55 Cal.App.5th 273
Cal. Ct. App.2020Background
- In August 2015 Love drove a fellow gang member, Vaughn, into rival gang territory; Vaughn shot a man 10 times and also fired at a passing car. Love then texted Vaughn to move the gun.
- Love was charged with attempted murder (of the man Vaughn shot) and shooting at an occupied vehicle; gang and firearm enhancement allegations were filed and found true.
- Jury instructions allowed conviction for attempted murder by direct aiding and abetting, by natural and probable consequences (N&P) of aiding an assault, or by conspiracy with foreseeable consequences; Love was convicted and sentenced to life with a 47-year minimum (32 years minimum on the attempted murder count including a 25-year firearm enhancement).
- On appeal the Supreme Court remanded to consider Senate Bill 1437 (SB 1437); Love filed petitions under section 1170.95 seeking to vacate his attempted murder conviction as possibly resting on N&P theory; the trial court denied relief, ruling section 1170.95 does not apply to attempted murder.
- Love also moved to strike the 25-year firearm enhancement under the new discretionary authority; the trial court denied that motion and Love appealed that denial along with the section 1170.95 ruling.
Issues
| Issue | People (Plaintiff) Argument | Love (Defendant) Argument | Held |
|---|---|---|---|
| Whether SB 1437 prospectively abrogates natural and probable consequences liability for attempted murder | SB 1437 targets murder only; its text and legislative history show it eliminated vicarious malice for murder, not attempt | SB 1437 eliminated N&P theory for attempted murder and therefore bars convictions that rested on that theory | Court: SB 1437 does not eliminate N&P theory for attempted murder on a prospective basis |
| If SB 1437 did apply prospectively to attempt, whether that change applies retroactively to nonfinal convictions | SB 1437 created section 1170.95 which provides relief only for convictions for murder; that mechanism rebuts Estrada presumption of retroactivity | SB 1437 is ameliorative and thus should be applied retroactively to nonfinal attempted murder convictions under Estrada | Court: No retroactive effect for attempted murder because section 1170.95 limits relief to murder convictions, rebutting the Estrada presumption |
| Whether the trial court abused its discretion by denying Love's motion to strike the 25-year firearm enhancement | Trial court correctly exercised discretion after finding Love played an integral role and knew of the plan to shoot | Love argued he intended only to aid an assault, not a shooting, and thus the enhancement should be struck | Court: No abuse of discretion; substantial evidence supports that Love was integral and knew of the shooting |
Key Cases Cited
- Prettyman v. Superior Court, 14 Cal.4th 248 (Cal. 1996) (defines natural and probable consequences elements)
- Chiu v. Superior Court, 59 Cal.4th 155 (Cal. 2014) (explains objective foreseeability for N&P liability)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption of retroactivity for ameliorative statutes)
- People v. Lopez, 38 Cal.App.5th 1087 (Cal. Ct. App. 2019) (holds SB 1437 does not reach attempted murder)
- People v. Medrano, 42 Cal.App.5th 1001 (Cal. Ct. App. 2019) (reaches attempted murder for nonfinal convictions but not final ones)
- People v. Larios, 42 Cal.App.5th 956 (Cal. Ct. App. 2019) (holds prospective but not retroactive application to attempt)
- People v. Wilkinson, 33 Cal.4th 821 (Cal. 2004) (on classifications and lack of fundamental right to a particular sentence)
- People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (standard of review for refusal to strike enhancements)