71 Cal.App.5th 1001
Cal. Ct. App.2021Background
- In 2008 a jury convicted Jorge Luis Montes of two counts of attempted murder and one count of mayhem, with gang and firearm enhancements; he received consecutive life terms plus a 25-to-life firearm term. A 2009 appeal affirmed the convictions.
- Montes filed a petition under Penal Code §1170.95 in February 2021, arguing he was not the actual killer, was convicted under the natural and probable consequences doctrine, lacked intent to kill, and was not a major participant acting with reckless indifference.
- The trial court summarily denied the petition on March 4, 2021, reasoning that attempted murder was not covered by §1170.95, that Montes possessed intent to kill (or the jury must have found so), and that he was a major participant who acted with reckless disregard.
- While the appeal was pending, Senate Bill No. 775 (effective Jan 1, 2022) expanded §1170.95 to include attempted murder under the natural and probable consequences doctrine; the Court of Appeal applied SB 775 to this nonfinal case.
- The appellate record showed the jury was instructed with CALCRIM No. 403 and the prosecutor argued the natural and probable consequences doctrine; the court concluded Montes could make a prima facie showing of eligibility and that the trial court erred by (1) categorically excluding attempted murder, (2) inferring intent to kill at the prima facie stage, and (3) engaging in improper factfinding about major participant/reckless indifference.
- The Court of Appeal reversed and remanded for further proceedings under §1170.95(c) after Jan 1, 2022, allowing briefing and, if appropriate, an order to show cause and a contested hearing.
Issues
| Issue | People’s Argument | Montes’s Argument | Held |
|---|---|---|---|
| Whether §1170.95 covers attempted murder after SB 775 | SB 775 effective Jan 1, 2022; court may apply to nonfinal judgments | SB 775 should apply and render attempted-murder convictions under N&P doctrine eligible | Court applied SB 775 and held attempted murder under N&P can trigger §1170.95 prima facie review |
| Whether trial court properly concluded Montes possessed intent to kill at prima facie stage | Trial court inferred intent from conviction and denied relief | Montes: intent was imputed from perpetrator under N&P; his own intent to kill was not established | Court held inference was improper; N&P imputes perpetrator’s intent and intent findings cannot defeat prima facie showing at initial stage |
| Whether trial court could find Montes was a major participant who acted with reckless disregard at prima facie stage | Trial court relied on record to find major participant/reckless disregard and denied petition | Montes: such factual determinations are improper until after an order to show cause and potential evidentiary hearing | Court held the trial court engaged in premature factfinding and reversed that aspect of the denial |
| Whether the trial court should have ordered further briefing or an order to show cause before denying | Trial court summarily denied without OSC or further briefing | Montes: court should have evaluated prima facie sufficiency, allow briefing, and issue OSC if prima facie met | Court reversed and remanded for proceedings under §1170.95(c) (briefing and possible OSC) after SB 775’s effective date |
Key Cases Cited
- People v. Lewis, 11 Cal.5th 952 (2021) (describing §1170.95 prima facie showing standard)
- People v. Sanchez, 46 Cal.App.5th 637 (2020) (holding N&P doctrine can impute specific intent to an accomplice)
- People v. Canizalez, 197 Cal.App.4th 832 (2011) (explaining vicarious liability under N&P; mens rea for aider/abettor is irrelevant for the nontarget offense)
- People v. Duchine, 60 Cal.App.5th 798 (2021) (factfinding is reserved for after an order to show cause and any evidentiary hearing)
- People v. Vieira, 35 Cal.4th 264 (2005) (new statutes generally apply to nonfinal judgments)
- People v. Nasalga, 12 Cal.4th 784 (1996) (criminal judgment not final until time for certiorari has passed)
- People v. Garcia, 28 Cal.App.5th 961 (2018) (remand appropriate when judgment unlikely to be final before new statute’s effective date)
- People v. Rodriguez, 58 Cal.App.5th 227 (2020) (legislative purpose of SB 1437 and related discussion)