THE PEOPLE, Plaintiff and Respondent, v. RICHARD RODRIGUEZ LARIOS, Defendant and Appellant.
F078759 (Super. Ct. No. VCF211993C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 12/3/19
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
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Richard Rodriguez Larios appeals from an order denying a petition for recall of sentence and resentencing pursuant to
PROCEDURAL AND FACTUAL HISTORY
We grant Larios‘s request to take judicial notice, pursuant to
“... Larios and his codefendant Ronnie Zuniga were two of three Norteno occupants of a brown or tan Mercury Cougar automobile that stopped to get gas at a convenience store on Bardsley Avenue in Tulare. Already there at a gas pump was a black Nissan Maxima occupied by two Surenos, Irving Rodriguez and Juan Saucedo, and a friend of Rodriguez‘s since childhood, 17-year-old Stephanie G. After some staring or ‘mad dogging’ between the rival gang members at the gas pumps, and a brief verbal exchange between Norteno Zuniga and Sureno Saucedo when the two men went inside the store to pay for gas, the Cougar followed the Maxima when the Maxima drove away from the convenience store. A short distance away, approximately five gunshots were fired from the Cougar, at least four of which struck the Maxima. None of the bullets struck any of the three occupants of the Maxima, although Stephanie G. received cuts from shattered window glass.
“A first trial ended in a mistrial when the jury could not reach a verdict. In the second trial, the subject of this appeal, a jury found both Larios and Zuniga guilty of three counts of premeditated attempted murder (
Pen. Code, §§ 664 /187, subd. (a) ) and one count of shooting at an occupied motor vehicle (§ 246 ). The jury also found that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(4) ) and that a principal personally discharged a firearm in the commission of each crime (§ 12022.53, subds. (c) and(e)(1) ). Each defendant was sentenced to a term of 54 years to life.” (Larios I, supra, F059866, fn. omitted.)
In Larios I, this court directed the trial court to strike the 20-year
The remittitur on the appeal in Larios I issued on November 3, 2011.
On January 2, 2019, Larios filed a petition seeking relief under recently enacted
On January 9, 2019, the trial court summarily denied the petition, stating Larios was convicted of three counts of attempted murder, in violation of
DISCUSSION
In his brief, Larios emphasizes that he was not the shooter, there was no evidence at trial that he knew or should have known that another person in the vehicle was armed with or was going to use a firearm, and there was no evidence that he aided or abetted in the commission of this crime. To the extent Larios is asking us to reconsider the sufficiency of the evidence as it pertains to his convictions, that time has long passed. As for his request that we grant his appeal for resentencing pursuant to
“1. Does Senate Bill 1437 abrogate the natural and probable consequences doctrine as a theory of accomplice liability for crimes requiring the mental state of express malice aforethought?
“2. If the answer to the first question is yes, does Senate Bill 1437 provide or contemplate an exception for the crime of attempted murder?
“3. If the current law prohibits accomplice liability for attempted murder under the natural and probable consequences doctrine, does Penal Code section 1170.95 provide relief to persons convicted of attempted murder, whose convictions are final, as in the case of appellant herein?”
A. Does Senate Bill 1437 abrogate the natural and probable consequences doctrine as a theory of accomplice liability for crimes requiring the mental state of express malice aforethought?
Counsel for Larios observes, with no elaboration, that the court in Lopez “held that Senate Bill 1437 eliminated liability for murder under the natural and probable consequences doctrine.” The People, more directly, answer this question “No.” The People argue the history of Senate Bill 1437 and the plain language of the statutes
We disagree with the People‘s conclusion, and in the process, disagree with our colleagues in Lopez and Munoz.
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. 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, subd. (f).) This was accomplished through amendments to
As to the natural and probable consequences doctrine, at issue here, Senate Bill 1437 added a provision to
Based on the new statutory language in
B. Does Senate Bill 1437 provide or contemplate an exception for the crime of attempted murder?
The applicability of Senate Bill 1437 to the crime of attempted murder presents an issue of statutory interpretation for our independent review. (See People v. Tran (2015) 61 Cal.4th 1160, 1166 [“We review de novo questions of statutory construction“]; In re R.G., supra, 35 Cal.App.5th at p. 146.) Prior to Senate Bill 1437‘s enactment, a person who knowingly aided and abetted a crime, the natural and probable consequences of which was attempted murder or murder, could be convicted of not only the target crime but also of the resulting nontarget crime of attempted murder or murder, but not first degree murder. (People v. Chiu (2014) 59 Cal.4th 155, 161, 166; In re R.G., supra, at p. 144.)
“‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense.‘” (People v. Chiu, supra, 59 Cal.4th at p. 164.) The Chiu court further explained:
“[S]ection 31 provides in relevant part that ‘[a]ll 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 ... are principals in any crime so committed.’ It does not expressly mention the natural and probable consequences doctrine. Where the statutory language is vague, ‘the statutory definition permits, even requires, judicial interpretation.’ (People v. Chun (2009) 45 Cal.4th 1172, 1181.) We may, as a court, determine the extent of aiding and abetting liability for a particular offense, keeping in mind the rational function that
the doctrine is designed to serve and with the goal of avoiding any unfairness which might redound from too broad an application. [Citations.]” (People v. Chiu, supra, 59 Cal.4th at p. 164.)
Excepting the felony-murder rule,1 an accomplice may be convicted of a crime under one of two alternative theories: direct aiding and abetting liability and the natural and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “[O]utside of the natural and probable consequences doctrine, an aider and abettor‘s mental state must be at least that required of the direct perpetrator.” (Id. at p. 1118.) It follows that if malice is an element of a charged offense, accomplice liability under the natural and probable consequences doctrine necessarily entails the imputation of malice. (See McCoy, at pp. 1117–1118; People v. Lee (2003) 31 Cal.4th 613, 623–624; see also People v. Prettyman (1996) 14 Cal.4th 248, 259 [“‘We euphemistically may impute the actions of the perpetrator to the accomplice by “agency” doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual‘“].) However, as amended by Senate Bill 1437,
Pursuant to the above reasoning, we conclude Senate Bill 1437 precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder. Put differently, since “implied malice cannot support a conviction of an attempt to commit murder” (People v. Bland, supra, 28 Cal.4th at p. 327; see fn. 1,
We acknowledge two of our sister courts have held Senate Bill 1437 does not affect the natural and probable consequences doctrine as it relates to attempted murder. (Lopez, supra, 38 Cal.App.5th at pp. 1102–1113, rev. granted; Munoz, supra, 39 Cal.App.5th at pp. 753–769, rev. granted.) However, we respectfully disagree with their analyses and conclusions. Here‘s why.
“The ‘“goal of statutory construction is to ascertain and effectuate the intent of the Legislature.“’ [Citation.] In approaching this task, we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute‘s true meaning.” (People v. Cochran (2002) 28 Cal.4th 396, 400–401.) In other words, the plain meaning controls unless the words are ambiguous. (People v. Costella (2017) 11 Cal.App.5th 1, 6.) “‘If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute‘s purpose, and public policy.‘” (Ibid.) We may “‘examin[e] the context in which the language appears and adopt[] the construction which best serves to harmonize the statute internally and with related statutes.‘” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.)
The Lopez opinion acknowledges that “Senate Bill 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine” (Lopez, supra, 38 Cal.App.5th at p. 1092, rev. granted), but it suggests the imposition of vicarious liability for attempted murder under the same doctrine is not based on imputed malice. (Id. at p. 1106.) The logic of this argument escapes us.2 We are also
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (
§ 21a .) Murder is defined as “[t]he unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a) .) Express malice is synonymous with the intent to kill. (§ 188, subd. (a)(1) ; People v. Gonzalez (2012) 54 Cal.4th 643, 653; People v. Moon (2005) 37 Cal.4th 1, 29.) A criminal attempt “bears an extremely close relationship to the completed crime. Attempts, after all, are defined as incomplete efforts to commit a completed crime.” (People v. Fontenot (2019) 8 Cal.5th 57, 64.) Attempted murder thus requires “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Booker (2011) 51 Cal.4th 141, 177–178.)
The Legislature is presumed to be aware of existing interpretations of statutory language when it amends a statute. (Dix v. Superior Court (1991) 53 Cal.3d 442, 461–462section 188 to state “[m]alice shall not be imputed to a person based solely on his or her participation in a crime” (id., subd. (a)(3)), it made no exceptions for attempted murder, which indisputably requires express malice. (People v. Booker, supra, 51 Cal.4th at p. 178.) By failing to exclude attempted murder from the ambit of section 188, the Legislature must have intended for its provisions to apply to all crimes requiring express malice. We thus find the Lopez court‘s reasoning to be untenable. (See Lopez, supra, 38 Cal.App.5th at p. 1104, rev. granted [“Had the Legislature meant to bar convictions for attempted murder under the natural and probable consequences doctrine, it could easily have done so“].)
The foregoing analysis is buttressed by the California Supreme Court‘s recent observation that “courts impose a ‘heightened intent requirement’ for attempts ... even when the completed crime requires a less demanding mental state” in order “[t]o ensure that only those whose intentions and actions made them a pronounced threat to accomplish what a given criminal statute prohibits may be found criminally liable.” (People v. Fontenot, supra, 8 Cal.5th at p. 67.) “In effect, the higher bar serves as a bulwark against convicting someone of attempting to accomplish something he or she never set out to do.” (Id. at pp. 67–68.) The Legislature codified this safeguard in
For all these reasons, Senate Bill 1437‘s abrogation of the natural and probable consequences doctrine as stated in
C. If the current law prohibits accomplice liability for attempted murder under the natural and probable consequences doctrine, does section 1170.95 provide relief to persons convicted of attempted murder, whose convictions are final, as in the case of appellant herein?
Senate Bill 1437 also added
The plain language of
“There may well be sound policy reasons for the Legislature to adopt ameliorative provisions like those in Senate Bill 1437 for individuals charged with, or convicted of, attempted murder under the natural and probable consequences doctrine. But the Legislature‘s decision to limit sentencing reform at this time to offenders in cases of murder is certainly rational. First, the gap between a defendant‘s culpability in aiding and abetting the target offense and the culpability ordinarily required to convict on the nontarget offense is greater in cases where the nontarget offense is murder, than where the nontarget offense is attempted murder or, in the prosecutor‘s discretion, aggravated assault. The Legislature could have reasonably concluded reform in murder cases ‘was more crucial or imperative.’ ...
“Second, the process created in section 1170.95 for those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate that conviction and to be resentenced is not cost free. The staff of the Senate Appropriations Committee estimated, if 10 percent of the inmates eligible for relief under Senate Bill 1437 petitioned the courts for resentencing, additional court workload costs would approximate $7.6 million. The committee‘s report expressed concern that this increase in workload ‘could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.’ (Sen. Com. Appropriations Report, p. 3.) Additional expenditures would also be required to transport petitioners in custody to and from court hearings. (Ibid.)
“In a world of limited resources, it is reasonable for the Legislature to limit the scope of reform measures to maintain the state‘s financial
integrity. [Citations.]” (Lopez, supra, 38 Cal.App.5th at pp. 1111–1112, fn. omitted, rev. granted; see Munoz, supra, 39 Cal.App.5th at pp. 753–760, rev. granted.)
We agree with the reasoning of Lopez and Munoz that the relief provided in
DISPOSITION
The order is affirmed.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
FRANSON, J.