People v. Thomas CA1/1 ( 2024 )

Filed 10/30/24 P. v. Thomas CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A169793
v. (Alameda County
ELIJAH THOMAS, Super. Ct. No. 159964B)
Defendant and Appellant.
Elijah Thomas appeals from the trial court’s denial of his petition
under Penal Code1 section 1172.6. Thomas claims he made a prima facie
showing under that section, entitling him to a hearing on whether his
conviction for attempted murder must be vacated.
The trial court correctly determined Thomas is not eligible for relief
under section 1172.6 because the record of conviction conclusively
demonstrates that he was not convicted of attempted murder under the
natural and probable consequences doctrine. We shall affirm.
1 Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Thomas Is Convicted of Attempted Murder
Thomas’s conviction arose from a shooting he perpetrated with a
codefendant, Mark Candler.2 The shooting victim was a leader in an
Oakland street gang who got into a confrontation with a rival gang member
associated with Candler. Later in the same day as that confrontation,
Thomas and Candler arrived at the victim’s location in two separate vehicles,
each armed. Police heard over 30 gunshots fired in rapid succession and
encountered a vehicle fleeing the scene, but were unable to apprehend it.
There were numerous shell casings from two different weapons at the scene,
and “pock-marked” homes from gunfire, but no witnesses would speak to the
police. Two years after the events, witnesses including the victim made
statements to the police identifying Candler and Thomas as the shooters. By
the time of trial, the victim had been killed and the other witnesses recanted.
Their prior statements were related to the jury through recordings or the
testimony of investigating officers.
Thomas and Candler were charged with attempted murder (§§ 187,
subd. (a), 664) and shooting at an inhabited dwelling (§ 246). Each charge
was accompanied by allegations that the defendants acted in association with
a criminal street gang (§ 186.22, subd. (b)(1)) and personally discharged a
2 We recite, for context, the factual background of the shootings as
described in our prior opinion in this case (People v. Thomas (May 22, 2012,
A130350) [nonpub. opn.]). We do not consider the factual background in
assessing the merits of the appeal based on the trial court’s denial of the
section 1172.6 petition at the prima facie stage. (See People v. Beaudreaux
(2024) 100 Cal.App.5th 1227, 1237–1238.) We do not consider the more
detailed factual background set forth in the People’s brief. That background
is apparently drawn from the record in Thomas’s prior appeal, which is not
before us.
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firearm causing great bodily injury (§§ 12022.7, subd. (a), 12022.53,
subds. (b), (c) & (d), 12022.5, subd. (a)).
The jury was instructed on the elements of the two counts.3 The
attempted murder instruction required the People to prove a defendant both
(1) “took direct but ineffective steps” to kill another person and (2) “intended
to kill that person” to establish guilt. (Former CALCRIM No. 600.) The jury
was instructed with former CALCRIM No. 400 as follows: “A person may be
guilty of a crime in two ways. One, he or she may have directly committed
the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime. A person
is guilty of a crime whether he or she committed it personally or aided and
abetted the perpetrator. [¶] Under some specific circumstances, if the
evidence establishes aiding and abetting of one crime, a person may also be
found guilty of other crimes that occurred during the commission of the first
crime.” The jury was instructed in relevant part that to prove guilt through
aiding and abetting, the People must prove that the perpetrator committed
the crime, the defendant “knew that the perpetrator intended to commit the
crime,” “intended to aid and abet the perpetrator in committing the crime,”
and provided such assistance in fact. (CALCRIM No. 401.) There was only
one instruction that referenced natural and probable consequences, which we
recite in full given its centrality to this appeal: “Under certain
3 The People submitted the jury instructions with their response to
Thomas’s section 1172.6 petition. According to Thomas’s reply, the “court file
in [his] case does not contain any information about what instructions were
given to the jury,” but his codefendant’s file “contain[s] a copy of certain jury
instructions with a paper cover sheet indicating [they] were given to the jury”
in both cases. Thomas did not object to the trial court’s reliance on the
instructions submitted below and does not object to us relying on them now.
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circumstances, a person who is guilty of one crime may also be guilty of other
crimes that were committed at the same time. In these circumstances, a
person who aids and abets the commission of one offense—called the ‘target
offense’—may be guilty of another offense that is the natural and probable
consequence of the target offense—called the ‘non-target offense.’ [¶] To prove
that the defendant is guilty of shooting at an inhabited house under this
theory, the People must prove that:
“1. The defendant is guilty of attempted murder;
“2 During the commission of the attempted murder, a coparticipant
in that crime committed the crime of shooting at an inhabited house; [¶] AND
“3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of shooting at an
inhabited house was a natural and probable consequence of the commission
of the attempted murder.
“A coparticipant in a crime is the perpetrator or anyone who aided and
abetted the perpetrator. It does not include a victim or innocent bystander.
[¶] 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. If the shooting at an inhabited house was
committed for a reason independent of the common plan to commit the
attempted murder, then the commission of the shooting at an inhabited
house was not a natural and probable consequence of the attempted murder.
[¶] To decide whether the crime of shooting at an inhabited house was
committed, please refer to the separate instructions that I give you on that
crime.” (CALCRIM No. 402.)
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After a joint trial, the jury found Thomas and his codefendant guilty as
charged and found the enhancement allegations true. Thomas was sentenced
to 40 years to life in prison.
B. Section 1172.6
Attempted murder requires a specific intent to kill. (People v. Mumin
(2023) 15 Cal.5th 176, 190.) When Thomas was convicted, a defendant could
be liable for attempted murder under the theory that the defendant aided
and abetted a crime where attempted murder was a natural and probable
consequence. (People v. Estrada (2024) 101 Cal.App.5th 328, 336.) “Under
the law at that time, it was not necessary to prove that the defendant
intended that the attempted murder be committed or even that the defendant
subjectively foresaw that attempted murder could result.” (Ibid.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) (Stats.
2018, ch. 1015) ended this form of liability for attempted murder by
amending section 188 to provide that “ ‘[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.’ ” (People v. Curiel
(2023) 15 Cal.5th 433, 449 (Curiel); People v. Sanchez (2022) 75 Cal.App.5th
191, 196 (Sanchez).) The legislation created a procedure (then embodied in
section 1170.95) for those convicted of murder under the natural and
probable consequences doctrine to seek relief. (Curiel, at p. 449.) Senate Bill
No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551) clarified and amended
the statute, extending it to those convicted of attempted murder under the
natural and probable consequences doctrine (§ 1172.6, subd. (a)(1)). (See
People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3.) The Legislature
renumbered former section 1170.95 to section 1172.6. (Delgadillo, at p. 223,
fn. 3.)
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The statutory procedure “ ‘begins with the filing of a petition containing
a declaration that all requirements for eligibility are met ([§ 1172.6],
subd. (b)(1)(A)), including that “[t]he petitioner could not presently be
convicted of . . . attempted murder because of [the] change[] to . . . Section 188
. . .” . . . (§ 1172.6, subd. (a)(3)).’ ” (Curiel, supra, 15 Cal.5th at p. 450.) If the
petition is facially adequate, the trial court must appoint counsel for the
petitioner upon request. (§ 1172.6, subd. (b)(3).) Briefing is submitted and a
hearing is held. (Id., subd. (c).) The court must “ ‘ “determine whether the
petitioner has made a prima facie case for relief.” (§ 1172.6, subd. (c);
[citation].) If the petition and record in the case establish conclusively that
the defendant is ineligible for relief, the trial court may dismiss the petition.
(See § 1172.6, subd. (c); [citation].)’ ” (Curiel, at p. 450.) If not, the court
must issue an order to show cause and hold a further hearing to determine
whether to vacate the conviction and resentence the petitioner on any
remaining counts. (Ibid.; § 1172.6, subds. (c) & (d).)
C. The Trial Court Denies Thomas’s Section 1172.6 Petition
Thomas filed a facially valid section 1172.6 petition. The trial court
appointed counsel for Thomas and ordered the People to file a response.
In their response, the People argued Thomas failed to show he could
not be convicted of attempted murder under current law, since the natural
and probable consequences instruction in his case identified attempted
murder as the target offense to support a conviction for shooting at an
inhabited dwelling. Thomas filed a reply, urging that since the jury was
never told not to “apply the instruction in the reverse” to find him guilty of
attempted murder as a consequence of shooting at an inhabited dwelling, the
record did not conclusively show he was not convicted on that theory.
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The trial court heard oral argument and found Thomas had failed to
make a prima facie showing. The court noted that it “went through the
record of conviction,” specifically “the jury instructions” and “the verdict
forms.” The court observed that “the only place in these instructions where
natural and probable consequences comes up is in [CALCRIM No.] 402,”
which “requires the jury to [find]” the defendant “guilty of attempted murder”
as the target offense. The court deemed it mere “speculation” and not
“reasonable” to conclude the jury might have ignored the specific direction
provided by that instruction and “flipped” it to find Thomas guilty of
attempted murder on a natural and probable consequences theory. The court
denied Thomas’s petition.
II. DISCUSSION
Thomas claims the record before the trial court did not establish he was
ineligible for relief under section 1172.6, so the court erred in denying his
petition. We disagree.
A. Standard of Review
A trial court’s decision to deny a section 1172.6 petition at the prima
facie stage “ ‘ “is a purely legal conclusion, which we review de novo.” ’ ”
(People v. Lovejoy (2024) 101 Cal.App.5th 860, 865 (Lovejoy).) “In making its
evaluation, the court may review the record of conviction—including the
charging documents, jury instructions, verdicts, and to a limited extent any
prior appellate opinion—to determine if the petitioner’s allegations are
conclusively rebutted by the record.” (Id. at pp. 864–865.) “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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 972.) “At the
prima facie stage, a court must accept as true a petitioner’s allegation that he
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. . . could not currently be convicted of a homicide offense . . . , unless the
allegation is refuted by the record. [Citation.] And this allegation is not
refuted by the record unless the record conclusively establishes every element
of the offense.” (Curiel, supra, 15 Cal.5th at p. 463.) “[F]actual findings . . .
necessarily reflect[ed]” by the jury’s verdicts are preclusive. (Id. at p. 465.)
“As a ‘general rule,’ courts presume that juries can and will dutifully follow
the instructions they are given, including instructions that limit a jury’s
consideration of evidence for certain purposes.” (People v. Washington (2017)
15 Cal.App.5th 19, 26.)
B. Analysis
The trial court correctly determined based on the given instructions
that the jury’s necessary findings of fact established conclusively that
Thomas’s attempted murder conviction was not based on the natural and
probable consequences doctrine. As we have recited, the jury was instructed
they could convict Thomas of committing attempted murder in two ways:
either “directly” or by “aid[ing] and abett[ing] a perpetrator, who directly
committed the crime.” (CALCRIM No. 400.) If the jury determined Thomas
directly committed attempted murder, they necessarily found that he acted
with intent to kill. (CALCRIM No. 600.) To convict Thomas on an aiding and
abetting theory, the jury was instructed that they were required to find that
Thomas “knew that the perpetrator intended to commit the crime,” “intended
to aid and abet the perpetrator in committing the crime,” and provided such
assistance in fact. (CALCRIM No. 401.) The attempted murder instruction,
in turn, required the perpetrator to act with specific “inten[t] to kill” the
victim. (CALCRIM No. 600.) Thus, to find guilt as an aider and abettor, the
jury necessarily found that Thomas knew his codefendant intended to kill the
victim and intentionally aided him with knowledge of his unlawful purpose—
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“the very definition of express malice.” (People v. Lee (2023) 95 Cal.App.5th
1164, 1191.) This theory of “[d]irect aiding and abetting remains a valid
theory of attempted murder,” and a defendant convicted on this theory is
ineligible for relief under section 1172.6. (People v. Coley (2022)
77 Cal.App.5th 539, 548; see also People v. Lee, at pp. 1190–1191.)
Thomas contends the jury could also have convicted him on a natural
and probable consequences theory of attempted murder by finding that his
codefendant—but not Thomas himself—intended and perpetrated attempted
murder, while Thomas merely intended to shoot at an inhabited dwelling and
aided and abetted his codefendant in doing the same. This argument is not
just implausible, it is refuted by the jury instructions and the jury’s verdict.4
The jury instructions given here included the natural and probable
consequences doctrine. The trial court instructed with CALCRIM No. 400
that “[u]nder some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be found guilty of other crimes
that occurred during the commission of the first crime.” Taken in isolation,
such an instruction might be susceptible to the reading that Thomas
suggests. But the court went on to explain those “specific circumstances”
with CALCRIM No. 402—which only allowed the jury to apply the natural
and probable consequences doctrine as a basis for liability for shooting at an
inhabited house after they had concluded that Thomas intended to commit or
4 To the extent Thomas claims he could have been convicted on some
other theory of imputed malice because “[t]he aiding and abetting
instructions” did not themselves require a finding that he “personally acted
with express malice,” such argument cannot even theoretically establish a
prima facie case. “[S]ubdivision (a)(1) of section 1172.6 ‘applies by its terms
only to attempted murders based on the natural and probable consequences
doctrine.’ ” (Lovejoy, supra, 101 Cal.App.5th at p. 865.)
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directly aid and abet attempted murder. CALCRIM No. 402 was limited to
use of the natural and probable consequences doctrine to prove a defendant
“guilty of shooting at an inhabited house.” To find Thomas guilty of shooting
at an inhabited house on this theory, the jury first had to find “[t]he
defendant is guilty of attempted murder” as the target offense, and “[d]uring
the commission of the attempted murder, a coparticipant in that crime
committed the crime of shooting at an inhabited house.” As noted above, both
attempted murder theories on which the jury was instructed remain valid
under current law.
Thomas claims that because the instructions did not specifically forbid
the jury from “ ‘flipp[ing]’ ” the natural and probable consequences theory to
find a defendant guilty of attempted murder perpetrated by a coparticipant in
a target offense of shooting at an inhabited dwelling, we cannot conclusively
know they did not. However, CALCRIM No. 400 did not say the jury could
find a defendant who aided and abetted one crime guilty of a second crime
without limitation, but expressly qualified the concept. CALCRIM No. 402
followed with the details. CALCRIM No. 200 instructed the jury to pay
careful attention to all of the instructions and consider them together. “ ‘We
assume the jury followed the instructions rather than disregarding them.’ ”
(People v. Estrada (2022) 77 Cal.App.5th 941, 948 [no prima facie case where
CALCRIM No. 400 referenced the natural and probable consequences
doctrine but the prosecutor never requested instructions identifying the
target offense, such as CALCRIM No. 402]; cf. Sanchez, supra,
75 Cal.App.5th at pp. 193–195 [prima facie case established where CALCRIM
No. 402 identified the target offense as assault with a firearm and the
nontarget offense as attempted murder].) Thomas provides no authority
suggesting a prima facie showing under section 1172.6 can be based on a
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natural and probable consequences theory on which the jury was not
instructed. To the contrary, “if the jury did not receive an instruction on the
natural and probable consequences doctrine, the jury could not have
convicted the defendant on that basis, and the petition should be summarily
denied.” (People v. Offley (2020) 48 Cal.App.5th 588, 599.)
III. DISPOSITION
The trial court’s order denying Thomas’s section 1172.6 petition is
affirmed.
HILL, J.*
WE CONCUR:
HUMES, P. J.
LANGHORNE WILSON, J.
* Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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