People v. Carrillo CA2/5 ( 2021 )

Filed 12/14/21 P. v. Carrillo CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311733
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA035470-01)
v.
DIEGO CARRILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Reversed and
remanded with directions.
Sylvia W. Beckham, 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, Amanda V. Lopez and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Diego Carrillo appeals the trial
court’s order denying his petition for vacatur of his 1999
conviction for willful premeditated murder and resentencing
pursuant to Senate Bill No. 1437 (Senate Bill 1437) and Penal
Code section 1170.95.1
On appeal, Carrillo contends he made a prima facie
showing that he is entitled to relief under section 1170.95,
subdivision (c), because the record demonstrates that the jury
may have convicted him of murder on the theory that he aided
and abetted a shooting at an inhabited dwelling, and that the
murder was a natural and probable consequence of that offense.
We reverse the trial court’s order and remand the matter
for the trial court to issue an order to show cause and conduct a
hearing.2
FACTS
The facts of Carrillo’s case, as set forth in the prior opinion
of a different panel of this court, were as follows:
“Joanna Bush, an African American, lived in a Torrance
apartment building within the territory of the Hispanic gang
1 All further
statutory references are to the Penal Code
unless otherwise indicated.
2 Carrillo also
contends that the trial court impermissibly
engaged in fact-finding and conducted a substantial evidence
review. Nothing in the record supports these contentions.
However, we need not address Carrillo’s additional arguments,
because we reverse the trial court’s order on a different basis.
2
Eastside Torrance. There was a tremendous amount of
racial/ethnic tension in the area. On the evening of November 21,
1997, Bush hosted a birthday party attended by her family and
friends. Defendant and Xavier Jaime were members of the
Eastside Torrance gang. During the party at Bush’s apartment,
the two gang members fired approximately nine shots from an
assault rifle into the Bush apartment, killing Francisco Lopez
and injuring Jamar Kiper. The Bush family moved out of the
apartment the next day. A few days later, the apartment bore
graffiti indicating the Eastside Torrance gang had engaged in the
shooting for racial/ethnic reasons. Defendant presented an alibi
defense.” (People v. Carrillo (Jul. 3, 2000, B132287) [nonpub.
opn.].)
PROCEDURAL HISTORY
Trial
At trial, the People’s case conceded there was only one gun
used, but the prosecutor argued that the jury was not required to
decide whether Carrillo, rather than Jaime, was the shooter. The
jury could find Carrillo guilty of murder either as the shooter or
as a direct aider and abettor of the murder. With respect to the
aiding and abetting theory, the prosecutor did not argue that
Carrillo could be found guilty as an aider and abettor under the
natural and probable consequences doctrine.
The court orally instructed the jury regarding natural and
probable consequences liability for principals under CALJIC No.
3.02 as follows:
3
“One who aids and abets another in the commission of a
crime or crimes [(target crime)] is not only guilty of that crime,
but is also guilty of any other crime [(nontarget crime)]
committed by a principal which is a natural and probable
consequence of the crimes originally aided and abetted.
“In order to find the defendant guilty of the crime alleged
and counts 1 and/or 2 and/or 3, you must be satisfied beyond a
reasonable doubt:
“1. The crime or crimes alleged was or were committed;
“2. The defendant aided and abetted that or those crimes;
“3. Co-principal in the crime committed the crime and or
crimes alleged.
“You are not required to unanimously agree as to which
originally contemplated crime [(target crime)] the defendant
aided and abetted so long as you are satisfied beyond a
reasonable doubt and you unanimously agree that the defendant
aided and abetted the commission of an identified and defined
target crime and that the crime or crimes alleged [(nontarget
crime(s))] was or were a natural and probable consequence of the
commission of that target crime.”3
3 The written instructions contained in the record vary
from the oral instructions the court gave to the jury, as reported
on the trial transcripts. Notably, the written version omits any
reference to the natural and probable consequences doctrine. The
written instruction states:
“One who aids and abets [another] in the commission of a
crime [or crimes] is not only guilty of [that crime] or [those
crimes], but is also guilty of any other crime committed by a
principal.
4
The instruction omitted the fourth element of the standard
CALJIC No. 3.02 instruction, which identifies the target offense:
“4. The crime[s] of ________, [was] [were] a natural and probable
consequence of the commission of the crime[s] of _______.”
The jury was further instructed under 3.00 that aiders and
abettors and direct perpetrators are “equally guilty” of the crimes
they aid and abet or commit.
The jury convicted Carrillo of premeditated murder (§ 187,
subd. (a) [count 1]), attempted premeditated murder (§§ 187/664
[count 2]), and shooting at an inhabited dwelling (§ 246 [count
3]). However, the jury found not true the allegations as to all
“In order to find the defendant guilty of the crimes alleged
and counts 1 and/or 2 and/or 3, you must be satisfied beyond a
reasonable doubt that:
“1. The crime [or crimes] alleged [was] or [were] committed;
“2. That the defendant aided and abetted [that] or [those]
crimes;
“3. That a co-principal in the crime committed the crime
and or crimes alleged.
“[You are not required to unanimously agree as to which
originally contemplated crime the defendant aided and abetted,
so long as you are satisfied beyond a reasonable doubt and
unanimously agree that the defendant aided and abetted the
commission of an identified and defined target crime.”
The parties have not raised the issue of whether this
discrepancy in the instructions is material to the issues, but
instead argue regarding the import of the oral instructions. We
confine our discussion to the oral instructions but note that the
written instructions would have permitted the jury to convict
Carrillo for any crime that the perpetrator committed, subjecting
him to vicarious liability regardless of whether the murder
(nontarget crime) was a natural and probable consequence of the
target offense.
5
counts that Carrillo personally used a firearm. (§ 12022.5, subd.
(a).) Carrillo was sentenced to a term of life without parole and a
concurrent term of 25 years to life.
Section 1170.95 Petition
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘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.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section
1170.95, which provides a procedure for convicted murderers who
could not be convicted under the law as amended to retroactively
seek relief.’ (See [People v.] Gentile[ (2020)] 10 Cal.5th [830,]
843.)” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
After the enactment of Senate Bill No. 1437 (Senate Bill
1437), Carrillo filed a petition for vacatur of the murder
conviction and resentencing pursuant to section 1170.95. The
trial court appointed counsel, and the matter was briefed by the
parties. The prosecution opposed the petition, arguing that the
jury’s verdicts made it clear that Carrillo had been convicted “on
malice murder.” More specifically, the prosecutor argued that the
omission of the fourth element of CALJIC No. 3.02 foreclosed the
possibility that the jury convicted Carrillo on a natural and
probable consequences theory of liability, because “[f]or the
natural and probable consequences doctrine to take effect, the
6
target crime the perpetrator aided and abetted must be
identified.” Carrillo’s counsel filed the equivalent of a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues but requesting that the court independently review the
record of conviction.
Following a hearing, the trial court denied the petition
because Carrillo failed to demonstrate that he was prosecuted
under a natural and probable consequences or felony murder
theory of liability, and was thus ineligible for relief as a matter of
law. The trial court ruled: “. . . I reviewed the pleadings, and the
court file, and the record of conviction. And the record of
conviction in this case does reflect that the People argued that
the defendant was the shooter and/or aided and abetted the co-
defendant in committing the shooting. [¶] The record of
conviction does not reflect that the jury was instructed on either
a felony murder or the natural and probable consequences
doctrine. Parenthetically, for the natural and probable
consequence doctrine to take effect, the target crime the
defendant aided and abetted has to be identified here. It wasn’t.”
[¶] 1170.95 only applies to felony murder and natural and
probable consequences doctrine. Because the defendant in this
case was not convicted under either theory, 1170.95 does not
apply. So, accordingly, the gentleman’s petition is denied.”
Carrillo timely appealed.
7
DISCUSSION
Legal Principles
Section 1170.95
Pursuant to section 1170.95, “[a] person convicted of felony
murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts.” (§ 1170.95, subd.
(a).) “[A]n offender must file a petition in the sentencing court
averring that: ‘(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine[;] [¶] (2) 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[;] [¶] [and] (3) The 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, subds. (a)(1)–
(3); see also § 1170.95 subd. (b)(1)(A).)” (Lewis, supra, 11 Cal.5th
at pp. 959–960.)
“Where the petition complies with subdivision (b)’s three
requirements, . . . the court proceeds to subdivision (c) to assess
whether the petitioner has made ‘a prima facie showing’ for
relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960.)
“[A]t the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility
8
determinations or engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ [Citation.]” (Id. at p. 974.)
“If the trial court determines that a prima facie showing for relief
has been made, the trial court issues an order to show cause, and
then must hold a hearing ‘to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not . . . previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.’
(§ 1170.95, subd. (d)(1).)” (Id. at p. 960.)
Natural and Probable Consequences Aiding and
Abetting
“Under California law, a person who aids and abets a
confederate in the commission of a criminal act is liable not only
for that crime (the target crime), but also for any other offense
(nontarget crime) committed by the confederate as a ‘natural and
probable consequence’ of the crime originally aided and abetted.
To convict a defendant of a nontarget crime as an accomplice
under the ‘natural and probable consequences’ doctrine, the jury
must find that, with knowledge of the perpetrator’s unlawful
purpose, and with the intent of committing, encouraging, or
facilitating the commission of the target crime, the defendant
aided, promoted, encouraged, or instigated the commission of the
target crime. The jury must also find that the defendant’s
confederate committed an offense other than the target crime,
and that the nontarget offense perpetrated by the confederate
was a ‘natural and probable consequence’ of the target crime that
9
the defendant assisted or encouraged.” (People v. Prettyman
(1996) 14 Cal.4th 248, 254 (Prettyman).)
Analysis
Carrillo contends he made a prima facie showing that he is
entitled to relief under section 1170.95, subdivision (c), because
the record demonstrates that the jury may have convicted him of
murder on the theory that he aided and abetted a shooting at an
inhabited dwelling, and that the murder was a natural and
probable consequence of that offense. Carrillo bases his claim on
the combination of several facts, specifically: (1) the jury’s not
true finding with respect to the firearm use allegations
demonstrates that the jury may have concluded he was not the
perpetrator, but was instead liable as an aider and abettor; (2)
the jury was instructed on natural and probable consequences
liability for aiders and abettors under CALJIC No. 3.02, and may
have found him guilty under that theory rather than on the
theory that he directly aided and abetted the murder; and (3) the
jury was instructed under CALJIC No. 3.00 that aiders and
abettors and direct perpetrators are “equally guilty” of the crimes
they aid and abet or commit, and may have found him guilty of
willful premeditated murder although he did not possess the
requisite intent.
The Jury’s Not True Finding on the Firearm
Allegations
Carrillo first contends that, although the jury’s not true
finding with respect to the firearm use enhancements did not
10
foreclose the possibility that the jury found him guilty as a direct
perpetrator, the not true finding also did not foreclose the
possibility that the jury found him guilty of murder as an aider
and abettor. We agree.
In California, the jury is not required to decide
unanimously whether a defendant is liable as an aider and
abettor or as the direct perpetrator to convict the defendant of
murder. (People v. Santamaria (1994) 8 Cal.4th 903, 918–919.)
If the jurors agreed that Carrillo was guilty of murder but could
not reach a consensus regarding whether he was the perpetrator
or an aider and abettor, “this would allow the jury to convict of
murder but would require the not true verdict on the
enhancement allegation.” (Id. at p. 918.)
CALJIC No. 3.02 Natural and Probable Consequences
Carrillo argues that, because the trial court instructed the
jury that he could be guilty of a charged crime (murder and/or
attempted murder and/or shooting at an inhabited dwelling) if it
was a natural and probable consequence of aiding and abetting a
different and unidentified crime, the jury may have convicted him
of murder under the theory that he aided and abetted a shooting
at an inhabited building (which requires only general intent) and
the murder was a natural and probable consequence of that
crime.
The People first contend that the jury could not have found
Carrillo guilty of murder as the natural and probable
consequence of aiding and abetting a shooting at an inhabited
dwelling because, (1) as given, CALJIC No. 3.02 did not define
the target crime (shooting at an inhabited dwelling) and (2) the
11
prosecutor did not argue natural and probable consequences
liability at trial. In support of this argument, the People cite
Prettyman, supra, 14 Cal.4th 248, which held that a trial court
has a sua sponte duty to include an instruction defining the
target crime when the prosecution relies on the natural and
probable consequences doctrine. The People reason as follows:
because the target crime was not identified in the instruction
given by the court, and the prosecutor did not argue the natural
and probable consequences theory, the jury could not have relied
on this theory in reaching its verdict. The People read Prettyman
as holding that, under these circumstances, CALJIC No. 3.02
either does not relate to the natural and probable consequences
doctrine and/or the instructional error is harmless—in either
case, the People argue the jury should be found not to have relied
on the doctrine to convict Carrillo of murder.
This is incorrect. The failure to identify a specific target
crime in the reading of CALJIC No. 3.02 did not transform the
nature of the instruction into addressing something other than
the natural and probable consequences doctrine; it instead
broadened the reach of the natural and probable consequences
doctrine to include murder liability for aiding and abetting any
unspecified criminal behavior. Indeed, the Prettyman court
explained precisely this point: omitting the element of the
instruction identifying the target crime is error because it
impermissibly allows the jury to convict the defendant of murder
based on its belief that “the defendant intended to assist and/or
encourage unspecified ‘nefarious’ conduct” of which murder was a
natural and probable consequence. (Prettyman, supra, 14 Cal.4th
at p. 268.) Here, the jury was instructed on natural and probable
consequences liability in error—both because the prosecution did
12
not rely on the theory and because a crucial element was
omitted—but it was instructed on the theory nonetheless. We
presume that the jury understood the natural and probable
consequences theory of murder liability to be a valid theory of
murder, as it was instructed. (See People v. Lawson (1987) 189
Cal.App.3d 741, 748 [“the appellate court presumes the jurors
faithfully followed the trial court’s directions, including erroneous
ones”].) Indeed, as the People point out in the respondent’s brief,
prior to 1996, the prosecution was not required to identify target
crime(s) in the instructions, yet defendants could be, and were,
convicted of murder as aiders and abettors under the natural and
probable consequences doctrine. (Prettyman, supra, at pp. 257–
258.)
It is irrelevant for our purposes that giving CALJIC No.
3.02 in error may have been harmless because the prosecution
did not proceed on that theory, as the court in Prettyman
concluded under similar circumstances. (Prettyman, supra, 14
Cal.4th at pp. 270–274.) At the eligibility stage of the section
1170.95 inquiry, we take Carrillo’s assertions as true unless a
fact in the record refutes them as a matter of law. (Lewis, supra,
11 Cal.5th at p. 971.) Here, the fact that the prosecutor did not
argue the natural and probable consequences doctrine does not
establish, as a matter of law, that the jury did not rely on the
trial court’s instruction that it could convict Carrillo because
murder is the natural and probable consequence of shooting at an
inhabited dwelling. Accordingly, Carrillo is not barred from
eligibility to seek relief under section 1170.95.
The People next attempt to neutralize the effect of CALJIC
No. 3.02 by reading the instruction in the conjunctive. The
People argue that the instruction meant “in order to find
13
appellant guilty of murder, attempted murder, and shooting into
an occupied dwelling (counts 1-3), the jury must be satisfied
beyond a reasonable doubt that the crimes of murder, attempted
murder, and shooting into an occupied residence were committed,
appellant aided and abetted those crimes, and that a co-principal
in that crime committed the crime of murder, attempted murder,
and shooting into an occupied dwelling.”
This is a mischaracterization of the instruction, which is
written in the disjunctive (“counts 1 and/or 2 and/or 3”), and
allowed the jury to individually assess each crime and find
Carrillo guilty as an aider and abettor if “the defendant aided
and abetted the commission of an identified and defined target
crime and . . . the crime or crimes alleged (murder and/or
attempted murder and/or shooting at an inhabited dwelling) was
or were a natural and probable consequence of the commission of
that target crime.” The only crimes “identified” and “defined” in
the instructions were the offenses charged: murder, attempted
murder, and shooting at an inhabited dwelling. Thus, the jury
could have found that Carrillo intended to aid and abet a
shooting at an inhabited dwelling and was guilty of murder as a
natural and probable consequence of that crime.
CALJIC No. 3.00 Principals “Equally Guilty”
Finally, Carrillo contends that, because the court
instructed the jury that perpetrators and aiders and abettors are
“equally guilty” under CALJIC No. 3.00, the jury could have
found him guilty of premeditated willful murder without finding
that he possessed the requisite specific intent. The crime of
shooting at an inhabited dwelling required only a general intent
14
to willfully and maliciously discharge a firearm at an inhabited
dwelling under CALJIC No. 9.03. If the jury found that Carrillo
was guilty of murder as a natural and probable consequence of
shooting at an inhabited dwelling, he need only possess the
general intent for that crime and yet be “equally guilty” of first
degree murder.
The People characterize the argument as an impermissible
attack on trial error and contend that, even if the argument was
permitted, any error would be harmless. We reject the People’s
contention. As Carrillo argues, he is not attempting to correct
trial errors by filing a section 1170.95 petition. He is arguing
that because certain instructions were given—whether
appropriately or in error—the jury would have understood that if
it found he intended to aid and abet a shooting at an inhabited
dwelling, and found that willful, premeditated murder was a
natural and probable consequence of that offense, Carrillo and
the perpetrator would be “equally guilty” of willful, premeditated
murder. The jury was instructed on the equal guilt of
perpetrators and aiders and abettors, so it is possible that
Carrillo was convicted of willful premeditated murder on that
basis. As our Supreme Court has recently emphasized in
explaining the operation of section 1170.95, “the ‘prima facie bar
was intentionally . . . set very low.’” (Lewis, supra, 11 Cal.5th at
p. 972.)
In sum, it cannot be determined from the record of
conviction that Carrillo is ineligible for relief without evaluating
the facts; he has therefore made a prima facie showing of
entitlement to resentencing under section 1170.95. The court
must issue an order to show cause and hold a hearing, at which it
15
may evaluate new and/or additional evidence offered by the
parties as well as record facts. (§ 1170.95, subds. (c) & (d).)
DISPOSITION
We reverse the trial court’s order and remand for the court
to issue an order to show cause and conduct a hearing pursuant
to section 1170.95, subdivisions (c) and (d).
MOOR, J.
We concur:
RUBIN, P.J.
BAKER, J.
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