Opinion
B320608
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. HENRY QUEZADA, Defendant and Appellant.
Richard Lennon and Jennifer Peabody, 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, Daniel Chang and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A644721 Pat Connolly, Judge. Reversed with directions.
Richard Lennon and Jennifer Peabody, 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, Daniel Chang and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
In 1988 a jury convicted Henry Quezada on two counts of murder and one count of attempted murder. The jury also found true firearm allegations. The trial court sentenced Quezada to a prison term of 60 years to life. We affirmed. (People v. Quezada (Nov. 8, 1989, B034685) [nonpub. opn.] (Quezada I).)
Thirty-two years later, Quezada filed a petition under Penal Code former section 1170.95 (now section 1172.6), which, as amended effective January 1, 2022, authorizes certain individuals convicted of murder under the felony-murder rule or murder, attempted murder, or voluntary manslaughter under the natural and probable consequences doctrine to petition for resentencing. Quezada alleged facts that, if true, made him eligible for relief. The People filed an opposition, arguing the record of conviction refuted the allegations. The superior court summarily denied the petition.
Statutory references are to the Penal Code. In 2022 the Legislature renumbered section 1170.95 as section 1172.6 with no change in the text. (See Stats. 2022, ch. 58, § 10; People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
Rather than appealing, Quezada filed a second petition under section 1172.6 a year later, alleging the same facts he alleged in his first petition. The superior court appointed counsel to represent Quezada, held a hearing, ruled Quezada had not established a prima facie case for relief, and denied the petition. This time, Quezada appealed. Because the record of conviction does not refute the allegations in Quezada's petition as a matter of law, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Quezada on Two Counts of Murder and One Count of Attempted Murder
One day in September 1987, while Quezada stood outside his house, Anthony Lewis drove up and told Quezada that someone "shot [Lewis's] house." Lewis said, "Go get the gun, and I will get revenge." Quezada went inside his house, came out with an AK 47 assault rifle, gave it to Lewis, and got into the driver's seat of Lewis's car. Quezada drove off, with Lewis in the passenger seat. (Quezada I, supra, B034685.)
Quezada began to follow three young men in a black car. Frederick Ford drove the black car, Christopher Morgan was in the front passenger seat, and Arturo Gamboa was in the back seat. Quezada pulled alongside the car, and Lewis made the sign of a criminal street gang with his fingers. Quezada slowed down, got behind the black car, and continued to follow it. Lewis fired 18 or 19 shots at the black car. Quezada drove back to Quezada's house and got out of the car with his rifle, and Lewis drove away. (Quezada I, supra, B034685.) Ford and Gamboa died of multiple gunshot wounds. Morgan sustained a gunshot wound to his leg.
The People charged Quezada with two counts of first degree murder and one count of attempted murder. For each count, the People alleged a principal was armed with a firearm, within the meaning of section 12022, subdivision (a).
A jury found Quezada guilty on all counts and found true the firearm allegations. The trial court sentenced Quezada to prison terms of 26 years to life on one of his murder convictions, 25 years to life on his other murder conviction (the court imposed and under section 654 stayed execution of the one-year firearm enhancement), and the upper term of nine years on his attempted murder conviction. Quezada appealed, challenging his convictions on grounds not relevant to this appeal, and we affirmed. (Quezada I, supra, B034685.)
B. Quezada Files Two Petitions Under Section 1172.6, and the Superior Court Denies Both
In 2020 Quezada filed a petition under section 1172.6. Using a form petition, Quezada checked boxes next to statements that asserted he was convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine and that he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Quezada requested counsel, but the record does not reflect whether the court appointed one for him. The People filed an opposition and argued Quezada failed to make a prima facie showing he was eligible for relief because "he was not prosecuted under either a felony murder or a natural and probable consequences theory of culpability" and the jury "was not instructed on either theory of culpability." The superior court summarily denied the petition. The court stated that the court file showed Quezada "was not convicted under a theory of felony-murder of any degree [or] a theory of natural and probable consequences" and that "there are no jury instructions for felony murder [or] natural and probable consequences." Quezada did not appeal.
In 2021 Quezada filed a second petition under section 1172.6. Using the same pre-printed form, Quezada alleged the same facts he had alleged in his first petition. Quezada again asked the court to appoint counsel to represent him. The court deemed the second petition a petition for reconsideration of its prior ruling (denying the first petition) and summarily denied the second petition for the same reasons it denied the first petition.
One month later, and for reasons not clear in the record, the court appointed counsel to represent Quezada and set a hearing on Quezada's second petition. Counsel for Quezada filed a reply to the opposition the People had filed in response to Quezada's first petition, arguing that Quezada established a prima facie case for relief because he alleged facts that, if true, would make him eligible for resentencing and that the record did not demonstrate Quezada was ineligible for relief as a matter of law. Counsel for Quezada argued the trial court instructed the jury with CALJIC No. 3.00 (1987 re-rev.) (4th ed. 1979), which was "equivalent" to an instruction on the natural and probable consequences doctrine. At the hearing, counsel for Quezada emphasized the proceeding at the prima facie stage "is a very limited point in the case where there is no factfinding." The prosecutor argued Quezada "was not prosecuted under jury instructions" that would qualify him for relief. The court ruled Quezada failed to make a prima facie showing for relief and denied the petition. Quezada timely appealed.
The 1987 version of CALJIC No. 3.00 was an instruction on aider and abettor liability. (See People v. Cox (1991) 53 Cal.3d 618, 668, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Because the superior court did not appoint counsel to represent Quezada on his first petition, and because the law has changed since Quezada filed his first petition (see People v. Lewis (2021) 11 Cal.5th 952), Quezada's second petition is not procedurally barred as a successive petition. (See People v. Farfan (2021) 71 Cal.App.5th 942, 951 [where the superior court did not appoint counsel to represent the petitioner on his prior, facially sufficient petition, and the second petition "was based on new authority," the second petition "was not procedurally barred as a successive petition"].)
DISCUSSION
A. Applicable Law and Standard of Review
Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis)). 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 in section 189, subdivision (e). The latter provision requires the People to prove that the defendant was the actual killer (§ 189, subd. (e)(1)); that the defendant, though not the actual killer, with the intent to kill assisted in the commission of the murder (§ 189, subd. (e)(2)); or that the defendant was a major participant in a felony listed in section 189, subdivision (a), and acted with reckless indifference to human life, "as described in subdivision (d) of Section 190.2," the felony-murder special-circumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708; Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony murder or murder, attempted murder, or voluntary manslaughter based on a natural and probable consequences doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder because of the changes the Legislature made to the definitions of the crime. (See Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Vargas (2022) 84 Cal.App.5th 943, 950-951.) If a petition under section 1172.6 contains all the required information, the court must appoint counsel to represent the petitioner if requested. (Lewis, at pp. 962-963; see § 1172.6, subd. (b)(1)(A), (3).) The prosecutor must then file a response to the petition, the petitioner may file a reply, and the court must hold a hearing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (§ 1172.6, subd. (c).)
Effective January 1, 2022 the Legislature amended section 1172.6 to permit persons convicted of attempted murder under the natural and probable consequences doctrine to petition for resentencing. (See Stats. 2021, ch. 551; People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) Although the amendment went into effect after Quezada filed his second petition under section 1172.6, the hearing on the petition was in May 2022. Quezada did not seek to amend his petition to allege that he was convicted of attempted murder under the natural and probable consequences doctrine or that he could not now be convicted of that crime because of the changes made to sections 188 and 189. Quezada does not argue in his opening brief he is entitled to relief under section 1172.6 on his attempted murder conviction, but he will have the opportunity to amend his petition on remand.
"[T]he prima facie inquiry under [section 1172.6,] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, '"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.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.] '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, supra, 11 Cal.5th at p. 971; see People v. Maldonado (2023) 87 Cal.App.5th 1257, 1261; People v. Harden (2022) 81 Cal.App.5th 45, 51-52.)
The record of conviction includes closing arguments, jury instructions, verdict forms, and to a limited extent, prior appellate opinions in the case. (Lewis, supra, 11 Cal.5th at pp. 971-972; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.) "However, 'the probative value of an appellate opinion is case specific, and "it is certainly correct that an appellate opinion might not supply all answers."'" (People v. Lopez (2022) 78 Cal.App.5th 1, 13-14; see Lewis, at p. 972; People v. Ervin (2021) 72 Cal.App.5th 90, 99 (Ervin).) "In reviewing any part of the record of conviction at this preliminary juncture, a [superior] court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.] . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, at p. 972; see People v. Harden, supra, 81 Cal.App.5th at p. 51; People v. Langi (2022) 73 Cal.App.5th 972, 979-980.)
On appeal from an order denying a petition under section 1172.6 on the ground the defendant failed to make a prima facie showing for relief, we review de novo whether the petitioner is ineligible for relief as a matter of law. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; People v. Lopez, supra, 78 Cal.App.5th at p. 14; Ervin, supra, 72 Cal.App.5th at p. 101.) "A petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, [or] (3) the petitioner was a major participant in the underlying felony and acted with reckless indifference to human life, or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime." (Lopez, at p. 14; see §§ 188, subd. (a)(3), 189, subd. (e); People v. Lopez (2023) 88 Cal.App.5th 566, 576 ["It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing."].)
Where the petitioner makes the requisite prima facie showing he or she is entitled to relief under section 1172.6, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1); see Strong, supra, 13 Cal.5th at pp. 708-709.) At that hearing the court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law," including witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may also offer new or additional evidence. (Ibid.; see People v. Gentile, supra, 10 Cal.5th at pp. 853-854.)
B. Relevant Jury Instructions and the Prosecutor's Closing Argument
The trial court in Quezada's trial instructed the jury on the elements of murder and attempted murder and defined malice and the degrees of murder. Using the 1987 version CALJIC No. 3.00, the court instructed the jury that principals of a crime are "equally guilty" and include (1) those who "directly and actively commit or attempt to commit the act constituting the crime" or (2) those who "aid and abet the commission or attempted commission of the crime." The trial court also instructed the jury: "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 probable consequences of any act that he knowingly and intentionally aided or encouraged. It is for you, the jury, to determine whether the defendant is guilty of the crime allegedly contemplated, and, if so, whether the crime charged was a natural and probable consequence of the criminal act knowingly and intentionally encouraged." And the trial court instructed the jury on aiding and abetting with the 1984 version of CALJIC No. 3.01 (1984 rev.) (4th ed. 1979): "A person aids and abets the commission or attempted 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, encouraging, or facilitating the commission of the offense, by act or advice aids, promotes, encourages or instigates the commission of the crime."
During closing argument, the prosecutor argued the evidence showed that Ford and Gamboa "died as a result of the express intent on the part of the killer that they die and that the attack upon [Morgan], which was part and parcel of the killing of the other two young men, amount[ed] to an attempted murder." After reviewing the evidence that pointed to Lewis as the shooter and Quezada as "the driver and provider of the gun," the prosecutor argued: "An aider and abettor is a person who assists or counsels or procures the commission of a crime. The aider and abettor to a crime is culpable for the acts of the principal whom he aids and abets for everything that he knew or intended would happen, plus all the reasonable and logical consequences of that act." The prosecutor then stated: "Henry Quezada was asked to provide a gun, and he provided a high-powered, semi-automatic rifle. He was asked to drive, and he did so."
The prosecutor continued to detail how Quezada facilitated Lewis's crimes. The prosecutor said Quezada "drove up alongside the ultimate target vehicle" and "stayed alongside it while Anthony Carl Lewis flashed his [gang] sign at it, and then for whatever reason, he fell behind it and followed it down [the street] into the dark spot. And when Anthony Carl Lewis opened fire with that semi-automatic assault rifle, [Quezada] stayed behind the car and tracked along behind the target car and provided a sufficiently steady platform for Anthony Carl Lewis, the gunman, to allow for that car, that target car, to be hit numerous times and to allow for two of the three people inside that car to be killed." The prosecutor concluded: "If that's not aiding and abetting an intentional murder, I don't know what other evidence could possibly be brought to bear....I believe that the evidence is more than sufficient to justify a finding that Henry Quezada willfully participated and knowingly participated in a lethal attack to the extent that he should be held culpable for the killing just as Anthony Carl Lewis, the shooter, should."
C. The Superior Court Erred in Summarily Denying Quezada's Petition
The record does not as a matter of law refute Quezada's allegation the jury convicted him of first degree murder under the natural and probable consequences doctrine. The trial court instructed the jury that principals of a crime are "equally guilty" and that principals included those who "aid and abet" the commission of the crime. The court further told the jury that an aider and abettor was liable for the natural and probable consequence of any acts he or she knowingly and intentionally aided or encouraged. The court's instructions thus allowed the jury to find that Quezada aided and abetted an unspecified crime and that Quezada was responsible (indeed, as guilty as Lewis) for the natural and probable consequence of that crime, murder. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007 ["Because [the] jury was instructed on the natural and probable consequences doctrine for attempted murder," the defendant "may establish a prima facie showing of eligibility."]; cf. People v. Coley (2022) 77 Cal.App.5th 539, 546 [defendant "was ineligible for resentencing as a matter of law" because "the jury did not receive instructions that it could convict [him] based on . . . the natural and probable consequences doctrine at trial"]; People v. Daniel (2020) 57 Cal.App.5th 666, 677 [because "no instructions were given on . . . murder under the natural and probable consequences doctrine," the petitioner was "ineligible for relief as a matter of law"], review dismissed Dec. 1, 2021, S266336; People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [defendant "was not and could not have been convicted of second degree murder under the natural and probable consequences doctrine" because "the jurors were not provided any instruction on which they could have found [him] guilty of murder under that doctrine"], review dismissed Nov. 17, 2021, S263939.)
Because Quezada's trial occurred before the Supreme Court's decision in People v. Prettyman (1996) 14 Cal.4th 248, the instruction on the natural and probable consequences doctrine did not specify the crime the prosecution alleged he aided and abetted. In Prettyman the Supreme Court held that, when the prosecution relies on the natural and probable consequences theory of accomplice liability and the evidence supports an instruction on that theory, the trial court must give "an instruction describing or defining the elements of the target crime." (Id. at p. 266; see People v. Lopez, supra, 88 Cal.App.5th at p. 572, fn. 6 [because the defendant's trial predated Prettyman, the "natural and probable consequences jury instruction did not specify the target crime he was charged with aiding and abetting"].)
Although the trial court did not define the target crime in the pattern jury instructions, the prosecutor connected the dots for the jurors and told them how to apply the natural and probable consequences doctrine to convict Quezada of murder. The prosecutor first restated the court's instruction that an aider and abettor was "culpable for the acts of the principal," including "all the reasonable and logical consequences of that act." The prosecutor then immediately stated that Quezada, in response to Lewis's requests, provided the AK 47 and drove Lewis on a mission to use it. The prosecutor described how Quezada drove and positioned the car to allow Lewis to shoot their victims. Based on the prosecutor's argument, the jury easily could have found that Quezada aided and abetted the most immediate crime-shooting at an occupied vehicle-and that the natural and probable consequence of committing that crime or act was murder. (See People v. Montes, supra, 71 Cal.App.5th at p. 1007 [court erred in summarily denying a petition under section 1172.6 in part because "the prosecutor referred to the natural and probable consequences doctrine, provided the jury with examples of what natural and probable consequences could arise . . ., and argued that a reasonable person in [the defendant's] shoes would know that an assault may lead to an attempted murder"]; cf. People v. Estrada (2022) 77 Cal.App.5th 941, 948 ["'when the parties make "no reference to the 'natural and probable consequences' doctrine in their arguments to the jury, it is highly unlikely that the jury [will have] relied upon that rule"'"].) Of course, it is possible the jurors did not rely on the natural and probable consequences doctrine and convicted Quezada as a direct aider and abettor. But the record does not conclusively establish that's what they did. (See People v. Pacheco (2022) 76 Cal.App.5th 118, 126-127 [superior court erred in summarily denying a petition under section 1172.6 because the trial court instructed the jury on the natural and probable consequences theory and the prosecution argued the natural and probable consequences theory to the jury "as one of multiple theories in order to prove [the defendant's] guilt for the crime of murder"], review granted May 18, 2022, S274102; People v. Offley (2020) 48 Cal.App.5th 588, 599 [reviewing court could not "rule out the possibility that the jury relied on the natural and probable consequences doctrine in convicting" the defendant, where the trial court instructed the jury on the natural and probable consequences theory and the prosecutor argued "the jury could convict [the defendant] on the basis of this instruction"].)
The People assert the superior court "correctly concluded that [Quezada] failed to establish a prima facie case for relief" because "the only intended target crime identified by the prosecutor was intentional murder." The People insist the prosecutor "did not argue or otherwise suggest that [Quezada] intended to aid and abet" any lesser included offenses, such as assault with a deadly weapon. The record does not support this assertion. Although the prosecutor did not use the statutory language of any specific target offense, the prosecutor stated the evidence justified a finding Quezada "willfully" and "knowingly" "participated in a lethal attack to the extent he should be held culpable for the killing." The prosecutor's statement thus suggested the target crime was a "lethal attack" (e.g., an assault with a deadly weapon), the natural and probable consequence of which was murder. The prosecutor also argued Quezada facilitated two outcomes: Quezada's assistance allowed the target car "to be hit numerous times" (i.e., shooting at an occupied vehicle) and allowed Ford and Gamboa to be killed (i.e., murder). To the extent there was any ambiguity in the prosecutor's argument, that ambiguity would only confirm that the record of conviction does not preclude the possibility the jury convicted Quezada of murder based on the natural and probable consequences doctrine. Any analysis of how the jury construed the prosecutor's remarks would have required the superior court to find facts, which the Supreme Court has made clear section 1172.6, subdivision (c), prohibits at the prima facie stage. (See Lewis, supra, 11 Cal.5th at p. 972; People v. Lopez, supra, 78 Cal.App.5th at p. 13.)
People v. Butler (2009) 46 Cal.4th 847, on which the People rely, does not support their argument. In that case the trial court gave an instruction on aiding and abetting, but inadvertently transposed "murder" and "assault with a deadly weapon," so that the instruction misidentified the target offense as murder and the non-target offense as assault with a deadly weapon. (Id. at pp. 869-870.) Concluding the mistake was not prejudicial, the Supreme Court held the error "could only have made it more difficult for the prosecution to establish [the] defendant's culpability for murder" because, "[t]aken literally, the instruction could be read to require a finding that he intended to aid and abet a murder, rather than an assault." (Id. at pp. 870-871.) The instruction here cannot be so read; unlike the instruction in Butler, it did not require the jury to find Quezada intended to aid and abet a murder. The instruction said nothing about a target crime, instead leaving it up to the jury to surmise the crime that Lewis contemplated and that Quezada aided and abetted. And as discussed, the prosecutor's argument only increased the uncertainty about what "act" Quezada helped Lewis commit that resulted in the murders.
DISPOSITION
The order denying Quezada's petition under section 1172.6 is reversed. The superior court is directed to issue an order to show cause, give Quezada an opportunity to amend his petition to allege facts relating to his attempted murder conviction, and conduct further proceedings under section 1172.6.
We concur: PERLUSS, P. J. ESCALANTE, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.