THE PEOPLE, Plaintiff and Respondent, v. OBED ESTRADA, Defendant and Appellant.
B311019
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
Filed 4/25/22
CERTIFIED FOR PUBLICATION; Los Angeles County Super. Ct. No. TA107213
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Obed Estrada appeals from an order denying his petition for resentencing under
After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), Estrada filed a petition for resentencing under
In 2010, a jury found Estrada guilty of one count of first degree murder with a gang enhancement. (
In March 2019, Estrada filed a petition for resentencing pursuant to
In January 2021, the trial court held a hearing and denied Estrada‘s petition without issuing an order to show cause, after finding that Estrada did not meet his prima facie burden under
Estrada timely appealed.
DISCUSSION
I. Governing Law
On January 1, 2019, Senate Bill No. 1437 took effect “to amend 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.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 1437 amended sections
A petition for relief under
If the court determines the petitioner has made a prima facie showing of eligibility for relief, it must issue an order to show cause. (
II. Estrada Is Ineligible for Relief as a Matter of Law
Estrada argues that the trial court erred because the record establishes that he may have been convicted of first degree murder under a natural and probable consequences theory. We disagree. The record establishes that Estrada was convicted of first degree murder as an aider and abettor with intent to kill, and he is therefore ineligible for resentencing under
First, as we previously held, the record establishes that the jury instructions “ensured that the jury would only find Estrada guilty of first degree murder, even as an aider and abettor, if it concluded he acted willfully and with intent to kill . . . .” (People v. Estrada, supra, B226963 at p. 17.) Accordingly, to find Estrada guilty of first degree murder, which the jury did here, it
Second, the trial court never instructed the jury on CALCRIM Nos. 402 or 403, which contain the natural and probable consequences doctrine. Estrada concedes this fact. Instead, he argues that because the trial court provided to the jury a bracketed portion of CALCRIM No. 400, this bracketed instruction, coupled with statements by the prosecution in the closing argument, which Estrada characterizes as a “natural and probable consequences theory of first-degree murder,” could have led a jury to find him guilty of first degree murder on a natural and probable consequences theory.
The Bench Notes to CALCRIM No. 400 provide in relevant part: “When the prosecution is relying on aiding and abetting, give this instruction before other instructions on aiding and abetting to introduce this theory of culpability to the jury.” It goes on to state: “If the prosecution is also relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph.” (Judicial Council of Cal., Crim. Jury Instns. (2022) Bench Notes to CALCRIM No. 400.) This bracketed paragraph reads: “Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” (Ibid.)3 The People do not dispute that this bracketed paragraph was given to the jury.
Here, only CALCRIM No. 401—regarding aiding and abetting liability—was given to the jury. The record establishes, and Estrada concedes, that the prosecution never argued the trial court should give CALCRIM Nos. 402 or 403 because they are required under the Bench Notes when proceeding on a natural and probable consequences theory. (Judicial Council of Cal., Crim. Jury Instns., supra, Bench Notes to CALCRIM No. 400.) Moreover, given our prior holding that the jury instructions, taken as a whole, required the jury to find that Estrada acted with intent to kill in order to find him guilty of first degree murder, even under an aider and abettor theory, we do not find that the bracketed language alone is sufficient to find that the jury was instructed on a natural and probable consequences theory. (See People v. Estrada, supra, B226963 at p. 17.)4
Our Supreme Court‘s analysis regarding a prior version of CALCRIM No. 400 and its interplay with CALCRIM No. 401 is determinative here. In People v. Johnson (2016) 62 Cal.4th 600 (Johnson), the jury was instructed on an old version of CALCRIM No. 400 providing that: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted the perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” (Johnson, supra, 62 Cal.4th at p. 638, citing former CALCRIM No. 400 (Aug. 2009), italics added.) The court held that where CALCRIM No. 401 is also provided, “there was no reasonable likelihood the jurors would have understood the ‘equally guilty’ language in former CALCRIM No. 400 to allow them to base defendant‘s liability for first degree murder from the mental state of the actual shooter, rather than on defendant‘s own mental state in aiding and abetting the killing.” (Johnson, supra, 62 Cal.4th at p. 641.) Here, where the “equally
Moreover, where jury instructions regarding aiding and abetting liability directly mentioned the natural and probable consequences doctrine, and our Supreme Court stated that the “instruction concerning the natural-and-probable-consequences doctrine actually was not required,” it held the error harmless because the prosecutor never requested instructions identifying and describing the target offense, such as the instructions in CALCRIM Nos. 402 and 403, and the prosecutor argued to the jury that the defendants intended to commit all the charged offenses, so there was no reasonable likelihood the jury misunderstood or misapplied the law. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 183–184 (Letner and Tobin); see also People v. Rivas (2013) 214 Cal.App.4th 1410, 1433–1434 [“Our Supreme Court has observed that when the parties make ‘no reference to the “natural and probable consequences” doctrine in their arguments to the jury, it is highly unlikely that the jury [will have] relied upon that rule . . .’ (People v. Prettyman (1996) 14 Cal.4th 248, 273)“].) Accordingly, while here the inclusion of the bracketed language in CALCRIM No. 400 was erroneous, the error was harmless because, as in Letner and Tobin, the prosecution never requested the instructions in CALCRIM Nos. 402 and 403, and the prosecution argued that Estrada intended to commit the charged offenses. As we previously held, “[w]e are not persuaded by Estrada‘s argument that the jury may have disregarded CALCRIM Nos. 520 [First or Second Degree Murder With Malice Aforethought] and 521 [First Degree Murder] as applying only to the shooter, and not Estrada. The instructions referred specifically to the defendant, not a principal, and informed the jury what the People had to prove as to the defendant. There was only one defendant in this case, Estrada. We assume the jury followed the instructions rather than disregarding them.” (People v. Estrada, supra, B226963 at p. 17.)
Finally, Estrada‘s claim that specific language in the prosecution‘s closing argument “was, at its essence, an instruction on the natural and probable consequences theory of first-degree murder” is unpersuasive. Estrada relies on language that, on its face, instructs the jury on the intent he was required
“Element no. 2, the defendant knew the perpetrator intended to commit that crime. Gang members commit crimes together. He walked up with the shooter knowing the shooter had a gun. His own admissions and conduct tells us he knew what was the game plan. How do we know he knew something was going to happen at the time of the confrontation. He is standing right next to the shooter. . . . And he participates in that confrontation with challenging Mr. Ricardo Chavez, where are you from. Knowing what happens after, where are you from, violence is likely to occur.”
Estrada argues that this “likely to occur” language shows that the prosecution operated under a theory of natural and probable consequences. But the prosecution was arguing the second element of CALCRIM No. 401; specifically, that Estrada knew his co-gang member intended to kill the victim once they confronted him. This “likely to occur” language during argument did not convey to the jury that they could convict on a natural and probable consequences theory.
In sum, the record shows Estrada was convicted as a direct aider and abettor, and is thus ineligible for
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to