Filed 4/5/22 P. v. Lamarque CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Reversed with directions.

Jonathan E. Demson, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 1992, defendant Porfirio Lamarque and codefendant Marvin Calderon were charged with murder. The killing stemmed from a gang confrontation. Calderon killed the victim; Lamarque drove. Lamarque pled guilty to second degree murder and received a prison sentence of 15 years to life. In 2019, after the Legislature amended the law of accomplice liability for murder, Lamarque petitioned for recall and resentencing under Penal Code section 1170.95. The trial court appointed counsel, received briefing, and held a contested hearing, then denied the petition. On appeal, Lamarque contends he was not ineligible for relief as a matter of law because he could have been tried as an aider and abettor under a natural and probable consequences theory, and the court’s contrary conclusion constituted improper factfinding at the prima facie review stage. We agree. We therefore reverse and remand with directions.

background

By information filed August 25, 1992, Lamarque and Calderon were charged with one count of murder (Pen. Code,[1] § 187, subd. (a); count 1). The information also alleged that Calderon had personally used a handgun in the commission of the offense (§ 12022.5, subd. (a)) and that a principal was armed with a firearm (§ 12022, subd. (a)(1)).

On August 28, 1992, on the second day of trial, Lamarque pled guilty to second degree murder under People v. West (1970) 3 Cal.3d 595 and admitted the armed allegation. On February 18, 1993, the court struck the firearm allegation and sentenced Lamarque to 15 years to life in state prison.

In January 2019, Lamarque filed a petition for recall and resentencing under section 1170.95. His declaration stated, in relevant part, that an information was filed against him that allowed the prosecution to proceed under a natural and probable consequences theory of murder; he pled guilty and was convicted of second degree murder in lieu of going to trial because he believed he could have been convicted of murder under the natural and probable consequences doctrine; and he could not now be convicted of second degree murder because of changes to sections 188 and 189. He asked the court to appoint counsel to represent him.

The court appointed counsel to represent Lamarque. The prosecution opposed the petition, and Lamarque filed a reply brief.

On September 21, 2020, the court denied the petition, holding that Lamarque had failed to set forth a prima facie case for relief. Specifically, the court held that Lamarque was not eligible for resentencing because he had been convicted as a direct aider and abettor.

Lamarque filed a timely notice of appeal.

DISCUSSION

Lamarque contends he established that he could have been tried as an aider and abettor under a natural and probable consequences theory, and the court reached the contrary conclusion by improperly weighing the facts at the prima facie review stage. We agree.

1. The Law of Murder and Senate Bill No. 1437

Murder is “the unlawful killing of a human being … with malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) Express malice is the intent to kill, whereas implied malice exists “where the defendant … acted with conscious disregard that the natural and probable consequences of [his or her] act or actions were dangerous to human life. [Citation.]” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) Although malice is an element of murder, when Lamarque was convicted, the law allowed defendants who did not act with malice to be liable for murder under certain circumstances.

“First, under the natural and probable consequence[s] doctrine, a defendant who aids and abets a confederate in committing a crime (the target offense) is liable for other crimes committed by the confederate if those further crimes were natural and probable consequences of the target offense. [Citation.] Thus, under prior law, if the direct perpetrator of the target offense committed murder, and the murder was a natural and probable consequence of the target offense, then an aider and abettor of the target offense would be liable for the murder even if the aider and abettor did not act with malice. (People v. Gentile (2020) 10 Cal.5th 830, 845 [‘until recently, when a person aided and abetted a nonhomicide crime that then resulted in a murder, the natural and probable consequences doctrine allowed him or her to be convicted of murder without personally possessing malice aforethought’].)” (People v. Eynon (2021) 68 Cal.App.5th 967, 973 (Eynon).)

Second, under prior California law, every accomplice to an enumerated felony could be convicted of first degree murder if a death occurred during the commission of that felony—regardless of whether the accused killed or intended to kill. (See People v. Dillon (1983) 34 Cal.3d 441, 462–472.)

Senate Bill No. 1437 (S.B. 1437) was enacted 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); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) It accomplished this “ ‘by amending sections 188 and 189 to restrict the scope of first degree felony murder and to eliminate murder liability based on the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–3.)’ [Citation.]

“Amended section 188 provides that, except for first degree felony murder, ‘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.’ (§ 188, subd. (a)(3).) The requirement that the principal act with malice eliminates all murder liability under the natural and probable consequences doctrine. [Citation.]

“Amended section 189 limits the first degree felony-murder rule by imposing new requirements for its application. The statute provides that, unless the victim is a peace officer killed in the line of duty, a defendant cannot be liable for first degree felony murder unless the defendant was the actual killer, acted with intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. [Citations.]” (Eynon, supra, 68 Cal.App.5th at pp. 973–974.)

2. Section 1170.95

In addition to changing the law of murder prospectively, S.B. 1437 gave people who had been convicted under one of the now-invalid theories of murder the opportunity to petition for resentencing under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.)[2] Section 1170.95, subdivision (a)(3), describes who may petition for resentencing under the statute. Subdivision (b) explains what information the petition must contain, where the petitioner must file it, who the petitioner must serve, and what the court should do if it’s incomplete. Subdivision (c) describes the process the court uses to determine whether the petitioner is entitled to an evidentiary hearing: Appoint counsel, if requested; wait for the prosecutor’s required response and the petitioner’s optional reply; if the petitioner makes a prima facie showing that he or she is entitled to relief, issue an order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)

As relevant here, a petitioner makes a prima facie showing that he is entitled to relief by demonstrating:

(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of … murder under the natural and probable consequences doctrine.

(2) The petitioner … accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.

(3) The petitioner could not presently be convicted of murder … because of changes to Section 188 or 189 made effective January 1, 2019.

(§ 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)

“While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th at p. 971.) The court may deny a petition at this stage only if the petitioner is ineligible for relief as a matter of law. A petitioner is ineligible for relief as matter of law if the record of conviction shows that he or she could not have been convicted under any theory of liability affected by S.B. 1437—such as where malice aforethought was the only theory presented to the jury.

“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.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.) Instead, the record should be consulted at the prima facie stage only to determine “ ‘readily ascertainable facts,’ ” such as the crime of conviction and findings on enhancements. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; Lewis, at p. 972.) “ ‘[T]he prima facie bar was intentionally and correctly set very low.’ ” (Lewis, at p. 972.)

If the petitioner establishes a prima facie entitlement to relief, the court must issue an order to show cause. Subdivisions (d)–(g) describe the procedures for holding an evidentiary hearing, the type of evidence that may be admitted, the burden of proof, and the requirements for resentencing an eligible petitioner.

We independently review the trial court’s determination that Lamarque’s record of conviction refuted his allegations that he is eligible for relief under section 1170.95. (See Eynon, supra, 68 Cal.App.5th at p. 975.)

3. Lamarque made a prima facie showing of eligibility for relief under section 1170.95, subdivision (c).

The People argue that the prosecutor’s opening statement at trial and the testimony presented at the preliminary hearing establish that Lamarque was being prosecuted as a direct aider and abettor of first degree murder, and as such, that he is ineligible for relief as a matter of law. We disagree. Nothing in the record of conviction prevented the prosecution from proceeding on a natural and probable consequences theory at trial. The court nevertheless appears to have concluded from the facts of the case that the only viable theory of murder was that Lamarque was a direct aider and abettor. This was error.[3]

To be sure, the court did not have the benefit of subsequent case law when it denied Lamarque’s 1170.95 petition. Recent cases establish the court may not weigh facts without issuing an order to show cause and holding a hearing under section 1170.95, subdivision (d). (See, e.g., People v. Drayton (2020) 47 Cal.App.5th 965, 982, abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963 [where petitioner was neither the actual killer nor convicted on the theory that he had the intent to kill the victim, trial court should not have engaged in factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing]; People v. Duchine, supra, 60 Cal.App.5th at p. 816 [court may consider record of conviction at prima facie stage but may not evaluate the evidence, make credibility findings adverse to the petitioner, engage in factfinding, or exercise discretion].) As we discuss below, however, the court here improperly weighed the evidence.

1. 1. The transcripts do not establish that Lamarque was prosecuted under a malice theory.

As noted, the prosecution alleged that the murder in this case was a gang crime in which Calderon was the shooter and Lamarque drove the getaway car. Thus, Lamarque was charged with murder as an aider and abettor. But what offense did he aid and abet?

If the prosecution argued that he aided and abetted murder, it would have had to prove that Lamarque shared Calderon’s intent to kill. (People v. Chiu (2014) 59 Cal.4th 155, 166–167; People v. Beeman (1984) 35 Cal.3d 547, 560–561.) But if the prosecution proceeded under the natural and probable consequences doctrine, it would have only had to prove that Lamarque intended to aid and abet assault, and murder was a natural and probable consequence of assault. (Chiu, at p. 164 [“ ‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. … Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant’ ”].) Under the latter approach, Lamarque could have been found guilty of murder regardless of his intent or culpability. (See D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 113–114.) Nothing prevented the prosecution from taking this approach.

The People nevertheless insist that the preliminary hearing transcript establishes that the prosecution intended to proceed under a theory of actual malice.[4] The issue here is not whether the prosecution would have pursued a natural and probable consequences theory, but whether it could have. Nothing in the record before us prevented it from doing so.

We also disagree with the People’s argument that the prosecution’s failure to charge Lamarque with an underlying felony indicates that it planned to proceed only under a malice theory. As Lamarque correctly notes, it was not until 1996—four years after his guilty plea in this case—that the California Supreme Court required trial courts to instruct on a target offense when the prosecutor relies on the natural and probable consequences doctrine. (People v. Prettyman (1996) 14 Cal.4th 248, 254.)

1. 2. The court improperly weighed the facts.

At the hearing on Lamarque’s petition, after the court recited the facts of the case, defense counsel argued that the prosecution could have proceeded on a natural and probable consequences theory, with section 245 (assault with a deadly weapon) as the target offense. In response, the court stated: “Assaultive conduct always merges. It always merges. I can decide I’m going to shoot my husband. It’s not a 245 and natural and probable consequences. If I am going up to shoot my husband, it’s a murder. It’s not a 245 because assaultive conduct always merges with murder. The clear theory here is murder.”[5]

Defense counsel pressed on, emphasizing that the record only established a plea to second degree murder; it did not establish what theory the prosecution was going to use at trial. Indeed, counsel noted, there was some evidence in the record that Lamarque did not intend to aid and abet murder—namely his statement to the probation officer: “I was the driver but I had no idea that this guy was going to shoot the victim. I was just giving him a ride. I was dropping him off when he got out and came back to the car. I can’t say he shot the victim; I did not see that.” The court responded, “Okay. That is completely inconsistent with his behavior.”

Defense counsel again argued that the preliminary hearing transcript did not establish intent to kill. In response, the court said:

Well, that’s why I went through this factual scenario, which was four guys drive by flashing gang signs. The defendant and codefendant drive up. The defendant backs up to the location after driving past and flashing gang signs. He parks the car against traffic. He’s the one that hits up the victim twice. Then once the victim admits gang affiliation, codefendant gets out, shoots, comes back, and gets back in the car. The defendant is the getaway driver and returns. This is classic aiding and abetting. This is classic aiding and abetting.

The court continued:

I don’t believe that it is a natural and probable consequences theory. I think that this is classic aiding and abetting. It wasn’t felony murder in any fashion. It wasn’t felony murder, and I don’t think it’s the natural and probable consequences. This is very classic just by the facts. I’m not assuming, in any and all situations, that somebody that walks up and hits up somebody from a [different] gang affiliation kills them, but these particular facts tell me that—that he was aiding and abetting in a crime that the codefendant killed with the knowledge of what the codefendant was going to do given how it’s done.

In reaching its conclusion, the court erroneously weighed the facts of the case.

We conclude Lamarque made a prima facie showing of eligibility for relief under section 1170.95, subdivision (c). He filed a petition stating he was charged with murder under a natural and probable consequences theory of murder, pled guilty to second degree murder, and could not be convicted of murder under present law because he was not the actual killer or a direct aider and abettor. There were no facts before the court that, as a matter of law, conclusively refuted Lamarque’s assertions. As such, the court erred in denying Lamarque’s petition without issuing an order to show cause and holding an evidentiary hearing under section 1170.95, subdivision (d). (See Rivera, supra, 62 Cal.App.5th at p. 239 [“Rivera not only filed a facially sufficient petition but, with the assistance of counsel, offered a theory under which the evidence presented to the grand jury was consistent with his guilt of murder under the natural and probable consequences doctrine, based upon an intent to participate in a target offense of assault. [Citation.] In doing so, he created a factual dispute that cannot be resolved at the prima facie stage since nothing in the record definitively foreclosed his theory. Accordingly, he is entitled to a hearing under section 1170.95, subdivision (d).”].)[6]

DISPOSITION

The order denying Lamarque’s section 1170.95 petition is reversed and the matter is remanded with directions to issue an order to show cause and proceed with a hearing at which the parties may present evidence and the court acts as the trier of fact. (§ 1170.95, subds. (c)–(d).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.

[1] All undesignated statutory references are to the Penal Code.

[2] As enacted, section 1170.95 applied only to people convicted of murder, but on October 5, 2021, the Governor signed Senate Bill No. 775, which expanded eligibility under the statute to people who had been charged with either murder or attempted murder and convicted of attempted murder or manslaughter. (Stats. 2021, ch. 551, § 2.)

[3] When he pled guilty to murder, Lamarque did not admit facts supporting liability on any particular theory. Accordingly, his plea did not necessarily constitute an admission that he acted with malice aforethought. (See Eynon, supra, 68 Cal.App.5th at pp. 977–978 [rejecting that argument]; People v. Rivera (2021) 62 Cal.App.5th 217, 233–239 [same] (Rivera); People v. Cooper (2020) 54 Cal.App.5th 106, 123–124 [same].)

[4] In light of our disposition in this case, we take no position on whether it was proper for the court to rely on the preliminary hearing transcript where Lamarque did not stipulate to the transcript as the factual basis for his plea. (See Rivera, supra, 62 Cal.App.5th at p. 235.)

[5] As discussed, unlike the judge in this hypothetical, Lamarque was not the shooter. In any event, this is an incorrect statement of the law. (See, e.g., People v. Chiu, supra, 59 Cal.4th at p. 165; People v. Medina (2009) 46 Cal.4th 913, 922, 928 [“shooting of the victim” or “escalation of the confrontation to a deadly level” was a foreseeable consequence of gang assault]; People v. Ayala (2010) 181 Cal.App.4th 1440, 1450 [“fatal shooting” was a natural and probable consequence of a gang fight]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [“shooting” was a natural and probable consequence of assault and “escalation of this confrontation to a deadly level was much closer to inevitable than it was to unforeseeable”].)

[6] We acknowledge that in People v. Nguyen (2020) 53 Cal.App.5th 1154, the court held that a petitioner failed to make a prima facie showing of eligibility for relief under section 1170.95 because “the transcripts from the preliminary and plea hearings” established he “was convicted of second degree murder as a direct aider and abettor.” (Nguyen, at p. 1166.) Like the Rivera court, “[w]e disagree with Nguyen to the extent it suggests that relief under section 1170.95 is precluded as a matter of law simply because there is no mention in the preplea record of an underlying offense that could support liability for felony murder or murder under the natural and probable consequences doctrine.” (Rivera, supra, 62 Cal.App.5th at p. 238.) And when a petitioner disputes that the evidence presented at a preplea proceeding demonstrates his or her guilt under a still-valid theory of murder, and no readily ascertainable facts definitively prove otherwise, a trial court cannot deny a petition at the prima facie stage without resorting to factfinding involving the weighing of evidence or the exercise of discretion. (Ibid.)