Opinion
G062020
09-07-2023
THE PEOPLE, Plaintiff and Respondent, v. ERIK ANTONIO GALLEGOS, Defendant and Appellant.
John L. Staley, 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, A. Natasha Cortina, Lynne G. McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 99CF1231 Lance P. Jensen, Judge.
John L. Staley, 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, A. Natasha Cortina, Lynne G. McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Erik Antonio Gallegos appeals from a postjudgment order after the trial court summarily denied his petition for resentencing pursuant to Penal Code section 1172.6. Gallegos argues the court erred because the jury instructions permitted the jury to convict him of second degree murder based on imputed malice. We disagree and affirm the postjudgment order.
Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
A complete recitation of the facts can be found in our prior nonpublished opinion People v. Gallegos (Sept. 14, 2004, G032015) (Gallegos). The sole issue is whether the trial court erred when it found Gallegos ineligible for resentencing. We include only the facts relevant to address the limited issue on appeal.
Gallegos drove Eric Ritchie to Terrence Ragland's house to collect a drug debt. Ritchie shot Ragland to death. At trial on a single charge of murder, the court instructed the jury on aiding and abetting (CALJIC Nos. 3.01, 3.10, and 3.14) and second degree murder (CALJIC Nos. 8.10, 8.11, and 8.31). The court did not instruct the jury on felony murder or the natural and probable consequences doctrine.
Ritchie was tried separately. (Gallegos, supra, G032015.)
The jury convicted Gallegos of second degree murder (§ 187, subd. (a)), and found true an arming enhancement (§ 12022, subd. (a)(1)). The trial court sentenced Gallegos to prison for 16 years to life. We affirmed. (Gallegos, supra, G032015.)
Gallegos filed a petition for resentencing pursuant to section 1172.6. The court summarily denied the petition because the jury had not been instructed on felony murder or the natural and probable consequences doctrine. We affirmed. (People v. Gallegos (Aug. 5, 2020, G057647) [nonpub. opn.].)
After new legislation further clarifying the substantive definition of murder, Gallegos filed another petition for resentencing pursuant to section 1172.6. Following the appointment of counsel and a hearing, the trial court summarily denied the petition because the jury had not been instructed on felony murder, the natural and probable consequences doctrine, or any other theory permitting the imputation of malice.
The court concluded collateral estoppel did not prohibit consideration of the second petition because of a change in law-Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The Attorney General does not raise collateral estoppel on appeal.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony-murder rule. (Lewis, supra, 11 Cal.5th at pp. 957, 959.) Under sections 188 and 189, as amended, murder liability can no longer be "imposed on a person who [was] not the actual killer," who "did not act with the intent to kill," or who "was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6, which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Stats. 2018, ch. 1015, § 4, former § 1172.6, subd. (a).) SB 775, effective January 1, 2022, expanded this rule to defendants convicted of murder under a theory in which malice is imputed to any person based solely on that person's participation in a crime. (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 2; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
A section 1172.6 petition is required to make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.) In Lewis, our Supreme Court held, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).)
Here, the trial court did not instruct the jury on felony murder or the natural and probable consequences doctrine. That would normally end our inquiry. But Gallegos presents a new gloss on his argument. Relying primarily on People v. Langi (2022) 73 Cal.App.5th 972 (Langi), he asserts CALJIC Nos. 3.01 and 8.31 allowed the jury to convict him of second degree murder based on imputed malice. We disagree.
CALJIC No. 3.01 provided as follows: "A person aids and abets the commission of a crime when he or she, [¶] 1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] 3. By act or advice aids, promotes, encourages or instigates the commission of the crime."
CALJIC No. 8.31 stated as follows: "Murder of the second degree is also the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being."
Gallegos relies on these two instructions, and Langi, to contend nothing in these instructions required the jury to find he knew Ritchie intended to commit a life endangering act and he intended to aid Ritchie in committing that act. Another instruction required the jury to find he shared Ritchie's intent.
CALJIC No. 3.14 instructed the jury as follows: "Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal. Thus a person who assents to, or aids, or assists in, the commission of a crime without that knowledge and without that intent or purpose is not aiding or abetting the commission of the crime."
Although CALJIC No. 3.14 is framed in the negative, it explains that conduct alone, unaccompanied by the requisite mental state of both knowledge of the criminal purpose and intent to promote or facilitate that crime, is insufficient to establish criminal liability for aiding and abetting. Based on the charged offense, murder, and this instruction, the jury was required to find, and found, Gallegos was aware of Ritchie's purpose or intent to commit an act that was naturally dangerous to human life with knowledge of and conscious disregard for the danger posed by that act. (People v. Beeman (1984) 35 Cal.3d 547, 560-561 [describing when aider and abettor shares perpetrator's criminal intent]; People v. Burns (1987) 196 Cal.App.3d 1440, 1450-1451 [CALJIC No. 3.14 instructed aider and abettor must share perpetrator's intent to kill].)
Gallegos's reliance on Langi, supra, 73 Cal.App.5th 972, is misplaced. In that case, the court reversed the summary denial of petitioner's section 1172.6 petition and remanded for an evidentiary hearing because CALJIC Nos. 3.01 and 8.31 did not establish he possessed the requisite intent. (Langi, supra, 73 Cal.App.5th at pp. 981-982, 984.) In that case, though, the trial court did not instruct the jury with CALJIC No. 3.14. Gallegos speculates it could have, but the opinion does not mention it. We cannot assume the court did in that case. (People v. Partida (2005) 37 Cal.4th 428, 438, fn. 4 [cases not authority for propositions not considered].) He also asserts CALJIC No. 3.14 generically refers to the commission of a crime and not specifically to the commission of murder. Again, the only crime charged was murder.
Gallegos notes Langi built on the holding of People v. Powell (2021) 63 Cal.App.5th 689, 714, where the court held CALCRIM No. 401's aiding and abetting instruction was not well suited for the crime of implied malice murder.
Here, the trial court correctly denied Gallegos's petition because the record establishes he was convicted on a theory of murder that remains valid notwithstanding SB 1437's amendments to sections 188 and 189. (People v. Verdugo (2020) 44 Cal.App.5th 320, 330, disapproved on another ground by Lewis, supra, 11 Cal.5th at pp. 961-963.) Specifically, the jury instructions establish Gallegos was not convicted under any theory of imputed liability. The court did not err by summarily denying Gallegos's petition without an evidentiary hearing.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.