B311733
Cal. Ct. App.Dec 14, 2021Background
- Diego Carrillo was convicted in 1999 of first‑degree (premeditated) murder, attempted murder, and shooting at an inhabited dwelling; he was sentenced to life without parole. The jury found firearm‑use enhancements "not true."
- At trial the prosecutor argued the jury need not decide whether Carrillo or a co‑defendant fired the gun; the jury could convict him as the shooter or as an aider and abettor. Carrillo raised an alibi defense.
- The court orally instructed the jury with CALJIC No. 3.02 including natural‑and‑probable‑consequences (N&P) language, but the written instruction omitted the element identifying the target offense; the prosecutor did not rely on an N&P theory in argument. The jury was also instructed under CALJIC No. 3.00 that principals and aiders/abettors are "equally guilty."
- After Senate Bill 1437 and the addition of Penal Code § 1170.95, Carrillo petitioned to vacate his murder conviction and be resentenced. The prosecution opposed, arguing the record showed a malice murder (not felony‑murder or N&P) conviction, so § 1170.95 did not apply.
- The trial court denied the petition, finding Carrillo was not convicted under felony‑murder or the N&P doctrine. On appeal the Court of Appeal reversed and remanded, concluding Carrillo made a prima facie showing under § 1170.95 and the court must issue an order to show cause and hold a hearing.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Carrillo) | Held |
|---|---|---|---|
| Whether Carrillo made a prima facie showing under § 1170.95 | Record shows malice murder conviction, not felony‑murder or N&P; thus ineligible | Jury instructions and verdict leave open that conviction could be based on aider/N&P theory | Carrillo made a prima facie showing; remand for order to show cause and hearing |
| Whether the omission of a defined target crime and prosecutor's failure to argue N&P forecloses N&P liability | Prettyman requires identification of target crime; absent that and prosecutor reliance, jury could not have convicted under N&P | The oral CALJIC 3.02 instruction, even with omission, still instructed on N&P and could have led the jury to convict under that theory | Omission was error but does not, as a matter of law at the prima facie stage, negate that the jury may have relied on N&P; allegations accepted for § 1170.95 prima facie review |
| Significance of "not true" firearm finding and CALJIC 3.00 "equal guilt" instruction | "Not true" does not necessarily show aider liability; any trial errors would be harmless | "Not true" finding is consistent with the jury concluding Carrillo was an aider, and "equal guilt" could have allowed a general‑intent target offense to support a murder conviction | Court agrees "not true" finding does not foreclose aider theory and that equal‑guilt instruction could have resulted in murder liability without specific intent — supports prima facie showing |
Key Cases Cited
- People v. Prettyman, 14 Cal.4th 248 (1996) (explains N&P accomplice liability and that jury instructions must identify the target offense)
- People v. Santamaria, 8 Cal.4th 903 (1994) (jury need not unanimously agree whether defendant was direct perpetrator or aider/abettor to convict)
- People v. Lewis, 11 Cal.5th 952 (2021) (§ 1170.95 prima facie stage: accept petitioner allegations as true; low prima facie bar)
- People v. Gentile, 10 Cal.5th 830 (2020) (describes SB 1437 reforms and purpose of § 1170.95 relief)
- People v. Lawson, 189 Cal.App.3d 741 (1987) (presumption jurors follow the court's instructions)