Opinion
C085052
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE SALAZAR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F01794)
Defendant Jose Salazar appeals his convictions for second degree murder. He contends his murder conviction must be reversed because (1) the enactment of Senate Bill No. 1437 (SB 1437), abrogated the natural and probable consequences theory of murder and therefore there is no basis to conclude his conviction was based on a legally valid theory; and (2) the trial court erred instructing the jury on aider and abettor liability, and the instruction violated SB 1437. We affirm the judgment without prejudice to defendant filing a Penal Code section 1170.95 petition in the trial court. (Unless otherwise stated statutory section references that follow are to the Penal Code.)
FACTS AND LEGAL PROCEEDINGS
Because of the nature of the claims on appeal, we do not provide a detailed recitation of the facts underlying the convictions. Defendant was a member of the Howe Park Sureños. After hearing some derogatory language directed at them by a classmate, defendant and some of his fellow gang members got into a fight with the classmate and some of his friends and family, including Shannon Gregg, Brandon Moreno, and Michael Caicedo. Defendant and a codefendant were fighting with Gregg and Caicedo. During the fight, Gregg, Caicedo and Moreno were stabbed. After the fight, two of the codefendants saw defendant with a bloody knife and one heard him say he had stabbed someone. Gregg later died from his injuries.
An information charged defendant, and four codefendants, with murder (§ 187, subd. (a)) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The information further alleged all three counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Among other instructions, the jury was instructed that defendant could be found guilty of second degree murder as a natural and probable consequence of simple battery or an uncharged conspiracy to commit a simple battery.
A jury found defendant not guilty of first degree murder, but guilty of second degree murder and both assault charges. The jury also found true each gang enhancement allegation. The trial court sentenced defendant to an aggregate term of 11 years eight months on the assault convictions and a consecutive indeterminate term of 15 years to life for the second degree murder conviction.
DISCUSSION
I
Senate Bill No. 1437 Relief
Defendant contends his murder conviction must be reversed because one of the legal theories on which his conviction could be based, the natural and probable consequences theory, was abrogated by SB 1437. The People answer that under the new law, as enacted in section 1170.95, defendant must seek relief in the trial court. Several cases have held a defendant seeking relief under SB 1437 must do so by filing a petition in the court in which the defendant was sentenced. (See People v. Martinez (2019) 31 Cal.App.5th 719, 727-729 (Martinez); accord, People v. Anthony (2019) 32 Cal.App.5th 1102, 1148-1153; In re Taylor (2019) 34 Cal.App.5th 543, 561-562.) Defendant argues these cases are incorrectly decided, but offers no authority holding that he is entitled to relief on direct appeal under SB 1437.
During the pendency of this appeal, the Governor signed SB 1437 into law, effective January 1, 2019. (Martinez, supra, 31 Cal.App.5th at p. 722.) "Senate Bill 1437 was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.' [Citation.] Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability." (Martinez, at p. 723.)
"Senate Bill 1437 also adds . . . section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' " (Martinez, supra, 31 Cal.App.5th at p. 723.) Section 1170.95 requires that a trial court determine whether the defendant has made a prima facie showing for relief, and conduct a hearing where the parties may "offer new or additional evidence." (§ 1170.95, subds. (c), (d).)
Importantly, contrary to defendant's claims, section 1170.95 does not mechanically apply to every petitioner who makes a prima facie case of eligibility for relief. Rather, the section expressly gives the People and a defendant the right to present new and additional evidence to the trial court while considering the petition. (§ 1170.95, subd. (d).) Only after considering this evidence and hearing from the parties will the trial court determine defendants' eligibility for relief. (Ibid.) Were we to adopt defendant's approach, we would be denying the People this right.
Appellate courts are not the proper venue for holding hearings where new evidence is taken and factual findings are made. (See Crofoot Lumber, Inc. v. Lewis (1962) 210 Cal.App.2d 678, 681 ["The reluctance of appellate courts to take evidence stems in part from the fact that they are not equipped for any appreciable foray into this field"].) Unlike a trial court, we are bound by the record on appeal. (See People v. Anthony, supra, 32 Cal.App.5th at pp. 1153-1154.) Knowing this, the Legislature placed exclusive jurisdiction over petitions for relief under section 1170.95 in the trial courts. The provision of this hearing demonstrates the Legislature intended to afford the People an opportunity to prove that defendants who were convicted of murder under a natural and probable consequences theory would nonetheless be guilty of murder had SB 1437 been in effect at the time of the conviction.
Based on the statutory language, we agree with the reasoning and conclusions in Anthony and Martinez and conclude the Legislature intended section 1170.95's petitioning procedure to be the exclusive remedy for persons, like defendant, who seek sentencing relief based on SB 1437. In doing so, we reject defendant's arguments for not following Martinez and its progeny.
II
Instructional Error
Defendant claims the trial court erred in instructing the jury he could be found "equally guilty" of a crime as an aider and abettor. He argues this instruction was incomplete as it did not inform the jury that an aider and abettor can be guilty of a lesser offense than the perpetrator. He also argues this instruction violated SB 1437 because it allowed defendant to be convicted under the "now abrogated natural and probable consequences doctrine."
The court instructed with CALCRIM Nos. 400 and with a pinpoint instruction it denominated 400-A. These instructions informed the jury defendant could be guilty as a perpetrator or an aider and abettor and that "[t]hose who aid and abet a crime and those who directly perpetrate the crime are equally guilty of the commission of that crime. . . ." The instructions also delineated the elements of being an aider and abettor and explained the natural and probable consequences theory of liability. In the e-mail exchanges between the court and the parties regarding the jury instructions, defense counsel stated, "I do not have an objection to [the prosecutor's] requested pinpoint 400-A, as I think it accurately reflects the law."
"A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Hart (1999) 20 Cal.4th 546, 622.) The "equally guilty" language defendant complains about in the pinpoint instruction given likely came from the former CALCRIM No. 400. "An April 2010 revision eliminated the word 'equally,' so the instruction now reads, 'A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.' (CALCRIM No. 400 (2011) p. 167.)" (People v. Nilsson (2015) 242 Cal.App.4th 1, 24.) Although in certain cases, an aider and abettor may be guilty of a greater or lesser offense than the perpetrator, it remains true that generally a person who is found to have aided another in the commission of a crime is equally guilty of that crime. (Id. at pp. 24-25) Thus, the former "CALCRIM No. 400 is generally an accurate statement of law," though potentially misleading. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) "Because the instruction as given was generally accurate, but potentially incomplete in certain cases, it was incumbent on [defendant] to request a modification if [he] thought it was misleading on the facts of this case. [His] failure to do so forfeits the claim of error." (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118- 1119, disapproved on other grounds in People v. Banks (2015) 61 Cal.4th 788, 809, fn. 8; also People v. Nilsson, supra, 242 Cal.App.4th a p. 25.)
A defendant can, however, avoid forfeiture of an instructional error claim when the error affects the defendant's "substantial rights." (§ 1259.) "Substantial rights" are equated with errors that are reversible under People v. Watson (1956) 46 Cal.2d 818. (People v. Felix (2008) 160 Cal.App.4th 849, 857; People v. Mitchell (2008) 164 Cal.App.4th 442, 465.) To the extent defendant has a claim that this error affected his substantial rights, that claim rests on the change of law embodied in SB 1437. As discussed, supra, defendant must raise claims related to SB 1437 in the trial court.
DISPOSITION
The judgment is affirmed without prejudice to defendant filing a section 1170.95 petition in the trial court. We express no opinion on the merits of such a petition.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.