People v. Riley CA2/5 ( 2023 )

Filed 3/3/23 P. v. Riley CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B298450
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA079324)
SAID RILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Michael C. Keller and Charles
S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Said Riley
(defendant) on two counts of murder (one first degree murder and
the other second degree) and two counts of robbery. The jury
found true a multiple murder special circumstance, which
resulted in a life without possibility of parole sentence on the first
degree murder conviction. Many years later, defendant filed a
petition for resentencing pursuant to former Penal Code section
1170.95, now codified at Penal Code section 1172.6.1 The trial
court denied the petition and we affirmed, holding there was no
error in failing to appoint counsel for defendant because he was
ineligible for relief as a matter of law. (People v. Riley (May 26,
2021, B298450) [nonpub.opn.] (Riley I).)
Our Supreme Court granted review and remanded the
cause to us for reconsideration in light of its holding in People v.
Lewis (2021) 11 Cal.5th 952 (Lewis). We now hold that, under
Lewis, the trial court erred by not appointing counsel for
defendant but the error was harmless for the same reasons we
previously identified as establishing defendant is not entitled to
relief as a matter of law: defendant’s jury was not instructed on
the natural and probable consequences doctrine and there is no
realistic prospect the jury found defendant guilty of murder on a
felony murder theory or any other theory by which malice may be
imputed.
I. BACKGROUND
We previously judicially noticed—at defendant’s request—
the appellate opinion resolving defendant’s (and his co-defendant
1
Undesignated statutory references that follow are to the
Penal Code.
Eddie Betancourt’s) direct appeal: People v. Betancourt et al.
(Mar. 11, 2013, B237204) [nonpub. opn.] (Betancourt). Defendant
has not asked us to reconsider that decision, and insofar as it is
required, we again judicially notice the opinion and rely on it
solely for a limited purpose: to describe the basic offense conduct
for background purposes and to establish the procedural history
of the case—including the instructions given and not given to the
trial jury. (See generally Lewis, supra, 11 Cal.5th at 972; see also
§ 1172.6, subd. (d)(3).)
A. The Offense Conduct
Early on the morning of April 24, 2008, officers from the
Los Angeles Police Department responded to a 911 call of shots
fired in an alley. When the officers arrived at the scene, they
found the body of Lauri Gilbert (Gilbert) in the front passenger
seat of a two-door Acura Legend. She had been shot three times
in the head. Gilbert was pregnant at the time she was shot, and
the fetus died as a result of her death.
James Davis (Davis), who owned the Acura and who had
made the 911 call, told police that he had been part of a group
that had gone looking to buy drugs. In addition to Davis, the
group included defendant, Eddie Betancourt (Betancourt), and
victim Gilbert. Davis drove the group to an alley behind a
library, where Gilbert got out of the car and disappeared down
the alley. When she returned, the drugs she purchased were
weighed and found to be “short” (i.e., less than what the group
had paid to receive), a fact that appeared to make Betancourt and
defendant upset.
After trying but failing to find the seller of the drugs, Davis
drove back to Gilbert’s apartment and parked in the alley. Davis,
Betancourt, and defendant got out of the car. As Davis walked
toward the rear of the vehicle, Betancourt pulled out a gun and
pointed it at Gilbert. When Davis heard a gunshot, he ran away.
As he ran, Davis heard two additional gunshots. Other witnesses
also described hearing one shot followed by a pause and then two
or more shots.
B. Trial, and the Instructions Given to the Jury
At trial, Betancourt testified he fired a shot that did not hit
Gilbert and defendant then grabbed the gun and shot and killed
her. Defendant, in an interview with investigating officers (a
recording of which was played at trial), denied shooting Gilbert.
He also denied being in the same car as Davis, Betancourt, and
Gilbert, or being present when Gilbert was shot.
As relevant for our purposes, the trial court instructed the
jury on aiding and abetting principles,2 murder generally, and the
elements of first and second degree murder specifically. The jury
was not instructed on the natural and probable consequences
theory of aiding and abetting. Nor was the jury given then-
2
As recounted in Betancourt: “The jury was instructed that
a person aids and abets a crime if he knows of the unlawful
purpose of the perpetrator, has the intent or purpose of
committing or encouraging the commission of the crime and aids
or encourages the intended crime. The instructions further
stated that an aider and abettor’s guilt is determined by the acts
of the participant and that person’s ‘own mental state.’ The
instructions also told the jury that an aider and abettor might
have a more culpable or less culpable mental state than the
actual perpetrator and that the aider and abettor’s guilt could
therefore be greater or less than the actual perpetrator’s guilt.”
customary felony murder instructions; the court understood, as it
said in discussions with counsel, that “‘this isn’t a felony murder
case.’” The trial court did, however, give the jury an instruction
patterned on CALJIC No. 8.10 that generally defined murder.
The instruction as given erroneously included language that
could have been read, in isolation, to permit a finding of murder
liability based on commission of a felony, specifically, assault
with a firearm. Here is how Betancourt describes it: “CALJIC
No. 8.10, as given in this case, told the jury that ‘Every person
who unlawfully kills a human being or fetus with malice
aforethought or a felony inherently dangerous to human life is
guilty of the crime of murder in violation of Penal Code section
187.’ Under the typed words ‘to human life’ the phrase ‘assault
with a firearm’ is handwritten in. The instruction also states:
‘The killing was done with malice aforethought or ___ a felony
inherently dangerous to human life namely assault with a
firearm ___ is a felony inherently dangerous to human life.’”
This instruction generally defining murder, of course, was
not the only murder instruction the jury received. The jury was
also given an instruction describing the elements of first degree
murder, including the requirement of proof of express malice, as
well as an instruction defining malice itself. Neither of these
instructions made reference to an inherently dangerous felony
like the general instruction patterned on CALJIC No. 8.10 did.
Following the defense closing argument, the trial court
clarified for the jury the theories of murder that were at issue
and felony murder was not among them: “In this case there are
three degrees of murder or three theories of murder that are
being presented to you. [¶] One is first degree murder where you
have an intent to kill and there is premeditation and
deliberation. [¶] There are two types of second-degree or two
degrees of second degree murder. One where you have [an]
intent to kill with no premeditation and deliberation. [¶] And
the second that we are calling implied malice murder where an
act is done without intent to kill and the natural consequences of
which are dangerous to human life. [¶] Depending upon what
you find to be the facts, those three different types may apply to
count 1 [the alleged murder of Gilbert] with respect to either
defendant. But only the second-degree implied malice applies to
count 2 [the alleged fetal murder].”
The jury convicted defendant (and Betancourt) of first
degree murder on count one and second degree murder on count
two.3 The jury found true the multiple murder special
circumstance allegation. The jury also found true allegations
that Betancourt (1) personally and intentionally discharged a
firearm causing great bodily injury or death, in connection with
the charge of murdering Gilbert and (2) personally and
intentionally discharged a firearm, in connection with the fetal
murder charge. The jury found personal use and discharge of a
firearm enhancements alleged against defendant to be not true—
indicating the jury believed Betancourt was the actual killer.4
3
The jury also found defendant guilty on the robbery
charges, which were unrelated to the murders.
4
On appeal from the criminal judgment, this court
addressed instructional error claims that necessitated opining on
the theory of murder the jury relied on in convicting defendant.
We describe what this court previously held but we do not rely on
that holding in resolving this appeal.
A prior panel of this court held defendant’s conviction for
the first degree murder of Gilbert and the associated multiple
Years later, defendant filed a section 1172.6 petition for
resentencing. He checked boxes on the form petition asserting he
was convicted of first or second degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine and he could not be convicted of first or second degree
murder because of recent amendments to sections 188 and 189.
He also requested appointment of counsel.
The trial court denied the petition without first appointing
counsel for defendant. Expressly relying on our decision in
Betancourt, the court found defendant was not entitled to relief
as a matter of law because he “was convicted as a direct aider and
abettor . . . with his own intent to kill. He was not convicted
under a theory of felony-murder or a theory of natural and
probable consequences. [¶] . . . The appellate opinion affirming
[defendant’s] conviction . . . reflects that [defendant] was
murder special circumstance true finding appropriately rested on
instructions that required the jury to find defendant (and
Betancourt) intended to kill her. This court further held the jury
instructions, considered as a whole and in light of the statement
made by the trial court concerning the theories of murder at
issue, dispelled any reasonable possibility that the jury
“understood the isolated reference in CALJIC No. 8.10 referring
to an inherently dangerous felony” to permit conviction of
defendant for either murder on a felony murder theory.
Specifically, as to the first degree murder conviction, this court
held it was “not reasonably likely” that the jury relied on the
felony murder rule without finding malice. As to the second
degree murder conviction, this court opined “the jury must have
found that [defendant and Betancourt] acted with implied
malice” in light of the facts (including firing a gun at Gilbert’s
head multiple times at close range).
convicted of murder on a theory of being a direct
perpetrator . . . .”
As already mentioned, we affirmed and our Supreme Court
granted review and remanded the cause to us for reconsideration
in light of its intervening decision in Lewis. We do that in the
pages that follow.
II. DISCUSSION
All parties agree that Lewis establishes the trial court
erred by not appointing counsel for defendant before ruling on the
section 1172.6 petition. The only dispute is whether that error is
harmless. To establish prejudicial error under Lewis, it is
defendant’s burden to show it is reasonably probable that if he
had been afforded assistance of counsel his petition would not
have been summarily denied without an evidentiary hearing.
(Lewis, supra, 11 Cal.5th at 974.) That standard is not met
here—for the same reasons we originally identified in concluding
defendant was ineligible for relief as a matter of law. The
instructions and admonitions given (and not given) to defendant’s
trial jury (plus the jury’s multiple murder special circumstance
true finding, which must be predicated on a finding that the
defendant was the actual killer or harbored an intent to kill as an
aider and abettor (People v. Nunez and Satele (2013) 57 Cal.4th 1,
45)) establish defendant’s murder convictions rest on a malice
theory of murder, not felony murder or murder under the natural
and probable consequences doctrine.
The Betancourt opinion demonstrates the jury was not
instructed on natural and probable consequences murder.
Defendant does not contend otherwise. That removes one of the
two potential bases for section 1172.6 relief.
The other potential ground for relief is felony murder. Put
more precisely, if there is a reasonable probability that
defendant’s trial jury convicted him of murder on a felony murder
theory, the error in failing to appoint counsel is prejudicial and
we must remand to the trial court for further proceedings under
section 1172.6. As we now explain, for reasons we previously
outlined in Riley I that continue to apply now, there is no such
reasonable probability.
The trial court recognized “‘this isn’t a felony murder case’”
and defendant’s jury accordingly did not receive felony murder
instructions. The jury was given the incorrect version of the
CALJIC No. 8.10-patterned general murder instruction that
referred to a felony inherently dangerous to human life and
specified assault with a firearm. But, again, that doesn’t matter.
The instructions considered as a whole and the jury’s multiple
murder special circumstance true finding leave no doubt the jury
found defendant intended to kill Gilbert—and his first degree
murder conviction properly rests on a finding of express malice, a
ground for murder liability that remains valid under current law.
That means defendant is not entitled to resentencing on his first
degree murder conviction. (See, e.g., People v. Guillory (2022) 82
Cal.App.5th 326, 329 [“Guillory could have been convicted under
theories of murder liability that remain valid under current law,
so she is ineligible for section 1172.6 relief”].) Defendant is also
ineligible for resentencing as a matter of law on his second degree
murder conviction because the jury instructions and proceedings
during defendant’s trial establish the jury’s determination of
guilt rests on a finding of implied malice, which again is a ground
for murder liability that remains valid under current law. (Ibid.)
DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.