S272238
IN THE SUPREME COURT OF CALIFORNIA
November 27, 2023
Fourth Appellate District, Division Three G058604; Orange County Superior Court 02CF2160
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
PEOPLE v. CURIEL
S272238
Opinion of the Court by
In 2006, a jury convicted Freddy Alfredo Curiel of first degree murder (
Twelve years later, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which narrowed or eliminated certain forms of accomplice liability for murder. (See Stats. 2018, ch. 1015.) Among other things, Senate Bill 1437 barred the use of the natural and probable consequences doctrine to obtain a murder conviction. (People v. Gentile (2020) 10 Cal.5th 830, 851 (Gentile).) Senate Bill 1437 also created “a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
Curiel petitioned for relief and resentencing under this new procedure. (Former
We granted review to consider the effect of the jury‘s true finding on the gang-murder special circumstance, specifically its finding that Curiel intended
The trial court erred, however, in denying Curiel‘s petition at the prima facie stage based on this finding. The jury‘s finding of intent to kill does not, itself, conclusively establish that Curiel is ineligible for relief. Curiel‘s allegation that he could not currently be convicted of murder because of the changes in substantive law enacted by Senate Bill 1437 put at issue all the elements of murder under current law. Murder liability as an aider and abettor requires both a sufficient mens rea and a sufficient actus reus. A finding of intent to kill, viewed in isolation, establishes neither.
But that conclusion does not end the prima facie inquiry. The jury necessarily made other findings, which bear on Curiel‘s liability for murder. We discuss those findings below and conclude that they too are insufficient to rebut Curiel‘s allegation of nonliability and conclusively establish that he is ineligible for relief. For example, the mens rea required of a direct aider and abettor includes knowledge of the perpetrator‘s intent to commit an unlawful act constituting the offense and the intent to aid the perpetrator in its commission. (People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).) The jury‘s verdicts, viewed in light of the court‘s jury instructions, do not show the jury necessarily made factual findings covering these elements. Thus, the trial court could not reject Curiel‘s prima facie showing on this basis, and it should have proceeded to an evidentiary hearing on Curiel‘s resentencing petition. Because the Court of Appeal likewise found that the trial court erred, albeit on different grounds, we affirm its judgment, which reversed the trial court‘s order denying relief.2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
A group of friends, including Cesar Tejada, were socializing outside of Tejada‘s apartment late one night in August 2002. Two men, later identified
After visiting the convenience store, Curiel and Hernandez approached the group. According to recorded statements that witness Lupe O. made to police, Hernandez confronted Tejada, asked him “where he was from,” and started shoving him. Raul came to Tejada‘s aid, but Curiel got mad and said, “this is my neighborhood.” Lupe responded, “it‘s not your neighborhood,” and Curiel became angrier. He started screaming that it was “his neighborhood” and “OTH.” Hernandez and Tejada started pushing each other. At some point, Tejada grabbed Hernandez‘s shirt and shoved him over a shopping cart. Hernandez got up, took out a gun, and shot Tejada. Curiel and Hernandez ran away.
At trial, Lupe claimed she did not remember the events leading up to the shooting. She eventually agreed that Hernandez started an argument with Tejada, but Curiel tried to get them to calm down. Lupe said she had known Curiel for a long time, Curiel did not have anything to do with the shooting, and “he didn‘t want [the shooting] to happen.”
Raul testified that he remembered Curiel arguing with the group of friends, telling Tejada “something about gangs or the barrio,” and asking Tejada where he was from. Tejada responded, “I am from nowhere.” Raul told Curiel and Hernandez to leave, and Curiel responded it was none of Raul‘s business, that he should “[s]hut the fuck up” and “get the hell out of here.” Lupe and Curiel argued and traded insults. Hernandez pulled out a gun and chased one of the other friends. The friend ran behind Tejada, and Hernandez shot Tejada in the chest at close range. On cross-examination, Raul was confronted with earlier testimony where he stated that Hernandez, not Curiel, asked Tejada where he was from.
Tejada suffered a single gunshot wound to his upper left chest. Residue or “stippling” around the wound indicated that Tejada was shot from approximately 12 to 18 inches away. The wound was fatal.
The prosecution‘s gang expert testified that he had been a police officer for 24 years and specialized in gang-related crimes. He had spoken to many gang members over the years about gang culture, the expectations of gang members, and concepts like “backup and payback and respect and loyalty” in a gang. The gang expert testified that gangs can be organized around a race or
The gang expert further testified about the importance of “respect” in gang culture, which in reality means “fear and intimidation.” For example, “[t]he more violent an individual is, the more respect he has within the gang and the more fear that he produces in the community.” If a community member tells a gang member to leave or says “you don‘t live here,” the gang member will probably react violently. The gang expert explained that a gang member is expected to provide “backup” for fellow gang members who commit crimes, and a member may be punished for not providing sufficient backup. Guns are important in gang culture, and in the expert‘s experience, “if there is a gun within a group, that it is expected that everybody knows if there is a gun and who has it.”
The gang expert was familiar with the O.T.H. gang, which the parties stipulated was a criminal street gang. The expert had reviewed police reports involving O.T.H., talked with other detectives about O.T.H., and spoken with O.T.H. members themselves. The gang expert testified that O.T.H. is a “turf-oriented” gang, and Tejada‘s apartment was within the territory claimed by the gang. In response to a hypothetical question based on the facts of this case, the expert testified that Curiel would have been expected to provide “backup” to Hernandez during the confrontation with Tejada. Moreover, in the expert‘s view, Tejada‘s shooting was done for the benefit of or in association with a criminal street gang, and it promoted and assisted the criminal conduct of a gang. The expert explained, “[T]hese two individuals doing the hit-up on that other individual are promoting their particular gang in trying to push him out of that area by challenging him. You know, ‘where are you from?‘” The shooting “elevates their status because they were willing to work, do the work for the gang, promote the gang, and act in a violent manner against somebody who would disrespect that particular gang.” Yelling the name of the gang during the shooting would “promote that particular gang so that the witnesses hear that and they know who is doing it. They know what gang it is and who is responsible for that violent act.”
On cross-examination, the gang expert acknowledged that gang members commit crimes that are not for the benefit of a gang, and it is “not uncommon” for them to do so. Every shooting by a gang member is not
Curiel testified in his own defense. He said he had only seen Hernandez twice before the night of the shooting. Hernandez arrived at the house where Curiel was hanging out, and about 10 minutes later Curiel said he was going to the convenience store. Hernandez asked if he could come along. On the way to the store, Curiel saw Tejada‘s group of friends. Hernandez asked who they were, and Curiel said they lived in the neighborhood. On the way back, Hernandez walked away from Curiel and toward the group. Hernandez approached Tejada and said something that Curiel could not hear. Curiel followed and started speaking with Lupe. Curiel heard Tejada tell Hernandez “you are making the area hot” and “you can‘t come around here.” Raul told both Hernandez and Curiel to leave. Curiel told Raul to calm down. Tejada shoved Hernandez, who tripped over something behind him. Hernandez got back up and shot Tejada “real quick.” Curiel was surprised; he did not know Hernandez was armed. Curiel ran away.
Curiel said that, after he and Hernandez were arrested and in custody, he told Hernandez he was mad and angry. But Curiel did not “want to hold a grudge against him,” and they started writing back and forth. In one letter, Curiel wrote, “You are a good dude with a lot of cora and a good head on your shoulders, but with too much damn [pride].” In another, Curiel wished Hernandez a happy birthday: “I know it is on the 27th, but it is all good. I will be the first to congratulate you.” In closing, Curiel wrote, “And keep your head up all day every day. Free like O.J. Much respect, F. Curiel.”
In a letter to another friend, Curiel talked about communicating in code and mentioned Lupe: “Let me know when you write about Lupe, what she says, but just change her name to... Eva and I will know who you are talking about.” Later, Curiel reminded the friend, “Please do all the above for me” and “especially talk to Lupe aka Eva.” Curiel signed the letter with his gang moniker and wrote “O.T.H.”
Curiel testified, “I wanted [the friend] to go and talk to [Lupe] because I don‘t know if she — if she understood what I was facing. And considering what she told the police that day, I — I knew she was lying....” Curiel explained that he wanted to use the name “Eva” because he did not want the prosecutor to think he was threatening Lupe if the letter were intercepted. Curiel denied threatening Lupe or directing anyone else to threaten her.
Several months before Tejada was killed, Curiel went with an accomplice nicknamed “Troubles” to steal shoes from a business. Curiel went inside,
B. Closing Arguments and Jury Instructions
In closing arguments, prior to the court‘s jury instructions, the prosecutor contended that Curiel had instigated the confrontation with Tejada and his friends. He said Curiel “did the hit-up and he was there for backup.” The prosecutor maintained that Curiel directly aided and abetted Tejada‘s murder and was also guilty under the natural and probable consequences doctrine. He argued that Curiel acted with both express malice (intent to kill) and implied malice. For the latter, the prosecutor said Curiel committed acts that were dangerous to human life, such as confronting Tejada and acting as backup for Hernandez, and he consciously disregarded the danger to life. The prosecutor also specifically discussed the gang-murder special circumstance. He explained, “To prove that this special circumstance is true, the People must prove that, one, the defendant intended to kill. [¶] Remember, we talked about for both special circumstance[s] you can find the defendant guilty of first degree murder. That doesn‘t automatically make the special circumstance true. You have to also determine if I prove to you beyond a reasonable doubt that he had the intent to kill.”
Defense counsel emphasized that Curiel was not the shooter. He went on, “And it is really important that, you know, we are clear on what [the prosecutor] has to prove with the specific intents and all the mental states to go through. And it is very complicated, because my client is not — you have to crawl into his head. You have to try to figure out whether or not [the prosecutor] has proven those mental states beyond a reasonable doubt.” Among other things, defense counsel noted that Curiel had “to know that Hernandez . . . intended to commit a crime, okay? And he has to know and has to be proven that my client knew Hernandez‘s unlawful purpose. And the fact that he is just simply present does not make him an aider and abettor.” Defense counsel accused Raul of lying when he said Curiel asked Tejada, “where are you from?” Defense counsel said Raul had previously attributed this statement to Hernandez, but he had changed his testimony for Curiel‘s trial. Defense counsel also criticized the prosecution‘s gang expert based on his lack of any academic qualifications and his “junk expertise.” Defense counsel disagreed that “all the guys that they think are gang members . . . all behave the same way.” He attacked as “nonsense” the idea that “[i]f one gang member has a gun, they all know he has a gun.”
In its jury instructions, the court identified Hernandez as the alleged perpetrator of Tejada‘s murder. It continued, “A person is equally guilty of
For the theory of direct aiding and abetting, the trial court instructed the jury as follows: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [1] the perpetrator committed the crime; [2] the defendant knew that the perpetrator intended to commit the crime; [3] before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [4] the defendant‘s words or conduct did, in fact, aid and abet the perpetrator‘s commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator‘s unlawful purpose and he specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator‘s commission of that crime.”
The trial court also instructed the jury on aiding and abetting based on the doctrine of natural and probable consequences: “To prove that the defendant is guilty of murder under the theory of aiding and abetting [based on] natural and probable consequences, the People must prove beyond a reasonable doubt that [1] the defendant is guilty of disturbing the peace or of carrying a concealed firearm by a gang member; [2] during the commission of the crime of disturbing the peace or of the crime of carrying a concealed firearm by a gang member the crime of murder was committed; and [3] under all the circumstances a reasonable person in the defendant‘s position would have known that the commission of murder was a natural and probable consequence of the commission of the crime of disturbing the peace or of the crime of carrying a concealed firearm by a gang member.”
The court went on, “A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] If the murder was committed for a reason independent of the common plan to commit the crime of disturbing the peace or the crime of carrying a concealed firearm by a gang member, then the commission of murder was not a natural and probable consequence of the crime of disturbing the peace. To decide whether a crime of murder was committed, please refer to the separate instructions that will be given to you on that crime.”
The court also instructed the jury on the elements of disturbing the peace and carrying a concealed firearm by a gang member, as well as conspiracy
For the gang-murder special circumstance allegation, the court instructed the jury as follows: “To prove that this special circumstance is true, the People must prove that: [1] the defendant intended to kill; [2] at the time of the killing the defendant was a member in a criminal street gang; and [3] the murder was carried out to further the activities of the criminal street gang.”
Following deliberations, the jury convicted Curiel of first degree murder and found true the gang-murder special circumstance allegation and the criminal street gang sentencing enhancement, as described above. The trial court sentenced Curiel to life imprisonment without the possibility of parole, consecutive to an indeterminate term of 25 years to life in prison. The Court of Appeal affirmed the judgment in an unpublished opinion. (People v. Curiel (Feb. 21, 2008, G037359) [nonpub. opn.].)
C. Resentencing Proceedings and Appeal
Following the enactment of Senate Bill 1437, Curiel petitioned the trial court for resentencing. (
Curiel appealed, and the Court of Appeal reversed. (People v. Curiel (Nov. 4, 2021, G058604) [nonpub. opn.].) The appellate court accepted the jury‘s finding of intent to kill, but it concluded the finding was insufficient to show that Curiel was ineligible for resentencing as a matter of law. It explained, “to convict a defendant for first degree murder under the theory of direct aiding and abetting, the prosecution must prove more than just murderous intent. In addition to proving the defendant harbored the intent to kill, the prosecution must also show the defendant actually ‘aided or encouraged the commission of the murder[.]‘” The court continued, “In this case, the jury‘s true finding on the special circumstance allegation did not prove this crucial additional
The Attorney General petitioned for review, which we granted. We now address whether and under what circumstances a jury‘s finding of intent to kill renders a defendant who seeks relief under Senate Bill 1437 ineligible for resentencing as a matter of law.
II. DISCUSSION
A. Senate Bill 1437
The Legislature enacted Senate Bill 1437 “to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b).) The Legislature recognized, “It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.” (Id., § 1(d).) With this purpose in mind, Senate Bill 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) Outside of the felony-murder rule, “a conviction for murder requires that a person act with malice aforethought. A person‘s culpability for murder must be premised upon that person‘s own actions and subjective mens rea.” (Id., § 1(g).)
Senate Bill 1437 altered the substantive law of murder in two areas. First, with certain exceptions, it narrowed the application of the felony-murder rule by adding
Senate Bill 1437 also enacted former
Under
“[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708.) “When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition ‘to determine whether the petitioner has made a prima facie case for relief.’ (§ 1172.6, subd. (c); [citation].) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. (See § 1172.6, subd. (c); [citation].) If, instead, the defendant has made a prima facie showing of entitlement to relief, ‘the court shall issue an order to show cause.’ (§ 1172.6, subd. (c).)” (Strong, at p. 708.)
“Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
B. Issue Preclusion
As noted, the trial court denied Curiel‘s petition at the prima facie stage based on the jury‘s intent to kill finding. The Court of Appeal disagreed that the intent to kill finding precluded relief, but it still treated the finding as conclusive on the issue of Curiel‘s intent. In this court, however, Curiel raises a more basic question: Should the jury‘s intent to kill finding be considered at all? Curiel believes it should not. He relies on general principles of issue preclusion to argue that the jury‘s finding should not impact a court‘s assessment of his resentencing petition, either because the traditional elements of issue preclusion have not been satisfied or, alternatively, because an equitable exception to preclusion should be applied. Curiel‘s argument is unpersuasive.
Because the resentencing statute itself does not prohibit the consideration of jury findings — and in fact affirmatively contemplates it — we determined that general principles of issue preclusion informed our consideration of the effect of prior jury findings in a resentencing proceeding under
“In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel.” (Strong, supra, 13 Cal.5th at p. 715.) “The doctrine of collateral estoppel, or issue preclusion, is firmly embedded in both federal and California common law. It is grounded on the premise that ‘once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed.’ [Citation.] ‘Collateral estoppel . . . has the dual purpose of protecting litigants from the burden of relitigating an identical issue with”
the same party or his privy and of promoting judicial economy by preventing needless litigation.‘” (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 864, fn. omitted (Murray).)
“As traditionally understood and applied, issue preclusion bars relitigation of issues earlier decided ‘only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom
Curiel argues two of these requirements are missing: first, whether the intent to kill finding was actually litigated, and second, whether it was necessarily decided. “An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .’” (People v. Sims (1982) 32 Cal.3d 468, 484 (Sims), quoting Rest.2d Judgments (1982) § 27, com. d, p. 255.) An issue is necessarily decided so long as it was not “‘entirely unnecessary’ to the judgment in the initial proceeding.” (Lucido, supra, 51 Cal.3d at p. 342.) “In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.)
The record here shows that Curiel‘s intent to kill was actually litigated and necessarily decided. The prosecution alleged the gang-murder special circumstance, which included an intent to kill element, and Curiel put all elements of the special circumstance at issue by pleading not guilty. (See People v. Jones (2011) 51 Cal.4th 346, 372.) The court instructed the jury it could not find the special circumstance allegation true unless it determined Curiel “intended to kill.” By finding the special circumstance allegation true, the jury necessarily found beyond a reasonable doubt that Curiel intended to kill. (See Rest.2d Judgments, supra, § 27, com. g, pp. 257–258 [“If several issues are litigated in an action, and a judgment cannot properly be rendered in favor of one party unless all of the issues are decided in his favor, and judgment is given for him, the judgment is conclusive with respect to all the issues”].)
Curiel contends his intent to kill was not actually litigated because his counsel did not specifically address the special circumstance in closing argument. But this element of issue preclusion requires only “the opportunity to litigate . . . not whether the litigant availed himself or herself of the opportunity.” (Murray, supra, 50 Cal.4th at p. 869; accord, Sims, supra, 32 Cal.3d at p. 484 [a party‘s “failure to present evidence at the hearing did not preclude the . . . issue from being ‘submitted’ to and ‘determined’” by the trier of fact].) Curiel cites Hardy v. America‘s Best Home Loans (2014) 232 Cal.App.4th 795, 806, for the proposition that the parties in the underlying action must have “ ‘disputed the issue’ ” for it to
Separately, Curiel contends the issue of his intent to kill was not necessarily decided. He points to the trial court‘s jury instructions on conspiracy, which told the jury that a member of a conspiracy is “criminally responsible,” under certain circumstances, for the acts and statements of other members of the conspiracy. (CALCRIM former Nos. 416, 417.) But the instructions went on to explain the requirements for Curiel tobe liable for murder as a co-conspirator, not any special circumstance. The special circumstance instructions separately required the jury to find that Curiel intended to kill, and the prosecutor explained this requirement to the jury in closing arguments. He stated, “Remember, we talked about for both special circumstance[s] you can find the defendant guilty of first degree murder. That doesn‘t automatically make the special circumstance true. You have to also determine if I prove to you beyond a reasonable doubt that he had the intent to kill.” By finding the special circumstance allegation true, the jury necessarily decided that Curiel intended to kill.
We therefore conclude the jury‘s intent to kill finding meets the traditional threshold requirements for issue preclusion. This conclusion is consistent with our observation in Strong that a relevant jury finding is generally preclusive in
However, this conclusion does not end our inquiry. “[W]hile these threshold requirements are necessary, they are not always sufficient: ‘Even if the[] threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles’ of promoting efficiency while ensuring fairness to the parties.” (Strong, supra, 13 Cal.5th at p. 716.)
In Strong, we applied “one well-settled equitable exception to the general rule” of issue preclusion, which “holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.” (Strong, supra, 13 Cal.5th at p. 716.) “This exception ensures basic fairness by allowing for relitigation where ‘the change in the law [is] such that preclusion would result in a manifestly inequitable administration of the laws.’ [Citation.] It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion — ‘preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation’ [citation] — are at an ebb.” (Id. at p. 717.)
The significant change in the law identified in Strong concerned the felony-murder special circumstance, specifically its requirement that an aider and abettor act “with reckless indifference to human life and as a major participant” in the underlying felony to be liable. (
Because a jury‘s felony-murder special-circumstance finding made before Banks and Clark carries with it a significant risk that it does not reflect a
Curiel has not identified any similar change in the law that would justify a departure from the general rule of issue preclusion. The intent to kill finding that was required at the time of Curiel‘s trial was governed by the same standards that exist today. There has been no intervening change in the law akin to Banks and Clark.
Sidestepping the substantive law governing the finding itself, Curiel argues that other changes in the law, specifically those governing the admissibility of expert testimony, providesufficient support for an equitable exception to issue preclusion. He attempts to link these changes to the jury‘s finding of intent to kill by arguing that the jury would not have made the finding if the expert testimony at his trial had not been admitted. It does not appear that this court or any lower California court has addressed whether a change in the law governing the admissibility of evidence is sufficient to invoke an equitable exception to issue preclusion. However, even assuming that such a change could be sufficient under certain circumstances, Curiel has not justified the application of an equitable exception under the circumstances here. He has not shown there has been a significant change in the law that would have resulted in a different factual finding under the law as it exists today. (See Strong, supra, 13 Cal.5th at p. 716.)
Curiel correctly points out that this court narrowed the permissible scope of expert testimony in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Unlike lay witnesses, experts are allowed as a matter of necessity to testify to certain matters that would otherwise be excluded as hearsay: “In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.” (Id. at p. 675.) “The hearsay rule has traditionally not barred an expert‘s testimony regarding his general knowledge in his field of expertise. ‘[T]he common law
“By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676.)
Sanchez explained, “At common law, the treatment of an expert‘s testimony as to general background information and case-specific hearsay differed significantly. However, the line between the two has now become blurred.” (Sanchez, supra, 63 Cal.4th at p. 678.) Under the modern approach, “in support of his opinion, an expert is entitled to explain to the jury the ‘matter’ upon which he relied, even if that matter would ordinarily be inadmissible.” (Id. at p. 679; see
Prior to Sanchez, courts sought to avoid this hearsay issue by instructing the jury that an expert‘s testimony regarding the matters on which his or her opinion were based should be used only to evaluate the opinion and “‘should not be considered for their truth.’” (Sanchez, supra, 63 Cal.4th at p. 679, quoting People v. Montiel (1993) 5 Cal.4th 877, 919.) Sanchez found this practice untenable with respect to case-specific facts. “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert‘s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, ‘the validity of [the expert‘s] opinion ultimately turn[s] on the truth’ [citation] of the hearsay
Nonetheless, an “expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert‘s testimony,
Thus, although Sanchez narrowed the scope of permissible expert testimony, it did not impact the ability of an expert to rely on hearsay evidence to reach his or her opinions, relate those opinions to the jury, and explain in general terms their bases. Nor did Sanchez foreclose the introduction of case-specific evidence through other means. Given this limited scope, we see no reasonable likelihood that the jury‘s substantive finding in this case would have been different if Sanchez had been the law during Curiel‘s trial. The change in the law effected by Sanchez does not support Curiel‘s claim that the finding should not be given preclusive effect.
Resisting this conclusion, Curiel focuses on the specific circumstances of his trial and the testimony of the prosecution‘s gang expert. But even assuming it is proper to consider these circumstances, Curiel has not shown it would be inequitable to give preclusive effect to the jury‘s intent to kill finding. To begin, Curiel appears to misunderstand the import of Sanchez, and he fails to substantiate his assertion that large portions of the gang expert‘s testimony would be inadmissible under current law. He repeatedly attacks the expert‘s opinion testimony as being “based on hearsay” or “founded in hearsay.” But it is not improper under Sanchez for an expert to consider and rely on case-specific hearsay in forming his or her opinions. (Sanchez, supra, 63 Cal.4th at p. 685.) “The limitations that Sanchez placed on expert testimony concern case-specific information that an expert relates to a jury, not materials upon which the expert relies.” (People v. Camacho (2022) 14 Cal.5th 77, 128.)
Curiel also cites the
Curiel had more than adequate incentive to litigate his intent to kill because, under one theory pursued by the prosecution, it was an element of the crime of murder itself. The jury was instructed that Curiel could be liable for murder as a direct perpetrator if he caused the victim‘s death and harbored an intent to kill. The prosecutor maintained in closing arguments that Curiel was liable under this theory because his actions — precipitating the confrontation and providing backup to Hernandez — were a substantial factor in causing the murder and because Curiel intended to kill. Curiel therefore had an incentive to litigate the issue of his intent to kill regardless of the significance of the special circumstance.
Moreover, the special circumstance finding would have collateral consequences in any future appeal or petition for writ of habeas corpus (e.g., by demonstrating the harmlessness of any trial error, see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165) and could impact a future request for pardon or commutation from the Governor. We therefore disagree with Curiel that the significance of the special circumstance finding was “minimal” and it should not be given preclusive effect.5
Relatedly, Curiel argues that the enactment of Senate Bill 1437 itself was such a significant and unforeseeable change in the law that it would be inequitable to apply issue preclusion to jury findings in his underlying trial. This argument is plainly foreclosed by our opinion in Strong: “[T]he structure of the statute — which permits trial courts to consult the record of conviction
C. The Jury‘s Intent to Kill Finding
Although we conclude the jury‘s intent to kill finding should be given preclusive effect, it remains to be determined what that effect should be, i.e., how a trial court should apply the intent to kill finding in resentencing proceedings under
The Attorney General contends the intent to kill finding is not only relevant, but dispositive, based on
The Attorney General is correct that the allegation under
Our standard of review in this context is well-settled: “The proper interpretation of a statute is a question of law we review de novo. [Citations.] ‘“‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.’”’ [Citation.] . . . ‘[W]e look to “the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]” [Citation.] That is, we construe the words in question “in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We mustharmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’”’” (Lewis, supra, 11 Cal.5th at p. 961.)
The “changes” described in
Because the amendment to section 188 specifically concerns malice, the Attorney General argues that the jury‘s finding of intent to kill (i.e., express malice) conclusively refutes Curiel‘s allegation that he could not currently be convicted of murder “because of changes to
The Attorney General‘s position is unpersuasive. It reads
Thus, after the enactment of Senate Bill 1437, a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought. (Gentile, supra, 10 Cal.5th at p. 849Id. at p. 850.) And it requires a different, valid theory because of the changes to section 188 in Senate Bill 1437. It was those changes that persuaded this court that the doctrine of natural and probable consequences could no longer support murder liability, with or without malice. (Gentile, at p. 849.) Consequently, a petitionerwho alleges that he or she could not currently be convicted of a homicide offense “because of changes to Section 188 or 189 made effective January 1, 2019” (§ 1172.6, subd. (a)(3)) puts at issue all elements of the offense under a valid theory.
The Legislature‘s focus on intent does not compel a different result. As discussed, the amendments to section 188 concerning malice had broader effects on the substantive law of murder than a narrow reading would suggest. The Legislature sought to limit murder liability to established theories that incorporated the requisite intent; it did not intend to impose an
At the prima facie stage, a court must accept as true a petitioner‘s allegation that he or she could not currently be convicted of a homicide offense because of changes to
This general principle applies to a finding of intent to kill. It is only one element. It does not by itself establish any valid theory of liability. (See In re Lopez (2023) 14 Cal.5th 562, 587(Lopez).) For example, “under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with ‘knowledge of the direct perpetrator‘s unlawful intent and [with] an intent to assist in achieving those unlawful ends.’” (Gentile, supra, 10 Cal.5th at p. 843.) Similarly, to be liable for murder under a theory of implied malice, an aider and abettor must aid in the commission of a life-endangering act, with “‘knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’” (People v. Reyes (2023) 14 Cal.5th 981, 991 (Reyes), italics omitted.) A finding of intent to kill does not, standing alone, cover all of the required elements. It does not itself show that a petitioner like Curiel is liable for murder under any valid theory.
D. The Jury‘s Other Findings
While a finding of intent to kill does not, itself, suffice to refute a petitioner‘s allegation under
efficiently addressed as part of a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at p. 971.) ” ‘[I]f the record, including the court‘s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” (Ibid.) “In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief . . . .” (Id. at p. 972.)
For example, in Strong, we concluded that pre-Banks and Clark special circumstance findings did not have preclusive effect in resentencing proceedings under
The Attorney General argues the same line of reasoning applies to this case. Curiel was not prosecuted under a theory of felony murder, and the underlying offenses here (disturbing the peace and carrying a concealed firearm by a gang member) are not among those enumerated in
As framed, this argument is analogous to one we considered recently in Lopez, supra, 14 Cal.5th 562. There, a defendant filed a petition for writ of habeas corpus alleging his jury was improperly instructed on the natural and probable consequences theory of aiding and abetting first degree murder. (Id. at p. 578; see People v. Chiu (2014) 59 Cal.4th 155, 158–159
Unlike Lopez, this matter is not governed by principles of harmless error. But, similar to Lopez, we may look to the jury‘s verdicts, and the factual findings they necessarily reflect, to determine whether the record of conviction refutes the factual allegations in Curiel‘s petition. (See Lewis, supra, 11 Cal.5th at p. 971.) If the jury has made a factual finding, and it is issue preclusive under the principles described above, a court must give effect to that finding. (See ibid.) A court giving effect to such a finding does not engage in ” ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) It is simply “distinguish[ing] petitions with potential merit from those that are clearly meritless” based on findings already made by the jury. (Id. at p. 971; see Strong, supra, 13 Cal.5th at p. 710.)
Although the framework evoked by the Attorney General is valid, we cannot agree with his ultimate conclusion. For reasons we explain, the jury‘s verdicts do not reflect all of the factual findings necessary to support a murder conviction under current law. Thus, they do not refute Curiel‘s allegation that he could not be convicted of murder under
Additionally, the jury was required to find that Hernandez committed murder during the commission of the crime of disturbing the peace or the crime of carrying a concealed firearm by a gang member, and that “under all the circumstances a reasonable person in [Curiel‘s] position would have known that the commission of murder was a natural and probable consequence of the commission of the crime of disturbing the peace or of the crime of carrying a concealed firearm by a gang member.” The jury was told, “A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.”
The scope of criminal liability is defined by statute: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.” (
In general, to establish liability for murder under the theory of direct aiding and abetting, “the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.” (Chiu, supra, 59 Cal.4th at p. 167.) In addition, as noted, an aider and abettor may be liable for murder under a theory of implied malice where the aider and abettor aids in the commission of a life-endangering act, with ” ‘knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of
The jury found Curiel guilty of first degree murder and found true the gang-murder special circumstance, but it was not required to identify which theory it found persuasive. Assuming the jury relied on the then-available natural and probable consequences doctrine to convict Curiel of murder, the Court of Appeal below found the jury‘s factual findings insufficient under current law based on the absence of the last element of direct aiding and abetting, the aider and abettor‘s actus reus. The Attorney General responds that the jury must have found the requisite actus reus by Curiel based on his aiding one of the underlying target crimes (either disturbing the peace or carrying a concealed firearm by a gang member), of which murder was both an actual and a natural and probable consequence. In the Attorney General‘s view, based on the close causal relationship between the underlying crime and the murder, any act that aided or encouraged the underlying target crime must also as a factual matter have aided or encouraged the murder as well. He contends, “The actus reus under each theory entails, at a minimum, encouragement of, or participation in, some activity that foreseeably results in a homicide. . . .” For example, an aider and abettor who purchases a gun for a direct perpetrator could, by that act, be found to aid both the underlying offense of carrying a concealed firearm by a gang member and the offense of murder that results.
However, in order to find this element satisfied at the prima facie stage of
Under the court‘s instructions, the jury was not required to make these findings. Because the jury was instructed on the natural and probable consequences doctrine, the jury was required to find only that Curiel knew that Hernandez intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder. Nor was the jury required to find that the underlying target offenses, themselves, were dangerous to human life. While the jury separately found Curiel intended to kill, such an intent standing alone is insufficient to establish the requisite mens rea for aiding and abetting murder. The essence of aiding and abetting is involvement in the crime of another. The aider and abettor must become “concerned” with the crime itself. (
The Attorney General relies heavily on McCoy in this context, but it does not support a contrary conclusion. McCoy considered “whether an aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed.” (McCoy, supra, 25 Cal.4th at p. 1114.) We determined that an aider and abettor could be liable for a greater offense, based on a more culpable mens rea. “Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor‘s own
This recognition, however, did not entail dispensing with the traditional mens rea required for aiding and abetting murder. We explained, “[W]hen a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person‘s guilt is determined by the combined acts of all the participants as well as that person‘s own mens rea. If that person‘s mens rea is more culpable than another‘s, that person‘s guilt may be greater even if the other might be deemed the actual perpetrator.” (Id. at p. 1122, italics added.)
McCoy discussed two examples, which figure prominently in the Attorney General‘s argument. First, we explained, ” ‘it is possible for a primary party negligently to kill another (and, thus, be guilty of involuntary manslaughter), while the secondary party is guilty of murder, because he encouraged the primary actor‘s negligent conduct, with the intent that it result in the victim‘s death.’ ” (Id. at p. 1119.) Second, we called to mind a well-known tragedy: “[A]ssume someone, let us call him Iago, falsely tells another person, whom we will call Othello, that Othello‘s wife, Desdemona, was having an affair, hoping that Othello would kill her in a fit of jealousy. Othello does so without Iago‘s further involvement. In that case, depending on the exact circumstances of the killing, Othello might be guilty of manslaughter, rather than murder, on a heat of passion theory. Othello‘s guilt of manslaughter, however, should not limit Iago‘s guilt if his own culpability were greater. Iago should be liable for his own acts as well Othello‘s, which he induced and encouraged. But Iago‘s criminal liability, as Othello‘s, would be based on his own personal mens rea. If, as our hypothetical suggests, Iago acted with malice, he would be guilty of murder even if Othello, who did the actual killing, was not.” (Id. at pp. 1121–1122.)
Critical to these examples is not only an intent to kill but knowledge and intent regarding the direct perpetrator‘s homicidal or life-endangering acts. The aider and abettor in the first example ” ‘encouraged the primary actor‘s negligent conduct.’ ” (Id. at p. 1119.) And Iago “induced and encouraged” Othello‘s murderous rage. (Id. at p. 1122.) Indeed, in applying our holding, we recognized in McCoy that the jury found the aider and abettor had “acted with the necessary mental state of an aider and abettor” and “knew of [the direct perpetrator‘s] unlawful purpose and intended to commit, encourage, or facilitate that purpose.” (Id. at pp. 1122–1123.) The jury here was not required to make any similar findings encompassing Curiel‘s knowledge and intent regarding Hernandez‘s conduct.
We have characterized this scenario — where a defendant is liable for murder under the natural and probable consequences doctrine, and acts with malice aforethought, but is not liable as a direct aider and abettor — as “quite narrow” and relevant only to a “very small set of cases.” (Gentile, supra, 10 Cal.5th at p. 850 of law. Only in the latter scenario would a trial court be permitted to deny a defendant‘s section 1172.6 petition at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 971.) In other words, only in that scenario would the record of conviction “establish conclusively that the defendant is ineligible for relief.” (Strong, supra, 13 Cal.5th at p. 708.)
Contrary to the Attorney General‘s contention, this conclusion does not involve “litigat[ing] anew” any trial issues or allowing “a petitioner to challenge any aspect of the factfinding from the original trial that he or she wishes to revisit.” We have already determined that the jury‘s factual findings should be given preclusive effect. The point here is to identify what those factual findings are and how they relate to the elements of murder under a valid theory.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
Notes
The State Public Defender, as amicus curiae, cites Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 as another potential change in the law justifying an equitable exception to issue preclusion. We disagree. While Sargon emphasized the role of the trial court “as a gatekeeper to exclude speculative or irrelevant expert opinion” (id. at p. 770), neither the State Public Defender nor Curiel has shown Sargon meaningfully expanded Curiel‘s ability to object to the gang expert‘s testimony. (See People v. Tran (2022) 13 Cal.5th 1169, 1213–1214 [challenges to reliability and foundation for expert testimony forfeited because they were available before Sargon]; see also People v. Lucas (2014) 60 Cal.4th 153, 245, fn. 36, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) Moreover, even looking at the specific circumstances of Curiel‘s trial, their criticism of the prosecution‘s gang expert (primarily his reliance on his general training and experience) is unpersuasive. For example, they have pointed to no evidence in the record that the expert was asked to provide more specificity regarding the bases for his opinions but could not do so.
The State Public Defender also cites changes to the substantive definition of a criminal street gang. (See