People v. Washington CA2/1 ( 2024 )

Filed 9/4/24 P. v. Washington CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B329375
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA064310)
v.
DAMON WASHINGTON,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles
County, Sam Ohta, Judge. Affirmed.
Diane E. Berley, 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, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 1993, a jury convicted Damon Washington of first degree
murder for his role as the driver in a drive-by shooting that
resulted in the death of Lourdes Hernandez. The trial court
sentenced Washington to 26 years to life in prison.
Washington now asks us to reverse the court’s order
denying his petition for resentencing filed pursuant to Penal
Code section 1172.6 (formerly § 1170.95).1 That section permits
a defendant “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” to challenge the conviction and
seek resentencing on any remaining counts. (§ 1172.6, subd. (a).)
Washington concedes that the jury did not convict him
pursuant to the felony murder rule or the natural and probable
consequences doctrine. He urges, however, that testimony from
the prosecution’s gang expert improperly invited the jury to
convict him of first degree murder even without finding that
he personally harbored the intent to kill Hernandez. He
contends further that the reasoning in People v. Langi (2022) 73
Cal.App.5th 972 (Langi)—where the appellate court reversed the
denial of a section 1172.6 petition due to an ambiguity created by
the jury instructions—compels reversal of the court’s order here.
We disagree with both contentions and affirm.
1 Unless otherwise specified, all statutory references are
to the Penal Code.
Effective June 30, 2022, the Legislature renumbered
section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10),
without changing the statute’s content. We hereafter cite to
section 1172.6 for ease of reference.
2
FACTUAL SUMMARY AND PROCEDURAL HISTORY2
At approximately 10:30 p.m. on May 28, 1992, a car
drove past a house located on East 21st Street in Los Angeles,
where members of the Premiera Flats and Loco Park gangs
were attending a party. The car’s occupants shouted, “Park
gang! Park gang!” Immediately thereafter, a second car—
with its lights turned off—drove past the house. The driver and
passenger of the second car shouted “38th Street”—the name of
a rival gang—and the passenger then fired several gunshots into
a group of four young women gathered in front of the house. One
of the bullets struck Hernandez, a member of the Loco Park gang.
Hernandez died as a result of the gunshot wound. Eyewitnesses
to the shooting subsequently identified Marcos Vera as the
shooter and Washington as the driver of the car from which Vera
fired the shots.
The Los Angeles County District Attorney’s Office charged
Vera and Washington with Hernandez’s murder (§ 187, subd (a)).
The information alleged further that Vera and Washington had
committed the offense for the benefit of a criminal street gang
and thus were subject to an enhanced sentence pursuant to
section 186.22, subdivision (b).
2 We summarize here only the facts and procedural
history relevant to our resolution of this appeal. We granted
the Attorney General’s request that we take judicial notice of
the record in the direct appeal of Washington’s conviction, and,
where appropriate, our summary draws on that record. (See
People v. Washington et al. (Nov. 30, 1994, B078472) [nonpub.
opn.] (Washington et al.).) Although we set forth a brief account
of the circumstances of the offense, we do so only to provide
context for our opinion. Our resolution of Washington’s appeal
does not rely on this factual account, but upon the theories
presented, jury instructions given, and verdicts returned at trial.
3
The prosecution’s theory at Vera and Washington’s joint
trial was that the defendants had committed the shooting to
enhance their status in the 38th Street gang. In support of this
theory of the case, the prosecution introduced testimony from
gang expert Officer Richard Arciniega. Officer Arciniega testified
concerning the rivalry between the Loco Park and 38th Street
gangs and—as relevant here—opined that when gang members
commit a drive-by shooting, “[t]heir intent is to kill.” Finally,
during closing argument, the prosecution asserted that—
although not the shooter—Washington acted with the intent
to kill, and the jury therefore should convict him of first degree
murder as a direct aider and abettor:
“[Prosecutor]: . . . You may be wondering how is it that
the driver of the car, defendant Washington, can be guilty of first
degree murder. How? He didn’t actually pull the trigger. Well,
aiding and abetting, and an aider and abettor is considered a
principal. And a principal is liable for all acts jointly.
“How do we work that through? A person aids and abets
a crime when he, with knowledge of the unlawful purpose—now,
remember, defendant Washington is driving the car. Does he
have any knowledge about what’s going to happen here? What
evidence is there, besides just a shooting, that shows defendant
Washington, as the driver of that . . . car, knew what was going to
happen? He killed the headlights as he came down the street. . . .
And we heard from Officer Arciniega that it’s a common practice
of gang members about to do a drive-by shooting, that they kill
their headlights.
“What else? Well, defendant Washington slowed right in
front of the party. What does that mean? Well, if you’re going to
do a drive-by shooting, it’s kind of hard to hit your target if you’re
speeding up just as the person is leaning out the window to do
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the shooting. He kills his headlights, he approaches the party,
and he slows down his car. It shows his knowledge. It shows the
knowledge of the unlawful purpose, the plan the two of them had.
“What’s the third reason, the third area of proof to show
defendant Washington knew what was going on? Where were
they? They were in Loco Park territory.
“[¶] . . . [¶]
“. . . . Washington and . . . Vera are seated here in this
court, and the evidence has shown that they are both guilty of
first degree murder of a 15-year-old girl in furtherance [of] a gang
rivalry.”
The trial court instructed the jury on direct aiding
and abetting, as well as on the requisite elements of first and
second degree murder. These included instructions that “all
murder which is perpetrated by any kind of willful[ ], deliberate
and premeditated killing with express malice aforethought is
murder of the first degree,” and that “malice is express when
there is manifested an intention unlawfully to kill a human
being.” The court did not instruct on the felony murder rule,
the natural and probable consequences doctrine, or any other
theory of imputed malice.
The jury convicted both Washington and Vera of first
degree murder, and each defendant stipulated to the truth
of the section 186.22 gang allegations. The court sentenced
Washington to 26 years to life in prison, and we affirmed his
conviction on appeal. (See Washington et al., supra, B078472.)
Almost 25 years later, “the Legislature passed Senate Bill
[No.] 1437 ‘to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
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major participant in the underlying felony who acted with
reckless indifference to human life.’ [Citation.]” (People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).)
The bill “substantially modified the law relating to
vicarious liability for murder by eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder [citation] and by narrowing the scope of felony
murder.” (People v. Lopez (2022) 78 Cal.App.5th 1, 11.) The bill
also added section 1172.6, which provides a procedure whereby
“convicted murderers who could not be convicted under the law
as amended” may petition to have their conviction vacated and be
resentenced on any remaining counts. (Lewis, supra, 11 Cal.5th
at p. 959.) Via Senate Bill No. 775, the Legislature subsequently
expanded the scope of section 1172.6’s relief to defendants
convicted of murder pursuant to any “other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a)(1); Lewis, supra,
11 Cal.5th at pp. 957, 959.)
Defendants who fall within section 1172.6’s parameters
may seek the relief the statute contemplates by “fil[ing] a
resentencing petition . . . alleging they could not currently be
convicted of murder because of the changes in the law required
by Senate Bill No. 1437.” (People v. Hurtado (2023) 89
Cal.App.5th 887, 891.) “If [a] petitioner ma[kes] a prima facie
showing for relief, the trial court [is] required to issue an order
to show cause for an evidentiary hearing.” (Ibid., citing § 1172.6,
subd. (c).)
In assessing eligibility at the prima facie stage, 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
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were proved.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) The court
may deny the petition at the prima facie stage if the record of
conviction “conclusively establishes every element of the offense”
under a theory of murder that remains valid following the
enactment of Senate Bill Nos. 1437 and 775. (People v. Curiel
(2023) 15 Cal.5th 433, 463.) Where a trial court denies a
section 1172.6 petition based on the failure to make a prima facie
case for relief, our review is de novo. (See People v. Coley (2022)
77 Cal.App.5th 539, 545.)
Washington filed a form section 1172.6 petition challenging
his murder conviction, and the trial court appointed counsel
to represent him in the proceedings. The prosecution filed
an opposition to the petition, arguing that Washington is
categorically ineligible for section 1172.6 relief because “the jury
was not instructed on natural and probable consequences, felony
murder[,] or any other theory that allowed the jury to impute
malice to [him]”; instead, Washington’s “conviction was based
on his being a principal who acted with actual malice.”
Relying in part on Langi, Washington argued in response
that “based on the instructions given, the jury could have
convicted [him] of murder based not on a finding of actual malice,
but on imputing malice to him based on his participation in
the crime of driving the shooter who was charged with murder.”
At the hearing on the petition, the trial court rejected
Washington’s attempt to analogize his case to Langi and denied
his request for section 1172.6 relief:
“Unlike the second-degree implied malice/aiding and
abetting instructional problem which potentially permitted the
jury to convict Langi without the necessity of finding on [sic] the
required mental state, the only path the trial court instructed
for the jury to arrive at first-degree murder [in Washington’s
7
case] was through [CALJIC No.] 8.20 on willful, deliberate, and
premeditated murder, which required the jury to find express
malice or state[d] . . . differently, the intent to kill, which
comports with [Senate Bill No.] 1437 for aiders and abettors.
“[¶] . . . [¶]
“As such, the court declines to make an order to show
cause.”
Washington timely appealed.
DISCUSSION
Washington is ineligible for section 1172.6 relief as
a matter of law because the record establishes that the jury
convicted him of first degree murder as a direct aider and
abettor—a theory of murder liability that remains valid post-
Senate Bill Nos. 1437 and 775. (See Coley, supra, 77 Cal.App.4th
at p. 546.)
The prosecution presented only one theory of first degree
murder to the jury: that Washington personally harbored the
intent to kill and committed a willful, deliberate, premeditated
killing as a direct aider and abettor. Consistent with this theory,
the trial court instructed the jury on direct aiding and abetting,
and instructed further that the jury could convict Washington
of first degree murder as an aider and abettor only if it found
“a clear, deliberate intent on [his] part . . . to kill.” The court
did not instruct on the felony murder rule, the natural and
probable consequences doctrine, or any other theory pursuant
to which malice may be imputed to a defendant. The record
therefore establishes that, in convicting Washington of first
degree murder, the jury found beyond a reasonable doubt that
he acted with express malice, along with the other requisite
8
elements of the offense. He therefore is categorically ineligible
for section 1172.6 relief. (See Curiel, supra, 15 Cal.5th at p. 462.)
Neither of Washington’s arguments in opposition persuades
us otherwise. Citing no supporting authority,3 Washington first
argues that Officer Arciniega’s testimony that “the purpose of
a drive-by shooting [is] to kill a rival gang member . . . improperly
imputed malice to [Washington] based solely on his participation
in the crime.” He urges that recent amendments to the proof
requirements for section 186.22 gang allegations further
demonstrate the impropriety of Officer Arciniega’s testimony.4
But Officer Arciniega’s testimony did not invite the jury to
impute malice to Washington; to the contrary, Officer Arciniega’s
testimony concerning the purpose of gang drive-by shootings was
itself evidence that Washington personally harbored the intent to
kill Hernandez. And Washington fails to explain adequately the
3 Washington concedes that he has “found no published
case directly addressing whether malice can be imputed based
solely on participation in a drive-by shooting.”
4 As noted, ante, section 186.22, subdivision (b) provides
for an enhanced sentence for “[a] defendant who commits a
felony ‘for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members.’ ”
(People v. Sek (2022) 74 Cal.App.5th 657, 664 (Sek), quoting
§ 186.22, subd. (b)(1).) Assembly Bill No. 333, which took effect
on January 1, 2022, “amended section 186.22 to impose new
substantive and procedural requirements for gang allegations.”
(Id. at p. 665.) “Most notably, the law defined ‘to benefit,
promote, further, or assist’ as ‘to provide a common benefit
to members of a gang where the common benefit is more than
reputational.’ ” (Ibid.)
9
relevance of the amendments to section 186.22 to the issues
presented in this appeal.
Washington’s second argument is similarly unpersuasive.
He concedes that the jury did not convict him pursuant to the
felony murder rule or the natural and probable consequences
doctrine, but argues—relying on Langi—that “the direct aiding
and abetting instructions in this case may have caused the jury
to convict based on imputed malice.”
Langi, however, is distinguishable. In Langi, a jury
convicted the defendant of second degree murder, as one of
four men who had beaten the victim to death. (Langi, supra,
73 Cal.App.5th at p. 975.) The appellate court reversed the
trial court’s summary denial of Langi’s section 1172.6 petition,
explaining that (1) the record did not conclusively establish that
Langi had thrown the fatal punch, and (2) the combination of the
aiding and abetting (CALJIC No. 3.01) and second degree murder
(CALJIC No. 8.31) instructions provided to the jurors created an
ambiguity that permitted them to convict Langi based solely on
an impermissible theory of imputed malice.
The Langi court explained, in relevant part: “The aiding-
and-abetting instruction stated that a person aids and abets a
crime if he or she acts ‘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.’
(CALJIC No. 3.01. . . . ) However, . . . the second degree murder
instruction specified that the direct perpetrator of that crime
need not act with the unlawful intent of causing death. Thus,
while the perpetrator must have deliberately performed the
fatal act ‘with knowledge of the danger to, and with conscious
disregard for, human life’ (CALJIC No. 8.31), his purpose may
have been only to strike or to injure, or conceivably only to
10
embarrass, the victim. Since the perpetrator’s purpose need not
have been to kill the victim, the aider and abettor’s knowledge
of that purpose similarly need not have been knowledge that
the perpetrator aimed to kill. If the perpetrator need not have
had ‘murderous intent,’ certainly the aider and abettor need
not have had such an intent.” (Langi, supra, 73 Cal.App.5th at
pp. 982–983.)
Washington is correct that, as in Langi, the court here
instructed the jury on aiding and abetting using CALJIC
No. 3.01 and on second degree murder using CALJIC No. 8.31.
But in contrast to Langi, the jury convicted both Washington and
Vera of first degree murder. Washington’s jury thus necessarily
determined that he acted with express malice, and his conviction
therefore is untainted by the instructional ambiguity identified
by the Langi court.
Accordingly, the trial court properly denied Washington’s
section 1172.6 petition at the prima facie stage.
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DISPOSITION
We affirm the trial court’s order denying Washington’s
section 1172.6 petition.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
KELLEY, J.*
* Judge of the San Luis Obispo Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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