Opinion
F084907
06-12-2023
THE PEOPLE, Plaintiff and Respondent, v. RUBEN GARNICA, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. CF78236946. Timothy A. Kams, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1979, appellant and defendant Ruben Garnica (appellant) was convicted of first degree murder and sentenced to life in prison with the possibility of parole. In People v. Garnica (1981) 121 Cal.App.3d 727 (Garnica), this court ordered correction of his custody credits and otherwise affirmed his conviction and sentence on direct appeal.
In 2021, appellant filed a petition for resentencing pursuant to former Penal Code section 1170.95 and asserted he was entitled to relief because he was convicted based on the felony-murder rule and/or the natural and probable consequences doctrine. The prosecution filed opposition supported by the jury instructions given at appellant's trial, and argued he was convicted based on malice and his intent to kill. The trial court denied the petition.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition under former section 1170.95. As will be explained below, the statute was amended effective January 1, 2022, and then renumbered as section 1172.6 without further substantive changes 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.)
Prior to the decision in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), appellate counsel filed a brief with this court which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We granted appellant's motion for an extension of time to file his letter brief up to March 8, 2023.
Appellant did not file a supplemental brief on his own behalf. On April 17, 2023, this court filed the nonpublished opinion that affirmed the trial court's denial of the order.
On April 20, 2023, this court received a supplemental brief from appellant raising issues in this appeal, claimed he had requested an extension of time up to April 12, 2023, and his brief was timely filed on that date because of the "mailbox rule."
On April 27, 2023, on this court's own motion, we ordered rehearing to consider the issues raised in appellant's late-filed supplemental brief and vacated our prior opinion.
After review of appellant's contentions, we affirm the trial court's order that denied his petition for resentencing.
The following facts are from this court's opinion in Garnica, supra, 121 Cal.App.3d 727, that affirmed appellant's conviction on direct appeal; the district attorney included the opinion as an exhibit in support of its opposition to appellant's petition. 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).) We have recited the factual statement from appellant's direct appeal to place appellant's arguments in context and will not rely on that factual statement to resolve appellant's appeal.
"In 1977 appellant was a lieutenant in the Nuestra Familia, a prison gang which was originally organized to provide security to Mexican-American prisoners but which expanded into various forms of criminal activity outside prison.
"Appellant's affiliation with Nuestra Familia and high rank in that organization were confirmed by Art Beltran, a former member of the family who had at one time occupied the number three position in the entire organization. Beltran gave the following testimony about Nuestra Familia. It is organized along military lines and its soldiers are promoted to higher rank on the basis of their service to the organization. Beltran said the Nuestra Familia maintained several 'hit lists' containing names of the individuals considered enemies. Some of the groups considered inimical to the Nuestra Familia are the Mexican Mafia, the Aryan Brotherhood and the United White People's Party. Every lieutenant in Nuestra Familia was responsible for '[seeing] to it that something was done about the people on the list.' The higher-ups schooled their subordinates as to the identity of the gang's enemies and a lieutenant could, on his own initiative, order his soldiers to execute a known enemy of the Nuestra Familia.
"Guadalupe Ramirez testified he was a member of Nuestra Familia and appellant was his superior in that organization. In March 1977, Ramirez and appellant were together in a store when a minor confrontation occurred with a man named Robert Fuller. Fuller gave appellant and Ramirez some 'hard looks.' Ramirez and appellant suspected that Fuller was a member of one of their rival gangs - the Aryan Brotherhood; appellant said he would check on it. The next thing Ramirez heard on this subject was when appellant told him to go find Fuller and to kill him. Appellant provided Ramirez with a revolver and an assistant, Carlos Gonzalez. Ramirez and Gonzalez went looking for Fuller; when they found him at about 9 p.m. on the evening of March 24, 1977, Ramirez shot Fuller to death. Ramirez then reported to appellant what he had accomplished and the two men watched the T.V. news to learn that Fuller was indeed dead.
"Marla Klemmer testified that she had worked for appellant selling heroin and collecting money from prostitutes. She was also Ramirez's girlfriend. She was with appellant and Ramirez when the minor confrontation with Fuller occurred in the store. After that confrontation, appellant's group returned to appellant's house. Ms. Klemmer overheard appellant tell Ramirez that Fuller was an Aryan Brother and that Ramirez was going to have to 'hit' him. Later Ms. Klemmer heard appellant congratulate Ramirez on the good job he had done." (Garnica, supra, 121 Cal.App.3d at pp. 730-731, fn. omitted.)
PROCEDURAL BACKGROUND
On December 26, 1978, an information was filed in the Superior Court of Fresno County that charged appellant with the murder of Fuller (§ 187) and alleged a prior prison term enhancement (§ 667.5, subd. (b)).
Trial and Instructions
In or about April 1979, appellant's jury trial began. The jury was instructed on first degree murder, and express and implied malice. The court gave CALJIC No. 8.20 on premeditation and deliberation:
"All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with malice aforethought is murder of the first degree. The word 'willful,' as used in this instruction, means intentional.
"The word 'deliberate' means formed or arrived or determined as result of careful thought and weighing of considerations for and against the proposed course of action. The word 'premeditated' means considered beforehand.
"If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection, and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree." (Italics added.)
The court gave CALJIC No. 3.00 on principals and aiders and abettors:
"The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:
"1. Those who directly and actively commit or attempt to commit the act constituted the crime, or
"2. Those who, with knowledge of the unlawful purpose of the one who does actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission, or
"3. Those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission." (Italics added.)
There was an additional paragraph in the pattern version of CALJIC No. 3.00 that was crossed out in the copy in the court's records. It stated: "One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged." The record reflects this paragraph was not read to the jury.
The court also gave CALJIC No. 3.01: "A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages, or instigates by act or advise the commission of such crime." (Italics added.)
Appellant was not charged with conspiracy, but the court instructed on an uncharged theory of conspiracy. CALJIC No. 6.10.5 stated:
"A conspiracy is an agreement between two or more persons with the specific intent to agree to commit a public offense such as murder, and with the further specific intent to commit such offense, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but it is not charged as an offense in the information in this case...." (Italics added.)
The record also contains instructions that were requested by the parties but were either refused or withdrawn and not given to the jury. These include CALJIC Nos. 8.26 and 8.27, on first degree felony murder.
The jury was not instructed on the elements of any other crimes, the felony murder rule, or the natural and probable consequences doctrine.
Verdict and Sentence
On April 17, 1979, appellant was convicted of first degree murder, and he admitted the prior prison term allegation.
On May 15, 1979, the trial court sentenced appellant to life in prison with the possibility of parole.
Direct Appeal
In 1981, this court affirmed appellant's conviction in his direct appeal. (Garnica, supra, 121 Cal.App.3d 727.) This court rejected his argument that the trial court should have suppressed Ms. Klemmer's testimony under People v. Hitch (1974) 12 Cal.3d 641, based on the failure of police to preserve a tape recording of the first interview with her. We also rejected appellant's argument that the trial court erroneously admitted evidence of the uncharged offense of attempted murder, and the claim that the prosecutor committed prejudicial error in closing argument by commenting on appellant's failure to testify in violation of Griffin v. California (1965) 380 U.S. 609. We ordered recalculation of his credits and otherwise affirmed. (Garnica, supra, 121 Cal.App.3d at p. 730.)
Parole Hearing
On March 3, 2016, appellant appeared before the Board of Parole hearings, and testified under oath that he had been a "supervisor" in Nuestra Familia, he gave the order to kill Fuller, he "[o]rdered the hit - ordered the killing" because Fuller was a member of the Aryan Brotherhood and an enemy of Nuestra Familia, Ramirez was also a member of Nuestra Familia, and Ramirez committed the murder.
APPELLANT'S PETITION
On June 14, 2021, appellant filed, in pro. per., a petition in the trial court for resentencing of his first degree murder conviction pursuant to former section 1170.95, and requested appointment of counsel.
Appellant's supporting declaration consisted of a preprinted form where he checked boxes that stated (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 or murder under the natural and probable consequences doctrine; (2) at trial, he was convicted of first or second degree murder pursuant to the felonymurder rule or the natural and probable consequences doctrine; (3) he could not be convicted of first or second degree murder because of changes made to section 188 and 189, effective January 1, 2019; and (4) he could not be convicted of first degree murder because of the changes made to section 189 because he was not the actual killer; he did not, with the intent to kill, act, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of first degree murder; he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony; and the victim was not a peace officer.
The People's Opposition
On July 21, 2021, the district attorney filed opposition and asserted appellant was not convicted under the felony-murder rule or the natural and probable consequences doctrine, and he was a principal who acted with malice aforethought.
In support of the opposition, the district attorney filed this court's published opinion that affirmed appellant's conviction, a transcript of his 2016 parole hearing, and the jury instructions that were given at his trial along with those that were withdrawn or refused.
Appointment of Counsel and Further Briefing
On April 11, 2022, the trial court appointed counsel to represent appellant in the petition.
On May 9, 2022, appellant filed, in pro. per., a reply to the opposition, and restated evidentiary issues rejected in his direct appeal. Appellant argued he was factually innocent, the trial court was biased in favor of the prosecution, the court drafted the instructions to ensure his conviction in violation of due process, and he was eligible for resentencing because he was improperly convicted as an aider and abettor.
On May 20, 2022, the court appointed another attorney to represent appellant because of a conflict.
On August 4, 2022, appellant's counsel filed a hearing brief, and argued the trial court could not consider the opinion that affirmed appellant's conviction in his direct appeal, or appellant's statements at the parole board hearing, and the petition stated a prima facie case for relief.
The Court's Hearing on the Petition
On August 22, 2022, the trial court held a hearing on the petition. The district attorney argued appellant failed to make a prima facie case for relief because he was convicted of first degree premeditated murder, and the jury's verdict was based on finding appellant had the intent to kill. The court asked appellant's counsel if it could consider the jury instructions, and counsel submitted on that issue.
The court stated that it would not rely on this court's prior opinion from appellant's direct appeal or the "new" evidence from the parole board hearing. The court denied appellant's petition based on the jury's instructions and the verdict.
A defendant's sworn statements at a parole board hearing are admissible at an evidentiary hearing on a section 1172.6 petition. (See, e.g., People v. Myles (2021) 69 Cal.App.5th 688, 706; People v. Anderson (2022) 78 Cal.App.5th 81, 93; People v. Mitchell (2022) 81 Cal.App.5th 575, 583.)
On September 9, 2022, appellant filed a timely notice of appeal.
DISCUSSION
I. Appellate Review, Delgadillo, and Appellant's Petition for Rehearing
On December 19, 2022, the California Supreme Court issued the opinion in Delgadillo, supra, 14 Cal.5th 216, and held a Wende analysis is not applicable to a superior court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Delgadillo, at pp. 231-232.)
"If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues. [Citations.] If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] If the appeal is dismissed as abandoned, the Court of Appeal does not need to write an opinion but should notify the defendant when it dismisses the matter. [Citation.] While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)
Delgadillo stated counsel filed a Wende brief in that case, along with a declaration that counsel had advised the defendant that he could personally file a supplemental brief raising any issues. The appellate court sent a notice to the defendant that he could file a supplemental brief, but that notice did not state the appeal would be dismissed if he failed to do so. (Delgadillo, supra, 14 Cal.5th at pp. 223-224.) Delgadillo held the appellate court's notice to the defendant was "suboptimal" because "it indicated that the Wende procedures would apply when they did not, and it did not inform [the defendant] that the appeal would be dismissed as abandoned if no supplemental brief or letter was filed." (Id. at pp. 222, 232, 233.)
As a result, Delgadillo conducted its own independent review of the record "voluntarily in the interest of judicial economy," and determined the defendant was not entitled to relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.)
Analysis
On December 8, 2022, prior to the decision in Delgadillo, appellate counsel filed a Wende brief with this court, that included counsel's declaration that his client was advised he could file his own brief with this court. On the same date, we informed appellant that he could file a letter in this matter stating any grounds that he wanted this court to consider, and if he did not do so within 30 days, "the court will assume you have nothing further to add."
On January 13, 2023, appellant filed a motion with this court for an extension of time to file his own supplemental brief. On the same date, this court granted appellant's motion and extended time to March 8, 2023. Appellant did not timely file a letter brief or any additional motions for an extension of time.
As in Delgadillo, this court determined our initial notice to appellant was "suboptimal" because he was not informed his appeal would be dismissed as abandoned if he did not file a supplemental brief. Accordingly, even though Wende was inapplicable in this situation, we conducted our own independent review of the record, found no arguable issues, and on April 17, 2023, filed a nonpublished opinion that affirmed the trial court's order denying his petition.
Also as explained above, three days after the opinion was filed, this court received a supplemental brief from appellant, where he claimed he had requested another extension of time to file his brief to April 12, 2023, and his brief was timely filed on that date under the "mailbox rule."
Appellant's claims about a second extension time are refuted by the record. He requested only one extension of time that was granted to March 8, 2023. He did not file any further motions or documents with this court and did not receive any additional extensions of time.
Nevertheless, we exercised our discretion to treat appellant's belated brief as a petition for rehearing, granted rehearing, and vacated our prior opinion. We thus turn to the issues raised by appellant in his letter brief as to the trial court's denial of his petition for rehearing.
II. Section 1172.6
We begin with Senate Bill No. 1437's (2017-2018 Reg. Sess.) (Senate Bill 1437) amendments of sections 188 and 189, the enactment of former section 1170.95, and subsequent statutory amendments.
"Effective January 1, 2019, Senate Bill No. 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," initially codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted; Lewis, supra, 11 Cal.5th at p. 959.) The initial version of former section 1170.95 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 No. 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) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis, supra, 11 Cal.5th 952, and also" '[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.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 714.) 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).)
While not applicable herein, section 189 was amended to allow for felonymurder 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. at 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.)
III. Appellant's Contentions
In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction that 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." (Lewis, supra, 11 Cal.5th at p. 971 &fn. 6.)
As explained above, the record and opinion from a petitioner's direct appeal are part of the record of conviction. (Lewis, supra, 11 Cal.5th at p. 972.) 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, supra, 75 Cal.App.5th at p. 292; Lewis, at p. 972.)
The 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, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 599.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
Appellant requests this court to take judicial notice of the jury instructions given at his trial. We note the instructions are already part of the instant record because the district attorney filed the entirety of the instructions given, along with those that were withdrawn or refused, in support of the opposition to the petition.
We first note the trial court complied with the procedural requirements of section 1172.6 because it appointed counsel to represent appellant, received further briefing, conducted a hearing, and stated the reasons it was denying his petition without issuing an order to show cause.
Appellant raises the following contentions.
The Aiding and Abetting Instructions
Appellant argues the trial court violated his due process rights by denying his petition and keeping him incarcerated even though he was allegedly eligible for resentencing under Senate Bills 1437 and 775. Appellant asserts he should be allowed the "benefit of a doubt" as to the correctness of the allegations in his petition showing he was eligible for relief.
Appellant argues he is eligible for resentencing because the jury was given constitutionally erroneous aiding and abetting instructions that constituted "Beeman error" and used the phrase "equally guilty," the instructions prevented the jury from finding him guilty of first degree murder as an aider and abettor who had the intent to kill beyond a reasonable doubt.
People v. Beeman (1984) 35 Cal.3d 547.
Analysis
In order to convict a defendant of first degree premeditated murder as a direct aider and abettor, "the prosecution must show 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. Chiu (2014) 59 Cal.4th 155, 167, superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th 830, 848-849 and Lewis, supra, 11 Cal.5th at p. 959, fn. 3.) "Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought." (People v. Gentile, at p. 848.)
As given to the jury, CALCRIM No. 3.00 "generally stated a correct rule of law. All principals, including aiders and abettors, are 'equally guilty' in the sense that they are all criminally liable." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) However, the "equally guilty" language has been held misleading "if the principals in a particular case might be guilty of different crimes and the jury interprets the instruction to preclude such a finding," and the pattern instruction has since been amended. (Ibid.; see, e.g., People v. Nero (2010) 181 Cal.App.4th 504, 517-520; People v. Langi (2022) 73 Cal.App.5th 972, 982-983.)
In People v. Johnson (2016) 62 Cal.4th 600 (Johnson), the defendant was convicted as a direct aider and abettor of first degree murder. The jury was instructed with former CALCRIM No. 400 on principals and aiders and abettors, that also used the "equally guilty" phrase. (Johnson, at p. 638.) Defendant argued the phrase permitted the jury to convict him of first degree murder based on the culpability of the perpetrator without considering defendant's own mental state. (Ibid.)
Johnson held there was no reasonable likelihood the “equally guilty” language allowed the jury to convict defendant of first degree murder based on the perpetrator's mental state, rather than on his own mental state in aiding and abetting the killing. (Johnson, supra, 62 Cal.4th at p. 641.) “The court introduced the subject of aider and abettor liability by reading former CALCRIM No. 400. It then instructed the jury with CALCRIM No. 401, which sets out the requirements for establishing aider and abettor liability. The jury therefore was informed that for them to find defendant guilty of murder as an aider and abettor the prosecution must prove that defendant knew [the perpetrator] intended to kill [the victim], that he intended to aid and abet [the perpetrator] in committing the killing, and that he did in fact aid him in that killing, which would have cleared up any ambiguity arguably presented by CALCRIM former No. 400's reference to principals being 'equally guilty.'" (Ibid.)
CALCRIM No. 401 states that to find a defendant guilty as an aider and abettor, the jury must find that the defendant "knew the perpetrator intended to commit the crime," defendant "intended to aid and abet the perpetrator in committing the crime," and by words or conduct "did in fact aid and abet the perpetrator's commission of that crime."
In this case, CALJIC No. 3.00 defined an aider and abettor as: "[t]hose who directly and actively commit or attempt to commit the act constituted the crime," or [t]hose who, with knowledge of the unlawful purpose of the one who does actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission," or "[t]hose who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission." (Italics added.) CALJIC No. 3.01 stated that "[a] person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages, or instigates by act or advise the commission of such crime." (Italics added.)
As in Johnson, there is no reasonable likelihood jurors would have understood the "equally guilty" phrase in CALJIC No. 3.00 to convict appellant of first degree murder based on the perpetrator's mental state rather than on appellant's own mental state and intent to kill.
Also as in Johnson, appellant was convicted of willful, deliberate, and premeditated first degree murder. The jury was instructed that" 'willful'" meant "intentional," that" 'deliberate'" meant "formed or arrived or determined as result of careful thought and weighing of considerations for and against the proposed course of action," and" 'premeditated'" meant considered beforehand, and if the jury found "the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection, and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree." (Italics added.) The jury's separate finding on premeditation, willfulness, and deliberation refutes any contention that appellant was convicted of first degree murder based on any theory of imputed malice, and that he was convicted based on his own intent to kill.
In addition to the instructions given to the jury, the record also contains instructions that were requested by the parties but were either refused or withdrawn and not given. These include CALJIC Nos. 8.26 and 8.27, on first degree felony murder. The jury was not instructed on the elements of any other crimes, the felony-murder rule, or the natural and probable consequences doctrine.
Conspiracy Instructions
Appellant further argues the instructions show he was erroneously convicted under the natural and probable consequences doctrine because the jury was instructed with an uncharged theory of conspiracy.
Analysis
"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.) As to conspiracy," '[a] conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy.'" (People v. Joseph (2021) 63 Cal.App.5th 1058, 1065.) However, "[c]ommission of the target offense in furtherance of the conspiracy satisfies the overt act requirement." (People v. Jurado (2006) 38 Cal.4th 72, 121.) Moreover, "[t]he act of one conspirator is the act of all. Each is responsible for everything done by his coconspirators, including those things that follow as the probable and natural consequence of the execution of the conspiracy." (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.)
In this case, however, the jury was not instructed on any target or nontarget offenses. Instead, the jury was only instructed on the single offense charged against appellant - murder, along with the definitions of express and implied malice, and the difference between first and second degree murder. The jury was not instructed on any other offenses. In addition, the conspiracy instructions clearly stated that appellant was not charged with committing conspiracy as a separate offense.
If the jury relied on the uncharged conspiracy theory to convict appellant of first degree murder, the only way it could have reached that verdict was to rely on the uncharged theory of conspiracy to commit murder. "[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder...." (People v. Cortez (1998) 18 Cal.4th 1223, 1237-1238; People v. Beck and Cruz (2019) 8 Cal.5th 548, 641; People v. Medrano (2021) 68 Cal.App.5th 177, 183.) As explained above, the jury found the premeditation allegation true.
Appellant's Evidentiary and Trial Contentions
Finally, appellant requests this court to address several issues that are not cognizable in reviewing a ruling on a section 1172.6 petition for resentencing.
Appellant requests to lodge with this court a copy of a petition for writ of habeas corpus that he asserts was filed with the superior court on March 24, 2023; for this court to take judicial notice of that habeas petition; and, by doing so, asserts this petition will give him the full and fair opportunity to present additional evidence to show he is eligible for resentencing. Appellant claims he "constructively filed" the habeas petition with the superior court in December 2022 and, if the superior court had timely ruled upon the habeas petition, he could have consolidated an appeal from both the habeas petition and the petition for resentencing in one proceeding with this court.
Appellant further claims the issues raised in his habeas petition must be addressed by the Attorney General in this appeal, particularly as to whether evidence favorable to the defense was "suppressed" by the prosecution at his trial regarding plea bargains with gang members.
Appellant asserts his convictions are not bound by "the law of the case doctrine" and the factual findings from his trial must be reconsidered. Appellant demands this court address alleged errors that purportedly occurred at his trial involving evidence of uncharged offenses, prosecutorial misconduct, and testimony from a gang expert.
Section 1172.6 "does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.) "The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, '[n]othing in the language of section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior factfinding.... The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.)
We decline to address appellant's claims of trial error or review a petition for writ of habeas corpus that is apparently still pending before the superior court.
After independent review of the record, we find that no reasonably arguable issues exist.
DISPOSITION
The trial court's order of August 22, 2022, denying appellant's petition for resentencing, is affirmed.
[*] Before Detjen, Acting P. J., Franson, J. and De Santos, J.