Opinion
B299620
12-01-2023
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO PUEBLA, Defendant and Appellant.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA028402, Cynthia L. Ulfig, Judge. Affirmed.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
Defendant and appellant Rodolfo Puebla (Puebla) appeals from the trial court's summary denial of his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6). This court originally dismissed the appeal as abandoned when neither Puebla nor his counsel raised any arguable issues. The California Supreme Court subsequently granted review of the dismissal order and transferred the case back to this court with directions to vacate the prior decision and consider whether to exercise our discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Puebla thereafter filed a supplemental brief. He argues the record of conviction does not conclusively negate the possibility that he was convicted of second degree murder under an imputed malice theory due to an ambiguity in the jury instructions. We disagree and affirm the order denying relief.
All subsequent statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts is taken from the opinion of Puebla's direct appeal, People v. Puebla (April 25, 2000, B131213 [nonpub. opn.]), which affirmed the judgment. We do not rely on the facts in resolving this appeal.
In 1997, Demetrius Fears (Fears), an African American male, and his friends arrived at a 7-Eleven in Pacoima at approximately 2:00 a.m. A gray Chevrolet Celebrity backed out of a stall and then reparked next to some of Fears's friends. Three males inside the Chevrolet, including Puebla and Bulmaro Huerta (Huerta), got out of the car. Huerta walked up to Fears, who stood at the entrance to the store, and shot him in the head four times. Huerta tried to fire at three of Fears's friends, but he ran off when his gun would not shoot. Puebla got into the Chevrolet and drove in the same direction Huerta ran.
Los Angeles police sergeant John Warren was at the 7-Eleven approximately 15 minutes before the shooting, where he saw multiple males in what appeared to be a tan Oldsmobile sedan. He recognized Puebla and Huerta and knew them to be members of the Humphrey Boys street gang.
Several weeks after the shooting, Los Angeles police detectives Lindy Gligorijevic and Ric Gonzalez executed a search warrant at Puebla's home. The detectives searched Puebla's room and found several sheets of paper with the gang names of Puebla, Huerta, and other known Humphrey Boys members, as well as photographs of Puebla and Huerta making Humphrey Boys gang signs. Further, Puebla admitted his family owned a grayish-tan Chevrolet Celebrity.
At trial, Detective Gligorijevic testified the Humphrey Boys were rivals with an African American gang, the Piru Bloods, and that all the victims of Humphrey Boys crimes were African American. The Humphrey Boys considered the shooting of an African American to enhance their image. She testified she found pieces of paper in Puebla's room which indicated to her that the Piru Bloods would be caught unprepared for gang violence. Additionally, two of Fears's friends and the store clerk identified Huerta as the shooter.
The jury was instructed on the theories of first degree murder (CALJIC No. 8.20), implied-malice second degree murder (CALJIC No. 8.31), attempted murder (CALJIC No. 8.67), and direct aiding and abetting (CALJIC No. 3.01). The jury was not instructed on the felony murder or natural and probable consequences doctrine.
Huerta was convicted of first degree murder. Puebla was convicted of second degree murder. The jury found true that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang, and that during its commission, a principal was armed with a firearm.
B. Petition for Resentencing and Appeal
In January 2019, Puebla filed a petition for resentencing under section 1172.6. He indicated he was convicted of second degree murder under the felony murder or natural and probable consequences doctrine. After appointing counsel for him and receiving briefing by the parties, the trial court summarily denied the petition. The court found he did not qualify for relief because "he was convicted as an aider and an abettor and not under the felony[-]murder rule." Puebla timely appealed.
In his opening brief, Puebla requested that this court independently review the entire record on appeal for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. This court dismissed the appeal as abandoned when Puebla declined to file a supplemental brief when invited to do so.
Puebla petitioned for review of the dismissal order, and in January 2021, the California Supreme Court granted his request. Thereafter, in June 2023, the Supreme Court transferred the case back with directions to vacate the prior decision and reconsider the case in light of Delgadillo, supra, 14 Cal.5th at pages 232-233 and footnote 6 (noting this court has discretion to conduct an independent review of the record) and Lewis, supra, 11 Cal.5th at pages 971-972 (discussing use of the record of conviction to assess whether petitioner has made a prima facie case for relief).
Following the transfer order, the People filed a letter brief requesting that we issue a notice under Delgadillo. Alternatively, the People asked we independently review the record, "which shows that [Puebla] was ineligible for relief as a matter of law because he was convicted as an aider and abettor and not convicted under any theory affected by section 1172.6." Puebla then filed his supplemental brief asserting he is eligible for resentencing relief based on a defect in the jury instructions given at trial. We will consider the merits of Puebla's argument. (Delgadillo, supra, 14 Cal.5th at p. 232 [where a defendant files a supplemental brief, the appellate court is "required to evaluate the specific arguments presented in that brief and to issue a written opinion"].)
DISCUSSION
A. Governing Law and Standard of Review
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) to clarify the felony-murder rule and eliminate the natural and probable consequences doctrine "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); Lewis, supra, 11 Cal.5th at pp. 957, 959.) To this end, the law specifically provided that a "person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
SB 1437 also added what is now section 1172.6, providing a procedure for individuals convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief by petitioning the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).) A petition must allege (1) that the petitioner was subject to a complaint, information, or indictment that allowed the prosecution to proceed under the natural and probable consequences doctrine or other theory of imputed malice; (2) the petitioner was convicted of murder, attempted murder, or manslaughter; and (3) the petitioner could no longer be convicted in light of SB 1437. (§ 1172.6, subd. (a).)
Within 60 days after service of a compliant petition, the prosecutor must file and serve a response, and after the parties have 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 [this] showing . . . the court shall issue an order to show cause" and set an evidentiary hearing. (§ 1172.6, subd. (c).)
At the prima facie stage of review, "'"the 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."' [Citation.]" (Lewis, supra, 11 Cal.5th at p. 971.) If the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law, the trial court may deny the petition. (People v. Strong (2022) 13 Cal.5th 698, 708; People v. Harden (2022) 81 Cal.App.5th 45, 52.) We review de novo whether the trial court properly denied appellant's section 1172.6 petition without issuing an order to show cause. (People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
B. Puebla Is Ineligible for Section 1172.6 Relief
Puebla asserts that People v. Powell (2021) 63 Cal.App.5th 689 (Powell) and People v. Langi (2022) 73 Cal.App.5th 972 (Langi) identified an instructional defect that can arise when CALJIC Nos. 3.01 and 8.31 are given together. He contends that because of the defect, it is possible the jury convicted him under a theory that imputed malice to him based solely on his participation in the crime without regard to his mental state. We disagree.
In Powell, defendants Jeffery Powell and Christopher Lawrence Langlois, together with two other people, broke into the victim's house, seeking retaliation for an altercation that occurred earlier in the evening. (Powell, supra, 63 Cal.App.5th at pp. 691-692.) Powell and Langlois, and possibly a third man, beat the victim and fled. (Id. at p. 692.) The victim died soon after the attack from a stab wound to the heart. (Ibid.) The prosecution contended that Powell inflicted the fatal wound. (Ibid.) As to Langlois, the prosecution advanced two theories of liability: "direct aiding and abetting express malice murder, and (2) indirect or extended liability for the natural and probable consequences of the assault Langlois aided and abetted." (Id. at p. 708.) Powell and Langlois were convicted of second degree murder and first degree residential burglary, which they appealed. (Id. at pp. 705-706.)
Powell found that the standard CALCRIM aiding and abetting instruction (CALCRIM No. 401) was "not tailored for" the crime of second degree implied-malice murder. (Powell, supra, 63 Cal.App.5th at p. 714.) For implied-malice murder liability, "[t]he mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life." (Id. at p. 713, fn. omitted.) While CALCRIM No. 401 requires an intent to aid and abet a "crime," it does not instruct the jury that the aider and abettor must personally harbor that mental state of implied malice to be convicted of second degree murder. (Id. at p. 714) The instructions were, therefore, erroneous. (Id. at p. 714.)
The trial court in Powell instructed the jury with CALCRIM No. 401 as follows: "'To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove the following: [¶] 1. The perpetrator committed the crime. [¶] 2. The defendant knew that the perpetrator intended to commit the crime. [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose, and he specifically intends to and does in fact aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor.'" (Powell, supra, 63 Cal.App.5th at pp. 706-707.)
The Powell court went on to conclude the instructional error was harmless because the prosecutor never advanced an implied malice theory as to Langlois. (Powell, supra, 63 Cal.App.5th at pp. 714, 716.)
In Langi, the defendant was convicted of second degree murder, battery, and robbery in connection with the beating death of a robbery victim. (Langi, supra, 73 Cal.App.5th at p. 975.) The victim died after someone in a group, which included the defendant, punched him, causing him to fall and hit his head. (Ibid.) "As the case was tried, the jury could have found [the defendant] guilty as an aider and abettor even if it found that someone else threw the fatal punch." (Id. at p. 980.) The defendant's jury was not instructed on the natural and probable consequences doctrine but was instructed on second degree murder under CALJIC No. 8.31 and aiding and abetting under CALJIC No. 3.01. CALJIC No. 3.01 was "identical in relevant substance" to CALCRIM No. 401. (Id. at pp. 980-981, 983.)
As given to the jury in Langi, CALJIC No. 8.31 "stated that a killing is a second degree murder if '1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.'" (73 Cal.App.5th at p. 981.) CALJIC No. 3.01 "stated that '[a] person aids and abets the commission . . . of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, . . . [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.'" (Ibid.) These instructions are identical in substance to the instructions as given to the jury in this case.
Applying Powell's reasoning in the section 1172.6 context, Langi found that although the aiding and abetting instruction stated that a person aids and abets a crime if he or she acts" with knowledge of the unlawful purpose of the perpetrator, and . . . with the intent or purpose of committing or encouraging or facilitating the commission of the crime," "the second[-]degree[-]murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death." (Langi, supra, 73 Cal.App.5th at p. 982.) "Thus, while the perpetrator must have deliberately performed the fatal act 'with knowledge of the danger to, and with conscious disregard for, human life' (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator's purpose need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent." (Id. at pp. 982-983.) The instructions, thus, permitted the jury "to conclude that, to be guilty as an aider and abettor of second degree murder, [the defendant] need only have intended to encourage the perpetrator's intentional act-in this case, punching [the victim]-whether or not appellant intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing." (Id. at 983, fn. omitted.)
The aiding and abetting instruction created an ambiguity in Langi under which the jury could "find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice." (Langi, supra, 73 Cal.App.5th at p. 982, fn. omitted.) In other words, it did not require the jury to determine whether the defendant knew the act he aided (i.e., the punch) was life-threatening or whether he acted with indifference to human life. (Ibid.) As the record of the defendant's conviction did not conclusively negate the possibility that the jury found him guilty as an aider and abettor on an imputed malice theory, an evidentiary hearing was required. (Id. at p. 984.)
Powell and Langi are distinguishable. The defendants in Powell and Langi were charged with non-murder crimes (burglary, battery, and robbery) in addition to being charged with murder. The only crimes Puebla was charged with were murder (either first degree or second degree) and attempted murder. Whereas the perpetrator that threw the fatal punch in Langi may not have had murderous intent, the crime of murder required acting either with an intent to kill or implied malice.
Regarding the aiding and abetting instruction, CALJIC No. 3.01 states that a person aids and abets a crime when the person, (1) with knowledge of the perpetrator's "unlawful purpose," and (2) "[w]ith the intent or purpose of committing or encouraging or facilitating" the crime's commission, (3) aids, promotes, encourages or instigates, by act or advice, the crime's commission. Because there was no crime other than murder charged, the instructions required the jury to find that Puebla knew the perpetrator intended to commit the crime of murder, and that he acted with the intent or purpose of committing, encouraging, or facilitating that murder. "Absent some circumstance negating malice," where the only unlawful purpose charged is an unlawful killing, "one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice." (People v. McCoy (2001) 25 Cal.4th 1111, 1123.) Therefore, the finding that Puebla knowingly and intentionally aided the crime of murder means the jury necessarily found he personally acted with malice.
DISPOSITION
The order denying Puebla's section 1172.6 petition is affirmed.
We concur: CURREY, P. J., ZUKIN, J.