THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL RIVERA, JR., Defendant and Appellant.
A158284
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 3/19/21
CERTIFIED FOR PUBLICATION; (San Mateo County Super. Ct. No. SC080432B)
The Legislature subsequently amended
petition for relief under
On appeal, Rivera argues that the trial court erred in concluding that his plea precluded his eligibility for resentencing under
Applying these principles here, we conclude that the trial court erred in ruling that Rivera failed to make a prima facie showing of eligibility for relief
under
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2012, Christopher Baker was shot to death in East Palo Alto. After hearing evidence tending to suggest that Rivera was present when Coneal, a fellow gang member, shot Baker, and drove Coneal to and from the scene, a grand jury indicted Rivera and Coneal for Baker‘s murder.3 The operative indictment‘s only count alleged that Coneal and Rivera “did
alleged various enhancements against Rivera based on a prior conviction of attempted burglary.5
In July 2017, as part of a plea agreement, Rivera entered a plea of no contest to second degree murder, admitted the offense was committed to benefit a gang, and admitted the strike. The remaining allegations were dismissed. Later that month, the court sentenced Rivera to 35 years to life in prison, composed of a term of 15 years to life for murder, doubled because of the strike, and a consecutive term of five years for the prior conviction of a serious felony.6
Before the trial court took Rivera‘s plea to murder, the prosecutor confirmed that “[t]he People would be willing to stipulate that it‘s murder in the second degree.” The court then asked, “Mr. Rivera, what is your plea to Count 1, that on or about October 5, 2012, you did willfully, unlawfully[,] and with malice aforethought murder [Baker] . . . in violation of
After Rivera admitted the remaining allegations attached to the murder count, the trial court asked his trial counsel whether counsel
“stipulate[d] to a factual basis” for the plea. Counsel responded affirmatively, indicating that he
In April 2019, shortly after
The People argued that Rivera failed to make a prima facie showing of eligibility for relief because the record demonstrated that the prosecution proceeded on “a single basis of liability reliant on a theory that [Rivera] jointly possessed malice aforethought with . . . Coneal when they murdered . . . Baker,” and Rivera identified nothing to indicate otherwise. The People also filed a request for judicial notice of various documents from the underlying criminal case, including the reporter‘s transcript from the grand jury proceedings.
In reply, Rivera argued that he could not now be convicted of murder “because of the elimination of the natural and probable consequences doctrine.” Pointing out that there was no dispute Coneal was the actual shooter, Rivera highlighted the lack of evidence that he shared or knew of
Coneal‘s intent, that he knew Coneal had a gun, or that he assisted Coneal in any way except by driving the car. Rivera drew a parallel to the facts in In re R.G. (2019) 35 Cal.App.5th 141, which involved a juvenile convicted of second degree murder under the natural and probable consequences doctrine based on his intent to participate in a gang assault that ended in murder. (Id. at p. 146.)
After receiving the parties’ briefing, the trial court (the same judge who took Rivera‘s plea) held a hearing on the petition in July 2019. The court granted the People‘s request for judicial notice of documents previously filed in the case, with the exception of the grand jury transcript. In declining the request as to the transcript, the court stated, “I can‘t find any basis on which the court should take judicial notice of that uncontested testimony.” The court then denied the petition for failure to make a prima facie showing of eligibility for relief on the basis that Rivera was charged with and “entered a
II. DISCUSSION
Rivera argues that the trial court erred by denying his petition on the basis that his conviction precluded relief under
A. Senate Bill No. 1437 and Section 1170.95
“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under
“Senate Bill No. 1437 also enacted
was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder“; and (3) “[t]he petitioner could not be convicted of first or second degree murder because of changes to
” ’
After issuing an order to show cause, the trial court must “hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts,” unless the parties “waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing.”
(
“Since [Senate Bill No.] 1437 was adopted and its mechanism for retroactive applications has come into play through the filing of
Second, Courts of Appeal disagree about the nature of the petitioner‘s burden to make a prima facie showing of eligibility for relief under
while under Drayton a petitioner
Duchine concluded, and the parties appear to agree, that Drayton states the appropriate standard.9 (Duchine, supra, 60 Cal.App.5th at pp. 813–814.) We agree with Duchine‘s reasoning and adopt its holdings that (1) “the prima facie showing the [petitioner] must make is that he [or she] did not, in fact, act [as required] or harbor the mental state required . . . for a murder conviction under current law” and (2) “the time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage rather than at the prima facie stage, at least where the record is not dispositive on the factual issues. Thus, absent a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question [the petitioner‘s] evidence.” (Id. at p. 815, italics added.)
The interplay between the two issues we have identified—the materials a trial court may consult and a petitioner‘s required showing at the prima
facie stage is key to the resolution of this case. As we now discuss, although the trial court mistakenly ruled that Rivera‘s plea to murder as charged in the indictment barred relief as a matter of law, it correctly declined to rely on the grand jury transcript in deciding whether Rivera made the required prima facie showing. This is because the transcript does not establish any ” ‘readily ascertainable facts’ ” conclusively demonstrating that Rivera is ineligible for relief under
C. Rivera Made a Prima Facie Showing of Eligibility for Relief Under Section 1170.95(c) .
We begin by reviewing the general law of murder and the various theories under which it may be proven. “Murder is the unlawful killing of a
“Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first
degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) All murders committed with implied malice are of the second degree. (Gonzalez, supra, 54 Cal.4th at p. 653.) In addition, if a person commits murder with the intent to kill, but “the intent to kill is not formed after premeditation and deliberation, the murder is of the second degree.” (Ibid.)
Before Senate Bill No. 1437, “the natural and probable consequences doctrine was an exception to the actual malice requirement“—i.e., the requirement of either express or implied malice.10 (People v. Clements (2021) 60 Cal.App.5th 597, 610 (Clements); People v. Gentile (2020) 10 Cal.5th 830, 847 (Gentile).) The name of the doctrine is confusing, since implied malice also incorporates the idea of “natural and probable consequences,” but the two concepts are distinct. Whereas implied malice is based on “the ‘natural and probable consequences’ of a defendant‘s own act,” the natural and probable consequences doctrine was “a theory of vicarious liability under which ‘[a]n aider and abettor [was] guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commit[ted] (the nontarget crime)’ “—including murder—” ‘that [was] a natural and probable consequence of the target crime.’ ” (Daniel, supra, 57 Cal.App.5th at p. 677, fn. 4.) ” ‘Because a nontarget murder “[was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the [murder].” ’ ” (Clements, at p. 610.) At the time Rivera was convicted, an aider and abettor could be
found guilty of second degree murder based on the natural and probable consequences doctrine. (See People v. Chiu (2014) 59 Cal.4th 155, 166; Clements, at p. 610.)
Under
It is undisputed that a conviction of second degree murder does not, in and of itself, bar a petition under
malice.”11 (Italics added.) We therefore turn to address whether the particulars of Rivera‘s plea render him ineligible for relief.
One requirement for relief under
The generic manner in which murder was charged here did not limit the People to prosecuting Rivera on any particular theories. As Rivera points out, it is well-settled that “only a single statutory offense of murder exists.” (People v. Nakahara (2003) 30 Cal.4th 705, 712.) Thus, “it has long been the law in this state that an accusatory pleading charging murder need not specify degree or the manner in which the murder was committed” (People v. Thomas
(1987) 43 Cal.3d 818, 829, fn. 5), nor need it “specify the theory of murder on which the prosecution relies at trial.” (People v. Contreras (2013) 58 Cal.4th 123, 147.) Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. (Nakahara, at p. 712 [felony murder]; see Gentile, supra, 10 Cal.5th at p. 843 [aiding and abetting not a separate offense]; People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12 [accusatory pleading that charges the defendant “as a principal is sufficient to support a conviction as an aider or abettor“].) The allegation that a murder was committed “willfully, unlawfully, and with malice aforethought” is a well-recognized way of charging murder in this generic sense. (People v. Sattiewhite (2014) 59 Cal.4th 446, 473 [such language is silent as to degree of murder]; People v. Kipp (2001) 26 Cal.4th 1100, 1131 [such language provides adequate notice of felony-murder theory]; see People v. Witt (1915) 170 Cal. 104, 107–108.) In short, despite the fact that the indictment charged Rivera with murder committed with malice aforethought, it allowed the prosecution to proceed on any theory of murder.
The fact that a special circumstance requiring an intent to kill was also alleged does not change this conclusion. Had Rivera entered a plea to murder as charged without the degree of the offense being specified, we might agree that the presence of the special circumstance meant the plea was to first degree murder. (See Sanchez v. Superior Court (2002) 102 Cal.App.4th 1266, 1267-1268 [defendant charged with special circumstance could not enter plea to unspecified degree of murder to allow trial court to determine degree].) But rules governing the fixing of a crime‘s degree upon entry of a plea do not affect the issue whether the charging document permits the People to proceed upon a particular theory. Particularly where, as here, a defendant ultimately enters a plea to second degree murder, the allegation of a special
circumstance requiring an intent to kill does not preclude prosecution based on the natural and probable consequences doctrine.
The Attorney General also argues that because Rivera admitted to committing murder with malice aforethought, he was not “convicted of felony murder or murder under a natural and probable consequences theory” under
“A guilty plea [or plea of nolo contendere] admits every element of the charged offense.” (In re Chavez (2003) 30 Cal.4th 643, 649; see
We emphasize that Rivera made no admissions related to the murder other than pleading no contest to the count as charged. In some cases, the record may reveal that a defendant admitted more than the elements of the
offense charged, and such additional admissions may preclude relief under
Here, however, there is no basis on which to infer that Rivera admitted to acting with actual malice. His stipulation to the grand jury transcript as the factual basis for his plea does not establish such an admission. Under
grand jury, and that evidence therefore cannot be used to demonstrate that he admitted to acting with actual malice. Thus, the trial court properly declined to rely on this evidence in making its ruling.
Nor does the record otherwise definitively establish that Rivera was not “convicted of felony murder or murder under a natural and probable consequences theory.” (
In Nguyen, Division One of the Second District Court of Appeal held that a petitioner failed to make a prima facie showing of eligibility for relief under
hearing evidence failed to establish express or implied malice and ” ‘more readily support[ed] a second degree felony murder or natural and probable consequences theory,’ ” although he also acknowledged that ” ‘the record [was] devoid of any description of the contemplated act’ ” that might support either theory. (Id. at p. 1162.) The trial court denied the petition on the basis that the petitioner was “not entitled to relief under
The Court of Appeal affirmed, concluding that the petitioner was “not entitled to relief as a matter of law” because “[t]he transcripts from the preliminary and plea hearings demonstrate[d] [he] was convicted of second degree murder as a direct aider and abettor,” as that “was the only theory put forth by the prosecutor” at both hearings. (Nguyen, supra, 53 Cal.App.5th at p. 1166–1167.) Noting that the petitioner unquestionably could not have made a prima facie showing of entitlement to relief under
Nguyen involves similar facts to ours, but we decline to follow its holding. Although we agree that a murder conviction after a plea has just as much “weight and finality” as one after a trial (Nguyen, supra,
53 Cal.App.5th at p. 1167), this does not mean that the theory underlying each type of conviction can be ascertained with the same degree of certainty. The fact that a petitioner was not “convicted of felony murder or murder under a natural and probable consequences theory” at trial may be conclusively determined if, for example, the jury did not receive instructions on either theory. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
In contrast, when a petitioner has entered a plea to murder after being charged by information or indicted, the record of conviction will generally lack any comparable assurance of the basis for the conviction. Both “a magistrate deciding whether to bind a defendant over to the superior court on a criminal complaint” and a grand jury “determining whether to return an indictment” need only find “probable cause” to believe the defendant committed the charged crime. (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1027–1029.) ” ’ “Of course, the probable cause test is not identical with the test which controls a [trial] jury . . . . The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime.” ’ ” (Id. at p. 1027.) But a magistrate or grand jury
” ’ “must be convinced only of such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] In other words, ‘Evidence that will justify a prosecution need not be sufficient to support a conviction.’ ” ’ ” (Id. at pp. 1027, 1029.)
And while a grand jury receives instructions, those instructions do not fix the theories on which a case may be prosecuted or establish the basis for a post-indictment plea. A prosecutor has “no duty to instruct the grand jury sua sponte on lesser included offenses” because ” ‘it is not the province of the [g]rand [j]ury to determine the degree of murder.’ ” (Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1034.) Instead, “the primary function of the grand jury is to investigate the crime charged and to determine whether probable cause exists to return an indictment for that offense. The question whether the evidence would support, ‘beyond a reasonable doubt,’ a lesser included crime only, or whether a particular defense should mitigate the crime, is more appropriately left to pretrial motions addressed to the trial court, or to determination by a trial jury.” (Id. at p. 1036.) Thus, a grand jury‘s return of an indictment after being instructed on only certain theories of murder does not reflect a determination that those are the only viable theories available, much less that murder has been proven under them beyond a reasonable doubt.
the natural and probable consequences doctrine. Rather, the evidence supported a murder based on malice such that [Rivera] could still be convicted under the current law.”
We disagree with Nguyen to the extent it suggests that relief under
We need not decide whether under other circumstances a trial court could rely on a grand jury transcript to deny a
transcript to deny the petition. (Id. at pp. 125–126; see People v. Verdugo, supra, 44 Cal.App.5th at pp. 329–330.) Likewise, we leave open the possibility that if a petitioner who entered a plea to murder after being indicted submits a form petition making the required declarations but does not in any way contest the evidence presented to the grand jury, a trial court can rely on the grand jury transcript to deny the petition before holding an evidentiary hearing.
III. DISPOSITION
The July 19, 2019 order denying Rivera‘s
WE CONCUR:
Humes, P.J.
Margulies, J.
Sanchez, J.
People v. Rivera A158284
Trial Court:
Superior Court of the County of San Mateo
Trial Judge:
Hon. Lisa A. Novak
Counsel for Defendant and Appellant:
Janice M. Lagerlof, under appointment by the Court of Appeal
Counsel for Plaintiff and Respondent:
Xavier Becerra, Attorney General
Lance E. Winters, Chief Assistant Attorney General
Jeffrey M. Laurence, Senior Assistant Attorney General
Rene A. Chacon, Supervising Deputy Attorney General
Julia Y. Je, Deputy Attorney General
People v. Rivera A158284