Filed 10/11/17 In re Loza CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re LUIS LOZA
on Habeas Corpus.
|
G055190
(Super. Ct. No. 04HF0309)
O P I N I O N |
Original proceedings; petition for a writ of habeas corpus. Petition granted with directions.
Petitioner Luis Loza, in pro. per.
Xavier Becerra Attorney General, and Lynne G. McGinnis, Deputy Attorney General for Respondent.
* * *
THE COURT:*
A jury convicted petitioner Luis Loza of the first degree murder of Edward Mauricio Rendon. (Pen. Code, §187.)[1] The jury found him not guilty of the attempted murder of a second victim (§§664/187, subd. (a)), and not guilty of street terrorism (§186.22, subd.(a).) The jury returned not true findings on allegations he committed the murder at the direction of, for the benefit of, or in association with, a criminal street gang (§186.22, subd. (b)(1)) and that he was vicariously armed with a firearm. (§12022.53, subds. (d), (e)(1)).[2] He was sentenced to prison for 25 years to life. We affirmed the judgment on appeal and the Supreme Court subsequently denied review. (People v. Andrade et al. (April 9, 2007, G035759) [nonpub. opn.].)
In the instant habeas corpus proceeding, petitioner argues his murder conviction must be reversed because he was tried and ultimately convicted on a natural and probable consequences theory, and the California Supreme Court in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) has since rejected the use of that doctrine as a basis for first degree premeditated murder liability.
The Attorney General concedes Chiu error applies to petitioner’s case and the error was not harmless. It cannot be determined whether the jury’s verdict was based on a legally valid theory.
We agree with the parties that Chiu error occurred in petitioner’s case, and that the error was not harmless. The remedy outlined in Chiu is a reversal of the first degree murder conviction, “allowing the People to accept a reduction of the conviction to second degree murder or to retry the greater offense.” (People v. Chiu, supra, 59 Cal.4th at p. 168.)
The Attorney General does not oppose the granting of relief on the foregoing claim, and has waived any issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn.7.)
Accordingly, the judgment as to the first degree murder conviction is hereby vacated, and the matter is remanded to the superior court with directions to allow the People to accept a reduction of the conviction to second-degree murder or to retry the greater offense. Following the People’s election and at the conclusion of further proceedings, the superior court is directed to amend the abstract of judgment accordingly, and to send a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. This decision shall be final as to this court 10 court days after its filing. (Cal.Rules of Court, rule 8.387(b)(3)(A).)
* Before, Moore, Acting P.J., Fybel, J., and Thompson, J.
[1] Further unspecified statutory references are to the Penal Code.
[2] Petitioner was tried with co-defendants Oscar Andrade, Cesar Loza, and Peter Rizo. They are not parties to this proceeding.