People v. Juarez CA2/3 ( 2023 )

Filed 1/30/23 P. v. Juarez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B319423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA063069)
v.
JUAN MANUEL JUAREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant; Juan Manual Juarez, in pro per.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury found Juan Manual Juarez guilty of second degree
murder and of attempted murder. He thereafter petitioned for
resentencing under Penal Code1 section 1172.6, which limits
accomplice liability for murder.2 The trial court denied that
petition, and Juarez appealed. His appellate counsel filed a brief
under People v. Wende (1979) 25 Cal.3d 436.3 However, we asked
counsel to brief whether the instructions given permitted the jury
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered
to section 1172.6, with no change in text. (Stats. 2022, ch. 58,
§ 10.)
3 While this matter was pending on appeal, our California
Supreme Court issued People v. Delgadillo (2022) 14 Cal.5th 216.
The court held that the procedures in Anders v. California (1967)
386 U.S. 738 and People v. Wende do not apply to appeals from
the denial of postconviction relief under section 1172.6. The court
instructed that on appeal from an order denying section 1172.6
relief, a counsel who finds no arguable issue should file a brief
informing the appellate court of that determination and include a
concise factual recitation. (Delgadillo, at pp. 231–232.) The
appellate court shall send a copy of the brief to the defendant
informing the defendant of the right to file a supplemental brief
and that if one is not filed within 30 days, the court may dismiss
the matter. (Ibid.) If a supplemental brief is filed, we must
evaluate the contentions in it. (Id. at p. 232.) If a supplemental
brief is not filed, we may dismiss the appeal as abandoned
without a written opinion. (Ibid.) However, we retain discretion
to independently review the record. (Ibid.) Here, Juarez filed a
supplemental brief and we requested additional supplemental
briefing. Therefore, we address the merits of his section 1172.6
petition.
2
to convict Juarez of murder under a theory prohibited under
section 1172.6, namely, a theory under which malice was imputed
to him based solely on his participation in the crime. We now
conclude that the instructions did not permit it to find Juarez
guilty of second degree murder without finding that he personally
acted with malice aforethought.
BACKGROUND4
I. The underlying conviction
An information charged Juarez with the murder of Isaac
Salinas and the attempted murder of Isaac’s brother, Candido
Salinas.5 At Juarez’s trial, evidence was introduced that one
night in 2008, Juarez, Jose Padilla, Erick Rodriguez, and one or
two other men drove to the Salinas’s house. Padilla was angry
because Isaac was dating Padilla’s sister. Juarez, who drove,
parked the car so that it blocked Candido’s van in the driveway.
According to Candido, Padilla got out of the car and demanded
that Candido tell him if his sister was there. Candido told him
his sister was fine, but Padilla retrieved a shotgun from between
the front driver’s and passenger’s seats in the car. Juarez was
standing outside the car, by the driver’s side door. Padilla
pointed the shotgun at Candido and threatened to shoot him.
At that point, Isaac came out of the house. Padilla pointed
the shotgun at him and demanded to see his sister. Isaac tried to
hide by getting to the street, but Juarez blocked Isaac’s path.
4 The background is largely derived from the opinion
affirming the judgment of conviction, People v. Juarez (Nov. 14,
2011, B223213) [nonpub. opn.].
5 Because the victims share a surname, we refer to them by
first names to avoid confusion.
3
Unable to get to the street, Isaac turned, and Padilla shot him in
the abdomen, killing him. When Candido tried to take the
shotgun from Padilla, Juarez hit Candido on the head with a
heavy object. Padilla shot at Candido, but missed. Juarez
pushed Padilla into the car, and they drove off.
Rodriguez, one of the men who went with Padilla and
Juarez to the Salinas’s house that night, testified that Padilla
said they were going there to get his sister and that Padilla was
“like upset.” However, there was no discussion that Padilla
planned to shoot Isaac. According to Rodriguez, when they
arrived, Padilla got out of the car with the shotgun. Padilla was
mad, and when Isaac came outside, Isaac ran around a car.
Padilla shot Isaac. Then, when Candido tried to take the shotgun
from Padilla, Juarez got out of the car and joined the struggle for
the shotgun. When they were driving away, Juarez called
Rodriguez a “bitch” for failing to help. Rodriguez also said that
Juarez had been trying to get jumped into a gang.
Juarez testified in his defense that Padilla had asked him
for a ride to Isaac’s house. Juarez never saw Padilla with a
shotgun, and Padilla never said he was going to the Salinas’s
home to kill or to harm someone. When they arrived at the
house, Padilla got out of the car with a shotgun. When Isaac
came outside, he and Padilla started running around a car and
then Padilla shot Isaac. Juarez said that he remained near his
car. He did not struggle with Candido over the shotgun, and he
did not hit Candido.
In 2009, a jury found Juarez guilty of the second degree
murder of Isaac (§ 187, subd. (a); count 1) and of the attempted
murder of Candido (§§ 664, 187, subd. (a); count 2). The jury
4
found true a principal-armed enhancement (§ 12022, subd. (a)(1))
as to both counts.
In January 2010, the trial court sentenced Juarez, on count
1, to 15 years to life and to a one-year term for the gun
enhancement and on count 2, to seven years and to a one-year
term for the gun enhancement.
II. The petition for resentencing
In 2021, Juarez petitioned for resentencing under section
1172.6. On his preprinted form, he checked the appropriate
boxes to show eligibility for relief and requested counsel. The
trial court appointed counsel to represent Juarez. The People
opposed the petition on the ground that Juarez’s jury was not
instructed on felony murder or the natural and probable
consequences doctrine. The People submitted this Division’s
opinion affirming the judgment of conviction (People v. Juarez,
supra, B223213) and the jury instructions. The trial court found
that Juarez had not made a prima facie showing of entitlement to
relief because the jury was not instructed on felony murder or the
natural and probable consequences doctrine. It accordingly
denied the petition.
This appeal followed. Court-appointed appellate counsel
filed an opening brief that raised no issues and asked this court
to independently review the record under People v. Wende, supra,
25 Cal.3d 436. Juarez filed a supplemental brief.6 We then
asked the parties to supplementally brief whether Juarez was
convicted of murder under a theory under which malice was
imputed to him based solely on his participation in the crime,
6 Juarez filed a document entitled writ of habeas corpus that
we deem to be a supplemental brief.
5
citing People v. Langi (2022) 73 Cal.App.5th 972 (Langi). We now
address that issue.
DISCUSSION
I. Senate Bill No. 1437 and imputed malice
To the end of ensuring that a person’s sentence is
commensurate with the person’s individual criminal culpability,
Senate Bill No. 1437 (2017–2018 Reg. Sess.) limited accomplice
liability under the felony-murder rule, eliminated the natural
and probable consequences doctrine as it relates to murder, and,
as particularly relevant here, eliminated convictions for murder
based on a theory under which malice is imputed to a person
based solely on that person’s participation in a crime. (§ 1172.6,
subd. (a) [added by Sen. Bill No. 1437]; People v. Lewis (2021) 11
Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830,
842–843.) Senate Bill No. 1437 thus added section 189,
subdivision (e) (limiting application of the felony-murder rule)
and section 188, subdivision (a)(3) (stating that “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime”).
Here, Juarez contends that two instructions given to his
jury allowed it to convict him of murder under a theory by which
malice was imputed to him based solely on his participation in
the murder. The first instruction, CALCRIM No. 520, stated that
murder requires malice aforethought, of which there are two
kinds: express and implied. A defendant acts with express
malice if the defendant unlawfully intended to kill. A defendant
acts with implied malice if (1) the defendant “intentionally
committed an act;” (2) “the natural and probable consequences of
the act were dangerous to human life;” (3) at the time he acted he
6
knew his act was dangerous to human life; and (4) the defendant
“deliberately acted with conscious disregard for human life.”
(CALCRIM No. 520.)
The second instruction, CALCRIM No. 401, stated that the
defendant is guilty of a “crime” based on aiding and abetting if
the People prove that (1) the perpetrator committed the crime;
(2) the defendant knew the perpetrator intended to commit the
crime; (3) before or during the crime’s commission, the defendant
intended to aid and abet the perpetrator in committing the crime;
and (4) the defendant’s words or conduct did in fact aid and abet
the perpetrator’s commission of the crime. The instruction
further stated, “Someone aids and abets a crime if he or she
knows the perpetrator’s unlawful purpose and he or she
specifically intends to and does in fact aid, facilitate, promote,
encourage or instigate the perpetrator’s commission of that
crime.”7 (CALCRIM No. 401, italics added.)
At least two Courts of Appeal— People v. Powell (2022) 63
Cal.App.5th 689 and Langi, supra, 73 Cal.App.5th 972—have
found these instructions, or their CALJIC precursors, in
combination problematic. Powell, at page 714, found that
CALCRIM No. 401, the same aiding and abetting instruction
used here, is “not tailored for” aiding and abetting an implied
malice murder. Specifically, while CALCRIM No. 401 refers to
an intent to aid and abet a “crime,” the aider and abettor in fact
needs to “intend the commission of the perpetrator’s act, the
natural and probable consequences of which are dangerous to
7 The trial court also gave CALCRIM No. 521, which
instructs that murder is of the first degree if committed willfully,
deliberately and with deliberation, and all other murders are of
the second degree.
7
human life, intentionally aid in the commission of that act and do
so with conscious disregard for human life.” (Powell, at p. 714.)
Stated otherwise, CALCRIM No. 401 does not require the aider
and abettor to have known that the act aided and abetted was
life-threatening or require the aider and abettor to have
personally acted with conscious disregard to human life.
The court in Langi, supra, 73 Cal.App.5th 972, applied
Powell’s reasoning to the section 1172.6 context. In that case,
Langi and three other men beat the victim, who died from head
trauma after falling and hitting his head during the assault.
Langi’s jury was not instructed on the natural and probable
consequences doctrine but was instructed on aiding and abetting
with CALJIC No. 3.018 and on second degree murder with
CALJIC No. 8.31.9 His jury found him guilty of second degree
8 CALJIC No. 3.01, as given to Langi’s jury, stated that a
person aids and abets the commission of a crime when the person
(1) with knowledge of the unlawful purpose of the perpetrator,
and (2) with the intent or purpose of committing or encouraging
or facilitating the crime’s commission, (3) by act or advice aids,
promotes, encourages or instigates the crime’s commission.
(Langi, supra, 73 Cal.App.5th at p. 981.)
9 CALJIC No. 8.31, as given to Langi’s jury, stated that a
killing is a second degree murder if (1) the killing resulted from
an intentional act, (2) the act’s natural consequences are
dangerous to human life, and (3) the act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for, human life. When the killing is the direct result of
such an act, it is unnecessary to prove that the defendant
intended that the act would result in the person’s death. (Langi,
supra, 73 Cal.App.5th at p. 981.)
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murder, and the trial court summarily denied his subsequent
section 1172.6 petition.
Langi, however, found that the defendant was entitled to
an evidentiary hearing because the instructions permitted him to
be found guilty of aiding and abetting second degree murder by
improperly imputing malice to him and without finding he
personally acted with malice. The court explained that although
the aiding and abetting instruction stated that a person aids and
abets a crime if the person acts with knowledge of the
perpetrator’s unlawful purpose and with the intent or purpose to
commit or encourage that crime, “the second-degree-murder
instruction specified that the direct perpetrator of that crime
need not act with the unlawful intent of causing death.” (Langi,
supra, 73 Cal.App.5th at p. 982.) That is, “while the perpetrator
must have deliberately performed the fatal act ‘with knowledge of
the danger to, and with conscious disregard for, human life’
(CALJIC No. 8.31), his purpose may have been only to strike or to
injure, or conceivably only to embarrass, the victim. Since the
perpetrator’s purpose need not have been to kill the victim, the
aider and abettor’s knowledge of that purpose similarly need not
have been knowledge that the perpetrator aimed to kill. If the
perpetrator need not have had ‘murderous intent,’ certainly the
aider and abettor need not have had such an intent.” (Id. at
pp. 982–983.) Under the instructions given, the jury was entitled
to conclude that, to be guilty as an aider and abettor of second
degree murder, Langi need only have intended to encourage the
perpetrator’s intentional act—punching the victim—whether or
not Langi intended to aid or encourage the victim’s killing, and
whether or not Langi personally knew of and disregarded the risk
of such a killing. (Id. at p. 983.) Langi concluded that the
9
instructions should have been tailored to state that, to be guilty
as a direct aider and abettor of second degree murder, an
accomplice must have acted with the mental state of implied
malice. (Ibid.)
In our view, Langi misinterprets CALCRIM No. 401’s
reference to “unlawful purpose” by stating that the actual
perpetrator’s unlawful purpose may been only to strike, injure or
embarrass the victim—unlawful purposes that presumably
implicate something less than express or implied malice. This
interpretation divorces “unlawful purpose” from its context. To
be sure, in isolation “unlawful purpose” could mean something
other than intent, such as motive, which is what we understand
Langi to be saying. But we do not read phrases in instructions in
isolation. (See People v. Burton (2018) 29 Cal.App.5th 917, 925
[we interpret instructions together as a whole].)
In the context of CALCRIM Nos. 401 and 520, “unlawful
purpose” unambiguously refers to the crime, which for murder
requires either intent to kill (for express malice) or committing an
act knowing it is dangerous to human life and with conscious
disregard thereof (for implied malice). As given here, CALCRIM
No. 401 thus required the aider and abettor to know that the
perpetrator intended to commit the crime of murder, which is
defined in CALCRIM No. 520 as requiring the perpetrator to
have express or implied malice. CALCRIM No. 401 then states
that someone “aids and abets a crime [murder] if he or she knows
of the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime [murder].”
(Italics added.) This language allowed the jury to find Juarez
aided and abetted murder only if Juarez knew Padilla harbored
10
the unlawful purpose of committing “that crime” of murder and
Juarez “specifically intend[ed]” to aid and abet Padilla to commit
murder. It is unclear how an aider and abettor could know that
the perpetrator intended to commit murder and help the
perpetrator commit that murder—which, it bears repeating, is
defined in CALCRIM No. 520 as requiring malice aforethought—
and yet not personally harbor the requisite malice. As our
California Supreme Court said in People v. McCoy (2001) 25
Cal.4th, 1111, 1123, where the only unlawful purpose charged is
an unlawful killing, “one cannot knowingly and intentionally help
another commit an unlawful killing without acting with
malice.”10
Stated simply, “unlawful purpose” is interchangeable here
with unlawful murder requiring malice aforethought, and it is
unreasonable to read the instruction otherwise, as suggesting
Juarez could be liable for aiding and abetting murder despite
knowing only that Padilla intended some other, lesser “unlawful
purpose.” There is no reason why a jury, as Langi suggests,
would think that unlawful purpose means anything other than
acting with an intent to kill or committing an act with conscious
disregard for human life. Indeed, our California Supreme Court
has rejected a similar interpretation of the aiding and abetting
instruction as that urged by Langi. In People v. Hardy (2018) 5
Cal.5th 56, 96, the defendant argued that his jury was not
properly instructed that torture and aiding and abetting require
specific intent. After quoting the standard instruction on aiding
and abetting, CALJIC No. 3.01, the court said that the language
10 In contrast, the Langi defendant was also charged with and
found guilty of the crimes of robbery and battery. (Langi, supra,
73 Cal.App.5th at p. 976.)
11
“intent or purpose” in it was not something different from or less
than specific intent. (Hardy, at p. 96; see also People v. Beeman
(1984) 35 Cal.3d 547, 561.) “If anything, ‘purpose’ is a higher
standard than ‘intent.’ ” (Hardy, at p. 96.)
Because we conclude that CALCRIM No. 401 correctly
states the law and that it, with CALCRIM No. 520, required the
jury to find that Juarez personally harbored either express or
implied malice, his section 1172.6 petition was properly denied.
II. Juarez’s supplemental contentions
Finally, as to issues Juarez raised in his own supplemental
brief, they pertain to his trial; for example, that his trial counsel
provided ineffective assistance of counsel, his Miranda11 rights
were violated, evidence was not elicited that he had brain
injuries, gang evidence should have been excluded, and the
victim’s death was an accident. These issues are not properly
before us on this appeal from a postconviction order denying a
section 1172.6 petition.
11 Miranda v. Arizona (1966) 384 U.S. 436.
12
DISPOSITION
The order denying Juarez’s Penal Code section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
13
LAVIN, J., Concurring:
People v. Langi (2022) 73 Cal.App.5th 972 (Langi) is
distinguishable and I agree with the majority’s conclusion that
the order should be affirmed.
Defendant was convicted of aiding and abetting the second
degree murder of Isaac Salinas, as well as aiding and abetting
the attempted murder of Candido Salinas. As defendant
acknowledges in his appellate briefing, during the same incident,
the same shooter, Jose Padilla, shot and killed Isaac and shot at
but missed hitting Candido. The instructions on the attempted
murder required the jury to find that “defendant intended to kill
that person.” Thus, unlike in Langi, defendant’s jury was
required to determine that he personally acted with express
malice to convict him of attempted murder. Because the same
incident involving the same shooter resulted in both the
attempted murder and second degree murder convictions, I agree
with the Attorney General that the jury necessarily determined
that defendant committed second degree murder with express
rather than implied malice.
I find People v. Coley (2022) 77 Cal.App.5th 539 (Coley)
persuasive and would adopt its reasoning in this case. The
appellant in Coley, like the defendant in this case, was convicted
of second degree murder and attempted murder and appealed the
denial of his petition for resentencing under Penal Code section
1172.6. (Coley, at pp. 541–542.) The trial court concluded that the
record of conviction showed the jury had found express malice,
i.e., a specific intent to unlawfully kill, when it convicted
appellant of attempted murder, and therefore denied the petition.
(Id. at p. 545.) The Court of Appeal affirmed, concluding that the
“appellant’s conviction for attempted murder demonstrates that
he was convicted of second degree murder with express rather
than implied malice” and that “Langi does not apply because that
case involves implied malice.” (Id. at p. 547.) The court explained
that the appellant was convicted of murder based on his aiding
and abetting of the same shooting that gave rise to the attempted
murder conviction, and that the jury was instructed that
attempted murder requires a determination that the appellant
intended to kill that person. (Ibid.) “[B]y finding appellant guilty
of attempted murder, the jury necessarily found he had
personally harbored intent to kill or express malice when he
aided and abetted the second degree murder.” (Ibid.)
Thus, as in Coley, supra, 77 Cal.App.5th 539, defendant’s
conviction for attempted murder demonstrates that his second
degree murder conviction arising out of the same incident and
involving the same shooter is based on express rather than
implied malice. 1 Accordingly, the trial court did not err in
denying defendant’s petition for resentencing.
LAVIN, J.
1 Defendant provides no authority or analysis for his contention that
Coley is inapplicable “where the crime involved two shootings in the
same incident, but separately committed.”
2