People v. Herrera CA5
F079701
| Cal. Ct. App. | Dec 1, 2021Background
- In 2008 Raul Herrera was convicted of second-degree murder and active gang participation; jury found the murder was gang-related and found a §12022.53, subd. (e)(1) firearm enhancement based on a co-principal’s discharge.
- At trial Herrera stood behind the shooter (Robby Maule) during a garage shooting that killed Korey Suttles; the jury was instructed on both direct aider-and-abettor liability and the natural-and-probable-consequences (N&P) theory.
- Herrera filed a §1170.95 petition in 2019, checked that he requested appointment of counsel, and asserted he could not now be convicted of murder under the post‑SB 1437 reforms.
- The trial court denied the petition without appointing counsel, concluding the record showed Herrera was convicted under a malice/accomplice theory (not the N&P doctrine) and relied on the firearm enhancement.
- The Court of Appeal held Herrera filed a compliant petition requesting counsel, and the trial court erred by denying the petition without appointing counsel and without conducting the limited prima facie inquiry required by §1170.95.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying a §1170.95 petition without appointing counsel | The record showed Herrera was convicted under a malice accomplice theory, so no relief; appointment unnecessary | Herrera filed a compliant petition requesting counsel; court must appoint counsel before resolving prima facie | Reversed: court must appoint counsel, issue an order to show cause, and proceed under §1170.95(d) |
| Whether the record conclusively shows Herrera was not convicted under the natural‑and‑probable‑consequences doctrine | The jury verdict and enhancement findings reflect direct accomplice liability and malice, not N&P | Jury was instructed on both direct aiding and N&P theories; the record is not dispositive at prima facie stage | Trial court erred by resolving disputed record issues at prima facie stage; prima facie bar is low and factual issues require further proceedings |
| Whether the §12022.53 enhancement forecloses relief because it establishes principal liability | Enhancement finding shows Herrera was a principal and co‑principal personally fired the gun, negating §1170.95 eligibility | A principal for §12022.53 can include aiders/abettors under N&P; enhancement does not dispositively foreclose relief at prima facie stage | Enhancement did not justify summary denial; factual assessment belongs to the evidentiary stage, not the preliminary prima facie review |
Key Cases Cited
- People v. Lewis, 11 Cal.5th 952 (explaining SB 1437, §1170.95 procedure, and prima facie standard)
- People v. McCoy, 25 Cal.4th 1111 (describing natural and probable consequences theory)
- People v. Lisea, 213 Cal.App.4th 408 (holding §12022.53 principal can include aiders/abettors under N&P)
- People v. Soto, 51 Cal.App.5th 1043 (discussion of N&P jury instructions and related issues)
- People v. Duchine, 60 Cal.App.5th 798 (explaining limits on resolving factual disputes at §1170.95 prima facie stage)
- People v. Rivera, 62 Cal.App.5th 217 (procedural guidance for remand and further §1170.95 proceedings)
- People v. Watson, 46 Cal.2d 818 (harmless‑error standard applied to state‑law errors)