Filed 4/8/22 P. v. Gonzalez CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
ARMANDO ARIAS GONZALEZ,
Defendant and Appellant.
| C093775
(Super. Ct. No. CR2014606)
|
While defendant Armando Arias Gonzalez was serving a life sentence for second degree murder,[1] the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, §§ 1-4), which amended the law governing murder liability under felony-murder and natural and probable consequences theories and provided a new procedure under Penal Code section 1170.95[2] for eligible defendants to petition for recall and resentencing.
Defendant filed a petition for resentencing under section 1170.95, which the trial court denied on constitutional grounds without reaching the merits of his petition. Defendant appealed and we reversed, finding Senate Bill 1437 did not unconstitutionally amend various propositions or judicial doctrines. (People v. Gonzalez (Oct. 28, 2020, C090219) [nonpub. opn.].) We remanded the matter for further proceedings under section 1170.95. Upon remand, the trial court denied defendant’s petition, finding he failed to make a prima facie case he was entitled to relief.
Defendant again appeals from the trial court’s order denying his petition for resentencing under section 1170.95. His appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief, arguing the instructions given to the jury on implied malice, which included natural consequences language, show the jury convicted him on a natural and probable consequences theory thus making him eligible for relief under section 1170.95. We disagree and affirm.
BACKGROUND
Throughout his life, defendant suffered numerous epileptic seizures despite receiving treatment for his condition. From 2002 to 2011, defendant was involved in four car accidents after suffering seizures or falling asleep. In February 2014, defendant left work early following two episodes of staring, trembling, and becoming nonresponsive. While driving his car a few miles from work, defendant hit and killed Ruth Morales, left the scene of the accident, and collided with a second vehicle a short distance away. He later told a nurse he had a seizure earlier in the day and fell asleep at the wheel. Defendant also told an emergency room physician that he had a history of seizures, lost consciousness while driving, and awoke after the collision. A jury found defendant guilty of, among other things, second degree murder, and he was sentenced to 15 years to life in prison for the murder conviction.
As previously noted, the trial court initially denied defendant’s section 1170.95 petition to be resentenced under Senate Bill 1437 without reaching the merits of the petition. We reversed and remanded for further proceedings under section 1170.95. (People v. Gonzalez, supra, C090219.)
Following issuance of the remittitur in January 2021, the prosecution filed a response to defendant’s petition, arguing he failed to establish a prima facie case for relief because the record of conviction showed his jury was never instructed on felony murder or on the natural and probable consequences doctrine. Instead, the trial court instructed the jury only on express or implied malice murder.
At a hearing on the petition in March 2021, defense counsel informed the court that he did not file a brief because after reviewing the jury instructions from defendant’s trial, he determined that the only theory of liability on which the jury was instructed was implied malice murder. Defense counsel conceded that the jury instructions showed the jury was not instructed on either natural and probable consequences murder or felony murder.
After considering the parties’ arguments and the evidence presented, the court denied the petition, finding Senate Bill 1437 did not apply to defendant’s case because the prosecution did not pursue felony-murder or natural and probable consequences theories during trial, and the jury was not instructed on those theories. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief, and he timely filed a supplemental brief arguing the trial court erred in denying his section 1170.95 petition. We discuss his contentions more fully below.
I
Legal Landscape
The Legislature enacted Senate Bill 1437 “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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.) It also added section 1170.95, which provided a procedure by which those convicted of murder could seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.)
Senate Bill 1437 redefined malice under section 188 to require that a principal acted with malice aforethought. (Stats. 2018, ch. 1015, § 2.) Now, section 188, subdivision (a)(3) provides in relevant part: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”
Section 189 was amended to include new subdivision (e), which provides: “(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer[;] [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree[; and] [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also enacted section 1170.95, allowing 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” when certain conditions applied. (Former § 1170.95, subd. (a).) In October 2021, the Governor signed Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) into law, amending section 1170.95 to expand the persons eligible for resentencing. Senate Bill 775 went into effect on January 1, 2022, while defendant’s present appeal was pending.
As amended by Senate Bill 775, section 1170.95, subdivision (a) now provides: “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” are eligible for resentencing under certain conditions. (Stats. 2021, ch. 551, § 2.) Those conditions include: (1) that 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, or attempted murder under the natural and probable consequences doctrine; (2) the petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder; and (3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made by Senate Bill 1437. (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (a)(1)-(3).)
Senate Bill 775 also amended section 1170.95, subdivision (b) to provide in pertinent part that “pon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can be readily ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (b)(3).) And subdivision (c) now provides: “Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor’s response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, 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. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (c).) Thus, Senate Bill 775 codified our Supreme Court’s holding in People v. Lewis (2021) 11 Cal.5th 952 regarding a petitioner’s right to counsel and clarified the standard to determine the existence of a prima facie case. (Stats. 2021, ch. 551, § 1, subd. (b).)
II
Analysis
In his supplemental brief, defendant contends the trial court erroneously denied his section 1170.95 petition because the jury was instructed with CALCRIM No. 520,[3] the standard jury instruction on malice murder, and the implied malice portion of the instruction encompasses the concept of natural and probable consequences. Because Senate Bill 1437 eliminated natural and probable consequences murder, defendant contends he is entitled to relief under section 1170.95. Defendant further cites the rule of lenity in arguing that we should interpret the natural and probable consequences language in CALCRIM No. 520 to mean the jury convicted him on a natural and probable consequences theory of murder no longer viable after Senate Bill 1437. We are not persuaded.
Here, the trial court properly relied on the record of conviction, including the jury instructions, in determining that defendant was convicted of second degree murder after the jury was instructed on express and implied malice murder. (People v. Lewis, supra, 11 Cal.5th at pp. 970-971 [trial court may rely on record of conviction in determining whether petitioner has satisfied the single prima facie showing he is entitled to relief under § 1170.95]; People v. Soto (2020) 51 Cal.App.5th 1043 (Soto) [jury instructions are part of the record of conviction], review granted on other grounds Sept. 23, 2020, and dism. Nov. 17, 2021, S263939.) As the court noted, and a review of the jury instructions given at trial show, the jury was not instructed on felony murder or murder under the natural and probable consequences doctrine.[4]
The fact that the court’s instruction on implied malice contained natural consequences language does not mean the jury was instructed on natural and probable consequences murder, as defendant argues. This is because implied malice murder and natural and probable consequences murder are two distinct concepts. (Soto, supra, 51 Cal.App.5th at pp. 1055-1059.)
For implied malice murder, a perpetrator “ ‘knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.’ ” (People v. Soto (2018) 4 Cal.5th 968, 974.) He must also perform a physical act, “ ‘the natural consequences of which are dangerous to life.’ ” (Ibid.)
“The natural and probable consequence doctrine, by contrast, is a theory of liability by which an aider and abettor who intends to aid a less serious crime can be convicted of a greater crime.” (Soto, supra, 51 Cal.App.5th at p. 1058.) The natural and probable consequences doctrine comes into play when “an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense).” (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
Here, the record of conviction shows defendant acted alone without any accomplices, and that the jury was not instructed on any nontarget offense. The “natural and probable consequences” language in CALCRIM No. 520 did not transform defendant’s conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95. (Soto, supra, 51 Cal.App.5th at p. 1058.) Implied malice murder and natural and probable consequences murder are two distinct concepts. (Id. at pp. 1055-1059; People v. Roldan (2020) 56 Cal.App.5th 997, 1004-1005 [the natural and probable consequences doctrine is not an implied malice theory], review granted on other grounds Jan. 20, 2021, and dism. Dec. 22, 2021, S266031.)
To the extent defendant argues that he did not perform an act with a high probability it would result in death, nor did he show an abandoned and malignant heart, defendant simply disagrees with the jury’s adverse determinations on those issues. The jury was instructed on justifiable homicide as a result of an accident (CALCRIM No. 510) and found against defendant on that issue. We have no occasion to revisit the jury’s findings here.
The court did not err in denying defendant’s petition for failure to make the requisite prima facie showing under section 1170.95.
DISPOSITION
The order denying defendant’s section 1170.95 petition for resentencing is affirmed.
[u] /s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
KRAUSE, J.
[1] This court affirmed defendant’s convictions and judgment in an opinion in 2017. (People v. Gonzalez (Mar. 29, 2017, C079410) [nonpub. opn.].)
[2] Further undesignated statutory references are to the Penal Code.
[3] CALCRIM. No. 520 provides in relevant part: “To prove that the defendant is guilty of [murder], the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life.” CALCRIM No. 520 further instructs that “[a]n act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without 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 circumstances established by the evidence.”
[4] None of the added offenses made eligible for relief by Senate Bill 775, such as attempted murder or manslaughter, apply to defendant’s murder conviction. And none of Senate Bill 775’s other changes to section 1170.95 are at issue here as defendant was represented by counsel on the petition, and the court denied the petition in writing after giving the parties an opportunity to brief the issue, and holding a hearing to determine whether he had made a prima facie case. (Stats. 2021, ch. 551, § 2.)
