People v. Salazar CA2/1

Filed 2/18/22 P. v. Salazar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309409
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA044027)
v.
ANTHONY W. SALAZAR et
al.,
Defendants and
Appellants.
THE PEOPLE, B310729
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA044027)
v.
DANIEL T. HIRIARTE,
Defendant and
Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Lillian Vega Jacobs, Judge. Reversed and remanded
with directions.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant Christopher DeHerrera.
Robert D. Bacon, under appointment by the Court of
Appeal, for Defendant and Appellant Daniel T. Hiriarte.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant Anthony W. Salazar.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Allison H. Chung, and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________
Christopher DeHerrera, Daniel Hiriarte, and Anthony
Salazar appeal from trial court orders denying petitions for
resentencing under Penal Code section 1170.95. 1 Based on the
record of conviction in this matter, we cannot conclude that
Salazar, DeHerrera, and Hiriarte are ineligible for relief as a
matter of law. We will therefore reverse the trial court’s orders
and remand. On remand, the trial court will issue orders to show
cause why Salazar, DeHerrera, and Hiriarte are not entitled to
relief under section 1170.95.
BACKGROUND
“Salazar, De[H]errera and Hiriarte were members of the
Maywood Locos gang. On May 31, 1997, Salazar (wearing a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
yellow and blue jacket) met up with De[H]errera and Hiriarte a
few blocks away from Slauson Avenue (the ‘boundary’ between
the Locos gang’s ‘territory’ and the ‘territory’ occupied by the 18th
Street gang). The three men walked across Slauson, into an area
they knew was 18th Street territory. Meanwhile, Victor Vaca
(the victim) and three other men (Javier Perez, Juan Vaca and
Pedro Marin) were ‘socializing’ in a parking lot. Perez saw two
men approach, heard one ask Vaca something about ‘18,’ then
heard and saw a shot. Perez ducked behind a van, then heard
more shots that sounded as though they were coming from two
different guns. Perez stood up and saw two people run through
the parking lot toward the street. One of the shooters (later
identified as Salazar) was wearing a yellow and blue jacket.
“A security guard (Daniel Gonzalez) driving through the
area heard approximately 10 gunshots fired in rapid succession.
He then saw three men dart in front of his car, running away
from the direction of the shooting. One of the men (later
identified as Salazar) was wearing a yellow and blue jacket and
was attempting to keep a small but heavy object in his
waistband. The man in the yellow and blue jacket was about five
feet, six inches tall, ‘a little chubby,’ about 18 to 20 years old,
with a shaved head (the description fits Salazar). The police
arrived within a few minutes and Gonzalez gave them
descriptions of the three men who had run in front of his car.
About five minutes later, Gonzalez positively identified Salazar
(who was running from the area of the shooting when he was
detained by another police officer). Salazar, armed with a loaded
9-millimeter pistol and carrying a can of red spray paint, was still
wearing his blue and yellow jacket. De[H]errera and Hiriarte
were identified by Jack Zebris, another Locos member who had
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been with Salazar earlier in the day and who was present when
Salazar met up with De[H]errera and Hiriarte.
“Salazar, De[H]errera and Hiriarte were charged with
Vaca’s murder. At trial, the People presented evidence of the
facts summarized above. In addition, there was testimony by a
gang expert and other evidence showing that the red paint in
Salazar’s spray can matched paint found on Salazar’s jacket and
on a wall directly across the street from the crime scene (it had
been used to cover 18th Street graffiti with Loco graffiti). Several
.45-caliber casings were recovered from the scene. A .45-caliber
bullet and two .357-caliber bullets were recovered from Vaca’s
body (the .357-caliber gun was found in a nearby trash can. The
.45-caliber gun that matched the bullet found in Vaca’s body was
later found in Salazar’s possession.” (People v. Salazar (Mar. 29,
2000, B127918) at pp. 2-3 [nonpub. opn.] (Salazar I).)
Salazar, DeHerrera, and Hiriarte were each charged with
the first degree murder of Victor Vaca (count 1) and attempted
murder of two other victims (counts 5 and 6). Salazar was also
charged with the murder of a fourth victim (count 2), the
attempted murder of a fifth victim (count 4), and assault with a
firearm on a sixth victim (count 3).
Before closing argument, the People moved to dismiss
counts 3, 4, 5, and 6. Among other jury instructions, the trial
court instructed the jury that “[a] conspiracy is an agreement
between two or more persons with the specific intent to agree to
commit the crime of murder, and with the further specific intent
to commit that crime, followed by an overt act committed in this
state by one or more of the parties for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime,
but is not charged as such in this case.” (CALJIC No. 6.10.5.)
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The trial court further instructed the jury that “[e]ach member of
a criminal conspiracy is liable for each act and bound by each
declaration of every other member of the conspiracy if that act or
declaration is in furtherance of the object of the conspiracy.
[¶] . . . [¶] [A member of a conspiracy is not only guilty of the
particular crime that to [his] . . . knowledge [his] . . . confederates
agreed to and did commit, but is also liable for the natural and
probable consequences of any [crime] [act] of a co-conspirator to
further the object of the conspiracy, even though that [crime] [act]
was not intended as a part of the agreed upon objective and even
though [he] . . . was not present at the time of the commission of
that [crime] [act]. [¶] You must determine whether the
defendant is guilty as a member of a conspiracy to commit the
originally agreed upon crime or crimes[, and, if so, whether the
crime alleged [in Count[s] 1] was perpetrated by [a] co-
conspirator[s] in furtherance of that conspiracy and was a
natural and probable consequence of the agreed upon criminal
objective of that conspiracy].]” (CALJIC No. 6.11, brackets in
original jury instruction.)
After the jury was instructed, and after all three
defendants had closed with argument, the People closed with
final argument before the jury retired to deliberate. The People
explained to the jury that “none of the three [defendants] are
being charged with being the killer in this case. None of the
three are being charged with firing a gun. Under conspiracy law
that doesn’t need to be proved.” Based on the uncharged
conspiracy, the People spent a substantial amount of time in
closing discussing the conspiracy instructions. Pertinent to the
questions on these appeals, as the prosecutor walked through the
law of conspiracy with the jury, the People told the jury:
5
“[W]hat’s interesting is the next paragraph [in CALJIC No. 6.11],
and the next paragraph basically says that even if one of the
three [defendants] didn’t really want to kill somebody and went
there for something a little lesser of a reason, such as to threaten
folks, terrorize them a little bit without necessarily killing
someone, they are still responsible for murder because murder is
a natural and probable consequence of going into rival gang
neighborhood and terrorizing and threatening folks and spray
painting 187 on the wall. [¶] A member of a conspiracy is not
only guilty of the particular crime that, to his knowledge his
confederates agree to and did commit, but is also liable for the
natural and probable consequences of any crime of a
co-conspirator to further the object of the conspiracy, even though
that crime or act was not intended as a part of the agreed-upon
objective and even though he was not present at the commission
of that crime.”
The jury convicted Salazar, DeHerrera, and Hiriarte of first
degree murder on count 1 and found Salazar not guilty of murder
on count 2. We affirmed the trial court’s judgments in Salazar I,
supra, B127918 at page 12.
Salazar, DeHerrera, and Hiriarte each petitioned the trial
court for resentencing under section 1170.95. In each case, the
trial court appointed counsel, and as to Salazar and DeHerrera,
the trial court issued orders to show cause why Salazar and
DeHerrera should not be resentenced.2
2The petitions were initially handled by different trial
judges. Salazar and DeHerrera were initially assigned to the
same trial judge, and Hiriarte was assigned to a different
department (where he had another issue pending in the same
case). All three petitions were ultimately heard by the same trial
6
Salazar’s and DeHerrera’s petitions were heard and denied
on November 20, 2020. The trial court heard and denied
Hiriarte’s petition on February 9, 2021. In each case, the trial
court concluded that the appellants were ineligible for relief
under section 1170.95 as a matter of law because their
convictions were based on the uncharged conspiracy, and were
not based on either felony murder or the natural and probable
consequences doctrine. At Salazar and DeHerrera’s hearing, the
trial court explained that the defendants could “be convicted
today of murder, notwithstanding the changes made to section
188 and 189 under a theory of conspiracy to commit murder. A
reasonable jury could find both defendants guilty of murder with
the requisite mental state for first degree murder based on the
facts . . . evidenced in the record of conviction.”
Salazar, DeHerrera, and Hiriarte filed timely notices of
appeal. We consolidated the matters for argument and opinion.
DISCUSSION
Salazar, DeHerrera, and Hiriarte each contend that their
petitions set forth a prima facie showing to entitlement for relief
under section 1170.95 because the prosecutor’s closing argument
at their trial allowed the jury to convict each of them based on
the natural and probable consequences doctrine. Salazar and
DeHerrera also contend that they were deprived of due process in
the trial court based on the issuance of an order to show cause by
one trial judge and a later denial of their petitions without
judge. The record does not reflect whether the trial court issued
an order to show cause on Hiriarte’s petition, but it is clear from
the record that the trial court appointed counsel for Hiriarte and
allowed briefing on whether Hiriarte’s petition made a prima
facie showing for relief under section 1170.95.
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holding the evidentiary hearing referenced in section 1170.95,
subdivision (d)(1) by a different trial judge. Because we conclude
that Salazar, DeHerrera, and Hiriarte may have been convicted
of murder based on the natural and probable consequences
doctrine, we do not reach Salazar and DeHerrera’s due process
argument.
Section 1170.95 provides, pertinent to these appeals, that
“[a] person convicted of . . . murder under the natural and
probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or any
other theory under which malice is imputed to a person based
solely on that person’s participation in a crime . . . . [¶] (2) The
petitioner was convicted of murder . . . following a trial . . . . [¶]
(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
The statute delineates what constitutes a facially sufficient
petition, and requires the trial court to appoint counsel for the
petitioner upon receiving a facially sufficient petition in which
the petitioner has requested counsel. (§ 1170.95, subd. (b).)
Upon the filing of a facially sufficient petition and the
appointment of counsel, the statute provides for a briefing
schedule, after which the trial “court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
8
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).)
Salazar, DeHerrera, and Hiriarte were convicted of first
degree murder based on an uncharged conspiracy to commit
murder. They contend, however, that the prosecutor’s
explanation of the instructions to the jury may have led the jury
to understand that they could convict the defendants of murder
even if one of the defendants had participated in the conspiracy
with the intent that the group would commit something less than
murder. The appellants focus on this statement in the
prosecutor’s closing argument: “[T]he next paragraph basically
says that even if one of the three [defendants] didn’t really want
to kill somebody and went there for something a little lesser of a
reason, such as to threaten folks, terrorize them a little bit
without necessarily killing someone, they are still responsible for
murder because murder is a natural and probable consequence of
going into rival gang neighborhood and terrorizing and
threatening folks and spray painting 187 on the wall. [¶] A
member of a conspiracy is not only guilty of the particular crime
that, to his knowledge his confederates agree to and did commit,
but is also liable for the natural and probable consequences of
any crime of a co-conspirator to further the object of the
conspiracy, even though that crime or act was not intended as a
part of the agreed-upon objective and even though he was not
present at the commission of that crime.”
The People rely largely on the text of the jury instructions
themselves, and contend that the language in CALJIC No.
6.10.5—“A conspiracy is an agreement between two or more
persons with the specific intent to agree to commit the crime of
9
murder . . .”—controls the outcome here. That argument appears
to have persuaded the trial court. At argument on Salazar’s and
DeHerrera’s petitions, the trial court pointed out that in addition
to the language in CALJIC No. 6.11 and the prosecutor’s closing
argument, “the jury also received an instruction indicating that
the jury had to abide by the instructions given, and counsel’s
argument was that, argument.”
In isolation, the jury instructions appear to support the
People’s argument. The instructions appear on their face to
instruct the jury that to find any defendant guilty, the jury must
conclude that the defendant had the “specific intent to agree to
commit the crime of murder.” The jury was instructed in CALJIC
No. 1.00 that it “must accept and follow the law as [the trial
court] state[s] it . . .,” and “[i]f anything concerning the law said
by the attorneys in their arguments or at any other time during
the trial conflicts with [the trial court’s] instructions on the law,
[the jury] must follow [the trial court’s] instructions.”
The last thing the jury heard before it retired to deliberate,
however, was an explanation of the natural and probable
consequences doctrine that would have allowed the jury to convict
any one of the defendants based on the natural and probable
consequences doctrine even if that particular defendant had
participated in the conspiracy without understanding that the
objective was murder.
We view the analysis here as similar to our analysis in
People v. Offley (2020) 48 Cal.App.5th 588. There, we said, “we
cannot rule out the possibility that the jury relied on the natural
and probable consequences doctrine in convicting Offley. The
trial court instructed the jury on the natural and probable
consequences doctrine as part of its instruction on conspiracy
10
liability: ‘A member of a conspiracy is not only guilty of the
particular crime that to his knowledge his confederates agreed to
and did commit, but is also liable for the natural and probable
consequences of any crime of a co–conspirator to further the
object of the conspiracy, even though that crime was not intended
as a part of the agreed upon objective and even though he was
not present at the time of the commission of that crime.’
“The prosecutor argued that the jury could convict the
defendants on the basis of this instruction. In closing arguments,
the prosecutor argued that the defendants were part of a
conspiracy, that the ‘common design of [the] conspiracy’ was
‘assault with a firearm,’ and that any member of the conspiracy
was ‘guilty of, not only that particular crime, but also the natural
and probable consequence of any crime of the co-conspirator.’
“We cannot exclude the possibility that the jury believed
Offley acted without intending to kill Barrales or consciously
disregarding that risk. The jury might have concluded that
Offley intended to take part in a conspiracy to commit assault
with a firearm, or to fire into an occupied vehicle, with the aim of
either injuring or merely frightening Barrales. The jury could
have then concluded that Barrales’s death was the natural and
probable consequence of the conspiracy and convicted him of
murder without finding beyond a reasonable doubt that he acted
with malice aforethought. For this reason, we cannot say that
Offley ‘is ineligible for relief as a matter of law.’ ” (People v.
Offley, supra, 48 Cal.App.5th at p. 599.)
We disagree with the trial court’s conclusion that the jury
instructions themselves cured the problem created by the
prosecutor’s argument in this case. Our Supreme Court has
explained that “ ‘[w]hen argument runs counter to instructions
11
given a jury, we will ordinarily conclude that the jury followed
the latter and disregarded the former, for “[w]e presume that
jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.” ’ ” (People v. Centeno (2014)
60 Cal.4th 659, 676.) As in Centeno, however, “[t]hose saving
factors are not present here.” (Ibid.) In Centeno, the Supreme
Court explained that “[t]here was no reason for the jury to reject
the prosecutor’s hypothetical. It did not directly contradict the
trial court’s instruction on proof beyond a reasonable doubt, but
instead purported to illustrate that standard.” (Ibid., italics
added.)
Similarly, the prosecutor’s statement here did not
contradict the trial court’s instruction about what the People had
to prove on the uncharged conspiracy theory for the jury to find
the defendants all guilty of murder. Rather, the prosecutor’s
statement purported to explain the instruction—to tell the jury
specifically that they could convict any one of the defendants for
murder even if they concluded that the particular defendant
participated with an understanding that they were conspiring to
commit some lesser crime.
In Centeno, as here, the trial court did not reinstruct on the
concept affected by the prosecutor’s argument. “As a result, the
prosecutor’s argument was the last word on the subject.” (People
v. Centeno, supra, 60 Cal.4th at p. 677.)
As in Offley, we cannot say here that Salazar, DeHerrera,
and Hiriarte are ineligible for relief as a matter of law.
DISPOSITION
The trial court’s orders are reversed. On remand the trial
court will issue orders to show cause why the appellants are not
12
entitled to relief under section 1170.95, subdivision (c) and
conduct further proceedings in accordance with section 1170.95.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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