Opinion
B324996
02-02-2024
THE PEOPLE, Plaintiff and Respondent, v. JESUS ENRIQUE CORONADO, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA283071, Mark S. Arnold, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 2006, a jury found Jesus Coronado guilty of second degree murder with true findings on principal-armed firearm allegations. In 2022, he petitioned for resentencing under Penal Code section 1172.6, which limits accomplice liability for murder. Because Coronado's jury was not instructed on felony murder or the natural and probable consequences doctrine, the trial court denied the petition. Coronado appeals, contending he was convicted based on a theory under which malice was improperly imputed to him. We disagree and affirm the order.
All further undesignated statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
On November 3, 2004, an SUV drove past Luis Valencia's home, and a passenger shot at Valencia, killing him. Coronado later told detectives that he drove three people to the house, and one or more of the passengers shot at the house. Coronado denied knowing that his companions were going to shoot.
We derive the facts regarding the crime from the opinion affirming Coronado's judgment of conviction, People v. Coronado (July 25, 2007, B189922) [nonpub. opn.].
A jury found Coronado guilty of second degree murder (§187, subd. (a)), found true principal gun use allegations (§ 12022.53, subds. (b), (c), (d) &(e)(1)), and found true a gang allegation (§ 186.22, subd. (b)(1)(A)). In 2006, the trial court sentenced Coronado to 15 years to life, doubled based on a prior strike, for the murder and 25 years to life for the firearm enhancement.
In 2022, Coronado petitioned for resentencing under section 1172.6. The People opposed the petition on the ground that Coronado's jury was not instructed on felony murder, the natural and probable consequences doctrine, or other theory that imputed malice to Coronado based solely on his participation in the crime. The People's opposition included the instructions given to Coronado's jury. The trial court denied the petition, finding that Coronado's jury was not instructed on the natural and probable consequences doctrine. The trial court also mistakenly said the jury had found that Coronado personally used a gun, when the jury in fact had found only principal gun use allegations true against him.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that "to be convicted of murder, a principal in a crime shall act with malice aforethought" and malice "shall not be imputed to a person based solely on his or her participation in a crime"). As amended by Senate Bill No. 775, effective January 1, 2022, these ameliorative changes to the law now expressly apply to attempted murder and voluntary manslaughter.
Senate Bill No. 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under the current law. (People v. Strong (2022) 13 Cal.5th 698, 708.)
At the prima facie stage, the trial court takes as true the petitioner's factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. (People v. Lewis, supra, 11 Cal.5th at p. 971.) In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) At the prima facie stage, the trial court does not engage in fact finding that involves the weighing of evidence or exercise of discretion. (Lewis, at p. 972.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), &(d)(1).) But if at the prima facie stage the record of conviction establishes that the petition is meritless, the trial court may dismiss it. (Lewis, at p. 971.)
Because whether a petitioner has established a prima facie case for relief is subject to independent review, the trial court's misstatement in ruling on the section 1172.6 petition that Coronado personally used a gun is irrelevant. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
II. Implied malice murder
Coronado contends he established a prima facie case for relief because his jury was instructed on aiding and abetting and second degree murder in a manner that allowed the jury to impute malice to him based solely on his participation in the crime. To support this contention, he relies on People v. Langi (2022) 73 Cal.App.5th 972 (Langi). However, as we explain, Langi does not require reversal of the order.
A. General principles and Langi
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) "It is express when there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills with 'no considerable provocation ... or when the circumstances attending the killing show an abandoned and malignant heart.' (§ 188, subd. (a)(2))." (People v. Gentile, supra, 10 Cal.5th at p. 844.) "The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not." (People v. Soto (2018) 4 Cal.5th 968, 976.) Second degree murder therefore is an unlawful killing with malice aforethought but without the willfulness, premeditation, and deliberation required for first degree murder.
The guilt of an aider and abettor to a crime, including murder, is "based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "A person aids and abets the commission of a crime when [the person], (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Langi examined the interplay between the standard instructions on aiding and abetting and second degree murder. (See also People v. Powell (2022) 63 Cal.App.5th 689.) In Langi, Langi and three other men beat the victim, who died from head trauma after falling and hitting his head during the assault. As here, Langi's jury was instructed on aiding and abetting with CALJIC No. 3.01 and on second degree murder with CALJIC No. 8.31. (Langi, supra, 73 Cal.App.5th at p. 981.)
CALJIC No. 3.01, as given to Langi's jury, stated that a person aids and abets the commission of a crime when the person (1) with knowledge of the perpetrator's "unlawful purpose," and (2) with the "intent or purpose" of committing or encouraging or facilitating the crime's commission, (3) by act or advice aids, promotes, encourages or instigates the crime's commission. (Langi, supra, 73 Cal.App.5th at p. 981.)
CALJIC No. 8.31, as given to Langi's jury, stated that a killing is a second degree murder if (1) the killing resulted from an intentional act, (2) the act's natural consequences are dangerous to human life, and (3) the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When the killing is the direct result of such an act, it is unnecessary to prove that the defendant intended that the act would result in the person's death. (Langi, supra, 73 Cal.App.5th at p. 981.)
The jury found Langi guilty of second degree murder, and the trial court summarily denied his subsequent section 1172.6 petition. On appeal, however, the appellate court found that the defendant was entitled to an evidentiary hearing because the instructions permitted him to be found guilty of aiding and abetting second degree murder by improperly imputing malice to him and without finding he personally acted with malice. The court explained that although the aiding and abetting instruction stated that a person aids and abets a crime if the person acts with knowledge of the perpetrator's unlawful purpose and with the intent or purpose to commit or encourage that crime, "the second-degree-murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death." (Langi, supra, 73 Cal.App.5th at p. 982.) That is, "while the perpetrator must have deliberately performed the fatal act 'with knowledge of the danger to, and with conscious disregard for, human life' (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator's purpose need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent." (Id. at pp. 982-983.) Under the instructions given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, Langi need only have intended to encourage the perpetrator's intentional act- punching the victim-whether or not Langi intended to aid or encourage the victim's killing, and whether or not Langi personally knew of and disregarded the risk of such a killing. (Id. at p. 983.) In short, the instructions permitted the jury to find that the aider and abettor intended to help the perpetrator commit an act-an assault, for example-without the mental state of conscious disregard for human life. Langi concluded that the instructions should have been tailored to state that, to be guilty as a direct aider and abettor of second degree murder, an accomplice must have acted with the mental state of implied malice. (Ibid.)
B. The instructions did not allow the jury to impute malice to Coronado
Like Langi's jury, Coronado's jury was instructed on aiding and abetting with CALJIC No. 3.01 and on second degree murder with CALJIC No. 8.31. The trial court also instructed the jury with CALJIC No. 3.00, that principals in a crime are "equally guilty," and with CALJIC Nos. 8.10 and 8.11, defining murder and malice aforethought.
The jury was also instructed with CALJIC No. 8.25.1, that murder perpetrated by discharging a firearm from a motor vehicle intentionally at another person outside the vehicle when the perpetrator specifically intended to inflict death is first degree murder.
As we have said, CALJIC No. 3.01 instructed that the aider and abettor must act knowing of the actual perpetrator's "unlawful purpose." Langi interpreted "unlawful purpose" to mean that the actual perpetrator could have meant only to strike, injure or embarrass the victim-unlawful purposes implicating something less than an intent to kill or a conscious disregard for human life. (Langi, supra, 73 Cal.App.5th at pp. 982-983.) To be sure, in isolation "unlawful purpose" could mean something other than intent, such as motive, which is what we understand Langi to be saying. But such an interpretation divorces "unlawful purpose" from its context. We do not read phrases in instructions in isolation. (People v. Burton (2018) 29 Cal.App.5th 917, 925 [we interpret instructions as a whole].)
Rather, CALJIC No. 3.01 uses the word "purpose" in two places. The instruction states that a person aids and abets a crime's commission when the person with knowledge of the (1) perpetrator's "unlawful purpose" and (2) "[w]ith the intent or purpose of committing or encouraging or facilitating" the crime's commission, by act or advice aids, promotes, encourages or instigates the crime's commission. (CALJIC No. 3.01, italics added.) When CALJIC No. 3.01 uses "purpose" the second time, it is used as a synonym for "intent," as the instruction refers to the aider and abettor's "intent or purpose." There is no reason why "purpose" would have a different meaning the first time it is used in that instruction when it refers to the perpetrator's "unlawful purpose." Rather, a rule of construction is that where a statute (or, as here, a jury instruction) uses synonymous words or phrases interchangeably, they should be understood to have the same meaning. (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 866.) Therefore, "unlawful purpose" refers to the actual perpetrator's unlawful intent, which for murder is malice aforethought, express or implied.
We do not read the instruction otherwise, as suggesting Coronado could be liable for aiding and abetting second degree murder despite knowing that his accomplice intended some other, lesser "unlawful purpose." There is no reason why a jury, as Langi suggests, would think that unlawful purpose means anything other than acting with an intent to kill or committing an act with conscious disregard for human life. Indeed, our California Supreme Court rejected a similar interpretation of the aiding and abetting instruction as that urged by Langi. In People v. Hardy (2018) 5 Cal.5th 56, 96, the defendant argued that his jury was not properly instructed that torture and aiding and abetting require specific intent. After quoting CALJIC No. 3.01, the court said that the language "intent or purpose" in it was not something different from or less than specific intent. (Hardy, at p. 96; see also People v. Beeman (1984) 35 Cal.3d 547, 561.) "If anything, 'purpose' is a higher standard than 'intent.'" (Hardy, at p. 96.)
Also, CALCRIM No. 3.01 required the aider and abettor to know that the perpetrator intended to commit the crime. The only crime charged here was murder, either in the first or second degree. In this way, Langi is distinguishable because the defendant in that case was also charged with and found guilty of the crimes of robbery and battery. (Langi, supra, 73 Cal.App.5th at p. 976.) But here, the only crime charged, murder, required malice aforethought, which is of one of two kinds: either express malice/intent to kill or implied malice/conscious disregard. (CALJIC Nos. 8.10, 8.11, 8.31.) It is unclear how an aider and abettor could know that the perpetrator intended to commit a specific crime, help the perpetrator commit that crime, and yet not personally harbor the requisite mens rea. As our California Supreme Court said in People v. McCoy, supra, 25 Cal.4th at page 1123, where the only unlawful purpose charged is an unlawful killing, "one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice."
Nor does Coronado's additional argument that the "equally guilty" language in CALJIC No. 3.00 permitted the jury to find him guilty of murder without finding he had the requisite intent. Our California Supreme Court rejected a similar argument in People v. Johnson (2016) 62 Cal.4th 600. In that case, the court found that the same language in CALCRIM No. 400 did not allow 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. (Johnson, at pp. 638, 641.) The court said that where a jury was instructed with CALCRIM No. 401, which is CALJIC No. 3.01's equivalent, there is no reasonable likelihood jurors would have understood the "equally guilty" language to allow them to base the defendant's liability for murder on the direct perpetrator's mental state rather than on the defendant's own mental state in aiding and abetting the crime. (Johnson, at p. 641; see also People v. Estrada (2022) 77 Cal.App.5th 941, 947.)
As given to Coronado's jury, CALJIC No. 3.00 instructed that all persons involved in committing a crime are principals in that crime, and each "principal, regardless of the extent or manner of participation is equally guilty. Principals include: 1. Those who directly and actively commit the act constituting the crime, or 2. Those who aid and abet the commission of the crime."
DISPOSITION
The order denying Jesus Coronado's Penal Code section 1172.6 petition is affirmed.
I concur: ADAMS, J.
LAVIN, J., Dissenting:
The trial court summarily denied Jesus Coronado's resentencing petition in August 2022. The court's oral ruling denying the petition-there is no written order in the record-consists of approximately one page of the reporter's transcript. The court gave two reasons for its ruling: the jury found true the allegation that Coronado personally used a firearm and the jury was not given the natural and probable consequences instructions. As the majority acknowledges, the court's first reason for denying the petition was wrong.
The minute order from that proceeding provides no additional explanation for the court's ruling.
In addition to the court's erroneous determination concerning the personal use of a firearm, Coronado contends he cannot be deemed ineligible for resentencing as a matter of law at the prima facie stage based on ambiguity in the aiding and abetting instructions provided to the jury. For their part, the People emphasize that two cases which support Coronado's contention-People v. Powell (2021) 63 Cal.App.5th 689 and People v. Langi (2022) 73 Cal.App.5th 972-are unpersuasive because they misinterpret the challenged instructions. Our Supreme Court recently cited Powell and Langi with approval, however. (See People v. Reyes (2023) 14 Cal.5th 981, 990992.) Based on our high court's endorsement, we necessarily must reject the position that we should disregard Powell and Langi.
At the end of the day, we need not decide whether Powell and Langi were correctly decided. In the relatively short time since Coronado filed his opening brief, our high court has issued at least two significant decisions that may affect the resolution of the issues raised in this appeal. (See, e.g., People v. Curiel (2023) 15 Cal.5th 433; People v. Reyes, supra, 14 Cal.5th 981.) Given the lower court's undisputed error concerning the personal use of a firearm allegation and the recent changes in this area of the law, I would reverse the order and remand the matter for a new prima facie hearing. Doing so will provide the parties an opportunity to address more fully the current state of the law as it applies to Coronado's petition.