Opinion
H049028
06-05-2023
In re C.S., a Person Coming Under the Juvenile Court Law. v. C.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. JV38951)
Greenwood, P. J.
Defendant C.S. appeals from a judgment entered pursuant to Welfare and Institutions Code section 602. C.S. was convicted by a jury in adult criminal court. After the jury's verdict but before sentencing, C.S.'s case was transferred to juvenile court, where the judgment against him was entered.
C.S. and his adult codefendant Jacob Lynch were tried together, and they were convicted on the same charges and allegations. This court reversed Lynch's conviction on all counts in People v. Lynch (May 18, 2022, H046478) [nonpub. opn.] (Lynch). C.S. now seeks reversal of his conviction based on this court's decision in Lynch. The Attorney General correctly concedes that the errors identified in Lynch apply equally to C.S. Accordingly, we reverse the judgment.
This court granted judicial notice of the records in People v. Lynch, H046478, as well as in People v. Conway, H044790, the case of adult defendant Scott Conway, who was tried with Lynch and C.S.
I. Background
A. Procedural History
After a trial in 2016, C.S. and Lynch were convicted of first degree murder with a gang murder special circumstance (Pen. Code, §§ 187, 190.2, subd. (a)(22) ; count 1); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2); and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). The jury also found true gang enhancement allegations (§ 186.22, subds. (b)(1)(A) & (b)(5)) as to counts 1 and 2.
Undesignated statutory references are to the Penal Code.
Conway, who was charged in counts 1, 2 and 3, as well as with two additional counts based on other incidents, was acquitted on count 1, but convicted on counts 2, 3, 4, and 5.
C.S. was 15 years old at the time of the charged offenses. As permitted by the versions of Welfare and Institutions Code section 602 and 707 in effect at the time of trial, the District Attorney elected to file the charges against C.S. in adult court. (C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1014 (C.S.).) The matter proceeded to trial and the jury returned its verdicts on August 2, 2016.
On November 8, 2016, before C.S.'s sentencing hearing, voters passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which became effective on November 9, 2016. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304.) Proposition 57 amended Welfare and Institutions Code sections 602 and 707 to preclude prosecutors from directly filing charges against a minor in adult court. The initiative's amendments to the statutes instead require a transfer hearing in juvenile court before the prosecution can proceed to trial in adult criminal court. (C.S., supra, 29 Cal.App.5th at pp. 1014-1015.)
C.S.'s case was transferred to juvenile court with the jury's convictions intact, and a contested transfer hearing took place. On February 16, 2018, the juvenile court found that C.S. was not fit for treatment in juvenile court and entered a transfer order. C.S. challenged the transfer order in a petition for writ of mandate, and this court vacated the juvenile court's order and remanded with directions to consider recent changes in the law and to provide a statement of its reasons for granting the transfer that would permit meaningful appellate review. (C.S., supra, 29 Cal.App.5th at p. 1016.)
On September 30, 2018, the Legislature passed Senate Bill No. 1391 (2017-2018 Reg. Sess.), which became effective January 1, 2019. This legislation eliminated a prosecuting attorney's authority to bring a transfer motion in a case where the minor was 14 or 15 years old at the time of the offense. (C.S., supra, 29 Cal.App.5th at p. 1038.)As a result, when C.S.'s case was remanded to the juvenile court on February 13, 2019, no transfer hearing was held.
At the time this court decided C.S., we noted that Senate Bill No. 1391 "has yet to go into effect, and it has 'no force' as to C.S." (C.S., supra, 29 Cal.App.5th at p. 1039.) By the time the case was remanded after the issuance of the remittitur and was before the juvenile court, the new law was in effect.
The juvenile court held a dispositional hearing on March 22, 2021. C.S. was adjudged a ward of the court, and he was committed to the Department of Corrections, Division of Juvenile Justice. The advised maximum time was calculated at 27 years, 8 months.
C.S. filed a timely notice of appeal.
C.S. initially filed a motion for summary reversal based upon this court's decision in Lynch. The Attorney General opposed the motion, and suggested that this court construe C.S.'s motion and the opposition as the appellate briefing on the matter. In the opposition, the Attorney General also conceded the merits of C.S.'s arguments. This court denied the motion for summary reversal and ordered the pleadings filed in support and opposition of the motion to be treated as the parties' appellate briefs on the merits.
B. Factual Summary of the Case
The facts for this summary are taken from this court's opinion in Lynch.
On April 27, 2012, brothers Heriberto Reyes and Juan Reyes, Jr. went to Roosevelt Park in San Jose to play basketball. As Juan and Heriberto approached the court, a group of young men, including Lynch and C.S., stopped the brothers and began questioning them. The group suspected that Heriberto, who was wearing a blue cap, was a member of a rival gang. They asked Heriberto if he was a "gangbanger," which he denied. C.S. lifted Heriberto's shirt to look for tattoos, while other members of the group yelled insults at him. (Lynch, supra, H046478, at pp. 2-3.)
Juan told the people in the group to leave them alone, and he stated that they had come to the park to play basketball. Juan moved towards Heriberto to protect him, but members of the group started hitting Heriberto. C.S. hit Heriberto in the back of the head, and he fell to the ground. When Heriberto tried to get up, C.S. and Lynch started kicking him in the head. They continued to kick him and stomp on his head, stomach, legs, and back while he was motionless on the ground. (Lynch, supra, H046478, at p. 3.)
Other members of the group, including Conway, assaulted Juan. Juan was knocked unconscious by a blow from one of the attackers. (Lynch, supra, H046478, at pp. 3-4.)
C.S., Lynch, and the rest of the group fled, leaving Heriberto and Juan unconscious on the basketball court. Juan survived the assault, but Heriberto died from his injuries. (Lynch, supra, H046478, at p. 4.)
II. Discussion
In Lynch, a different panel of this court identified three errors that required reversal of each of the counts for which Lynch was convicted. C.S. contends that the court's analysis in Lynch applies equally to his case. As Lynch and C.S. were jointly tried on the same evidence and same theories of criminal liability, the Attorney General correctly concedes that as a matter of logic, the errors identified in Lynch apply equally to C.S. We agree with the parties that this case should be reversed on all counts.
A. Reversal of the First Degree Murder Conviction
In Lynch, the court held that modifications made by the trial court to the standard instruction on premeditation and deliberation, CALCRIM No. 521, rendered the instruction ambiguous. (Lynch, supra, H046478, at p. 14.) The trial court added two additional lines to the standard instruction, stating that: "A person commits an act willfully when he or she does it willingly or on purpose. A person deliberates if he or she carefully weighs the considerations for and against his or her choice, and knowing the consequences decides to act." (Id. at p. 13.) The court determined that the trial court erred when it added this language to the premeditation instruction because these two sentences informed the jury that it was the decision "to act" rather than the decision "to kill" that was required to be premeditated and deliberate. (Id. at p. 14.)
The court concluded that the ambiguity in the instruction was compounded by the arguments of the prosecutor. The opinion noted that the prosecutor relied on the mistakenly included sentences to argue that it was Lynch's decision to hit or punch Heriberto that needed to be premeditated. (Lynch, supra, H046478, at pp. 14-15.) The court concluded that the error was prejudicial, and thus Lynch's first degree murder conviction could not stand. (Id. at pp. 15-16.) It then gave the prosecution the option to retry Lynch for first degree murder, or to elect acceptance of a second degree murder conviction in its place. (Id. at p. 16.) The Attorney General requests a similar disposition here.
The analysis in Lynch on this issue applies equally to C.S.'s case. The record makes clear that the instructions regarding premeditation and deliberation this court found to be erroneous applied to both defendants. In addition, the prosecutor at trial relied on the same evidence and the same theories to establish premeditation and deliberation for both Lynch and C.S. In closing argument, the prosecutor argued in the alternative that (1) Lynch was the direct attacker who killed Heriberto or he aided and abetted C.S. in killing him; and (2) C.S. was the direct killer of Heriberto or he aided and abetted Lynch in killing him.
Accordingly, we agree with the parties that the court's erroneous instruction on the premeditation element of first degree murder, reinforced by the prosecutor's arguments based on the erroneous instructional language, was prejudicial and "the first degree murder conviction cannot stand. On remand, the prosecutor may elect to retry the first degree murder count or may elect to accept a second degree murder conviction in its stead." (Lynch, supra, H046478, at p. 16.)
B. Insufficient Evidence on the Assault Charge
The court in Lynch also reversed Lynch's conviction for the assault on Juan. (Lynch, supra, H046478, at pp. 30-31.) The only theory presented as to Lynch's liability for the assault on Juan was that he was liable under the natural and probable consequences doctrine for the actions of the persons who assaulted Juan. The prosecutor's theory was that at least one of the four people who attacked Juan (Conway, James Conklin, Angel Lamas, and/or Javier Hernandez) aided and abetted Lynch in the commission of the murder by assaulting Juan and thereby diverting him from defending Heriberto. (Id. at pp. 30-31.) But this court held in Lynch that "the jury affirmatively rejected this theory when it found that Conway was not a principal in the murder by acquitting him of all criminal liability for Heriberto's death." (Id. at pp. 30-31.) Further, no evidence was presented that Conklin, Lamas, or Hernandez played any role in the murder distinguishable from that of Conway. (Id. at p. 31.) Because the record did not support a conviction for Lynch under this theory, this court reversed his conviction for the assault for insufficient evidence. (Ibid.)
We agree with the parties that C.S.'s conviction for the assault on Juan should also be reversed for insufficient evidence. The prosecution presented the same theory of liability for the assault for C.S. as it did for Lynch. It relied on the same evidence as to both C.S. and Lynch, and it provided the same instructions. In closing argument, the prosecutor argued that both C.S. and Lynch were guilty of the assault on Juan because other aiders and abettors to the murder also participated in the assault of Juan, and C.S. and Lynch were liable for the assault under the natural and probable consequences theory.
Because the record does not support the only theory of criminal liability that the prosecution pursued on the assault count, C.S.'s conviction for assault must be reversed, and the prosecution may not retry this count. (Burks v. United States (1978) 437 U.S. 1, 18 ["[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . . ."].)
C. Legislative Changes to the Gang Charges and Enhancements
In Lynch, the court agreed with the parties that the legislative changes to section 186.22 effected by Assembly Bill No. 333 (2021-2022 Reg. Sess.) applied retroactively to Lynch. (Lynch, supra, H046478, at pp. 32-33.) Assembly Bill No. 333 amended both the substantive gang participation offense and the sentence enhancement for participation in a criminal street gang to require that the crime have more than a reputational benefit to the gang, and it precluded the use of the currently charged offense to establish a pattern of gang activity. (Ibid.) Additionally, the gang murder special circumstance incorporates the definition of a criminal street gang set forth in section 186.22. (Id. at p. 32, fn. 25; § 190.2, subd. (a)(22).) The court determined in Lynch that it could not conclude beyond a reasonable doubt that the jury found that the narrowed requirements of the amended statute were satisfied because the prosecution relied on the reputational benefit to the gang, and it also relied on the presently charged offense to establish a pattern of gang activity. (Lynch, at pp. 33-34.) The court reversed the conviction for participation in a criminal street gang, the gang enhancement allegations, and the gang murder special circumstance. (Id. at p. 34.)
The prosecution relied on the same evidence to establish a benefit to the gang and pattern of criminal gang activities for C.S. and for Lynch. We thus agree with the parties that C.S. is entitled to reversal and remand on the active participation charge, the gang enhancements, and the gang murder special circumstance.
III. Disposition
The judgment is reversed. On remand, the prosecutor may elect to retry the first degree murder count, the active gang participation count, the gang allegations, and/or the gang murder special circumstance in the juvenile court. The juvenile court is directed to strike the assault count due to insufficiency of the evidence. If the prosecutor elects not to retry any counts or allegations, the juvenile court shall conduct a dispositional hearing for C.S. and recalculate the maximum period of confinement for second degree murder.
WE CONCUR: Grover, J. Danner, J.