximately caused great bodily injury (§ 12022.53, subds. (c), (d), (e)(1));
Counts 4, 5, and 6: attempted premeditated murder of, respectively, Espindola, Ruiz, and Alonzo (§§ 664, 187); with true findings on the attached gang enhancements, and that a principal personally and intentionally discharged a firearm that proximately caused great bodily injury (§ 12022.53, subds. (c), (e)(1));
Count 7: mayhem committed upon Espindola (§ 203), with true findings on the attached gang enhancements (§ 186.22, subd. (b)); and that a principal intentionally discharged a firearm that proximately caused great bodily injury (§ 12022.53, subds. (d), (e)(1));
Count 8: permitting another to shoot from a vehicle (§ 12034, subd. (b)) with the gang enhancement; and
Counts 9, 10, and 11: assault with a firearm on, respectively, Espindola, Ruiz, and Alonzo (§ 245, subd. (a)(2)), with gang enhancements, and that a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Sentence
On November 3, 2006, appellant was sentenced to an aggregate indeterminate sentence of 145 years to life. (Contreras I, supra, F051645).)
Direct Appeal
In his direct appeal, appellant argued the People improperly "splintered" the conspiracy and attempted murder charges into multiple counts, even though each count was based on the same set of facts.
On April 18, 2008, this court filed the nonpublished opinion in his direct appeal that rejected his challenges to the attempted murder convictions, but agreed that appellant was improperly convicted of three separate counts of conspiracy: "[Appellant] was charged with three counts of conspiracy. The amended information alleged that all three counts occurred during the same period of time and referred to a single list of overt acts to support all three counts. As in the conspiracy and solicitation cases discussed previously, the evidence here did not establish separate agreements to commit crimes against particular individuals. Rather, as the People acknowledge on appeal: 'The objective of the conspiracy was to murder Nortenos. There was no evidence the conspiracy was directed specifically at the three victims. In fact, all of the evidence indicates the victims' fate was tied to their location at the time Salazar shot at the party.' To further the conspiracy's primary objective, [appellant] and his coconspirators obtained a gun and a vehicle, drove until they found a house where a party they believed to be attended by Nortenos was in progress, and then, after driving around the block a few more times, fired once at the group comprised of the three victims before fleeing. Taken together, these facts and circumstances support a determination that there was only one conspiracy, not three. [Citation.] We find no authority for the People's suggestion that, under the particular circumstances of this case, the existence of three victims converted a single agreement to murder unspecified Nortenos into three separately planned murders for which defendant could be convicted and punished for three conspiracies." (Contreras I, supra, F051645, at pp. 9-10.)
We rejected appellant's attacks on his attempted murder convictions, and, in all other respects, we affirmed the judgment. We ordered appellant's convictions in counts 2 and 3 for conspiracy to commit murder stricken, only affirmed the single conviction for conspiracy to commit murder in count 1 and remanded the matter for resentencing. (Contreras I, supra, F051645, at p. 13.)
Sentence on Remand and Second Appeal
On August 18, 2008, the trial court conducted the resentencing hearing on remand. As to count 1, the single count of conspiracy to commit murder, appellant was sentenced to 25 years to life, with a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement, for an aggregate term of 50 years to life.
As to counts 4, 5, and 6, attempted premeditated murder, the court imposed concurrent terms for the convictions and attached enhancements; and it stayed the terms for the remaining convictions and enhancements pursuant to section 654.
Thereafter, appellant filed another appeal and argued the aggregate sentence of 50 years to life violated the constitutional prohibitions against cruel and unusual punishment.
On August 27, 2009, this court affirmed the trial court's resentencing decisions and rejected appellant's constitutional claims. (Contreras II, supra, F056215.)
APPELLANT'S SECTION 1172.6 PETITION
On March 3, 2022, appellant filed a petition for resentencing of his convictions for attempted murder pursuant to section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or manslaughter; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The Court's Denial of the Petition
On or about March 10, 2022, the trial court summarily denied appellant's petition without appointing counsel or holding a hearing, and found: "Petitioner was convicted of conspiracy to commit murder, which is not an offense that qualifies for resentencing under [section] 1170.95."
On April 19, 2022, appellant filed a timely notice of appeal.
DISCUSSION
We begin with Senate Bill No. 1437's (2017-2018 Reg. Sess.) (Senate Bill 1437) amendments of sections 188 and 189, the enactment of section 1172.6 and subsequent statutory amendments.
"Effective January 1, 2019, Senate Bill ... 1437 ... amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," codified in section 1172.6. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted.) The original version of the statute permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill ... 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill 775) amended section 1172.6 and" '[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
Section 1172.6, subdivision (a) thus states:
"(a) A person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a), italics added.)
While not applicable herein, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id., subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
If an order to show cause is issued, "the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence...." (§ 1172.6, subd. (d)(1).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens " (§ 1172.6, subd. (d)(3).)
"If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing" in determining whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted.)
The prima facie determination is a question of law, and the trial court may deny a petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.)
Lewis announced a prejudicial error standard under People v. Watson (1956) 46 Cal.2d 818, that if the court failed to appoint counsel or violated the petitioner's statutory rights under former section 1170.95, the petitioner must "therefore 'demonstrate there is a reasonable probability that in the absence of the error he [or she] ... would have obtained a more favorable result.'" (Lewis, supra, 11 Cal.5th at p. 974.) To demonstrate prejudice from the denial of a former section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson, at p. 836.)
II. The Court's Summary Denial of Appellant's Petition
The trial court herein failed to comply with section 1172.6 because it summarily denied appellant's petition without granting his request for appointment of counsel, obtaining further briefing, or conducting a hearing as to whether he made a prima facie case for relief and an order to show cause should be issued.
The court complied with section 1172.6 by giving a statement of reasons for denying appellant's petition without issuing an order to show cause. In doing so, however, the court found he was "convicted of conspiracy to commit murder, which is not an offense that qualifies for resentencing.... "
Appellant correctly argues the court failed to address that his petition alleged he was convicted of attempted murder under a theory that was no longer valid after the amendments to sections 188 and 189. Appellant speculates that when the trial court denied his petition, it was unaware of the amendments that became effective on January 1, 2022, that added attempted murder to the convictions that were eligible for resentencing under section 1172.6.
The court's failure to comply with the statutory requirements of section 1172.6 is not prejudicial unless the petitioner shows it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson, supra, 46 Cal.2d at p. 836.)
III. Appellant Was Ineligible for Relief as a Matter of Law
Appellant argues the court's failures to appoint counsel and consider his convictions for attempted murder were prejudicial because the amendments that were effective as of January 1, 2022, added attempted murder to the convictions for which a section 1172.6 petition could be filed. The People argue that the jury's verdicts for attempted premeditated murder and conspiracy to commit murder establish that it found he acted with the intent to kill, and he was not convicted under any theories of imputed malice.
In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 971-972 &fn. 6.) The record of conviction allows the court "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that . culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Id. at p. 971.)
In response to this court's request for supplemental briefing, appellant argued this court could take judicial notice of its own records, but it could not rely on the jury instructions from his trial to determine whether his petition stated a prima facie case for resentencing. However, jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1255; People v. Offley (2020) 48 Cal.App.5th 588, 599.)
Appellant was convicted of three counts of attempted premeditated murder. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177-178; People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Thus, while murder may be premised on a conscious disregard for life, attempted murder requires the specific intent to kill. (Ibid.) In addition, the crime of attempted murder is not divided into degrees, but the prosecution may seek a finding that the attempted murder was willful, deliberate, and premeditated for purposes of sentence enhancement. (Id. at p. 740.)
Appellant was also convicted of one count of conspiracy to commit murder. "[A] conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice." (People v. Swain (1996) 12 Cal.4th 593, 607.) "[C]onspiracy is a specific intent crime requiring both an intent to agree or conspire and a further intent to commit the target crime or object of the conspiracy." (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) "The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder - hence all murder conspiracies are conspiracies to commit first degree murder, so to speak. More accurately stated, conspiracy to commit murder is a unitary offense punishable in every instance in the same manner as is first degree murder under the provisions of Penal Code section 182." (Ibid., fn. omitted.)
As explained above, appellant was originally convicted of three counts of conspiracy to commit murder, but this court ordered two of those convictions stricken in his direct appeal.
We thus turn to the jury instructions in the record of conviction to confirm the jury convicted appellant based upon his intent to kill and not any theory of imputed malice.
A. The Attempted Murder Instructions
As to attempted murder, the jury was instructed with CALCRIM No. 600, that to convict appellant of the three charged counts, "the People must prove that, one, the defendant took at least one direct but ineffective step toward killing another person; two, the defendant intended to kill that person." The instruction defined a direct step, whether the defendant abandoned efforts to commit the crime, and the "kill zone" theory of murder and concluded: "In order to convict the defendant of attempted murder of any of the three charged crimes, the People must prove the defendant not only intended to kill, but also either intended to kill a Norteno gang member or intended to kill anyone within the kill zone."
The jury was thus instructed that it had to find appellant had the intent to kill in order to convict him of three counts of attempted murder.
B. Aiding and Abetting Instructions
The court instructed the jury with CALCRIM No. 400 that appellant, who was tried alone, could be guilty of a crime either as the direct perpetrator or he may have aided and abetted someone else who committed the crime. CALCRIM No. 400 further stated: "A person is equally guilty of the crime whether he or she committed it personally, or aided and abetted the perpetrator who committed it." (Contreras I, supra, F051645, italics added.)
This version of CALCRIM former No. 400 has since been modified to eliminate the phase" 'equally guilty.'" (People v. Johnson (2016) 62 Cal.4th 600, 638; People v. Estrada (2022) 77 Cal.App.5th 941, 947-948.)
The court also gave CALCRIM No. 401, that stated in relevant part:
"To prove the defendant is guilty of a crime based on aiding and abetting that crime, ... the People must prove that, one, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrators 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." (Contreras I, supra, F051645, italics added.)
While CALCRIM former No. 400 used the phrase "equally guilty," the California Supreme Court has rejected the argument that this language allowed a jury to convict an aider and abettor of first degree murder based on the perpetrator's culpability without considering the aider and abettor's own mental state. (People v. Johnson, supra, 62 Cal.4th at pp. 638-641.) The court held that where the jury was also instructed with CALCRIM No. 401, setting forth the requirements for establishing aider and abettor liability, "there was no reasonable likelihood the jurors would have understood the 'equally guilty' language [in CALCRIM former No. 400] to allow them to base defendant's liability for first degree murder on the mental state of the actual shooter, rather than on defendant's own mental state in aiding and abetting the killing." (Johnson, at p. 641; People v. Estrada, supra, 77 Cal.App.5th at p. 947.)
Based on Johnson, the inclusion of the phrase in CALCRIM former No. 400 did not affect the jury's finding of an intent to kill since it also received CALCRIM No. 401.
C. Conspiracy Instructions
As to conspiracy to commit murder, the jury received CALCRIM No. 415:
"I have explained that the defendant may be guilty of a crime if he either commits the crime or aids and abets the crime. He may also be guilty if he is a member of a conspiracy. Defendant is charged in Counts 1 through 3 with conspiracy to commit murder. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant intended to agree and did agree with one or more of the co-participants, Pablo Salazar, Alberto Corona, and Lucio Delgadillo to commit murder; two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder; three, the defendant, or Pablo Salazar, Alberto Corona or Lucio Delgadillo or any combination of them committed at least one of the alleged overt acts to accomplish murder ...; and, four, at least one of these overt acts was committed in California.
"To decide whether the defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to the separate instructions that I have given you on those crimes.
"The People must prove that the members of the alleged conspiracy had an agreement, an intent to commit murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a details or formal agreement to commit that crime.." (Contreras I, supra, F051645, at pp. 5-6, italics added.)
The jury also received CALCRIM No. 417 as follows:
"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy, and that act is a natural and probable consequence of the common plan or design of the conspiracy.
"This rule applies even if the act was not intended as part of the original plan. A natural and probable consequence is one that a reasonable person would know if likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.
"To prove that the defendant is guilty of the crime[s] charged in Counts 1, 2 and 3 of conspiracy to commit murder, the People must prove that, one, the defendant conspired to commit murder; two, a member of the conspiracy committed attempted murder and assault with a firearm to further the conspiracy; and [three,] attempted murder and assault with a firearm were natural and probable consequences of the common plan or design of the crime that defendant conspired to commit." (Contreras I, supra, F051645, at p. 6, italics added.)
While the instruction used the phrase "natural and probable consequences," the inclusion of that language does not mean the jury relied on a theory of imputed malice to convict appellant of attempted murder. First, there is no such thing as a conspiracy where the target offense is attempted murder. (People v. Iniguez (2002) 96 Cal.App.4th 75, 79.)
"Second, under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the 'natural and probable consequence' of the crime the accomplice aided and abetted (i.e., the nontarget offense)." (People v. Gentile (2020) 10 Cal.5th 830, 843.) "Under the natural and probable consequences theory of aiding and abetting a murder, a defendant can be found guilty of murder if he or she aids and abets a crime (i.e., the target crime) and murder (i.e., the nontarget crime) is a natural and probable consequence of that target crime." (People v. Chavez (2018) 22 Cal.App.5th 663, 683.)
Third, although the natural and probable consequences doctrine applies most commonly when a defendant directly aids and abets a target offense, it "applies with equal force to cases involving the vicarious liability of conspirators for a crime committed in furtherance of the conspiracy." (People v. Weddington (2016) 246 Cal.App.4th 468, 487; People v. Zielesch (2009) 179 Cal.App.4th 731, 739.)
As explained above, Senate Bill 1437 "amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v Harden, supra, 81 Cal.App.5th at pp. 50-51; Strong, supra, 13 Cal.5th at pp. 707-708.) As of January 1, 2022, section 1172.6 was amended to clarify" 'that persons who were convicted of attempted murder or manslaughter under a theory of _ the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall, supra, 77 Cal.App.5th at p. 865, fn. 18; People v. Vizcarra, supra, 84 Cal.App.5th at p. 388.)
While the language in CALCRIM No. 417 may appear to have permitted the jury to convict appellant of attempted murder under the now-prohibited "natural and probable consequences" theory, the entirety of the instruction refutes any possibility the jury did so. CALCRIM No. 417 expressly identified two offenses as the "natural and probable consequences of the common plan or design of the crime that defendant conspired to commit" murder, as charged in count 1: "attempted murder," charged separately in counts 4, 5, and 6, and which the jury was properly instructed to find an intent to kill; and "assault with a firearm," charged separately in counts 9, 10, and 11, and which the jury was also corrected instructed on.
As to counts 9, 10, and 11, assault with a firearm, the jury was instructed with CALCRIM No. 875, that stated in relevant part, to prove appellant guilty of the offenses, the People had to prove "one, the defendant did an act which by its nature would probably and directly result in the application of force to a person; two, the defendant did that act willfully; when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would probably and directly result in the application of physical force to someone; four, when the defendant acted, he had the present ability to apply force with the firearm."
Convictions for attempted murder and a conspiracy to commit murder required the intent to kill. (People v. Juarez (2016) 62 Cal.4th 1164, 1169-1170, 1174.) The jury could only convict appellant of conspiracy to commit murder if it found he agreed and intended to commit the target offense of murder, and it could only convict appellant of attempted murder if it found he had the intent to kill. The instructions did not permit the jury to convict appellant of three counts of attempted murder under the natural and probable consequences doctrine, because that doctrine only "applies to unintended, nontarget offense." (People v. Medrano (2021) 68 Cal.App.5th 177, 183-185.) "Here, the target offense was first degree murder. We know this because appellant was convicted of conspiracy to commit first degree murder. '[A] conviction of conspiracy to commit murder requires a finding of intent to kill.' [Citation.]' "[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder." '" (Id. at pp. 182-183.)
Appellant was convicted of "conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility [he was] found guilty of [attempted] murder on a natural and probable consequences theory." (People v. Beck and Cruz (2019) 8 Cal.5th 548, 645.)
D. Conclusion
Based on the entirety of the instructions and the verdicts that are part of the record of conviction, appellant is ineligible for resentencing under section 1172.6 as a matter of law, and the trial court's failure to comply with the statute was not prejudicial.
Appellant separately argues the trial court's failure to grant his petition for resentencing was prejudicial because he was also eligible for the court to reconsider other aspects of his aggregate sentence. Appellant points to different statutory amendments that affected the gang and firearm enhancements, and asserts that the trial court could reconsider the terms imposed for those enhancements at a resentencing hearing. (AOB 11-12) A petition filed pursuant to section 1172.6 is limited to the issues implicated by that statute and the statutory amendments enacted by Senate Bill No 1437. (See, e.g., People v. DeHuff (2021) 63 Cal.App.5th 428, 438; People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Appellant must file separate petitions and/or motions for resentencing on other grounds.
DISPOSITION
The court's order filed on or about March 10, 2022, denying appellant's section 1172.6 petition, is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and De Santos, J.