Opinion
B319341
01-23-2024
THE PEOPLE, Plaintiff and Respondent, v. REYAS CONCHA, Defendant and Appellant.
Patricia S. Lai, 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, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA287017 Eleanor J. Hunter, Judge. Affirmed.
Patricia S. Lai, 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, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
Reyes Concha appeals the trial court's order denying his petition for vacatur of his conviction for murder and resentencing under Penal Code section 1172.6. The trial court ruled that Concha was prima facie ineligible for relief because he was convicted of provocative-act murder, a theory of liability under which a defendant may be convicted of the murder of an accomplice by a victim or a police officer. On appeal, Concha contends that he is not barred from relief on the basis that he was convicted of provocative-act murder, and is entitled to an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3).
All further statutory references are to the Penal Code.
Concha challenged both his murder conviction and his conviction of attempted murder arising from the same incident in the trial court, but does not separately challenge the denial of the petition as to the attempted murder conviction-of which he was convicted as a direct aider and abettor-in this court. He has therefore waived any challenge to that conviction.
We affirm the trial court's order.
Concha's appeal raises questions of law; we include a short recitation of the facts for context.
"On July 14, 2005, . . . Concha, Julio Hernandez, Max Sanchez, and a fourth unidentified man threatened to kill Jimmy Lee Harris during an apparent attempted robbery. Harris fled from the assailants and ran down the middle of a street in Los Angeles. The four men pursued Harris for over a quarter of a mile before cornering him against a fence. Harris attempted to scale the fence and one or more of the assailants began stabbing him. The stabbing continued for several seconds. Harris, realizing that his life was in danger, turned around and attempted to fight the four men off. Harris pulled a pocket knife from his pocket and 'began to stab as many of them as [he] could.' Harris then fled and found someone who called the police. Harris suffered severe injuries, but he survived. Sanchez died from the stab wounds that Harris inflicted during the attack." (People v. Concha (2009) 47 Cal.4th 653, 658 (Concha).)
The jury found Concha guilty of the first degree murder of his accomplice Sanchez under the provocative act doctrine (§ 187, subd. (a); count 1) and attempted willful, deliberate, premeditated murder of Harris as a direct aider and abettor (§§ 187, subd. (a) &664, subd. (a); count 2). The jury's verdict included a special finding that Concha personally committed a provocative act-i.e., an act that caused Harris to reasonably respond by killing Sanchez. The trial court sentenced Concha to 25 years to life in count 1, with a consecutive sentence of 15 years to life in count 2.
Concha appealed, arguing that his conviction of first degree murder under the provocative-act murder doctrine must be reversed, because the jury did not make a finding that he personally acted with premeditation and deliberation when he attempted to kill Harris; rather, the jury found that the attempted murder was committed with premeditation and deliberation (which may have been based on Hernandez's mental state). Another panel of this court found that" 'the convictions [of Hernandez and Concha] were based on defendants' express malice in attempting to kill Harris.'" (Concha, supra, 47 Cal.4th at p. 659.) The court ordered the abstract of judgment modified to reflect that Concha was sentenced to a life term with the possibility of parole, and to correct an error in the calculation of custody credits, but otherwise affirmed the judgment.
The Supreme Court granted review to determine whether a defendant may be liable for first degree murder on a theory of provocative-act murder when his accomplice is killed by the intended victim in the course of an attempted murder. (Concha, supra, 47 Cal.4th 653.) The Supreme Court found that the defendant could be convicted of first degree murder under such circumstances. However, the Supreme Court reversed the Court of Appeal, holding that to return a verdict of first degree murder, the jury must find that the defendant personally acted willfully, deliberately, and with premeditation, and that the jury had not been properly instructed on this point. The court remanded the matter for the appellate court to determine whether the error was prejudicial. (Id. at pp. 663-666.)
On remand, the Court of Appeal held the instructional error harmless beyond a reasonable doubt in light of the uncontroverted evidence that Concha acted with premeditation and deliberation. The court affirmed the judgment as previously modified.
On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective. The legislation amended sections 188 and 189, and added former section 1170.95. (Stats. 2018, ch. 1015, §§ 2-4.) Senate Bill No. 1437 limited application of the felony murder rule and eliminated murder based on the natural and probable consequences doctrine. Through former section 1170.95, Senate Bill No. 1437 also created a procedure by which a defendant previously convicted of murder under either of those theories could file a petition for vacatur of the defendant's murder conviction and resentencing. On June 24, 2021, Concha filed a petition for resentencing under former section 1170.95.
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) amended former section 1170.95 to expand its reach to include defendants convicted of murder based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (former § 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)
On March 9, 2022, the trial court conducted a hearing under former section 1170.95, subdivision (c) to determine whether Concha was prima facie eligible for relief. The trial court denied Concha's petition because it concluded that former section 1170.95 did not apply to provocative-act murder.
Concha timely appealed.
DISCUSSION
The Evolution of Section 1172.6
Effective January 1, 2019, Senate Bill No. 1437 added former section 1170.95 (now § 1172.6) and made other amendments to the Penal Code that eliminated the natural and probable consequences doctrine and limited the scope of liability that could be imposed under the felony murder theory. The purpose of this legislation was to "ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f).) Outside of the felony-murder rule, 'a conviction for murder requires that a person act with malice aforethought. A person's culpability for murder must be premised upon that person's own actions and subjective mens rea.' (Id., § 1(g).)" (People v. Curiel (2023) 15 Cal.5th 433, 448.)
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes in text. (Stats. 2022, ch. 58, § 10.)
Effective January 1, 2022, Senate Bill No. 775 further limited the theories under which a defendant could be prosecuted to better reflect this purpose. As a result, section 1172.6, subdivision (a) now 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 . . . may 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 when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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 ....[¶] (2) The petitioner was convicted of murder . . . following a trial . . . at which the petitioner could have been convicted of murder .... [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (Italics added.)
Upon receipt of a facially sufficient petition, the trial court will appoint counsel, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response within 60 days of the service of the petition, and the petitioner may file a reply within 30 days of the response. (§ 1172.6, subd. (c).) When briefing has been completed, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (Ibid.) "If, however, the record of conviction or the court's own documents indicate the petitioner is ineligible for resentencing as a matter of law, the resentencing court may deny the petition without issuing an order to show cause." (People v. Lee (2023) 95 Cal.App.5th 1164, 1174 (Lee).)
Provocative Act Murder
" 'When someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant is not liable under felony-murder principles but may nevertheless be prosecuted for murder under the provocative act doctrine.' [Citation.] Pursuant to this doctrine, '" 'when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.] "In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life." [Citation.]' [Citation.] [¶] '. . . [A] participant in the underlying crime who does not actually commit a provocative act himself may nevertheless be vicariously liable for the killing caused by his provocateur accomplice based upon having aided and abetted commission of the underlying crime. [Citations.] Thus, under the provocative act doctrine, a defendant may be vicariously liable for the provocative conduct of his surviving accomplice in the underlying crime....'"' [Citation.]" (People v. Antonelli (2023) 93 Cal.App.5th 712, 719 (Antonelli), italics added, rev. granted Oct. 18, 2023, S281599).)
" 'In the classic provocative act murder prosecution, malice is implied from the provocative act, and the resulting crime is murder in the second degree.' ([People v.] Cervantes [(2001) 26 Cal.4th 860,] 872-873, fn. 15.)" (Concha, supra, 47 Cal.4th at pp. 662-663.) When the underlying crime is attempted murder, however, malice need not be implied from the provocative act because the defendant necessarily possessed an intent to kill and malice is express. (People v. Flores (2023) 96 Cal.App.5th 1164, 1171, fn. 3 (Flores).) In such cases, "first degree murder liability may be proper if the charged defendant personally acted willfully, deliberately, and with premeditation.' (Concha, at p. 662; accord, Cervantes, at pp. 872-873, fn. 15.)" (Flores, at p. 1171, fn. 3.)
Analysis
Concha concedes that, following Senate Bill No. 1437 but prior to Senate Bill No. 775, every court to consider whether provocative-act murder remained a valid theory of liability for murder held that defendants convicted of provocative-act murder were not eligible for relief under former section 1170.95. The courts reasoned that to convict under a provocative-act murder theory, the jury must find that the defendant acted with malice, an element that was not required under the natural and probable consequences doctrine that Senate Bill No. 1437 eliminated. (People v. Mancilla (2021) 67 Cal.App.5th 854, 867; People v. Johnson (2020) 57 Cal.App.5th 257, 270-271; People v. Lee (2020) 49 Cal.App.5th 254, 266; People v. Swanson (2020) 57 Cal.App.5th 604, 613-614.)
Concha instead contends that the amendments Senate Bill No. 775 made to the statute have invalidated the provocative-act murder doctrine. He claims that the amendments to section 1172.6 focus on the actus reus component of murder, a component not previously covered by Senate Bill No. 1437, which addressed only mens rea.
"Murder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, an act of either the defendant or an accomplice must be the proximate cause of death. [Citations.] For the crime of murder, as for any crime other than strict liability offenses, 'there must exist a union, or joint operation of act and intent, or criminal negligence.' (§ 20.) To satisfy the mens rea element of murder, the defendant must personally act with malice aforethought." (Concha, supra, 47 Cal.4th at p. 660, italics omitted.)
Concha argues that the Legislature added the words "person's participation in a crime," to section 1172.6, subdivision (a) to effect a change in the acts that may constitute the basis for murder liability as opposed to the mental state. Concha does not explain how section 1172.6 can be interpreted in this manner. He simply points to the isolated phrase in the statute to support his interpretation.
We independently review questions of statutory interpretation, giving words their plain meaning and considering them in context. (People v. Arellano (2022) 86 Cal.App.5th 418, 430-431.) As amended by Senate Bill No. 775, section 1172.6, subdivision (a) permits defendants to seek relief when prosecuted under a "theory under which malice is imputed to a person based solely on that person's participation in a crime." Viewed in context, the words "person's participation in a crime" are part of this longer phrase proscribing the manner in which malice may be attributed to an individual charged with murder. The language modifies the description of the mens rea a defendant must possess to be found guilty of murder, not the actus reus component of murder. As such, the plain language of section 1172.6, subdivision (a), unambiguously dictates that a "person's participation in a crime" cannot form the sole basis for imputing malice. A necessary corollary to this revision is that if malice is express or implied, rather than imputed, or if malice is imputed based on participation in a crime and some other component, it may still satisfy the mens rea element for murder liability under the statute.
We conclude that Concha's conviction remains valid following Senate Bill No. 775's amendments. Malice was not imputed to him-the jury found that he acted with express malice when it found that he attempted to kill Harris. (Concha, supra, 47 Cal.4th at p. 665 [attempted murder requires jury to find defendant acted with intent to kill].) Concha attempts to avoid this conclusion by arguing that he did not act with express or implied malice as to Sanchez. The argument lacks merit. A defendant is not required to act with malice as to a specific individual. In its review of Concha's direct appeal the Supreme Court explained: "A defendant can be liable for the unlawful killings of both the intended victims and any unintended victims.
' "[T]here is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed." '" (Concha, supra, 47 Cal.4th at p. 660.) A"' "mens rea . . . is an elastic thing of unlimited supply .... It may combine with a single actus reus to make a single crime. It may as readily combine with a hundred acti rei, intended and unintended, to make a hundred crimes .... Unforeseen circumstances may multiply the criminal acts for which the criminal agent is responsible. A single state of mind, however, will control the fact of guilt and the level of guilt of them all." '" (Id. at pp. 660-661.) The jury's express malice finding relating to the attempted murder of Harris was equally applicable to the murder of Sanchez, even if murdering Sanchez was not what Concha intended. Concha's malice toward Harris was sufficient; malice was not imputed to Concha. Accordingly, his conviction remains valid after Senate Bill No. 775's amendments to section 1172.6.
Concha further contends that the provocative-act murder doctrine is invalid because it incorporates the natural and probable consequences doctrine. He reasons that because the natural and probable consequences doctrine was abrogated by Senate Bill No. 1437, the provocative-act murder doctrine was also eliminated. This contention also lacks merit. The provocative-act murder doctrine permits a defendant to be held liable when an officer or a victim kills an accomplice if the killing was" 'the natural and probable consequence of a defendant's [provocative] act.'" (Concha, supra, 47 Cal.4th at p. 661.) However, as numerous courts have held, the use of the words "natural and probable consequences" in relation to the provocative-act murder doctrine does not bring that theory of murder within the ambit of natural and probable consequences murder. (People v. Mancilla, supra, 67 Cal.App.5th at p. 868; People v. Johnson, supra, 57 Cal.App.5th at pp. 267-268; People v. Swanson, supra, 57 Cal.App.5th at p. 614.) In the context of provocative-act murder, the words "natural and probable consequences" relate to the issue of proximate causation, not the imputation of malice. (Concha, at p. 661 [where" 'an intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim's death . . .' . . . '[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach' "].) The hallmark of the natural and probable consequences doctrine is absence of the requirement that the jury find the defendant personally acted with malice. (Mancilla, at p. 868.) As we have discussed, in Concha's case the jury found that Concha acted with express malice, so that concern is not implicated.
Concha further contends in his reply brief and in supplemental briefing filed by invitation of this court, that in Lee, supra, 95 Cal.App.5th 1164, the Court of Appeal, Second District, Division One held that a defendant's conviction for provocative-act murder does not categorically bar relief under section 1172.6. The issue is a subject of debate among the courts of appeal. (See, e.g., Antonelli, supra, 93 Cal.App.5th at pp. 720-721 [defendants convicted of provocative act murder are categorically barred from relief; provocative-act murder is not a theory under which malice is imputed to a person based solely on that person's participation in a crime; at a minimum the theory requires the defendant to act with implied malice]; Lee, at pp. 1175-1181 [defendants convicted prior to Supreme Court's decision in Concha, supra, 47 Cal.4th 653 are not necessarily barred from section 1172.6 relief; before Concha the provocative-act murder doctrine permitted defendants to be convicted based on malice of codefendant who committed provocative act]; Flores, supra, 96 Cal.App.5th at p. 1172, and 1172, fn. 3 [defendant convicted of provocative-act murder after Supreme Court's decision in People v. McCoy (2001) 25 Cal.4th 1111 ineligible for section 1172.6 relief because McCoy clarified that defendant must personally act with malice to be convicted of murder].) The question is currently pending review by the Supreme Court (Antonelli, supra, 93 Cal.App.5th 712, rev. granted Oct. 18, 2023, S281599) on the specific question of whether a defendant is "entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)."
https://supreme.courts.ca.gov/sites/default/files/supremecou rt/default/2023-11/pendingissues-crim%20-%20111723_0.pdf current 1/19/24.
In the absence of guidance from the Supreme Court, Concha urges us to follow Lee, supra, 95 Cal.App.5th 1164. In Lee, the defendant contended that he was convicted of provocative-act murder based on the "malicious provocative acts of his confederates in the underlying robbery, without any findings as to [his own] mental state." (Id. at p. 1169.) The Court of Appeal agreed, stating that its review of the provocative-act murder doctrine revealed that, at the time of Lee's conviction in 1994, a defendant could be convicted of murder based on his codefendant's actions done with malice aforethought without regard to the defendant's personal mental state. (Ibid.) The Lee court concluded that, from its inception in 1965 until the Supreme Court issued its opinion in Concha's case in 2009 (Concha, supra, 47 Cal.4th 653), the provocative-act murder doctrine permitted a defendant to be convicted of murder based on the malice of a codefendant who committed a provocative act. (Lee, at pp. 1175-1182.) Lee held that the Supreme Court's opinion in Concha changed this rule, explaining: "Although Concha concerned the circumstances in which a provocative act murder could be elevated to first degree murder, its language indicated more broadly that a murder conviction, whether first or second degree, requires proof of a defendant's individual mental state. (See Concha, supra, 47 Cal.4th at p. 663 ['The defendant or an accomplice must proximately cause an unlawful death, and the defendant must personally act with malice']; id. at p. 665 ['for murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice'])." (Lee, at pp. 1181-1182.) The Lee court opined that to the extent prior opinions "suggest that a jury convicting a defendant of provocative act murder has necessarily found that the defendant personally harbored a mental state of malice, we disagree as to convictions predating Concha." (Id. at p. 1184.) In the defendant's case, "the instructions allowed the jury to convict Lee of murder if '[t]he crime of robbery was committed,' and '[d]uring the commission of such crime, . . . another surviving perpetrator . . . intentionally committed a provocative life-threatening act . . . [¶] . . . with knowledge of the danger to and with conscious disregard for human life.'" (Id. at p. 1183.) Accordingly, the Lee court held that the defendant was not categorically barred from relief. (Id. at pp. 1169, 1188.)
Concha urges us to follow Lee and hold that the trial court erred in finding that he was categorically barred from relief because, like Lee, in Cocha's case the law did not require the jury at the time of his trial to find that he personally acted with malice. It is not necessary to decide the general question of whether defendants convicted of provocative-act murder are categorically barred from relief to resolve Concha's appeal. First, as we have discussed, regardless of whether, at the time of Concha's trial, the law permitted some defendants to be convicted of provocative-act murder without a finding that an individual acted with malice, in Concha's case the jury found that he personally acted with express malice. The question the Supreme Court resolved in Concha, supra, 47 Cal.4th 653, was not whether Concha acted with malice, but whether he acted with premeditation and deliberation. Additionally, Concha's case differs from Lee's in another important respect. In Lee, it was unclear whether the defendant was convicted on the basis of his codefendant's provocative act or his own. (Lee, supra, 95 Cal.App.5th at p. 1190.) Even if we were to assume for the sake of argument that section 1172.6 now requires a defendant to be convicted based on his own provocative act rather than a codefendant's, in Concha's case the jury specifically found that he committed a provocative act that caused Harris to reasonably react by killing Sanchez. Concha was convicted based on his own mental state and his own actions. Lee does not apply.
Finally, Concha argues that the trial court gave a modified version of CALCRIM No. 560 that permitted the jury to convict him of provocative-act murder without finding that he personally knew the natural and probable consequences of the provocative act were dangerous to human life or finding that he personally acted with conscious disregard for life. These are arguments that Concha could have-and did-make on direct appeal. Section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438.) Regardless, the jury's finding that Concha committed the attempted murder with malice and the jury's special verdict finding that Concha personally committed a provocative act preclude him from relief under the statute.
In sum, regardless of whether the trial court correctly concluded that defendants convicted of provocative-act murder are precluded from relief under section 1172.6, Concha himself is ineligible for relief under the statute as a matter of law and not entitled to an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3).
DISPOSITION
We affirm the trial court's order denying Concha's petition for resentencing under section 1172.6.
NOT TO BE PUBLISHED.
We concur: RUBIN, P. J., KIM, J.