THE PEOPLE, Plаintiff and Respondent, v. REYNALDO MALDONADO, Defendant and Appellant.
A161817
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 1/30/23
CERTIFIED FOR PUBLICATION; (San Mateo County Super. Ct. No. SC065313A)
BACKGROUND
2013 Conviction
In 2001, about 10:00 a.m. on the morning of the murder, Erick Morales and the victim were seen walking away from the high school they both attended. (People v. Maldonado (July 29, 2016, A141242) [nonpub. opn.].) That afternoon, the victim‘s body was found in a storage locker with multiple stab wounds to the chest and neck. (Ibid.) Appellant called the police and anonymously reported witnessing the killing; when subsequently interviewed by police he reported seeing a man with blood on his chest who may have been the killer. (Ibid.) Police were later unable to locate appellant, who apparently left the state a few weeks after the murder. (Ibid.)
In the following years, appellant told one person he lured the victim away and stabbed him with the help of a friend; he told another person the killing was a friend‘s idea and the friend stabbed the victim with appellant‘s help. (People v. Maldonado, supra, A141242.) He told both people that he and his friend buried their bloody clothes and the knife in their yard, and that he had a photograph of his friend with the victim‘s body. (Ibid.) Pоlice found a sweatshirt, knife, and cell phone buried in the yard of appellant‘s former residence, and found a photograph of Morales with the victim‘s body in appellant‘s residence at the time of his arrest. (Ibid.) Appellant testified at trial that he did not kill the victim or help Morales kill the victim, but that Morales brought him to the victim‘s body after the killing and appellant took a photograph and helped Morales bury the evidence. (Ibid.)
Appellant was charged with first degree murder (
The jury convicted appellant of first degree murder, but found the lying-in-wait special circumstance not true. This court affirmed the judgment. (People v. Maldonado, supra, A141242.)
2020 Resentencing Petition
In September 2020, appellant filed a petition for resentencing pursuant to
DISCUSSION
I. Section 1172.6
In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), effective January 1, 2019, the Legislature “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scоpe of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) “Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. (See
While this appeal was pending, the Governor signed into law Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), which “expanded the scope of those changes to encompass, among other things, murder convictions ‘under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person‘s participation in a crime.‘” (Langi, supra, 73 Cal.App.5th at p. 978; see Stats. 2021, ch. 551, § 2.)2 The Senate Bill 775 amendments apply to appellant‘s appeal. (See People v. Porter (2022) 73 Cal.App.5th 644, 652 [“[T]he trial court‘s order denying the petition is not yet final and Senate Bill Nо. 775 has already taken effect. Therefore, the revisions set forth in Senate Bill No. 775 apply to the instant petition.“]; People v. Montes (2021) 71 Cal.App.5th 1001, 1006 [“New legislation generally applies to all judgments which are not final as of the effective date of the new statute.“].)
If the court determines the petitioner made a prima faсie case for relief, “the court shall issue an order to show cause” and “hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction ....” (
II. Prima Facie Case
Appellant argues that, even though the jury was not instructed on the felony murder or natural and probable consequences doctrines, he may nonetheless have been convicted on a theory under which malice was imputed to him based solely on his participation in a crime. Specifically, appellant points to the instructions for aiding аnd abetting a lying-in-wait murder. We will first discuss the crime of aiding and abetting a lying-in-wait murder, and then turn to the jury instructions given in appellant‘s case.
“To prove first degree murder of any kind, the prosecution must first establish a murder within
Unlike first degree premeditated murder, “nothing in
We turn now to aiding and abetting an implied malice murder. “[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor‘s own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the
B. The Jury Instructions Permitted Conviction Based on Imputed Malice
We now turn to whether the jury instructions permitted conviction based on an impermissible theory of imputed malice.
The jury was instructed, with respect to malice, “There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he unlаwfully intended to kill. The defendant acted with implied malice if: [[] One, he intentionally committed an act; [1] Two, the natural and probable consequences of that act were dangerous to human life; [[] Three, at the time he acted he knew his act was dangerous to human life; [1] And, Four, he deliberately acted with conscious disregard for human life.” (See CALCRIM No. 520.)
As to lying in wait murder, the jury was instructed: “The defendant murdered by lying in wait if: [[] One, he concealed his purpose from the person killed; [¶[] Two, he waited and watched for an opportunity to act; [[]
Finally, on aiding and abetting, the jury was instructed pursuant to CALCRIM No. 401: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶[] Number One, the perpetrator committed the crime; [[] Two, the defendant knew the perpetrator intended to commit the crime; [¶[] Thrеe, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; [¶[] And, Four, 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 or she knows the perpetrator‘s unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator‘s commission of that crime. If all of these requirements аre proved the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.”
In Powell, the Court of Appeal determined that CALCRIM No. 401, the same aiding and abetting instruction used here, was “not tailored for” aiding
In Langi, supra, 73 Cal.App.5th 972, the Court of Appeal found this poor tailoring left open the possibility that the jury convicted the defendant based on a theory of imputed malice. In Langi, the defendant and others beat up the victim, who died after a punch caused him to fall and hit his head. (Id. at p. 975.) The jury was given a CALJIC instruction “identical in relevant substance” to “[t]he standard aiding-and-abetting instruction given in Powell” and here, CALCRIM No. 401. (Langi, at p. 983.)5 As here, the jury was not instructed on the natural and probable consequences doctrine. (Id. at p. 981.) Langi noted the aiding and abetting instruction “does not state that the aider and abettor must himself have known that the act he aided was life-threatening, or that he must himself have acted with indifference to human life.” (Id. at p. 982.) The court agreed with Powell‘s conclusion that “the standard aiding-and-abetting instructions are ill suited to the crime of second degree murder. If, as here, a trial court uses such an instruction without tailoring it to the specifics of that crime, the instruction
Langi concluded the jury instructions permitted the appellant to be cоnvicted of aiding and abetting second degree murder without a finding that he acted with conscious disregard for human life: “The aiding-and-abetting instruction stated that a person aids and abets a crime if he or she acts ’with knowledge of the unlawful purpose of the perpetrator, and ... with the intent or purpose of committing or encouraging or facilitating the commission of the crime.’ (CALJIC No. 3.01, italics added.) However, as noted above, the second degree murder instruction specified that the direct perpetrator of that crime need not аct with the unlawful intent of causing death. Thus, while the perpetrator must have deliberately performed the fatal act ‘with knowledge of the danger to, and with conscious disregard for, human life’ (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator‘s purpose need not have been to kill the victim, the aider and abettor‘s knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator nеed not have had ‘murderous intent,’ certainly the aider and abettor need not have had such an intent. Although the definition of second degree murder in CALJIC No. 8.31 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALJIC No. 3.01 does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, appellant need only have intended to encourage the perpetrator‘s intentional act—in this case, punching [the victim]—whether or
Here, the jury was instructed that a person aids and abets a crime if “he or she knows the perpetrator‘s unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator‘s commission of that crime.” The murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death. While the perpetrator must have concealed his purpose from the victim, waited and watched for an opportunity to act, intentionally made a surprise attack from a position of advantage, and have lain in wait for a substantial enough duration to show a state of mind equivalent to deliberation or premeditation, the jury may have found the perpetrator‘s purpose was only to injure or intimidate the victim in a surprise attack. Thus, using Langi‘s reasoning, the jury could have construed the instructions such thаt, “to be guilty as an aider and abettor of [lying in wait first degree] murder, appellant need only have intended to encourage the perpetrator‘s intentional act—in this case, [a surprise attack on the victim]—whether or not appellant intended to aid or encourage [the victim‘s] killing, and whether or not he personally knew of and disregarded the risk of such a killing.” (Langi, supra, 73 Cal.App.5th at p. 983.)
We emphasize the jury was not required to construe the instructions in this manner. The jury could have construed the instructions as requiring the aider and abettor know the perpetrator intended to commit the act and know the pеrpetrator acted with implied malice—in other words, know the perpetrator knew the act was dangerous to human life and deliberately disregarded the risk to life. Thus, the jury could have construed the
The People argue Powell and Langi are distinguishable because the convictions in those cases were for second degree murder, while appellant was convicted of first degree murder. The distinction is immaterial because, as explained above, first degree lying-in-wait murder can be based on a theory that the perpetrator acted with implied malice rather than an intent to kill. Powell and Langi‘s analyses of the standard instructions for aiding and abetting an implied malicе murder apply here.
The People also argue a finding that appellant knew of the perpetrator‘s intent to conduct a surprise attack and intended to aid that purpose “demonstrated the necessary conscious disregard for human life required for implied malice ....” We are not persuaded that a finding appellant knew the perpetrator planned to make a surprise attack and intended to aid such an attack is necessarily equivalent to a finding that appellant knew the surprise attack was dangеrous to human life and acted with conscious disregard for life.6
The People further contend the instructions required the jury to find that appellant “knew the perpetrator‘s intent to at a minimum perpetrate a lying-in-wait attack with implied malice and a state of mind equivalent to deliberation or premeditation ....” The instructions given to the jury do not so require.7 The jury was instructed an aider and abettor must “kn[o]w the perpetrator intended to commit the crime” and intend to aid “the perpetrator‘s unlawful purpose.” For implied malice lying-in-wait murder thе only intentions required of the perpetrator were (1) the intent to commit an act (while knowing the act was dangerous to human life and acting with conscious disregard for life), and (2) the intent to make a surprise attack. The instructions do not specify that the perpetrator must have intended that the duration of the lying in wait be substantial enough to show a state of mind equivalent to deliberation or premeditation, but just that the duration in fact was so substantial.
For the first time in a petition for rehearing, the People rely on Boyde v. California (1990) 494 U.S. 370 (Boyde) to argue that we must decide whether there is a reasonable likelihood the jury construed the instructions to permit conviction under a prohibited theory, and to further argue there is no such reasonable likelihood here. We requested appellant file a response, granted rehearing, and now reject the People‘s argument.
As an initial matter, the contention is forfeited. ” ‘It is well settled that arguments ... cannot be raised for the first time in a petition for rehearing.’ ” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092, abrogated on another ground by Martinez v. Combs (2010) 49 Cal.4th 35.)
The ultimate question before us is whether ” ‘the record, including the court‘s own documents, “contain[s] facts refuting the allegations made in the [section 1172.6] petition.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) Only “[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief” may the trial court dismiss the petition. (People v. Strong, supra, 13 Cal.5th at p. 708, italics added.) Here, given the ambiguous jury instructions, and after considering the prosecutor‘s closing argument, we cannot say the record conclusively establishes appellant is ineligible for relief.
Accordingly, “an evidentiary hearing is required. At that hearing, the court may find that appellant was the actual killer оr that he was an aider and abettor who facilitated the killing with personal disregard for human life, in which case his petition will be denied. If the prosecution fails to prove that
DISPOSITION
The order denying the petition is reversed. The matter is remanded with directions to issue an order to show cause and hold an evidentiary hearing.
SIMONS, Acting P.J.
We concur.
BURNS, J.
WISEMAN, J.*
(A161817)
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Judge: Hon. Robert D. Foiles
Trial Court: San Mateo County Superior Court
Attorneys:
Scott N. Cameron, Attorney at Law, under appointment by the First District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, and Lisa Ashley Ott, Deputy Attorney General, for Plaintiff and Respondent.