Opinion
G061929
07-31-2023
THE PEOPLE, Plaintiff and Respondent, v. MARTIN DIAZ, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene Sevidal, Lynne McGinnis and Eric Tran, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 15NF3113, Lewis W. Clapp, Judge.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene Sevidal, Lynne McGinnis and Eric Tran, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
This is an appeal from the trial court's denial of defendant Martin Diaz's petition to vacate his murder conviction pursuant to Penal Code section 1172.6. He argues the court erroneously failed to order a hearing on the merits, instead finding the record of conviction precluded relief. We agree with the trial court that the factual basis for the plea stated facts which preclude relief as a matter of law, and therefore we affirm the order.
Subsequent statutory references are to the Penal Code unless otherwise indicated. The Legislature renumbered former section 1170.95 to section 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
I
FACTS
In May 2019, defendant pleaded guilty to attempted murder with a gang enhancement. (§§ 187, subd. (a), 664, 186.22, subd. (b)(1)(C).) On the Tahl form, the factual basis for his plea stated: "In Orange County, California, on 11/14/15, I unlawfully & with malice, aided &abetted the attempted killing of Eduardo Curiel, a human being. I unlawfully committed this offense as an active participant in Citron St., a criminal street gang, with knowledge that its members engage in & have engaged in, a pattern of criminal gang activity and did commit the offense of 664/187 for the benefit of and in association with Citron St, with the specific intent to promote, further, and assist in criminal conduct by members of that gang." The trial court imposed a sentence, pursuant to the plea bargain, of 29 years in state prison.
See In re Tahl (1969) 1 Cal.3d 122, overruled on other grounds by Mills v. Municipal Court (1973) 10 Cal.3d 288, 291.
In May 2022, defendant filed a petition for resentencing under former section 1170.95. The petition alleged defendant had been convicted under a theory of law that was no longer valid, and he could no longer be convicted under current law. The court appointed counsel for defendant and both sides submitted briefs. After a hearing, the trial court issued a four-page statement of decision denying the petition without further proceedings. The court found that defendant was not convicted under the natural and probable consequences doctrine based on his admission in the Tahl form that he "unlawfully &with malice, aided &abetted the attempted killing of" the victim. Because he was an aider and abettor and acted with actual malice, defendant harbored the requisite intent to kill. Defendant now appeals.
II
DISCUSSION
General Principles and Standard of Review
"An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor could also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). [Citation.] Liability for intentional, target offenses is known as 'direct' aider and abettor liability; liability for unintentional, nontarget offenses is known as the '"'natural and probable consequences' doctrine."'" (People v. Pacheco (2022) 76 Cal.App.5th 118, 123, review granted May 18, 2022, S274102 (Pacheco).)
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2-4)], 'to amend . . . 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).) "Senate Bill No. 1437 . . . substantially modified the law relating to vicarious liability for murder by eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder ...." (People v. Lopez (2022) 78 Cal.App.5th 1, 11.)
As amended, section 189, subdivision (e), states: "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. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life ...."
Although the natural and probable consequences theory is no longer an option to convict an aider and abettor for murder or attempted murder, he or she can still be convicted as a direct aider and abettor. (§§ 188, 189.) To do so, "the prosecution must prove the person who is not the actual killer 'engaged in the requisite acts and had the requisite intent' to aid and abet the target crime of murder. [Citation.] A direct aider and abettor's 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.'" (Pacheco, supra, 76 Cal.App.5th at p. 124.)
In addition to changing the substantive law of murder, Senate Bill No. 1437 also created former section 1170.95, which gave those convicted of first or second degree murder the right to petition for resentencing under certain circumstances. Effective January 1, 2022, the Legislature amended former section 1170.95 (now known as section 1172.6) to include convictions for attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 2; § 1172.6, subd. (a).)
The court evaluates petitions under section 1172.6 to determine if the petition makes a prima facie showing that relief is available, and if so, it issues an order to show cause (OSC). At the prima facie stage, the bar was "'intentionally and correctly set very low'" (Lewis, supra, 11 Cal.5th at p. 972), but it is not nonexistent. The court may use the record of conviction to determine if the defendant is disqualified from relief under the statute as a matter of law. (Id. at pp. 970-971.) This prima facie review allows "the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) The court's review, however, "is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963.) If the court finds the petition meets the prima facie requirements, it issues an OSC and an evidentiary hearing is held after further briefing. (§ 1172.6, subd. (c).)
We apply the de novo standard of review to the trial court's determination that defendant did not qualify for relief as a matter of law. (Pacheco, supra, 76 Cal.App.5th at p. 123.)
The Record of Conviction
The record in this case, because it was based on a plea bargain, is limited. But it is not nonexistent. As the court held in Lewis, "[t]he record of conviction will necessarily inform" the prima facie inquiry as a means "to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) A defendant's admissions in entering a guilty plea "pursuant to a negotiated plea" are not "'stray comment[s]'"; to the contrary, they are binding and part of the record of conviction. (People v. Romero (2022) 80 Cal.App.5th 145, 153.)
Defendant Was Barred from Relief
Defendant offers two arguments in support of his contention that the trial court erred. First, he contends the court should not have found him ineligible for relief at the prima facie stage because the factual basis for his plea did not preclude the possibility that he pleaded guilty under the natural and probable consequences doctrine. Second, he argues the trial court applied the wrong standard. He is wrong on both counts.
First, the factual basis for his plea eliminated any possibility that defendant pleaded guilty under the natural and probable consequences doctrine. Defendant's statements did not indicate culpability for an unintentional and nontarget offense. His statement in the Tahl form admitted that he, "unlawfully &with malice, aided &abetted the attempted killing of" the victim. This is inconsistent with the natural and probably consequences doctrine, where an aider and abettor need not personally possess malice to be convicted of murder. (People v. Gentile (2020) 10 Cal.5th 830, 847.)
"'An aider and abettor must do something and have a certain mental state.'" (Pacheco, supra, 76 Cal.App.5th at p. 127.) "'Thus, proof of [direct] aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea- knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime.'" (Ibid.) This is exactly what defendant's statements in the Tahl form admitted. We further reject defendant's claim that the factual basis was too vague to establish direct aider and abettor liability.
The cases defendant cites to the contrary are inapposite. In People v. Rivera (2021) 62 Cal.App.5th 217, 223, the defendant pleaded no contest and stipulated to grand jury transcripts as the factual basis for a plea bargain. The defendant in his plea agreement "made no admissions related to the murder other than pleading no contest to the count as charged." (Id. at p. 234.) Because there was "no basis on which to infer that Rivera admitted to acting with actual malice," he was not categorically barred at the prima facie stage from resentencing relief. (Id. at p. 235.)
In People v. Eynon (2021) 68 Cal.App.5th 967, the other case upon which defendant relies, the defendant's factual basis included statements such as "'I agree that I did the things that are stated in the charges that I am admitting'" and "'this was a first-degree murder by virtue of being a felony murder; that being murder that occurred during the commission of a robbery.'" (Id. at pp. 971-972.) The generic nature of the charges combined with the vague factual admissions did not preclude a conviction based on either natural and probable consequences or felony murder, and therefore the defendant was not precluded from eligibility for relief at the prima facie stage. (Id. at p. 979.) The defendant's admissions established only "that the charged murder took place and that he committed an [unspecified] act with the necessary intent to render him liable for that murder under then-existing law." (Id. at p. 978.) That is not the case here, where the factual basis establishes both defendant's act (he "aided &abetted the attempted killing of Eduardo Curiel") and his mental state "with malice."
As to the claim that the trial court applied the wrong standard, defendant contends the court committed reversible error because the written order mentioned that the natural and probable consequences doctrine had been abrogated before defendant's conviction. "At the time of Petitioner's guilty plea he could not have been liable for murder under a natural and probable consequences doctrine since the law, SB 1437, was already in effect and had already altered murder liability under that theory." This is a correct statement. The substantive law of murder had already been changed by the time defendant was convicted in May 2019. What had not been changed was the ability for those convicted of attempted murder to petition for resentencing under former section 1170.95. In any event, this reference in the court's order is ultimately irrelevant. We review the court's ruling, not its reasoning, and uphold it if it is correct on any ground. (People v. Camacho (2022) 14 Cal.5th 77, 123.) As discussed above, the facts stated in the Tahl form were sufficient to preclude relief.
Further, the record does not support that the court engaged in improper factfinding or weighing of the evidence. Indeed, one wonders how that would even be possible given that all of the evidence before the court was the factual basis for the plea recited in the Tahl form. That is the evidence upon which the court relied, and that is clear from the record: "[T]he Tahl form says . . . that he aided and abetted the attempted killing, not some other act. [¶] And I'm also persuaded by the fact that aiding and abetting requires that specific intent to share the intent of the actual killer in this case. [¶] . . . But I['ve] got to say[,] I think that the language of the Tahl form is sufficient .... What he needs to do is make a prima facie showing in order to get the order to show cause. [¶] So the court is going to find that there has not yet been a prima facie showing, and I'm going to deny the request for an order to show cause."
We find no error.
III
DISPOSITION
The court's order denying defendant's petition is affirmed.
WE CONCUR: GOETHALS, J. MOTOIKE, J.