Opinion
E081907
08-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN OGG, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Melissa A. Mandel, Felicity A. Senoski, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB01808 Steve Malone, Judge.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Melissa A. Mandel, Felicity A. Senoski, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
Michael Allen Ogg appeals the summary denial of his Penal Code section 1172.6petition to vacate his murder conviction. Because Ogg's jury instructions conclusively demonstrate that he was convicted on a still-valid theory of murder, we affirm.
Unlabeled statutory citations refer to the Penal Code.
BACKGROUND
In 1996 a jury convicted Ogg of first degree felony murder (§§ 187, 189, subd. (a)), two counts of robbery (§ 211), two counts of attempted robbery (§§ 211/664), assault with a firearm (§ 245, subd. (a)(2)), and kidnapping to commit robbery (§ 209, subd. (b)). The jury also found true a special circumstance alleging that Ogg committed the murder while engaged in a robbery (§ 190.2, subd. (a)(17)) and found true allegations that Ogg personally used a firearm in the commission of each charged crime (§ 12022.5, subd. (a)). On the murder charge, Ogg's jury received instructions only on felony murder. It did not receive any instructions regarding malice aforethought. It also received no instructions on aiding and abetting. The charging documents and the instructions as to the elements of the crimes do not allude to any person other than Ogg being involved with the crimes.
In 2022 Ogg filed a petition seeking to vacate his murder conviction under what is now section 1172.6. In July 2023 the court denied the petition. The court found the petition failed to state a prima facie case for relief because "[t]he only instruction that [the jury was] given was on malice. So there is no possibility that the jury could have convicted him of murder under any other theory than malice. And under the law as amended and standing today, he would still be convicted of murder under malice."
ANALYSIS
Ogg argues the trial court erred by concluding he was not entitled to relief because he was convicted under an actual malice theory. This was erroneous reasoning because no such theory was provided to Ogg's jury. Nevertheless, the trial court's conclusion was correct. Regardless of the trial court's stated reason, Ogg is not entitled to relief here because the record of conviction conclusively establishes that the jury found he was the actual killer. Specifically, under the instructions provided to the jury, it had to find that Ogg was the actual killer of the victim to find the robbery special circumstance true, as it did.
Senate Bill No. 1437 (Senate Bill 1437) (2017-2018 Reg. Sess.), effective January 1, 2019, amended the definition of felony murder in section 189. Under section 189 as amended, a person who is not the actual killer, did not act with the intent to kill, and was not a major participant in the underlying felony who acted with reckless indifference to human life is not liable for murder. (§ 189, subd. (e); People v. Clements (2022) 75 Cal.App.5th 276, 290.) Senate Bill 1437 also added what is now section 1172.6, which (in its current version) allows "[a] person convicted of felony murder . . . or other theory under which malice is imputed to a person based solely on that person's participation in a crime," to "file a petition with the court that sentenced the petitioner to have the petitioner's . . . conviction vacated and to be resentenced on any remaining counts." (§ 1172.6, subd. (a).) Once a court determines that such a petition contains all relevant information, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).)
When conducting a prima facie review, the court" '" 'takes [the] 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.'" '" (People v. Eynon (2021) 68 Cal.App.5th 967, 975.) "If the record of conviction does not conclusively demonstrate that the defendant 'engaged in the requisite acts and had the requisite intent' to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper." (People v. Barboza (2021) 68 Cal.App.5th 955, 965-966.)
The jury in Ogg's case was given felony-murder instructions that allowed the killing in the commission of a robbery to substitute for malice that would otherwise be required for Ogg to be guilty of murder. But the jury was given no vicarious liability instruction that in any way would allow Ogg to be held liable for a killing performed by another person.
Specifically, Ogg's jury was instructed on the elements of murder using a felonymurder instruction, adapted from CALJIC No. 8.10, that stated that a "person who unlawfully kills a human being during the commission or attempted commission of Robbery" is guilty of murder. The jury was also instructed, using CALJIC No. 8.21, that a killing during a robbery was murder when "the perpetrator" has the intent to commit the robbery. Crucially, the jury was not given the felony-murder instruction, CALJIC No. 8.27, that, if used, would inform the jury that persons engaged in a robbery could be guilty of murder based on the killing by a cohort. (See People v. Esquivel (1994) 28 Cal.App.4th 1386, 1393, fn. 5.) The felony-murder instructions alone indicate that Ogg was found guilty as the actual killer.
Finally, the jury found the special circumstance true, which stated that the murder of the victim "was committed by [Ogg] while [Ogg] was engaged in the commission of the crime of ROBBERY...." The text of the special circumstance provides no basis to conclude that Ogg's jury could have concluded that someone other than him committed the robbery. The instruction for the special circumstance, adapted from CALJIC No. 8.80.1, did not include any instructions on aiding and abetting or major participation with reckless indifference to human life. Therefore, in the context of the instructions that Ogg's jury was given, "[t]he instructions and verdicts show the only path to convicting [Ogg] of first degree felony murder" was "based on a finding [Ogg] actually killed" the victim. (People v. Hardin (2022) 81 Cal.App.5th 45, 56 [holding instruction adapted from CALJIC No. 8.80.1 that "theoretically" could permit a finding that that defendant was liable for another person's killing did not do so where the jury was instructed only on a theory that the defendant was the actual killer].)
Ogg argues that nothing in the robbery special circumstance instruction required the jury to find Ogg was the actual killer. Even if we agreed, Ogg must have been found to be the actual killer regardless. Our Supreme Court's law requires the jury to find defendant was (1) the actual killer, (2) an aider and abettor who acted with intent to kill or (3) a major participant who acted with reckless indifference to human life. (See People v. Mil (2012) 53 Cal.4th 400, 408-409 [noting that before 1990 "the felonymurder special circumstance, as it then read, applied only to the actual killer or to an aider and abettor who intended to kill," but that "a person other than the actual killer is now subject to the death penalty or life imprisonment without the possibility of parole if that person intended to kill or was a major participant in the underlying felony and acted with reckless indifference to human life"].) The jury was not asked to find whether Ogg was an aider and abettor or a major participant who acted with reckless indifference to human life. In other words, they were not instructed on any theory that would allow them to find the special circumstance true without finding Ogg was the actual killer. Therefore, regardless of any claimed ambiguity in the instruction, the jury could only have found the special circumstance true by finding Ogg was the actual killer.
Ogg also argues that the special circumstance finding cannot render him ineligible as a matter of law because it was made before our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), citing to People v. Strong (2022) 13 Cal.5th 698 (Strong) to support this argument. None of these cases apply. Banks and Clark provided guidance for what the terms "major participant" and "reckless indifference to human life" mean under California law. Strong, in turn, held that "unless a defendant was tried after Banks was decided, a major participant finding will not defeat an otherwise valid prima facie case. And unless a defendant was tried after Clark was decided, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case." (Strong, at p. 721.) But Ogg's jury was not instructed on the major participant or reckless indifference standards and did not make either such finding. Accordingly, Strong does not prohibit us from considering the special circumstance finding when determining whether Ogg has made a prima facie case for eligibility.
Finally, Ogg argues the trial court erred by finding he was ineligible for relief because he acted with actual malice. Ogg is right that he was convicted under a theory of imputed malice, not actual malice, and therefore the trial court's finding otherwise was erroneous. However, we need not reverse. Ogg was ineligible for relief regardless, and "we may affirm a ruling that is correct in law on any ground." (People v. Cortes (2022) 75 Cal.App.5th 198, 204.)
The People also argue Ogg forfeited his claims here by failing to object at the trial court level. Because we conclude Ogg's claim fails on the merits, we decline to address the People's forfeiture argument.
DISPOSITION
We affirm.
We concur: MILLER, Acting P. J., MENETREZ J.