THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MANCILLA, Defendant and Appellant.
B308413
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
Filed 8/12/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BA417858-02)
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Based on his active role in a shootout between rival gangs, Joseph Mancilla was convicted of first degree murder and four counts of attempted willful, deliberate and premeditated murder. In July 2020 the
FACTUAL AND PROCEDURAL BACKGROUND
1. Mancilla‘s Trial for Murder and Attempted Murder
Mancilla, Carlos Rojas and several other individuals (three of whom were minors at the time of the offenses) were charged in an amended information filed October 24, 2014 with the murder on Christmas Day 2010 of Cesar Guerrero (
Our opinion affirming Mancilla‘s and Rojas‘s convictions summarized the evidence presented at trial. (People v. Mancilla (Mar. 14, 2018, B268375) [nonpub. opn.].)2 In brief, Mancilla, Rojas and Guerrero were members of the Echo Park criminal street gang. On December 25, 2010 Rojas drove Mancilla and Guerrero to an apartment building in the Echo Park neighborhood of Los Angeles where several members of Los Crazy Mexicans (LCM), a rival gang, resided. Mancilla and Guerrero fired handguns at the apartment building, apparently in retaliation for a series of recent gang shootings by LCM. The intended victims shot back. Guerrero was killed in the gunfire; several people inside the building, including two LCM members, were wounded.
As we detailed, “At closing argument, the district attorney argued that Mancilla and Rojas were both guilty of Guerrero‘s murder under the provocative act theory. According to the district attorney, the evidence showed
2. Jury Instructions
The court instructed the jury on provocative act murder using CALCRIM No. 560, which, as described in our opinion, explained that, to convict the defendants of murder under the provocative act doctrine, the People had to prove, “(1) [I]n committing the attempted murder, the defendant intentionally did a provocative act; (2) the defendant knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life; (3) in response to the defendant‘s provocative act, suspected LCM gang members killed Cesar Guerrero; and (4) Guerrero‘s death was the natural and probable consequence of the defendant‘s provocative act.” (People v. Mancilla, supra, B268375, at *16-17.)
The instruction also included language regarding the degree of the offense: “If you decide the defendant is guilty of murder, you must decide whether the murder is first or second degree. [¶] ... [¶] The defendant is guilty of first degree murder if the People have proved that his provocative act was an attempted murder committed willfully, deliberately, and with premeditation. . . . [¶] . . . [¶] For a defendant to be found guilty of first degree murder, he personally must have acted willfully, deliberately, and with premeditation when the murder was committed.” (People v. Mancilla, supra, B268375, at *17.)
The trial court referred the jury to its instructions on attempted murder (CALCRIM No. 601) to determine whether Mancilla intended to commit attempted murder and whether Guerrero‘s death occurred during the commission of attempted murder. That instruction directed the jury, if it found the defendants guilty of attempted murder, to then decide whether the prosecution had proved the additional allegation the attempted murder had been done willfully and with deliberation and premeditation. (People v. Mancilla, supra, B268375, at *22-23.)
The trial court also instructed the jury on the natural and probable consequences doctrine. After explaining that, under certain circumstances, a person guilty of one crime (here, attempted murder) may also be guilty of other crimes committed at the same time by a coparticipant (murder) if a reasonable person in the defendant‘s position would have known that the commission of murder by the coparticipant was a natural and probable consequence of the attempted murder, the court instructed, “A co-participant
3. Verdict, Sentence and Appeal
The jury convicted Mancilla and Rojas on all seven counts, finding Mancilla guilty of first degree murder and Rojas guilty of second degree murder. It found true all special firearm-use and gang enhancement allegations as to both defendants. The court sentenced Mancilla to an aggregate indeterminate state prison term of 90 years to life and Rojas to an aggregate indeterminate state prison term of 80 years to life.
We affirmed the convictions on appeal, but remanded for a new sentencing hearing to permit the trial court to consider whether to strike the firearm enhancements in light of recent ameliorative legislation and to permit Mancilla (who was 18 years old at the time of the offenses) and Rojas (who was 19 years old at that time) to make a record of information relevant to their eventual youth offender parole hearings pursuant to People v. Franklin (2016) 63 Cal.4th 261. (People v. Mancilla, supra, B268375, at p. *66.)
As to issues potentially pertinent to Mancilla‘s petition for resentencing, we rejected the argument the court‘s instructions on provocative act murder permitted the jury to convict Mancilla of first degree murder based on a finding Rojas had acted with premeditation in committing attempted murder or without any finding on premeditation at all. (People v. Mancilla, supra, B268375, at *23-24.) We also rejected Mancilla‘s argument he was prejudiced by the court‘s error in failing to instruct the jury he could not be convicted of first degree murder under the natural and probable consequences doctrine (under People v. Chiu (2014) 59 Cal.4th 155), explaining that, under the instructions read as a whole, and in light of the jury‘s finding Rojas was guilty of second degree murder, not first degree murder, the verdict necessarily showed Mancilla had been convicted under the provocative act theory. (People v. Mancilla, supra, B268375, at *34.)
4. Mancilla‘s Section 1170.95 Petition for Resentencing
On February 13, 2020 Mancilla, representing himself, filed a petition for resentencing under
The superior court summarily denied the petition on July 27, 2020 without appointing counsel for Mancilla or inviting briefing by the prosecutor or Mancilla. The court noted, “[a]s the trial court, this court is very familiar with the facts of the case and the theories on which it was prosecuted. Additionally, this court has refreshed its recollection as to the facts by reviewing the facts as presented in petitioner‘s opening appellate brief.” After briefly reciting the facts, the court ruled Mancilla had failed to make a prima facie showing he was entitled to relief: “Based on the above facts, the petitioner was prosecuted under a provocative act theory and not under either a felony murder or a natural and probable consequences theory of culpability.”
Mancilla filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition Procedure
Senate Bill 1437 substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder. (
Senate Bill 1437 also authorized, through new
In determining whether the petitioner has carried the burden of making the requisite prima facie showing he or she falls within the provisions of
If the
In People v. Lewis, supra, 11 Cal.5th 952 the Supreme Court, resolving a disagreement among the courts of appeal and agreeing with the analysis in People v. Cooper (2020) 54 Cal.App.5th 106, review granted November 10, 2020, S264684, held, once a petitioner files a facially sufficient petition requesting counsel, the superior court must appoint counsel before performing any prima facie review under
The Lewis Court, however, also held a superior court‘s failure to appoint counsel to represent a petitioner when assessing whether he or she has made a prima facie showing of entitlement to relief pursuant to
As discussed in the following section, the record of conviction establishes Mancilla is ineligible for relief under
a. Provocative act murder
In People v. Washington (1965) 62 Cal.2d 777 the Supreme Court held a felony-murder conviction was proper only if the defendant or his or her accomplice committed the killing while furthering their common design. “‘Murder is the unlawful killing of a human being, with malice aforethought.’ [Citation.] Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. [Citation.] The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. . .. [¶] When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. . . . To include such killings within
The Supreme Court, however, recognized that, although the felony-murder rule was not properly invoked in such a circumstance, the principal committing a serious felony could still be liable for murder under traditional principles of implied malice: “[W]hen the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. [Citations.] [¶] Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death’ [citation], and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (People v. Washington, supra, 62 Cal.2d at p. 782.)
Seven months after its decision in People v. Washington, supra, 62 Cal.2d 777, the Supreme Court in People v. Gilbert (1965) 63 Cal.2d 690, after acknowledging its earlier limitation of the reach of the felony-murder rule, articulated basic principles governing a charge of implied malice murder under the provocative act doctrine.3 As
“A murder conviction under the provocative act doctrine thus requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing. [Citations.] A provocative act is one that goes beyond what is necessary to accomplish an underlying crime and is dangerous to human life because it is highly probable to provoke a deadly response.” (People v. Gonzalez (2012) 54 Cal.4th 643, 655; see People v. Concha (2009) 47 Cal.4th 653, 661 [“In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant‘s liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim‘s death ....’ [Citation.] ‘[I]f the eventual victim‘s death is not the natural and probable consequence of a defendant‘s act, then liability cannot attach.’ [Citation.] Our prior decisions make clear that, where the defendant perpetrates an inherently dangerous felony, the victim‘s self-defensive killing is a natural and probable response“].)
b. Mancilla‘s jury found Mancilla guilty of malice murder without any imputation of malice
that provocative act murder “is a species of natural and probable consequences murder in which the killer is not an accomplice but an intended victim.” As such, he contends,
For good reason, the argument provocative act murder is properly understood as a subset of the natural and probable consequences doctrine for purposes of Senate Bill 1437 and
Notwithstanding language fragments from several cases quoted by Mancilla, Supreme Court case law, as discussed, makes clear a murder conviction under the provocative act doctrine requires proof the defendant “personally harbored the mental state of malice.” (People v. Gonzalez, supra, 54 Cal.4th at p. 655; see People v. Swanson, supra, 57 Cal.App.5th at p. 613, review granted [the malice requirement for provocative act murder “stands in marked contrast to the mens rea contemplated by the natural and probable consequences doctrine“]; People v. Lee, supra, 49 Cal.App.5th at p. 258, review granted [“[p]rovocative act murder requires proof of malice, which distinguishes it from felony murder and natural and probable consequences murder“].) That is, the defendant (or his or her accomplice) must have acted with implied malice—the defendant knew his or her conduct endangered the life of another and acted with conscious disregard for life. (Compare, e.g., People v. Caldwell, supra, 36 Cal.3d at p. 216, fn. 2, [defining mental state required for provocative act murder] with, e.g., People v. Soto (2018) 4 Cal.5th 968, 974 [defining implied malice murder].)
Thus,
Mancilla‘s argument based on the inclusion of the concept of natural and probable consequence as an element of provocative act murder is similarly misplaced. As the Supreme Court explained in People v. Concha, supra, 47 Cal.4th at page 660, “[M]urder includes both actus reus and mens rea elements. To satisfy the actus reus element of murder, the act of either the defendant or an accomplice must be the proximate cause of death.” Consideration of the natural and probable consequence of the defendant‘s conduct in the context of provocative murder, as with any case of implied malice murder,5 relates to proximate cause—that is to the actus reus element of the crime, not the mens rea element that was the focus of Senate Bill 1437. (See Concha, at p. 661 [defining proximate cause for provocative act murder in terms of natural and probable consequence of an act]; see also People v. Johnson, supra, 57 Cal.App.5th at pp. 267-268 [passages in Supreme Court provocative murder cases referring to natural and probable consequences relate to proximate cause]; People v. Lee, supra, 49 Cal.App.5th at p. 266, review granted [same].) “[I]n any provocative act case, where by definition an intermediary‘s act killed the victim, an important question will be whether the defendant‘s conduct proximately caused the
death. [Citation.] The court‘s analysis of proximate cause in terms of foreseeability of the natural and probable consequences of the defendant‘s malicious conduct does not somehow bring a provocative act killing within the malice-free natural and probable consequences doctrine.” (People v. Swanson, supra, 57 Cal.App.5th at p. 614, review granted.)
Both the federal and California Constitutions guarantee that no person shall be “den[ied] . . . the equal protection of the laws.” (
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. Foster (2019) 7 Cal.5th 1202, 1211-1212 [internal quotation marks omitted]; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1107; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [to prevail on an equal protection challenge, a party must first establish that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner“]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1108, review granted Nov. 13, 2019, S258175.) If the two groups are not similarly situated, there can be no equal protection violation.
Contending individuals convicted of murder under the natural and probable consequences doctrine and those convicted of provocative act murder are similarly situated in terms of their culpability for murder—both groups, he insists, involve defendants who were not the actual killers, who did not intend to kill the victim and who were convicted under a theory of imputed malice—Mancilla argues the Legislature did not have a constitutionally
As discussed, the People must prove a defendant personally acted with implied malice to be convicted of provocative act murder. In contrast, murder under the natural and probable consequences doctrine required no proof of malice. (Gentile, supra, 10 Cal.5th at pp. 845, 847.) Given the express intent of Senate Bill 1437 “to more equitably sentence offenders in accordance with their involvement in homicides” (Stats. 2018, ch. 1015, § 1, subd. (b); see Gentile, at p. 846), offenders who acted with malice and those who did not are not similarly situated for purposes of
DISPOSITION
The postjudgment order denying Mancilla‘s petition for resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.