People v. Gutierrez CA2/5 ( 2023 )

Filed 7/11/23 P. v. Gutierrez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B319590
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA149083)
v.
OSCAR GUTIERREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Reversed and remanded
with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant and appellant Oscar Gutierrez appeals the
summary denial of his second petition for resentencing under
Penal Code section 1172.6.1 The Attorney General concedes the
trial court erred in denying the petition without first appointing
counsel for defendant, but argues the error is harmless as
defendant is not entitled to resentencing as a matter of law. We
conclude the error is prejudicial and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Defendant’s Crime2
“Defendant and his codefendant, Javier Miranda, were
convicted of second-degree murder from a 1997 incident in which
Miranda shot and killed the victim. Miranda killed Oscar
Cornejo shortly after a confrontation with Oscar’s brother,
Vicente, with whom Oscar shared a physical resemblance.
“At 8:15 p.m. on April 19, 1997, Vicente Cornejo was
walking with his girlfriend to a barbecue hosted by Tomas
1 The statute was originally numbered 1170.95; it was
renumbered effective June 30, 2022. (Stats. 2022, ch. 58, § 10
A.B. 200.) We use the current numbering. Unless otherwise
indicated, all undesignated statutory references are to the Penal
Code.
2 We take our discussion of the facts from our opinion
resolving defendant’s appeal of his first resentencing petition.
(People v. Gutierrez (June 25, 2020, B300949) [nonpub. opn.]
(First 1172.6 Appeal).) That opinion, in turn, took the facts from
the opinion issued by a different panel of this court in defendant’s
appeal from his conviction. (People v. Gutierrez (Apr. 18, 2000,
B132212) [nonpub. opn.] (Original Appeal).) We take judicial
notice of the prior opinions in both appeals, and we set forth the
facts from the First 1172.6 Appeal with the understanding that
our summary is not binding.
2
Gonzalez. A vehicle pulled up to a stop in front of them.
Defendant was driving; Miranda was the passenger. Miranda got
out of the car and issued a gang challenge to Vicente Cornejo.
Vicente Cornejo’s girlfriend answered that he was not a member
of any gang. Miranda wanted to fight and continued to challenge
Vicente Cornejo. Words were exchanged. Miranda reached
under his shirt. Concerned that Miranda was reaching for a
weapon, Vicente Cornejo punched him in the face and the men
began fighting. Vicente Cornejo got the better of Miranda.
Eventually, Gonzalez came over and broke up the struggle; he
threw Miranda into the back seat of the car, telling Miranda and
defendant to leave them alone. When Gonzalez was putting
Miranda in the car, defendant turned around and told him,
‘Payback’s a bitch.’
“Miranda got out of the car again, this time holding a
sawed-off rifle. He took a few steps toward Vicente Cornejo and
Gonzalez while holding the rifle, and the two men ran away.
Miranda got back into the car and defendant drove off.
“Police were called, and Gonzalez and Vicente Cornejo
spoke with the officers. Vicente Cornejo decided not to go to the
barbecue, but his brother Oscar went over with Gonzalez.
“In the meantime, defendant and Miranda picked up an
additional male passenger and drove back to the scene. The car’s
headlights were off. Someone from the car yelled his gang name
and an insult. Gonzalez and Oscar Cornejo approached the car.
When they arrived at the bottom of the driveway, Miranda was
already standing outside the car aiming his rifle. Defendant
remained in the car. Oscar Cornejo said they were not gang
members and did not want any trouble. Defendant Miranda
attempted to fire his rifle; it only clicked. Gonzalez and Oscar
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Cornejo ran up the driveway. Miranda’s rifle was missing its
magazine tube. To fire, it was necessary to hold up the gun and
‘jiggle’ it in order to get a round into the chamber. Defendant
Miranda did this twice and fired off two rounds. One bullet hit
Oscar Cornejo in the back and passed through his heart and lung,
killing him.
“Miranda got back in the car and the three men sped away
with headlights off. Police arrested Miranda and defendant later
that night.3 Miranda had the rifle in his possession.
“Defendant and Miranda were charged with the murder of
Oscar Cornejo. (§ 187.) It was alleged that Miranda personally
used a firearm within the meaning of section 12022.5, subdivision
(a)(1). As to defendant, it was alleged that a principal was armed
with a firearm within the meaning of section 12022, subdivision
(a)(1).
“At trial, defendant did not testify. Codefendant Miranda
testified as follows. Miranda had started the fight with Vicente
Cornejo and had subsequently chased Vicente Cornejo and
Gonzalez with his rifle. He had wanted to continue his fight with
them, so he and defendant had picked up another man to even
the numbers for a fistfight. When defendant drove back to the
barbecue, Gonzalez and Oscar Cornejo threw things at the car.
Miranda said he had believed the car was being hit with rocks
and bottles, and perhaps someone had been shooting at the car.
He was scared of being killed, so he got out of the car and waved
the gun to scare away Gonzalez and Oscar Cornejo. Miranda
then testified that he fired in the air to frighten them. He had
been drinking and was affected by the alcohol. After he had fired
3 The prior appellate opinion, and therefore the present
record, is silent as to what became of the third man in the car.
4
the first shot, Gonzalez and Oscar Cornejo ran, but he fired the
second time even though they were running away and not
throwing anything at the car. Miranda believed he had aimed in
the air, but he had probably shot in the direction of Oscar
Cornejo.
“Both Miranda and defendant were acquitted of first degree
murder, but found guilty of second degree murder. The weapon
allegations were found true. Defendant was sentenced to 16
years to life in prison.”
2. Defendant’s Original Appeal4
“This court affirmed defendant’s conviction. [Citation.] On
appeal, he challenged the language of the jury instructions given
on aider and abettor liability, specifically that part of the
instruction that aiders and abettors are ‘equally guilty’ as direct
offenders. The jury had been instructed in the language of
CALJIC Nos. 3.00 and 3.01. Defendant suggested that the
‘equally guilty’ words, when taken out of context, enabled the jury
to find him guilty even if he did not possess the necessary mental
state for aider and abettor liability. We concluded the jury
instructions in their entirety properly set forth the requirements
for aider and abettor liability, including that the aider and
abettor of a specific intent crime must share the perpetrator’s
specific intent.
“Defendant also argued that there was no legal basis for his
conviction of second degree murder. Specifically, he
acknowledged that the evidence was sufficient to support the
finding he was an aider and abettor, in that he threatened
4 We take our discussion of defendant’s Original Appeal from
our discussion of it in the First 1172.6 Appeal.
5
Gonzalez with payback and drove Miranda to the scene with the
car’s headlights off. However, defendant argued that, given the
jury’s rejection of first degree murder, he could not be convicted of
second degree murder either: The jury must have concluded that
Miranda’s intent (either express or implied malice) was formed
after anything defendant may have done to aid and abet
Miranda.
“We rejected this argument, concluding that defendant’s
‘view of the facts is too narrow. The facts support the finding
that the intent to kill was formulated at the time [Miranda] was
bested by Vicente Cornejo and [defendant] aided and abetted
[Miranda] in his plan to take revenge by killing. However, the
jury may have concluded [Miranda] committed the murder while
under the provocation of his humiliating loss of the original fight
and, therefore, did not deliberate the killing.’ Alternatively, the
court concluded the second degree verdict may have resulted from
juror leniency.
“A footnote in the opinion read: ‘Defendant Gutierrez
acknowledges that the facts could have supported a conviction
under the “natural and probable consequences” theory, by which
“a person who aids and abets a confederate in the commission of
a criminal act is liable not only for that crime (the target crime),
but also for any other offense (nontarget crime) committed by the
confederate as a ‘natural and probable consequence’ of the crime
originally aided and abetted.” [Citation.] However, the jury was
not instructed on this theory.’ ”
3. Defendant’s First Section 1172.6 Petition
On March 26, 2019, defendant, self-represented, filed a
form petition for relief under newly-enacted section 1172.6,
which, at the time, provided an avenue for resentencing
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defendants who had been convicted of felony murder or murder
under the natural and probable consequences doctrine.
Defendant requested appointment of counsel.
The trial court accepted briefing on the issue, but did not
appoint counsel for defendant. The District Attorney filed an
opposition; defendant did not file a reply.
The trial court then denied the petition, concluding
defendant was not eligible for relief under the terms of the
statute.
Defendant appealed. The Attorney General conceded that
the trial court should not have accepted the District Attorney’s
opposition to the petition without appointing counsel for
defendant. We accepted the concession. However, we concluded
the error was harmless, because defendant was ineligible for
relief as a matter of law. Specifically, he was not convicted under
either a felony-murder or natural and probable consequences
theory. We therefore affirmed. Our opinion was filed June 25,
2020.
4. Defendant’s Second Section 1172.6 Petition
In 2021, the Legislature amended section 1172.6 to allow
for resentencing petitions not only when a defendant was charged
with felony murder or murder under the natural and probable
consequences doctrine, but also when the prosecution was
permitted to proceed “under [any] other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime . . . .” (Stats. 2021, ch. 551 (S.B. 775).)
On March 1, 2022, defendant, again self-represented, filed
a second petition for resentencing under section 1172.6,
explaining that he was proceeding under the new law, and it was
possible – under the jury instructions given in his case – that he
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was, in fact, convicted under a theory in which malice was
imputed to him solely for his participation in a crime. Defendant
attached to his petition four of the jury instructions given at his
trial, which we will discuss below, and a copy of the appellate
opinion in People v. Langi (2022) 73 Cal.App.5th 972 (Langi),
which he believed supported his position. He again requested the
appointment of counsel.
The following day, March 2, 2022, the trial court summarily
denied the petition. Relying on our opinion in the First 1172.6
Appeal, the court concluded that “defendant has not made a
prima facie showing he is entitled to resentencing. Defendant
was not convicted based on any theory which imputed malice
solely based on his participation in the crime. Rather, defendant
‘was convicted as an aider and abettor who shared [the actual
shooter’s] intent.’ ”
Defendant filed a timely notice of the current appeal.
DISCUSSION
For the second time, the Attorney General concedes the
trial court erred in denying the petition without appointing
counsel for defendant. Again, we accept the concession. The
Attorney General once more argues the error is harmless as
defendant is ineligible for relief as a matter of law. This time, we
disagree.
1. Section 1172.6
“Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015; Senate Bill 1437) eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule. (Pen.
Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by . . .
Senate Bill 1437.)” (People v. Lewis (2021) 11 Cal.5th 952, 957.)
8
Specifically, under the new law, an aider and abettor cannot be
convicted of felony murder unless the defendant acted with the
intent to kill or was a major participant who acted with reckless
indifference to human life. Senate Bill 1437 also added section
1172.6 to the Penal Code, which creates a procedure for convicted
murderers who could not be found guilty under the law as
amended to retroactively seek relief. “The petition must contain
(1) a declaration by the petitioner that he or she is eligible for
relief; (2) the superior court case number and year of conviction;
and (3) whether the petitioner requests counsel. If the petition
states a prima facie showing of the defendant’s entitlement to
relief, the court must issue an order to show cause and hold an
evidentiary hearing. [Citation.] [¶] Courts of Appeal were
initially split as to when the appointment of counsel was required
under section [1172.6]. This split was resolved in Lewis, supra,
11 Cal.5th at page 957, in which the court concluded that if the
section [1172.6] petition contains all the required information,
including a declaration that the petitioner was convicted of
murder and is eligible for relief, the court must appoint counsel to
represent the petitioner if requested. [Citation.] After the
appointment of counsel and the opportunity for briefing, the
superior court should consider whether the petitioner has made a
prima facie showing of entitlement to relief, at which point the
record of conviction may be considered.” (People v. Coley (2022)
77 Cal.App.5th 539, 543-544.) Among other things, Senate Bill
No. 775 amended section 1172.6 “to clarify that a person is
entitled to an attorney upon the filing of a facially sufficient
petition (thus memorializing the ruling in Lewis).” (Coley, at
p. 544.)
9
Our Supreme Court in Lewis also discussed the limited
nature of the prima facie inquiry. “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
section [1172.6] 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.” ’ [Citation.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citation.] ‘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.)
As we have already explained, Senate Bill No. 775
extended section 1172.6 relief to defendants convicted of murder
under any theory in which malice was imputed to them solely
based on their participation in a crime.
2. Defendant’s Theory of Relief
Defendant’s second petition was based on Senate Bill
No. 775 and Langi. His argument implicates the doctrine of
aiding and abetting implied malice murder.
“[T]o be liable for an implied malice murder, the direct
aider and abettor must, by words or conduct, aid the commission
of the life endangering act, not the result of that act. The mens
rea, which must be personally harbored by the direct aider and
abettor, is knowledge that the perpetrator intended to commit the
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act, intent to aid the perpetrator in the commission of the act,
knowledge that the act is dangerous to human life, and acting in
conscious disregard for human life.”5 (People v. Powell (2021)
63 Cal.App.5th 689, 713 (Powell); see also People v. Reyes
(June 29, 2023, S270723) ___ Cal.5th ___ [2023 WL 4242765, *5].)
Aiding and abetting implied malice murder is a theory of murder
based on the aider and abettor’s own mental state; it does not
rely on imputed malice. (People v. Silva (2023) 87 Cal.App.5th
632, 639; People v. Schell (2022) 84 Cal.App.5th 437, 443-444;
People v. Vizcarra (2022) 84 Cal.App.5th 377, 390-391.)
The Langi court recognized that the standard aiding and
abetting instruction (CALJIC No. 3.01) read in combination with
the standard implied malice murder instruction (CALJIC 8.31)
could, on the right facts, potentially allow a jury to convict a
defendant of second-degree murder on an impermissible imputed
malice theory – if the defendant intended to aid and abet his
associate’s non-murder crime, without the jury necessarily
finding the defendant possessed the conscious disregard mental
state necessary for implied malice murder. (Langi, supra,
73 Cal.App.5th at pp. 981-983.)
5 This is to be distinguished from the natural and probable
consequences doctrine, in which the issue of whether the
nontarget offense was a natural and probable consequence of the
target offense was determined from an objective person standard,
not the subjective intent of the aider and abettor. “Thus, under
the natural and probable consequences doctrine, the prosecution
was not required to prove that the aider and abettor was
subjectively aware of the risk of death and acted in conscious
disregard thereof.” (Powell, supra, 63 Cal.App.5th at p. 711.)
11
In Langi, the jury instructions did not explain that, to be
guilty as a direct aider and abettor of second degree murder, an
accomplice must have acted with the mental state of implied
malice. Therefore, the record before the Langi court did not
conclusively negate the possibility that Langi was convicted on a
theory of imputed malice. The Court of Appeal held that the trial
court erred in denying him an evidentiary hearing on his section
1172.6 petition. (Langi, supra, 73 Cal.App.5th at pp. 983-984.
See also People v. Maldonado (2023) 87 Cal.App.5th 1257.)
3. Defendant Established a Prima Facie Case
Here, defendant attached to his section 1172.6 petition four
of the jury instructions given in his case. Two of those
instructions were CALJIC 8.31 – the standard second degree
implied malice murder instruction, and CALJIC 3.01 – the
standard aiding and abetting instruction at issue in Powell and
Langi. He argues that, based on these instructions, it is possible
that the jury could have: (1) convicted Miranda of second degree
murder on the theory that he shot at Oscar Cornejo with reckless
disregard for human life; and (2) convicted defendant of aiding
and abetting that killing on the basis that defendant
intentionally assisted Miranda in committing the shooting, but
without finding that defendant had the necessary mental state of
reckless disregard for human life.6
On appeal, the Attorney General argues that Langi was
wrongly decided and that, in any event, it is distinguishable on
the facts of this case. Both arguments are premature. Defendant
6 Miranda testified that he did not intend to kill; he believed
he was shooting in the air, and intended only to frighten the men
he thought were throwing objects at the car, after they had
already gotten the better of him in a physical altercation.
12
established a prima facie case on the minimal facts and record
presented to the trial court. Counsel should have been appointed
to enable the development of a full record and to argue any
necessary legal issues.
Indeed, the record before the trial court consisted almost
exclusively of the four jury instructions defendant attached to his
petition, and the facts from the First 1172.6 Appeal, on which the
trial court relied. Following briefing and argument on appeal,
defendant’s counsel augmented the appellate record with the
entirety of the jury instructions from defendant’s trial. Whether
the full instructions, the evidence presented, counsel’s closing
arguments and the evidence presented reasonably allowed the
jury to convict defendant on a theory of imputed malice murder is
an issue the trial court should determine in the first instance. It
may do so only following appointment of counsel. We cannot find
harmless error in the failure to appoint counsel in this case, when
the record, and the arguments from it, were not fully developed
in the trial court.
DISPOSITION
The order summarily denying defendant’s section 1172.6
petition is reversed, and the matter remanded for appointment of
counsel. The trial court shall hold a new eligibility hearing under
section 1172.6, subdivision (c).
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
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