THE PEOPLE, Plaintiff and Respondent, v. VINCENT MEDRANO, Defendant and Appellant.
2d Crim. No. B306749
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 8/24/21
CERTIFIED FOR PUBLICATION; (Super. Ct. No. CR28216) (Ventura County)
Facts
The following facts are taken primarily from the factual statement in our 1994 opinion. Appellant and Carlos Vargas purchased a .22 caliber semi-automatic rifle. Appellant “scored” the “tip” of the rifle‘s bullets in the belief that “the scoring would make the bullets more explosive.” As overt act #7 underlying the conspiracy charge, the jury found that appellant, Vargas, Edward Throop, and Joseph Scholle “discussed among themselves committing a drive-by shooting.” Vargas drove them to Cabrillo Village in Ventura County. “Throop held the rifle and sat in the back seat next to appellant.” Throop pointed the rifle out the window and fired multiple shots at a group of people attending a baptism party. As Vargas drove away, Scholle shouted the names of rival gangs. Two men attending the baptism party died of gunshot wounds. Two other men were shot but survived.
In his pre-printed
S.B. 1437
In S.B. 1437 the Legislature declared, “It is necessary 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To achieve this goal, S.B. 1437 amended
S.B.
“The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of [
Trial Court‘s Ruling
After issuing an order to show cause, the trial court conducted a hearing at which the prosecutor was required to prove beyond a reasonable doubt that appellant is ineligible for relief. The court ruled that appellant is ineligible because he could now be convicted of murder. It denied
Appellant contends, “[T]he People‘s failure to appeal the [trial court‘s] Order to Show Cause forfeits the issue of whether appellant‘s conspiracy conviction bars relief under
The order to show cause was made after judgment, but it did not affect the People‘s substantial rights because it was a “preliminary eligibility determination” that did not “alter[] the judgment, its enforcement, or [appellant‘s] relationship to it.” (People v. Montellano (2019) 39 Cal.App.5th 148, 157.) Therefore, the order to show cause was not appealable. Even if it were appealable, the People would not be barred from arguing that at the show-cause hearing they had proved appellant is ineligible for resentencing because he was convicted of conspiracy to commit first degree murder.
Appellant‘s Conspiracy Conviction Precludes Relief under Section 1170.95
The jury was instructed on the natural and probable consequences doctrine. But appellant was not convicted of first degree murder under this doctrine. “Under the natural and probable consequences theory of aiding and abetting a murder, a defendant can be found guilty of murder if he or she aids and abets a crime (i.e., the target crime) and murder (i.e., the nontarget crime) is a natural and probable consequence of that target crime.” (People v. Chavez (2018) 22 Cal.App.5th 663, 683.) Here, the target offense was first degree murder. We know this because appellant was
During closing argument to the jury, the prosecutor said, “I‘ll be arguing to you that [appellant] clearly did harbor the intent to kill and . . . he wanted . . . that group of people to be shot and people killed.” By convicting appellant of conspiracy to commit first degree murder, the jury accepted the prosecutor‘s argument.
The jury in effect found that appellant was a direct aider and abettor of the killings. “Liability for intentional, target offenses is known as ‘direct’ aider and abettor liability; liability for unintentional, nontarget offenses is known as the ‘“‘natural and probable consequences’ doctrine.“‘” (In re Loza (2018) 27 Cal.App.5th 797, 801.) “Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought.” (Gentile, supra, 10 Cal.5th at p. 848.)
The following statement of our Supreme Court in Beck & Cruz applies with equal weight to appellant: “Beck and Cruz were charged with conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility they were found guilty of murder on a natural and probable consequences theory.” (Beck & Cruz, supra, 8 Cal.5th at p. 645.)
Appellant argues that, because of instructions given to the jury after it had started deliberating, the jury did not necessarily find that he had harbored an intent to kill when it convicted him of conspiracy to commit first degree murder. The jury sent a note to the court asking: “Does [appellant] have to have believed that Throop meant to kill in order for [appellant] to be guilty of aid & abet in first degree? Does natural consequence of ‘shooting’ include murder in the first degree (premeditated murder)[?]” In reply to the jury‘s question, the court instructed that, to convict appellant of first degree murder, it need not find that he harbored the specific intent to kill. The jury could find appellant guilty of first degree murder if the crime was a natural and probable consequence of the acts that he had aided and abetted.2
But in convicting
Appellant notes that the court gave CALJIC No. 6.11, which he claims “instructed the jury that [he] . . . could be guilty of conspiracy to commit murder under the natural and probable consequences doctrine.” CALJIC No. 6.11 did not so instruct the jury. As given, the instruction provided in relevant part: “A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but is also liable for the natural and probable consequences of any act of a co-conspirator to further the object of the conspiracy, even though such act was not intended as a part of the original plan . . . .” (Italics added.) Appellant was not convicted of conspiracy to commit first degree murder under the natural and probable consequences theory as set forth in CALJIC No. 6.11. First degree murder was the object of the conspiracy, not the natural and probable consequence of an act committed to further the object of the conspiracy.
Finally, appellant maintains that the jury did not necessarily find he had the specific intent to kill because in 1991, when he was convicted, “a defendant . . . could be convicted of conspiracy to commit murder without an accompanying finding of a specific intent to kill.” Appellant asserts that it was not until the Supreme Court‘s 1996 decision in Swain, supra, 12 Cal.4th 593, that “a valid conspiracy to commit murder conviction required a specific finding of intent to kill.”
Swain held “that a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice.” (Swain, supra, 12 Cal.4th at p. 607.) The court disapproved People v. Alexander (1983) 140 Cal.App.3d 647, to the extent it
Swain did not announce a new rule of law that conspiracy to commit murder requires an intent to kill. The court stated, “[N]othing in [its] decision in Horn [People v. Horn (1974) 12 Cal.3d 290] suggests that conspiracy to commit murder can be committed without intent to kill (express malice).” (Swain, supra, 12 Cal.4th at p. 606.) In Horn, decided 17 years before appellant‘s conviction, the Supreme Court concluded, “To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.” (Horn, supra, at p. 296;3 see also People v. Marks (1988) 45 Cal.3d 1335, 1345 [“Conspiracy requires a dual specific intent: ‘(a) the intent to agree, or conspire, and (b) the intent to commit the offense, which is the object of the conspiracy‘“].) Therefore, at the time of appellant‘s 1991 conviction, the law as enunciated by our Supreme Court required an intent to kill to sustain a conviction of conspiracy to commit first degree murder.
Irrespective of the state of the law at the time of appellant‘s conviction, the instructions given to the jury, specifically CALJIC No. 6.10, made clear that a conviction for conspiracy to commit first degree murder required a specific intent to commit first degree murder.4 Since the jury convicted appellant of conspiracy to commit first degree murder, it did not base its conviction of the target offense – first degree murder – on the natural and probable consequences doctrine because that doctrine applies to unintended, nontarget offenses. (See People v. Canizalez (2011) 197 Cal.App.4th 832, 852 [“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“].)
Conclusion
The prosecutor met his burden of proving, “beyond a reasonable doubt, that [appellant] is ineligible for resentencing.” (
Disposition
The order denying appellant‘s
CERTIFIED FOR PUBLICATION
YEGAN, J.
I concur:
GILBERT, P. J.
TANGEMAN, J., Dissenting:
I respectfully dissent. I do not agree that the conviction for conspiracy to commit murder automatically renders appellant ineligible for
Appellant was not the actual killer. He was present in the vehicle from which the actual killer sprayed bullets into a group of people during a drive-by shooting. There was evidence at trial that appellant wanted to fire the weapon because he was a “better aim” and could hit the victims in the legs, suggesting he did not share an intent to kill.
Taken in context, I cannot conclude, with that certainty advanced by the majority here, that the jury “did not rely on the natural and probable consequences doctrine” in deciding whether appellant was guilty of first degree murder. (Maj. opn. ante, at p. 9.) The majority concludes otherwise because the jury was also instructed that the conspiracy count required proof that appellant acted “with the specific intent to agree to commit the public offense of first degree murder.” The majority speculates that the jury relied on this conspiracy instruction instead of the other conspiracy instruction quoted above (which is based on the natural and probable consequence doctrine).
There is no basis, legal or factual, for the majority‘s speculation. In the face of these conflicting instructions, the jury pointedly asked the court whether they could convict appellant of first degree murder even if he did not share the shooter‘s intent to kill—to which the court responded affirmatively “even though that crime [of murder] was unintended by the aider and abettor.” Only then did the jury return a guilty verdict.
In 1994, we affirmed appellant‘s conviction for first degree murder. Appellant claimed the trial court erred “in response to the jury questions” when it “equated his guilt as an aider and abettor to the guilt of the shooter.” Appellant noted that three jurors submitted affidavits that they “changed their votes to first degree murder after the judge ‘answered the jury‘s question regarding whether it was necessary that [appellant] know whether [the shooter] meant to kill someone in order for [appellant] to be liable for first degree murder.‘” (People v. Medrano (Jul. 26, 1994, B065832) [nonpub. opn.] [typed opn. at p. 7] (Medrano).) In affirming, we concluded the juror affidavits were inadmissible, but even if they were considered the result would not differ because “[t]he court correctly instructed the jury that appellant may have been criminally responsible for [the shooter‘s] crimes even though appellant did not intend to commit the crimes” (Medrano, at p. 14, fn. 5). While a correct statement of law then, it is an incorrect statement now, after enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.). Now, in order to deny
Unlike the majority, I conclude from these facts that it is at least possible the jury found only that appellant participated in a drive-by shooting, without an intent to kill. Because the trial court did not discuss this possibility, or the reasons for its conclusions, I would remand for further proceedings.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
Michelle M. Castillo, Judge
Superior Court County of Ventura
Claudia Y. Bautista, Public Defender, and William Quest, Deputy Public Defender, under appointments 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, Assistant Attorney General, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.