Opinion
C097829
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. SANDOR TORRES THIESSEN et al., Defendants and Appellants
NOT TO BE PUBLISHED
Super. Ct. No. 09F08195
BOULWARE EURIE, J.
Defendants Sandor Torres Thiessen and Marvin Orantes separately appeal from the denial of their postconviction petitions for relief under Penal Code section 1172.6. Both contend they were convicted of attempted murder on now-invalid theories. Section 1172.6 allows a person convicted of "attempted murder under the natural and probable consequences doctrine" to petition for recall and resentencing. (§ 1172.6, subd. (a).) Thiessen and Orantes acknowledge that no instruction on the natural and probable consequences doctrine was given to the juries that found them guilty of attempted murder. Section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).) Therefore, Thiessen and Orantes could not have been convicted under the natural and probable consequences doctrine and are ineligible for section 1172.6 relief as a matter of law. We will affirm the order denying defendants' petitions.
Undesignated statutory references are to the Penal Code. Both defendants filed their petitions under section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 without change to the text. (Stats. 2022, ch. 58, § 10.) We refer to the statute by its current section number.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, two juries convicted three defendants, Thiessen, Orantes, and Juan Jose Ramirez, of a drive-by shooting that wounded their target victim and a bystander.(People v. Thiessen (Jan. 25, 2011, C065896) [nonpub. portion of partially pub. opn.].) One jury found Thiessen guilty of two counts of premeditated attempted murder (§ 664/187, subd. (a)) and two counts of shooting from an occupied vehicle (§ 12034, subd. (c)), and also found true firearm enhancements for each count (§ 12022.53, subd. (b)). Another jury found Orantes guilty of one count of premeditated attempted murder and two counts of shooting from an occupied vehicle. The trial court sentenced Thiessen to 14 years to life plus 20 years in state prison. Orantes was sentenced to seven years to life plus five years in state prison. On appeal, we modified defendants' sentences and otherwise affirmed. (People v. Thiessen, supra, C065896.)
Ramirez is not a party to this appeal.
We granted Thiessen's motion to augment the record, which we construed as a motion to incorporate by reference the underlying case No. C065896.
On February 25, 2022, (Orantes) and on March 15, 2022, (Thiessen) filed their petitions for resentencing under section 1172.6, alleging they were convicted on a now- invalid theory. The prosecutor filed a motion to dismiss in response to the petitions, arguing Thiessen and Orantes were ineligible for section 1172.6 relief because the juries were not instructed on the natural and probable consequences doctrine. The prosecutor attached the jury instructions to the responses. Counsel for defendants filed replies.
On August 15, 2022, the trial court issued a tentative ruling denying the prosecution's motions to dismiss and ordering the parties to proceed to an order to show cause hearing. The prosecutor filed supplemental responses to the tentative ruling, expanding on the argument that defendants were not eligible for relief because the jury was not instructed on the natural and probable consequences doctrine. Thiessen filed a reply to the prosecutor's supplemental response.
On November 4, 2022, the trial court conducted a hearing on defendants' petitions for resentencing. On January 6, 2023, the trial court denied defendants' petitions by written order, stating that defendants were ineligible for section 1172.6 relief because: (1) the juries were not given instructions on the natural and probable consequences doctrine; (2) defendants were not found guilty on an imputed malice theory but as perpetrators or direct aiders and abettors of attempted murder; (3) defendants were found guilty because they intended to kill the victims and the juries' findings that defendants committed attempted murder willfully, deliberately, and with premeditation eliminated speculation and conjecture that their convictions were the result of imputed malice; and (4) the language of section 1172.6 does not allow a petitioner convicted of attempted murder to state a prima facie case on any other basis other than under the natural and probable consequences doctrine. Defendants timely appealed. Thiessen filed his notice of appeal in January 2023; his opening brief was filed in June 2023. Orantes filed his notice of appeal in February 2023; his opening brief was filed in August 2023. This case was fully briefed on January 8, 2024, and assigned to this panel shortly thereafter.
DISCUSSION
I
Prima Facie Eligibility for Section 1172.6 Relief
The enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, § 4) "narrowed or eliminated certain forms of accomplice liability for murder," including "the use of the natural and probable consequences doctrine to obtain a murder conviction." (People v. Curiel (2023) 15 Cal.5th 433, 440.) Senate Bill 1437 amended" '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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
With Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), the Legislature expanded the scope of Senate Bill 1437 to include those convicted of attempted murder and manslaughter. (Stats. 2021, ch. 551, § 2.) Thus, section 1172.6, subdivision (a) currently provides that "[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" for recall and resentencing if certain conditions are met. (Italics added.) These conditions are: (1) the charging document allowed prosecutors to "proceed under a theory of felony murder, murder under the natural and probable consequences doctrine[,] or [any] other theory under which malice is imputed to a person based solely on [their] participation in a crime, or attempted murder under the natural and probable consequences doctrine"; (2) the petitioner was convicted of murder, manslaughter, or attempted murder or accepted a plea in lieu of a trial where the petitioner could have been convicted of murder or attempted murder; and (3) the petitioner could not now be convicted of murder or attempted murder under the current versions of sections 188 and 189. (§ 1172.6, subd. (a), italics added.) "We review de novo an order denying a section 1172.6 petition at the prima facie stage." (People v. Flores (2023) 96 Cal.App.5th 1164, 1170; People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 930.)
In Coley, the court held that section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (Coley, supra, 77 Cal.App.5th at p. 548.) In that case, as here, "[t]he jurors . . . were not instructed on that doctrine." (Ibid.) Where the jury was not instructed on a theory made invalid by Senate Bill 1437 or Senate Bill 775, the petitioner is ineligible for section 1172.6 relief as a matter of law. As the court in People v. Offley (2020) 48 Cal.App.5th 588 explained: "In many instances, additional information from the record will establish that a defendant's conviction was not based on the natural and probable consequences doctrine, and that the jury must have convicted the defendant on the basis of his own malice aforethought. For example, if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied." (Id. at p. 599; see also Coley, at p. 548; People v. Allen (2023) 97 Cal.App.5th 389, 395; People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Cortes (2022) 75 Cal.App.5th 198, 205; People v. Daniel (2020) 57 Cal.App.5th 666, 677; People v. Soto (2020) 51 Cal.App.5th 1043, 1056.)
II
Defendants' Eligibility Claims
Defendants offer a number of reasons why the absence of jury instructions on the natural and probable consequences doctrine does not preclude their eligibility for relief under section 1172.6. We conclude that none has merit.
A. Thiessen's Claims
Thiessen first asserts that there was substantial evidence that he did not intend to kill, injure, or shoot anyone when his codefendant Ramirez committed a drive-by shooting that injured two people. Thiessen asserts that at most the evidence showed he intended to aid and abet the drive-by shooting crime, which requires only general intent, rather than the crime of attempted murder, which requires specific intent. Thiessen's claim that evidence showed that Ramirez was the shooter underpins much of his argument that the trial court wrongly denied his petition for relief.
However, the jury deadlocked on firearm enhancements against Ramirez but found true that Thiessen used a firearm in connection with the jury's guilty verdict on the attempted murder counts against Thiessen. In addition, Thiessen improperly bases his conclusion that Ramirez was the shooter in part on facts recited in this court's opinion on direct appeal. The factual summary in an appellate opinion is not evidence that may be considered in ruling on a petitioner's eligibility for resentencing at the prima facie stage. (People v. Flores (2022) 76 Cal.App.5th 974, 988.) Our independent review of the record of conviction includes the jury instructions and jury verdicts, but not the summary of facts in our prior opinion. (People v. Williams (2022) 86 Cal.App.5th 1244, 1247, fn. 3.) In any event, we decline Thiessen's invitation to reweigh the evidence the jury already considered when it found him guilty of attempted murder, as well as drive-by shooting. (Lewis, supra, 11 Cal.5th at p. 972 [although a court should consider the record of conviction in determining whether the defendant has made a prima facie showing for relief, it should not engage in" 'factfinding involving the weighing of evidence' "].)
Further, we note that Thiessen generally relies on the statement in Lewis that at the prima facie stage the trial court takes the allegations of the petition as true, unless" 'the record [of conviction], 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.) Thiessen contends there are no facts in the record that refute his allegation that he was eligible under section 1172.6. We disagree. Thiessen alleged in his petition that the prosecution proceeded against him under a theory of "attempted murder under the natural and probable consequences doctrine." In Harden, the court quoted the statement in Lewis on which Thiessen relies and offered an example of the court's record containing a fact that refutes the allegations in the petition: "[I]f the record shows that the jury was not instructed on either natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law." (People v. Harden, supra, 81 Cal.App.5th at p. 52, citing People v. Daniel, supra, 57 Cal.App.5th at p. 677.)
Next, Thiessen argues that the jury instructions given on aider and abettor liability, CALCRIM Nos. 400 and 401, were ambiguous and overbroad, allowing the jury to convict him of attempted murder committed by another even though he did not share the perpetrator's specific intent required for attempted murder. Thiessen focuses on the bracketed portion of CALCRIM No. 400 that "[u]nder some circumstances, if evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." The Bench Notes to CALCRIM No. 400 state that this bracketed paragraph should be used if the prosecution is relying on the natural and probable consequences doctrine. (Judicial Council of Cal., Crim. Jury Instns. (2023) Bench Notes to CALCRIM No. 400.) Here the prosecution did not rely on that doctrine. Nonetheless, the bracketed portion was given to the jury. Thiessen contends that based on this portion of the instruction, jurors were given discretion to find him guilty of attempted murder committed by someone else, despite his lack of intent to kill.
As given, CALCRIM No. 400 instructed the jury: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." CALCRIM No. 401 provides in relevant part: "To prove a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 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."
In People v. Estrada (2022) 77 Cal.App.5th 941, the appellate court rejected a similar argument, finding that, even though the trial court instructed the jury with the bracketed language, that language was not sufficient to find that the jury was instructed on the natural and probable consequences doctrine. (Id. at pp. 946-947.) The trial court in that case, as here, had given CALCRIM No. 401 on direct aiding and abetting, but not CALCRIM Nos. 402 and 403 on the natural and probable consequences doctrine. The court held that the bracketed language when not accompanied by CALCRIM Nos. 402 and 403 did not constitute instructing on the natural and probable consequences theory. (Estrada, at p. 947 &fn. 4; see also People v. Johnson (2016) 62 Cal.4th 600, 638-641 [no reasonable likelihood that jurors would understand former CALCRIM No. 400, given at trial and subsequently revised to delete misleading "equally guilty" language, to allow them to base the defendant's liability on the mental state of the shooter rather than the defendant's own mental state in aiding and abetting the killing, where the jury was also instructed with CALCRIM No. 401].)
In a related argument, Thiessen asserts that CALCRIM No. 401 created an ambiguity because it referred to aiding and abetting a "crime" but did not specifically refer to attempted murder. Thiessen argues that this ambiguity allowed the jury to convict him of attempted murder based on his support for the perpetrator's act involved in the drive-by shooting crime without sharing the specific intent required for attempted murder. Thiessen cites People v. Langi (2022) 73 Cal.App.5th 972 and People v. Maldonado (2023) 87 Cal.App.5th 1257, which assumed that aiding and abetting an implied malice murder can lead to imputation of malice from participation in a crime despite the absence of instructions on the natural and probable consequences doctrine. (See Langi, at pp. 982-983; Maldonado, at p. 1259.) However, Langi and Maldonado do not apply here since those decisions involve implied malice murder, which does not require the jury to find an intent to kill. (Coley, supra, 77 Cal.App.5th at p. 547; People v. Powell (2021) 63 Cal.App.5th 689, 711-712; see also People v. Lee (2023) 95 Cal.App.5th 1164, 1191.)
In this instance, to find Thiessen guilty of attempted murder required jurors to determine that he acted with intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623624; People v. Smith (2005) 37 Cal.4th 733, 739.) Moreover, to find Thiessen guilty as a direct aider and abettor, the jury instructions required jurors to find Thiessen knew the perpetrator intended to attempt to kill the victims, he intended to aid and abet the perpetrator in attempting to kill the victims, and, by word or conduct, he aided the perpetrator in the attempt to kill. Further, by finding the attempted murders were willful, deliberate, and premeditated, the jury had to find, and did find, that Thiessen intended to kill when acting, that he carefully weighed the considerations for and against the choice, and, aware of the consequences, decided to kill before acting.
Thiessen also faults CALCRIM No. 400 as using the disfavored language, subsequently deleted, that "[a] person is equally guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." Thiessen acknowledges the holding in People v. Johnson, supra, 62 Cal.4th at pages 638-641, summarized above, but argues that his case is an exception because of substantial evidence showing his lack of intent to kill. Once again, Thiessen invites us to reweigh the evidence, which we may not do. (Lewis, supra, 11 Cal.5th at p. 972.)
Moving on to the language of section 1172.6, Thiessen quotes legislative committee analysis of Senate Bill 775 as indicating the Legislature's intent to extend section 1172.6 relief to a person convicted of attempted murder under any theory imputing malice based solely on participation in a crime. Thiessen asserts that jury instructions on aiding and abetting-CALCRIM Nos. 400 and 401-raised a reasonable probability that jurors imputed malice to him on that basis. In short, Thiessen urges us to apply section 1172.6 as he declares the Legislature intended, per committee analysis, and not as plainly written in the statute.
Thiessen quotes the following: "This bill: [¶] (1) Clarifies that a person who was convicted of attempted murder under the natural and probable consequences doctrine or any other theory under which malice is imputed to the person based solely on their participation in a crime . . . [may] apply to have their sentence vacated and be resentenced." (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business, Sen. Bill No. 775 (2021-2022 Reg. Sess.) Sept. 10, 2021, p. 4, bolding & italics omitted.)
We note that the Legislative history is mixed. The Assembly Floor Analysis for Senate Bill 775 stated simply that the bill clarifies that resentencing relief applies to "[a]ttempted murder convictions under the natural and probable consequences doctrine." (Assem. Floor Analyses, 3d reading analysis of Sen. Bill No. 775 (2021-2022 Reg. Sess.) as amended Sept. 1, 2021.) In any case, when the statutory language is not ambiguous, its plain language controls. (People v. Robinson (2010) 47 Cal.4th 1104, 1138; Kaufman &Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29 ["we note that resort to legislative history is appropriate only where statutory language is ambiguous"].) We therefore reject Thiessen's argument, as we are bound to apply the unambiguous language of section 1172.6.
Thiessen also contends that the absence of a limiting instruction that evidence suggesting his affiliation with a gang could not be used to show his criminal disposition created a reasonable likelihood the jury convicted him of attempted murder by imputing malice to him based on his participation as a gang member in a drive-by shooting. This argument, of course, assumes that Thiessen is eligible under section 1172.6 based on a theory other than the natural and probable consequences doctrine, a proposition we have already rejected. But even if section 1172.6 did not by its terms limit relief to circumstances where jurors were instructed on the natural and probable consequences doctrine, Thiessen cites no decision holding that the presentation of gang evidence allows malice to be imputed to a defendant.
Lastly, Thiessen argues that subsequent to his trial, a California Supreme Court case, People v. Canizales (2019) 7 Cal.5th 591, limiting the use of the "kill zone" instruction, rendered improper the attempted murder instruction given to the jury here. In Canizales, the court held a "kill zone" instruction would be proper only where the evidence indicated the defendant intended to kill and not merely endanger or harm anyone in the fatal zone. (Id. at p. 597.)
Here, the kill zone instruction consisted of a paragraph of CALCRIM No. 600, which told the jury that "[a] person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.'" The kill zone instruction was given here with respect to intent to kill the bystander victim. Thiessen argues the instruction might be deemed improper under Canizales, because the bystander victim did not sustain a gunshot wound in a vital part of her body, indicating no specific intent to kill. However, Canizales did not identify evidence of the severity of a victim's injuries as a circumstance warranting a kill zone instruction or not, but rather the extent of force the defendant used against the primary target, i.e., the weapon used, number of shots fired if a firearm was used, the distance between the defendant and the victims, and the proximity of the victims to the primary target. (People v. Canizales, supra, 7 Cal.5th at pp. 597, 607.) Moreover, the kill zone theory has nothing to do with the imputation of malice. "The kill zone theory looks to circumstantial evidence to support a permissive inference regarding a defendant's intent." (Id. at p. 606.) This theory "permits the jury to infer that the defendant harbored the requisite specific intent to kill the primary target and everyone within the zone of fatal harm. Thus, the jury would have found a specific intent to kill [even] were it to have relied . . . on the kill zone theory of attempted murder liability." (Id. at p. 618.)
B. Orantes's Claims
Orantes first contends that a literal reading of section 1172.6 leads to an absurd result contrary to the Legislature's intent. The absurd result Orantes claims arises from a literal reading that a person is eligible for relief if convicted of murder on any one of three theories (felony murder, the natural and probable consequences doctrine, or any other imputed malice theory), of attempted murder under only one theory (the natural and probable consequences doctrine), or manslaughter under no identified theory (meaning, according to Orantes, there is no circumstance where a person convicted of manslaughter is eligible for relief). Orantes urges us to disregard the plain meaning of the statutory language and instead read the statute to provide that a person convicted of "attempted 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" may file a petition for resentencing relief. (Italics added.) Orantes proposes the same rewrite to include these two theories for those convicted of manslaughter.
However, our function in interpreting a statute"' "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted ...." '" (People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.) As discussed above, because the language is unambiguous-and twice repeated in subdivision (a) of section 1172.6-we conclude the Legislature intended what the words convey: the statute affords resentencing relief only to those convicted of attempted murder under the natural and probable consequences doctrine. We decline Orantes's invitation to add language to the statute. Moreover, we do not find it absurd to limit eligibility to defendants convicted of attempted murder under the natural and probable consequences doctrine, even if defendants convicted of murder might be eligible under other theories.
Orantes next contends that applying the phrase "or other theory under which malice is imputed to a person based solely on a person's participation in a crime" to murder but not attempted murder convictions violates his right to equal protection under the federal and California Constitutions. Similar claims were made before Senate Bill 775 was passed that the omission of manslaughter from section 1172.6 violated equal protection. (People v. Cervantes (2020) 44 Cal.App.5th 884, 888-889; People v. Paige (2020) 51 Cal.App.5th 194, 205-206; People v. Sanchez (2020) 48 Cal.App.5th 914, 920921.) We apply rational basis review to determine whether the limitation of section 1172.6 relief to those convicted of attempted murder, as opposed to murder, solely under the natural and probable consequences doctrine violates equal protection. (Sanchez, at p. 921.) There is no equal protection violation if this limitation bears a rational relationship to a legitimate state purpose. (Ibid.)
Orantes acknowledges that he did not raise an equal protection challenge to the statute in the trial court. Although a defendant may forfeit an equal protection claim raised for the first time on appeal, we exercise our discretion to consider the claim. (People v. Diggs (2022) 80 Cal.App.5th 702, 710; see also In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)
Orantes argues that we should apply the strict scrutiny test requiring the state to show the statute is narrowly tailored to further a compelling state interest, because "prisoners have a 'personal liberty interest' in being released from incarceration as soon as possible." We disagree. We conclude that the rational basis test applies because a defendant does not have a fundamental interest in the duration of a prison term. (People v. Wilkinson (2004) 33 Cal.4th 821, 838; People v. K.P. (2018) 30 Cal.App.5th 331, 343.)
In Cervantes, the court pointed out that in enacting Senate Bill 1437 "the legislative focus was centered on the unfairness of the felony-murder rule. The Legislature could rationally decide to change the law in this area and not be currently concerned with crimes not involved with that rule." (People v. Cervantes, supra, 44 Cal.App.5th at p. 888.) In the same vein, when enacting Senate Bill 775, the Legislature could rationally decide to provide the broadest grounds for sentencing relief to those convicted of the crime of murder, which is punished by the longest sentence, where the unfairness of a conviction and sentence based solely on participation in the crime is most acute, while at the same time affording less expansive relief to those convicted of attempted murder.
We conclude that section 1172.6 as amended by Senate Bill 775 does not violate equal protection.
Thiessen did not raise an equal protection claim in his opening brief except to argue in a footnote that the legislative purpose of Senate Bill 1437 and Senate Bill 775 was to lower prison populations and the associated cost of maintaining inmates in the prison system. To the extent Thiessen argues that in light of this statutory purpose, it was not reasonable to distinguish between persons convicted of murder and attempted murder, "[t]hat is exactly the type of fiscal line-drawing and policymaking decision that the Legislature is free to make." (People v. Paige, supra, 51 Cal.App.5th at p. 206; People v. Sanchez, supra, 48 Cal.App.5th at p. 921.)
DISPOSITION
The orders denying Thiessen's and Orantes's petitions for relief under section 1172.6 are affirmed.
We concur: MAURO, Acting P.J., MESIWALA, J.