Opinion
E081134
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. JACOB EARL SANTANA, Defendant and Appellant.
Jeanine G. Strong, 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, Christopher P. Beesley, Felicity Senoski and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF152925, Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jeanine G. Strong, 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, Christopher P. Beesley, Felicity Senoski and Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
On remand from this court, the court below denied defendant and appellant Jacob Earl Santana's Penal Code former section 1170.95 petition at the prima facie stage. On appeal, defendant contends the order must be reversed and the matter remanded because the court's order was based on the parties' inaccurate representation that the jury had not been instructed on the natural and probable consequences doctrine. We reverse and remand the matter with directions.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
We granted the People's request that we take judicial notice of this court's opinions in People v. Santana (Apr. 4, 2012, E053875) [nonpub. opn.] (Santana I), from defendant's appeal from the judgment, and People v. Santana (Oct. 14, 2022, E077531) [nonpub. opn.] (Santana III), from defendant's appeal of the denial of his second former section 1170.95 petition. We also granted defendant's request that we take judicial notice of the jury instructions, both oral and written, given during his trial, and the verdict forms. On our own motion, we take judicial notice of our opinion from defendant's appeal of the denial of his first former section 1170.95 petition. (People v. Santana (July 30, 2019, E072692) [nonpub. opn.] (Santana II).) (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) Although we recount the facts as recited in Santana I and Santana II, we are cognizant that Assembly Bill No. 200 limited the use of prior appellate opinions by trial judges ruling on section 1172.6 petitions in most instances to "'the procedural history of the case recited.' [Citation.]" (People v. Clements (2022) 75 Cal.App.5th 276, 292; accord, People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted ["If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage."]; accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) We recite the facts here only to contextualize the manner in which the People charged defendant, the court's instruction of the jury, and the prosecutor's closing argument as relevant to the issues raised on appeal.
On the afternoon of October 1, 2009, defendant and his brother-in-law, Urbano Gonzalez (Urbano), drove to a home to test fire some handguns on the rear portion of the property. The homeowner later told police he saw defendant take two handguns and a box of ammunition out of the back of the car; defendant then placed the handguns in his waistband. (Santana I, supra, E053875; Santana II, supra, E072692.)
Testimony at trial established that defendant asked to buy methamphetamine from victim 1. Victim 1's brothers, victim 2 and victim 3, came with victim 1 to the agreed-upon meeting place. (Santana I, supra, E053875; Santana II, supra, E072692.)
Defendant dropped Urbano off in a dirt field. Defendant then met the victim at the agreed location for the drug deal; victim 1 followed defendant to another, more remote location, at defendant's request. They drove for 15 to 20 minutes, turned off on a dirt road, and stopped in an open area near some hills and trees, where defendant had earlier dropped off Urbano. Both defendant and victim 1 got out of their vehicles. (Santana I, supra, E053875; Santana II, supra, E072692.)
Urbano came out from behind some trees about 55 feet away, walked over to defendant, stood next to him, and started to shoot at victim 1. A bullet hit victim 1 in the back. Urbano then started shooting at victims 2 and 3. Urbano began running toward victim 1 as victim 1 ran away; Urbano kept firing at victim 1 until he expended his last bullet. (Santana I, supra, E053875; Santana II, supra, E072692.)
Defendant then got into his car and tried to run over victim 1. Defendant reversed and successfully hit victim 1 on his second attempt. (Santana I, supra, E053875; Santana II, supra, E072692.)
One of victim 1's brothers drove their truck over Urbano, put the truck in reverse, and ran him over a second time. Defendant then drove off the property. All three victims got into their truck and left as well. (Santana I, supra, E053875; Santana II, supra, E072692.)
Urbano apparently died from the injuries he sustained.
On March 29, 2011, a jury convicted defendant of conspiracy to commit murder (§ 182, subd. (a)(1), count 1); three counts of deliberate, willful, and premeditated attempted murder (§§ 664, 187, subd (a), counts 2-4); and three counts of assault with a firearm (§ 245, subd. (a)(2), counts 5-7). (Santana I, supra, E053875; Santana II, supra, E072692; Santana III, supra, E077531.) The court sentenced him to imprisonment for 25 years to life. (Ibid.) Defendant appealed the judgment, which this court affirmed. (Santana I, supra, E053875; Santana III, supra, E077531.)
On January 28, 2019, defendant filed a form petition for resentencing pursuant to former section 1170.95. (Santana II, supra, E072692; Santana III, supra, E077531.) On April 12, 2019, the court denied defendant's petition, without prejudice, reasoning that defendant had failed to make a prima facie showing of relief because he had not checked the boxes on the form petition reflecting he was not the actual shooter, did not intend to kill the victim, was not a major participant, and that the victim was not a peace officer: "He can refile the petition." (Ibid.) Defendant appealed. We affirmed noting that relief was available only for those convicted of murder. (Ibid.)
On March 10, 2021, defendant filed another form petition for resentencing pursuant to former section 1170.95. This time, defendant checked the boxes on the petition reflecting that he had been convicted of first degree murder, was not the actual killer, did not intend to kill, was not a major participant acting with reckless indifference, and that the victim was not a peace officer. (Santana III, supra, E077531.)
At a hearing on August 6, 2021, the People asked the court to dismiss "this case because there was no murder conviction according to the records." The court noted, "I see no legal basis for the motion. It is . . . inapposite to the charges he was convicted of." Defense counsel objected for the record. The court dismissed the petition. (Santana III, supra, E077531.)
Defendant appealed. We reversed and remanded the matter with directions to the court to hold a new prima facie hearing due to a change in the law pursuant to Senate Bill No. 775 (2021-2022 Reg. Sess.), which extended former section 1170.95 relief to those persons, like defendant, who stand convicted of attempted murder. (Santana III, supra, E077531.)
At the hearing on March 24, 2023, on remand, the People moved the court to deny the petition: "The defendant was convicted only of-was given the instruction for conspiracy to commit murder but not natural and probable consequences or felony murder. So those two non-violative instructions not being given, his jury was not instructed on any theory in which malice was imputed to him. Therefore, the People believe he is statutorily ineligible." Defense counsel confirmed the People's statement and submitted. The court denied the petition finding defendant ineligible for relief.
II. DISCUSSION
Defendant contends the order must be reversed and the matter remanded because the court's order was based on the parties' inaccurate representation that the jury had not been instructed on the natural and probable consequences doctrine. Defendant contends that he was not per se ineligible for relief.
The People concede "that the parties and court mistakenly concluded that [defendant's] jury was not instructed on the natural and probable consequences theory, but the record of conviction shows otherwise." However, the People argue defendant suffered no prejudice because he was ineligible for relief as a matter of law. We agree with defendant.
A. Further Procedural History
The trial court instructed the jury with CALCRIM No. 417 as follows: "A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. [¶] To prove that the defendant is guilty of the crimes charged in Counts 2 through 7, the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: Murder and Assault with a firearm; [¶] 2. A member of the conspiracy committed Attempted Murder and Assault with a firearm to further the conspiracy; [¶] AND [¶] 3. Attempted Murder and Assault with a firearm [were] [] natural and probable consequence[s] of the common plan or design of the crime that the defendant conspired to commit."
On the conspiracy charge, the court instructed the jury that to prove defendant guilty, the People must prove "The defendant intended to agree and did agree with Urbano . . . to intentionally and unlawfully kill." "At the time of the agreement, the defendant and the other alleged member of the conspiracy intended that one or more of them would intentionally and unlawfully kill." "The defendant or Urbano . . . committed at least one of the following overt acts alleged to accomplish the killing:" "That Urbano . . . fired at [victim 1]." "That Urbano . . . fired at [victim 2]." "That Urbano . . . fired at [victim 3]." "You must all agree that at least one alleged overt act was committed . . . by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts."
The trial court instructed the jury that "defendant is charged in Counts 2, 3 and 4 with attempted murder. To prove that the defendant is guilty of attempted murder the People must prove that one, the defendant took at least one direct but ineffective step toward killing another person. And two, the defendant intended to kill that person." "A direct step indicates a definite and unambiguous intent to kill." "If you have a reasonable doubt whether the defendant intended to kill [the victims] . . . then you must find the defendant not guilty of the attempted murder[s] ...." (CALCRIM No. 600.)
"If you find the defendant guilty of attempted murder under Counts 2, 3 and 4, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation. The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill." (CALCRIM No. 601.)
In closing, the prosecutor argued "there's really no question that there was a plan to kill [victim 1]. These two [defendants] were in on the plan." "[T]here was an agreement that [victim 1] was going to be killed. Urbano was going to do it, or both; one or the other. They agreed. They worked together." Defendant "is certainly guilty of a conspiracy. And because the goal of that conspiracy was being furthered by the attempted murder of [victim 1] ...." "Those were all in furtherance of the attempt to kill [victim 1]." "And so the defendant is liable for all of those. Just as Urbano would be if he were alive."
On the conspiracy charge, the prosecutor argued, "First element is there is an agreement, a conscious agreement that Urbano was going to kill [victim 1], which we talked about that. [Defendant] intended for it to happen." "For it to be legal conspiracy, not only does there have to be an agreement and intent to commit the crime, but you have to do something. It's not a crime just to agree. Then on the most heinous act, just agreeing to it isn't a conspiracy. You have to take one or more concrete steps, or what we call overt acts, to set the conspiracy in motion."
"This plan was set in motion." "And to any other act that was committed in furtherance of the conspiracy, so long as it's a natural and probable consequence."
"So Counts 2 through 4 are attempted murder. That's what you call when you point a gun at someone and shoot them, chase after them, shoot their brother in the head, shoot the car where they just were. That's why [defendant is] charged in Counts 2 through 4. It's part of the plan that [defendant] essentially engaged in." "Willful just means they intended to kill. You can't get to attempted murder without intending to kill." "Now, remember, the question isn't whether [defendant] deliberated or . . . premediated, but whether Urbano [did]. Because it's conspiracy, [defendant] is [responsible] for the actions of his co-conspirator."
The verdict on the count 1 conspiracy charge does not identify to which victim it applied.
B. General Law
"The Legislature enacted Senate Bill [No.] 1437 'to more equitably sentence offenders in accordance with their involvement in homicides.' (Stats. 2018, ch. 1015, § 1(b).) The Legislature recognized, 'It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.' [Citation.] With this purpose in mind, Senate Bill [No.] 1437 'amend[ed] 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.]" (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
"Effective January 1, 2022, section 1172.6 was amended by Senate Bill No. 775 . . . (Senate Bill 775)." (People v. Medrano (2024) 98 Cal.App.5th 1254, 1260 (Medrano II.) "Senate Bill 775 [partially] amended section 1172.6, subdivision (a) to expand eligibility for resentencing to persons convicted of 'attempted murder under the natural and probable consequences doctrine.'" (Id. at p. 1261.)
"[A]fter the enactment of Senate Bill [No.] 1437, a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought. [Citation.] It is an invalid theory." (Curiel, supra, 15 Cal.5th at p. 462.) "Senate Bill [No.] 1437's operative language . . . eliminates natural and probable consequences liability ...." (Ibid.) It provides "the opportunity to petition for relief to defendants who were convicted under an invalid theory like the natural and probable consequences doctrine at issue here. [Citation.]" (Id. at p. 463.)
"Senate Bill [No.] 1437 . . . created a procedural mechanism 'for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief' where the two substantive changes described above affect a defendant's conviction. [Citation.]" (Curiel, supra, 15 Cal.5th at p. 449.) "Under section 1172.6, 'A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts ....' [Citation.]" (Id. at pp. 449-450.)
"'[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that "[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019," the effective date of Senate Bill [No.] 1437 [citation].' [Citation.] 'When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition "to determine whether the petitioner has made a prima facie case for relief." [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, "the court shall issue an order to show cause." [Citation.]' [Citation.]" (Curiel, supra, 15 Cal.5th at p. 450.)
"'The record of conviction will necessarily inform the trial court's prima facie inquiry . . ., allowing the court to distinguish petitions with potential merit from those that are clearly meritless.' [Citation.] '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.]" (Curiel, supra, 15 Cal.5th at p. 460.)
"'"[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.'"' [Citation.] Consequently, '[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.' [Citation.]" (Curiel, supra, 15 Cal.5th at p. 460.) "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.'" (People v. Lewis (2021) 11 Cal.5th 952, 972.) "[T]he 'prima facie bar [is] intentionally and correctly set very low.'" (Ibid.)
"'In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief ....' [Citation.]" (Curiel, supra, 15 Cal.5th at p. 464) "If the jury has made a factual finding, and it is issue preclusive . . . a court must give effect to that finding. [Citation.] A court giving effect to such a finding does not engage in '"factfinding involving the weighing of evidence or the exercise of discretion."' [Citation.]" (Id. at p. 465.)
A denial of a section 1172.6 petition at the prima facie "'"stage is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo."' [Citation.]" (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)
"[T]he question is not whether it is likely a defendant could have felt and acted in such a [sufficiently culpable] way, but whether the court's jury instructions foreclose that possibility as a matter of law. Only in the latter scenario would a trial court be permitted to deny a defendant's section 1172.6 petition at the prima facie stage. [Citation.] In other words, only in that scenario would the record of conviction 'establish conclusively that the defendant is ineligible for relief.' [Citation.]" (Curiel, supra, 15 Cal.5th at p. 470.)
Where "the record of conviction does not conclusively negate the possibility that the jury found" the defendant guilty under a theory that imputed malice to him by the actions of the actual perpetrator, "an evidentiary hearing is required." (People v. Langi (2022) 73 Cal.App.5th 972, 984.) On the other hand, where the record of conviction reflects that the defendant was not convicted under any theory of imputed malice, no evidentiary hearing is required. (People v. Mares (2024) 99 Cal.App.5th 1158, 11651166, review granted May 1, 2024, S284232; People v. Allen (2023) 97 Cal.App.5th 389, 395 ["A petitioner is ineligible for section 1172.6 relief as a matter of law if, for example, the jury instructions show that jurors were not instructed on any theory of liability affected by Senate Bill [No.] 1437's changes to sections 188 and 189."].)
C. Analysis
The People contend that victim 1 was the target of defendant's conviction in the count 1 conspiracy to commit murder conviction, the same victim as in his conviction in count 2 for attempted murder. Thus, defendant was ineligible for relief in count 2 because defendant conspired to commit the first degree murder of victim 1. The People further argue that defendant's convictions in counts 3 and 4 of the attempted murder of victims 2 and 3 required a jury finding of intent to kill, making defendant ineligible for relief on those counts as well.
Defendant maintains that the intent to kill finding requisite for an attempted murder conviction does not, alone, establish his ineligibility for relief. Moreover, defendant contends that because it is possible the jury relied on the natural and probable consequences doctrine, the court should have proceeded to issuance of an order to show cause and the holding of an evidentiary hearing. We agree with defendant.
1. Count 2
The People contend the target of defendant's conviction of conspiracy to commit murder in count 1 was victim 1, the same victim as in his conviction for attempted murder in count 2. Thus, the People contend the jury necessarily found defendant guilty of the requisite intent to kill in count 2, which would render him ineligible for relief as a matter of law. We disagree.
"The natural and probable consequences doctrine . . . differs from the law of conspiracy, which holds a person liable for crimes that he or she agreed with one or more persons to commit and that a member of the conspiracy committed in furtherance of the agreement. [Citation.]" (People v. Gentile (2020) 10 Cal.5th 830, 844, superseded by statute on other grounds as stated in People v. Glukhoy (2022) 77 Cal.App.5th 576, 584.)
When a jury convicts a defendant of "conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder," there is no possibility he was "found guilty of murder on a natural and probable consequences theory." (People v. Beck and Cruz (2019) 8 Cal.5th 548, 645 (Beck); id. at p. 642 ["[C]onspiracy to commit murder may not be based on a theory of implied malice."]; accord, In re Lopez (2023) 14 Cal.5th 562, 588.) "Here . . . CALCRIM No. 417 told jurors that, to convict [defendant] of attempted murder, they had to find that he conspired to commit murder." (People v. Allen, supra, 97 Cal.App.5th at p. 398 [Denial of section 1172.6 petition affirmed].)
"Here, the target offense was first degree murder. We know this because [defendant] was convicted of conspiracy to commit first degree murder. '[A] conviction of conspiracy to commit murder requires a finding of intent to kill.' [Citation.] '"[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder."' [Citation.]" (People v. Medrano (2021) 68 Cal.App.5th 177, 182-183 (Medrano I) [Affirming denial of former section 1170.95 petition]; accord, Medrano II, supra, 98 Cal.App.5th at p. 1264 [Denial of former section 1170.95 motion affirmed as to attempted murder counts after effective date of Senate Bill No. 775.].)
Here, although the prosecutor argued defendant conspired to kill victim 1, the verdict form on the conspiracy to commit murder count does not identify whom defendant was alleged to have conspired to kill. (People v. Allen, supra, 97 Cal.App.5th at p. 396 ["[U]nder current California law, 'conspiracy to commit murder may be based on an agreement to kill "'a human being'" who is not specifically identified.' [Citation.]"].) Moreover, the jury instruction expressly permitted the jury to find defendant guilty of conspiracy to commit murder if it found defendant intended to kill any or all three of the victims; it did not identify a single, specific victim. Furthermore, the instruction did not even require the jury to agree on which, or all, victims that defendant conspired to kill. Thus, we cannot say as a matter of law which victim, if any specific one, the jury found defendant conspired to kill, or if it found that defendant conspired to kill all of them.
Although a court could make a logical inference as to whom the jury found defendant conspired to kill, logical inferences are improper bases upon which to make a finding as a matter of law at the prima facie stage of a section 1172.6 petition. Moreover, any such logical inference here would be based on the facts as recounted in our previous opinions, which is now improper, unless the parties so stipulate. (See footnote 2, ante.) Instead, such a determination must be made at an evidentiary hearing at which the court can make findings of fact and weigh witness credibility on proper evidence adduced at the hearing.
Beck is distinguishable from the instant case because there, the court merely mentioned the natural and probable consequences doctrine but did not instruct on it. (Beck, supra, 8 Cal.5th at p. 645 ["Nor, despite mentioning the natural and probable consequences doctrine in the conspiracy instruction, did the trial court instruct the jury on this theory of murder."].) Here, the trial court instructed the jury on the natural and probable consequences doctrine.
Moreover, the jury in Beck found defendants guilty of conspiracy to commit murder and the first degree murder of each of the victims. (Beck, supra, 8 Cal.5th at p. 557.) Thus, the court's instruction in Beck, to the extent it could even be said the court instructed on the natural and probable consequences doctrine, was harmless because the jury necessarily determined the defendant intended to kill each victim. (Id. at pp. 642645 ["[I]n specifically instructing the jury on premeditated first degree murder and second degree murder, the court defined both as requiring express malice or an intent to kill."].) Here, in contrast, the jury found defendant guilty "only" of the attempted murder of each of the victims. Furthermore, the prosecutor in Beck never argued the natural and probable consequences doctrine. (Ibid.) Here, the prosecutor expressly argued the applicability of the natural and probable consequences doctrine.
Allen is similarly distinguishable. There, the jury convicted defendant of the first degree murder of one victim and the attempted murder of another. (Allen, supra, 97 Cal.App.5th at p. 394.) The court's instruction of the jury with CALCRIM No. 417 identified murder as the target crime of the conspiracy. (Allen, at pp. 393-394) Thus, "[t]o convict [the defendant] of the attempted murder . . . as a coconspirator, the trial court told jurors that they had to conclude that [defendant] conspired to commit murder. That, in turn, required them to find that he harbored the intent to kill. [Citations.]" (Id. at p. 396.) Therefore, there was no lesser target crime for which the jury could have imputed malice to the defendant to convict him of the attempted murder. Here, the court instructed the jury it could find defendant guilty of any or all three counts of attempted murder even if defendant "only" conspired to commit the lesser target offense of assault with a firearm.
Likewise, Medrano I is distinguishable. The jury in Medrano I convicted the defendant of two counts of first degree murder and two counts of attempted murder. (Medrano, supra, 68 Cal.App.5th at p. 179.) Although the court instructed the jury on the natural and probable consequences doctrine, "the target offense was first degree murder." (Id. at p. 182.) "[I]n convicting [the defendant] of first degree murder, the jury did not rely on the natural and probable consequences doctrine because it found him guilty of conspiracy to commit first degree murder." (Id. at pp. 183-184.) The lower court also denied the defendant's petition after issuing an order to show cause and holding an evidentiary hearing, rather than at a prima facie hearing. (Id. at p. 181.)
The decision in Medrano I predated the date upon which Senate Bill No. 775 (Stats. 2021, ch. 551, § 1, subd. (a)) extended relief to those convicted of attempted murder; thus, Medrano I did not consider whether the defendant was eligible for relief with respect to his attempted murder counts. (People v. Porter (2022) 73 Cal.App.5th 644, 651-652 ["These amendments took effect on January 1, 2022."].)
In Medrano II, the court dealt with the defendant's attempted murder convictions. (Medrano II, supra, 98 Cal.App.5th at pp. 1260-1265.) The court found the defendant ineligible for relief because the defendant had "been concurrently convicted of attempted first degree murder and conspiracy to commit first degree murder and both convictions involve the same victim." (Id. at p. 1264.) In the instant case, as discussed ante, the record does not expressly disclose whether the jury convicted defendant of conspiracy to commit murder and attempted murder of the same victim or victims.
Here, the court identified the target offenses in its instruction on the natural and probable consequences doctrine as murder and assault with a deadly weapon. Thus, the jury could have found defendant had "only" conspired to commit assault with a deadly weapon to find him guilty of the attempted murder of victim 1 in count 2. Moreover, the court here denied defendant's petition after holding a prima facie, rather than an evidentiary, hearing. Furthermore, as discussed post, an intent to kill finding on an attempted murder conviction is not alone sufficient to render a defendant ineligible for relief as a matter of law. Therefore, the order as to count 2 must be reversed and remanded for an evidentiary hearing.
This would mean, due to the court's instruction on the conspiracy charge, that the jury found defendant conspired to kill only victim 2, only victim 3, both victims 2 and 3, or split as to which victim or victims it believed defendant had conspired to kill.
2. Counts 3 and 4
The People contend the jury's requisite findings on the attempted murder charges in counts 3 and 4 render defendant per se ineligible for relief. We disagree.
An intent to kill finding "is certainly relevant to the trial court's consideration of a petitioner's prima facie showing." (Curiel, supra, 15 Cal.5th at p. 460.) However, "It does not by itself establish any valid theory of liability. [Citation.]" (Id. at p. 463; accord People v. Campbell (2023) 98 Cal.App.5th 350, 356-357 ["[I]ntent to kill findings do not preclude relief as a matter of law."]; In re Lopez, supra, 14 Cal.5th at p. 586-587 ["But intent to kill is only one of the elements required to prove direct aiding and abetting. It does not, itself, show the jury necessarily found Lopez guilty on a proper theory."].)
"While a finding of intent to kill does not, itself, suffice to refute a petitioner's allegation under section 1172.6, subdivision (a)(3), a trial court does not end its prima facie inquiry there. Other aspects of the record, such as additional jury findings, might be relevant to the remaining elements of the relevant homicide offense and conclusively refute a petitioner's allegation that he or she could not be convicted . . . under current law." (Curiel, supra, 15 Cal.5th at p. 463.)
Here, without pointing to something else in the instructions or verdicts, the intent to kill findings rendered by the jury in its conviction of defendant on counts 3 and 4 is not enough alone to render him ineligible for relief as a matter of law. The court's instruction of the jury with CALCRIM No. 417 on the natural and probable consequences doctrine permitted the jury to convict defendant on counts 3 and 4 if he "merely" conspired to commit the target offense of assault with a firearm. As discussed ante, the jury's conviction of defendant for conspiracy fails to supply sufficient additional information to render defendant ineligible for relief because it fails to identify which victim defendant conspired to kill. Thus, the order denying the petition must be reversed with directions to hold an evidentiary hearing.
III. DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded with directions to issue an order to show cause under section 1172.6, subdivision (c), and to hold a hearing under section 1172.6, subdivision (d)(1). We express no opinion on whether defendant would be entitled to relief following the hearing.
We concur: RAMIREZ, P. J., MENETREZ J.