People v. Munoz CA2/5 ( 2021 )

Filed 3/10/21 P. v. Munoz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299579
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA055243)
v.
ELIAS IVAN MUNOZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Elias Munoz appeals from the
trial court’s denial of his Senate Bill No. 1437 (Senate Bill 1437)
and Penal Code section 1170.951 petition for resentencing. We
affirm.
II. PROCEDURAL BACKGROUND
In 2007, a jury convicted defendant of first degree murder
(§ 187, subd. (a)) and found true the allegations that the murder
was committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)) and a principal used a firearm in the commission of
the murder (§ 12022.53, subds. (b)–(e)). A prior panel of this
division affirmed defendant’s conviction. (People v. Munoz
(Mar. 10, 2009, B205117) [nonpub. opn.].)
In 2015, defendant sought habeas corpus relief, contending
that appellate counsel rendered ineffective assistance by failing
to challenge the trial court’s instructions given in response to the
jury’s inquiries on aider and abettor culpability for first degree
murder. A prior panel of this division agreed, and conditionally
reversed defendant’s first degree murder conviction as follows: if
the People did not retry defendant for first degree murder solely
on an aiding and abetting theory within 60 day after the court
filed the remittitur or if the People filed a written election not to
retry defendant, then the trial court was to proceed as if the
remittitur modified the judgment to reflect a conviction for
second degree murder rather than for first degree murder and
sentence defendant accordingly. (In re Munoz (Dec. 30, 2015,
1 All further statutory references are to the Penal Code.
2
B265673 [nonpub. opn.].) The People opted not to retry
defendant and his judgment was modified to reflect a conviction
for second degree murder.
On January 7, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. The Los Angeles
County Public Defender’s Office filed a supplemental section
1170.95 petition on defendant’s behalf.2 The court summarily
denied the petition and supplemental petition ruling that
defendant was not entitled to relief as a matter of law. The court
found that the record reflected defendant “was a direct
accomplice to the crime of murder and that, when he acted as an
aider and abettor, he personally possessed the requisite mens rea
for second degree murder.” Further, defendant “was not
convicted under a theory of felony-murder of any degree or as an
aider and abettor under a theory of natural and probable
consequences. [Defendant’s] jury did not receive any instructions
for either of those theories of murder liability.”
On April 11, 2019, the Public Defender’s Office filed a
“Request to Issue Order to Show Cause” on defendant’s behalf.3
The request alleged that the court improperly relied on sources
2 The trial court denied the Public Defender’s request to be
appointed to represent defendant.
3 The Public Defender’s Office again requested to be
appointed to represent defendant. The record does not contain a
ruling on that request. The trial court’s minute order concerning
defendant’s request for an order to show cause reflects that
defendant was not represented by counsel, but also reflects that
the trial court served that minute order on the Public Defender’s
Office. Defendant does not contend on appeal that the court
erred in failing to appoint counsel to represent him.
3
other than defendant’s section 1170.95 petition in determining
whether defendant had established a prima facie case for relief
and, if other sources were properly considered, a review of all
sources—i.e., the trial record—demonstrated a prima facie case
for relief.
The trial court treated defendant’s request for an order to
show cause as a reply under section 1170.95, subdivision (c) and a
request for reconsideration of its prior denial of defendant’s
section 1170.95 petition. Again, the court ruled that defendant
was not entitled to section 1170.95 relief as a matter of law
because he was convicted as a direct accomplice to murder and
his jury had not been instructed on felony murder culpability or
the natural and probable consequences doctrine.
III. DISCUSSION
A. Senate Bill 1437 and Section 1170.95
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
the statute as set forth in subdivision (a), including 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) [t]he petitioner was convicted of
4
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) [t]he petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted
Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted
July 22, 2020, S262835, fn. omitted (Smith).)
B. Analysis
The jury instructions in defendant’s case did not include
instructions on the felony murder rule or the natural and
probable consequences doctrine. The jury received instructions
only on direct aiding and abetting4 and the elements of murder
4 The trial court delivered CALCRIM No. 400 which stated:
“A person may be guilty of a crime in two ways. One, he or
she may have directly committed the crime. Two, he or she may
have aided and abetted someone else, who committed the crime.
5
with malice aforethought.5 “[I]f the jury was not instructed on a
natural and probable consequences or felony-murder theory of
In these instructions, I will call that other person the
‘perpetrator.’ A person is equally guilty of the crime whether he
or she committed it personally or aided and abetted the
perpetrator who committed it.”
The court also delivered CALCRIM No. 401 which stated:
“To prove that the defendant is guilty of a crime based on
aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to
commit the crime;
“3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing
the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends
to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.
“If all these requirements are proved, the defendant does
not need to actually have been present when the crime was
committed to be guilty as an aider and abettor.
“If you conclude that defendant was present at the scene of
the crime or failed to prevent the crime, you may consider that
fact in determining whether the defendant was an aider and
abettor. However, the fact that a person is present at the scene
of a crime or fails to prevent the crime does not, by itself, make
him an aider and abettor.”
5 The court delivered CALCRIM No. 520 which stated:
“The defendant is charged with murder.
6
“To prove that the defendant is guilty of this crime, the
People must prove that:
“1. The defendant committed an act that caused the
death of another person;
“AND
“2. When the defendant acted, he had a state of mind
called malice aforethought.
“There are two kinds of malice aforethought, express malice
and implied malice. Proof of either is sufficient to establish the
state of mind required for murder.
“The defendant acted with express malice if he unlawfully
intended to kill.
“The defendant acted with implied malice if:
“1. He intentionally committed the act;
“2. The natural consequences of the act were dangerous
to human life;
“3. At the time he acted, he knew his act was dangerous
to human life;
“AND
“4. He deliberately acted with conscious disregard for
human life.
“Malice aforethought does not require hatred or ill will
toward the victim. It is a mental state that must be formed
before the act that causes death is committed. It does not require
deliberation or the passage of any particular period of time.
“An act causes death if the death is the direct, natural, and
probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence
is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence
is natural and probable, consider all of the circumstances
established by the evidence.
“There may be more than one cause of death. An act causes
death only if it is a substantial factor in causing the death. A
substantial factor is more than a trivial or remote factor.
7
liability, the petitioner could not demonstrate eligibility as a
matter of law because relief is restricted to persons convicted
under one of those two theories.” (Smith, supra, 49 Cal.App.5th
at p. 92, fn. 5.)
Defendant does not contend he was convicted on a felony
murder theory and concedes the jury was not instructed with
CALCRIM No. 403—the natural and probable consequences
instruction. Notwithstanding the absence of a natural and
probable consequences instruction, however, he contends “the
combination of instructions actually delivered conveyed the same
message in terms of his culpability for murder, either first or
second degree.”6 We disagree.
“The natural and probable consequence doctrine . . . is a
theory of liability by which an aider and abettor who intends to
aid a less serious crime can be convicted of a greater crime. This
doctrine comes into play when ‘an accomplice assists or
encourages a confederate to commit one crime, and the
confederate commits another, more serious crime (the nontarget
However, it does not need to be the only factor that causes the
death.”
6 Defendant argues that because the trial court erred, during
his trial, in instructing the jury that it could convict him of first
degree murder based on the intent of the perpetrator, he is
entitled to relief under section 1170.95. As we discuss above, a
prior panel of this court granted defendant habeas relief based on
the court’s error in instructing the jury and, as a result,
defendant’s first degree murder conviction was reduced to one for
second degree murder. Defendant fails to articulate, however,
how the court’s error in instructing the jury enabled it to convict
him of murder under a natural and probable consequences theory
of liability.
8
offense).’ [Citation.]” (People v. Soto (2020) 51 Cal.App.5th 1043,
1058, review granted Sept. 23, 2020, S263939.) Defendant does
not identify any instruction or combination of instructions from
which the jury might have believed that it could convict him of
murder based on his intent to aid a confederate in the
commission of a less serious crime and his confederate instead
committed the more serious crime of murder.
Because defendant could not demonstrate eligibility for
section 1170.95 relief as a matter of law, the trial court did not
err in denying defendant’s petition.
9
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
10