MARTINEZPetitioner’s Petition for ReviewCal.June 16, 2015S226596 3G IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE ) Case No. ) ) Related Appeal Case Nos. HECTOR MARTINEZ, ) D066705, D058929 ) On Habeas Corpus. ) Superior Court Case No. ) SCD224457 ) FROM THE JUDGMENT OF THE SUPERIOR COURT FOR THE COUNTY OF SAN DIEGO, THE HONORABLE ROBERTO’NEILL, JUDGE PRESIDING PETITION FOR REVIEW SUPREME COURT FILED JUN 16 2015 Frank A. McGuire Clerk MARILEE MARSHALL Deout Attorney at Law epuly State Bar No. 101046 MARILEE MARSHALL & ASSOCIATES 595 E. Colorado Blvd., Suite 324 Pasadena, CA 91101 (626) 564-1136 Attorney for Petitioner, Hector Martinez TABLE OF CONTENTS TABLE OF AUTHORITIES ......-0cccccccccccccceeveeee voeeee. ii PETITION FOR REVIEW .......... 0... c cece eee cette ene eees ] QUESTION PRESENTED..........0 20000 c cece ence tne nee eee 1 NECESSITY FOR REVIEW ........ 0.02: cece eect e een ene 2 PROCEDURAL STATEMENT. | ee cnet eee ene e eee e neces 3 FACTUAL STATEMENT ......bbb bbbb ebb bb vet eebteecee, 6 A. Prosecution Evidence 0.0... ccc eee ce eee nes 6 B. Defense Evidence ...............0.. ete teen eee 14 ARGUMENT: PURSUANT TO THIS COURT’S RECENT DECISION IN CHIU, PETITIONER WAS WRONGFULLY CONVICTED OF FIRST DEGREE MURDER UNDER A LEGALLY ERRONEOUS NATURAL AND PROBABLE CONSEQUENCES ALTERNATIVE THEORYOF LIABILITY AND HIS FIRST DEGREE MURDER CONVICTION SHOULD NOW BESET ASIDE 1...cceee ence een e nese nenenes 15 A. Introduction ......... 02. cece eee cece eee eae 15 B. Chiu Holds That No One May Be Convicted Of First Degree Murder Under A Natural And Probable Consequences Theory Of Liability... 0.0.0.eee 18 C. Chiu Requires Reversal OfPetitioner’s Conviction ..... 1. 21 CONCLUSION .... 0... ccc cece nett nent nee enas 23 CERTIFICATE OF COMPLIANCE .... 1.00... cece eee ee ees 24 TABLE OF AUTHORITIES | FEDERAL CASES Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]...eee 23 Duncan v. Henry (1995) 513 U.S. 364 [115 S.Ct. 887, 130 L.Ed.2d 865] ccccssssscccsssceeee 2 Fiore v. White (2001) 531 U.S. 225 [121 S.Ct. 712, 148 L.Ed.2d 629] oes 22 Schirro v. Summerlin (2004) 542 U.S. 348 [124 S.Ct. 2519, 159 L.Ed.2d 442] ow. 23 STATE CASES People v. Beeman (1984) 35 Cal.3d 547 w.ccscccssccsseeceessseeeeseecserseaeesseseeaeeesaeesessseeeesseoneonee 18 People v. Chiu (2014) 59 Cal.4th 155 vesccscssscssscesssssseee sacsssssssssuseceseeseseesesvenseseseceeee passim People v. Green (1970) 27 Cal.3d 1 cccccessscsssesssssessseee sesssssusesssesssuesscesesssseasasenneseseeenteee 21 People v. Guiton (1993) 4 Cal.4th 1116 w.ccccccccccssssesssssscssesssscescescesesssessessecseseseeeseseeaeees 21 People v. Medina (2009) 46 Cal.4th 913 oo.ccescesesseessecesesseseeeeeesaeceeseessneesseeeseaes 18 People v. Prettyman (1996) 14 Cal.4th 248 oo... ccc cecsesceseeseseeeessseeeeeeesereeseseeneseneeeessees 18 STATE STATUTES Pen. Code § 31 weeeceeeeeeees sesecssscssscsssssvessssssssssesesssesusssssssscsvsssscssusesssuesesessvceavesseense 5 Pen. Code § 187. cccccssccssscssesesssscsesssssssscscssscssssessessesssessssesessessscasscasseasseseesseesacsesseseseasees 3, 20 Pen. Code § 245. oii cccccccccccsssessseesscseeensecesneeeseaessseesssevseessasessseeseeneeseeseeeseeseeseeeeneesaeeseseaeea 3 Pern. Code § 186.22 ooeecccccccccsssscssessecssnnecessneeceseesneesseseeneeecessseeseeeseaceseeceaeesesesesteeeeeseeenes 4 Pen. Code § 12022. ooo. cceccecsccsssssccsecessecssecesscceceeseecseeeeeessaeeesseeeessacersesessseesteessaceneneeeenees 3 Pern. Code § 12022.53. occ cescsccssscssssesseeceerseescessesecenseeesssecsaeeneseeseesaeesesecassaeasseteeeaseneaaeaeses 3 Pen. Code § 1181 wii cecccccccsccsssseseesecsseecsncecsseeeesseeceeceesensaeeeseecessseeesseesseseseseseseeseatessntes 4 ii Welf. & Inst. Code, § 707 woeeceececssecsssesseeeseees vsssesutsacseusueseceucsucnessenssussussuesissueansasaveseneseens 3 MISCELLANEOUS CALCRIM NO. 403 cccccscosescssssesesucssseccssessessussrsssecsstesessecsssecsasessusssessaeesscesseeess cccssuseuesseceee 20 ill IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE ) Case No. | ) ) Related Appeal Case Nos. HECTOR MARTINEZ, ) D066705, D058929 ) On Habeas Corpus. ) Superior Court Case No. ) SCD224457 ) PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner, HECTOR MARTINEZ, respectfully petitionsthis Honorable Court, pursuant to Rule 8.500 of the California Rules of Court, to grant review in the aboveentitled case following an order by the Court of Appeal, Second Appellate District, Division One,filed May 15, 2015, denying his Petition for Writ of Habeas Corpus. A copyofthe orderis attached hereto as an appendix. QUESTION PRESENTED Whether, pursuantto this Court’s decision in People v. Chiu (2014) 59 Cal.4th 155, petitioner was wrongfully convicted offirst degree murder undera legally erroneous natural and probable consequencesalternative theory ofliability. NECESSITY FOR REVIEW! Petitioner was convicted offirst degree murderas an aider and abetter. In his direct appeal, case number D058929, petitioner argued that his conviction for premeditated murder should be reversed becausethe jury wasnotinstructed to determine that premeditated murder was a reasonably foreseeable consequenceof the target crimes of assault and battery. The Court ofAppeal affirmed petitioner’s conviction and on May 22, 2013, this Court denied Petitioner’s Petition for Review without prejudice to relief whichpetitioner might be entitled to after the court decided People v. Chiu, supra, 59 Cal.4th 155. On June 2, 2014, this Court issued an opinion in Chiu. Petitioner filed a motion to recall the remittitur and reinstate his appeal, which the Court of Appeal denied on September 5, 2014. Petitioner then filed a petition for writ of habeas corpusin the Court of Appeal The Court ofAppeal concludesthat sufficient evidence supports Petitioner’s first degree murder conviction. (Appendix at 8.) However, Chiu requires more than just sufficient evidence. Instead, Chiu mandates that a defendant’s “first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury basedits verdict on the legally valid theory that the defendant directly aided and abetting the premeditated murder.” (People v. Chiu, supra, 59 Cal.4th at p. 167.) While the Court of Appeal concludes that there was sufficient evidence underthe direct aiding and abetting theory, this does not prove beyond a reasonable doubtthat the jury basedits verdict on direct aiding and abetting rather than the natural and probable cause theory. In other words, while the Court of ' Petitioner also notes that in order to present the federal constitutional claimsin the federal court, in the event relief is not granted in the instant court, each of the claims must be presented in a Petition for Review to this Court. (Duncan v. Henry (1995) 513 U.S. 364, 365-366 [115 S.Ct. 887, 130 L.Ed.2d 865].) Appealcites to evidence suggesting that the jury could have found petitioner guilty as, a direct aider and abettor, Chiu requires a conclusion beyond a reasonable doubtthat the jury did base its finding upon that theory. Review is necessary in orderto clarify this standard. Here, there is nothing in the record to demonstrate that the jury unanimously found petitioner guilty as, a direct aider and abettor, especially given the prosecution’s argumentthat they did not all need to agree on a theory. Petitioner maintains that as there is nothing in the recordto affirmatively indicate, beyond a reasonable doubt, which theory the jury relied upon, reversal of petitioner’s first degree murder conviction is required and the . prosecution musteither accept a reduction of the conviction orset the | matter for trial. (People v. Chiu, supra, 59 Cal.4th at pp. 159, 167-168, 176.) PROCEDURAL STATEMENT Petitioner and co-defendant Darren Martinez (norelation to petitioner), were charged by information filed on April 20, 2010, with the murder of Guillermo “Willie” Esparza (Pen. Code § 187, subd. (a); Count I), assault of Esparza with a semi-automatic firearm (Pen. Code § 245, subd. (b); CountII), and assault of Jimmy Parker by meanslikely to produce great bodily injury (Pen. Code § 245, subd. (a)(1); Count II).” (1 C.T. 1-6.) It was further alleged petitioner was a principal in the murder of Esparza and, during the commission of the murder,at least one principal personally used a firearm, proximately causing great bodily injury and death (Pen. Code § 12022.53, subds. (d), (e)(1)). It was also alleged, with respect to CountI, that petitioner wasvicariously armed with a firearm (Pen. Code § 12022, subd. (a)(1)). (1 C.T. 1-6.) Finally, it was alleged petitioner was 16 years ? Additional charges were alleged against Darren Martinez. 3 or older when he committed Counts I through III (Welf. & Inst. Code, § 707, subd. (d)(1)) and that he committed these offenses for the benefit of a criminal street gang. (Pen. Code §186.22, subd. (b)(1)).’ (1 C.T.1-6.) On November17, 2010, a jury found petitioner and Darren Martinez guilty as chargedofall counts andallegations. (11 R.T. 1787-1789, 1790-1795; 2 C.T. 360-367; 459, 462-465.) . On January 7, 2011, the court denied petitioner’s motion to modify the jury’s verdictof first degree murder pursuant toPenal Code section 1181, subdivision (6). (11 R.T. 1802-1803; 2 C.T. 371-379.) Petitioner was then sentenced to an indeterminate term of 50 years to life, plus six years as follows: 25 years to life for premeditated murder (CountI), a consecutive term of 25 years to life for the attendant use of gun causing great bodily injury or death, a consecutive three years for the assault on Parker (CountIII), plus three years for the gang allegation. Execution of sentence on CountII was stayed.‘ (11 R.T. 1828.) Petitioner filed his notice of appeal on January 7, 2011. (2 C.T. 396.) On July 21, 2011, petitioner filed an opening brief, in case number D058929, arguing: (1) his conviction for premeditated murder must be reversed becausethe court failed to adequately instruct the jury on the natural and probable consequencesdoctrine ofliability for aiders and abettors; (2) there was insufficient evidence to support his conviction of assault of Jimmy Parker by meansof force likely to produce great bodily injury in Count3; (3) the abstract ofjudgment mustbe correctedto reflect the court’s oral pronouncement ofjudgment; and(4) petitioner joined in his 3 Petitioner’s date of birth is June 29, 1992. He was 17 yearsold at the time of the shooting. (2 C.T. 380.) ‘ Darren Martinez was sentenced to an aggregate sentence of 50 years to life, plus 14 years. (LIRT 1820-1822.) 4 co-defendant’s arguments. On March5, 2013, the court of appeal issued an opinion affirming petitioner’s convictions with directions to correct the abstract ofjudgment. Petitioner filed a petition for review, in case number §209709, on April 17, 2013, requesting that the Court review: (1) whether - petitioner’s conviction for premeditated murder should be reversed because the jury was notinstructed to determine that premeditated murder(as opposed to second degree murder) was a reasonably foreseeable consequence ofthe target crimes of assault and battery; and (2) whether there was insufficient evidence to support petitioner’s conviction for the assault in Count III. On May 22, 2013, the this Court denied the petition for review without prejudice to relief which petitioner might be entitled to after - the court decided People v. Chiu. On May 23, 2013, a remittitur was issued. On July 28, 2014,petitionerfiled a motionto recall the remittitur and reinstate the appeal in the Court of Appeal arguing that his conviction for first degree murder was abrogated bythis Court in Chiu. The attorney general filed an opposition arguing that petitioner had notset forth good cause for extraordinary relief and that motions based on claimsofjudicial error cannotbe the basis for recalling the remittitur. On September 5, 2014, the Court of Appeal denied the motion to recall the remittitur. On August 12, 2014, petitionerfiled a petition for writ of habeas corpus in the United States District Court, Southern District, case number 3:14-cv-01890-DMS-KSC,arguing:(1) the jury was not instructed it had to determine that premeditated murder was a reasonably foreseeable consequenceofthe target crimes of assault and battery andtheinstructional error removed an element required to convictpetitioneroffirst degree murderin violation of his Fifth Amendmentright to due process and his Sixth Amendmentright to a jury trial; (2) the evidence was insufficient to support a conviction for assault by meansof force likely to cause great 5 bodily injury; and (3) Penal Codesection 31 does not permit the conviction of an aider and abettor for first degree premeditated murder underthe natural and probable consequence doctrine and such a conviction violated his Fourteenth Amendmentright to due process and his Sixth Amendment right to a jury trial on the element of premeditation. On the sameday, petitioneralso filed a notice of an unexhausted claim and requestto hold proceeding in abeyance, noting that Ground Three had not been analyzed under Chiu. Petitioner’s request for a stay is currently pending. FACTUAL STATEMENT A. Prosecution Evidence 1. Shooting Incident on August 21, 2009 On August20, 2009, Guillermo “Willie” Esparza (18 years old) and Jimmy Parker (17 years old) were hanging out at David and Chelly Elias’s house watching movies and playing beer games. The Elias residence was located in the Paradise Hills neighborhood. (2 R.T. 155-157, 218-220.) Around 1:30 a.m., Parker had to leave and Esparza offered to walk home with him. (2 R.T. 157, 221.) The two boysstarted out on backresidential streets because Parker was on probation and it was past curfew.(2 R.T. 223.) At the intersection of Woodman and Paradise Valley Road, they cut behind the McDonald’s and continued east on Paradise Valley towards Briarwood. (2R.T. 224.) About 2:00 a.m., Stella Revelez Garcia (“Revelez”) was driving her son David Garcia (14 yrs. old), co-defendant Darren Martinez (known as “Boo”), Darren’scousin Janie Sierra, and petitioner(knownas “Kicks”) from her house in the Paradise Hills area to Jack in the Box, which was about two miles away. There was no food in the house and everyone was hungry after an eveningat the beach. (3 R.T. 530, 532-533; 536-536, 4 R.T. 666, 669, 673; 5 R.T. 795.) Darren, who wasjust short of his 21st birthday and had recently begun a romantic relationship with the older Revelez, was riding in the front passenger seat of the Tahoe. Petitioner was in the right rear passenger seat, David was in the middle, and Janie was behind Revelez. (3 R.T. 534, 537-538, 4 R.T. 668-669.) At the time, petitioner was wearing a white “slingshot” or tank top. Darren was dressed in a baggy shirt. One of them was wearing a light-colored Chargershat. (5 R.T. 814-815.) After they ordered foodin the drive-thru at Jack in the Box, Revelez saw the gunsitting in Darren’s lap, although she didn’t recall talking to Darren aboutit at that point. (5 R.T. 797, 874.) Earlier, Revelez had seen Darren with a revolver in her bedroom andtold him to get it out of the house. Petitioner may or may not have been in Revelez’s room at the time, but she never saw him with that gun. (4 R.T. 784-785, 786; 5 R.T. 867.) Darren asked to borrow hertruck so thathe could “take it back” and,at some point, Darren and petitioner took the Tahoeandleft the house for a while. (4 R.T. 673, 782-783, 785.) According to David, Darrenleft the house at around 11:00 p.m. or midnight, but it was to go pick up petitioner. (4R.T. 610,641.) David testified he never saw Darrenor petitioner with a gun at his houseor in the car. (4 R.T. 552, 611, 616.) As Revelez was driving back home from Jack in the Box (westbound on Paradise Valley Road), Darren told Revelez he forgot something and asked her to turn around and gobackto the store. (3 R.T. 538, 617; 5 R.T. 798.) Revelez made a u-turn near Woodmanandstarted driving back east. (5 R.T. 800.) It was dark on Paradise Valley Road and neither Revelez nor David saw any pedestrians. (4 R.T. 624; 5 R.T. 801.) When Revelez came up to the traffic light at Briarwood, Darren said he neededto go to the bathroom. (4 R.T. 539, 622.) David testified he saw Darren andpetitioner get out of the truck and go pee, but then acknowledgedthathe did not actually see where they went. He just assumedthat’s whatthey did. (4 R.T. 649-650, 662.) According to Revelez, she saw Darren run westbound down Paradise Valley and petitioner followed. Neither Darren norpetitioner said anything before theyjumped out. (3 R.T. 539, 542, 545; 5 R.T. 802-803.) Meanwhile, Esparza and Parker had crossed overto the sidewalk on the north side of Paradise Valley Road (2 R.T. 226) and were approaching Briarwood when two Hispanic males*® came running towards them from the comer(2 R.T. 228, 230, 232). One male was 18-22 years old, 5'9", stocky, and dressed in a grey tank top and dark jeans. The other male was younger — 16 to 20 years old — smaller, and wearing a sweater and a Charger’s hat. (2 R.T. 235-236, 283.) Parker and Esparzainitially stopped when they saw. the two approaching — they were about 30 feet away — and they waited to see what the two were going to do. Parker then started walking forward. (2 R.T. 234, 237.) The guy in the tank top spoke up and asked, “where are you from?” Esparza didn’t respond, but Parker recognized this guy was “looking for trouble.” He replied that he was from S.F.A.° and did not “bang.” (2 R.T. 228, 241-242, 249, 268.) The guy in the tank top then swung at Parker who swung backas he sidesteppedinto thestreet. Meanwhile, Parker heard the guy in the Charger’s hat say “this is Lomas” and gunshots followed. (2 R:T. 228-229, 240, 244, 249, 269.) Parker and the guy in the tank top froze at that sound. (2 R.T. 244, 275.) Parker looked overhis left shoulder and saw Esparzaonthe street, about 20 feet 5 Parker was unable to identify petitioner or Darren Martinezattrial but distinguished between the two by describing them asthe “tank top” guy and the “shooter.” (2 R.T. 258, 289-290.) 6 §.F.A., which stands for “Sickest Fools Around”or “Still Fucking Around,” is recognized as a tagging crew from Logan and nota criminalstreet gang. (2 R.T. 242-243, 251; 8 R.T. 1351-1352.) 8 away, with the shooter looking downat him. (2 R.T. 228-229, 240-241, 245-247, 249, 269, 285.) A split secondlater, the guy in the tank top took another swing, nicking Parker on the backleft side of his head. (2 R.T. 244, 275, 281.) Meanwhile, there were two more gunshots. Parker was yelling “what the fuck” and ran towards Esparza. He was expecting fist fight but never thought this would happen. (2 R.T. 250, 266-267.) The shooter started running down Paradise Valley Road and then other guy started running. (2 R.T. 253, 257.) According to Parker, from the momentthe first guy took a swing at him, things were happening simultaneously and everything happenedfast. (2 R.T. 235, 246, 249-250, 253.) When Parker got to Esparza, his eyes were rolled back, he was choking on his blood and unresponsive. Parker cradled him in his lap trying to figure out what to do. (2 R.T. 254-255.) Minutes later, Parker flagged downSherri Zulueta who wasdriving west on Paradise Valley Road and asked for help. (2 R.T. 171-173, 175-176, 192.) Zulueta’s friend, Lisa Buaghgot out and helped Parkertalk to the 911 dispatcher. (2 R.T. 192-193; 1 C.T. 62-67.) Meanwhile, Rick Masias had already stopped in his green Chevy Tahoeandhis friend, Alfred Lopez, got out to tell Baugh that he had called the police. (2 R.T. 200, 209, 294, 297, 302.) Neither Zulueta, Baugh, Masias nor Lopez heard gunfire, saw anybody running from the scene, or noticed another Tahoelike his in the vicinity. (2 R.T. 188, 200, 300, 310-311, 318.) Revelez, who had been waiting for the traffic light to turn green after Darren and petitioner jumpedout ofthe truck, heard three or four popping noises. She turned right onto Briarwood and then made a u-turn so she could go back west on Paradise Valley Road. (3 R.T. 539-626; 5 R.T. 804-806, 807.) Whenthelight turned green, Revelez turned left on Paradise Valley. She started to pull over to the side of the road and saw “one kid holding another one.” Darren came running up to her truck from the southbound lane on Paradise Valley, but Revelez took off because Davidstarted “spazzing” that he had “seen [a kid] shot.” (3 R.T. 547; 5 R.T. 807, 809, 811-812, 921-922.) Revelez did not see petitioner anywhere in the area. (5 R.T. 811, 814.) David, who heard a “pop, pop, pop”all in a row, leaned over towards the right passenger window as his mom drove past and saw person onhis kneesholding his friend. (4 R.T. 627-628, 651, 663.) David did not recall Darren coming up to the car or his mom refusing to let him in. (4 RT 630.) Once home, Revelez ignored her ringing phones.- Darren did not have a cell phone but Revelez knew Darren wastrying to call her because he wasusing petitioner’s cell phone that night and she knew petitioner’s phone number. (5 R.T. 813, 816-817, 819.) She finally answered the phone whenshe recognized that Darren’s brother, Raul, was calling. (5 R.T. 820.) Raul convinced Revelez to pick him up so they could go find Darren. Revelez and Raul located Darren waiting at the car wash behind the Navy housing, abouta half-mile from the intersection of Paradise Valley Road and Briarwood. (5 R.T. 823, 924.) They drove back to Revelez’s house where Darren wrapped the gun andhis clothing in a towel and put them in Raul’s car, which was being stored in Revelez’s garage. (5 R.T. 825-827.) Around 9:00 a.m., Revelez drove Darren and Raul to Chula Vista. She did not see Darren for a couple days. (5 R.T. 829.) At the scene of the shooting, responding San Diego police recovered four cartridge casings and three bullets from around Esparza’s body. A fourth bullet was recovered later at the autopsy. (3 R.T. 424-425, 427.) Three divots, consistent with bullet impact, were found in the street under and around Eparza’s body. (3 R.T. 390-391; 472-473.) Bloody footprints 10 leading from Esparza’s body were found to match the bottom of Parker’s sneakers. (3 R.T. 385-387.) Bill Loznycky, the police department’s forensics analyst, determined the recovered cartridge casings were fired from the same semiautomatic .380 caliber firearm. (3 R.T. 439, 443.) It could not be determinedifthe bullets, which were .380 caliber, were all shot from the same weapon but they reflected severe impact damage consistent with havinghit a firm or hard surface such as asphalt or bone. (3 R.T. 444, 448.) Loznycky explained that a .380 caliber bullet would leave a divotif it hit asphalt. The particular size of the resulting divot would depend onthe type of asphalt and the angle of the shot. (3 R.T. 445.) Evidence of a divot did not necessarily mean a shooting victim was lying down whenshot. (3 R.T. 451.) Deputy Medical Examiner Steven Campmanidentified the cause of death as multiple gunshot wounds and the manner of death as homicide. (3 R.T. 473, 475.) Campmandescribed two woundstotheright thigh, one to the right shoulder and oneto theleft shoulder. (3 R.T. 470.) The shotto the left shoulder was identified as the most critical because it went into the chest, through the left lung, aorta, and right lung, before endingin the right arm. (3 R.T. 498-499, 504, 517.) According to Campbell, Esparza would have died from this particular injury within minutes. (3 R.T. 504.) The other three shots, which all entered on the back right side of the body, followed in some undetermined order and were consistent with a person having turned his body in a defensive way. (3 R.T. 508-509, 517-518, 521.) 2. Huberto Taco Shop Assaults On September 1, 2009, Revelez drove Darren and a few others to | and from Herberto’s Taco Shop at 25th and Broadway. (4 R.T. 571-574.) Jose Juarez and two friends were eating there when Darren andthe others 11 walked in, started swearing and arguing, and attempted to goad Juarez and | his friends into a fight. (4 R.T. 711-713; 6 R.T. 1031, 1035-1036; 8 R.T. 1303-1304.) Darren Martinez was subsequently identified as the person whopulled out a knife during the ensuing fight, stabbed Juarez in the arm, and exclaimed,“that's why I killed your homie.” (6 R.T. 1007-1008, 1045, 1126.) 3. Defendants’ Arrests Petitioner was taken into custody by Officer James Dickinson ofthe San Diego Police Department on September18, 2009, at the Calexico border from Customs and Border Protection, an intermediary between Mexican and U.S. authorities. (6 R.T. 1156; 3 R.T. 457-458; 2 C.T. 386.) Atprocessing,petitioner’s height was recordedas 5'5"and his weightat 115 pounds. (6 R.T. 1157-1159.) The words, “FUCK”and “GSU”were tattooed on his wrists and the Roman numerals X, X, V, and I— which appearedto bestill healing — were onhis fingers. Charger bolts were tattooed on his shoulders and the word “Lomas”wasacrosshis stomach. (6 R.T. 1161-1162, 1165, 1168; 9 R.T. 1491-1492.) Darren Martinez (5'6" and 190 Ibs.) was arrested after police were led to question Revelez regarding her knowledge of the Taco Shopincident. (5 R.T. 844, 851.) At trial, Revelez admiitted to receivinga total of $33,000 in California witness relocation expenses in exchangefortestifying in this case. (5 R.T. 846.) She also admitted having made false statements on an application for benefits in 1992. (5 R.T. 847.) 4. Gang Evidence San Diego Police Detective Nestor Hernandez, the prosecution’s gang expert,testified Lomashas been a documented criminalstreet gang since 1994 although it dates back to the mid 1970's. (8 R.T. 1331, 1335.) Atthe time of the Paradise Valley Road shooting, Lomashadthirty-plus 12 members. (8 R.T. 1335.) A turf-oriented gang, Lomasclaims the geo-graphical community of Golden Hills. (8 R.T .1337, 1352.) Huberto’s Taco Shopis in Lomas gangterritory. The area of Briarwood and Paradise Valley Roadis in the rival Locos’territory. (8 R.T. 1348-1349.) S.F.A.is a tagging crew, rather than a gang, that limits its criminalactivity to vandalism. (8 R.T. 1351.) | Hernandez discussed Lomas’s commonsigns and symbols,the significance of graffiti, the numbers 12, 13, and 26 (8 R.T. 1338-1339), the use of monikers (8 R.T. 1340-1341), and the manner in which individuals become Lomas members, either by being jumpedin, crimed in, or familied © in (8 R.T. 1342-1343). Hernandez discussed the expectation for Lomas members to put in work by committing crime, which can go from tagging to violent acts (8 R.T. 1345), and how members are expected to earn respect (i.e., fear) from within the gang structure, and from community members and rivals (8 R.T. 1346-1347). Hernandezlisted attempted robbery, robbery, carjacking, assault with a deadly weapon, carrying a concealed weapon, attempted murder, and murder as amongthe primary activities of Lomas. (8 R.T. 1363.) Lomas’s pattern of criminal activity included a 2006 conviction for assaulting rival gang members (8 R.T. 1365), 2004 convictions for carrying a concealed weaponand attempted robbery (8 R.T. 1368), and 2010 convictions for assault with a deadly weapon with a great bodily injury allegation (8 R.T. 1370-1371). Hernandeztestified that Lomas members generally value weapons and commonly carry weapons to demonstrate their willingnessto participate in violent crime and defend themselvesandtheir turf. (8 R.T. 1355-1356.) Lomas membersare expected to commit walk up — not drive by — shootings. (8 R.T. 1357.) Further, it’s commonto state your gang’s namebefore 13 assaulting another group. (8 R.T. 1363.) Hernandez testified that in gang culture, the question, “where are you from,” is considered an immediate challenge. (8 R.T. 1357.) There is no good wayfor recipientto answer and any reply is seen as disrespectful. (8 R.T. 1357-1358.) According to Hernandez, a memberis expected to follow through with an act of violence and a failure to do so is perceived as weak. A probable consequenceofthe issuance of a gang challengeis assault, up to and including murder. (8 R.T. 1358.) Members are expected to back up their fellow gang membersorrisk retaliation. A member with a weapon would be expectedto useit in the confrontation. (8 R.T. 1359-1360.) Hernandez acknowledged most gang crime goes unreported unless someoneis seriously injured or an independent personcalls the police. (9 R.T. 1497.) In Hernandez’s opinion, Darren Martinez was a documented Lomas memberbased on factors including the numberoffield interviews, tattoos, self-admission of Lomas membership, his moniker (“Boo”), and the facts of the current two incidents. (8 R.T. 1373-1374, 1376; 9 R.T. 1466-1469.) It was Hernandez’s opinion petitioner was a documented Lomas gang member based on evidence ofhis previous associations with other Lomas members, his moniker (“Kicks”), tattoos, photos showing petitioner throwing the Lomas handsign, and his letters signed with Lomasreferences. (9 R.T. 1479, 1481-1482.) Hernandezalso opined, in response to a hypothetical set of facts mirroring the shooting and taco shop assault, that both incidents were committed for the benefit of or in association with in a criminal street gang and promoted,further, and assisted the gang in its criminal conduct. (9 R.T. 1488-1491.) B. Defense Evidence San Diego Police officer Greg Pinarelli interviewed Jimmy Parker about 6:00 a.m. on August 21, 2009 at the shooting scene. Parker identified 14 one ofthe attackers as skinny and wearing a gray “wife beater.” The other attacker (the shooter) wastaller, chubbier, and wore a white shirt and baby blue charger’shat. (9 R.T. 1533, 1534, 1535.) The guy in the wife beater walked up to them and asked Parker where he was from. Parker answered that he did not bang, then the guy threw a swing at him. He backed up and they wentinto the street. Parker heard three shots in quick succession. He looked and saw Esparzafall to the street. Parker never said Esparza was © shot while he was on the ground. (9 R.T. 1533.) Rather, the shooter looked downat Esparza, Parker yelled at him, and the shooter took off. (9 R.T. 1534.) In an interview with David Garcia on October 13, 2009, Garcia told Pinarelli that petitioner and Darren Martinez went overto pee in the bushes by thefire station. (9 R.T. 1535, 1536.) Petitionerdid not testify in his defense attrial. ARGUMENT PURSUANTTO THIS COURT’S RECENT DECISION IN CHIU, PETITIONER WAS WRONGFULLY CONVICTED OF FIRST DEGREE MURDER UNDER A LEGALLY ERRONEOUS NATURAL AND PROBABLE CONSEQUENCES ALTERNATIVE THEORYOFLIABILITY AND HIS FIRST DEGREE MURDER CONVICTION SHOULD NOWBESET ASIDE A. Introduction It was undisputed that the person whofired all four shots was Darren Martinez and that petitioner, who was with Darren at the time ofthe shooting, engagedin a brieffist fight with Parker. As the court of appeal noted in its original opinion, in case number D058929,petitioner was the aider and abettor. The prosecution advanced twotheories:(1) petitioner directly aided and abetted Darren in committing the crime and (2) petitioner aided and abetted Darrenin the initial assault and/or battery of Esparza and Parker and that murder was a natural and probable consequence of those 15 target crimes. (See 10 R.T. 1604-1607, 1618-1652 [prosecutor’s closing argument]; see also 1 C..T. 95-97 and 9 R.T. 1565-1567 [instructions given].) During closing arguments, the prosecutor referred to petitioner and Darren as the “murder team” and argued: So as wetalk about the conceptsofliability here, they are each liable. They are each liable for murder and they are equally liable under the law. Now,there are two ways or theories by which a person aided and abets another. First is the traditional way of aiding and abetting, which we have here on the screen. Now,defendantis guilty. Hector Martinez is guilty of murder if he directly committedthe murderor if he aided and abetted. Undera traditional aiding and abetting theory, Hector Martinez - - or somebodyin the murder team, Darren, committed the crime. Andat the time the crime was committed, Hector knew that Darren was going to commit that crime, was going to commit that murder. And he intendedto aid Darren at the time. So they have a shared intent, if you will, a shared intent to kill. And,finally, for aiding and abetting a traditional theory, if you will, Hector’s words and conductdid, in fact, aid, help, facilitate, encourage Darren in committing that murder. ... The second wayto aid andabet is through a natural and probable consequence. Now,I want to have a word of note here. In orderto find the defendant Hector Martinez guilty, youall don’t have to agree on the type of aiding that Hector did, meaning that four of you can think, well, you know,I think it is a natural and [probable] consequence, aiding and abetting, and eight of you can think he directly aided and abetted. As long as all of you agree he aided and abetted, you don’t have to agree on how hedid. Now,in order to aid and abet under a natural and probable consequencetheory, basically I have to show you several 16 premeditated attempted murder undera legally erroneous natural and probable consequencesalternative theory ofliability and his conviction should now bereversed. B. Chiu Holds That No One May Be Convicted Of First Degree Murder Under A Natural And Probable Consequences Theory OfLiability Prior to the decision in Chiu, courts and practitioners throughout California assumedthat the natural and probable consequences theory of liability applied to anyone whointended toaid and abeta target crime under circumstances where the commission of another, more serious charged crime by a co-participant was an objectively foreseeable consequence. (See, e.g., People v. Medina (2009) 46 Cal.4th 913: People v. Prettyman (1996) 14 Cal.4th 248; People v. Beeman (1984) 35 Cal.3d 547.) In Chiu, this Court squarely held that as a matter ofpublic policy, an aider and abettor cannot be convictedoffirst degree murder undera natural and probable consequencestheory ofliability. (People v. Chiu, supra, 59 Cal.4th at pp. 158-159, 166-167.) The facts and procedural history in Chiu were set forth by the Court as follows: On September 29, 2003, McClatchy High School students Sarn Saeteurn and Mackison Sihabouth argued over twogirls in an instant message exchange. Saeteurn challenged _ Sihabouth to an after-school fight outside a pizzeria, Famous Pizza, the next day. Saeteurn told Sihabouth that he was going to bring his ‘homies’ with him, and threatened to shoot Sihabouth’s father if his father tried to stop the fight. Sihabouth called Simon Nim, a memberof the Hop Sing gang, for help. Defendant Bobby Chiu also learned aboutthe fight. The next day, defendant told American Legion High School student Toang Tran about the fight. Defendant asked Tran if he ‘want[ed to] see someoneget shot,’ told Tran that 18 there was goingto be a fight over a girl, andsaid his ‘friend’ would shootif his ‘friend feels pressured.’ Sihabouth showed up for the fight but left after he saw a crowd. Saeteurn did not show up for the fight because he learned that Hop Sing members plannedto be there and he believed they ‘“are crazy and they kill people.”’ Defendant and his friends, Tony Hoongand Rickie Che, went to FamousPizzathat day. McClatchy High School student Teresa Nguyen met her boyfriend, American Legion student Antonio Gonzales, outside FamousPizzathe day ofthe fight. Defendant said something to Nguyen whichshedid not hear. Defendant snickered when Nguyen asked if he was mocking her. Nguyen told defendant to ‘shut up,’ and Gonzales left a conversation he was having with another friend to see what was the matter. Gonzales and defendant exchangedfighting words, and Gonzales walked toward defendant, who gotoff the trunk of the car on which he had beensitting with Hoong and Che. As Gonzales walked toward defendant, Gonzales’s friend, Roberto Treadway, told Gonzales, ‘I got your back.’ Che and Hoong stood alongside defendant. After the groups exchanged more wordsand glared at one another, Che punched Treadway. Defendant swung at Gonzales, and Gonzales swung back. Defendant then tackled Gonzales and started hitting him while he lay on the ground. Soon,a full- scale brawl was underway, with as many as 25 people fighting. Gonzales’s cousin, Angelina Hernandez, struck defendanteight or nine times in the head with herfists, allowing Gonzalesto get off the ground and resumefighting defendant. Treadway’s cousin, Joshua Bartholomew,alsohit defendant hard in the back of the head soonafter. Bartholomewtestified that after he struck defendant, he heard defendanttell Che to ‘[g]rab the gun.’ However, ' Gonzales, who had been fighting in close contact with defendant, did not hear defendant mention a gun. Soon, Bartholomew and Treadway attempted to leave the scene because they feared the police officer assigned to McClatchy High School could appear at any moment. Hoongpulled out a pocket knife and stabbed Treadway in the arm. Che appeared with a gun he hadretrieved from a car trunk and pointedit at Gonzales’s face and said, ‘Run now,bitch, run.’ Gonzales 19 ran. Che then pointed the gun at Bartholomew and Treadway. Whenhehesitated rather than shoot, defendant and Hoong yelled ‘shoot him, shoot him.’ Che shot Treadway dead. Che, defendant, and Hoong then fled togetherin a car. Defendanttestified that he heard aboutthe fight the night before the incident. He claimedthat he did not know that Che had a gun. He said he mocked Nguyenin an attempt to ‘hit on her.’ Defendanttestified that during the fight with Gonzales, he felt continuous punchesinto the back ofhis head, received a blow to the face, and bled from his nose. Defendant denied calling for anyone to get a gun, and claimed that he did not want or expect Che to shoot Treadway. Theprosecution charged defendant with murder (Pen. Code, § 187, subd. (a)), with gang enhancementandfirearm. use allegations. Attrial, the prosecution set forth two alternate theories ofliability. First, defendant was guilty of murder becausehe directly aided and abetted Che in the shooting death of Treadway. Second, defendant was guilty of murder becauseheaided and abetted Chein the target offense of assault or of disturbing the peace, the natural and probable consequence of which was murder. Regarding the natural and probable consequences theory, the trial court instructed that before it determined whether defendant was guilty of murder, the jury had to decide (1) whether he was guilty of the target offense (either assault or disturbing the peace); (2) whether a coparticipant committed a murder during the commission ofthe target offense; and (3) whether a reasonable person in defendant’s position would have knownthat the commission ofthe murder was a natural and probable consequence ofthe commission ofeither target offense. (CALCRIM No. 403.) Thetrial court instructed that to find defendant guilty of murder, the People had to prove that the perpetrator committed an act that caused the death of another person,that the perpetrator acted with malice aforethought, and that he killed without lawful justification. (CALCRIM No.520.) _ Thetrial court further instructedthat if the jury found 20 defendant guilty of murderas an aider and abettor,it had to determine whether the murder wasin thefirst or second degree. It then instructed that to find defendant guilty offirst degree murder, the People had to provethat the perpetrator acted willfully, deliberately, and with premeditation, and that all other murders were of the second degree. (CALCRIM No. 521.) The jury found defendantguilty of first degree murder and the gang andfirearm use allegations true. © As noted, the Court of Appeal reversed the first degree murder conviction.It held that the trial court erred in failing to instruct sua sponte that the jury must determine not only that the murder wasa natural and probable consequence of the target crime, but also that theperpetrator’s willfulness, - deliberation, and premeditation were natural and probable consequences.” (People v. Chiu, supra, 59 Cal.4th at pp. 159-161, emphasis in original.) Upon granting the People’s petition for review, this Court found it unnecessary to consider the instructional issue because a majority of the Court heldfor the first time that as a matter of public policy and appropriate sentencing considerations, an aider and abettor in California cannot be convictedoffirst degree murder under a natural and probable consequences theory of liability. (People v. Chiu, supra, 59 Cal.4th at pp. 158-159, 166-167.) C. Chiu Requires Reversal Of Petitioner’s Conviction Chiu holds that where, as here, the jury wasinstructed on both direct aiding and abetting and natural and probable consequencestheories, and there is nothing in the record to affirmatively indicate upon which theory the jury relied, reversal of the defendant’s first degree murder convictionis required. (People v. Chiu, supra, 59 Cal.4th at pp. 159, 167-168, 176; People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129; People v. Green (1970) 27 Cal.3d 1, 69- 21 71.) As in Chiu,petitioner’s jury was presented with both theories, the prosecutor argued both theories, the jury returned only a general verdict form, and there is nothing in the record to demonstrate beyond a reasonable doubt upon which theory the jury relied. In fact, the prosecutor specifically told the Jury they did notall have to agree on the type of aiding and abetting that petitioner did. (10 R.T. 1606.) The Court of Appeal concludes that sufficient evidence supports Petitioner’s first degree murder conviction. (Appendix at8.) However, Chiu requires more than just sufficient evidence. Instead, Chiu mandates that a defendant’s “first degree murder conviction must be reversed unless we conclude beyond a reasonable doubtthat the jury basedits verdict on the legally valid theory. that the defendant directly aided and abetting the premeditated murder.” (People v. Chiu, supra, 59 Cal.4th at p. 167.) While the Court ofAppeal concludesthat there was sufficient evidence under the direct aiding andabetting theory, this does not prove beyond a reasonably doubtthat the jury based its verdict on direct aiding and abetting rather than the natural and probable cause theory. In other words, while the Court ofAppeal cites to evidence suggesting that the jury could have foundpetitioner guilty as a direct aider and abettor, Chiu requires a conclusion beyond a reasonable doubt that the jury did baseits finding upon that theory. Here, there is nothing in the record to demonstrate that the jury unanimously found petitioner guilty as an aider and abettor, especially given the prosecution’s argumentthat they did not all need to agree on theory. Petitioner additionally maintains that independent of California law,it would also violate the Fifth and Fourteenth Amendments to the United States Constitution to refuse to grant petitioner relief based on Chiu. (See Fiorev. White (2001) 531 U.S. 225, 228 [121 S.Ct. 712, 148 L.Ed.2d 629] [a conviction on an invalid legal theory violates due process even when the decision of the highest state court recognizing the invalidity of the theory 22 occurs after the conviction has becomefinal]; see also Schirro v. Summerlin (2004) 542 U.S. 348, 351-352 [124 S.Ct. 2519, 159 L.Ed.2d 442][as a matter of federal law, judicial decisions that narrow the scope of criminal liability apply to convictionsthat are already final on appeal].) Contrary to the Court of Appeal’s conclusion the instructional error concerning the natural and probable consequences doctrine was not harmless under Chapmanv. California (1967) 386 U.S. 18, 22-24 [87 S.Ct. 824, 17 L.Ed.2d 705]. CONCLUSION Forall of the foregoing reasons, petitioner requests that review be granted. Dated: May 19, 2015 : ee MARILEE MARSHALL Attomeys for Petitioner, Hector Martinez 23 CERTIFICATE OF COMPLIANCE This certifies that this brief contains 7,124 words, in 13-point font, as counted by the word processing program used to generateit. Dated: May 19, 2015 hevter “Yea. MARILEE MARSHALL 24 APPENDIX Filed 5/15/15 NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinionsnotcertified 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 purposesof rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re HECTOR MARTINEZ D066705 on (San Diego County Super. Ct. No. SCD224457) Habeas Corpus. THE COURT: Petition for habeas corpus. Petition denied. Marilee Marshall & Associates and Marilee Marshall for Petitioner. Kamala D. Harris, Attorney General, William M. Wood, Deputy Attorney General, for Respondent. This case is before us a second time. In the prior case (People v. Martinez etal. (March 5, 2013, D058929) [nonpub. opn.] (Martinez I), Hector Martinez and his codefendant appealed, contending amongother things that their first degree murder convictions should be reversed becausethetrial court erred by failing to adequately instruct the jury on the natural and probable consequencesdoctrine of liability for aiders and abettors. Specifically, they argued the instruction "failed to correctly inform the jury that [they were] guilty of premeditated murder only if the jury found that premeditated murder, and not merely murder, wasthe natural and probable consequenceofthe target crimes." Werejected that argument based on People v. Favor (2012) 54 Cal.4th 868, 876-880. Martinez appealed to the California Supreme Court, which deniedhis petition for review without prejudice to any relief he might obtain under People v. Chiu (2014) 59 Cal.4th 155, 166 (Chiu), which holdsthat the natural and probable consequencesrule cannotbe a basis for convicting a defendant offirst degree murder. Martinez filed this writ petition, arguing he is entitled to have his sentence reduced to second degree murder under Chiu, supra, 59 Cal.4th 155.! The People acknowledge that we have jurisdiction to resolve this writ petition under Application ofHillery (1962) 202 Cal.App.2d 293, 294, but they argue we should remand the matterfor the trial court to resolveit in the first instance. Weelect to exercise our jurisdiction to resolve the writ petition. Because sufficient evidence supported Martinez's first degree murder conviction under a direct aiding and abetting theory, we deny the petition. FACTUAL AND PROCEDURAL BACKGROUND Wetake judicial notice of our decision in Martinez I, which affirmed Martinez's conviction for the first degree murder of Guillermo Esparza (Pen. Code,2 § 187, subd. I The parties do not dispute that Chiu is retroactive and applies to this case. The decision changed the law by disapproving the use of the natural and probable consequencestheoryas a basis to elevate murderto first rather than second degree. (See In re Johnson (1970) 3 Cal.3d 404, 410-411 [retroactivity of decisions announcing a new tule of law].) 2 All statutory references are to the Penal Code. 2 (a)); assault of Esparza with a semi-automatic firearm (§ 245, subd. (b)(1)) and assault with forcelikely to cause great bodily injury to Jimmy Parker (§ 245, subd. (a)(1)). The jury found true allegations that each crime was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); Martinez wasvicariously armed with a firearm in the commission of the murder (§ 12022, subd. (a)(1)); the codefendants wereprincipals in the commission ofthe murder; and a principal used a firearm and proximately caused great bodily injury and death (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced Martinez to a determinate term ofsix years plus an indeterminate term of 50 yearsto life.3 3 In the trial court, Martinez moved for a modification of his sentence undersection 1181, subdivision (6), arguing the evidence wasinsufficient to show he committed murder, rather, at the most, it showed he had assaulted Parker. The People opposed Martinez's motion,arguing sufficient evidence existed to sustain the first degree murder conviction: "This murder was a cold[-]blooded, gang[-]motivated crime in which the defendants seized the opportunity to represent themselves and their gang by committing [a] violent crime that enhanced their and their gang's reputation. Under a simpleaiding and abetting theory, the People demonstrated that 1) [the codefendant] committed murder, 2) [Martinez] knew [the codefendant] intended to commit murder, 3) before or during the commission of the murder, [Martinez] intendedto aid and abet[the codefendant] in committing the murder, and 4) [Martinez's] wordsor actions did in fact aid and abet [the codefendant's] commission of the murder. Indeed, the People argued[at trial] that [the codefendant] and [Martinez] formed a murder team—each with a specific role to play. Each defendant shared a gang,shared a motiveto kill to enhance the gang's reputation, shared common experience as gang members, worked in tandem to kill and ran away from the scene together." The trial court agreed with the People: "Having heard and considered the motion, and bearing in mind I presided overthe jury trial in this case, the motion is denied. And in denying the motion, I have weighed the merits of the motion and I incorporate the People's response specifically as to the following: First of all, the court is guided by a presumption in favorof the correctness of the verdict. [9] Secondofall, there is sufficient credible evidenceto sustain the verdict offirst degree murder, and the jury properly received and considered the evidencein this case. I find no 3 We summarize the facts set forth in Martinez I, supplementingit with expert testimony from San Diego Police Department Detective Nestor Hernandez: Late in the evening on August 20, 2009, the codefendant's girlfriend was with the codefendant and Martinez when she saw the codefendant with a gun. She objected to his having a gun at her house, and asked him to take the gun away. The codefendant, accompanied by Martinez,left the house. But the codefendant had not disposed of the gun. A few hours later, Martinez, the codefendantand his girlfriend were in her vehicle at a drive-thru restaurant. She noticed a gunin the codefendant's lap. When she wasdriving home, the codefendant suddenly told her to stopthe vehicle. Martinez and the codefendantleft the vehicle and ran up to Jimmy Parker and Guillermo Esparza, who were walking down the street. Martinez asked Parker, "Where are you from?" Parker mentioned the nameofa group that wasnot a gang, but rather engaged in tagging. Martinez punched Parker and they fought. Parker heard the codefendant say, "This is Lomas," and the codefendant shot Esparza, who died as a result. Martinez hit Parker once more after the gunshot was fired. Immediately afterwards, Martinez and the codefendant ran from the crime scene. Detective Hernandez testified that Martinez and his codefendant were documented Lomas gang members. Accordingto the detective, gang members commonlycarried weapons whenpreparing to assault someoneor enter rival gang territory, and by being armed they showedtheir fellow gang memberstheir willingness to commit violence to defend themselves or the gang. Detective Hernandez stated that when gang members basis in law or fact where I could exercise my discretion and either reduce the verdict or set aside the verdict." approached someone and asked, "where are you from," that aggressive question set up a challenge that usually ended with the questioner attacking the other person. Detective Hernandez stated gang members were expected to support one another: "If you area companion or your gang associate or your gang memberfriend hit someoneup and asks wherethey are from,or is challenged or do the challenging, they have to back uptheir gang associate or gang memberfriend, irregardless, for not only representation for themselves .. . but the gangitself, and if they don't, then there is severe retaliation or severe repercussions on that person who doesn't participate." The prosecutor asked Detective Hernandez: "If... a Lomas gang memberwere to issue a gang challenge and engage in an assault with other Lomas gang members and someofthose others had any kind of weapon, would there be an expectation for the person whohas the weaponto useit in the confrontation?" Detective Hernandezreplied in the affirmative. The prosecutor posed a hypothetical based on the factsofthis case, asking what would happen if two Lomas gang members approachedperceivedrivals, issued a gang challenge, received the reply that the perceived rival belonged to a tagging group, and the Lomas members simply walked away. Detective Hernandez responded that those individual gang members—andby extension the Lomas gangitself—would be perceived as weak in the eyes of the tagging group and rival gangs. Detective Hernandeztestified gang membersvalue "respect," which they purport to gain by "committing more acts of violence, more crimes, being involved with more confrontations with other gang members, expressing that or relaying that to the other _active gang members themselves, not only that you are trying to up the status—your own 5 status within the gang,but also upthe status of the specific gang as to howit reflects on rival gang members." The court instructed the jury with CALCRIM Nos. 400 and 401 regarding aiding and abetting, and with CALCRIM No.403 regarding the natural and probable cause doctrine.4 DISCUSSION "Both aiders and abettors and direct perpetrators are principals in the commission of acrime." (People v. Calhoun (2007) 40 Cal.4th 398, 402; § 31.) "[A]iding and abetting is one means under which derivative liability for the commissionof a criminal offense is imposed. It is not a separate criminal offense." (People v. Francisco (1994) 22 Cal.App.4th 1180, 1190.) "There are two distinct forms of culpability for aiders and abettors. ‘First, an aider and abettor with the necessary mentalstate is guilty of the intended crime. Second, underthe natural and probable consequencesdoctrine, an aider and abettoris guilty not only of the intended crime, but also "for any other offense that wasa ‘natural and probable consequence’ of the crime aided and abetted."'" (Chiu, supra, 59 Cal.4th at p. 158.) 4 During deliberations, the jury sent the court a note stating: "Clarification Request on description of [CALCRIM No.] 401[,] Aiding and Abetting: Point #2 says: 'The defendant knewthat the perpetrator intended to commit the crime[.]' What is meant by 'the crime?' Did aider and abettor have to know or even expect the possibility that it will be murder ([as charged in] count #1)? Or does it mean any crime?" The court replied that " 'the crime' refers to any crime the defendant(s) are ontrial for.". Regarding aiding and abetting, the court replied, "This is what the jury has to decide. Refer to [CALCRIM Nos.] 400, 401 and 403, read together." The court added, " '[A]ny crime’ means any crime the defendants are ontrial for." Chiu holds : "[P]unishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder underthe natural and probable consequences doctrine. ... [W]here the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequencesdoctrine." (Chiu, supra, 59 Cal.4th at p. 166.) Chiu explains: "First degree murder, like second degree murder,is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showingofintentto kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completesthe acts that caused the death." (Chiu, supra, 59 Cal.4th at p. 166.) "Whena trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unlessthereis a basis in the record to find that the verdict was based on a valid ground.” (Chiu, supra, 59 Cal.4th at p. 167.) Thus, a defendant's "first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based tts verdict onthe legally valid theory that defendant directly aided and abetted the premeditated murder." (/bid.) Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose ofthe perpetrator and 7 with the intent or purpose of committing, encouraging,or facilitating its commission. (Ud. at p. 167.) As noted, the jury here was instructed regarding aiding and abetting principles. Applyingthose principles, we conclude sufficient evidence supports Martinez’sfirst degree murder conviction. Wereiterate what we stated in Martinez I: "Here, [Martinez] wasthe aider and abettor, but he initiated the attack by asking which gang the victims belonged to, and swung and hit Parker. Even after approximately four minutes of fighting, [Martinez] did not manage to overcomeParker's resistance. Afterwards, [the codefendant] fired one shot. [Martinez], undeterred by the gunshot, subsequently took another swing at Parker. It was not until [the codefendant] fired two more shots that [Martinez and the codefendant] ran away. This evidenceoffers no indication that the murder was anythingotherthan willful, deliberate and premeditated." Chiu, supra, 59 Cal.4th 155, does not alter that conclusion,particularly as we bolster our analysis with expert testimony relating to the jury's true finding that Martinez committed the murderfor the benefit of, at the direction of, and in association with a criminal street gang. The jury reasonably could conclude Martinez was awarethe codefendantcarried a gun in the vehicle because he was aware the codefendant hadit earlier, and after the girlfriend had told the codefendant to removeit from her house, Martinez accompanied the codefendant who had promised to dispose ofit. Further, the gang expert's testimony provided the jury with a basis to find that Martinez likely was emboldened to challenge Parker and Esparza—by asking them where they were from— precisely because Martinez knew the codefendant wascarrying a gun and Martinez relied 8 on his codefendant's support as he attacked the others. Further, Martinez's use of violence would enhancetherespecthe received within the gang and for the gang among rival gangs. Lastly, Martinez encouraged andfacilitated the first degree murder by attacking Parker, thus simultaneously preventing Parker from defending Esparza, and freeing up the codefendantto focus exclusively on Esparza, which the codefendantdid by shooting and killing him. Accordingly, we conclude that on this record, any instructional error concerning the natural and probable consequencesdoctrine was harmless even underthe higher standard set forth in Chapmanv. California (1967) 386 U.S. 18, 22-24. DISPOSITION The writ petition is denied. O'ROURKE,J. WE CONCUR: NARES,Acting P. J. McINTYRE,J. 10 DECLARATION OF SERVICE I, the undersigned, declare: I am overeighteen (18) years of age, and not a party to the within cause; my business address is 595 East Colorado Blvd, Suite 324, Pasadena, CA 91101; that on May19, 2015, I served a copy ofthe within: PETITION FOR REVIEW on the interested parties by placing them in an envelope (or envelopes) addressed respectively as follows: Clerk of the Superior Court Mr. Hector Martinez, AF9134 San Diego County Superior Court B6-124 . Main Courthouse P.B.S.P. 220 West Broadway. Dept. SD-56 P.O. Box 7500 San Diego, CA 92101 Crescent City, CA 95531 For Delivery to Hon. Robert F. O’ Neill Office of the Attorney General Clerk of the Court of Appeal P.O. Box 85266 Fourth Appellate District/ Division One San Diego, CA 92186-5266 750 B. Street, #300 San Diego, CA 92101-8189 Each said envelope was then, on May 19, 2015, sealed and deposited in the United States mail at Pasadena, California, the county in which I maintain my office, with postage fully prepaid. I, further declare that I electronically served a copy of the same above document from electronic notification address (marshall101046@gmail.com) on May 19, 2015 to the following entities electronic notification addresses: Attorney General, adieservice@doj.ca.gov District Attorney, DA.Appellate@sdcda.org I additionally declare that I electronically submitted a copy of this documentto the Supreme Court on its website at www.courts.ca.gov in compliance with the court’s Terms of Use, as shown on the website. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 19, 2015, at Pasadena, California. (02. LESLIE AMAYA
