Opinion
B330043
04-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JOEL HEREDIA NARENJO, Defendant and Appellant.
Richard B. Lennon, 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, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. GA021208, George G. Lomeli, Judge. Reversed and remanded with directions.
Richard B. Lennon, 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, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
MARTINEZ, J.
Joel Heredia Narenjo appeals from a postjudgment order summarily denying his petition for resentencing under Penal Code section 1172.6. Because the superior court erred in summarily denying the petition without ordering an evidentiary hearing, we reverse.
In the petition filed in the superior court, the supplemental briefs filed in propria persona in this court, and in our prior opinion from the direct appeal, the petitioner's name is spelled Naranjo. In the information, the verdict forms, the superior court where his resentencing petition was considered, and in the tracking system used by the California Department of Corrections and Rehabilitation, the petitioner's name is spelled Narenjo. Accordingly, we use Narenjo in this opinion.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing, Narenjo's Convictions and Sentencing
In August 1992 victim Maria Delores Rios Ruiz was found dead from multiple gunshot wounds. In 1995 a jury convicted Narenjo of first degree murder (§ 187, subd. (a)), and kidnapping (§ 207, subd. (a)). The jury found true the kidnapping-murder special circumstance allegation that the murder "was committed and aided and abetted by [Narenjo] while the said defendant was engaged and an accomplice in the crime of kidnapping." (§ 190.2, subd. (a)(17).) The jury found not true the allegation that Narenjo personally used a firearm in committing the murder. The jury found true the allegation Narenjo personally used a firearm in committing the kidnapping. The court sentenced Narenjo to life without the possibility of parole. We affirmed the conviction and modified the sentence to stay the kidnapping sentence pursuant to section 654. (People v. Narenjo (July 7, 1997), B097618 [non-pub. opn.].)
B. The Jury Instructions
The trial court instructed the jury on aiding and abetting (CALJIC No. 3.01), deliberate and premeditated murder (CALJIC No. 8.20), the felony-murder rule (CALJIC No. 8.21), the kidnapping-murder special circumstance (CALJIC No. 8.80), and conspiracy (CALJIC No. 6.11).
CALJIC 3.01 defined aiding and abetting as when a person aids and abets the commission of a crime "(1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime."
CALJIC 8.20 explained that "[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree." CALJIC 8.21 defined first degree felony murder as follows: "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime as a direct causal result of a kidnapping is murder of the first degree when the perpetrator had the specific intent to commit such a crime. [¶] The specific intent to commit kidnapping and the commission or attempted commission of such crime must be proved beyond a reasonable doubt."
CALJIC 8.80 stated: "If you find the defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true: that the murder was committed in the course of a kidnapping. [¶] . . [¶] If you find beyond a reasonable doubt that the defendant was either the actual killer[,] a co-conspirator or an aider or abettor, but you are unable to decide which, then you must also find beyond a reasonable doubt that the defendant with intent to kill participated as a co-conspirator with or aided and abetted an actor in commission of the murder in the first degree, in order to find the special circumstance to be true. On the other hand, if you find beyond a reasonable doubt that the defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true."
Narenjo was not charged with conspiracy, but the jury was instructed on an uncharged conspiracy, including CALJIC No. 6.11, which stated in part: "A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any act of a coconspirator to further the object of the conspiracy, even though such act was not intended as part of the agreed upon objective . . . . [¶] You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Counts 1 and 2 [murder and robbery, respectively] was perpetrated by coconspirators in furtherance of such conspiracy and was a natural and probable consequence of the agreed upon criminal objective of such conspiracy."
C. Petition for Resentencing
On June 15, 2022 Narenjo filed a form petition for resentencing pursuant to former section 1170.95 (now section 1172.6). On April 17, 2023, after appointing counsel and receiving a response from the prosecutor and a reply from Narenjo's counsel, the superior court summarily denied Narenjo's petition. The court denied the petition because it was "inconsequential whether the jury was also instructed on natural and probable consequences and/or felony murder" because the instruction on the kidnapping-murder special circumstance (CALJIC No. 8.80) coupled with the jury's true finding of the same "established that the jury specifically found that the defendant acted with express malice or an intent to kill." The court also found "the overall record of conviction and the evidence reflected therein" also established that "defendant was a major participant who acted with reckless indifference to human life" based on the factors set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Narenjo timely appealed. His appellate counsel submitted a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, raising no issues. Narenjo filed a supplemental brief. Following our independent review of the record, we requested and received letter briefs from Narenjo and from the People addressing whether the jury instructions established ineligibility as a matter of law in light of People v. Letner and Tobin (2010) 50 Cal.4th 99 (Letner and Tobin) [acknowledging ambiguity in CALJIC No. 8.80]; People v. Ervin (2021) 72 Cal.App.5th 90 (Ervin) [reversing summary denial of resentencing petition in part due to ambiguous and conditional wording of CALJIC No. 8.80]; People v. Strong (2022) 13 Cal.5th 698, 720 (Strong) [explaining whether standards set forth in Banks/Clark were met is not something that can be done at the prima facie stage because "such a determination would entail factfinding prohibited at the prima facie stage"].
Narenjo's first supplemental brief states that he had new eyewitness testimony and that testimony from certain witnesses at trial was unreliable. However, he does not support his contentions with any argument. Narenjo also attaches documents, including certain jury instructions and verdict forms, and documents that appear to go to an alibi defense. Again, the documents are attached without any argument. His first supplemental brief does not raise any cognizable legal issues.
In addition to his counsel's response to our request for briefing, Narenjo filed a separate supplemental brief requesting relief and submitting the authority cited in our request for briefing.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (See Strong, supra, 13 Cal.5th at pp. 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule as set forth in section 189, subdivision (e). (See Reyes, at p. 986.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life as described in section 190.2, subdivision (d) (the felony-murder special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.)
Senate Bill 1437 also provided a procedure in section 1170.95, now codified in section 1172.6, for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (See Lewis, supra, 11 Cal.5th at p. 959.)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).)
B. The Superior Court Erred in Summarily Denying Narenjo's Petition for Resentencing
In response to our request for letter briefs, Narenjo contends he is entitled to an evidentiary hearing based on Letner and Tobin, supra, 50 Cal.4th 99; Ervin, supra, 72 Cal.App.5th 90; and Strong, supra, 13 Cal.5th 698. The People concede that under the circumstances of this case, Narenjo is entitled to an evidentiary hearing. We agree.
The superior court erred in relying on the jury's true finding on the kidnapping-murder special circumstance to conclude Narenjo was ineligible for resentencing relief as a matter of law. The California Supreme Court has criticized the special circumstance instruction, CALJIC No. 8.80, because of its ambiguity. Because the instruction directed a jury "if it determined one of the defendants was the actual killer, intent to kill was not required, and that if it could not decide whether one of the defendants was the actual killer or an aider and abettor, it must find intent to kill in order to make a true finding. The jury, however, was not informed what was required in the event the jury determined that a particular defendant was an aider and abettor. The omission of this third alternative made the instruction ambiguous." (Letner and Tobin, supra, 50 Cal.4th at p. 181, see fn. 25 in quoted material.) The same ambiguity in the special circumstance instruction given in Letner and Tobin exists here because the instruction given to Narenjo's jury did not clearly instruct the jury what it needed to conclude as to Narenjo's intent to kill, if it concluded Narenjo was an aider and abettor or a coconspirator.
The special circumstance instruction given in Letner and Tobin, supra, 50 Cal.4th at page 181, footnote 25, was a modified version of the CALJIC pattern instruction applicable to murders that were committed prior to June 6, 1990. In Narenjo's case, the applicable CALJIC pattern was the 1990 revised edition. The ambiguity identified by the California Supreme Court is present in the instructions as given in both Letner and Tobin and in Narenjo's case.
We note in this case the CALJIC No. 8.80 instruction also included the possibility of guilt based on Narenjo as a coconspirator in an uncharged conspiracy, and Narenjo's jury was instructed with CALJIC No. 6.11. (See, e.g., People v. Offley (2020) 48 Cal.App.5th 588, 599 ["we cannot rule out the possibility that the jury relied on the natural and probable consequences doctrine in convicting" the defendant where "[t]he trial court instructed the jury on the natural and probable consequences doctrine as part of its instruction on conspiracy liability"].)
Additionally, Ervin, supra, 72 Cal.App.5th at pages 108 to 109, identified another ambiguity in CALJIC No. 8.80. Specifically, the instruction allowed a jury to find a kidnapping-murder special circumstance allegation true if the defendant aided and abetted "another" in the killing of a human being, as opposed to aiding the "actual killer." Section 189, subdivision (e)(2), now requires "the intent to kill, aided, abetted, . . . or assisted the actual killer in the commission of murder in the first degree." (Emphasis added.) In Narenjo's case, the instruction referred to "an actor" and not the "actual killer," which creates the same ambiguity identified in Ervin.
Ervin, supra, 72 Cal.App.5th at page 107 (emphasis added), also observed that based on the conditional language of the special circumstance instruction, which began, "'If you find the defendant in this case guilty of murder of the first degree, you must then determine if . . . the following special circumstance[s] [are] true or not true,'" coupled with "the jury's not true finding on the personal use of a weapon enhancement (as to the murder)," it cannot be assumed that "the jury's true findings on the felony-murder special-circumstance allegations categorically preclude . . . relief under [former] section 1170.95 as a matter of law." (Id., at p. 108.) Like Ervin, the special circumstance instruction given to Narenjo's jury contained the conditional language, and the jury found not true that Narenjo personally used a firearm in the commission of the murder. Thus, a true finding on the kidnapping-murder special circumstance did not preclude relief as a matter of law.
The superior court also erred in conducting a factual inquiry into whether Narenjo was a major participant in the underlying kidnapping who acted with reckless indifference to human life pursuant to the factors set forth in Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522. In Strong, supra, 13 Cal.5th at page 720, the California Supreme Court held that a special circumstance finding made prior to Banks and Clark, did not warrant summary denial of a section 1172.6 petition because a determination of whether the standards set forth in these cases were met "would entail factfinding prohibited at the prima facie stage." (Ibid., citing 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.'"]; Banks, supra, 61 Cal.4th at p. 803 [analyzing whether a defendant was a major participant requires "weigh[ing]" the factors and evidence]; People v. Arreguin (2023) 89 Cal.App.5th 58, 62 ["In sum, Strong held that a pre-Banks and pre-Clark special circumstance finding does not warrant summary denial of a section 1172.6 petition. Instead, the matter must proceed to an evidentiary hearing."].)
DISPOSITION
The order denying Narenjo's petition for resentencing pursuant to section 1172.6 is reversed. The matter is remanded, and the superior court is directed to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6, subdivision (d).
We concur: SEGAL, Acting P. J., FEUER, J.