Opinion
A165889
12-12-2023
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEE MAYBERRY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 0500800870)
FUJISAKI, ACTING P.J.
A jury convicted defendant Kevin Mayberry of second degree murder, gross vehicular manslaughter by an intoxicated person with prior driving under the influence (DUI) convictions, and related charges. The conviction was affirmed on direct appeal. (People v. Mayberry (Mar. 23, 2011, A123987) [nonpub. opn.] (Mayberry).) In 2022, defendant filed a petition for resentencing under former Penal Code section 1170.95, which the trial court denied without issuing an order to show cause. On appeal, defendant contends (1) the trial court engaged in improper factfinding at the prima facie stage, and (2) defendant sufficiently made a prima facie showing of entitlement to relief by claiming the jury instructions invited the jury to impute malice from defendant's commission of Vehicle Code infractions while driving intoxicated. We affirm the trial court's order.
Further unspecified statutory references are to the Penal Code.
Factual and Procedural Background
According to the first amended information, in 2006, defendant drove a vehicle while under the influence of alcohol and a drug, causing bodily injury and death to Mark Benjamin Gelardi and bodily injury to Nancy Hill. He was criminally charged with (1) second degree murder (§ 187); (2) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (d)); (3) driving while under the influence causing injury (Veh. Code, § 23153, subd. (a)); (4) driving with 0.08 percent blood alcohol causing injury (Veh. Code, § 23153, subd. (b)); (5) DUI (Veh. Code, § 23152, subd. (a)); (6) driving with 0.08 percent blood alcohol (Veh. Code, § 23152, subd. (b)); (7) driving when privileged suspended for prior DUI conviction (Veh. Code, § 14601.2, subd. (a)); and (8) resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)).
A jury found defendant guilty as charged, and the trial court found true allegations that defendant had committed three prior DUI convictions. Defendant was sentenced to 15 years to life in prison. In 2011, this court affirmed the conviction on direct appeal. (Mayberry, supra, (Mar. 23, 2011, A123987) [nonpub. opn.].)
In February 2022, defendant filed a form petition for resentencing under former section 1170.95, checking boxes on the form that alleged: "1. A complaint, information, or indictment was filed against [him] 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 probable consequences doctrine"; "[¶] 2. [He] was convicted of murder, attempted murder, or manslaughter following a trial"; 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. Defendant requested and received appointed counsel and the parties submitted briefing on the petition.
The trial court denied the petition without issuance of an order to show cause. In its written order, the court took judicial notice of "its own files in the underlying docket, as well as the unpublished appellate opinion" in Mayberry, and stated by way of background that "[i]n November 2006, [defendant] was driving a car involved in a freeway accident that killed Mark Gelardi and injured Nancy Hill." The court found the jury instructions given below were "part of the 'record of conviction'" for purposes of evaluating defendant's prima facie showing and were "decisive in the determination of [defendant's] eligibility for relief. As such, this court need not (and does not) consider the factual recitation in the appellate decision, without deciding if it would be properly admissible at this stage of review."
The trial court then cited People v. Watson (1981) 30 Cal.3d 290 (Watson) for the proposition that malice could be implied to support a conviction for second degree murder where the defendant willfully drove under the influence of alcohol. The court also discussed the jury instructions given below and concluded, based on those instructions, that "[t]he only possible theories on which [the jury] could have [found malice] were either express or implied malice. The jury verdict therefore, as a matter of law, demonstrates that [defendant] was convicted under a theory of actual express or implied malice, and not felony murder, the natural and probable consequences theory, or any other theory of imputed malice." Accordingly, the court found that defendant was ineligible for resentencing and denied the petition.
Defendant timely appealed.
Discussion
A. Governing Law
1. Senate Bills 1473 and 775
Prior to the effective date of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), malice could be imputed to a person who did not personally harbor it under two theories: (1) the felony murder rule, and (2) the natural and probable consequences doctrine. Under the felony murder rule, a defendant may be liable for first or second degree murder if the defendant or an accomplice killed someone during the commission or attempted commission of an inherently dangerous felony. (People v. Powell (2018) 5 Cal.5th 921, 942.) Under the natural and probable consequences doctrine, an aider and abettor may be found "guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime." (People v. Smith (2014) 60 Cal.4th 603, 611.)
In 2018, the Legislature enacted Senate Bill 1437, which amended sections 188 and 189 to "eliminate[] natural and probable consequences liability for murder as it applies to aiding and abetting, and limit[] the scope of the felony-murder rule." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Senate Bill 1437 also added former section 1170.95, "which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, at p. 957.)
The resentencing procedures originally applied to "[a] person convicted of felony murder or murder under a natural and probable consequences theory." (Former § 1170.95, subd. (a) (Stats. 2018, ch. 1015, § 4).) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2; Senate Bill 775) amended section 1170.95 to extend the resentencing procedures to a person convicted under any "other theory under which malice is imputed to a person based solely on that person's participation in a crime." Former section 1170.95 has since been renumbered as section 1172.6, with no substantive changes. (Stats. 2022, ch. 58, § 10.)
If a section 1172.6 petition contains all required information (e.g., declaration of eligibility, case information, any request for appointed counsel), the trial court "must 'review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of [section 1172.6].' [Citation.] If the petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested, and the prosecutor must file a response, and the petitioner may file a reply. [Citation.] The court then reviews the petition a second time. If it concludes in light of this briefing that the petitioner has made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and recall the sentence and resentence the petitioner on any remaining counts." (People v. Roldan (2020) 56 Cal.App.5th 997, 1003 (Roldan).)
"To determine whether a petitioner has made a prima facie case for relief under section [1172.6], a trial court may look to the record of conviction and the court file. The contents of the record of conviction defeat a prima facie showing when the record shows as a matter of law that the petitioner is not eligible for relief." (Roldan, supra, 56 Cal.App.5th at p. 1003.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) That said, the prima facie inquiry is limited."' "[T]he court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Lewis, at p. 971.)
Whether a petitioner has made a prima facie case for relief is a question of law, which is reviewed de novo. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
2. Implied Malice and Watson Murder
In Watson, the Supreme Court held that an intoxicated driver who causes death may be charged with second degree murder based on a finding of implied malice. "[S]econd degree murder based on implied malice has been committed when a person does '" 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Watson, supra, 30 Cal.3d at p. 300.)
As such," '[i]mplied malice has both a physical and a mental component, the physical component being the performance" 'of an act, the natural consequences of which are dangerous to life,'" and the mental component being the requirement that the defendant" 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.'" '" (People v. Taylor (2004) 32 Cal.4th 863, 868.)
B. Improper Factfinding
Defendant contends the trial court engaged in improper factfinding at the prima facie stage because "a critical element" of the court's analysis was its reliance on a factual statement from the unpublished Mayberry opinion that" '[i]n November 2006, [defendant] was driving a car involved in a freeway accident that killed Mark Gelardi and injured Nancy Hill.'" Defendant argues this "view of the evidence" was improper at the prima facie stage and "led to the trial court's citation of Watson and, ultimately, to the denial of the petition." We find no merit in these contentions.
"Appellate opinions . . . are generally considered to be part of the record of conviction" that a trial court may review to determine whether a defendant has made a prima facie case for relief under section 1172.6. (Lewis, supra, 11 Cal.5th at p. 972.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Ibid.)
Here, the trial court expressly stated in its written order that it did not rely on the factual recitation in the Mayberry opinion. We see no reason to conclude otherwise. The statement in question ("[i]n November 2006, [defendant] was driving a car involved in a freeway accident that killed Mark Gelardi and injured Nancy Hill") does not appear to be taken verbatim from Mayberry, and it is clear from the allegations of the first amended information that defendant was charged with second degree murder for driving while intoxicated and causing the death of another. The relevance of Watson as controlling authority for the applicable theory of murder in this case was evident from the record of conviction even without reliance on the Mayberry opinion.
Moreover, even if we assume the trial court gleaned a basic factual premise of the case from the Mayberry opinion, this did not constitute improper" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) The court did not discuss any specific disputed facts surrounding the incident, weigh evidence, or make credibility determinations regarding the details of the case. The court's analysis was directed almost exclusively to the jury instructions, and defendant concedes the instructions were appropriately considered as part of the record of conviction. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
In sum, we find no improper factfinding by the trial court.
C. Jury Instructions
Defendant next argues that because the jury heard "five instructions on homicide and other offenses containing substantially identical language regarding 'an act [that] causes death [or injury]' and 'substantial factor' causation," as well as allegations that defendant committed Vehicle Code infractions, the combination of these instructions and their overlapping language "invit[ed]" the jury to rely on the Vehicle Code violations "as bases on which to conclude that [defendant] had acted with malice." In defendant's view, the instructions "came asymptotically close to 'second degree Vehicle Code-infraction murder.'" We are not persuaded.
"Challenges to the wording of jury instructions are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction." (People v. Crew (2003) 31 Cal.4th 822, 848.) "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Young (2005) 34 Cal.4th 1149, 1202, internal quotation marks omitted.)"' "It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." '" (People v. Covarrubias (2016) 1 Cal.5th 838, 905 (Covarrubias).)
Here, the five instructions highlighted by defendant were CALCRIM Nos. 520 (Murder with Malice Aforethought), 590 (Gross Vehicular Manslaughter While Intoxicated), 2100 (Driving a Vehicle Under the Influence Causing Injury), 2101 (Driving with 0.08 Percent Blood Alcohol Causing Injury), and 240 (Causation). We now summarize and quote from the relevant portions of these instructions.
The malice instruction under CALCRIM No. 520 stated in relevant part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought." The instruction then defined malice and explained that defendant "acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life." The malice instruction then provided principles on causation, stating: "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is 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. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death." Hereafter, we refer to this language as the "causation principles."
The instruction under CALCRIM No. 590 for gross vehicular manslaughter outlined the elements applicable to "this crime"; referenced the allegations that defendant violated Vehicle Code sections 22107 (unsafe turning movement) and 21658, subdivision (a) (unsafe lane change) (while referring the jury to separate instructions on those Vehicle Code violations); defined gross negligence; and set forth the same causation principles as in the malice instruction.
The instruction under CALCRIM No. 2100 for driving under the influence and causing injury outlined the elements applicable to "this crime"; defined "under the influence"; referenced the allegations that defendant violated Vehicle Code sections 22107 and 21658, subdivision (a); instructed the jury on ordinary care; and set forth substantially the same causation principles as in the instructions above, with "bodily injury" replacing "death."
The instruction under CALCRIM No. 2101 for driving with 0.08 percent blood alcohol and causing injury outlined the elements applicable to "this crime"; explained the People's burden of proof as to defendant's blood alcohol level; referenced the allegations that defendant violated Vehicle Code sections 22107 and 21658, subdivision (a); instructed the jury on ordinary care; and set forth the same causation principles as in the instructions above, with "bodily injury" replacing "death."
Finally, the instruction under CALCRIM No. 240 for causation set forth substantially the same causation principles as in the instructions above.
On this record, we find no reasonable likelihood that the jury misconstrued these instructions to impute malice to defendant simply because he caused a death while driving intoxicated and committing Vehicle Code infractions. The malice instruction (CALCRIM No. 520) made no reference to the Vehicle Code violations, nor did it instruct the jury on any legal theory upon which malice could be imputed to defendant based on his commission of other offenses. To the contrary, the malice instruction made clear that the People had to prove not only defendant's commission of a physical act causing death, but that he committed this act with malice aforethought, and specifically for implied malice, that he "knew" his acts were dangerous to human life but "deliberately" acted with "conscious" disregard for human life.
Although the causation principles instructed the jury that death had to be a "natural, and probable consequence" of defendant's acts in order for him to be guilty of murder," 'the use of the term "natural consequences" in the . . . definition of implied malice does not import into the crime of murder the case law relating to the distinct "natural and probable consequences" doctrine developed in the context of aiding and abetting liability.'" (People v. Carr (2023) 90 Cal.App.5th 136, 144 (Carr).) Nor do we find it reasonably likely the jury misconstrued the causation principles to permit a finding of implied malice based solely on death being a natural consequence of defendant's acts. By their terms, the causation principles pertained to the physical component for malice. That is, they provided guidance to the jury in determining whether defendant committed acts that "caused the death of another person" and whether death was a "direct, natural, and probable consequence" of those acts. But CALCRIM No. 520 was otherwise explicit that the People had to prove not only defendant's commission of a physical act of which death was a natural consequence, but also the mental component of malice-that he knew his acts were dangerous to human life at the time he committed them and that he consciously disregarded this risk. We assume the jurors applied these straightforward instructions according to their terms. (Covarrubias, supra, 1 Cal.5th at p. 905.)
That CALCRIM Nos. 590, 2100, and 2101 shared identical or substantially similar causation principles does not persuade us otherwise. Each instruction explicitly stated it provided the legal principles applicable to "this crime," and none referred to malice or murder.
Case law is in accord. In Carr, the malice instruction stated that "implied malice has both a physical component (an intentional act the natural consequences of which are dangerous to human life) and a mental component (knowledge of the danger to and conscious disregard for human life). It did not allow implied malice to be imputed solely from the natural consequences of the act." (Carr, supra, 90 Cal.App.5th at p. 145.) And because the remaining instructions "did not relate to implied malice or second degree murder at all," Carr found "no reasonable probability that the jury combined" them with the malice instruction to impute malice to the petitioner based simply on his act of driving while intoxicated. (Id. at pp. 145-146.) In Carr's view, the petitioner was unsuccessfully "mashing together isolated phrases from instructions on entirely different points." (Id. at p. 145.) The same holds true here.
Defendant's reliance on People v. DeHuff (2021) 63 Cal.App.5th 428 (DeHuff) is unavailing. In DeHuff, the jury was instructed on two murder theories-"one valid (implied malice murder), and one invalid (second degree felony murder)" based on the petitioner's act of driving with reckless disregard for the safety of persons or property to evade a police officer (§ 2800.2). (DeHuff, at p. 437.) The DeHuff court held that because "there is no way to ascertain from the record upon which theory the jury based its finding of guilt," and the petitioner could not be convicted of second degree felony murder based on a violation of section 2800.2, the petitioner made a prima facie showing of entitlement to relief under former section 1170.95. (DeHuff, at p. 442.) Here, in contrast, the jury was not instructed on second degree felony murder, and for the reasons discussed, we find no reasonable likelihood that the instructions invited the jury to convict defendant on a theory akin to second degree Vehicle Code infraction murder.
Defendant's reliance on other instructional error cases is likewise unavailing. People v. Lee (1987) 43 Cal.3d 666, 668, involved "contradictory, and partially inaccurate, instructions regarding the element of specific intent to kill" for attempted murder. In People v. Simms (1956) 144 Cal.App.2d 189, 194, the jury received "conflicting, confusing and inapplicable instructions." And in People v. Barkoff (1958) 163 Cal.App.2d 639, 648, an instruction on general intent was improperly given in a case involving a specific intent crime. Here, in contrast, defendant identifies no contradictions or inaccuracies in the instructions, nor does he claim any instructions were improperly given. Indeed, he concedes he "does not allege 'error' in the instructions" at all. And for the reasons discussed, we find no reasonable likelihood that the instructions confused the jury into believing it could impute malice based simply on defendant's acts of driving intoxicated and committing Vehicle Code infractions.
Based on the foregoing, we conclude the trial court correctly found defendant ineligible for relief under section 1172.6 as a matter of law." 'Senate Bill [No.] 1437 did nothing to remove implied malice as a basis for a second degree murder conviction.' .... 'Though [Senate Bill No. 1437] abolished the natural and probable consequences doctrine, it maintained the viability of murder convictions based on implied malice, and the definition of implied malice remains unchanged.'" (Carr, supra, 90 Cal.App.5th at p. 144.) Likewise, Senate Bill 775, which extends resentencing procedures to persons convicted of murder on any "other theory under which malice is imputed to a person based solely on that person's participation in a crime," does not apply to persons convicted of Watson murder because "a Watson theory does not involve the imputation of malice. It requires proof-in addition to the mere fact that the defendant killed someone while driving intoxicated-that the defendant personally harbored implied malice." (Carr, at p. 144.)
In sum, defendant failed to make a prima facie showing that he is entitled to resentencing because the record of conviction demonstrates he was convicted of second degree murder, not under the natural and probable consequences doctrine or under any theory under which malice was imputed to him due to his participation in a crime or infraction, but on a theory of implied malice, which remains a valid theory of murder.
Disposition
The order denying defendant's section 1172.6 petition for resentencing is affirmed.
WE CONCUR: Petrou, J., Rodriguez, J.