THE PEOPLE, Plaintiff and Respondent, v. EDGAR ANTONIO FLORES, Defendant and Appellant.
D081200
(Super. Ct. No. INF062219)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/2/23
CERTIFIED FOR PUBLICATION
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, Lynne G. McGinnis, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Edgar Antonio Flores appeals the order denying a petition for resentencing on his second degree murder conviction. The superior court denied the petition without holding an evidentiary hearing on the ground Flores was ineligible for resentencing because he had been convicted of provocative act murder. We affirm.
I. BACKGROUND
A. Murder
This case arises out of a gun battle during a high-speed vehicle chase in 2008. Flores drove a car that had been reported stolen, and with him were Alexis Melendrez in the front seat and Anthony Albert Paez in the back seat. When California Highway Patrol (CHP) officers spotted the car and tried to stop it, Flores sped off. The CHP officers pursued the car.
B. Trial
Flores and Paez were charged with the murder of Melendrez (
To find Paez guilty, the jury was instructed it had to find that during his commission of attempted murder, assault with a firearm, or shooting at an occupied vehicle, he committed the provocative act of shooting at the pursuing CHP officers, which he knew was dangerous to human life, committed with conscious disregard for life, should have foreseen had a high probability of initiating a chain of events resulting in someone‘s death, and caused Melendrez‘s death. (See CALCRIM No. 560.) To find Flores guilty, the jury was separately instructed it had to find that while he was aiding and abetting Paez in the commission of the same three offenses, Flores committed the provocative act of driving in a manner that allowed Paez to shoot at the pursuing CHP officers, which Flores knew was dangerous to human life, committed with conscious disregard for life, should have foreseen had a high probability of initiating a chain of events resulting in someone‘s death, and caused Melendrez‘s death. (See CALCRIM No. 561.) The instruction specific to Flores advised the jury it could not find him guilty unless the People proved he committed a provocative act that caused Melendrez‘s death, and he was not guilty if the jury decided Paez committed the only provocative act that caused the death.
Each instruction advised the jury that for the murder to be first degree, the jury had to find Melendrez was killed during an attempted murder the specific defendant intended to commit and as a result of the provocative act committed by that defendant; that a murder that did not satisfy those requirements was second degree; and that in determining the degree, the jury should refer
Flores and Paez were tried together in early 2010 and found guilty of the murder of Melendrez and other crimes.2 The jury fixed the degree of the murder as first for Paez and second for Flores. The judgment of conviction against Flores was affirmed on appeal in 2012. (People v. Paez (July 3, 2012, D058373) [nonpub. opn.].)
C. Section 1172.6 Proceeding
After Flores‘s judgment became final, legislation narrowed the scope of liability for felony murder and abolished liability for murder based on the natural and probable consequences doctrine. (
1, 2022.) The procedure is now codified as section 1172.6. (Stats. 2022, ch. 58, § 10; see People v. Wilson (2023) 14 Cal.5th 839, 869, fn. 9 (Wilson).) We use that statutory number for simplicity.
Flores, representing himself, filed a form petition for resentencing under
The superior court appointed counsel for Flores. At a status conference, the People asked the court to deny the petition because Flores had been convicted of murder based on the provocative act doctrine and not felony murder or murder under the natural and probable consequences doctrine. Flores‘s counsel stated he had seen the jury instructions and agreed the petition should be denied because the conviction was for provocative act murder. Based on those statements, the court found Flores ineligible for relief and denied the petition.
II. DISCUSSION
Flores contends the superior court erred by denying his
A. Standard of Review
We review de novo an order denying a
The statutory change relevant to Flores‘s claim that he might have been convicted based on a theory of imputed malice that is no longer valid is the addition of subdivision (a)(3) to section 188. (Stats. 2018, ch. 1015, § 2.) Under that provision, except in cases of felony murder, “in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (
In urging us to reach the opposite conclusion, Flores argues the superior court‘s instructions allowed the jury to find him guilty of murder either by committing a provocative act himself with the required mental state (CALCRIM No. 561) or, alternatively, by aiding and abetting Paez‘s commission of a provocative act with only Paez having the required mental state (CALCRIM Nos. 400, 401, 560). Hence, Flores argues, his murder conviction might have rested on the jury‘s impermissible imputation of malice from Paez to him. In support of this argument, he relies on People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) and People v. Langi (2022) 73 Cal.App.5th 972 (Langi), where the Courts of Appeal reversed orders denying section 1172.6 petitions at the prima facie review stage because, in their view, instructions on aiding and abetting and implied malice could have allowed juries to impute malice based solely on the appellant‘s participation in a crime. Flores also relies on People v. Lee (2023) 95 Cal.App.5th 1164 (Lee), where the Court of Appeal reversed an order denying a section 1172.6 petition at the prima facie review stage because at the time of the appellant‘s conviction of provocative act murder in 1994, the law did not require a defendant personally act with malice and allowed conviction based on the provocative act and mental state
One flaw in Flores‘s argument is that it has nothing to do with the changes to the law of murder that authorize convicted murderers to seek relief under section 1172.6. When Flores was convicted in 2010, a provocative act murder conviction required the defendant personally harbor malice, whether it was the defendant or an accomplice who committed the provocative act that caused the death. (Concha, supra, 47 Cal.4th at p. 663 [“The defendant or an accomplice must proximately cause an unlawful death, and the defendant must personally act with malice.“]; McCoy, supra, 25 Cal.4th at p. 1118 [defendant “is liable for her mens rea, not the other person‘s“]; Lee, supra, 95 Cal.App.5th at pp. 1181-1182 [Concha indicated “a murder conviction, whether first or second degree, requires proof of a defendant‘s individual mental state“]).4 That requirement is fully consistent with the 2019 amendments to section 188, which require for a murder conviction not based on the felony-murder rule that each principal in a crime act with malice aforethought and prohibit imputation of malice based solely on participation in a crime. (Stats. 2018, ch. 1015, § 2.) Hence, Flores cannot show he “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” (
Bereft of any legislative change supporting relief, Flores‘s argument reduces to a claim that the instructions given at his trial did not clearly require the jury to find that he personally acted with malice to find him guilty of provocative act murder, and instead let the jury impute malice from
Paez to him. Such a routine claim of instructional error could have been asserted on appeal from the judgment of conviction. “Section 1172.6 does not create a right to a second appeal,” however, and Flores “cannot use it to resurrect a claim that should have been raised in his . . . direct appeal.” (Burns, supra, 95 Cal.App.5th at p. 865; accord, People v. Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing of a section [1172.6] petition does
Another flaw in Flores‘s argument is that the cases on which he relies are not on point. Lee is distinguishable because in 1994, when the appellant in that case was convicted of provocative act murder, our “Supreme Court had not separated out the mens rea of individual defendants in provocative act murder cases,” and “case law imposed culpability on all perpetrators of the underlying crime so long as the provocateur acted with malice, and did so in furtherance of the common criminal design.” (Lee, supra, 95 Cal.App.5th at p. 1182.) As we already explained, that was no longer true by the time of Flores‘s conviction in 2010, when the law was clear the defendant must personally act with malice. (Concha, supra, 47 Cal.4th at p. 663; McCoy, supra, 25 Cal.4th at p. 1118; see fn. 4, ante.) As for Langi, supra, 73 Cal.App.5th 972, and Maldonado, supra, 87 Cal.App.5th 1257, we recently said there is no “indication the opinions considered the effect of the language in subdivision (a)(3) of section 1172.6 requiring that defendants show they can no longer be convicted ‘because of’ the recent legislative changes.” (Burns, supra, 95 Cal.App.5th at 868, fn. 7.) ” ‘It is axiomatic that cases are not authority for propositions not considered.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 684.)
Moreover, the problems the Langi, Maldonado, and Lee courts perceived with the jury instructions given in those cases were not present in the instructions given in Flores‘s case. Lee concluded the jury might have imputed malice from an accomplice because the instructions allowed the jury to find the appellant guilty if during the commission of a robbery a ” ‘surviving perpetrator . . . intentionally committed a provocative life-threatening act . . . [¶] . . . with knowledge of the danger to and with conscious disregard for human life.’ ” (Lee, supra, 95 Cal.App.5th at p. 1182.) Langi and Maldonado concluded that because, in the view of those courts, the instructions did not adequately explain that to be guilty of implied malice murder or murder by lying in wait an aider and abettor personally had to act with malice, the juries might have imputed malice from the direct perpetrator to the aider and abettor based solely on his participation in the crime. (Langi, supra, 73 Cal.App.5th at pp. 983-984; Maldonado, supra, 87 Cal.App.5th at pp. 1266-1267.) The instructions in Flores‘s case, however, presented no such possibility for imputing malice.
As we recounted earlier (see pt. I.B., ante), the superior court gave two separate instructions on provocative act murder, one patterned after CALCRIM No. 560 for Paez as the direct perpetrator and the other patterned
Flores insists, however, his acquittal of the charges of attempted murder, assault with a firearm, and shooting at an occupied vehicle (see fn. 2, ante) suggests the jury most likely found him guilty for aiding and abetting Paez‘s provocative act, and “merely found that Mr. Paez possessed the mens
rea necessary to convert the police‘s [sic] act of shooting into a murder for which [Flores] was responsible.” We disagree. The jury was instructed to consider all the instructions together; to separately consider the evidence as it applied to each defendant; to decide each charge for each defendant separately; that the crimes charged required the union of act and wrongful intent; and that the act and specific intent or mental state required for murder were explained in the instruction for that crime. (CALCRIM Nos. 200, 203, 252.) As noted above, on murder the jury was given one instruction tailored to Paez and
C. Ineffective Assistance of Counsel
Finally, we reject Flores‘s contention that counsel appointed to represent him on the section 1172.6 petition provided ineffective assistance by failing to amend the petition and to argue that Flores was entitled to relief because he might have been convicted of murder on a theory of imputed malice. As we have explained, the jury did not find him guilty of murder on a theory that allowed imputation of malice based solely on his participation in a crime at the time of conviction but no longer allows such imputation because of the legislative changes authorizing convicted murderers to seek relief under section 1172.6. Since Flores is ineligible for relief on the ground he now urges, counsel was not ineffective for failing to raise that ground in the superior court. (See, e.g., People v. Caro (2019) 7 Cal.5th 463, 488 [counsel not ineffective for failing to make frivolous or futile motion]; In re Reno (2012) 55 Cal.4th 428, 519 [mere omission of meritless claim insufficient to show counsel‘s performance was deficient]; In re M.V. (2014) 225 Cal.App.4th 1495, 1528 [when issues raised on appeal were not likely to have succeeded at trial, counsel was not ineffective for having failed to press them at trial].)
The order denying the petition for resentencing is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.