People v. Alardin CA5 ( 2022 )

Filed 8/24/22 P. v. Alardin CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082777
Plaintiff and Respondent,
(Stanislaus Super. Ct. No. 205545)
v.
JUAN MANUEL ALARDIN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman, and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
On March 7, 1999, Robert Ybarra was standing outside a market in the small
community of Grayson in Stanislaus County. A vehicle stopped near the market, a
masked person got out of the front passenger door with a shotgun, and the gunman fired
multiple shots into Ybarra’s head and upper torso. Ybarra died at the scene.
Appellant Juan Manuel Alardin (appellant), and codefendants Felipe Solorio
(Felipe) and Jeffrey Muniz, were charged with first degree murder. Felipe evaded arrest
and was not apprehended. Muniz entered into a negotiated disposition and pleaded guilty
to assault with a deadly weapon in exchange for his testimony against appellant. Miguel
“Mike” Garcia was present during the murder and turned himself in to the sheriff’s
department shortly after the shooting; he was later released from custody and not charged
with any offenses in exchange for his testimony against appellant.
In 2001, appellant was tried for murder. Based on testimony from Garcia, Muniz,
and the victim’s friends, the prosecution introduced evidence that appellant, Felipe,
Muniz, and Garcia were in the car, Muniz supplied the shotgun, Felipe was driving,
appellant was the gunman, and the motive was revenge because Ybarra had previously
been in a fight with Felipe’s brother. Appellant relied on an alibi defense based on the
testimony of family and friends, who belatedly came forward at trial to claim he was
elsewhere at the time of the shooting.
After a jury trial, appellant was convicted of first degree murder (Pen. Code,
§ 187, subd. (a));1 the jury was unable to reach a finding on the allegations that appellant
personally used a firearm (§ 12022.5) and was a principal when at least one principal
intentionally and personally discharged a firearm, proximately causing bodily injury to a
person other than an accomplice (§ 12022.7; § 12022.53, subds. (d) & (e)(1)). He was
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
sentenced to 25 years to life. In 2003, this court affirmed the judgment on direct appeal.
(People v. Alardin, Apr. 9, 2003, F039369, pp. 2–3, 37 [nonpub. opn.].)
In 2021, appellant filed a petition for resentencing of his conviction for first degree
murder pursuant to former section 1170.95, subsequently renumbered as section 1172.6,
and asserted he was not the actual killer, he was convicted under the felony-murder rule
and/or the natural and probable consequences doctrine, and he could not be now
convicted of first or second degree murder because of the amendments to sections 188
and 189 enacted by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437).2
The superior court denied the petition and found he was the actual killer.
In this appeal, appellant argues the matter must be remanded because the superior
court erroneously denied his petition without granting his request for appointment of
counsel, requesting further briefing, or conducting a hearing, and it improperly made
factual findings that he was the actual killer. Appellant argues the court’s errors were
prejudicial because he was tried and convicted of murder under both the felony-murder
rule and the natural and probable consequences doctrine, and an order to show cause
should be issued for an evidentiary hearing. (AOB 9-10; ARB 4-5)
We affirm the superior court’s denial of appellant’s petition and find the court’s
statutory errors were not prejudicial because, based on the instructions and verdict,
appellant was convicted of first degree premeditated murder as a direct aider and abettor,
and he is ineligible for resentencing as a matter of law.
2Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with
no change in the text. (Stats. 2022, ch. 58, § 10.)
3.
FACTS3
The Fight
Robert “Bobby” Ybarra (the victim) and his brother, Gilbert Ybarra, lived in
Grayson, California.4
In approximately February 1999, Bobby walked to the Grayson Market with Tony
Contreras and bought some beer. Bobby and Contreras were leaving the store when a car
pulled up with two people inside. The occupants got out of the car and the driver said,
“ ‘Westley’ ” and threw up a gang sign. Contreras testified that Bobby punched the
driver and made him stagger back. Contreras testified the driver said, “ ‘We’ll be back.’ ”
The two people returned to the car and drove away. Contreras thought this incident
occurred about three weeks before Bobby was murdered. Contreras testified he did not
know either person in the car, but he later learned that Delfino Solorio was the person
who Bobby punched.
Gilbert Ybarra testified that Bobby told him about the fight at Grayson Market the
night it happened, which Gilbert thought was about two weeks before Bobby was
3 While this appeal was pending, the People requested this court take judicial
notice of our records and nonpublished opinion in appellant’s direct appeal that affirmed
his conviction and sentence. We granted appellant leave to file an informal response to
the request, stated that failure to file a response may be deemed agreement that the
request should be granted, and deferred ruling on the request until consideration of the
appeal on the merits. Appellant did not file a response or opposition.
We grant this request and take judicial notice of this court’s records and the
nonpublished opinion in People v. Alardin, supra, F039369.
The following factual and procedural summaries are from the record and
nonpublished opinion in his direct appeal, and the record in the instant appeal. As will be
explained below, we provide the factual summary for background purposes but will not
rely on these facts to resolve the issues presented in this appeal. (See § 1172.6,
subd. (d)(3).)
4 We refer to certain witnesses by their first names to avoid confusion.
4.
murdered. Bobby said that he was in a fight with “Delfa” Solorio of Westley, and there
was another guy at the fight named Mike or Miguel.5
Vidal Guerra was Bobby Ybarra’s best friend and testified that Bobby told him
several times about a fight he had at the Grayson Market with someone from Westley.
The Two Drive-bys at Robert Ybarra’s House
On the afternoon of Sunday, March 7, 1999, Miguel “Mike” Garcia stopped by
Jeff Muniz’s (Jeff) house in Westley. Around 3:00 p.m. or 4:00 p.m., they walked to the
trailer where appellant Juan “Johnny” Alardin lived with his grandmother. Appellant was
there with Felipe.
Appellant and Felipe had been drinking and were already drunk. Jeff and Mike
borrowed Felipe’s red Pontiac four-door sedan and drove to a store to purchase a 20-pack
of beer. They returned to the trailer and the four men drank together. The four men got
into the red Pontiac, and Jeff drove them around Westley for 15 to 20 minutes. They
returned to the trailer and continued drinking, and they also used methamphetamine.
Jeff testified that around 6:00 p.m., the four men got back into the red Pontiac and
Felipe drove to a nearby schoolyard, where appellant’s two daughters had been playing.
Appellant had to take the children back to their mother’s house in the nearby community
of Grayson. The four men continued to drink beer during the drive to Grayson. Jeff
testified that he had consumed six beers, but he could still walk, and he thought Felipe
was more drunk than he was. Felipe was driving and appellant sat in the front passenger
seat. Jeff and Mike were in the back seat, and appellant’s children sat between them.
Jeff sat behind Felipe and Mike sat behind appellant.
Jeff testified that when the group arrived in Grayson, Felipe drove to a residence
he did not recognize but later learned belonged to the Ybarra family. Bobby Ybarra,
Vidal Guerra, and Tommy Alvarado were standing on the side of the residence. Felipe
5 Delfino Solorio is Felipe’s brother.
5.
slowed down and shouted through the open front passenger window: “ ‘That’s what I
thought.’ ”
Jeff testified Felipe drove around the corner, made a U-turn, and returned to the
Ybarra house. Felipe shouted out the open window: “ ‘You don’t know who you’re
messing with.’ ” Jeff testified he did not know what Felipe was shouting about, and
figured Felipe was having problems with the people at that house. The people standing
outside the house did not respond to Felipe’s shouts.
When Felipe drove the red Pontiac by Bobby Ybarra’s house, Bobby was standing
outside his house with his friends, Tommy Alvarado (Tommy) and Vidal Guerra (Vidal),
and they were drinking beer and having a barbeque. Tommy testified the red car partially
parked into the driveway. Someone in the car said, “ ‘What’s up?’ ” in a mean tone.
Tommy interpreted the speaker’s statement as trying to get them to “come out there or
something.” Vidal heard someone shout something but could not tell what the person
said. However, Vidal thought they wanted to cause trouble. Tommy noticed the red
car’s engine was clicking and not working well. Tommy and Vidal testified the car
stayed for about a minute and drove away, and they did not shout back to the occupants.
Tommy and Vidal testified the red car returned to Bobby’s house within a few
minutes, and again pulled into the driveway. Once again, they noticed the distinctive
noise from the car’s engine. Neither Tommy nor Vidal heard if anyone in the car shouted
at them during the second drive-by. Tommy thought there were three or four people in
the car, with a driver and passenger in the front seat and a couple of heads in the back
seat. Tommy testified all the occupants were men. He also noticed there was music
playing in the car. Vidal thought the whole car looked “filled” up, and there were at least
four people inside. Vidal was sure there were two people in front, and there were either
two or three in the back seat.
Vidal testified he asked Tommy and Bobby if they knew who was in the car.
Bobby replied, “ ‘Hey, I think those are the fools from Westley.’ ” Bobby told them not
6.
to worry because nothing was going to happen. None of them confronted the people in
the red car or shouted at them. Tommy testified that Bobby did not mention anything
about a prior confrontation with the guys from Westley at that time.
Jeff Muniz testified that after they drove by Bobby’s house the second time, Felipe
drove to the residence of appellant’s wife in Grayson, and they dropped off the children.
Jeff sat on the hood of the car as appellant went inside the house with his children. Felipe
went into the garage and messed with an old piano. An older lady emerged from the
house and told Felipe not to touch the piano. Jeff and Mike were still drinking beer. Jeff
testified they were at the house for five to 15 minutes. Someone said, “ ‘Let’s go,’ ” and
they all returned to the red Pontiac. Felipe was again driving, and appellant sat in the
front passenger seat. Jeff and Mike were in the backseat.
Antonio Lomelli lived next to appellant’s wife in Grayson. He noticed when
appellant and his associates arrived because the car was very noisy. He also noticed
when they started the car and left and thought the same people who arrived also left
together, but he did not specifically notice if appellant was in the car.
Jeff Muniz testified that after they left appellant’s wife’s house, Felipe drove past
Ybarra’s house a third time. No one from the Pontiac shouted at Ybarra’s house when
they drove by for the third time. Felipe then drove back to Westley.
The Gun
Jeff Muniz testified that when they returned to Westley, they stopped at a store
and Mike bought more beer. When Mike returned to the car, Felipe suddenly said that
“he needed a gun. He said he wanted a gun. That’s all he said.” Jeff testified that he told
Felipe he had a gun, but he did not ask Felipe why he wanted it. Jeff had loaned a
weapon to Felipe on a previous occasion when they shot bottles and cans at the river.
Felipe drove them to Jeff’s house in Westley. Felipe, Mike, and appellant waited
outside while Jeff went into the house and retrieved a 12-gauge pump shotgun and four
shells. The shotgun had a full-sized wooden stock, and the barrel was 18 and a half
7.
inches long. Jeff kept the gun under his bed. Jeff testified that he realized Felipe had a
problem with someone in Grayson but did not think about it as he returned to the car with
the shotgun. Jeff only had four shells, but he had given Felipe a box of .22-caliber shells
when he previously loaned his rifle to him. Some of the shells were in a leather pouch,
and the others were in a plastic bag.
Jeff testified he returned to the car with the shotgun. Jeff loaded the shells in the
shotgun, racked it, removed the shells, and laid the gun between the front bench seats.
He placed the loose shells next to the gun. No one said anything about the gun. Jeff
thought they would just cruise around for a while and drink the rest of the beer.
Jeff testified Felipe drove them back to the trailer where appellant lived with his
grandmother. Appellant told Felipe to stop because he had to get something. Appellant
went into the trailer and returned to the car within one minute. Jeff did not see appellant
holding anything when he got back into the car.
The Murder
After appellant returned from his trailer, Felipe drove them back to Grayson. Jeff
testified he listened to the radio and did not hear any conversation in the car over the
noise of the engine. Jeff’s shotgun was in the middle of the front bench seat, pointing
toward the dashboard.
Jeff testified that at some point that afternoon, he learned Bobby Ybarra had
punched out Felipe’s brother, Delfino Solorio, in a fight at the Grayson Market about two
weeks earlier. However, Jeff testified he still did not think anything was going to happen.
Tommy Alvarado and Vidal Guerra testified that after the red car drove around
Bobby’s house three times, they decided to arm themselves with rocks and sticks because
they thought the car was going to return. They eventually put down their weapons and
decided the guys from Westley were not going to return. They continued the barbeque
and ate dinner at Bobby’s house. Tommy testified that at some point that night, Bobby
mentioned that the guy in the car was someone he had recently punched.
8.
Bobby and his friends ran out of beer later in the evening. Tommy, Vidal and
Bobby walked to the Grayson Market, which was just a few blocks away. When they
reached the market, Tommy and Vidal saw the same red car with the noisy engine from
earlier in the evening. Tommy testified that the car was near the market and pulled to the
side of the road. Vidal testified the car drove toward them, but they kept walking toward
the vehicle to see who was inside.
Tommy testified there were four people in the car. As soon as the car stopped,
Tommy and Vidal saw a person get out of the front passenger side, holding a long, rifle-
type gun. The gunman’s face was covered with a black ski mask. Tommy and Vidal
described the gunman as having a medium build and around five feet eight or nine inches
tall. Tommy and Vidal immediately turned and ran from the store, and they heard at least
four gun shots. They continued to run and split up. Tommy jumped over a fence and did
not see what happened to Bobby.
Vidal stated he ran across the street and fell to the ground. He looked back toward
the store and saw the red car leaving the area. Vidal ran back to the store and found
Bobby lying on the ground and realized he had been shot. Tommy also ran back to the
store after he heard the red car drive away. He found Vidal trying to help Bobby, who
was wounded and unconscious.
Robert Rubalcava lived near Bobby’s house and the Grayson Market, and heard
four shots that evening. He ran to the street and saw a red car pass his house, and noticed
the engine was knocking and making a lot of noise. Based on the engine noise,
Rubalcava recognized the red car as a vehicle which had cruised his street earlier in the
afternoon. Rubalcava then saw a small yellow car chasing the red car. He joined other
neighbors who went to the market and found Bobby lying on the street. Rubalcava went
back to his house and called 911.
In the meantime, Gilbert Ybarra, Bobby’s brother, had been spending the evening
with Santiago “Jimmy” Alvarado in Grayson. Jimmy drove Gilbert back to the Ybarra
9.
house in his yellow Dodge Colt. As Gilbert got out of the car, they saw a red car spin
around the corner and speed past them. Jimmy saw his nephew, Tommy Alvarado,
running around the corner and trying to hide.
Gilbert testified they did not know anything about the shooting at the market when
they saw the red car. Jimmy thought the red car was chasing Tommy and unsuccessfully
tried to block the vehicle with his own car. Jimmy testified that Gilbert thought the guys
were from Westley and they should let them go because they did not hurt Tommy, but
Jimmy decided to follow the red car. Gilbert testified that they decided to follow the red
car because they were angry the vehicle drove recklessly through their neighborhood.
Gilbert testified they followed the red car for several blocks. Gilbert described the red
car as a “clunker” because the engine was noisy and cutting out.
Jimmy followed the red car to River Road. The red car stalled and three people
got out and pushed it into an orchard. Jimmy testified the person who jumped from the
passenger side was wearing a black shirt and a stocking cap on his head. This person’s
left hand was straight down and not visible. Jimmy testified the person who jumped out
of the back passenger side turned and looked at him.
Jimmy testified they did not say anything to the people in the red car. However,
Gilbert testified that he got out of the yellow car and yelled, “ ‘Don’t be going through
our town like that.’ ” Jimmy wanted to ask the occupants of the red car why they were
chasing Tommy, but they immediately ran away.
Gilbert and Jimmy returned to their yellow car and drove to the Ybarra residence.
Tommy Alvarado arrived and told Gilbert that Bobby had been shot. Gilbert ran to the
store and found out Bobby was dead and went home to tell his family.
The Investigation
The Stanislaus County Sheriff’s Department responded to Grayson Market at
approximately 6:42 p.m. The deputies found Bobby was dead, and lying in a pool of
blood at the corner of the intersection. Deputy Alberto Alvarez spoke to several
10.
neighbors who were standing in the street, and they said three Hispanics in a maroon
vehicle shot Bobby, and they were wearing dark clothing.
Bobby suffered multiple fatal wounds from shotgun pellets and/or bird shot to his
right ear, brain, skull, and neck, and right upper arm, chest, and armpit. He was hit by at
least three and possibly four shotgun blasts. At least two and maybe three shots were
from shotgun slugs (a solid lead projectile), and there was one round of birdshot. The
wounds to the right side of his body were inflicted with shotgun slugs and birdshot, did
not penetrate very far into his body, and possibly ricocheted from the pavement.
However, the head wounds were inflicted by a direct shotgun blast and were fatal.
Bobby was five feet 11 inches tall and weighed 400 pounds, and most of the bird shot
lodged in his body fat.
There were three expended 12-gauge Remington Peters shotgun shells and a piece
of shotgun wadding near his body, and other pieces of wadding in his body. All the
waddings were consistent with a 12-gauge shotgun. There was an area on the pavement
where it appeared a slug hit the ground and split in two before it hit Bobby’s right side.
Stanislaus County Sheriff’s Sergeant William Heyne found the abandoned red
Pontiac sedan in the orchard off River Road in Grayson. The officers escorted Vidal
Guerra and Tommy Alvarado to the orchard, and they identified the red Pontiac as the
vehicle that drove past Bobby’s house earlier that evening, and from which the gunman
emerged at the market.
Sergeant Heyne searched the Pontiac that night and found an expended 12-gauge
Federal shotgun shell on the passenger floorboard. There was a half-full box of .22-
caliber ammunition under the center of the front seat. A piece of paper with Felipe’s
name was on the driver’s side floorboard. The driver’s side windows were closed, but
the front passenger window was rolled down. Mike Garcia’s fingerprints were found on
the outside window trim of the front passenger door. Jeff Muniz’s fingerprints were
11.
found on the outside of the car, between the rear view mirror and the driver’s side back
door.
There was a case of beer in the back seat which had contained 20 long-necked
beer bottles: 13 full bottles were still in the case, and there were three empty bottles and
four missing bottles. The officers found two open bottles of beer in the orchard, that
were one row away and six rows from the red car.
Sergeant Heyne found a “pass-through” from the Pontiac’s back seat into the
trunk. He looked through the opening and saw a shotgun. A .410-caliber shotgun was
retrieved from the trunk. Sergeant Heyne testified this weapon could not fire the 12-
gauge shotgun shells found in the passenger compartment and near the victim’s body.
The cartridge case was found in the orchard. Jimmy Alvarado’s yellow Dodge Colt was
also searched and did not contain any weapons or items of evidentiary value.
Detective Alexander Callandrillo interviewed Tommy Alvarado, Vidal Guerra,
Gilbert Ybarra, and Jimmy Alvarado on the night of the murder. They were all
intoxicated. Gilbert Ybarra subsequently identified Miguel “Mike” Garcia from a
photograph as one of the people who pushed the red Pontiac into the orchard that night.
On March 8, 1999, Stanislaus County Sheriff’s Deputy Aaron Kiely was on patrol
in Westley because the sheriff’s department was worried about possible retaliation for
Bobby’s murder. Deputy Kiely was approached by Esperanza Murillo, who said she had
some information about the shooting. Detective Callandrillo also interviewed
Ms. Murillo, who was a distant cousin of appellant and lived across the street from his
grandmother’s trailer in Westley. Ms. Murillo stated she had seen appellant that morning
when he walked his daughter from school, and he was limping. Ms. Murillo further
stated she saw appellant the night of the murder, and he was drinking beer at the trailer
with Jeff Muniz, Felipe Solorio and Mike Garcia. Appellant’s children were also there,
12.
and she saw the entire group leave around 6:00 p.m. Ms. Murillo also stated she had seen
appellant at the same location on prior occasions with firearms.6
Mike Garcia's Statement
On March 9, 1999, Mike Garcia turned himself in to the sheriff’s department and
gave an interview to Deputy Martinez. Mike stated that after the shooting, they all split
up and he ran through the orchard to Jeff Muniz’s house. Mike found Jeff was already
home with his wife and children. Mike said appellant arrived at Jeff’s house about
20 minutes later. Mike said appellant was wearing slip-on type shoes, asked for a beer,
and acted like nothing had happened. Mike told appellant that he had messed up, but
appellant did not respond. Mike did not say anything about appellant and Jeff having a
private conversation in the backyard.7
Jeff Muniz’s Statement
Also on March 9, 1999, Jeff Muniz voluntarily went to the sheriff’s department.
Detective Callandrillo advised Jeff of the Miranda8 warnings, but Jeff did not request a
lawyer and agreed to answer questions about the shooting.9
Jeff stated he heard something about Felipe shooting a person in a field but did not
know much about the incident. Detective Callandrillo replied that Mike Garcia had
already told them the whole story, and other witnesses placed Jeff in the backseat of the
car when the shooting occurred. Jeff claimed he borrowed Felipe’s car earlier that day
and went to the store with Mike, and there was no way he was in the car during the
shooting. Jeff repeatedly insisted he was not there and was willing to take a polygraph.
6 At trial, Ms. Murillo denied making these statements. She testified that she
heard many years ago there might have been a gun at appellant’s residence but claimed
she had never seen appellant with a weapon. She also denied that appellant’s family
pressured her to retract the statement about the gun.
7 The evidence about Mike’s pretrial statement was introduced by the defense.
8 Miranda v. Arizona (1966) 384 U.S. 436.
9 The videotape and transcript of Jeff’s interview with the sheriff’s department
was introduced by the defense.
13.
Callandrillo repeatedly advised Jeff to tell the truth because too many people said he was
in the car.
Jeff eventually admitted he saw the shooting, but he just thought there was going
to be a fight because of a prior dispute. Jeff was there because they were dropping off the
children. He was scared and did not want anything to happen to his family because “they
could come and do something to me at my house.”
Jeff further stated Felipe and appellant talked between themselves about an earlier
dispute, but he did not hear the entire discussion. Felipe was driving the car and
appellant was in the front passenger seat, and Jeff and Mike were in the back seat. Felipe
said he had a “beef” with the guy who was later shot, based on a fight between that guy
and Felipe or Felipe’s brother. Felipe drove the car around the guy’s house twice, and
they stared at each other. Felipe also yelled something, but Jeff could not hear the words.
Jeff said that later that day, Felipe drove by the market and stopped the car.
Appellant got out and Jeff thought they were going to fight. Jeff heard the gunshots and
appellant returned to the car. Felipe drove off, but the engine died, and they pushed the
car into a field. Jeff got out and ran home because he was scared.
Detective Callandrillo asked Jeff where they got the gun, and Jeff said he did not
know. Callandrillo replied that Mike said they got the gun from Jeff’s house. Jeff
admitted that after they drove around Bobby’s house, someone said he needed a shotgun,
and Jeff got the gun and ammunition from his house. He loaded the pump shotgun with
four shells, but he did not think anyone was going to get shot, and thought they were just
going to drive around the house again.
Jeff said he put the gun in the middle of the front seat. Appellant grabbed the
shotgun and told Felipe to stop the car. Jeff said three people were walking on the street
when appellant said to stop the car. Jeff thought appellant was just going to scare the
three guys and did not think he was going to shoot anyone. Jeff agreed with Detective
Callandrillo that the shooting was kind of bizarre. Jeff repeatedly said he did not shoot
14.
Bobby, but he knew the victim was dead when he heard the shots. Appellant had the gun
when the car stalled in the field, and Jeff did not know where it was now. Jeff did not
know that another gun was in the trunk.
At the end of the interview, Detective Callandrillo showed Jeff several
photographs, and he identified Mike Garcia, Felipe Solorio, and appellant. Callandrillo
advised Jeff that his mother had called and claimed appellant had left a telephone number
for Jeff to call him back. Callandrillo asked Jeff if he would call his mother and give him
that telephone number, and Jeff agreed.10
Appellant's Arrest and Felipe’s Escape
Detective Callandrillo testified that extensive efforts were made to apprehend
Felipe and appellant. Bobby’s murder was covered in several newspapers, and on
television and radio stations. Bobby’s family distributed 500 to 1,000 posters in Grayson,
Westley and Patterson, which contained the suspects’ photographs and asked for
information about them. In June 1999, the Carrington Foundation offered rewards of
$5,000 and $10,000 for the suspects.
On July 15, 1999, Detective Ed Campbell and Deputy Saldivar received a tip from
appellant’s father-in-law that appellant might be staying near some trailers in Westley.
Appellant’s father-in-law gave the tip to officers because he was interested in collecting
the reward and also concerned for his grandchildren’s safety. The officers went to
several trailers and eventually contacted appellant’s grandmother, who said appellant was
not there but allowed them to look inside the trailer.
As they walked through the hallway, Deputy Saldivar encountered appellant who
was standing behind a door. Saldivar pulled his gun and ordered appellant to raise his
hands. Appellant complied and was arrested for murder. Appellant had changed the color
of his hair and eyebrows and shaved his mustache.
10At trial, Detective Callandrillo testified Jeff gave him the telephone number as
requested, but it was for a business which had never heard of appellant.
15.
As noted above, appellant Alardin and codefendants Felipe Solorio and Jeff Muniz
were charged with first degree murder of Bobby Ybarra. The entire Solorio family left
Grayson within weeks of the murder. The sheriff’s department tracked down members of
Felipe’s family in Nevada and other communities but could not find Felipe. The officers
later received information that Felipe was in Mexico.
At the time of appellant’s trial, Felipe had not been apprehended, the Solorio
family was no longer in California, and there was still an active warrant for his arrest for
murder.
Also as noted above, Jeff Muniz entered into a plea agreement for assault with a
firearm and agreed to testify against appellant. Mike Garcia was initially named as a
codefendant in the criminal complaint for murder. In June 2000, shortly before the
preliminary hearing, Mike agreed to testify against appellant, and he was released from
custody and not charged with any offenses in this case.
Jeff Muniz’s Testimony About the Murder
At trial, Jeff Muniz testified as a prosecution witness and gave the following
account of the shooting. After Jeff picked up his gun and appellant stopped at his trailer,
Felipe drove the group from Westley to Grayson. Appellant told Felipe to pull over when
they reached the Grayson Market, and Felipe stopped the car near the market. Jeff
testified he got out of the car and drank another beer. Appellant also got out of the car
and walked away. Jeff testified he did not see the gun in appellant’s hands, and just
thought he was going to fight someone.
Jeff testified that he heard shots and dropped his beer can. As Jeff bent down to
pick up the can, appellant returned to the car and got back into the front passenger seat.
The others jumped back into the red Pontiac and Felipe drove them from the area. Jeff
testified that he was scared, but no one said anything as they drove away. Mike was still
in the back seat, and they just looked at each other. Jeff testified that he did not notice if
appellant was holding the shotgun when he got back into the car.
16.
Jeff testified that Felipe drove away as fast as possible, but they had mechanical
problems with the Pontiac’s accelerator. The engine cut out, and the vehicle rolled into
an orchard, and they got out of the car. Jeff looked down the road and saw a yellow car
driving toward them. Jeff realized the yellow car had followed them, and he started to
run from the orchard toward Westley. Appellant, Mike, and Felipe were in front of him,
but it was dark, and he lost sight of them as they ran away. Jeff took the pouch with the
cartridges with him when he ran from the car, and he threw it in the orchard during his
escape.
Jeff testified that he ran and walked back to his home in Westley, about two miles
away, and did not see anyone else. He ate dinner and went to bed; he did not tell his wife
anything about the incident. He had been in bed for about 30 minutes when his wife
woke him up and said Mike Garcia was there and wanted to see him. Mike asked Jeff if
he could get a ride back to his home in Modesto, and they called Mike’s wife and another
friend. Jeff testified that he did not talk to Mike about the shooting because he was too
scared, and he did not want his wife to hear anything.
As they waited for Mike’s ride, appellant arrived at Jeff’s house wearing slippers
and sweats. Jeff testified appellant’s clothing was completely different from earlier in the
evening. Appellant asked for a beer, but Jeff replied he did not have any more.
Appellant looked at Jeff and said they had to talk.
Jeff testified that he went outside with appellant, but Mike stayed in the house.
Jeff testified that appellant told him “not to worry about it. ‘If anybody comes to talk to
you, don’t worry about it. You didn’t have nothing to do with it. Just keep it like that.’ ”
Jeff never asked what happened to his shotgun. Jeff testified that Mike came outside and
did not participate in this conversation, but he could have overheard appellant as he
talked with Jeff. They heard a car horn and realized Mike’s wife had arrived, and Mike
left with her. Appellant left separately, and Jeff went back to bed.
17.
Jeff testified that he did not know that the person who was shot by appellant had
died, but he was “pretty sure” someone was dead. Jeff went to work the next morning at
5:00 a.m., and later turned himself in to the sheriff’s department.
Mike Garcia’s Testimony
Mike Garcia also testified as a prosecution witness and confirmed most of Jeff
Muniz’s testimony about their activities that night. They drank beer with appellant and
Felipe at the grandmother’s trailer in Westley. They left Westley to take appellant’s
children back to their mother in Grayson. Felipe drove the Pontiac and appellant was in
the front passenger seat, while Mike and Jeff sat in the back seat with the children.
Mike testified that appellant took the children into the house and returned to the
car. “Then Felipe had said that he had problems with Bobby and his brother.” Felipe
said his brother, Delfino Solorio, had been in a fight with Bobby about two weeks ago,
and Felipe “wanted to be involved.”
Mike testified that Felipe drove them to Bobby’s house in Grayson, and Bobby
was outside with three other people. Mike testified that Felipe spoke to Bobby and said,
“ ‘Come on. Come on,’ ” but Bobby did not seem to hear them. Mike testified that there
was anger in Felipe’s voice as he called out to Bobby. Neither Bobby nor his friends
replied. Felipe drove away, turned around, returned to Bobby’s house, and again started
to talk to Bobby. Felipe again said, “ ‘Come on. Come on,’ ” but it again appeared that
Bobby could not hear him. Mike testified they drove past Bobby’s house a third time,
then returned to Westley.
Mike asked Felipe to stop at the store in Westley because he wanted to buy more
beer. Mike returned to the car with the beer, and Felipe said that he needed a gun. “And
then Jeff said that he had one, and then [appellant] said he had one. Then Jeff said that—
to go get his, so we went to Jeff’s house.”
Mike testified that Felipe drove them to Jeff Muniz’s house. Jeff emerged within
two minutes with a gun and a small box. Jeff handed the gun and the box to Felipe.
18.
Mike did not ask Felipe why he wanted the gun because he was too scared. Felipe put
the gun in the front passenger side of the car, where appellant was sitting. Appellant told
Felipe to drive to his house, and they returned to the trailer where appellant lived with his
grandmother. Appellant was in the trailer for about two minutes and returned with
something big in his pocket.
Mike testified that he was scared something was going to happen, and he asked
Felipe, “ ‘Why are you going to do this?’ ” Mike was not sure if Felipe responded to
him. Mike testified that he wanted to get out of the car, but he was too scared to move,
and he was afraid the others would do something to him if he tried to leave. He was also
afraid because Felipe had a gun, he had been drinking, and he was in a bad mood. Felipe
drove to Grayson, and appellant was again in the front passenger seat. Felipe and
appellant talked during the trip, but Mike could not hear them over the sound of the noisy
engine.
Mike testified that as they arrived in Grayson, appellant racked the shotgun, and
Felipe told appellant “to shoot him in the legs.” They reached the Grayson Market and
Mike saw Bobby walking down the street. Appellant pulled a beanie hat out of his
pocket, and Mike told him not to do it. Appellant told him to shut up. Appellant was
wearing a black shirt and black pants. Felipe drove close to Bobby, and appellant got out
of the car and shot Bobby. Mike testified that Bobby went down with the first shot.
There were two other people with Bobby, but they immediately ran away. Mike heard
four shots fired in a row.
Mike testified that appellant jumped into the car, and they took off. However, the
car stalled, and it rolled into an orchard. Appellant got out and ran away with the shotgun
and headed toward Westley. Mike testified that he clearly saw appellant carrying the
shotgun as he ran from the car. Mike looked behind them and saw a small yellow car
chasing them. Mike, Jeff, and Felipe pushed their car further into the orchard, then Mike
19.
ran back toward Westley. Mike did not know what happened to Jeff and Felipe because
they were behind him, and he just kept running.
When Mike reached Westley, he went to the schoolyard and waited for Jeff, but he
never came. Mike decided to walk to Jeff’s house and found him there. Jeff’s wife told
Mike that his girlfriend was looking for him. Jeff’s wife left the room, and Mike told Jeff
he was scared, and appellant messed things up. Jeff said he was also scared. Mike called
his girlfriend and asked for a ride home, but she refused. Mike called a friend who
agreed to give him a ride. However, his girlfriend called back and agreed to pick him up,
and Mike called his friend and cancelled the ride.
Mike testified that appellant also arrived at Jeff’s house. Appellant was wearing
slippers and a white shirt and asked for a beer. Appellant told Jeff and Mike he was
scared, but Mike did not say anything to appellant. Jeff and appellant went into the
backyard and Mike stayed inside. Mike eventually went outside and found Jeff and
appellant talking quietly. Mike could not remember what they were talking about, and he
did not join the conversation. His girlfriend arrived and he left with her.
Mike told his girlfriend that night about appellant’s conduct. The next day, Mike
turned himself in to the sheriff’s department. Mike reached an agreement with the
prosecutor’s office to testify at the preliminary hearing and trial, and he was released
from custody and not charged in the case.
Patricia Garcia testified that Mike called her on March 7, 1999, and asked for a
ride home from Jeff’s house. She drove to Westley and picked him up, and Mike was
quiet during the drive back to Modesto. Patricia testified that when they arrived home,
Mike told her that appellant shot someone that night. Mike said appellant got out of the
car and shot someone, and the shooting was about a previous argument with that person.
Mike said that he was really scared the entire time, and everyone ran away when their car
stopped. Patricia told Mike that he had to turn himself in. They read a newspaper article
about the murder the next day, and Mike turned himself in to the sheriff’s department.
20.
Appellant’s Jail Communications with Jeff Muniz
Appellant and Jeff Muniz were held at the Stanislaus County Jail after they were
arrested in this case. Jeff testified that he did not see appellant until four or five months
after the shooting, when Jeff was in the visiting room with his wife. Appellant told Jeff
he was going to try and help Jeff because he had nothing to do with the shooting.
Jeff testified he later spoke with appellant when they were two cells apart in the
same tier (X tier) and shared the same exercise yard. Jeff believed these conversations
occurred in 1999 or 2000. Appellant asked Jeff what he told the police, and Jeff replied
that he did not say very much.
After that conversation, appellant gave Jeff a transcript of his (Jeff’s) earlier
statement to Detective Callandrillo. Appellant asked Jeff why he lied to him about what
he told the police. Appellant told Jeff to read the transcript, asked him to explain what he
meant, and told Jeff he needed to change some of the stuff he told the police. Appellant
specifically told Jeff to change what he had said “about when [appellant] was in the car,
when he got dropped off and he stayed home when we left.” Appellant told Jeff to help
him out.
Jeff testified that he told appellant he would try to change his statement and say
appellant was not in the car when the shooting occurred. Jeff made this statement to
appellant because he did not want to get stabbed in prison. This conversation occurred
before the preliminary hearing in this case (which was held in June 2000), but Jeff did not
testify at that hearing.
Jeff identified exhibit No. 25 as the document which appellant gave him in jail. It
consisted of the transcript of Jeff’s interview with Detective Callandrillo on March 9,
1999, as discussed above. Jeff testified that appellant marked numerous passages in the
transcript with lines and stars. Some of the passages were marked with one star, while
other sentences were marked with four stars. Jeff asked appellant about the marked
passages, and appellant said he did not like Jeff’s answers in those sections.
21.
Appellant had put four stars on passages where Jeff made the following
statements: Jeff placed the shotgun in the car next to appellant and Felipe, appellant told
Felipe to stop in front of the store when they saw three people walking on the street, Jeff
did not think appellant was going to shoot anybody, the shooting was bizarre, Jeff
identified appellant from a photograph, and Jeff agreed to call his mother to get
appellant’s telephone number. At the end of the transcript, the following words were
handwritten: “ ‘What you go [sic] to say about all this now?’ ”
During a subsequent conversation in jail, appellant told Jeff: “ ‘When you go to
the pen [sic], all this is going to be there and you’re going to get dealt with.’ ” Jeff
testified that appellant never personally threatened him, but he said Jeff would get hurt
“later on down the line.” Jeff was not afraid of appellant, but he was afraid of other
inmates “[b]ecause, to them, I am no good” since he testified against appellant. Jeff
testified that he started to receive threats from other inmates after appellant gave him the
annotated transcript of his interview with Detective Callandrillo. Based on these threats,
Jeff asked prison authorities to move him to a different tier and place him in protective
custody. Jeff testified that about six months after he was placed in jail, he realized the
other inmates considered him to be a snitch.
Testimony About the “Kite”
Jeff Muniz testified that he received a “kite” from appellant while he was in jail.
Jeff described a “kite” as a slang term for very small writing on paper passed in the jail.
Jeff believed he received the kite a few weeks after appellant gave him the transcript of
his interview with Detective Callandrillo. Jeff testified that the “kite” instructed him to
change his statement because everything he said would follow him to prison, and “just
change it so nothing will happen to me.” Jeff testified that he received a couple of kites
from appellant. Jeff also sent appellant a kite in which he explained how he was going to
testify.
22.
On August 8, 1999, Deputy Raymond Hegwood searched a cell in the X tier at the
Stanislaus County Jail as inmate Julio Zaragoza was changing cells. Deputy Hegwood
searched a paper bag or some kind of file folder, and found a small, rolled-up paper
which was tightly wrapped in a piece of knotted plastic. A message was written on the
paper, and he seized the item and gave it to Deputy Jeremy Fielder. Deputy Fielder
described this item as a “kite.” Deputy Fielder typed a transcription of the kite and gave
the information to the district attorney’s office. It took him a while to read the note
because the writing was so small, but he did not need a magnifying glass to read it.
At trial, both the original kite and Deputy Fielder’s transcription were introduced
into evidence. Deputy Fielder read the transcription to the jury:
“Jeff [checkmark] yeah. We need to communicate if we are to get
out of these bullshit charges. I need you to pay close attention to what I’m
putting down. I got the police report. You say you don’t. All right, then
I’m going to tell you what it said. You were read your rights and then
asked if you wanted to talk to—talk. You said yes.
“At first you denied everything and said you were home and your
wife could verify your story. Then they told you what Mike said and you
began to cry. After that you said you were there at the time of the shooting
and that the shotgun used was yours but you didn’t shoot. You said
Johnnie shot and killed Robert. You insisted that you thought Johnnie
would just scare him. That’s basically it.
“What’s up now? Are you going to deny this? You f[**]ked up.
You thought by putting the shit on me you would get to go home like Mike.
You know I’m right. Now you know that by saying you supplied the gun
your ass is going to do some time.
“But because you’ve never been in jail I’m going to give you a
break. You can still get out of this if you listen to what I’m saying. I
would like [your children] to have their dad back. Even though you’re
f[**]king me with your lies, I want to go home too. [My children] need
their dad so [checkmark] it.
“First step tell your lawyer you want to recant your statement. You
said what you said because you were scared. You thought that if you said
what they wanted to hear, they would let you go home. You know it was
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wrong and now you want to say the truth. If your lawyer doesn’t want to
go along, you fire his ass and get another.... [¶] … [¶] Your lawyer wasn’t
present at the time of questioning and he let you f[**]k yourself. [¶] … [¶]
You need to fire him anyway. I would.
“You know I got more to tell you, but this is all for now. Get back at
me on a kite like this. When I come down from the yard, pass me back this
kite and when we shake hands, wrap it up in plastic from the garbage bag.
This is how we will communicate. Do not show anybody this or talk about
it.
“If you don’t return this back to me, then shit will hit a whole new
different level. Understand when I first read the police report what you said
pissed me off. But if you make it right, we can be friends through this and
believe it or not we’ll beat this shit. I’ll give you more info later. Get back
at me, let me know what’s up, what you think what you’re … going to do.
Later, J.”
Detective Fielder testified that the following words were written on the back of the
kite: “Give this back to me!”
Further Prosecution Evidence
At trial, Tommy Alvarado testified the person who shot Bobby was about five feet
eight or nine inches tall, medium build or a little bigger, and well-built. He could not tell
any difference between appellant’s build and the shooter’s body. Vidal Guerra described
the shooter as about 170 to 180 pounds, with a pretty good build. Vidal testified that
appellant also had a pretty good build and was the same size and height as the shooter.
Also at trial, Jeff Muniz testified that during one of his conversations with
appellant in jail, appellant said he hid the shotgun under some insulation in an attic but
did not clarify whose house it was in. Jeff admitted he told the police about this
conversation about a week before trial.
Defense counsel attempted to impeach Jeff Muniz’s testimony. Jeff admitted he
had been arrested for the murder of Bobby. Defense counsel asked whether he read the
police reports about the case after he entered into his plea agreement with the district
attorney. Jeff testified that he read some police reports, his attorney gave him a copy of
24.
Mike Garcia’s statement to the police, and appellant gave him the copies of his own
statement to Detective Callandrillo. Jeff admitted he did not tell the truth when he
initially spoke with Callandrillo and the other officers. Jeff also admitted he knew he
could lose the plea bargain if he did not tell the truth at appellant’s trial, and he knew
what Callandrillo believed the truth to be.
Defense counsel further impeached Jeff with the following inconsistent statements
he previously made to the police: that they dropped off appellant and the girls before the
shooting, where he got the shells for his pump action shotgun, and whether he loaded and
unloaded the shotgun.
Also on cross-examination, defense counsel tried to establish that Jeff was already
considered a snitch, even before he entered into the plea bargain, because of the
statements he made during his initial interview with Detective Callandrillo. Defense
counsel tried to establish that Jeff entered into the plea bargain and testified against
appellant simply to be placed in protective custody because he was facing threats based
on his statements to Callandrillo.
DEFENSE ALIBI EVIDENCE
Appellant did not testify at trial but called several witnesses who presented an alibi
for him at the time of the murder.
Gloria J. (Ms. J.), appellant’s mother-in-law, testified that appellant and her
daughter were separated at the time of the murder. Appellant had visitation with his
children on the weekend. On the afternoon of March 7, 1999, Ms. J. was standing
outside her house in Grayson with Bob Henline, her neighbor, when appellant arrived to
drop off the children. Ms. J. believed appellant arrived between 4:00 p.m. and 5:00 p.m.,
when it was still daylight, and he was in a red car with a noisy engine. Ms. J. thought
appellant was in the back seat with the children, and there were other people in the car.
Ms. J. testified that appellant stumbled out of the car and fell to the ground, which was
the result of an ankle injury and a recent operation. Ms. J. testified that appellant also fell
25.
because he was drunk and smelled of beer, which was unusual for him. However, she
conceded she was not sure where appellant had been sitting in the car because they all got
out at once. “It seemed to me like they were all in the back seat. I don’t know if
[appellant] fell out of the front seat, back seat or where. He just kind of fell out. I wasn’t
really paying attention, and I didn’t have my glasses on that day.” She thought appellant
got out of the rear passenger door. Appellant asked her to babysit the children because he
wanted to continue partying with the guys, and he did not want to drink in front of the
kids. Ms. J. was upset because the children were dirty and told appellant to take them
inside and give them a bath.
Ms. J. testified that appellant told his friends in the car that he could not go with
them. Felipe became mad and banged on a piano which Ms. J. and Mr. Henline had been
moving in the garage. She told him not to bang on the piano. Ms. J. testified that
appellant was mad at Felipe because he did not drive straight to the house to drop off the
children. “[Appellant] said that [Felipe] was swearing and, you know, he was swearing,
yelling and stuff, and he got real mad because [appellant] would never – he never
disrespects his girls.” Appellant was angry because Felipe drove them to Bobby’s house,
and Felipe yelled and swore in front of the children.
Ms. J. testified that appellant went into the house with the children and was inside
for about one hour as he bathed the children, dressed them for bed, and read them a story.
Appellant’s friends stayed outside and tried to convince her to let appellant leave. She
refused, and they returned to the car and quickly drove away. Ms. J. only knew Felipe
and had never seen the other men. Ms. J. remained outside with Mr. Henline. She
thought appellant finished with the girls around 6:00 p.m.
Ms. J. testified that appellant stayed at her home the rest of the night. The
Grayson Market was about three blocks away from her house. Ms. J. heard shots fired
that night and learned within a short time that Bobby had been murdered from either her
son, Arthur, or her friend, Marty Espinoza. The day after the shooting, a deputy came to
26.
Ms. J.’s house and looked for appellant. She tried to tell the deputy that she could
account for appellant’s whereabouts at the time of the shooting, but the deputy did not
write anything down. Ms. J.’s friend, Marty Espinoza, also tried to tell the deputy she
saw appellant that night, but the deputy looked past them and left. Marty wrote down the
deputy’s name and badge number and wanted to file a complaint. Marty later moved
away, and Ms. J. did not know if Marty ever filed the complaint. Ms. J. realized the
officers were looking for appellant because of the murder.
Ms. J. was not scared when she learned appellant was wanted for murder because
she knew he had been with her that night and did not do it. Ms. J. admitted that she and
her husband made arrangements for the sheriff’s department to find and arrest appellant.
Her daughter later divorced appellant.
Ms. J. admitted she visited appellant in jail in July 1999. She gave a statement to
defense investigator Alan Peacock on September 24, 1999, but she had previously given
a statement to a sheriff’s captain, who contacted her the night of the murder and asked if
appellant was there. She told the captain that appellant spent the night with her, and she
would have other witnesses contact him and confirm her account. However, she never
had her friends follow up on these statements. Ms. J. asked Marty Espinoza and
Mr. Henline to write down statements about their observations of appellant that night,
and she gave the statements to her daughter. Ms. J. testified she never contacted the
media or any other law enforcements officers to tell them that appellant was not involved
in the murder “because I was told that my testimony didn’t matter, because I was the
mother-in-law.”
Ms. J. further testified that Thomas M., her son’s friend, had seen the red car
screech away from her house and noticed appellant was not inside. She tried to get a
statement from him, but he refused because his friends would get angry and probably
beat him up.
27.
Ms. J. testified that appellant was a very gentle, loving, and kind man, who could
not hurt anyone. Ms. J. denied that she would lie to protect appellant, and insisted she
was not making up a story to help him. Ms. J. admitted her memory was not that good,
and she had three strokes in the 18 months before the trial.
Robert Henline confirmed that he was helping Ms. J. move a refrigerator and
piano when appellant arrived with his friends and his children. Henline had never met
appellant, and Ms. J. identified him as her son-in-law. Henline left Ms. J.’s house about
five to 10 minutes after appellant arrived, and appellant was still there when he left.
Henline rode his bicycle to his own house, about two blocks away. A few minutes later,
he thought he heard a car backfire and realized gunshots had been fired, and later heard
police sirens. Ms. J. later asked Henline to write a statement about seeing appellant, and
he complied and left the statement with her. At the time of trial, Henline was in prison
after being convicted in 1999 of manufacturing methamphetamine, and he was never held
in custody with appellant. Henline testified that he was not lying for appellant and did
not know him well enough to do so.
Mary “Marty” Espinoza testified that she drove appellant’s children to Westley
around noon on March 7 and left the children at the trailer with appellant’s grandmother.
She did not see appellant at that time. Marty testified that she drove to Grayson to visit
her friend, Ms. J., later that evening. Marty arrived in Grayson between 6:30 p.m. and
7:00 p.m., and she saw several police officers in an orchard. She drove to Ms. J.’s house
and sent her son to the door to see if Ms. J. was there. Appellant answered the door and
said Ms. J. was probably across the street. Marty testified that appellant’s children also
came to the door, and they were all wet and had just been bathed. Appellant was limping
from a foot injury.
Marty testified that she was also at Ms. J.’s house several days later when deputies
searched the residence for appellant. She and Ms. J. tried to tell the deputies that
appellant was at the house at the time of the shooting, but the deputies were rude and said
28.
they had all the information they needed. Marty wrote down one deputy’s name but had
misplaced it. About one week later, Marty wrote a statement that she had seen appellant
at Ms. J.’s house with the children. She gave the statement to Ms. J. In September 1999,
Marty spoke with the defense investigator, Mr. Peacock, who had a copy of her statement
and asked her questions about it. Marty testified that she had no reason to lie for
appellant.11
Arthur J., Ms. J.’s son and appellant’s brother-in-law, lived in Grayson with his
mother. Arthur testified he was visiting his friend, Carlos, when he heard shots fired in
the neighborhood. Carlos’s house was about two houses away from Arthur’s house.
Arthur heard a noisy red car drive through the neighborhood at a high rate of speed.
Arthur testified that he went home and told his mother about the shots, and said he
was going to see what happened. Arthur testified that appellant was at his mother’s
house and sitting on the couch. Appellant was wearing shorts. Arthur testified that he
playfully slapped appellant’s head and knew appellant would not chase him to retaliate
because he had a “gimpy leg,” and he was drunk.
Arthur rejoined Carlos and they drove around the neighborhood to see what
happened. They went to the market and saw Bobby’s body in the street. The police had
already arrived. They continued to drive around and saw the abandoned red car in the
orchard. Arthur testified that he recognized the red car as the noisy vehicle he saw and
heard earlier that day. The police told them to leave the area. Carlos drove back to his
house, and Arthur walked home.
Arthur testified that he returned to his house within 10 to 20 minutes from when
he initially saw appellant with his mother. When he returned, appellant was still at the
11 Detective Callandrillo testified that he looked through the files at the sheriff’s
department and did not find any written statements about appellant’s alleged alibi. If
such statements had been in the file, he would have conducted a follow-up investigation
and interviewed the witnesses, but there were no follow-up interviews in this case.
29.
house, and the children were asleep. Arthur told appellant and his mother that Bobby had
been killed. Appellant wrestled with Arthur and was “kicking my butt” because Arthur
had hit him earlier.
Arthur testified that he left Ms. J.’s house with appellant, and they went across the
street to another relative’s house. Arthur’s father was there, and they talked about the
shooting. They stayed there for about 10 minutes then returned to Ms. J.’s house and saw
Arthur’s friend, George. Arthur and George wrestled on the floor, then they left later that
evening. Arthur returned home around 11:00 p.m. and he did not see appellant.
Arthur testified that appellant was “[s]tumbling” drunk that day. Arthur could
smell alcohol on appellant’s breath, his speech was slightly slurred, and he was “acting
stupid and stuff like that.”
Arthur testified that he did not want to be at the trial because he had to miss
school, but he would not lie for appellant “in this serious a matter,” and he was not
making up an alibi for him. Arthur testified that he spoke to a “fat white cop” from the
sheriff’s department, who was looking for appellant the day after the murder. Arthur told
the officer that he went home within five to 10 minutes after the shooting, and appellant
was there with Ms. J. Arthur testified that the officer wrote down the information.
Arthur also spoke several times to the defense investigator, Alan Peacock, and told him
about appellant’s alibi.
Arthur testified that he moved to Las Vegas with his mother and appellant’s
children shortly after Bobby was murdered. Appellant contacted his children by
telephone while they were in Las Vegas. They lived there for a few months then returned
to Grayson. Arthur did not know appellant’s whereabouts, but he knew appellant was on
the run. Arthur’s father turned in appellant in July 1999.
George I., Arthur J.’s friend, testified that he heard sirens on the day of the
shooting and walked to the market. The police had already taped off the area, but he
found out Bobby had been shot. Around 9:00 p.m., he walked to Arthur’s house. George
30.
testified that Arthur was there, but he did not see appellant. George told Arthur that
Bobby had been shot. George testified that Arthur was shocked and wanted to check it
out. However, Ms. J. saw the police around the area and did not want them to be
involved, so they stayed at Ms. J.’s house and watched television. George testified that
appellant later walked in the front door. He was wearing a white T-shirt and blue jeans.
Appellant acted normally and did not seem drunk. George, Arthur, and appellant played
around and wrestled for about 10 to 15 minutes. George testified that he did not see
appellant after they wrestled, but he never saw appellant leave the house. George spent
the night at Arthur’s house, and learned the next day that appellant was wanted for the
shooting.
George testified that he had not received any pressure from people in Grayson to
not testify. George also testified that he had been totally cooperative with the defense
investigator, but he really did not see anything.
Alan Peacock, the defense investigator, testified that he spoke with George in
February 2001. George was with a man who told George not to talk, and who told
Peacock not to interfere in Grayson business. George said he was reluctant to give a
statement because “ ‘I still live in Grayson.’ ” Peacock explained it was important to the
people in Grayson for him to tell the truth. George then said he met Arthur at some place
between the market and Arthur’s home. They went inside the house together and
appellant was there. George and Arthur wrestled with appellant. Ms. J. was not there
when George arrived. George stated he went home around 9:00 p.m. because it was a
school night. Peacock acknowledged that George’s statement was different from his trial
testimony.
Peacock further testified that in August or September 1999, he saw defense
counsel hand over copies of the statements from Marty and Henline to Deputy District
Attorney Doug Maner. The exchange occurred in a hallway outside the courtroom, and
defense counsel gave Maner his only copies of the statements. Peacock waited for about
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one month until he tried to contact these witnesses because he did not want to taint their
statements before they spoke to the prosecutor’s investigator. Peacock did not have any
copies of these written statements, and defense counsel thought Gloria Alardin
(appellant’s ex-wife) had the original statements. Peacock repeatedly asked Gloria
Alardin to find and turn over the statements, but she never did so. Peacock finally
interviewed Gloria and Marty in September 1999, and they said they tried to give their
information to a deputy, but failed to describe him as a “fat white cop.” His attempts to
interview Henline were delayed by Henline’s incarceration, and he finally spoke with
him in April 2000.
Gloria Alardin’s Testimony
Gloria Alardin (Ms. Alardin) had two daughters with appellant. She separated
from appellant because of his drinking and filed for divorce in April 1998. At the time of
the murder, she lived with her mother and children in Grayson, and appellant lived with
his grandmother in Westley. Ms. Alardin dropped the children off at their school in
Westley and appellant picked them up. Appellant had the children on Sundays, and they
would stay overnight, and he would take them to school the next morning. Appellant
occasionally stayed at her house when he brought the children back late and fell asleep.
Ms. Alardin testified that she would not lie for appellant.
Ms. Alardin testified that she was present when Mike Garcia went into Grayson
Market to buy a beer. Bobby took the beer from Mike and picked a fight with him. Mike
was quite upset, and he wanted “to go start trouble.” “And I’m married to someone from
Westley, or was, and I live in Grayson, so I was the first one to pipe up and say, ‘I don’t
think so. You need to be quiet and sit down.’ [¶] And he bounced around a little bit and
was upset about it, but it just—I kind of defused the thing and said, ‘You’re not going to
do it, so don’t even bother.’ ” She did not have any problems with Bobby. Ms. Alardin
testified that she told her friends about this incident, but never told any officers about the
32.
dispute and never mentioned it until the instant trial. She simply assumed everyone knew
about it.
On the day of the murder, Ms. Alardin was working as a real estate agent in Ceres
when she received a page from one of her daughters at either 5:00 p.m. or 6:00 p.m. The
page was from the home of appellant’s grandmother in Westley. She called her daughter
but did not speak to appellant. Ms. Alardin called her mother’s house in Grayson around
6:00 p.m. Her daughter answered the telephone, and Ms. Alardin heard noise, music, and
several voices in the background. She asked to speak with appellant, and she heard her
daughter go outside to get him. Appellant took the telephone, and she told him that she
wanted him to clean up the girls.
Ms. Alardin testified that she received a page from her mother’s house and called
back around 7:30 p.m. She spoke with appellant and told him not to fall asleep because
he was not going to stay overnight. She got home around 8:30 p.m. and appellant was
still there with Arthur, George, and another friend, Ricky. Ms. Alardin drove appellant
back to Westley while the girls stayed at her house. Ms. Alardin noticed there were
several police cars on River Road in Grayson. Appellant said he learned from her brother
that Bobby had been shot. They drove by the orchard and saw the car, and appellant
asked her if she recognized the car. She had never seen the car before.
Ms. Alardin testified that she took the children to school the next day and went to
work. Later in the day, the school called her and reported her older daughter was very
upset about an incident which occurred the previous night, other children were saying
that her father was involved, and she needed to pick up the child. Ms. Alardin called
appellant, told him about the school’s call, and told him to pick up the child and
immediately clear things up. She picked up both children from the grandmother’s trailer
in Westley that night.
Ms. Alardin testified that she had regular contact with appellant about the
children’s schedule for the next three days. Appellant was still living in his
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grandmother’s trailer. She also heard rumors the police were looking for him. During a
telephone conversation, she asked appellant if he was going to turn himself in. Appellant
said he hoped “they would sort things out and then he would be able to come back and
that way he didn’t have to spend time in jail.”
Ms. Alardin testified that she was contacted by Detective Callandrillo about a
week after the murder, and she told him to speak with her mother because appellant was
at their home that night. Ms. Alardin admitted that she knew appellant planned to run
away, but she did not tell Callandrillo about appellant’s plans. She told Callandrillo that
some people had written letters concerning appellant’s presence at her mother’s house the
night of the murder. Her mother gave the statements to her, but she did not give them to
the investigators because she assumed the statements would be lost. Ms. Alardin gave
copies of these statements to defense counsel and kept the originals, but she could not
find the documents prior to trial.
On the last day of testimonial evidence, Ms. Alardin finally found the original
documents written by Marty and Henline about appellant’s alibi. Mr. Peacock also found
his copies, which had been placed in the wrong file.
Ms. Alardin never told the district attorney’s office that there were alibi witnesses
who could exonerate appellant and did not ask her mother or brother to talk to the
investigators because “you guys wouldn’t listen.” She knew about appellant’s
preliminary hearing but did not attend it and did not know the alibi statements had been
lost. She did not realize that the district attorney did not know about the alibi evidence
until February 2001.
After appellant disappeared from Westley, Ms. Alardin repeatedly received pages
from the sheriff’s department, and they accused her of aiding and abetting and hiding
appellant. She tried to tell the officers about appellant’s alibi, but one detective replied,
“ ‘He can tell it to the judge.’ ” The officers also spoke to her real estate employer as to
whether she was using her lock box key to hide appellant in one of her vacant listed
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homes. Another detective paged her when the officers had surrounded a warehouse and
were trying to find appellant. Ms. Alardin went to the area and offered the detective her
lock box key to gain entry and started to tell the detective about appellant’s alibi. The
detective threatened to arrest her and told her to leave.
Ms. Alardin decided to send her mother and the children to Las Vegas because she
did not want them “catching heat” from the people in Grayson. She was aware that
appellant called the children. In May 1999, Ms. Alardin left Grayson and moved to
Turlock, but she still heard about the murder and saw the wanted posters. “Every time I
told the police where I was at, [the posters] dramatically appeared.” She finally obtained
legal assistance as a result of these contacts.
Apprehension of Appellant
Ms. Alardin testified that appellant called her every two weeks while he was on
the run. She insisted she informed Detective Callandrillo every time she received a
telephone call from appellant. Ms. Alardin received another telephone call from
appellant in July 1999. She told him that she was taking the children on a trip, and
appellant asked to go. She replied, “[N]o way, I didn’t want him to go. He said he would
meet us there. I said no. And finally I agreed, but on one condition, that he was going to
turn himself in.…”
Ms. Alardin made reservations for the four of them to go to Disneyland. Her
mother asked about the fourth reservation and thought her brother was going with them.
Ms. Alardin replied appellant was going on the trip, but he was going to return with them
and turn himself in. “He just wanted some pictures at Disneyland with the kids before he
was going to do this. And my mom told my dad and my dad turned [appellant] in.”
Ms. Alardin testified that during trial, she saw Gilbert Ybarra talking with George
I. in the hallway before George testified. They started to talk about the trial, and Gilbert
pulled George around the corner where they talked for five to 10 minutes.
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The defense introduced appellant’s medical records as to his ankle surgery in
November 1998. Ms. Alardin testified that he could not move around and stayed with
her immediately after the surgery. As of March 1999, he was not using crutches, he had
some mobility, and he was allowed to put weight on his foot, but he had a bad limp.
However, he “had sweat dripping off of him any time he did too much. And I only know
that because I had to do all the chores.”
REBUTTAL EVIDENCE
Sergeant Heyne testified he participated in the search of a warehouse in Patterson
where appellant was suspected to be hiding because it was listed for sale with
Ms. Alardin. Heyne contacted her and she drove to the scene. Heyne testified
Ms. Alardin never approached him with information about appellant’s alibi. He would
have interviewed her if he had received such information.
Mike Garcia testified he did not know appellant’s wife and had hardly seen her.
Mike testified that he never had a dispute with Bobby, Bobby was his friend, and
Ms. Alardin never intervened in any dispute with him.
Deputy District Attorney Douglas Maner testified that he was initially in charge of
the instant case. He never saw the alibi statements written by Marty Espinoza and Robert
Henline until the documents were produced on the last day of trial. He would have
ordered an investigation of these statements if he had seen them. He never received any
alibi statements from either defense counsel or Mr. Peacock.
John Mallin, an investigator with the sheriff’s department, testified that he learned
about the alibi statements in February 2001. He attempted to interview the relevant
witnesses, but he only was able to contact a few people who were willing to talk. He
contacted Robert Henline in prison, who said he saw appellant inside Ms. J.’s home.
Henline rode home on his bicycle, then heard the gunshots followed shortly by police
sirens. Henline never said he saw appellant and his children arrive in a car, or that he saw
a car drive away from Ms. J.’s house.
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Mallin spoke to Ms. Alardin over the telephone, and eventually contacted her
parents. Ms. Alardin’s father and brother refused to speak with anyone about the case.
He tried to speak to George I. and Marty Espinoza, but they never returned his calls.
Detective Callandrillo testified that an attorney contacted him a few days after the
murder, and said Ms. Alardin was irate and felt harassed because wanted posters had
been distributed near her house. Callandrillo explained he had no control over the posters
because they were produced by the victim’s family, and he never told the victim’s family
where Ms. Alardin lived. Callandrillo asked the attorney for the address where her
mother and children were living in Las Vegas, in order to watch the residence in case
appellant showed up. Ms. Alardin provided this information.
Detective Callandrillo spoke with Ms. Alardin during the investigation, and she
said she had no idea where appellant was. Ms. Alardin never said she knew anything
about appellant’s whereabouts at the time of the murder. Ms. Alardin never informed
Callandrillo about appellant’s telephone calls when he was a fugitive. Callandrillo
testified defense counsel was cooperative in passing information between the
investigators and Ms. Alardin. However, Callandrillo believed Ms. Alardin was not
cooperative with the officers: “The fact that, when [appellant] was apprehended, she was
going to go to Great America [sic] with him and she was told in advance that he was a
fugitive. She knew he was a fugitive, there were fliers out, and she was told about
harboring a fugitive.”
The sheriff’s department finally found appellant hiding in his grandmother’s
trailer. Detective Callandrillo testified that he was never contacted about appellant’s
alleged alibi by Ms. J., Arthur J., George I., Robert Henline, or anyone else. He would
have conducted follow-up interviews with these witnesses if he had been informed of the
alibi information.
37.
PROCEDURAL BACKGROUND
The Charges
On July 12, 2000, an information was filed in Stanislaus County Superior Court
charging appellant Alardin, and codefendants Felipe Solorio and Jeffrey Muniz, with
count 1, first degree murder of Robert Ybarra (§ 187).
As to appellant, it was further alleged he personally used a firearm (§ 12022.5) and
was a principal in the offense when at least one principal intentionally and personally
discharged a firearm, proximately causing bodily injury to a person other than an
accomplice (§§ 12022.7, 12022.53, subds. (d) & (e)(1).) Appellant pleaded not guilty
and denied the enhancements.
On February 15, 2001, the court granted appellant’s motion for severance of his
trial from the codefendants.
In approximately March 2001, codefendant Muniz pleaded guilty to assault with a
firearm pursuant to a negotiated disposition in which he agreed to testify against
appellant and was sentenced to four years in prison. An arrest warrant was issued for
codefendant Solorio, but he was still wanted at the time of appellant’s trial.
On April 9, 2001, appellant’s jury trial began with motions in limine.
Closing Arguments
In their closing arguments, both attorneys extensively discussed the testimony of
each witness, addressed inconsistencies between their pretrial statements and trial
testimony, and sought to undermine the credibility of the other side’s witnesses.
The Prosecutor’s Argument
The prosecutor argued the evidence showed that Felipe was driving the red
vehicle, appellant was in the front passenger seat, and appellant got out of the car and
shot Bobby in the head and upper torso. The prosecutor asserted appellant was guilty of
first degree premeditated murder, “there was plenty of premeditation when you get out of
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a car and blow a man away as he did,” and he committed a “cold, callous murder.”
(People v. Alardin, supra, F039369 at p. 80.)
The prosecutor addressed the testimonies of Jeff Muniz and Mike Garcia and
acknowledged they could be found to be aiders and abettors and accomplices to the
murder. The prosecutor extensively discussed the accomplice instructions, and that the
testimony of an accomplice had to be corroborated and viewed with caution. The
prosecutor explained the jury had to determine if Muniz and/or Garcia were accomplices,
and if their testimony was corroborated and argued their testimony was corroborated and
credible.
The prosecutor next discussed appellant’s alleged alibi and argued the defense
witnesses were not credible because they failed to previously disclose this information to
the investigators. Appellant tried to intimate the prosecution’s witnesses, and the jail
“kite” showed his consciousness of guilt.
The prosecutor reviewed the instructions about murder and express and implied
malice. The prosecutor noted there was an instruction on felony murder but stated he was
not relying on a felony-murder theory in this case. The prosecutor argued appellant acted
with premeditation, intent to kill, and express malice because he put a mask over his face,
pulled out a shotgun, and blasted Bobby four times at close range in the head and upper
torso.
The prosecutor advised the jury that in the alternative, there were two theories of
second degree murder. Under one theory, appellant was guilty of second degree murder
if the jury found he killed Bobby but did not act with premeditation. The second possible
theory was the jury could find him guilty of second degree murder based on implied
malice because he acted with conscious disregard for life. The prosecutor asserted this
theory would apply if the jury believed the testimony that Garcia allegedly heard Felipe
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tell appellant to only shoot Ybarra in the legs but argued Garcia’s statement on this point
was not credible.12
The prosecutor further addressed the lesser offense of involuntary manslaughter
based on appellant’s alleged voluntary intoxication that would negate malice, because
appellant would have committed a misdemeanor offense “such as brandishing a weapon”
and then fired it, resulting in Bobby’s death.
Defense Counsel’s Argument
Defense counsel agreed the primary issue was the credibility of the witnesses. He
argued Jeff Muniz and Mike Garcia lied about appellant’s involvement in the shooting
and gave inconsistent statements because they were accomplices to the murder, and their
testimony could not be corroborated and was inconsistent with their prior statements.
Defense counsel explained that an accomplice was guilty of a confederate’s intended
crime, and, also for any natural and probable consequences of any act he knowingly aided
and abetted. Even if Muniz and Garcia thought someone was only going to fire a
warning shot, they were still guilty of murder as accomplices, and their testimony had to
be corroborated. Defense counsel extensively reviewed the prosecution evidence and
argued their testimony was not corroborated and could not be relied on to convict
appellant.
Defense counsel asserted all the evidence pointed to Felipe as the gunman. Felipe
was the only person who that a problem with Bobby and a motive to kill him because of
Bobby’s fight with Felipe’s brother at the market. In addition, Muniz initially reported
that Felipe said he had shot someone.
Defense counsel further argued the alibi witnesses were credible and reliable, and
raised a reasonable doubt whether appellant was present at the homicide. Based on the
12As will be discussed below, the jury instructions included language about
felony murder, but the prosecutor advised the jury that the instruction did not apply to the
evidence. Defense counsel did not address felony murder.
40.
alibi evidence, only Felipe, Muniz, and Garcia were in the vehicle when the murder
occurred, Muniz was driving, Garcia was in the back seat, Felipe was the shooter who got
out of the car and killed Bobby, and Felipe and his entire family disappeared within a
week of the murder.
The Prosecutor’s Rebuttal
In rebuttal, the prosecutor again extensively reviewed evidence that corroborated
the testimony of Muniz and Garcia. The prosecutor argued appellant’s self-serving alibi
evidence was refuted by the other evidence that showed appellant was the killer who
committed a vicious murder.
Jury Instructions
We will address the jury instructions below. In brief, the jury was instructed on
the liability of principals, aiders and abettors, direct aiding and abetting, and accomplices,
that it had to determine whether Muniz and/or Garcia were accomplices, and that the
testimony of an accomplice had to be corroborated. The jury was also instructed on the
elements of first and second degree murder, premeditation, and express and implied
malice, the alleged firearm enhancement, assault with a firearm as the basis for implied
malice and second degree murder, and the lesser offense of involuntary manslaughter.
As will be explained, the instructions also included language about the felony-murder
rule and the natural and probable consequences doctrine.
Jury Questions
On April 30, 2001, the jury began deliberations.
On May 2, 2001, the jury sent a question to the court about the personal discharge
enhancement: “We have a question regarding the guilty verdicts, specifically that
[appellant] was or was not a principal in the foregoing offense, discharge of [a] firearm.”
The court and the parties agreed that the court would send a written response that the jury
could review CALJIC No. 17.19.5 that defined the elements for personal discharge
enhancement, and CALJIC No. 3.00 that defined a principal.
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Later that day, the jury sent another question to the court: “Do we have to come to
a decision on the enhancement?” The court and the parties agreed to send a written
response that stated: “No.” On the same day, the jury sent another note that it was
unable to reach a verdict on the personal discharge enhancement, and that further
deliberations would not result in a verdict that was unanimous. The court called the jury
into the courtroom and asked if anyone felt that further deliberations would be helpful;
the jurors said no. The foreperson stated the vote on the enhancement was “ten yes, two
no.”
Verdict and Sentence
Also, on May 2, 2001, the jury found appellant guilty of first degree murder. The
jury was unable to reach a finding on the personal discharge enhancement. The court
declared a mistrial on the enhancement and granted the prosecution's motion to dismiss.
On September 18, 2001, the court denied appellant’s motion for new trial that was
based on alleged prosecutorial misconduct in closing argument. The court denied
probation and imposed the indeterminate term of 25 years to life for first degree murder,
to be served consecutively to the sentence imposed in Stanislaus Superior Court case
No. 1015269.13 Appellant filed a notice of appeal. (Alardin II, supra, F039052.)
APPELLANT’S DIRECT APPEAL
On April 9, 2003, this court filed the nonpublished opinion in appellant’s direct
appeal that affirmed the judgment. (People v. Alardin, supra, F039369.)
13 In People v. Alardin (Nov. 21, 2002, F039052 [nonpub. opn.] (Alardin II)), this
court affirmed appellant’s conviction of possession of a sharpened wire in jail (§ 4502)
and assault with a deadly and dangerous weapon with the infliction of great bodily injury
on another (§ 245, subd. (a)(1); § 12022, subd. (b); § 12022.7), based on his assault of
fellow inmate Jesse Edwards at the Stanislaus County Jail on October 29, 2000. He was
sentenced to seven years in prison. (Alardin II, at p. 3, fn. 2.)
42.
Appellant argued the court should have given his proffered instructions on the
credibility of accomplices that were critical for the jury to evaluate the credibility of Jeff
Muniz and Mike Garcia.
We reviewed the trial court’s lengthy discussions of the accomplice instructions
with the parties throughout the trial, and held the jury was correctly instructed with the
pattern instructions on accomplices and credibility that sufficiently addressed appellant’s
concerns. We found appellant’s proposed instructions on accomplices and corroboration
were duplicative of the pattern instructions that “constituted the ‘full array of accomplice
instructions’ and properly addressed corroboration and credibility of accomplices.”
(People v. Alardin, supra, F039369, at p. 69.)
We further held that if the jury found both Muniz and Garcia were accomplices,
the jury was correctly instructed that an accomplice’s testimony had to be corroborated
by other evidence independent of the accomplice’s testimony (CALJIC Nos. 3.11, 3.12,
3.13, and 3.18). (People v. Alardin, supra, F039369, at p. 69); and there was sufficient
independent evidence “which connects appellant with the murder and corroborates the
testimony of both Jeff Muniz and Mike Garcia.” (Id. at pp. 72–73.)
We rejected appellant’s other contentions and held the trial court properly
admitted and authenticated the jailhouse “kite” allegedly sent from appellant to Muniz
(People v. Alardin, supra, F039369, at pp. 38–60), and appellant’s numerous claims of
prosecutorial misconduct arising from closing argument lacked merit and his new trial
motion based on that alleged misconduct was correctly denied (id. at pp. 79–107).
APPELLANT’S PETITION
On March 12, 2021, appellant filed, in pro. per., a petition for resentencing on his
first degree murder conviction pursuant to former section 1170.95, and requested
appointment of counsel.
Appellant filed a supporting declaration consisting of a preprinted form, and
checked boxes that he was eligible for resentencing because a complaint, information, or
43.
indictment was filed that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine; at trial, 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 now be convicted of first or
second degree murder under the amended versions of sections 188 and 189 because he
was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killer in the commission of first degree
murder, and he was not a major participant and did not act with reckless indifference to
life.
The Superior Court’s Denial of the Petition
The court did not appoint counsel, request a response from the People, or hold a
hearing on the petition.
On or about April 9, 2021, the court filed an order that denied appellant’s request
for counsel and his petition without issuing an order to show cause. The court’s order
summarized the procedural history leading to appellant’s conviction and sentence,
addressed the statutory requirements to obtain relief that were applicable at the time, and
made the following findings.
“Prior to the appointment of counsel, the trial court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petition falls within the provisions of this section. [Citation.] The court
determines, based upon its review of readily ascertainable information in
the record of conviction and the court file, whether the petitioner is
statutorily eligible for relief. [Citation.] The court is not limited to the
allegations in the petition when determining whether the petitioner has
stated a prima facie claim for relief under [former] section 1170.95. The
court may consider the entire record of conviction and subsequent appellate
opinion. (People v. Law (2020) 48 Cal.App.5th 811, 820–821.)
“The petitioner has not made a prima facie showing he is entitled to
relief. Though the petitioner avers otherwise the record of proceedings
clearly indicated the petitioner was the actual killer and could still be
convicted of murder under revised Penal Code section 188 and 189. The
44.
record of conviction establishes petitioner’s ineligibility for resentencing as
a matter of law.
“The court has now provided a ‘brief statement of the reasons’ why
the petition is denied. (Cal. Rules of Court, rule 4.551(g).) Because the
court concludes petitioner is not reasonably entitled to relief, and because
this determination does not require resolution of a contested question of
fact, no evidentiary hearing is necessary. (Cal. Rules of Court, rule
4.551(f).)”14 (Italics added.)
On May 10, 2021, appellant filed a notice of appeal from the court’s order that
denied his petition.
DISCUSSION
I. Former Section 1170.95/Section 1172.6
As we will explain, the superior court denied appellant’s petition based on a series
of cases that have since been overruled by the California Supreme Court. We thus begin
with Senate Bill 1437’s amendments of sections 188 and 189, the enactment of former
section 1170.95, now renumbered as section 1172.6, and subsequent statutory
amendments.
A. Senate Bill 1437
Senate Bill No. 1437 (2017–2018 Reg. Sess.) became effective on January 1,
2019, and amended “ ‘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.’ ”
(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
14 As will be discussed below, at the time of the superior court’s order, there were
divisions of authority about whether the court was required to appoint counsel and
conduct a hearing prior to determining whether a petition stated a prima facie case for
relief under the then-applicable provisions of former section 1170.95.
45.
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)15
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added [former] section 1170.95, which provides a procedure for
convicted murderers who could not be convicted under the law as amended to
retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to [former] section 1170.95, an 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.’ [Citations.] Additionally, the petition shall state ‘[w]hether the
petitioner requests the appointment of counsel.’ [Citation.] If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ ” (Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [former] section 1170.95, subdivision (b)’s
three requirements, then the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court
determines that a prima facie showing for relief has been made, the trial court issues an
15 As amended, section 189, subdivision (f) states an exception that allows
“individuals to be convicted of felony murder even if they did not act with malice and do
not fall in one of the three categories of section 189, subdivision (e), where the victim is a
peace officer engaged in the course of his or her duties and the defendant knows (or
reasonably should know) these facts.” (People v. Hernandez (2021) 60 Cal.App.5th 94,
99.)
46.
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.’
[Citation.] ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ [Citation.] At the
hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ ” (Lewis, supra,
11 Cal.5th at p. 960.)
B. Lewis
In July 2021, the court decided Lewis and addressed when the right to appointed
counsel arose upon filing a former section 1170.95 petition, whether the superior court
could consider the record of conviction to determine if the petition made a prima facie
showing of eligibility for relief, and acknowledged there were conflicting opinions on
these issues. (Lewis, supra, 11 Cal.5th at pp. 957–958, 961–963.)
Lewis resolved these conflicts and held that under former section 1170.95,
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ ” (Lewis, supra, 11 Cal.5th at p. 957.) “ ‘If the petitioner has requested
counsel, the court shall appoint counsel to represent the petitioner.’ ” (Id. at p. 963,
italics added in original.)
Lewis also held that “at the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility determinations or engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) When the court conducts the prima facie determination,
47.
former section 1170.95, subdivision (b)(2) only permits screening out “noncomplying
petitions, not petitions that lack substantive merit.” (Lewis, at p. 968.)
Lewis further held that after appointing counsel, the trial court may rely on the
record of conviction to determine whether the prima facie showing has been made in
order “to distinguish petitions with potential merit from those that are clearly meritless.”
(Lewis, supra, 11 Cal.5th at pp. 970–971.) “While the trial court may look at the record
of conviction after the appointment of counsel to determine whether a petitioner has
made a prima facie case for [former] section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.” ’ ” (Lewis, at p. 971.)
“ ‘However, if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at
p. 971, italics added.)
“Appellate opinions … are generally considered to be part of the record of
conviction. [Citation.] However, as we cautioned in [People v. Woodell (1998) 17
Cal.4th 448, 457], the probative value of an appellate opinion is case specific, and ‘it is
certainly correct that an appellate opinion might not supply all answers.’ [Citation.] In
reviewing any part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] As the People emphasize, the ‘prima facie bar was intentionally
and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972, fn. omitted.)
“[T]here is no categorical bar to consulting the record of conviction at the prima
facie stage.” (Lewis, supra, 11 Cal.5th at p. 972, fn. 6.) “In sum, the parties can, and
48.
should, use the record of conviction to aid the trial court in reliably assessing whether a
petitioner has made a prima facie case for relief under [former section 1170.95,]
subdivision (c).” (Id. at p. 972.)
The prima facie determination is a question of law, and the court may deny a
petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter
of law. (Lewis, supra, 11 Cal.5th at p. 966.)
Lewis announced a prejudicial error standard under People v. Watson (1956)
46 Cal.2d 818 (Watson), if the trial court failed to appoint counsel or violated the
petitioner’s statutory rights under section 1170.95, and the petitioner must “therefore
‘demonstrate there is a reasonable probability that in the absence of the error he [or she]
… would have obtained a more favorable result.’ ” (Lewis, supra, 11 Cal.5th at p. 974.)
Therefore, to demonstrate prejudice from the denial of a petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; Watson, supra, 46 Cal.2d
at p. 836.)
C. Senate Bill No. 775
In October 2021, after Lewis was decided, Senate Bill No. 775 was enacted and
amended former section 1170.95, effective on January 1, 2022, to codify the holding in
Lewis. (2020–2021 Reg. Sess. (Stats. 2021, ch. 551, § 1) (Senate Bill 775).) As noted
above, effective June 30, 2022, former section 1170.95 was renumbered section 1172.6,
with no change in the text or designation of the subdivisions previously amended by
Senate Bill 775. (Stats. 2022, ch. 58, § 10.)
As a result of Senate Bill 775’s amendments, section 1172.6 clarified that “persons
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person's participation in a crime, attempted murder under the natural and probable
49.
consequences doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1172.6, subd. (a), italics added.)
The amendments also codified the holding in Lewis that “[u]pon receiving a
petition in which the information required by this subdivision is set forth …, if the
petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner.” (§ 1172.6, subd. (b)(3).) After the petition is filed, the People shall file a
response and the petitioner may serve a reply. (Id., subd. (c).)
After the parties have the opportunity to submit briefs, “the court shall hold a
hearing to determine whether the petitioner has made a prima facie case for relief.”
(§ 1172,6, subd. (c).) If the petitioner makes the prima facie showing, “the court shall
issue an order to show cause.” (Ibid.) If the court declines to issue an order to show
cause, “it shall provide a statement fully setting forth its reasons for doing so.” (Ibid.)
If an order to show cause is issued, “the court shall hold a hearing to determine”
whether to vacate the petitioner’s conviction, recall the sentence, and resentence
petitioner. (§ 1172.6, subd. (d)(1).) At the hearing, the prosecution has the burden to
prove beyond a reasonable doubt that petitioner is guilty of murder or attempted murder
under the amended versions of sections 188 and 189. (Id., subd. (d)(3).)
“At the hearing to determine whether the petitioner is entitled to relief … [t]he
admission of evidence in the hearing shall be governed by the Evidence Code, except that
the court may consider evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony, stipulated evidence, and
matters judicially noticed. The court may also consider the procedural history of the
case recited in any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be
excluded from the hearing as hearsay, unless the evidence is admissible pursuant to
another exception to the hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens. A finding that there is
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substantial evidence to support a conviction for murder … is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3), italics added.)
If the superior court finds a prima facie case and issues an order to show cause, it
shall conduct an evidentiary hearing and “review all the relevant evidence, evaluate and
resolve contradictions, and make determinations as to credibility, all under the reasonable
doubt standard ….” (People v. Clements (2022) 75 Cal.App.5th 276, 298.) In resolving
a section 1172.6 petition, the trial judge “isn’t charged with holding a whole new trial on
all the elements of murder. Instead, the parties will focus on evidence made relevant by
the amendments to the substantive definition of murder.” (Ibid.)
On appeal from the court’s ruling after an evidentiary hearing, “[w]e review the
trial judge’s fact finding for substantial evidence. [Citation.] We ‘ “examine the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence – that is, evidence that is reasonable, credible, and of solid value that
would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable
doubt.” ’ ” (People v. Clements, supra, 75 Cal.App.5th at p. 298.) The appellate court’s
review determines “whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.”
(Ibid.)
II. The Superior Court’s Failure to Comply with Section 1172.6
Appellant argues the superior court committed prejudicial error because it violated
the procedures set forth in Lewis and section 1172.6 and denied his petition without
appointing counsel, obtaining briefing from the parties, or conducting a hearing, and the
court improperly made factual findings from the record to find he was the actual killer
before it issued an order to show cause.
51.
A. Application of Lewis and the Amended Statute.
The superior court denied appellant’s petition in April 2021, before Lewis was
decided and enactment of the statutory amendments by Senate Bill 775. However, the
statutory amendments are applicable to his case since it is not yet final on appeal. (See,
e.g., People v. Porter (2022) 73 Cal.App.5th 644, 652; People v. Vieira (2005) 35 Cal.4th
264, 306; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306–309.)
The superior court erroneously denied appellant’s petition and determined he
failed to make a prima facie case for relief without granting his request for appointment
of counsel, obtaining briefing from the parties, and conducting a hearing before it
declined to issue an order to show cause.
The superior court gave a statement of reasons when it denied appellant’s petition
without issuing an order to show cause, as required by section 1172.6, subdivision (c).
However, the court’s denial appeared to be based on making factual findings that
appellant was the actual killer. The court stated it was denying the petition without
resolving “a contested question of fact,” but that it reviewed “readily ascertainable
information in the record of conviction and the court file,” it could consider “the entire
record of conviction and subsequent appellate opinion,” and “the record of proceedings
clearly indicated [appellant] was the actual killer.”
The superior court thus violated section 1172.6 by denying appellant’s petition
without appointing counsel, requesting briefing, conducting a hearing, and possibly
engaging in premature factfinding at the prima facie stage. (§ 1172.6, subds. (c), (d)(3).)
Nevertheless, we may affirm the court’s denial of the petition if appellant was not
prejudiced by these statutory errors. (Lewis, supra, 11 Cal.5th at pp. 972–974.)
Appellant must show that absent the statutory errors, there is a reasonable probability he
would have obtained a more favorable result. (Ibid.; People v. Watson, supra, 46 Cal.2d
at p. 836.)
52.
B. Review of the Record for the Prima Facie Finding
It is now settled that the opinion from a petitioner’s direct appeal is part of the
record of conviction that may be considered to determine whether the petition made a
prima facie showing of resentencing eligibility. (Lewis, supra, 11 Cal.5th at p. 972.)
The role of the appellate opinion is circumscribed, however, and the court may not
engage in factfinding based on the appellate opinion at the prima facie stage. (Lewis,
supra, 11 Cal.5th at pp. 971–972; § 1172.6, subd. (d)(3).) While we have relied on our
prior opinion and the trial record for the factual statement set forth above, we have done
so only to provide context to the parties’ arguments in this appeal. We cannot rely on this
factual statement to make factual findings to resolve the prima facie issue and determine
whether the court’s statutory errors were prejudicial.
The court may rely on the case’s procedural history to make the prima facie
determination. This includes the jury instructions, which are part of the record of
conviction, because the instructions “given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s showing, and reliance on
them to make the eligibility or entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of discretion,’ ” which must wait to
occur until after an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th
1043, 1055, overruled to the extent that it is not inconsistent with Lewis, supra, 11
Cal.5th 952.)
The record of conviction for purposes of section 1172.6 has also been interpreted
to include the parties’ closing arguments. (People v. Jenkins (2021) 70 Cal.App.5th 924,
935.) The ability to rely on closing arguments to determine whether the petitioner is
ineligible for relief as a matter of law is limited, however, because “[i]t is elementary …
that the prosecutor’s argument is not evidence and the theories suggested are not the
exclusive theories that may be considered by the jury.” (People v. Perez (1992) 2 Cal.4th
1117, 1126.)
53.
We turn to appellant’s claims of prejudicial error.
III. Appellant Was Ineligible for Relief as a Matter of Law
Appellant asserts his petition made a prima facie case for resentencing and the
court improperly made factual findings from the record to find he was the actual killer, in
violation of Lewis and section 1172.6. Appellant argues that even if the instructions were
considered, the record does not show how the jury arrived at the verdict, the jury was
instructed on both the felony-murder rule and the natural and probable consequences
doctrine, and he is entitled to issuance of an order to show cause and an evidentiary
hearing.
The People reply that appellant is ineligible for resentencing as a matter of law
because the instructions show he was convicted as a direct aider and abettor who acted
with premeditation and the intent to kill, this theory is still valid after the amendments
enacted by Senate Bills 1437 and 775, and the superior court’s statutory errors are not
prejudicial.
A. The Jury’s Verdict and the Personal Discharge Enhancement
A petitioner is ineligible for resentencing under section 1172.6 if he or she was the
actual killer, acted with the intent to kill, or was a major participant in the underlying
felony who acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189,
subd. (e), 1172.6, subd. (a)(3); see People v. Gentile, supra, 10 Cal.5th at p. 842.) As
relevant to the instant case, if the petitioner was not the actual killer, then a person
“convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime” may have that conviction vacated if the petitioner
“could not presently be convicted of murder … because of changes to Section 188 or
189….” (§ 1172.6, subd. (a), (e), italics added.)
While we may not make factual findings to determine if appellant was ineligible
for relief as a matter of law, we have set forth the factual statement from our opinion in
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appellant’s direct appeal to give context to the jury instructions, the parties’ closing
arguments, and the jury’s verdict. In closing argument, the prosecutor asserted Felipe
was driving the car, and appellant was the gunman who shot and killed Bobby. In
contrast, defense counsel asserted the alibi witnesses were credible, appellant was not at
the murder scene, and there was a reasonable doubt as to his guilt.
It is not necessary to resort to factual findings to conclude that appellant’s
conviction for first degree premeditated murder indicates the jury rejected the defense’s
alibi theory. The verdict by itself, however, does not resolve the question of whether he
was convicted either as the actual killer or a direct aider and abettor, and if he is ineligible
for relief under section 1172.6 as a matter of law, without making factual findings.
B. The Personal Discharge Enhancement
Appellant argues that the jury’s inability to make a finding on the personal
discharge enhancement prevents the conclusion that he was convicted as the actual killer.
We agree. At the beginning of the instructions, the court read the murder charge to the
jury and also that appellant was alleged to be “a principal in the foregoing offense and in
the commission of the offense did personally discharge a firearm and proximately
cause[d] death to a person other than an accomplice within the meaning of Section
12022.53(d)…. During the commission of the above charged offense, the defendant
personally used a firearm in violation of Section 12022.5.”
After it read the murder instructions, the court gave CALJIC No. 17.195 on the
elements of the enhancement:
“It is alleged that the defendant intentionally and personally
discharged a firearm and proximately caused death to a person other than
an accomplice during the commission of the crime charged. [¶] If you find
the defendant guilty of the crime thus charged, you must determine whether
the defendant intentionally and personally discharged a firearm and
proximately caused death to a person other than an accomplice in the
commission of that felony.
55.
“The word firearm includes a shotgun. [¶] The term intentionally
and personally discharged a firearm as used in the instruction means that
the defendant himself intentionally discharged it. [¶] A proximate cause of
death is an act or omission that sets in motion a chain of events that
produces the death as a direct, natural, and probable consequence of the act
or omission and without which the death would not have occurred….”
(Italics added.)
The jury was unable to reach a verdict on whether the personal discharge
enhancement was true, and the court declared a mistrial on the enhancement and granted
the prosecution’s motion to dismiss it. In some circumstances, a jury’s true finding on a
personal use enhancement attached to a murder conviction may establish that the
petitioner was convicted as the actual killer and thus ineligible for relief under section
1170.95. (See, e.g., People v. Garrison (2021) 73 Cal.App.5th 735, 743, 747; but see
also People v. Jones (2003) 30 Cal.4th 1084, 1120; People v. Young (2005) 34 Cal.4th
1149, 1205.) We are not presented with this potential issue since the jury was unable to
reach a finding on the personal discharge enhancement.
Appellant further argues the jury’s questions during deliberations, together with its
inability to reach a finding on the enhancement, gives the “strong indication” that it
erroneously treated “discharge of a firearm as a separate offense” and “a discrete offense
charged against [him],” and “indicates inconsistency in the jury’s determination of the
case.” We disagree with this claim because appellant’s assumptions are undermined by
the jury’s actual questions to the court. First, the jury asked whether appellant “was or
was not a principal in the foregoing offense, discharge of [a] firearm.” The court directed
the jury to review CALJIC No. 17.19.5, that defined the elements for personal discharge
enhancement, and CALJIC No. 3.00, that defined a principal. Next, the jury asked: “Do
we have to come to a decision on the enhancement?” In asking this question, the jury did
not express any confusion about the court’s prior reference to the instruction that defined
the personal discharge enhancement. Finally, the jury reported to the court that that it
56.
was unable to reach a verdict on the personal discharge enhancement and further
deliberations would not help.
The procedural record thus establishes the jury’s questions about “discharge of a
firearm” were about the personal discharge enhancement, it did not erroneously believe it
was a separate offense, and verdicts were not inconsistent since, as we will explain
below, the instructions permitted the jury to convict appellant of first degree murder
under the direct aiding-and-abetting theory.
C. Aiding and Abetting
Given the jury’s inability to reach a finding on the firearm enhancement, the
instructions raise the possibility that the jury did not convict appellant as the actual killer
but as an aider and abettor to first degree premeditated murder. The People assert the
instructions show that appellant was convicted of first degree premeditated murder based
on principles of direct aiding and abetting, that have not been negated by the amendments
enacted by Senate Bills 1437 and 775.
“Generally, a defendant may be convicted of a crime either as a perpetrator or as
an aider and abettor.” (In re Loza (2018) 27 Cal.App.5th 797, 801, fn. omitted; People v.
Williams (2015) 61 Cal.4th 1244, 1268.) “A person who aids and abets the commission
of a crime is culpable as a principal in that crime. [Citation.] Aiding and abetting is not a
separate offense but a form of derivative liability for the underlying crime.” (Gentile,
supra, 10 Cal.5th at p. 843.)
“An aider and abettor can be held liable for crimes that were intentionally aided
and abetted (target offenses); an aider and abettor can also be held liable for any crimes
that were not intended, but were reasonably foreseeable (nontarget offenses). [Citation.]
Liability for intentional, target offenses is known as ‘direct’ aider and abettor liability;
liability for unintentional, nontarget offenses is known as the ‘ “ ‘natural and probable
consequences’ doctrine.” ’ ” (In re Loza, supra, 27 Cal.App.5th at p. 801.)
57.
1. Direct Aiding and Abetting
Under the direct theory of aiding and abetting, “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.’ ” (Gentile, supra, 10 Cal.5th at p. 843.) The prosecution
“must show that the defendant acted ‘with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 279;
see also People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu), superseded by statute in part
as stated in Gentile, supra, 10 Cal.5th at pp. 848–849, and Lewis, supra, 11 Cal.5th at
p. 959, fn. 3.)
In order to convict a defendant of first degree premeditated murder as a direct
aider and abettor, “the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or facilitating its commission.”
(Chiu, supra, 59 Cal.4th at p. 167.) A direct aider and abettor to first degree
premeditated murder must aid or encourage the direct perpetrator in the commission of
the murder, and act with his or her own willfulness, premeditation, and deliberation.
(People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
“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.” (Gentile,
supra, 10 Cal.5th at p. 848.)
2. Indirect Aiding and Abetting
Under the indirect theory of aiding and abetting, where the offense that “the
perpetrator actually commits is different from the originally intended crime, the natural
and probable consequences doctrine limits liability to those offenses that are reasonably
58.
foreseeable consequences of the act originally aided and abetted.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 108.)
Under the natural and probable consequence doctrine, “a defendant can be found
guilty of murder if he or she aids and abets a crime (i.e., the target crime) and murder
(i.e., the nontarget crime) is a natural and probable consequence of that target crime.”
(People v. Chavez (2018) 22 Cal.App.5th 663, 683.) “Vicarious liability is imposed ‘for
any offense committed by the direct perpetrator that is a natural and probable
consequence of the target offense. [Citation.] Because the nontarget offense is
unintended, the mens rea of the aider and abettor with respect to that offense is
irrelevant.’ ” (People v. Montes (2021) 71 Cal.App.5th 1001, 1007.)
In 2014, prior to the enactment of Senate Bill 1437, the California Supreme Court
clarified that an aider and abettor could not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.5th
at pp. 158–159; People v. Rivera (2015) 234 Cal.App.4th 1350, 1356.) Instead, a
defendant only could be found guilty of second degree murder under the indirect theory
of aiding and abetting based on the natural and probable consequences doctrine. (Chiu, at
pp. 158–159; People v. Rivera, at pp. 1354, 1356.)
The amendments enacted by Senate Bill 1437 superseded that portion of Chiu
insofar as it “upheld aider and abettor liability for second degree murder under the natural
and probable consequences theory.” (Lewis, supra, 11 Cal.5th at p. 959, fn. 3; Gentile,
supra, 10 Cal.5th at pp. 848–849.) Senate Bill 1437 thus removed the natural and
probable consequences doctrine as the basis for a murder conviction as it applied to aider
and abettor liability. (People v. Roldan (2020) 56 Cal.App.5th 997, 1004, overruled to
the extent that it is not inconsistent with Lewis, supra, 11 Cal.5th 952.)
D. Instructions on Principals and Aiders and Abettors
We now review the instructions given to appellant’s jury on the liability of
principals and aider and abettors. As explained in this court’s opinion in the direct
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appeal, one of the primary issues at trial was whether Muniz and/or Garcia were
accomplices. The court instructed the jury with the full complement of pattern
instructions about accomplices, that it had to determine whether Muniz and/or Garcia
were accomplices, defined an accomplice as “a person who is or was subject to
prosecution for the identical felony offense charged against the defendant on trial by
reason of aiding and abetting or being a member of a criminal conspiracy,” and that
accomplice testimony had to be corroborated. (People v. Alardin, supra, F039369, at
pp. 64–65; 69.)
The accomplice instructions were expressly limited to the liability of Muniz and/or
Garcia as accomplices and the credibility of their testimony and compared their potential
liability to the offense charged against appellant. However, there were no such
limitations on the instructions that specifically addressed aiders and abettors, and the jury
could have considered these instructions to determine appellant’s guilt.
The court instructed the jury with CALJIC No. 3.00, that “[p]ersons who are
involved in committing a crime are referred to as principals in that crime. Each principal,
regardless of the extent or manner of participation, is equally guilty. Principals include,
one, those who directly and actively commit the act constituting the crime, or, number
two, those who aid and abet the commission of a crime.”16
CALJIC No. 3.01 stated the definition of direct aiding and abetting: “A person
aids and abets the commission of a crime when he or she, one, with knowledge of the
unlawful purpose of the perpetrator, and, two, with the intent or purpose of committing or
encouraging or facilitating the commission of the crime, and three, by act or advice aids,
promotes, encourages, or instigates the commission of the crime.” (Italics added.)
We will address below appellant’s arguments that the “equally guilty” phrase in
16
CALJIC No. 3.00 was misleading.
60.
Both appellant and the People agree that the court gave the following special
instruction on aiding and abetting, that included language on the natural and probable
consequences doctrine:
“To be an abettor, the one so accused must have instigated or advised the
commission of the crime or been present for the purpose of assisting in its
commission. He must share the criminal intent with which the crime was
committed. [¶] While mere presence alone at the scene of the crime is not
sufficient to make the accused a participant, and while he’s not necessarily
guilty if he does not attempt to prevent the crime through fear, such factors
may be circumstances that can be considered by the jury with the other
evidence in passing on his guilt or innocence. [¶] One may aid or abet in
the commission of a crime without having previously entered into a
conspiracy to commit it. [¶] Moreover, the aider and abettor in the proper
case is not only guilty of the particular crime that to his knowledge his
confederates are contemplating committing, but he is also liable for the
reasonable and natural or probable consequences of any act that he
knowingly aided and encouraged. Whether the act committed was the
natural and probable consequence of the act encouraged and the extent of
defendant’s knowledge are questions of fact for the jury.”17 (Italics added.)
1. CALJIC No. 3.02
Appellant correctly states that CALJIC No. 3.02 defines the natural and probable
consequences doctrine. (People v. Coffman and Marlow, supra, 34 Cal.4th 107.)
However, appellant asserts the court gave a “modified” version of CALJIC No. 3.02, that
further instructed the jury in this case on the natural and probable consequences doctrine,
but the court “deleted the identification of both the charged offense and the target
offense.” Appellant argues the failure of CALJIC No. 3.02 “to identify a specific target
crime” 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
17According to the clerk’s transcript, this special instruction on aiding and
abetting was based on People v. Durham (1969) 70 Cal.2d 171, quoting People v. Villa
(1957) 156 Cal.App.2d 128.
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doctrine to include murder liability for aiding and abetting any unspecified criminal
behavior.”18
The record from the direct appeal of appellant’s trial does not support appellant’s
assertion that a version of CALJIC No. 3.02 was given. The clerk’s transcript includes
the printed instruction for the entirety of CALJIC No. 3.02 that fully defined the natural
and probable consequences doctrine and identified the target offense as assault with a
firearm and the nontarget offense as murder. However, there are notations on this
proposed instruction that it was withdrawn and not given.
The clerk’s transcript also includes a modified version of the same printed copy of
CALJIC No. 3.02. The first paragraph appears highlighted at the margin; that paragraph
states: “One who aids and abets another in the commission of a crime is not only guilty
of that crime, but is also guilty of any other crime committed by a principal which is a
natural and probable consequence of the crime originally aided and abetted.” Appellant
claims this first paragraph was read to the jury. We note the rest of the printed
instruction, defining the natural and probable consequences doctrine and identifying the
target and nontarget offenses, is stricken out by interlineation. The final paragraph is also
highlighted at the margin but is clearly stricken by interlineation. It states: “Whether a
consequence is ‘natural and probable’ is an objective test based not on what the defendant
actually intended but what a person of reasonable and ordinary prudence would have
18 As noted above, the People requested this court take judicial notice of our
records and nonpublished opinion in appellant’s direct appeal that affirmed his conviction
and sentence. We granted appellant leave to file an informal response to the request,
stated that failure to file a response may be deemed agreement that the request should be
granted, and deferred ruling on the request until consideration of the appeal on the merits.
We filed this order prior to the date that appellant’s reply brief was due. Appellant did
not file a response or opposition to the People’s request for judicial notice, and we have
granted that request.
Appellant’s assertions that some version of CALJIC No 3.02 was given to the jury
are in his reply brief, but do not include citations to either the clerk’s or reporter’s
transcript from the trial.
62.
expected would be likely to occur. The issue is to be decided in light of all of the
circumstances surrounding the incident. A natural consequence is one which is within
the normal range of outcomes that may be reasonably expected to occur if nothing
unusual has intervened. Probable means likely to happen.”
Our review of the reporter’s transcript does not show that any part of CALJIC
No. 3.02 was given to the jury, including the portion quoted by appellant. Instead, the
reporter’s transcript contains an exchange between the court and defense counsel at the
instructional conference, where counsel stated CALJIC No. 3.02 was requested by the
defense and then withdrawn. In addition, this court’s opinion in the direct appeal lists the
instructions given for aiding and abetting and accomplices and does not include CALJIC
No. 3.02. (People v. Alardin, supra, F039369, at pp. 64–65, 67.)
E. The Murder Instructions
We next review the murder instructions to determine if appellant was convicted
under a theory that is still applicable after the statutory amendments.
First, the court instructed the jury that appellant was charged with the crime of
murder, that “[e]very person who unlawfully kills a person with malice aforethought or
during the commission of assault with a firearm, a felony inherently dangerous to human
life, is guilty of the crime of murder.” (Italics added.) “In order to prove this crime, each
of the following elements must be proved: [¶] One, a human being a killed; [¶] Two,
the killing was unlawful; And three, the killing was done with malice aforethought or
occurred during the commission of a felony inherently dangerous to human life. Assault
with a firearm is a felony inherently dangerous to human life.” (Italics added.) As will
be explained, a later instruction clarified that assault with a firearm only applied to
second degree murder.
The court next gave the definitions for express and implied malice: “Malice is
express when there is manifested an intention unlawfully to kill a human being. [¶]
Malice is implied when: [¶] One, the killing resulted from an intentional act; [¶] Two,
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the natural consequences of the act are dangerous to human life; [¶] And, three, the act
was deliberately performed with knowledge of the danger to and with conscious
disregard for human life.”19
CALJIC No. 8.20 defined premeditation for first degree murder, and that express
malice was required.
“All murder which is perpetrated by any kind of willful, deliberate
and premeditated killing with express malice aforethought is murder of the
first degree. [¶] The word willful as used in this instruction means
intentional. The word deliberate as used in this instruction means formed
or arrived at or determined upon as a result of careful thought and weighing
of considerations for and against the proposed course of action. [¶] The
word premeditated means considered beforehand [¶] If you find that the
killing was preceded by and accompanied by a clear, deliberate intent on
the part of the defendant to kill, which was the result of deliberation and
premeditation, so that it must have been formed upon preexisting reflection
and not under a sudden heat of passion or other condition precluding the
idea of deliberation, it is murder of the first degree….” (Italics added.)
The court next instructed the jury about second degree murder, and that there were
two different ways to reach a conviction for second degree murder. First, second degree
murder was an unlawful killing with malice aforethought “but the evidence is insufficient
to prove deliberation and premeditation.” Second, “[m]urder of the second degree is also
the unlawful killing of a human being when: [¶] One, the killing resulting from an
intentional act; [¶] Two, the natural consequences of the act are dangerous to human
life; [¶] And, three, the act was deliberately performed with knowledge of the danger to
and with conscious disregard for human life. [¶] When the killing is a direct result of
19Senate Bill 1437 eliminated natural and probable consequences liability for
second degree murder based on imputed malice, but implied malice is a distinct concept
and remains a valid theory of second degree murder. (Gentile, supra, 10 Cal.5th at
p. 850; People v. Rivera (2021) 62 Cal.App.5th 217, 232, overruled to the extent that it is
not inconsistent with Lewis, supra, 11 Cal.5th 952; People v. Cortes (2022)
75 Cal.App.5th 198, 201–202; People v. Soto, supra, 51 Cal.App.5th at pp. 1056–1057;
People v. Roldan, supra, 56 Cal.App.5th at pp. 1004–1005.)
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such an act, it is not necessary to prove that the defendant intended that the act would
result in the death of a human being.” (Italics added.)
After stating this definition, the next instruction clarified that the prior reference to
assault with a firearm was limited to second degree murder:
“The unlawful killing of a human being, whether intentional, unintentional
or accidental, which occurs during the commission of an assault with a
firearm is murder of the second [degree if] the perpetrator had the specific
intent to commit that crime.”
The court defined the elements of assault with a firearm, that a person was
assaulted; an assault occurred if a person willfully committed an act which, by its nature,
would probably and directly result in the application of force on another person; the
person had the present ability to apply physical force to another person; and the assault
was committed with a firearm, that included a shotgun.
The court instructed that if the jury convicted appellant of murder, it had to state in
the verdict whether the murder was of the first or second degree; and if the jury was
convinced beyond a reasonable doubt and unanimously agreed that appellant committed a
murder but there was a reasonable doubt whether the murder was of the first or second
degree, the jury had to give appellant “the benefit of that doubt and return a verdict fixing
the murder as of the second degree.”
Finally, the court instructed on the lesser included offense of involuntary
manslaughter as an unlawful killing that occurred during the commission of an unlawful
act “not amounting to a felony” which is dangerous to human life under the
circumstances of its commission; the instruction identified the underlying offense as
misdemeanor brandishing a firearm and defined the elements of that misdemeanor
offense.
F. Analysis
Appellant argues that it cannot be determined from the limited record whether the
jury convicted appellant of first degree murder as the actual killer, particularly since the
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jury could not make a finding on the personal discharge enhancement. The People assert
the instructions show that the only way appellant could have been convicted of first
degree murder was if the jury found he killed a person with express malice aforethought
and willful, deliberate premeditation.
In reviewing the jury instructions given at appellant’s trial, we are guided by the
well-established rules that the correctness of those instructions “ ‘is to be determined
from the entire charge of the court, not from a consideration of parts of an instruction or
from a particular instruction.’ [Citation.] ‘ “The absence of an essential element in one
instruction may be supplied by another or cured in light of the instructions as a
whole.” ’ ” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We look to the
instructions as a whole and consider the entirety of the record, including the arguments of
counsel. (People v. Mason (2013) 218 Cal.App.4th 818, 825.) We presume the jury is
capable of understanding and correlating the court’s instructions. (People v. Scott (2015)
61 Cal.4th 363, 399; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The jury is presumed to disregard an “ ‘abstract’ ” instruction, i.e., ‘one which is
correct in law but irrelevant[.]’ ” (People v. Rowland (1992) 4 Cal.4th 238, 282; People
v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) “ ‘A defendant challenging an instruction
as being subject to erroneous interpretation by the jury must demonstrate a reasonable
likelihood that the jury understood the instruction in the way asserted by the defendant.’ ”
(People v. Solomon (2010) 49 Cal.4th 792, 822.)
As explained above, since the jury could not reach a finding on the personal
discharge enhancement, it cannot be determined from the instructions and verdicts
whether appellant was convicted as the actual killer. We agree with the People, however,
that the record of conviction, consisting of the instructions and the verdict, establish he
was convicted as a direct aider and abettor, and not on an indirect theory based on an
imputed malice and the natural and probable consequences doctrine.
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The jury was instructed on direct aiding and abetting, a theory that remains valid
after the amendments enacted by Senate Bills 1437 and 775 – that a person aids and abets
when, “with knowledge of the unlawful purpose of the perpetrator, and … with the intent
or purpose of committing or encouraging or facilitating the commission of the crime, …
by act or advice aids, promotes, encourages, or instigates the commission of the crime,”
and that the aider and abettor must “share the criminal intent with which the crime was
committed.” The entirety of the instructions for murder, premeditation, and malice
establishes the jury could only convict appellant of first degree premeditated murder if it
found he committed a murder “perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought.” (Italics added.)
1. Felony Murder
The People acknowledge the definitional instruction for murder included language
about the felony-murder rule but argue the jury did not rely on this instruction to convict
him of murder, since the prosecutor said in closing argument that it would receive a
felony-murder instruction but clarified to the jury that he was not relying on a felony-
murder theory.
Regardless of the prosecutor’s attempted election, the jury was instructed that the
elements of murder were that a person was killed, the killing was unlawful, and “the
killing was done with malice aforethought or occurred during the commission of a felony
inherently dangerous to human life. Assault with a firearm is a felony inherently
dangerous to human life.” (Italics added.)
The entirety of the instructions refute any possibility the jury convicted appellant
based on a felony murder theory because another instruction clarified felony murder and
assault with a firearm only applied to second degree murder – that appellant could be
convicted of second degree murder if the killing resulted from an intentional act, the
natural consequences of that act were dangerous to human life, the act was deliberately
performed with knowledge of the danger to and with conscious disregard for human life,
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and an unlawful killing “whether intentional, unintentional or accidental, which occurs
during the commission of an assault with a firearm is murder of the second [degree if]
the perpetrator had the specific intent to commit that crime.” (Italics added.) The jury
was thus instructed that it could only rely on assault with a firearm to convict appellant of
second degree murder, a verdict that was not returned in this case.
2. Natural and Probable Consequences
Appellant asserts the record establishes a prima facie case for relief because the
jury was instructed on the natural and probable consequences doctrine.20 The People
agree the special instruction on aiding and abetting stated the natural and probable
consequences doctrine but argue the jury did not convict appellant based on imputed
malice because there were no instructions on target and nontarget offenses that could
have resulted in appellant’s conviction for first degree murder.
As discussed above, after instructing on direct aiding and abetting, the court also
gave the special instruction that stated the natural and probable consequences doctrine,
that “the aider and abettor in the proper case is not only guilty of the particular crime that
to his knowledge his confederates are contemplating committing, but he is also liable for
the reasonable and natural or probable consequences of any act that he knowingly aided
and encouraged. Whether the act committed was the natural and probable consequence
of the act encouraged and the extent of defendant's knowledge are questions of fact for
the jury.” (Italics added.)
20 As explained above, appellant agrees with the People that the court gave a
special instruction that defined the natural and probable consequences doctrine.
However, appellant further claims the court gave a partial version of CALJIC No. 3.02,
that also defined natural and probable consequences but omitted definitions of target and
nontarget offense. The record from appellant’s trial shows that CALJIC No. 3.02 was
requested and then withdrawn by the defense, and the court did not instruct the jury on
any language from CALJIC No. 3.02.
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However, the jury was not instructed about any target or nontarget offenses that
could have resulted in appellant’s conviction for first degree premeditated murder being
based on indirect aiding and abetting, the natural and probable consequences doctrine, or
a theory of imputed malice. While the jury was instructed about other offenses in
addition to the charged crime of murder, the entirely of the instructions prohibited the
jury from relying on any of the other offenses to convict appellant of first degree
premeditated murder.
First, as to the charged offense of murder, the jury was instructed with the
definitions of first and second degree murder, and that it had to state in the verdict form
whether the murder was for first or second degree. Next, the jury was instructed on the
elements of assault with a firearm, but as already explained, it was also instructed that
offense was only applicable to second degree murder based on a felony-murder theory.
Finally, the jury was instructed on involuntary manslaughter as the lesser included
offense and the elements of misdemeanor brandishing a firearm, but those instructions
limited the jury’s consideration of brandishing to involuntary manslaughter.
We thus conclude the instructions did not permit the jury to convict appellant of
first degree premeditated murder based on the commission of assault with a firearm,
misdemeanor brandishing, or any other target/nontarget offenses that would have
implicated imputed malice. The instructions only permitted the jury to convict appellant
of first degree premeditated murder based on express malice and his intent to kill, and the
aiding and abetting instructions were limited to the direct theory and did not permit a first
degree murder conviction under an the indirect theory of imputed malice. We presume
the jury followed the court’s instructions in reaching its verdict. While the instructional
language about natural and probable consequences was partially correct in law, it was
irrelevant to the jury’s verdict of first degree premeditated murder and it “must have been
understood, and dismissed, by the jury as mere surplusage” that was “too insignificant to
have affected the outcome within a ‘reasonable probabilit[y]’ ” under Watson. (People v.
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Prettyman (1996) 14 Cal.4th 248, 280, (conc. opn. of Mosk, J.); People v. Rowland,
supra, 4 Cal.4th at p. 282.)
3. “Equally Guilty”
Appellant contends the inclusion of the phrase “equally guilty” in CALJIC
No. 3.00 impermissibly permitted the jury to convict him of first degree murder based on
the principal’s intent, without finding that appellant personally had the intent to kill.
As given in this case, CALJIC No. 3.00 stated: “Persons who are involved in
committing a crime are referred to as principals in that crime. Each principal, regardless
of the extent or manner of participation, is equally guilty. Principals include, one, those
who directly and actively commit the act constituting the crime, or, number two, those
who aid and abet the commission of a crime.” (Italics added.)
The instruction that was given to the jury “generally stated a correct rule of law.
All principals, including aiders and abettors, are ‘equally guilty’ in the sense that they are
all criminally liable. [Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 433.) However, the “equally guilty” language has been held misleading “if
the principals in a particular case might be guilty of different crimes and the jury
interprets the instruction to preclude such a finding,” and the pattern instruction has since
been amended. (Ibid.; see, e.g., People v. Nero (2010) 181 Cal.App.4th 504, 517–520.)
In this case, the possibility that the jury may have relied on an imputed malice
theory based on the “equally guilty” phrase is foreclosed by the entirety of the
instructions, particularly CALJIC No. 3.01, that that an aider and abettor had to know the
unlawful purpose of the perpetrator, intend to commit, encourage, or facilitate the
commission of the crime, and by act or advice, aided or encouraged the commission of
the crime. There is no reasonable likelihood the jurors would have understood the
“equally guilty” language to allow them to base appellant’s liability for first degree
murder on the mental state of the actual shooter, rather than on his own mental state as a
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direct aider and abettor of first degree premeditated murder. (See, e.g., People v.
Johnson (2016) 62 Cal.4th 600, 641.)
G. Conclusion
The superior court improperly denied appellant’s petition without appointing
counsel, requesting briefing, or conducting a hearing, and improperly made factual
findings that appellant was the actual killer. These statutory errors, however, are not
prejudicial under Watson because the jury instructions and verdict establish that appellant
was convicted of first degree premeditated murder based on direct aiding and abetting,
and was ineligible for relief as a matter of law.
DISPOSITION
The People’s unopposed request for judicial notice of the record and nonpublished
opinion in People v. Alardin, supra, F039369 is granted.
The superior court’s order on or about April 9, 2021, denying appellant’s section
1172.6 petition is affirmed.
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