80 Cal.App.5th 468
Cal. Ct. App.2022Background
- Andres Lima was convicted by a jury of attempted willful, deliberate, and premeditated murder (Pen. Code §§ 664/187) and an assault (§ 245(a)(4)); jury found true gang and firearm enhancements (§§ 186.22, 12022.53). Trial court sentenced him to 32 years to life. He admitted two prior prison terms.
- The jury was instructed on two theories of attempted murder: direct aiding-and-abetting and the natural-and-probable-consequences (NPC) doctrine. The parties agree NPC is no longer a valid theory for attempted murder after legislative changes.
- During rebuttal the prosecutor referenced statements made by prospective jurors in voir dire; defense objected and later moved for mistrial alleging prosecutorial misconduct. The trial court denied mistrial.
- While the appeal was pending the Legislature enacted SB 775 (clarifying relief for attempted murder convictions under SB 1437) and AB 333 (narrowing the criminal street gang statute). The Supreme Court transferred the case back for reconsideration in light of SB 775.
- The Court of Appeal: (1) held the NPC instruction error harmless as to attempted murder given overwhelming evidence of aiding-and-abetting liability; (2) found the prosecutor’s references to jurors improper but harmless; (3) concluded AB 333 requires reversal of the gang findings and dependent firearm enhancements and remand for possible retrial of gang enhancements; and (4) awarded Lima 116 days presentence conduct credit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NPC instruction on attempted murder requires reversal after SB 775 | People: error, if any, is harmless beyond a reasonable doubt under Chapman/Aledamat given strong aiding-and-abetting evidence | Lima: NPC instruction undermines verdict; cannot be shown harmless | Harmless beyond a reasonable doubt; attempted-murder conviction affirmed on aiding-and-abetting theory |
| Whether trial court erred by not instructing that premeditated attempted murder must be a natural/probable consequence of the target crime | People: instruction not required given current law and SB 775 | Lima: trial court should have limited premeditation finding under NPC framework | Moot in light of SB 775; no relief granted on this ground |
| Prosecutorial misconduct for invoking prospective jurors’ voir dire statements in rebuttal | People: argument admissible as illustration; not challenged for accuracy; any error cured by instruction that arguments are not evidence | Lima: prosecutor improperly argued facts not in evidence and quoted jurors to inflame jury and bolster credibility | Statements were improper (facts not in evidence; quoting jurors) but nondestructive given overwhelming evidence; error was harmless |
| Effect of AB 333 on gang enhancements and dependent firearm enhancements | People: prosecution can meet amended gang statute; but accepts retrial on gang issues if necessary | Lima: AB 333 narrows gang definition and pattern-of-activity element; evidence insufficient under new law | True findings on gang enhancements vacated; firearm enhancements reversed (dependent on gang findings); remanded to allow prosecution to retry gang enhancements under AB 333 |
| Presentence conduct credit entitlement | People: 15% limit applies to violent felonies; indeterminate life does not bar conduct credit for attempted murder | Lima: entitled to 15% of actual custody days; life term alone does not preclude credit | Defendant entitled to 116 days of conduct credit; sentencing minute order corrected |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (1967) (harmless-beyond-a-reasonable-doubt standard for constitutional error)
- People v. Aledamat, 8 Cal.5th 1 (2019) (harmless-error review where a valid and invalid theory were both instructed)
- People v. Mendoza, 62 Cal.4th 856 (2016) (prosecutorial misconduct for arguing facts not in evidence)
- People v. Freeman, 8 Cal.4th 450 (1994) (impropriety of quoting individual jurors in argument)
- People v. Hill, 17 Cal.4th 800 (1998) (circumstances in which objections may be futile and forfeiture excused)
- People v. Lopez, 73 Cal.App.5th 327 (2021) (application/retroactivity and narrowing effect of AB 333 on gang statute)
- People v. Eagle, 246 Cal.App.4th 275 (2016) (remand for prosecution to prove newly added statutory element)
- People v. Duff, 50 Cal.4th 787 (2010) (presentence conduct credit allowed despite indeterminate sentence)
- People v. Ramos, 50 Cal.App.4th 810 (1996) (calculation rule for 15% presentence conduct credit)
- People v. Rodriguez, 9 Cal.5th 474 (2020) (statements not in evidence can be prejudicially powerful to a jury)