holding SB 1437 invalidated the natural and probable consequences doctrine as a basis for attempted murder liability, and reversing defendants' convictions for attempted murder under that doctrineSummary of this case from People v. Harris
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Xavier Ysauro Medrano. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Trinidad Valdez Martinez. Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Rey Robert Avellanoza. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Xavier Ysauro Medrano.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Trinidad Valdez Martinez.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Rey Robert Avellanoza.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Xavier Ysauro Medrano (also known as Xavier Ysidro Medrano), Trinidad Valdez Martinez, and Rey Robert Avellanoza were found guilty after a jury trial of attempted murder, burglary, assault with a firearm, and participation in a criminal street gang. Avellanoza was found guilty of shooting into an inhabited dwelling; Medrano and Martinez were acquitted of this charge. Enhancements alleging premeditation and deliberation, use of firearms, causing great bodily injury, and committing the offenses for a criminal street gang were also found true by the jury. Each defendant received a substantial state prison sentence, including an indeterminate sentence for the attempted first degree murder conviction. The defendants were only partially successful in their appeal of the judgment.
On February 1, 2017, the California Supreme Court granted Medrano's and Martinez's petitions for review pending consideration and disposition of People v. Mateo , S232674. The Supreme Court denied Avellanoza's petition for review (remittitur issued Feb. 7, 2017). On April 10, 2019, the California Supreme Court returned the case to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). In connection with the Supreme Court's transfer, the remittitur pertaining to Avellanoza was recalled on October 8, 2019. In supplemental briefing, Martinez and Medrano now argue the recent enactment of Senate Bill 1437 requires reversal of their attempted murder convictions because the jury instructions and the prosecutor's arguments allowed the jury to convict them on the now repudiated theory that attempted murder was a natural and probable consequence of aiding and abetting assault likely to cause bodily harm and because Penal Code section 188 no longer permits imputed malice. (Undesignated statutory references are to the Penal Code.) Relatedly, they argue Senate Bill 1437 applies to charges of attempted murder and that relief should be available through direct appeal, rather than limited to the petitioning procedure provided for in newly enacted section 1170.95. Martinez further contends the trial court should be permitted to exercise its newfound discretion to strike or dismiss the firearm enhancements imposed pursuant to sections 12022.5 and 12022.53 (Sen. Bill No. 620 (2017–2018 Reg. Sess.) [Senate Bill 620] ), and the five-year prior serious felony enhancement imposed pursuant to section 667 (Sen. Bill No. 1393 (2017–2018 Reg. Sess.) [Senate Bill 1393] ). In the published part of this opinion, we find merit to the new claims pertaining to the natural and probable consequences doctrine as to Medrano and Martinez. We conclude Senate Bill 1437 not only abrogated the continuing application of this doctrine to murder charges, we further determine this change in the law applies to attempted murder charges premised on this doctrine. In doing so, we part company with our sister courts in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175, and People v. Munoz (2019) 39 Cal.App.5th 738 ( Munoz ), review granted November 26, 2019, S258234. However, we agree with Lopez and Munoz that the petitioning procedure added in section 1170.95 does not apply to attempted murder. Because the section 1170.95 petitioning procedure does not apply to defendants for their convictions of attempted murder, we review their claim under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and conclude defendants are entitled to relief on direct appeal. Thus, we reverse the judgments of conviction for attempted murder as to Medrano and Martinez.
In the unpublished part of the opinion, as to all three defendants, we reverse the gang convictions and the gang enhancements. At resentencing, the court shall consider whether to exercise its discretion pursuant to Senate Bills 620 and 1393, if applicable to any defendant. In all other respects, the judgments are affirmed.
See footnote *, ante .
See footnote *, ante .
II. Effect of Senate Bill 1437
A. Abbreviated Factual Summary
We briefly summarize the salient facts as they pertain to the question of the effects of Senate Bill 1437 to Medrano's and Martinez's convictions for attempted murder. Machado lived in a mobilehome where he was growing medical marijuana. At around 11:00 p.m. on November 24, 2010, Machado was at home when he heard a truck outside. Shortly after, he heard multiple footsteps on his porch. Someone said "FBI" just before kicking in his door and entering. (Machado subsequently identified the defendants as those who entered his home.) Machado grabbed a shotgun and crouched down in his bedroom on the right side of a couch between his bed and a closet. Machado recognized Avellanoza standing in the doorway. Avellanoza pointed a pistol at Machado and fired. Machado fired back. Several bullets grazed his body and one penetrated Machado's shoulder. After the shots were fired, Machado could see Medrano and Martinez fleeing from the "marijuana grow room." Each was carrying a handgun. Additional gunfire was directed toward Machado through the wall of his bedroom by defendants as they exited his home.
The jury found all three defendants guilty of attempted murder, and true allegations that each used a firearm in its commission. However, the jury did not find true that Medrano and Martinez acted as principals or caused great bodily injury. On the other hand, the jury found true allegations Avellanoza personally used a firearm, acted as a principal and that he inflicted great bodily injury. In addition, Avellanoza was found guilty of shooting into an inhabited dwelling. Medrano and Martinez were acquitted of this charge.
Among other theories, the jury was instructed on the natural and probable consequences doctrine to support attempted murder liability against Medrano and Martinez.
On September 30, 2018, while defendants' petition for review in this case was pending in the California Supreme Court, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[ed] 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).) This was accomplished through amendments to sections 188 and 189. It also added section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
As to the natural and probable consequences doctrine, at issue here, Senate Bill 1437 added a provision to section 188 concerning the mens rea for accomplice liability. "Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer ‘be imputed to a person based solely on [his or her] participation in a crime.’ ( § 188, subd. (a)(3).)" ( In re R.G. (2019) 35 Cal.App.5th 141, 144, 247 Cal.Rptr.3d 24.) These changes reflect the Legislature's intent that "[a] person's culpability for murder ... be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g); see People v. Martinez (2019) 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860 ; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147, 244 Cal.Rptr.3d 499.)
Martinez and Medrano contend they are entitled to relief under Senate Bill 1437 because the prosecutor argued, and the court instructed the jury, that Martinez and Medrano could be convicted of attempted murder based on the now invalidated natural and probable consequences theory. Specifically, Martinez argues he "is entitled to some form of relief on appeal from the attempted-murder conviction because amendment of section 188 now forbids imputed malice which benefits [Martinez] and his conviction is not yet final." He asserts "[e]ither the petition process [provided for in section 1170.95] must be interpreted as applying to crimes other than murder, i.e., to the lesser included offense of attempted murder, or the petition process does not operate as [an] implied savings clause for attempted-murder convictions and, thus, does not preclude retroactive application of the ameliorative amendment of version [sic ] of section 188 to cases not yet final." He contends "[r]eversal of the conviction on appeal would afford the prosecution the option of retrial on the issue of malice because reversal will not be upon grounds of insufficient evidence."
Similarly, Medrano argues Senate Bill 1437's amendment to section 188, subdivision (a)(3) "repeals the natural and probable consequences theory of murder liability" and "allows murder liability based only upon the individual defendant's mens rea." Accordingly, "murder can no longer be based only on the putative natural and probable consequences of the lesser crime in which the aider participated." He notes, though "there is no reference to attempted murder in the revisions of sections 188 and 189, or in new section 1170.95," the legislation should apply to attempted murders "in view of the legislative intent of the new statute, as well as principles applicable to attempted murder."
Medrano further contends he is entitled to relief on direct appeal, and is not limited to the petitioning procedure provided for in section 1170.95. He asserts section 1170.95 was meant "to extend an opportunity for retroactive relief to ... inmates whose convictions have already become final" and was not meant to limit an appellant's ability to seek relief on direct appeal. He argues People v. Martinez , supra , 31 Cal.App.5th 719, 242 Cal.Rptr.3d 860 and People v. Anthony, supra , 32 Cal.App.5th 1102, 244 Cal.Rptr.3d 499 —in which our sister courts held relief must be sought through a section 1170.95 petition at the trial court level—were wrongly decided, and those courts erred in relying on the California Supreme Court's reasoning in People v. Conley (2016) 63 Cal.4th 646, 203 Cal.Rptr.3d 622, 373 P.3d 435 and People v. DeHoyos (2018) 4 Cal.5th 594, 229 Cal.Rptr.3d 687, 412 P.3d 368. He argues the Conley and DeHoyos courts held defendants seeking relief under Propositions 36 and 47 had to follow the petitioning procedures provided in the related statutes because relief was conditioned on the trial court's finding the defendant would not "pose an unreasonable risk of danger to public safety." (Italics omitted.) Medrano contends these cases are inapposite because section 1170.95 does not "impose any ... substantive requirement for retroactive relief" subject to a trial court's discretionary evaluation. He further contends section 1170.95 does not say a defendant "must" file a superior court petition to seek relief, but rather that a defendant " ‘may file a petition with the [superior court].’ " He argues limiting the availability of relief to the petitioning procedure would render meaningless section 1170.95, subdivision (f), which states, "This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner." Finally, he asserts requiring defendants with nonfinal judgments to resolve their claims under Senate Bill 1437 before the trial court abridges their Sixth Amendment right to a jury trial. He asserts "[i]f he is relegated to his remedy pursuant to section 1170.95, he will never have a jury decide whether [he] intended to kill Machado. The prosecution will be able to present new evidence on malice, and the judge, not a jury, will sit as the trier of fact."
The People respond that Medrano and Martinez must petition the trial court for resentencing based on the Legislature's enactment of section 1170.95. They contend "[p]ermitting [a defendant] to obtain relief on direct appeal would undermine this process, treat final judgments differently from nonfinal ones despite no legislative intent to do so, deprive the prosecution of its right to present additional evidence, and deny the trial court of ‘its province’ to ‘decide questions of fact.’ " However, the People also argue Medrano and Martinez are not entitled to relief under Senate Bill 1437 or to utilize the petitioning procedure provided for in section 1170.95 because the new legislation and procedure for relief only apply to defendants convicted of murder under a natural and probable consequences theory or felony murder, not attempted premeditated murder. In support, the People rely on the plain language of the amended statutes and cases holding legislation regarding sentencing enhancements do not apply to attempts given that attempts are not listed among the covered offenses. (See, e.g., People v. Epperson (2017) 7 Cal.App.5th 385, 212 Cal.Rptr.3d 584 ; People v. Reed (2005) 129 Cal.App.4th 1281, 29 Cal.Rptr.3d 215 ; People v. White (1987) 188 Cal.App.3d 1128, 233 Cal.Rptr. 772 ; People v. Le (1984) 154 Cal.App.3d 1, 200 Cal.Rptr. 839.) They contend "[b]ecause the text of the statute is clear, there is no need for judicial interpretation, and the inquiry is at an end." Finally, they argue excluding attempted premeditated murder from the scope of Senate Bill 1437's changes does not violate the equal protection clause.
D. Applicability of Senate Bill 1437 to Attempted Murder
The applicability of Senate Bill 1437 to the crime of attempted murder presents an issue of statutory interpretation for our independent review. (See People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148 ["We review de novo questions of statutory construction"]; In re R.G. , supra , 35 Cal.App.5th at p. 146, 247 Cal.Rptr.3d 24.) Prior to Senate Bill 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequences of which was attempted murder or murder, could be convicted of not only the target crime but also of the resulting attempted murder or murder, but not first degree murder. ( People v. Chiu (2014) 59 Cal.4th 155, 161, 166, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; In re R.G. , supra , at p. 144, 247 Cal.Rptr.3d 24.)
" ‘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. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense.’ " ( People v. Chiu, supra , 59 Cal.4th at p. 164, 172 Cal.Rptr.3d 438, 325 P.3d 972.) The Chiu court further explained:
"[S]ection 31 provides in relevant part that ‘[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals in any crime so committed.’ It does not expressly mention the natural and probable consequences doctrine. Where the statutory language is vague, ‘the statutory definition permits, even requires, judicial interpretation.’ ( People v. Chun (2009) 45 Cal.4th 1172, 1181, 91 Cal.Rptr.3d 106, 203 P.3d 425.) We may, as a court, determine the extent of aiding and abetting liability for a particular offense, keeping in mind the rational function that the doctrine is designed to serve and with the goal of avoiding any unfairness which might redound from too broad an application. [Citations.]" ( Ibid. )
Excepting the felony-murder rule, an accomplice may be convicted of a crime under one of two alternative theories: direct aiding and abetting liability and the natural and probable consequences doctrine. ( People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) "[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator." ( Id. at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) It follows that if malice is an element of a charged offense, accomplice liability under the natural and probable consequences doctrine necessarily entails the imputation of malice. (See McCoy , at pp. 1117–1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 ; People v. Lee (2003) 31 Cal.4th 613, 623–624, 3 Cal.Rptr.3d 402, 74 P.3d 176 ; see also People v. Prettyman (1996) 14 Cal.4th 248, 259, 58 Cal.Rptr.2d 827, 926 P.2d 1013 [" ‘We euphemistically may impute the actions of the perpetrator to the accomplice by "agency" doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual’ "].) However, as amended by Senate Bill 1437, section 188 plainly states: "Malice shall not be imputed to a person based solely on his or her participation in a crime. " (Id. , subd. (a)(3), italics added.)
Senate Bill 1437's changes to section 189 are not at issue because "California has no crime of attempted felony murder." (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4, 6 Cal.Rptr.3d 425, 79 P.3d 542, citing People v. Bland (2002) 28 Cal.4th 313, 328, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ; accord, People v. Brito (1991) 232 Cal.App.3d 316, 321, 283 Cal.Rptr. 441 ["California courts have consistently held that there are no crimes of attempted felony murder [or] attempted murder based on implied malice"].)
Pursuant to the above reasoning, we conclude Senate Bill 1437 precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder. Put differently, since "implied malice cannot support a conviction of an attempt to commit murder" ( People v. Bland , supra , 28 Cal.4th at p. 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ; see fn. 4, ante ), the current version of section 188 requires proof the aider and abettor acted with the intent to kill while aiding and abetting the target offense.
We acknowledge two of our sister courts have held Senate Bill 1437 does not affect the natural and probable consequences doctrine as it relates to attempted murder. ( People v. Lopez, supra , 38 Cal.App.5th at pp. 1102–1113, rev. granted; Munoz , supra , 39 Cal.App.5th at pp. 753–769, rev. granted.) However, we respectfully disagree with their analyses and conclusions for the following reasons.
"The ‘ "goal of statutory construction is to ascertain and effectuate the intent of the Legislature." ’ [Citation.] In approaching this task, we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute's true meaning." ( People v. Cochran (2002) 28 Cal.4th 396, 400–401, 121 Cal.Rptr.2d 595, 48 P.3d 1148.) In other words, the plain meaning controls unless the words are ambiguous. ( People v. Costella (2017) 11 Cal.App.5th 1, 6, 217 Cal.Rptr.3d 343.) " ‘If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy.’ " ( Ibid. ) We may " ‘examin[e] the context in which the language appears and adopt[ ] the construction which best serves to harmonize the statute internally and with related statutes.’ " ( People v. Gonzalez (2008) 43 Cal.4th 1118, 1126, 77 Cal.Rptr.3d 569, 184 P.3d 702.)
The Lopez opinion acknowledges that "Senate Bill 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine" ( People v. Lopez , supra , 38 Cal.App.5th at p. 1092, rev. granted), but it suggests the imposition of vicarious liability for attempted murder under the same doctrine is not based on imputed malice. ( Id. at p. 1106.) The logic of this argument escapes us. We are also unpersuaded by Lopez 's reliance on the absence of any reference to "attempted murder" in Senate Bill 1437. ( Lopez , at pp. 1103–1105.) The omission is meaningless when one considers that sections 187, 188, and 189 have never included that term. Yet we look to these statutes in conjunction with section 21a, which explains the law of attempt, to define attempted murder.
" ‘The word "impute" ... means to bring into the reckoning, to attribute or to ascribe. It is sometimes used to attribute vicariously,—to ascribe as derived from another.’ " (Black's Law Dict. (11th ed. 2019) p. 908, quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 605.)
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Murder is defined as "[t]he unlawful killing of a human being, or a fetus, with malice aforethought." ( § 187, subd. (a).) Express malice is synonymous with the intent to kill. ( § 188, subd. (a)(1) ; People v. Gonzalez (2012) 54 Cal.4th 643, 653, 142 Cal.Rptr.3d 893, 278 P.3d 1242 ; People v. Moon (2005) 37 Cal.4th 1, 29, 32 Cal.Rptr.3d 894, 117 P.3d 591.) A criminal attempt "bears an extremely close relationship to the completed crime. Attempts, after all, are defined as incomplete efforts to commit a completed crime." ( People v. Fontenot (2019) 8 Cal.5th 57, 64, 251 Cal.Rptr.3d 341, 447 P.3d 252.) Attempted murder thus requires "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." ( People v. Booker (2011) 51 Cal.4th 141, 177–178, 119 Cal.Rptr.3d 722, 245 P.3d 366.)
The Legislature is presumed to be aware of existing interpretations of statutory language when it amends a statute. ( Dix v. Superior Court (1991) 53 Cal.3d 442, 461–462, 279 Cal.Rptr. 834, 807 P.2d 1063.) When the Legislature amended section 188 to state "[m]alice shall not be imputed to a person based solely on his or her participation in a crime" (id. , subd. (a)(3)), it made no exceptions for attempted murder, which indisputably requires express malice. ( People v. Booker , supra , 51 Cal.4th at p. 178, 119 Cal.Rptr.3d 722, 245 P.3d 366.) By failing to exclude attempted murder from the ambit of section 188, the Legislature must have intended for its provisions to apply to all crimes requiring express malice. We thus find the Lopez court's reasoning to be untenable. (See People v. Lopez , supra , 38 Cal.App.5th at p. 1104, rev. granted ["Had the Legislature meant to bar convictions for attempted murder under the natural and probable consequences doctrine, it could easily have done so"].)
The legislative intent to restrict the imputation of malice in prosecutions for both murder and attempted murder is demonstrated by the precise language used to amend section 188. Had the Legislature intended to confine its repudiation of the natural and probable consequences doctrine to murder, it could easily have said: "Except for attempted murder , malice shall not be imputed to a person based solely on his or her participation in a crime." (Italics added.) The same preposition, "except," appears in the preceding sentence to exclude felony-murder prosecutions from the scope of the provision. ( § 188, subd. (a)(3) ; cf. Munoz , supra , 39 Cal.App.5th at p. 757, rev. granted [" ‘ "When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’ " [Citation.]’ "].) Because the crime of attempted murder is tethered to the murder statutes, i.e., it does not exist without them, there is no logical basis for applying section 188 to murder and treating the crime of attempted murder as being subject to an impliedly different and unspecified rule of law. Neither Lopez nor Munoz persuades us to conclude otherwise.
The foregoing analysis is buttressed by the California Supreme Court's recent observation that "courts impose a ‘heightened intent requirement’ for attempts ... even when the completed crime requires a less demanding mental state" in order "[t]o ensure that only those whose intentions and actions made them a pronounced threat to accomplish what a given criminal statute prohibits may be found criminally liable." ( People v. Fontenot , supra , 8 Cal.5th at p. 67, 251 Cal.Rptr.3d 341, 447 P.3d 252.) "In effect, the higher bar serves as a bulwark against convicting someone of attempting to accomplish something he or she never set out to do." ( Id. at pp. 67–68, 251 Cal.Rptr.3d 341, 447 P.3d 252.) The Legislature codified this safeguard in section 21a by making " ‘specific intent to commit the [completed] crime’ " a required element of attempt crimes. ( Fontenot , at p. 68, 251 Cal.Rptr.3d 341, 447 P.3d 252.)
For all these reasons, Senate Bill 1437's abrogation of the natural and probable consequences doctrine as stated in section 188, subdivision (a)(3) necessarily applies to attempted murder. To hold otherwise would ignore the plain language of the statute and conflict with the underlying policy of the legislation. As noted by our state Supreme Court, "where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy [than the principal offender]." ( People v. Lee, supra , 31 Cal.4th at p. 624, 3 Cal.Rptr.3d 402, 74 P.3d 176.) Our interpretation of Senate Bill 1437 comports with its stated goal of ensuring a defendant's culpability is premised upon his or her own actions and subjective mens rea. (Stats. 2018, ch. 1015, § 1, subds. (d), (g).)
E. Martinez and Medrano Are Ineligible for Relief Under Section 1170.95
Here, the parties note Senate Bill 1437 enacted section 1170.95, which permits defendants "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition" (id. , subd. (a)) to seek relief under the new legislation. It does not expressly provide for relief to defendants, like Martinez and Medrano, who may have been convicted of attempted murder under a natural and probable consequences theory. The People argue, accordingly, the plain language of section 1170.95 renders Martinez and Medrano categorically ineligible for relief. Martinez and Medrano argue the changes effectuated by Senate Bill 1437 coupled with the Legislature's stated intent reflects the statutory amendments should apply to defendants like them who were convicted of attempted premeditated murder based on a natural and probable consequences theory of liability. Based on the plain language of section 1170.95, we agree Martinez and Medrano may not seek relief through its designated petition procedure.
Newly enacted section 1170.95 permits those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ...." (Id. , subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[; and] [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 "shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (Id. , subd. (c).) If the petitioner has made such a showing, the trial court "shall issue an order to show cause." (Ibid. ) The trial court must then hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic ] sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (Id. , subd. (d)(1).)
The plain language of section 1170.95, subdivision (a) limits relief to persons "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court ...." No language in section 1170.95 references relief to persons convicted of attempted murder. And, as noted in People v. Lopez , the legislative history of Senate Bill 1437 supports the conclusion section 1170.95 was intended to apply only to persons convicted of murder:
"There may well be sound policy reasons for the Legislature to adopt ameliorative provisions like those in Senate Bill 1437 for individuals charged with, or convicted of, attempted murder under the natural and probable consequences doctrine. But the Legislature's decision to limit sentencing reform at this time to offenders in cases of murder is certainly rational. First, the gap between a defendant's culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense is greater in cases where the nontarget offense is murder, than where the nontarget offense is attempted murder or, in the prosecutor's discretion, aggravated assault. The Legislature could have reasonably concluded reform in murder cases ‘was more crucial or imperative.’ ...
"Second, the process created in section 1170.95 for those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate that conviction and to be resentenced is not cost free. The staff of the Senate Appropriations Committee estimated, if 10 percent of the inmates eligible for relief under Senate Bill 1437 petitioned the courts for resentencing, additional court workload costs would approximate $7.6 million. The committee's report expressed concern that this increase in workload ‘could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.’ (Sen. Com. Appropriations Report, p. 3.) Additional expenditures would also be required to transport petitioners in custody to and from court hearings. (Ibid. )
"In a world of limited resources, it is reasonable for the Legislature to limit the scope of reform measures to maintain the state's financial integrity. [Citations.]" ( People v. Lopez , supra , 38 Cal.App.5th at pp. 1111–1112, fn. omitted, rev. granted; see Munoz , supra , 39 Cal.App.5th at pp. 753–760, rev. granted.)
We agree with the reasoning of Lopez and Munoz that the relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder. The language and the legislative history of section 1170.95 support this conclusion. And there is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions. In light of this unambiguous language, Martinez and Medrano are categorically excluded from seeking relief through the section 1170.95 petitioning procedure for their attempted murder convictions.
F. The Amendatory Statutes Apply Retroactively on Direct Appeal to Nonfinal Attempted Murder Convictions Under Estrada
Though Martinez and Medrano may not obtain relief at the trial court level pursuant to section 1170.95's petition procedure, they are not barred from all relief. Rather, we conclude the Estrada rule ( In re Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ) requires us to consider their claim on direct appeal, given that Senate Bill 1437 resulted in an ameliorative change to the criminal law applicable to their convictions.
Section 3 provides that "[n]o part of [the Penal Code] is retroactive, unless expressly so declared." However, "new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final." ( People v. Conley , supra , 63 Cal.4th at p. 656, 203 Cal.Rptr.3d 622, 373 P.3d 435, citing In re Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.) Accordingly, if an "amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then ... it, and not the old statute in effect when the prohibited act was committed, applies." ( In re Estrada , supra , at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) "The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( People v. Buycks (2018) 5 Cal.5th 857, 881–882, 236 Cal.Rptr.3d 84, 422 P.3d 531, quoting Conley , supra , at p. 657, 203 Cal.Rptr.3d 622, 373 P.3d 435.) " ‘The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.’ " ( People v. Buycks , supra , at p. 882, 236 Cal.Rptr.3d 84, 422 P.3d 531, quoting People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)
Here, there is no clear indication in Senate Bill 1437 or the resulting statutory amendments that the Legislature only intended to provide prospective relief for the ameliorative changes to the law such that a defendant's nonfinal attempted murder conviction would be exempt from relief on appeal. While section 1170.95 expands the scope of relief to defendants convicted of felony murder or murder under the natural and probable consequences theory to those whose judgments are final, it in no way limits retroactive relief to defendants convicted of attempted murder under the natural and probable consequences theory whose convictions are not final. Accordingly, because Martinez's and Medrano's judgments of conviction were not yet final when these amendatory statutes lessening punishment took effect, the amended statutes, not the old statutes in effect when the prohibited acts were committed, apply. (See In re Estrada , supra , 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)
G. Defendants Were Prejudiced by the Instruction on the Invalid Theory
Finally, we conclude the court's instruction on the now invalidated natural and probable consequences theory as it relates to attempted murder was not harmless beyond a reasonable doubt. Thus, Medrano's and Martinez's attempted murder convictions must be reversed.
"When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." ( People v. Chiu , supra , 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972 ; see In re Martinez (2017) 3 Cal.5th 1216, 1226, 226 Cal.Rptr.3d 315, 407 P.3d 1 [an instruction on an invalid legal theory may be harmless when " ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made findings necessary’ " to find the defendant guilty under an alternative, valid legal theory].) Thus, "we apply the Chapman standard [citation] to evaluate an instruction that improperly defines an element of a charged offense." ( People v. Stutelberg (2018) 29 Cal.App.5th 314, 319, 240 Cal.Rptr.3d 156 ; Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ).) Under Chapman , an instructional error must result in reversal unless it appears beyond a reasonable doubt that the error did not contribute to the verdict. ( People v. Aledamat (2019) 8 Cal.5th 1, 12–13, 251 Cal.Rptr.3d 371, 447 P.3d 277.)
Here, it is undisputed the court instructed the jury on the now invalidated natural and probable consequences theory as a basis for convicting Martinez and Medrano of attempted murder. Indeed, pursuant to CALCRIM No. 417, the court instructed the jury it could convict Martinez and Medrano of attempted murder if it concluded defendants conspired to commit assault with a deadly weapon, a member of the conspiracy committed attempted murder, and attempted murder was a natural and probable consequence of the common plan or design of the crime that defendants conspired to commit. The court further instructed the jury defendants could be convicted either as a direct perpetrator, an aider and abettor, or, "[u]nder some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." ( CALCRIM No. 400.)
Additionally, during closing argument, the prosecutor asked the jury: "How can we hold all three of these defendants accountable ... for ... attempted murder when ... Avellanoza is the one who went in the room and actually shot and hit the guy[?]" He asserted:
"There's three theories of liability and it doesn't matter which way you go but either way you're gonna end up with a guilty verdict. There is direct liability. Basically if an individual goes and commits a crime, they're liable for the crime. That's nothing new.
"There's also aiding and abetting so if you assist someone in going and committing a crime, you're also on the hook and you're liable.
"And then there's liability for coconspirator acts and I know all of you are thinking ... [w]e never heard anything about conspiracy. There's no conspiracy charge and it's somewhat confusing but conspiracy is not only a charge that can be filed but it is also a theory of liability
on which the defendants can be held responsible on any of the counts filed and the judge will provide you with instructions on that."
The prosecutor explained: "[I]f the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." He argued that Avellanoza went into Machado's house knowing he was "going to shoot somebody"; Martinez and Medrano were "aiding and abetting in a lot of this"; and all three defendants went into the house with guns and "intended to commit an assault with a deadly weapon." He explained: "[I]f you're a member of a conspiracy, you're criminally responsible for any act that any other member does as long as it's natural and probable. This is why we talked about how there's at least a conspiracy to commit an assault with a deadly weapon." He argued, attempted murder is a natural and probable consequence of shooting a gun at somebody—"that would be an intent to kill them." Thus, there is no question the jury was presented with the now invalid natural and probable consequences theory as a basis for holding Martinez and Medrano liable for attempted murder. And we find no basis in the record to conclude beyond a reasonable doubt that the jury did not rely upon this now invalid theory to convict Martinez and Medrano of attempted murder or that it made the findings necessary to convict the defendants under an alternative, valid legal theory. ( People v. Aledamat, supra , 8 Cal.5th at pp. 12–13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Accordingly, we must reverse Martinez's and Medrano's convictions for attempted murder. The People, however, may choose to retry those charges under any other currently valid theory for liability. (See People v. Chiu , supra , 59 Cal.4th at p. 168, 172 Cal.Rptr.3d 438, 325 P.3d 972 [where jury may have focused on invalidated natural and probable consequence theory to convict defendant of first degree murder, reversal was required because "there was no basis in the record to conclude that the verdict was based on the legally valid theory that defendant directly aided and abetted the murder"]; People v. Rivera (2015) 234 Cal.App.4th 1350, 1358–1359, 184 Cal.Rptr.3d 801 [first degree premeditated murder conviction reversed in light of Chiu where it may have been based on the natural and probable consequences theory, permitting defendant to accept reduction to lesser offense or prosecutor to retry greater offense]; see also In re Martinez , supra , 3 Cal.5th at pp. 1224, 1226, 226 Cal.Rptr.3d 315, 407 P.3d 1 [once defendant has shown jury was instructed on correct and incorrect theories of liability, the presumption is the error affected the judgment and "the record does not permit us to rule out a reasonable possibility that the jury relied on the invalid natural and probable consequences theory in convicting [the defendant] of first degree murder"].)
In light of our reversal of the attempted murder convictions, Medrano's and Martinez's contentions that reversal of the premeditation and deliberation findings on the attempted murder convictions is required under People v. Chiu , supra , 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 are rendered moot.
See footnote *, ante .
Defendants' convictions on count 5 and the jury's true findings on all the gang enhancements are reversed as to all three defendants. As to Medrano and Martinez only, the attempted murder convictions on count 1 are reversed. The verdicts on the remaining counts and enhancements are affirmed. The People may retry the defendants on counts 1 and 5, including the gang enhancement allegations. At any resentencing of the defendants, the trial court shall consider whether to exercise its new discretion pursuant to Senate Bills 620 and 1393, if applicable to any defendant.
LEVY, Acting P.J.