39 Cal.App.5th 738
Cal. Ct. App.2019Background
- In June 2015 Munoz (Pico Viejo gang member) and associates fired at a Yukon carrying members of rival Brown Authority; one passenger (Carrillo) was wounded. The assailant who fired the injuring bullet was not conclusively identified.
- Munoz and codefendant Loaiza both fired guns; forensic evidence linked a .380 to Munoz (his DNA on the gun); Loaiza died in a post-shooting car crash.
- The jury convicted Munoz of shooting at an occupied vehicle and two counts of attempted premeditated murder, found firearm and gang enhancements true, but found the allegation that Munoz fired the injuring shot not true.
- Trial instructions allowed conviction for attempted premeditated murder either by (1) direct perpetration, (2) direct aiding-and-abetting, or (3) liability under the natural-and-probable-consequences (NPC) doctrine based on the target offense (shooting at an occupied vehicle).
- On appeal the court affirmed convictions, vacated sentence for resentencing limited to firearm enhancements under amended Penal Code §12022.53(h), and—after Supreme Court transfer to consider Senate Bill 1437—held SB 1437 (1) does not apply retroactively on direct appeal and (2) does not reach attempted murder.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Munoz) | Held |
|---|---|---|---|
| Sufficiency of evidence for willful, deliberate, premeditated attempted murder | Evidence (guns brought, gang motive, coordinated ambush, multiple shots) supports premeditation for at least one principal | Shooting was spontaneous/reflexive; no prior planning | Substantial evidence supported premeditation; conviction stands |
| Jury instruction re NPC and premeditation (whether NPC liability required foreseeability of premeditated attempt) | Instructions consistent with precedent (attempted murder as nontarget offense) | Court should have required that premeditated attempted murder itself be a foreseeable consequence of the target offense; error threatens conviction | No instructional error under controlling precedent (People v. Favor); instruction upheld |
| Applicability/retroactivity of Senate Bill 1437 and §1170.95 on direct appeal | SB 1437 relief must be pursued via §1170.95 petitioning process; not applied retroactively on direct appeal | SB 1437 is ameliorative and should be applied retroactively on direct appeal (Estrada) | SB 1437 does not apply retroactively on direct appeal; petitions under §1170.95 are the remedy |
| Scope of SB 1437: does it cover attempted murder? | SB 1437 targets murder and felony-murder/NPC murder theories; petitioner not eligible for attempted murder | SB 1437 should cover attempted murder (to avoid anomalous sentencing and equal protection issues) | SB 1437 by its plain terms applies only to murder; does not cover attempted murder; equal protection and absurdity claims rejected |
Key Cases Cited
- People v. Favor, 54 Cal.4th 868 (Cal. 2012) (held NPC doctrine could supply liability for attempted murder without requiring foreseeability of a premeditated attempt)
- People v. Chiu, 59 Cal.4th 155 (Cal. 2014) (limited NPC doctrine for first degree murder; aiding-and-abetting first-degree premeditated murder must be based on direct principles)
- People v. Lee, 31 Cal.4th 613 (Cal. 2003) (clarified that §664(a) requires the attempt itself be willful, deliberate, and premeditated but not that every aider personally have that mental state)
- Alleyne v. United States, 570 U.S. 99 (U.S. 2013) (facts that increase mandatory penalty are elements and must be found by a jury)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative criminal statutes presumptively apply to nonfinal cases unless Legislature indicates otherwise)
- People v. Conley, 63 Cal.4th 646 (Cal. 2016) (statutory resentencing procedures may indicate Legislature intended prospective application and foreclose retroactive application on direct appeal)