People v. Gentile ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH GENTILE, JR.,
Defendant and Appellant.
S256698
Fourth Appellate District, Division Two
E069088
Riverside County Superior Court
INF1401840
December 17, 2020
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban, and Grimes* concurred.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. GENTILE
S256698
Opinion of the Court by Liu, J.
When an accomplice aids and abets a crime, the
accomplice is culpable for both that crime and any other offense
committed that is the natural and probable consequence of the
aided and abetted crime. Natural and probable consequences
liability can be imposed even if the accomplice did not intend the
additional offense. (People v. McCoy (2001) 25 Cal.4th 1111,
1117 (McCoy).) In People v. Chiu (2014) 59 Cal.4th 155 (Chiu),
we held that natural and probable consequences liability cannot
extend to first degree premeditated murder because punishing
someone for first degree premeditated murder when that person
did not actually perpetrate or intend the killing is inconsistent
with “reasonable concepts of culpability.” (Id. at p. 165; see id.
at p. 166.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) after determining that
there was further “need for statutory changes to more equitably
sentence offenders in accordance with their involvement in
homicides.” (Stats. 2018, ch. 1015, § l, subd. (b).) Among other
things, Senate Bill 1437 amended Penal Code section 188 to
provide that “[e]xcept as stated in subdivision (e) of Section 189
[governing felony murder], in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (Pen. Code, § 188, subd. (a)(3); all
undesignated statutory references are to the Penal Code.) We
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Opinion of the Court by Liu, J.
are asked to decide the effect of this amendment on the natural
and probable consequences doctrine as it applies to second
degree murder.
We hold that Senate Bill 1437 bars a conviction for second
degree murder under the natural and probable consequences
theory. We further hold that the procedure set forth in
section 1170.95 is the exclusive mechanism for retroactive relief
and thus the ameliorative provisions of Senate Bill 1437 do not
apply to nonfinal judgments on direct appeal.
I.
In June 2014, Guillermo Saavedra was found beaten to
death inside La Casita restaurant in Indio where he lived and
worked as the caretaker. Near his body was a broken chair, a
broken beer bottle, a wooden stick, and a broken golf club with
Saavedra’s blood on it, as well as bloody shoe and sock prints.
Also found in the restaurant were cigarette butts containing
DNA from defendant Joseph Gentile, Jr., his ex-wife Saundra
Roberts, and Saavedra.
Around 1:00 a.m. the day before Saavedra’s body was
found, surveillance footage captured Gentile wandering around
the nearby Royal Plaza Inn. Several minutes later, another
camera outside a laundromat next to the Royal Plaza Inn
showed Gentile with Roberts and Roberts’s boyfriend Stephen
Gardner. When a detective retraced Gentile’s steps from the
surveillance footage, he found a bloody sock containing
Saavedra’s DNA as well as DNA consistent with Gentile’s
profile.
Gentile was charged with one count of first degree
premeditated murder (§ 187, subd. (a)) with sentencing
enhancements for personal use of a deadly weapon (id.,
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§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and for one prior
conviction (id., § 667.5, subd. (b)).
At trial, the prosecution and Gentile presented dueling
accounts of the events surrounding Saavedra’s death. Saundra
Roberts was the primary witness for the prosecution. She
testified that on the day Saavedra was killed, Roberts, Gentile,
and Saavedra met at La Casita restaurant. The three talked
and drank alcohol there into the evening. At one point, Gentile
and Saavedra got into an argument, but they remained friendly
and there was no violence. After several hours, Roberts felt
drunk and left to go sleep at a homeless encampment about one
block away. When Roberts woke up around 1:00 a.m. or
1:30 a.m. that night, she went to a nearby convenience store and
saw Gentile across the street in the parking lot of the Royal
Plaza Inn. Roberts approached Gentile and saw that his shirt
was wet. Roberts recalled Gentile saying that he had gotten into
a fight with a man, that he “hurt him pretty bad,” and that he
“might have killed” him. Roberts called Gardner and asked him
to bring a spare set of clothes, which he did. When Gardner
arrived and realized that the clothes were for Gentile, he became
angry and left. Roberts said she then left and did not see Gentile
again.
Gentile provided a different account to the police. He said
that when he arrived at the restaurant to meet Roberts, there
was a man there he had never met. Roberts told Gentile that
she was staying at the restaurant with the man. At some point,
Roberts also told Gentile that the man had “been raping” her.
Gentile then punched the man several times but did not use any
weapon. Roberts then said the man would never rape her again,
and she began hitting him with what Gentile thought was a
sledgehammer. Gentile took the weapon away from Roberts,
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Opinion of the Court by Liu, J.
but she retrieved it and resumed hitting the man. Gentile took
the weapon away from Roberts a second time, threw it to the
ground, and left the premises. Gentile denied ever striking the
man with a weapon.
Gentile’s friend Charlotte Sullivan testified that Gentile
was scheduled to visit her in Imperial Beach during the Fourth
of July weekend in 2014. In late June, around the time that
Saavedra was killed, Gentile called to ask if he could come out
earlier than planned. When she agreed, Gentile came out later
that same day. When he arrived, Gentile’s hands were swollen,
but he did not initially mention anything about being in or
witnessing a fight. Eventually, Gentile told Sullivan that he had
gotten into a fight with another man. He said that he was drunk
and that Roberts had told him the other man had raped her.
Gentile said he punched the other man a few times, but
eventually the man apologized and Gentile stopped hitting him.
At that point, Gentile said, Roberts had picked up a club and
started hitting the man with it. Gentile was arrested at
Sullivan’s residence on June 28, 2014. Sullivan testified that a
day after the arrest, Roberts called her and said that the man
who was killed had raped her and that Gentile got upset about
it. Roberts also said that Gentile and the man got into a fight
and that she left before anything else happened. Further,
according to Sullivan, Roberts said that she later went back to
the restaurant, “bleached everything,” and cleaned up the mess.
The trial court instructed the jury on three separate
theories of first degree murder: (1) that Gentile was the direct
perpetrator of the murder; (2) that he directly aided and abetted
Roberts in the commission of murder; and (3) that he aided and
abetted Roberts in the commission of felony assault with a
deadly weapon (§ 245, subd. (a)(1)), the natural and probable
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Opinion of the Court by Liu, J.
consequence of which was death. During deliberations, the jury
asked the court, “Are fists considered a deadly weapon?” The
court responded, “No.” The jury then convicted Gentile of first
degree murder and found not true that he personally used a
deadly weapon. The prosecution dismissed the prison prior, and
the court sentenced Gentile to 25 years to life in prison.
A series of appeals followed. In Gentile’s first appeal, the
Court of Appeal reversed his murder conviction after finding
that the natural and probable consequences jury instruction for
first degree murder violated Chiu, supra, 59 Cal.4th 155.
(People v. Gentile (Feb. 27, 2017, E064822) [nonpub. opn.]
(Gentile I ).) The court found it “probable that the jury convicted
defendant on an unauthorized legal theory” because the trial
court had instructed the jury on the natural and probable
consequences theory and the jury did not find that Gentile used
a deadly or dangerous weapon in committing the crime,
suggesting that the jury did not think he was the actual
perpetrator. (Ibid.) The Court of Appeal remanded the case for
the prosecution to decide whether to “retry [Gentile] for the first
degree murder under theories other than natural and probable
consequences” or to accept reduction of Gentile’s conviction to
second degree murder. (Ibid.) It did not reach Gentile’s other
claims.
On remand, the prosecution elected to accept a reduction
to second degree murder, and Gentile was sentenced to a prison
term of 15 years to life. Meanwhile, on September 30, 2018, the
Governor signed Senate Bill 1437 into law, which, effective
January 1, 2019, amended the Penal Code to modify accomplice
liability for murder and the felony murder rule. (Stats. 2018,
ch. 1015.)
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Gentile appealed again, raising the issues the Court of
Appeal left undecided in his first appeal. He also sought leave
to file a supplemental brief arguing that Senate Bill 1437
applied retroactively to his conviction and that it eliminated
second degree murder liability under a natural and probable
consequences theory. The Court of Appeal rejected Gentile’s
arguments and affirmed his second degree murder conviction.
(People v. Gentile (Nov. 15, 2018, E069088) [nonpub. opn.]
(Gentile II ).) It disposed of Gentile’s Senate Bill 1437 argument
in a footnote. Without deciding whether Senate Bill 1437
applied retroactively, the court concluded that Senate Bill 1437
“does not preclude convictions for second degree murder where
the defendant is an active aider-abettor. We denied defendant’s
request because he was, at a minimum, an active aider abettor,
if not the actual killer, for which a reduction to second degree
murder was appropriate, pursuant to People v. Chiu (2014)
59 Cal.4th 155, 166.” (Ibid.)
We granted Gentile’s petition for review and transferred
the case to the Court of Appeal to reconsider Gentile’s second
degree murder conviction in light of Senate Bill 1437 and “the
court’s determination, in defendant’s prior appeal, that it is
probable the jury convicted defendant of murder on the theory
that he aided and abetted Saundra Roberts in a target crime
that, as a natural and probable consequence, resulted in her
murder of the victim.” (People v. Gentile, S253197, Supreme Ct.
Mins., Mar. 13, 2019.)
On reconsideration, the Court of Appeal again affirmed
Gentile’s second degree murder conviction. (People v. Gentile
(May 30, 2019) E069088, review granted and opn. ordered
nonpub. Sept. 11, 2019, S256698 (Gentile III).) It construed
Gentile’s argument to contend that Senate Bill 1437’s
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Opinion of the Court by Liu, J.
amendments to section 189 “eliminate[d] all murder liability for
aiders and abettors.” (Ibid.) The court concluded that such an
interpretation of section 189 was contrary to the text of the
statute and would conflict with our decision in Chiu. It
reiterated that Gentile’s conviction stands because “[a]t a
minimum . . . [he] was a direct or active aider and abettor” of
murder. (Ibid.) We granted review.
II.
Senate Bill 1437 “amend[ed] 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, § l, subd. (f).)
To further that purpose, Senate Bill 1437 added three
separate provisions to the Penal Code. First, to amend the
felony murder rule, Senate Bill 1437 added section 189,
subdivision (e): “A participant in the perpetration or attempted
perpetration of [qualifying felonies] in which a death occurs is
liable for murder only if one of the following is proven:
[¶] (1) The person was the actual killer. [¶] (2) The person was
not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the
first degree. [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” Because
Gentile was not prosecuted under a theory of felony murder, this
provision is not at issue here. (§ 189, subd. (a).)
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Opinion of the Court by Liu, J.
Second, to amend the natural and probable consequences
doctrine, Senate Bill 1437 added section 188, subdivision (a)(3)
(section 188(a)(3)): “Except [for felony murder liability] as
stated in subdivision (e) of Section 189, in order to be convicted
of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.”
Third, Senate Bill 1437 added section 1170.95 to provide
a procedure for those convicted of felony murder or murder
under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.
Gentile argues that Senate Bill 1437’s amendments to
section 188 eliminate second degree murder liability under the
natural and probable consequences doctrine and that his second
degree murder conviction must be reversed. The Attorney
General does not dispute Gentile’s interpretation of Senate
Bill 1437 but argues that the erroneous natural and probable
consequences jury instruction in his case did not prejudice him.
Exercising our independent judgment (see People v. Lopez
(2020) 9 Cal.5th 254, 268), we agree with the parties that Senate
Bill 1437 bars a defendant from being convicted of second degree
murder under a theory that the defendant aided and abetted a
crime, the natural and probable consequence of which was
murder.
A.
A person who aids and abets the commission of a crime is
culpable as a principal in that crime. (§ 31.) Aiding and
abetting is not a separate offense but a form of derivative
liability for the underlying crime. (People v. Francisco (1994)
22 Cal.App.4th 1180, 1190.) Our law recognizes two forms of
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Opinion of the Court by Liu, J.
liability for aiders and abettors. (McCoy, supra, 25 Cal.4th at
p. 1117.) First, under direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another if the
accomplice aids the commission of that offense with “knowledge
of the direct perpetrator’s unlawful intent and [with] an intent
to assist in achieving those unlawful ends.” (People v. Perez
(2005) 35 Cal.4th 1219, 1225.)
Second, under the natural and probable consequences
doctrine, an accomplice is guilty not only of the offense he or she
directly aided or abetted (i.e., the target offense), but also of any
other offense committed by the direct perpetrator that was the
“natural and probable consequence” of the crime the accomplice
aided and abetted (i.e., the nontarget offense). (Chiu, supra,
59 Cal.4th at p. 161.) A nontarget offense is the natural and
probable consequence of a target offense “if, judged objectively,
the [nontarget] offense was reasonably foreseeable.” (Ibid.) The
accomplice need not actually foresee the nontarget offense.
“Rather, liability ‘ “is measured by whether a reasonable person
in the defendant’s position would have or should have known
that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.” ’ ” (Id. at p. 162.)
Unlike direct aiding and abetting liability, culpability
under the natural and probable consequences theory does not
require an accomplice to share the direct perpetrator’s intent.
Instead, “[a]ider and abettor culpability under the natural and
probable consequences doctrine is vicarious in nature” and “ ‘is
not premised upon the intention of the aider and abettor to
commit the nontarget offense because the nontarget offense’ ”
may not be intended at all. (Chiu, supra, 59 Cal.4th at p. 164.)
“[F]or example, if a person aids and abets only an intended
assault, but a murder results, that person may be guilty of that
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Opinion of the Court by Liu, J.
murder, even if unintended, if it is a natural and probable
consequence of the intended assault.” (McCoy, supra, 25 Cal.4th
at p. 1117.)
The natural and probable consequences doctrine is not
circumscribed by the felony murder principle that prohibits
murder convictions premised solely on a lesser included offense
of the murder itself, such as felony assault. (See People v.
Ireland (1969) 70 Cal.2d 522, 539–540.) The natural and
probable consequences doctrine also differs from the law of
conspiracy, which holds a person liable for crimes that he or she
agreed with one or more persons to commit and that a member
of the conspiracy committed in furtherance of the agreement.
(See People v. Smith (2014) 60 Cal.4th 603, 616–617.) As one
treatise notes, the natural and probable consequences doctrine
is a theory of liability that often exposes a defendant to
punishment for “a crime of intent although his culpability
regarding its commission may be no greater than that of
negligence.” (Dressler, Understanding Criminal Law (2d ed.
1995) § 30.05[B][5], p. 444.)
Murder, whether in the first or second degree, requires
malice aforethought. (§ 187.) Malice can be express or implied.
It is express when there is a manifest intent to kill (§ 188,
subd. (a)(1)); it is implied if someone kills with “no considerable
provocation . . . or when the circumstances attending the killing
show an abandoned and malignant heart” (§ 188, subd. (a)(2)).
When a person directly perpetrates a killing, it is the
perpetrator who must possess such malice. (See People v.
Concha (2009) 47 Cal.4th 653, 660 [“To satisfy the mens rea
element of murder, the defendant must personally act with
malice aforethought.”]; People v. Soto (2018) 4 Cal.5th 968, 974
(Soto) [“The mental component [of implied malice] is the
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Opinion of the Court by Liu, J.
requirement that the defendant ‘knows that his conduct
endangers the life of another and . . . acts with conscious
disregard for life.’ ”].) Similarly, when a person directly aids and
abets a murder, the aider and abettor must possess malice
aforethought. (McCoy, supra, 25 Cal.4th at p. 1118 [“[O]utside
of the natural and probable consequences doctrine, an aider and
abettor’s mental state must be at least that required of the direct
perpetrator.”].) But until recently, when a person aided and
abetted a nonhomicide crime that then resulted in a murder, the
natural and probable consequences doctrine allowed him or her
to be convicted of murder without personally possessing malice
aforethought. So long as the direct perpetrator possessed
malice, and the killing was a natural and probable consequence
of the crime the defendant aided and abetted, it did not matter
whether the defendant intended to kill or acted with conscious
disregard for human life. (Chiu, supra, 59 Cal.4th at pp. 165–
166.)
In Chiu, we held that the natural and probable
consequences doctrine cannot support a conviction for first
degree premeditated murder. (Chiu, supra, 59 Cal.4th at
p. 167.) We reasoned that in the context of murder, the natural
and probable consequences doctrine serves the purpose of
“deterring aiders and abettors from aiding or encouraging the
commission of offenses that would naturally, probably, and
foreseeably result in an unlawful killing.” (Id. at p. 165.) But
this purpose “loses its force” when an accomplice is held culpable
for first degree premeditated murder under a natural and
probable consequences theory. (Id. at p. 166.) First degree
premeditated murder carries significantly higher penalties than
second degree murder and requires the additional mental state
that the killing be “willful, deliberate, and premeditated.”
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Opinion of the Court by Liu, J.
(§ 189, subd. (a); Chiu, at p. 166.) Whether or not the direct
perpetrator killed with premeditation “has no effect on the
resultant harm. The victim has been killed regardless of the
perpetrator’s premeditative mental state.” (Chiu, at p. 166.)
We further concluded that subjecting an accomplice to
enhanced punishment based solely on the “uniquely subjective
and personal” mental state of the direct perpetrator was
inconsistent with “reasonable concepts of culpability.” (Chiu,
supra, 59 Cal.4th at pp. 166, 165.) We found “the connection
between the defendant’s culpability and the perpetrator’s
premeditative state . . . too attenuated to impose aider and
abettor liability for first degree murder under the natural and
probable consequences doctrine.” (Id. at p. 166.) By contrast,
we concluded “that punishment for second degree murder is
commensurate with” a defendant’s level of culpability under the
natural and probable consequences doctrine. (Ibid.) We thus
left in place natural and probable consequences liability for
second degree murder.
After Chiu, the Legislature in 2017 adopted Senate
Concurrent Resolution No. 48, which declared the Legislature’s
intent to enact further “statutory changes to more equitably
sentence offenders in accordance with their involvement in the
crime.” (Sen. Conc. Res. No. 48, Stats. 2017 (2017–2018 Reg.
Sess.) res. ch. 175 (Senate Concurrent Resolution 48).) The
resolution recognized a “need for additional reform when
addressing aider and abettor liability . . . , specifically the
‘natural and probable’ consequences doctrine, which . . . results
in greater punishment for lesser culpability.” (Ibid.) The
Legislature found that the natural and probable consequences
doctrine “result[s] in individuals lacking the mens rea and
culpability for murder being punished as if they were the ones
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Opinion of the Court by Liu, J.
who committed the fatal act” and that “this leads to overbroad
application.” (Ibid.) It also concluded that “[i]t can be cruel and
unusual punishment to not assess individual liability for
nonperpetrators of the fatal act . . . and impute culpability for
another’s bad act, thereby imposing lengthy sentences that are
disproportionate to the conduct in the underlying case.” (Ibid.)
A year later, the Legislature cited Senate Concurrent
Resolution 48 when it enacted Senate Bill 1437. (Stats. 2018,
ch. 1015, § l, subd. (c) [“Senate Concurrent Resolution 48
. . . outlines the need for the statutory changes contained in this
measure.”].) Among other things, Senate Bill 1437 modified the
requirement of malice aforethought for purposes of murder.
Now, except for felony murder, “in order to be convicted of
murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188(a)(3), italics
added.)
The most natural meaning of this provision, construed in
the context of Senate Bill 1437 as a whole and in the context of
the Penal Code, bars a conviction for first or second degree
murder under a natural and probable consequences theory.
Except for felony murder, section 188(a)(3) makes personally
possessing malice aforethought a necessary element of murder.
Natural and probable consequences liability for murder contains
no such requirement.
The language of section 188(a)(3) requires a principal to
“act with malice aforethought” in order to be convicted of
murder, making no exception for accomplices or second degree
murder. (§ 188(a)(3).) By its terms, section 188(a)(3) permits a
second degree murder conviction only if the prosecution can
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prove the defendant acted with the accompanying mental state
of mind of malice aforethought. The prosecution cannot
“impute[] [malice] to a person based solely on his or her
participation in a crime.” (Ibid.)
Senate Bill 1437’s legislative findings confirm this
straightforward reading of the statute. The Legislature stated
a need for “statutory changes to more equitably sentence
offenders in accordance with their involvement in homicides.”
(Stats. 2018, ch. 1015, § l, subd. (b).) Accordingly, the
Legislature found it “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.” (Id.,
§ 1, subd. (f).) Critically, the Legislature said that with the
exception of the felony murder rule, “[a] person’s culpability for
murder must be premised upon that person’s own actions and
subjective mens rea.” (Id., § l, subd. (g), italics added.) These
findings, like the text of the statute, clearly indicate that the
Legislature intended to restrict culpability for murder outside
the felony murder rule to persons who personally possess malice
aforethought.
The natural and probable consequences doctrine is
incompatible with this requirement because an aider and
abettor need not personally possess malice, express or implied,
to be convicted of second degree murder under a natural and
probable consequences theory. (See Chiu, supra, 59 Cal.4th at
p. 164 [“ ‘the mens rea of the aider and abettor with respect to
[the nontarget] offense is irrelevant’ ”]; People v. Culuko (2000)
78 Cal.App.4th 307, 322 [“The natural and probable
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Opinion of the Court by Liu, J.
consequences doctrine . . . allows an aider and abettor to be
convicted of murder, without malice . . . .”].) Indeed, the natural
and probable consequences doctrine authorizes precisely what
Senate Bill 1437 forbids: it allows a factfinder to impute malice
“to a person based solely on his or her participation in a crime.”
(§ 188(a)(3).) Under the doctrine, “individuals lacking the mens
rea and culpability for murder [are] punished as if they were the
ones who committed the fatal act.” (Sen. Conc. Res. 48, supra.)
Further, we observe that in addition to amending the
substantive law of murder, Senate Bill 1437 provided a
procedure for defendants with eligible murder convictions to
petition to have their convictions vacated through the trial
court. (§ 1170.95.) This procedure expressly contemplates that
defendants convicted of second degree murder can avail
themselves of Senate Bill 1437’s ameliorative provisions. Under
section 1170.95, a defendant may petition to have his or her
conviction vacated when, among other conditions, the following
apply: “The petitioner 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” (§ 1170.95, subd. (a)(2)), and “[t]he
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019” (§ 1170.95, subd. (a)(3)). If Senate Bill 1437
were inapplicable to second degree murder, there would have
been no need to include second degree murder among the
convictions eligible for relief under section 1170.95.
Apart from the Court of Appeal decision in this case, every
published Court of Appeal opinion to address the issue has
concluded that Senate Bill 1437 eliminates natural and
probable consequences liability for murder regardless of degree.
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(See, e.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1102–
1103 & fn. 9, review granted on another issue Nov. 13, 2019,
S258175 (Lopez); People v. Larios (2019) 42 Cal.App.5th 956,
964, review granted Feb. 26, 2020, S259983; People v. Verdugo
(2020) 44 Cal.App.5th 320, 323, review granted on another issue
Mar. 18, 2020, S260493; People v. Lewis (2020) 43 Cal.App.5th
1128, 1135, review granted on another issue Mar. 18, 2020,
S260598; People v. Medrano (2019) 42 Cal.App.5th 1001, 1007–
1008, review granted on another issue Mar. 11, 2020, S259948;
People v. Lee (2020) 49 Cal.App.5th 254, 262, review granted on
another issue July 15, 2020, S262459; People v. Offley (2020)
48 Cal.App.5th 588, 595.) We agree with these authorities.
B.
The Court of Appeal here appeared to recognize that
Senate Bill 1437 “intended to prohibit murder convictions where
the participant was not the actual killer or a direct aider or
abettor of the murderer.” (Gentile III, supra, E069088.) But it
then misconstrued Gentile’s argument by stating that
“[c]ontrary to defendant’s interpretation, section 189,
subdivision (e) does not eliminate all murder liability for aiders
and abettors.” (Ibid.) That was not Gentile’s argument in the
Court of Appeal or in this court. Gentile has consistently argued
that Senate Bill 1437 eliminated aiding and abetting murder
liability under the natural and probable consequences theory,
not that it eliminated all aiding and abetting murder liability.
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. (McCoy, supra, 25 Cal.4th at
p. 1118.)
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Nor is Gentile’s argument based on section 189. He has
consistently argued that section 188 eliminates natural and
probable consequences liability for second degree murder.
Section 189, subdivision (e) does not apply to this case; that
provision addresses liability under the felony murder rule. The
jury in Gentile’s case was never instructed on the felony murder
rule, and Gentile was not charged with a predicate felony that
can serve as the basis for felony murder. (§ 189, subd. (a).) Nor
does anyone argue that assault with a deadly weapon (§ 245,
subd. (a)(1)) — the crime that Gentile is alleged to have aided
and abetted — is a qualifying felony for felony murder purposes.
The Court of Appeal also reasoned that Gentile’s
contention would run counter to Chiu, which “made clear that
second degree murder liability is proportional to the culpability
of an aider and abettor under the natural and probable
consequences doctrine.” (Gentile III, supra, E069088.) But
Senate Bill 1437 superseded that portion of Chiu by amending
section 188 to require that a defendant personally possess
malice aforethought to be convicted of murder, with only the
exception of felony murder.
The San Diego County District Attorney (District
Attorney) as amicus curiae argues that Senate Bill 1437 should
be interpreted only to modify the natural and probable
consequences doctrine for murder rather than to eliminate it.
The District Attorney argues that what section 188(a)(3) does is
add the element of malice aforethought to natural and probable
consequences liability. In other words, the District Attorney
contends that to be culpable for murder under the natural and
probable consequences theory after Senate Bill 1437, a
defendant must aid in and intend the commission of a target
offense, the target offense must have foreseeably resulted in
17
PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
murder, and additionally the defendant must possess malice
aforethought. The District Attorney points to the fact that
uncodified section 1, subdivision (f) of Senate Bill 1437 uses the
word “amend.” (Id., § 1, subd. (f) [“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.”].)
But it is not unreasonable to say that Senate Bill 1437
“amend[ed] . . . the natural and probable consequences doctrine,
as it relates to murder,” by eliminating the doctrine’s
applicability to murder while leaving the doctrine intact with
respect to other crimes. (Id., § 1, subd. (f).) In any event, an
uncodified statement of purpose cannot substitute for operative
statutory language (see Scher v. Burke (2017) 3 Cal.5th 136,
148–149; Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 58–61). By limiting murder liability to those
principals who personally acted with malice aforethought,
section 188(a)(3) eliminates what was the core feature of natural
and probable consequences murder liability: the absence of a
requirement that the defendant personally possess malice
aforethought. As a result, the most natural reading of Senate
Bill 1437’s operative language is that it eliminates natural and
probable consequences liability for first and second degree
murder. Further, we agree with the Attorney General that the
District Attorney’s proposed “hybrid doctrine” is “confusing and
unnecessary” and is most likely not what the Legislature
intended.
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
The District Attorney points to two unpublished cases to
illustrate the importance of creating a “hybrid doctrine.” In one
case, the driver in a drive-by shooting was convicted of second
degree murder after he “observed rival gang members on [his
gang’s] ‘turf’ ” and “drove up to the rivals at a rapid speed to
scare them” as well as “beat them up and harm them,” at which
point his companion suddenly opened fire and caused the death
of one of the rival gang members. (People v. Franco (Dec. 10,
2012, D060354) [nonpub. opn.].) In the other case, three gang
members were convicted of second degree murder for ambushing
and stabbing to death a person walking home, but the evidence
was inconclusive as to which of the defendants actually caused
the death of the victim. (People v. Dean (Sept. 30, 2020,
D074371) [nonpub. opn.].) Without a “hybrid doctrine,” the
District Attorney contends, these defendants would have
“literally g[otten] away with murder.”
As the Attorney General observes, however, second degree
murder in both cases might have been pursued under a direct
aiding and abetting theory. Such a theory requires that “the
aider and abettor . . . know and share the murderous intent of
the actual perpetrator.” (McCoy, supra, 25 Cal.4th at p. 1118).
For implied malice, the intent requirement is satisfied by proof
that the actual perpetrator “ ‘knows that his conduct endangers
the life of another and . . . acts with conscious disregard for
life.’ ” (Soto, supra, 4 Cal.5th at p. 974.) Therefore,
notwithstanding Senate Bill 1437’s elimination of natural and
probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person
knows that his or her conduct endangers the life of another and
acts with conscious disregard for life.
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
In other cases involving conduct resulting in a victim’s
death, a murder prosecution can proceed under the “substantial
factor” causation doctrine or the felony murder rule. (See, e.g.,
People v. Jennings (2010) 50 Cal.4th 616, 643; People v. Chun
(2009) 45 Cal.4th 1172, 1182.) Moreover, the foreseeable result
of a defendant’s actions, though insufficient by itself to result in
liability for murder, remains relevant to assessing whether the
defendant acted with malice aforethought or whether the
defendant’s actions were sufficiently connected to the victim’s
death as a matter of proximate cause.
Even if the “hybrid doctrine” might theoretically reach
some conduct not reached by the doctrines above, the universe
of such conduct — where there is proof of malice aforethought
but insufficient evidence of direct aiding and abetting or other
liability for murder — seems ill-defined and, in any event, quite
narrow. We are not persuaded that the Legislature intended to
preserve natural and probable consequences liability for murder
through a “hybrid doctrine” that would apply to a vague and, in
all likelihood, very small set of cases. In addition, the District
Attorney’s proposed jury instructions for the “hybrid doctrine”
would unnecessarily complicate an already complicated body of
law. As the Attorney General explains, the core feature of the
natural and probable consequences doctrine is that it eliminates
the mental state requirement for the nontarget crime — here,
eliminating the malice requirement for murder. To instruct a
jury on the natural and probable consequences doctrine, the
essence of which is that malice is not required, and then ask the
jury to assess whether the defendant acted with malice, would
pose a substantial risk of confusion. This further suggests that
the Legislature did not intend to adopt a “hybrid doctrine,” and
we decline to do so judicially.
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Opinion of the Court by Liu, J.
In sum, we hold that section 188(a)(3) bars conviction for
second degree murder under a natural and probable
consequences theory.
III.
When a trial court instructs the jury on alternative
theories of guilt and at least one of those theories is legally
erroneous at the time it was given, we normally assess whether
the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 24. (People v.
Aledamat (2019) 8 Cal.5th 1, 3.) We “must reverse the
conviction unless, after examining the entire cause, including
the evidence, and considering all relevant circumstances, [we]
determine[] the error was harmless beyond a reasonable doubt.”
(Ibid.)
Here, Senate Bill 1437 did not become effective until after
Gentile’s conviction. (§ 1170.95, subd. (a)(3) [“changes to
Section 188 [and] 189 [are] made effective January 1, 2019”].)
As a result, whether Gentile may obtain relief in this direct
appeal depends on whether the ameliorative provisions of
Senate Bill 1437 apply retroactively to cases not yet final on
appeal. Gentile argues that under In re Estrada (1965)
63 Cal.2d 740 (Estrada), the amendments Senate Bill 1437
made to sections 188 and 189 should apply retroactively to cases
on direct review. The Attorney General contends that the text
and structure of Senate Bill 1437 make clear that while its
ameliorative provisions apply retroactively, defendants may
seek relief only by filing a section 1170.95 petition in superior
court. The Courts of Appeal have uniformly agreed with the
Attorney General’s view. (Lopez, supra, 38 Cal.App.5th at
pp. 1113–1114, rev. granted on another issue; People v.
21
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Opinion of the Court by Liu, J.
Munoz (2019) 39 Cal.App.5th 738, 751–753, review granted on
another issue Nov. 26, 2019, S258234; People v. Martinez (2019)
31 Cal.App.5th 719, 727–729 (Martinez); People v. Cervantes
(2020) 46 Cal.App.5th 213, 220–221 (Cervantes); People v.
Anthony (2019) 32 Cal.App.5th 1102, 1147–1158; People v. Bell
(2020) 48 Cal.App.5th 1, 10–11.) We do as well: The
ameliorative provisions of Senate Bill 1437 do not apply on
direct appeal to nonfinal convictions obtained before the law
became effective. Such convictions may be challenged on Senate
Bill 1437 grounds only through a petition filed in the sentencing
court under section 1170.95.
Newly enacted legislation lessening criminal punishment
or reducing criminal liability presumptively applies to all cases
not yet final on appeal at the time of the legislation’s effective
date. (See Estrada, supra, 63 Cal.2d at pp. 744–745.) This
presumption “rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences
that are final and sentences that are not.” (People v. Conley
(2016) 63 Cal.4th 646, 657 (Conley); see People v. Frahs (2020)
9 Cal.5th 618, 628–629; Estrada, at p. 745.)
However, when ameliorative legislation sets out a specific
mechanism as the exclusive avenue for retroactive relief, we
have held that such legislation does not apply retroactively to
nonfinal judgments on direct appeal. (See Conley, supra,
63 Cal.4th at pp. 656–659; People v. DeHoyos (2018) 4 Cal.5th
594, 602–603 (DeHoyos).) In Conley, we concluded that
Proposition 36, the Three Strikes Reform Act of 2012, did not
apply retroactively to defendants whose convictions were not yet
final on appeal based on three “interpretive considerations.”
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
(Conley, at p. 657.) First, Proposition 36 established a specific
mechanism for defendants to seek resentencing in light of its
ameliorative provisions, and that mechanism “dr[ew] no
distinction between persons serving final sentences and those
serving nonfinal sentences.” (Ibid.) Second, Proposition 36 did
not make resentencing automatic; its provisions directed the
trial court to evaluate whether early release would pose “an
‘unreasonable risk of danger to public safety’ ” based on the
defendant’s criminal history and other factors. (Id. at p. 658.)
Third, we explained that other complexities in the law —
including the fact that it created a new set of sentencing factors
that must be pleaded and proved by the prosecution and did not
specify how the prosecution would meet that burden in a case
where the defendant was already sentenced — indicated that
“voters intended for previously sentenced defendants to seek
relief” solely through a resentencing petition as provided by the
initiative. (Id. at p. 661; id. at pp. 659–660.)
In DeHoyos, we held that Proposition 47, the Safe
Neighborhoods and Schools Act, did not apply retroactively to
cases on direct review. (DeHoyos, supra, 4 Cal.5th at p. 603.)
Proposition 47 contained a specific mechanism for resentencing
that did not draw a distinction between persons serving final
and nonfinal sentences. (Ibid.) And Proposition 47 did not
automatically entitle defendants to relief; it required the trial
court to assess whether early release would pose a risk to public
safety. (Ibid.) Finally, although Proposition 47 did not create
new sentencing factors that must be pleaded and proved by the
prosecution, “other indicia of legislative intent” — including the
breadth of the statement of purpose in the Voter Information
Guide — indicated that the voters intended to extend relief to
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
all defendants who had not yet completed their sentences,
subject to the law’s resentencing mechanism. (Ibid.)
Similarly here, Senate Bill 1437 creates a specific
mechanism for retroactive application of its ameliorative
provisions. Section 1170.95 lays out a process for a person
convicted of felony murder or murder under a natural and
probable consequences theory to seek vacatur of his or her
conviction and resentencing. First, the person must file a
petition with the trial court that sentenced the petitioner
declaring, among other things, that the petitioner “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189.” (§ 1170.95, subd. (a)(3); see § 1170.95,
subd. (b)(1)(A).) Then, the trial court must “review the petition
and determine if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of th[e] section.”
(§ 1170.95, subd. (c).) If so, the trial court must issue an order
to show cause and hold a hearing to determine whether to vacate
the murder conviction and to resentence the petitioner on any
remaining counts. (§ 1170.95, subds. (c), (d)(1).) At the hearing,
the prosecution must “prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3).) “The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.” (Ibid.) We express no view here on
the questions regarding the section 1170.95 process that are
before us in People v. Lewis (2020) 43 Cal. App. 5th 1128, review
granted Mar. 18, 2020, S260598.
Two considerations lead us to conclude that the
Legislature intended section 1170.95 to be the exclusive avenue
for retroactive relief under Senate Bill 1437. First, the
Legislature crafted a specific mechanism for seeking retroactive
24
PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
relief, and that mechanism does not distinguish between
persons whose sentences are final and those whose sentences
are not. “That the Legislature specifically created this
mechanism, which facially applies to both final and nonfinal
convictions, is a significant indication that Senate Bill 1437
should not be applied retroactively to nonfinal convictions on
direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.)
Second, section 1170.95 by its terms does not
automatically provide all defendants with a right to relief.
Instead, it requires the sentencing court to assess the
defendant’s eligibility for and entitlement to relief through a
petition and hearing process in which the prosecution and the
petitioner “may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3), italics added; see § 1170.95, subds. (a),
(c).) The fact that Senate Bill 1437 provides the parties “with
the opportunity to go beyond the original record in the petition
process, a step unavailable on direct appeal, is strong evidence
the Legislature intended for persons seeking the ameliorative
benefits of Senate Bill 1437 to proceed via the petitioning
procedure.” (Martinez, supra, 31 Cal.App.5th at p. 728.) We
express no view on the circumstances in which new or additional
evidence may result in the denial of relief to a defendant who
has made a prima facie showing under section 1170.95. We
simply observe that the Legislature, while intending to provide
relief to defendants whose convictions do not reflect their
individual culpability, also allowed for the possibility that some
convictions that implicate the ameliorative provisions of Senate
Bill 1437 may nonetheless remain valid.
The Office of the State Public Defender as amicus curiae
contends that because Senate Bill 1437 completely abolished
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
murder liability on a natural and probable consequences theory,
the applicable precedent on retroactivity is not Conley or
DeHoyos but People v. Rossi (1976) 18 Cal.3d 295. Rossi was
convicted of violating former section 288a, which criminalized
all acts of oral copulation. Before her conviction became final,
the Legislature amended section 288a in a manner that
legalized her conduct. We reversed the conviction, stating that
the Estrada rule applies not only when new legislation reduces
punishment for a crime, but also “when criminal sanctions have
been completely repealed before a criminal conviction becomes
final.” (Rossi, at p. 301.) But Rossi did not involve ameliorative
legislation that contained express provisions for obtaining
retroactive relief. It is true that Senate Bill 1437, unlike the
statutes considered in Conley and DeHoyos, went beyond
reducing punishment for particular crimes and altogether
eliminated a theory of liability for murder. But it did so in a
manner that expressly provides a mechanism for retroactive
relief. In light of this feature, Rossi is inapt, and Conley and
DeHoyos are more analogous to this case.
The Office of the State Public Defender also contends that
the word “may” instead of “shall” in the first sentence of
section 1170.95 indicates that the Legislature did not intend the
section 1170.95 petition process to be an exclusive remedy. But
the resentencing schemes we considered in Conley and DeHoyos
also used “may” instead of “shall.” (See Conley, supra,
63 Cal.4th at p. 655; DeHoyos, supra, 4 Cal.5th at p. 598.) By
authorizing defendants to petition for relief, the word “may” in
section 1170.95 does not suggest that relief on direct review is
also available.
Gentile makes several arguments for the availability of
relief on direct appeal, but none is persuasive. First, he argues
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
that Conley and DeHoyos are distinguishable because Senate
Bill 1437, unlike Proposition 36 and Proposition 47, does not
mandate a separate inquiry into dangerousness or impose any
other discretionary requirement for retroactive relief. That is
true, but section 1170.95 requires the superior court to
determine on an individualized basis, after considering any new
or additional evidence offered by the parties, whether the
defendant is entitled to relief. This suggests the Legislature’s
intent to limit retroactive relief to the procedures in
section 1170.95.
Second, Gentile contends that the Legislature included
section 1170.95 in order to “grant a form of super-retroactivity,
over and above the retroactivity that the law would ordinarily
provide, in order to extend the benefit of Estrada to those with
final judgments” rather than seeking to “deny the benefit of
Estrada to those with nonfinal judgments.” But nothing in the
statute’s text or legislative history supports this assertion. The
Legislature enacted Senate Bill 1437 several months after our
decision in DeHoyos and more than two years after Conley. Both
cases had construed a resentencing mechanism that “dr[ew] no
distinction between persons serving final sentences and those
serving nonfinal sentences” to apply to both categories of
persons. (Conley, supra, 63 Cal.4th at p. 657; see DeHoyos,
supra, 4 Cal.5th at p. 603.) Against this backdrop, if the
Legislature had intended section 1170.95 to apply only to
defendants whose convictions had become final, we would expect
the Legislature to have clearly said so.
Third, Gentile argues that section 1170.95, subdivision (f)
— which says, “This section does not diminish or abrogate any
rights or remedies otherwise available to the petitioner” —
suggests the petition process was not intended to be an exclusive
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
mechanism for relief. But there is “no indication that reversal
of a defendant’s sentence on direct appeal without compliance
with the procedures outlined in section 1170.95 was among the
‘rights’ the Legislature sought to preserve in enacting Senate
Bill 1437.” (Martinez, supra, 31 Cal.App.5th at p. 729; see
Cervantes, supra, 46 Cal.App.5th at pp. 224–225.) We rejected
similar arguments with regard to Proposition 36 (see Conley,
supra, 63 Cal.4th at pp. 661–662) and Proposition 47 (see
DeHoyos, supra, 4 Cal.5th at pp. 605–606), and we reject
Gentile’s argument here as well.
Fourth, Gentile says the Legislature included
section 1170.95 in order to level the playing field for defendants
with final convictions, since the typical remedy for a defendant
with a nonfinal conviction would be reversal and remand for a
new trial where new or additional evidence can be offered. This
argument also finds no support in the statute’s text or legislative
history. As the Attorney General observes, Gentile’s argument
cannot be reconciled with the fact that allowing defendants to
obtain automatic relief on direct appeal would “strip the
prosecution of its statutorily granted right to introduce new or
additional evidence to defend the continuing validity of the
conviction” during the section 1170.95 process.
Fifth, Gentile contends that the Legislature crafted the
section 1170.95 petition process to “avoid unfairness . . . to
parties who may not have previously litigated an issue that was
not relevant but now is.” He gives the example of a prosecutor
who opted not to introduce evidence that the defendant acted
with implied malice and was guilty of second degree murder
because the prosecutor was pursuing a felony murder theory
that did not require a showing of malice aforethought. We agree
that the Legislature authorized the parties to offer new or
28
PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
additional evidence during the section 1170.95 process in order
to allow the parties to explore issues they did not explore under
the prior state of the law. The statute contemplates that such
evidence may inform whether a conviction remains valid despite
the ameliorative provisions of Senate Bill 1437. But this aspect
of the statute does not suggest that the Legislature intended to
allow defendants to obtain relief from nonfinal judgments on
direct review. Instead, it suggests the opposite.
Sixth, Gentile argues that because “Chiu applies to cases
not yet final on direct appeal, it would be illogical to conclude
the further and analogous change in the law effectuated by the
amendment to Penal Code sections 188 and 189 does not.” We
see nothing illogical here. Chiu’s applicability to nonfinal
judgments does not make it unreasonable for the Legislature to
require defendants to proceed under section 1170.95 in order to
obtain relief on a claim not governed by Chiu.
Apart from his statutory arguments, Gentile says that
section 1170.95, as applied to a nonfinal conviction, violates the
Sixth Amendment to the United States Constitution because it
allows a judge rather than a jury to “redetermine an inmate’s
guilt under the revised homicide statutes.” He relies on People
v. Ramos (2016) 244 Cal.App.4th 99. Ramos was convicted by a
jury of unlawful transportation of heroin under a statute that
prohibited any transportation of certain controlled substances.
(Id. at pp. 100, 102.) Before Ramos’s conviction became final,
new legislation limited criminal liability to transportation of the
enumerated controlled substances “for sale.” (Id. at pp. 102–
103.) The Court of Appeal held that because these changes were
“retroactive” and applied to Ramos, and because a jury “did not
determine whether the heroin she transported was for sale
rather than personal use,” her conviction had to be reversed.
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Opinion of the Court by Liu, J.
(Id. at p. 103.) But Ramos is not squarely on point because the
ameliorative change was retroactive to cases on direct review.
(Id. at p. 103 [“Defendant contends, the People concede, and we
agree, the amendment is retroactive” on direct appeal and
“applies to defendant.”].) Here, we have determined that Senate
Bill 1437’s ameliorative changes to sections 188 and 189 are not
retroactive to cases on direct review. This reasoning also rebuts
the argument, raised by the California Attorneys for Criminal
Justice, that Gentile’s instructional error argument must be
addressed on direct review.
The crux of Gentile’s argument is that the section 1170.95
process violates the principle that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (Apprendi v.
New Jersey (2000) 530 U.S. 466, 490; see Alleyne v. United States
(2013) 570 U.S. 99, 103.) In People v. Perez (2018) 4 Cal.5th 1055(Perez), the defendant similarly argued that Proposition 36
entitled eligible defendants to ameliorative relief and that any
factual finding by the trial court resulting in the denial of relief
was a finding that effectively increased his sentence in violation
of Apprendi. (Perez, at p. 1064.) We disagreed, explaining that
“Proposition 36 does not automatically reduce, recall, or vacate
any sentence by operation of law.” (Ibid.) “It is up to the inmate
to petition for recall of the sentence, and at all times prior to the
trial court’s resentencing determination, the petitioner’s
original . . . sentence remains in effect. Under this scheme, a
factual finding that results in resentencing ineligibility does not
increase the petitioner’s sentence; it simply leaves the original
sentence intact.” (Ibid.)
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Opinion of the Court by Liu, J.
Gentile argues Perez is distinguishable on two grounds: it
involved a final conviction, not a nonfinal one as here; and the
finding at issue in Perez did not concern a fact essential to the
validity of the underlying conviction or the original sentence
when imposed, insofar as Proposition 36 merely reduced the
punishment for particular third strike convictions without
disturbing the validity of those convictions. (Perez, supra,
4 Cal.5th at p. 1064.) But this issue is not presented in this
direct appeal. Gentile has not filed a petition for resentencing
under section 1170.95, nor do we have before us a
section 1170.95 proceeding in which the trial court relied on
facts not found by a jury to sustain an otherwise invalid
conviction. Accordingly, we have no occasion here to opine on
whether denial of a section 1170.95 petition on the basis of such
factual findings would run afoul of Apprendi.
Further, Gentile contends that requiring defendants to
pursue relief exclusively through section 1170.95 violates the
appellate jurisdiction clause of the California Constitution by
“cut[ting] off a significant limb of the Court of Appeal and this
Court’s appellate jurisdiction and bestow[ing] it onto the
superior court.” (See Cal. Const., art. VI, § 11, subd. (a) [with
the exception of death penalty cases, the Courts of Appeal have
appellate jurisdiction in virtually all cases where the superior
courts had original jurisdiction, as well as in other cases when
prescribed by statute].) As a matter of constitutional avoidance,
he says, we should construe the revisions to sections 188 and
189 as applying retroactively to cases not yet final on appeal.
The amicus brief of the California Attorneys for Criminal
Justice echoes this argument.
But nothing in the language of the appellate jurisdiction
clause “conveys an intention to grant litigants a right of direct
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PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
appeal from judgments in proceedings within the superior
courts’ original jurisdiction.” (Leone v. Medical Board (2000)
22 Cal.4th 660, 666.) “ ‘Giving the words their ordinary
meaning, the provision serves to establish and allocate judicial
authority, not to define or guarantee the rights of litigants.
Indeed, the provision nowhere mentions direct appeals or a
“right of appeal.” ’ ” (Ibid.) It is true that “[b]ecause the
appellate jurisdiction clause is a grant of judicial authority, the
Legislature may not restrict appellate review in a manner that
would ‘ “substantially impair the constitutional powers of the
courts, or practically defeat their exercise.” ’ ” (Id. at p. 668.)
But Senate Bill 1437 does not cause any such impairment.
Although Gentile may not obtain relief from his sentence under
the ameliorative provisions of Senate Bill 1437 on direct review,
he may still exercise his right under section 1237 to appeal his
felony conviction on other available grounds. And if the superior
court holds that Gentile is not entitled to relief under
section 1170.95, he may appeal that ruling. Because Senate
Bill 1437 does not bar appellate review of Gentile’s claim for
relief, it does not violate the appellate jurisdiction clause of the
California Constitution.
Finally, the Office of the State Public Defender argues
that our reading of Senate Bill 1437 will lead to unnecessary
delay if defendants await resolution of their direct appeals
before filing a section 1170.95 petition. But nothing prevents
defendants from seeking to stay their direct appeals in order to
pursue relief under Senate Bill 1437. While a notice of appeal
vests exclusive jurisdiction in the appellate court “until
determination of the appeal and issuance of the remittitur”
(People v. Perez (1979) 23 Cal.3d 545, 554), a defendant may
nevertheless file a motion in the appellate court requesting a
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Opinion of the Court by Liu, J.
stay of the appeal and a limited remand for the purpose of
pursuing section 1170.95 relief. An appellate court may grant
such a stay and limited remand where good cause supports the
motion. (See Martinez, supra, 31 Cal.App.5th at p. 729;
Cervantes, supra, 46 Cal.App.5th at p. 226; see also People v.
Awad (2015) 238 Cal.App.4th 215, 220 [appellate courts may
“issue a limited remand to the trial court, before reaching the
merits of the appeal, for the specific purpose of allowing the
lower court to entertain a . . . petition to recall a sentence” under
Proposition 47].) “In those cases where a stay is granted and a
section 1170.95 petition is successful, the direct appeal may
either be fully or partially moot. If the petition is unsuccessful,
a defendant may seek to augment the appellate record, as
necessary, to proceed with any issues that remain for decision.”
(Martinez, at p. 729.)
In sum, we conclude that the ameliorative provisions of
Senate Bill 1437 do not automatically apply to nonfinal
judgments on direct appeal. Gentile must proceed under
section 1170.95 in order to obtain relief from his second degree
murder conviction.
IV.
In Gentile I, the Court of Appeal observed that the
superior court “instructed the jury at length that it could convict
defendant of first degree murder” under a natural and probable
consequences theory. (Gentile I, supra, E064822.) The court
said “[t]he fact the jury did not find that the defendant used a
deadly or dangerous weapon in the commission of the offense
supports an inference that the jury convicted him on [a natural
and probable consequences] theory” instead of viewing him as
the direct perpetrator of the crime. (Ibid.) Indeed, the Attorney
33
PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
General’s briefing in Gentile I conceded that there was “no basis
in th[e] record to conclude beyond a reasonable doubt that the
jury ultimately rested its verdict on the theory that [Gentile]
directly aided and abetted” the murder. Noting “the
pathologist’s determination that it would be difficult to cause
the victim’s fractured clavicle and the rib below it with the fists
alone,” and relying on the Attorney General’s concession that
the record does not permit a conclusion that the jury’s first
degree murder verdict was based on a valid ground, the Court
of Appeal concluded it was “probable that the jury convicted
defendant on an unauthorized legal theory.” (Ibid.)
Yet in the decision below, the Court of Appeal reached a
different conclusion. “[A]fter reviewing the record,” it concluded
that Gentile “was a direct or active aider and abettor” of murder,
and that “no resort to the natural and probable consequences
theory applies.” (Gentile III, supra, E069088.) Given the
Attorney General’s prior concessions and the fact that
section 1170.95 permits the parties to offer “new or additional
evidence” in a resentencing proceeding, the Court of Appeal was
poorly positioned on direct review to conclude that “defendant
was, at a minimum, an active aider-abettor who is not entitled
to vacation of his murder conviction.” (Gentile III, supra,
E069088.) In light of these considerations, that conclusion has
no preclusive effect if Gentile files a petition for relief from his
murder conviction under section 1170.95.
Going forward, the parties agree that Gentile has made “a
prima facie showing that he . . . is entitled to relief” (§ 1170.95,
subd. (c)) in light of the Attorney General’s concessions and the
Court of Appeal’s determination in Gentile I that it is “probable”
the jury relied on a natural and probable consequences theory
in finding him guilty of murder. In their section 1170.95
34
PEOPLE v. GENTILE
Opinion of the Court by Liu, J.
briefing, the parties are free to litigate what bearing, if any,
doctrines of estoppel or preclusion may have in light of those
prior concessions and the Court of Appeal’s determination in
Gentile I.
CONCLUSION
The judgment of the Court of Appeal is reversed. The
matter is remanded to that court to affirm Gentile’s second
degree murder conviction without prejudice to any petition for
relief that Gentile may file under section 1170.95.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
GRIMES, J.*
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
35
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gentile
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 35 Cal.App.5th 932Rehearing Granted
__________________________________________________________________________________
Opinion No. S256698
Date Filed: December 17, 2020
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Graham A. Cribbs
__________________________________________________________________________________
Counsel:
Eric R. Larson, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Lynne McGinnis, James H.
Flaherty III, A. Natasha Cortina, Meredith S. White and Alan L. Amann, Deputy Attorneys General, for
Plaintiff and Respondent.
Mitchell Keiter for Amicus Populi as Amicus Curiae.
Summer Stephan, District Attorney (San Diego), Mark A. Amador, Linh Lam and Michael Runyon,
Deputy District Attorneys for San Diego Country District Attorney as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric R. Larson
330 J Street, #609
San Diego, CA 92101
(619) 238-5575
Alan L. Amann
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2277