People v. OffleyPeople v. Offley
FACTS AND PROCEEDINGS BELOW
Offley and Keller were two of five defendants charged with taking part in a gang-related shooting in 2006 in which one victim, Alex Barrales, was killed, and another, Pedro Portillo, was seriously wounded. Evidence at trial indicated that members of the 76 East Coast Crips gang ambushed a vehicle driving through their territory, believing that the vehicle‘s occupants were members of a rival gang. At least three individuals fired shots into the vehicle. Prosecutors charged both Offley and Keller with one count of murder, one count of attempted murder, and one count of firing into an occupied
At the end of the trial, the jury received an instruction regarding the natural and probable consequences doctrine in cases of conspiracy, as fоllows: “A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of the conspiracy, even though that crime was not intended as a part of the agreed upon objective and even though he was not present at the timе of the commission of that crime.”
A jury convicted both Offley and Keller of: (1) one count of murder (
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, with only one exception not relevant here, amended section 188 to require proof of personal malice aforethought in all murder convictions. (See
In January 2019, both defendants filed petitions in the trial court for resentencing under section 1170.95. They both filed form declarations that included the information required by section 1170.95, subdivision (b)(1). Defendants also requеsted the court to appoint counsel to represent them. Both defendants also filed separate declarations explaining why they believed they were entitled to relief. Keller claimed that “there was no evidence presented that [he] was the actual killer. No witness testified that they saw [him] fire a weapon.” Offley also claimed that he did not kill the victim. He cited portions of the trial transcript in his case in which the proseсutor agreed that a bullet from Offley‘s gun could not have killed Barrales.
The trial court denied both defendants’ petitions without appointing counsel or holding a hearing. According to the court, the defendants were ineligible for relief because the record showed that the jury found they intentionally fired a weapon at the victim and caused great bodily injury or death.
DISCUSSION
Defendants contend that the trial court erred by denying their petitions for resentenсing under section 1170.95. Offley argues that the trial court erred in determining that he was ineligible for resentencing because his sentence was enhanced under section 12022.53, subdivision (d) for personally and intentionally discharging a firearm and proximately causing great bodily injury and death. Keller contends that the trial
A. Senate Bill No. 1437 and Section 1170.95
Murder has long been defined as “the unlawful killing of a human being . . . with malice aforethought.” (
Prior to the enactment of Senate Bill No. 1437, however, a defendant who aided and abetted a crime that ended in a victim‘s death could be convicted of murder under the natural and probable consequences doctrine even if the defendant personally did not act with malice aforethought. The natural and probable consequences doctrine provides that ” ‘[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.’ ” (People v. Medina (2009) 46 Cal.4th 913, 920.) ” ‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not рremised upon the intention of the aider and abettor to commit the nontarget
Senate Bill No. 1437 was enacted to abolish this doctrine in cases of murder. It amended section 188 to require that, when the felony murder rule does not apply, a principal in the crime of murder “shall act with malice aforethought,” and that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144.)4 As a result, the natural and probable consequences doctrine can no longer support a murder conviction. (Lopez, supra, 38 Cal.App.5th at p. 1103 & fn. 9; Stats. 2018, ch. 1015, § 1(f), p. 6674.) The change did not, however, alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily “know and share the murderous intent of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see
Senate Bill No. 1437 also added section 1170.95, which permits a person convicted of murder under a nаtural and probable consequences theory to petition the court to have the murder conviction vacated and to be resentenced. (
Section 1170.95, subdivision (c) sets forth the trial court‘s responsibilities upon the filing of a complete petition: “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 this section. If the petitioner has requested counsel, the court shall appoint counsel to reprеsent the petitioner. The prosecutor shall file and serve a response within 60 days of
As we recently explained in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598 (Lewis), section 1170.95, subdivision (c) creates a two-step process for determining a defendаnt‘s eligibility.5 First, the trial court must determine whether the defendant has made a “prima facie showing [that he] ‘fall[s] within the provisions’ of the statute.” (Lewis, supra, 43 Cal.App.5th at p. 1140.) The trial court may examine the record of conviction (id. at pp. 1137–1138), and may not reject a defendant‘s petition unless it determines that “the petitioner is ineligible for relief as a matter of law.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020, S260493 (Verdugo).) Only after the court concludes that the defendant satisfies this requirement does “the trial court‘s duty to appoint counsel . . . arise.” (Lewis, supra, 43 Cal.App.5th at p. 1140; accord, People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; Verdugo, supra, 44 Cal.App.5th at pp. 332–333.) If a defendant‘s petition survives both stages of review under
B. The Trial Court Erred by Denying Defendants’ Petitions at the First Stage of Prima Facie Review
The trial court summarily denied both defendants’ petitions at the first stage of review under section 1170.95, subdivision (c), on the ground that the jury found that both defendants personally fired a weapon and proximately caused great bodily injury or death. The court appears to have concluded that both defendants received sentence enhancements pursuant to section 12022.53, subdivision (d). That subdivision provides that “any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”6
We reverse the denial of Offley‘s petition because an enhancement under section 12022.53, subdivision (d) does not establish as a matter of law that a defendant acted with malice aforethought. It is therefore insufficient on its own to justify denying a defendant‘s petition under section 1170.95 at the
1. An enhancement under section 12022.53, subdivision (d) does not preclude relief under section 1170.95
The trial court erred by denying Offley‘s petition because the existence of an enhancement under section 12022.53, subdivision (d) does not show that a defendant acted with maliсe aforethought. It therefore does not establish as a matter of law that Offley could still be convicted of murder under the new law and is ineligible for relief under section 1170.95.7
Both express and implied malice require proof of the defendant‘s mental state. In the case of express malice, the defendant must have intended to kill. (Beltran, supra, 56 Cal.4th at p. 941.) Implied malice also involves a mental component, namely a ” ‘conscious disregard for the danger to life that the
Section 12022.53, subdivision (d) provides that the defendant must have intended to discharge a firearm, but does not refer to an “intent to achieve any additional consequence.” (People v. Lucero (2016) 246 Cal.App.4th 750, 759.) It is thus a general intent enhancemеnt, and does not require the prosecution to prove that the defendant harbored a particular mental state as to the victim‘s injury or death. (Id. at pp. 759-760; In re Tameka C. (2000) 22 Cal.4th 190, 198.) The jury in this case was instructed accordingly. The trial court told the jury that it would need to decide “whether the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death,” but not whether he intended to kill or was aware of the danger to life that his act рosed.
Because an enhancement under section 12022.53, subdivision (d) does not require that the defendant acted either with the intent to kill or with conscious disregard to life, it does not establish that the defendant acted with malice aforethought. Of course, the trial court may look beyond the abstract of judgment and consider the entire record of conviction, including any prior Court of Appeal opinions in the case, in determining whether a petitioner has made a prima facie case of eligibility. (Lewis, supra, 43 Cal.App.5th at p. 1136 & fn. 7.) In many instances, additional information from the record will establish
In this case, however, we cannot rule out the possibility that the jury relied on the natural and probable consequences doctrine in convicting Offley. The trial court instructed the jury on the natural and probable consequences doctrine as part of its instruction on conspiracy liability: “A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of the conspiracy, even though that crime was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime.”
The prosecutor argued that the jury could convict the defendants on the basis of this instruction. In closing arguments, the prosecutor argued that the defendants were part of a conspiracy, that the “common design of [the] conspiracy” was “assault with a firearm,” and that any member of the conspiracy was “guilty of, not only that particular crime, but also the natural and probable consequence of any crime of the co-conspirator.”
We cannot exclude the possibility that the jury believed Offley acted without intending to kill Barrales or consciously disregarding that risk. The jury might have concluded that Offley intended to take part in a conspiracy to commit assault
2. Keller‘s enhancement did not indicate that he personally fired a weapon
Keller‘s enhancement was based on section 12022.53, subdivision (e)(1). That subdivision applies the penalties of section 12022.53, subdivisions (b) through (d) to all principals of a crime regardlеss of whether or not they personally fired a weapon, so long as the crime was committed for the benefit of a criminal street gang (see
Because the trial court erred by denying the petitions at the first stage of review under section 1170.95, subdivision (c), we will remand the case with instructions to proceеd to the second stage of review under that subdivision. Thus, “the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner[s] may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner[s] make[ ] a prima facie showing that [thеy are] entitled to relief, the court shall issue an order to show cause.” (
The trial court‘s order is reversed, and the trial court is ordered to appoint counsel to represent both appellants for further proceedings under section 1170.95.
CERTIFIED FOR PUBLICATION.