Opinion
B324163
11-01-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY AARON GABRIEL, Defendant and Appellant.
Derek K. Kowata, 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, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA442133 Stephen A. Marcus, Judge. Affirmed.
Derek K. Kowata, 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, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Anthony Aaron Gabriel (defendant) appeals from the order denying his petition for vacatur of his murder and attempted murder convictions and for resentencing pursuant to Penal Code section 1172.6. Defendant contends that although there were jury instructions given at his trial regarding felony murder or the natural and probable consequences doctrine, the trial court erred in finding his petition failed to make a prima facie showing of eligibility under the statute. Finding no merit to defendant's contention, we affirm the order.
All further unattributed code sections are to the Penal Code unless otherwise stated.
BACKGROUND
In 2018 defendant was convicted with two codefendants of six felonies committed on May 25, 2013, as follows: the murder of Gabriel Soto (§ 187, subd. (a)), the attempted murder of Christopher R. (§§ 187, subd. (a), 664), assault with a firearm upon Victor O. (§ 245, subd. (a)(2)), assault with a firearm upon George C. (§ 245, subd. (a)(2)), assault with a firearm upon Marcos V. (§ 245, subd. (a)(2)), and assault with a firearm upon Wenceslado R. (§ 245, subd. (a)(2)).
The jury found the murder to be in the first degree and the attempted murder to have been committed willfully, deliberately and with premeditation. The jury also found true three special allegations pursuant to section 12022.53, subdivisions (b), (d), and (e)(1)): a principal personally used and intentionally discharged a handgun, which caused death to Soto; a principal personally and intentionally discharged a firearm; and a principal personally used a firearm, as well as the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
We affirmed the conviction but vacated the sentence and remanded for resentencing. (People v. Gonzalez (Dec. 19, 2019, B289059) [nonpub. opn.].) On May 20, 2020, the trial court issued a new abstract of judgment showing defendant was sentenced on the murder count to 25 years to life in prison, on the attempted murder to life in prison with the possibility of parole, and to a total of 27 years on the remaining counts.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437, amending the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, "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).) The Legislature also added former section 1170.95, now section 1172.6, which provided a procedure for those convicted of murder to seek retroactive relief if they could not be convicted under sections 188 and 189 as amended effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th 952, 957.) Senate Bill No. 1437 effectively abolished the natural and probable consequences doctrine in cases of murder, and since then, Senate Bill No. 775 (2021-2022 Reg. Sess.) has extended section 1172.6 to provide the same relief to individuals convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a).)
On September 21, 2021, defendant filed a petition seeking vacatur of the murder and attempted murder convictions and resentencing under section 1172.6. As relevant here, and among other allegations, the petition set forth the three following conditions to eligibility for resentencing: (1) he was charged with murder under the natural and probable consequences doctrine; (2) he was convicted of murder; and (3) he could not presently be convicted of murder because of changes to sections 188 and 189, effective January 1, 2019. (See § 1172.6, subd. (a).) Counsel was appointed, and the court entertained briefing by both sides. The prosecutor attached to their opposition a copy of the jury instructions given at defendant's trial.
On August 25, 2022, following argument by defense counsel, the trial court denied the petition for resentencing because there had been no jury instructions regarding felony murder or the natural and probable consequences doctrine relating to murder or attempted murder, and defendant had not made a prima facie case for relief as a matter of law.
Defendant filed a timely notice of appeal from the court's order.
DISCUSSION
Defendant contends the trial court erred in finding he had not made a prima facie showing of eligibility under section 1172.6, and both his murder conviction and his attempted murder conviction should be vacated because the jury was instructed regarding the natural and probable consequences doctrine in relation to the assault with a firearm count.
Defendant does not claim to have been convicted of felony murder or that there were instructions regarding felony murder.
Under the natural and probable consequences doctrine, a "'person who knowingly aids and abets criminal conduct is guilty of not only the intended [target] crime . . . but also of any other crime the perpetrator actually commits . . . that is a natural and probable consequence of the intended crime.'" (People v. Medina (2009) 46 Cal.4th 913, 920.)
Defendant acknowledges the only jury instruction regarding the natural and probable consequences doctrine was not given with regard to the murder or attempted murder charge and was instead given in relation to the assault with a firearm charge. The jury was instructed with CALJIC No. 3.02 as follows:
"One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
"In order to find the defendant guilty of the crimes of assault with a firearm, under this theory, you must be satisfied beyond a reasonable doubt that:
"1. The crime of attempted murder was committed;
"2. That the defendant aided and abetted that crime;
"3. That a co-principal in that crime committed the crimes of Assault with a Firearm; and
"4. The crimes of Assault with a Firearm were a natural and probable consequence of the commission of the crime of Attempted Murder.
"In determining whether a consequence is 'natural and probable,' you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A 'natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen."
Defendant contends that without an instruction specifically limiting the application of the natural and probable consequences doctrine to the assault with a firearm counts, the jury was not prevented from applying CALJIC No. 3.02 to all counts, thus permitting the jury to impute malice to defendant solely on his participation in a crime without having to find that he personally harbored an intent to kill when he aided and abetted the murder and attempted murder. Contrary to defendant's characterization and although there was no separate limiting instruction or mention of the word, "limited," CALJIC No. 3.02 on its face effectively limited its application to the assault with a firearm.
Defendant argues that at the very least the instruction was ambiguous and could have confused the jury, suggesting this case is comparable to People v. Langi (2022) 73 Cal.App.5th 972, in which no instruction was given regarding the natural and probable consequences doctrine, but ambiguous instructions permitted malice to be imputed to the defendant based solely upon his participation in the crime. (See id. at pp. 980-982.) In Langi, the defendant was convicted of second degree murder. The appellate court found the instructions ambiguous because "the second degree murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death." (Id. at pp. 982-983.) Langi provides no apt comparison because, unlike here, the defendant was convicted of second degree, implied malice murder. (See People v. Coley (2022) 77 Cal.App.5th 539, 547 ["Assuming that aiding and abetting an implied malice murder can involve the imputation of malice based on participation in a crime even when no instructions have been given on the natural and probable consequences doctrine, Langi does not apply because that case involves implied malice."].)
Here, defendant was not convicted of second degree murder and the instructions clearly informed the jury that an intent to kill is a required element of murder and attempted murder. CALJIC No. 3.01 instructed the jury that it must first find the crime of attempted murder was committed. In CALJIC Nos. 8.10 and 8.66 the jury was told that a required element of the crimes of murder and attempted murder is malice aforethought, "namely, a specific intent to kill unlawfully another human being."
Furthermore, CALJIC No. 3.01 instructed that an aider and abettor must be found to have had knowledge of the perpetrator's intent in committing the crime and must have acted with the intent of facilitating or encouraging the commission of the crime. CALJIC Nos. 8.10, 8.11, and 8.20, defined express and implied malice, as well as premeditation and deliberation, and the jury was instructed that to convict defendant of attempted murder or first degree murder, it must find that defendant premeditated and deliberated an intent to kill. Thus the jury was advised that defendant must have intended to encourage or facilitate murder and attempted murder with express malice.
After such clear and unambiguous instructions, the jury returned a verdict of first degree murder, necessarily finding defendant harbored a premeditated intent to kill, as well as a verdict of attempted murder including an express finding that the crime was committed willfully, deliberately and with premeditation. As defendant was not convicted of felony murder or either murder or attempted murder under the natural and probable consequences doctrine, he is ineligible for relief under section 1172.6 as a matter of law. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677.) There was no error in denying defendant's petition below.
DISPOSITION
The order of August 25, 2022, denying defendant's section 1172.5 petition is affirmed.
We concur: LUI, P. J., HOFFSTADT, J.