A166731 (Sonoma County Super. Ct. No. SCR-682933-1)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 6/21/24
CERTIFIED FOR PUBLICATION
In 2018, a jury found defendant Ivan Morales guilty of robbery and attempted premeditated murder, among other offenses, and found
In 2022, Morales filed a petition to vacate the attempted murder conviction and for resentencing under former
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Crimes
On the afternoon of July 12, 2016, Morales and his longtime friend Sergey Gutsu robbed an armored truck stopped at a bank in Windsor, California. Glenn,1 an employee of the armored truck company, had just exited the truck and was carrying a bag containing $30,000 in paper currency when Morales shot him multiple times with an AK-47 semi-automatic rifle. Gutsu grabbed the bag of money, and the two of them drove away. Glenn sustained three rifle-shot wounds and suffered life-threatening injuries, but he survived. (Morales, supra, 2020 WL 4999934, at *1–2 and fns. 4 and 5.)
Later the same afternoon, Calistoga police officer Luis Paniagua attempted a traffic stop of a blue Suburban that matched the description of a vehicle reported to have been involved in a robbery. Gutsu, who was driving the Suburban, emerged from the vehicle and began shooting at the officer with a semi-automatic pistol. Morales, who was also in the Suburban, ran away. Officer Paniagua arrested Gutsu at the scene of the traffic stop, and Morales was apprehended a few hours later. An AK-47 was found in the Suburban; Morales‘s wife was its registered owner. (Morales, supra, 2020 WL 4999934, at *1–2, fn. 2.)
The Criminal Trial
Morales was charged with robbery (
Morales and Gutsu were tried together with separate juries, but Gutsu pleaded no contest to all charges before his case went to his jury. (Morales, supra, 2020 WL 4999934, at *3 and fn. 7.)
The Prosecution‘s Theories of Liability
At trial, the prosecution‘s theory was that Morales and Gutsu robbed Glenn together, Morales shot Glenn in Windsor,3 Gutsu fired at Officer Paniagua in Calistoga, each of the shootings was an attempted premeditated murder, and Morales was liable for the acts committed by Gutsu under the natural and probable consequences doctrine because, as the prosecutor told the jury, taking part in the robbery “ties Defendant Morales to all other crimes that were committed during the commission of that robbery.”
In his closing argument, the prosecutor described how Morales and Gutsu acted together in committing the robbery, emphasizing that Morales was the shooter at the robbery in Windsor: “[W]e have Defendant Morales shooting the guard, sticking up the guard; we have Defendant Gutsu running and grabbing the bag [of money]. And so they‘re both perpetrators. They‘re each aiding and abetting each other” in the robbery. (Italics added.)4
As to the charge of attempted premeditated murder of Glenn, the prosecutor argued Morales was the direct perpetrator as his conduct and mental state met the elements of the offense. The prosecutor said, “[L]et‘s look at first what‘s just required to prove attempted murder: That the defendant took at least one ineffective step toward killing another person. Well, that‘s established by pulling the trigger of the gun and shooting. But then the next part. The defendant intended to kill that person. . . . [H]ow do we know that this defendant, Defendant Morales, intended to kill Glenn?” (Italics added.)
As to the charge of attempted premeditated murder of Officer Paniagua, the prosecutor told the jury, “we look at the same type of evidence, but now in relation to Sergey Gutsu.” Thus, the prosecutor argued Gutsu was the direct perpetrator of the shooting in Calistoga, and Morales was liable for Gutsu‘s crimes (assault on a peace officer, shooting an occupied vehicle, driving without the owner‘s consent, as well as attempted premeditated murder) because those crimes were a natural and probable consequence of the robbery in Windsor.
Acknowledging that Morales disputed that he shot Glenn, the prosecutor also explained to the jury that Morales “can still be guilty of the attempted murder of Glenn, even if Defendant Gutsu shot Glenn.” In other words, the prosecutor suggested—as an alternative theory of liability—that, even if the jury could not agree Morales was the shooter in Windsor, he could still be guilty of the crimes related to the shooting of Glenn under the natural and probable consequences theory. He continued, “But as we will review in this case, the evidence is overwhelmingly clear that this defendant, Defendant Morales, is the defendant that shot Glenn.”
The Defense
Morales did not dispute that he was at the crime scenes in Windsor and Calistoga. But defense counsel argued Morales participated in the robbery under duress and it was Gutsu who shot Glenn.
The trial court instructed the jury with CALCRIM Nos. 400 (aiding and abetting: general principles), 401 (aiding and abetting: intended crimes), 402 (natural and probable consequences doctrine), 416 (evidence of uncharged conspiracy), 417 (liability for coconspirators’ acts), 600 (attempted murder), 601 (attempted murder: deliberation and premeditation), and 3150 (personally used firearm: intentional discharge and discharge causing injury or death), among others.
For CALCRIM No. 402 on the natural and probable consequences doctrine, the jury was instructed: “The defendant is charged in Count III with Robbery, and in Count I with Attempted Premeditated Murder of Glenn, and Count II with Attempted Premeditated Murder of Peace Officer Luis Paniagua. Count V with Assault on a Peace Officer with a Semi-Automatic Firearm, Count VI with Willful Unlawful and Malicious Discharge of a Firearm at an Occupied Motor Vehicle, Count VII with Assault by an Assault Weapon on Glenn.
“You must first decide whether the defendant is guilty of Robbery. If you find the defendant is guilty of this crime, you must then decide whether he is guilty of Attempted Premeditated Murder of Glenn (Count I), Attempted Premeditated Murder of Officer Luis Paniagua (Count II)[,] Assault on a Peace Officer with a Semi-Automatic Firearm (Count V), Willful Unlawful and Malicious Discharge of a Firearm at an Occupied Motor Vehicle (Count VI), Assault by Assault Weapon on Glenn (Count VII).
“Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time.
“To prove that the defendant is guilty of Attempted Premeditated Murder of Glenn (Count I), Attempted Premeditated Murder of Officer Luis Paniagua (Count II), Assault on a Peace Officer with a Semi-Automatic Firearm (Count V), Willful Unlawful and Malicious Discharge of a Firearm at an Occupied Motor Vehicle (Count VI), Assault by Assault Weapon on Glenn (Count VII), the People must prove that:
- The defendant is guilty of robbery;
- During the commission of the robbery a co-participant in that robbery committed the crime of Attempted Premeditated Murder of Glenn (Count I), Attempted Premeditated Murder of Officer Luis Paniagua (Count II), Assault on a Peace Officer with a Semi-Automatic Firearm (Count V), Willful Unlawful and Malicious Discharge of a Firearm at an Occupied Motor Vehicle (Count VI), Assault by Assault Weapon on Glenn (Count VII);
- AND
- Under all of the circumstances, a reasonable person in the defendant‘s position would have known that the commission of Attempted Premeditated Murder of Glenn (Count I), Attempted Premeditated Murder of Officer Luis Paniagua (Count II), Assault on a Peace Officer with a Semi-Automatic Firearm (Count V), Willful
Unlawful and Malicious Discharge of a Firearm at an Occupied Motor Vehicle (Count VI), Assault by an Assault Weapon on Glenn (Count VII) was a natural and probable consequence of the commission of the robbery.
“A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.
“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
“To decide whether [the] crime of robbery was committed, please refer to the separate instructions that I will give on that crime[].” (Italics added and original italics deleted.)
Similarly, with CALCRIM No. 417 on liability for coconspirators’ acts, the trial court instructed the jury that a “member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan.”7 (Underlining deleted.)
Verdict
In 2018, the jury found Morales guilty of attempted premeditated murder of Glenn, robbery, assault with an assault weapon, assault on a peace officer (a lesser included offense of assault on a peace officer with a semi-automatic firearm), and driving a vehicle without the owner‘s consent. The jury found
Current Proceedings
In January 2022, Morales petitioned for resentencing under former
In November 2022, the trial court denied the petition for resentencing after “find[ing] that the record of conviction conclusively demonstrates that the jury in this case convicted Morales of attempted murder based upon a valid direct perpetrator theory of attempted murder, and not upon any [invalid] natural and probable consequence theory.”
The trial court explained that the prosecution‘s “entire theory for the attempted murder was that the person who shot Glenn was the direct perpetrator who had the intent to kill and took a direct but ineffective step toward killing Glenn.” “A disputed issue at trial was whether Morales or codefendant Gutsu was the shooter of victim Glenn,” and so the prosecution “offered the natural and probable consequence theory to the jury as a[n alternative] basis for Morales‘[s] liability for attempted murder only if the jury determined that Gutsu (and not Morales) [was the shooter].” But, the court reasoned, “once the jury found that Morales was the shooter [which we know it did because it found he personally discharged a firearm and caused great bodily injury under
A. Elimination of Murder and Attempted Murder Liability Based on the Natural and Probable Consequences Doctrine and Retroactive Relief Under Section 1172.6
In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) “ ‘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, [and] was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1, 2019, Senate Bill No. 1437 amended
Senate Bill 1437 also created a procedure (formerly at
Effective January 1, 2022, Senate Bill No. 775, (2021–2022 Reg. Sess.) “extended [retroactive] relief to defendants convicted of attempted murder based on the natural and probable consequences doctrine.” (People v. Lovejoy (2024) 101 Cal.App.5th 860, [320 Cal.Rptr.3d 631, 634], italics added; People v. Coley (2022) 77 Cal.App.5th 539, 544.)
As relevant to this appeal,
“When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition ‘to
While the trial court generally should not reject a petitioner‘s factual allegations at the prima facie stage, “if the record, including the court‘s own documents, ‘contain[s] facts refuting the allegations made in the petition,’ then ‘the court is justified in making a credibility determination adverse to the petitioner.’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
Following the issuance of an order to show cause, if the prosecution does not stipulate that the petitioner is eligible for resentencing, “the court must hold an evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state law as amended by Senate Bill 1437. (
B. The Prima Facie Showing
Here, the trial court denied Morales‘s petition on the ground he failed to meet the third condition of a prima case for relief—that he could not currently be convicted of attempted murder because of changes to the murder statutes effected by Senate Bill 1437 (
As we have described, at the prima facie stage, the trial court must accept each allegation made by the petitioner “unless the allegation is refuted by the record.” (Curiel, supra, 15 Cal.5th at p. 463.)
The allegation that “[t]he petitioner could not presently be convicted of attempted murder because of changes to . . . Section 188 or 189 made effective January 1, 2019” (
We independently review the trial court‘s determination that Morales failed to make a prima facie showing. (Harden, supra, 81 Cal.App.5th at p. 52.)
C. The Trial Court Correctly Determined that the Jury Found Morales Guilty of Attempted Murder Under a Valid Theory Under Current Law
“[W]e may look to the jury‘s verdicts, and the factual findings they necessarily reflect, to determine whether the record of conviction refutes the factual allegations in [Morales]‘s petition.” (Curiel, supra, 15 Cal.5th at p. 465, italics added.)
The evidence in this case showed that two individuals robbed Glenn of a bag of money in front of a bank in Windsor and that one of the robbers shot Glenn multiple times with an AK-47 semi-automatic rifle causing Glenn life-threatening injuries during the robbery. Based on this incident, the prosecution charged Morales with robbery and attempted premeditated murder of Glenn.
The jury convicted Morales of robbery, which means it found, as a factual matter, Morales was one of the two individuals who robbed Glenn. The jury also found Morales guilty of attempted premeditated murder of Glenn. Because the jury was instructed on the natural and probable consequences doctrine, this finding by itself does not establish that the jury found Morales was the direct perpetrator of an attempted premeditated murder. Under the instructions given, the guilty verdict establishes that the jury determined, first, that an attempted premeditated murder of Glenn occurred and, second, that the crime was committed by either Morales or his coparticipant in the robbery, Gutsu.
But these guilty verdicts were not the jury‘s only findings regarding the robbery and attempted premeditated murder of Glenn. The jury also found Morales guilty of assault with an assault weapon and found true the allegation under
Considered together, do these jury verdicts “reflect all of the factual findings necessary to support a[n attempted] murder conviction under current law” so that Morales is ineligible for relief under
We reach this conclusion because the prosecution‘s only factual basis for the attempted premeditated murder charge was the shooting of Glenn with an AK-47 semi-automatic rifle. No other act was alleged or shown to have been committed by either robber that met the element of a direct but ineffectual act toward killing Glenn, which element the jury was required to find in order to convict Morales of attempted murder. (See People v. Canizales (2019) 7 Cal.5th 591, 602 [“To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ”]; CALCRIM No. 600.) Consequently, the jury‘s finding that an attempted murder was committed means the jury must have found, as a factual matter, that one of the robbers, with intent to kill, took a direct but ineffectual act toward killing Glenn by shooting him with an AK-47 semi-automatic rifle.10 And, by finding Morales guilty of assault with an assault weapon and finding the discharge allegation under
Thus, we are confident the jury necessarily made all the factual findings required to establish Morales is guilty of attempted murder under the still-valid theory that he, with the requisite mental state of intent to kill, committed a direct but ineffectual act toward killing Glenn. (See Curiel,
supra, 15 Cal.5th at p. 467 [to find an element of murder or attempted murder satisfied at the prima facie stage, “we must be confident the jury necessarily found” that element]; Harden, supra, 81 Cal.App.5th at p. 55 [“when viewing the verdicts as a whole, the jury‘s true finding that [the petitioner] personally inflicted great bodily injury necessarily means it determined she strangled [the victim]”; thus, the jury necessarily found the petitioner was guilty of murder under the still-valid theory that she was the actual killer].)
Morales argues the trial court erred in denying his petition at the prima facie stage because “the jury could have found that [he] aided and abetted an
The cases Morales relies on are inapposite. In People v. Whitson (2022) 79 Cal.App.5th 22, 25–26, the petitioner was convicted of attempted murder based on a drive-by shooting in which he was the driver and his confederate was the shooter. The Court of Appeal held the petitioner made a prima facie case for relief under Senate Bill 1437 because, under the instructions given, it was possible the jury convicted the petitioner based on a finding that his confederate harbored intent to kill. (Id. at p. 33.) Here, in contrast, the jury‘s verdicts, considered together, establish the jury found Morales harbored an intent to kill, as the jury found, first, that the person who shot Glenn with an AK-47 committed an attempted premeditated murder and, therefore, necessarily had intent to kill and, second, Morales was that shooter.
In People v. Pacheco (2022) 76 Cal.App.5th 118, 122, the Court of Appeal held that a jury finding of a gang special circumstance did not, by itself, preclude relief under Senate Bill 1437 because the finding established only the requisite mental state of intent to kill but did not establish the act required for direct aiding and abetting of murder. Thus, “the jury‘s true finding on the gang special circumstance d[id] not conclusively establish [the petitioner] could be found guilty of murder under current law (that he had the intent to kill, and he directly aided and abetted the target crime of murder).” (Ibid.) But, in the present case, the jury‘s verdicts establish that Morales both had intent to kill and took a direct but ineffective act toward killing Glenn because, again, the jury found the shooting of Glenn was an attempted premeditated murder and Morales was the shooter.
Finally, in People v. Offley (2020) 48 Cal.App.5th 588, 598, the Court of Appeal held that the existence of an enhancement under
In sum, the trial court properly denied Morales‘s
DISPOSITION
The order denying Morales‘s petition under
WE CONCUR:
Stewart, P.J.
Richman, J.
Miller, J.
A166731, People v. Morales
Trial Court: Superior Court of Sonoma County
Trial Judge: Hon. Patrick Broderick
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant
Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Assistant Attorney General; Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent
A166731, People v. Morales