People v. Koufos CA2/4

Filed 9/13/21 P. v. Koufos CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B308387
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA025454)
v.
NICHOLAS RAYMOND
KOUFOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa Mangay Chung, Judge. Affirmed.
Spolin Law P.C., Aaron Spolin, for Defendant and
Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Amanda V.
Lopez and Stephanie A. Miyoshi, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________________________________
INTRODUCTION
Nicholas Raymond Koufos appeals from the trial
court’s order denying his petition under Penal Code section
1170.95 (Section 1170.95) to vacate his conviction for first
degree murder. We affirmed his conviction in a prior,
unpublished opinion. (People v. Koufos (June 1, 2005, No.
B174165) [nonpub. opn.] 2005 Cal.App.Unpub. LEXIS 4826.)
In his petition, Koufos alleged he had been convicted under
the felony murder rule or the natural and probable
consequences doctrine, as required to establish eligibility for
relief under Section 1170.95. In response, the People
submitted the jury instructions given at Koufos’s trial, which
omitted any instruction on the felony murder rule or the
natural and probable consequences doctrine. The jury was
instructed on only one theory of first degree murder, viz.,
premeditation and deliberation, requiring a finding of
express malice. The jury was also instructed on second
degree implied-malice murder, which required, inter alia, a
finding that Koufos committed an act with “natural
consequences” dangerous to human life.
The trial court appointed counsel for Koufos, who filed
a reply brief acknowledging that the jury was not instructed
on the felony murder rule or the natural and probable
2
consequences doctrine. The court stated that neither theory
had been presented at Koufos’s trial, and concluded that he
had failed to make a prima facie showing of entitlement to
relief.
Koufos contends the trial court erred by denying his
petition without ordering an issue to show cause, arguing he
made a prima facie showing of eligibility for relief because
the jury instructions, by defining implied malice as requiring
an act with “natural consequences” dangerous to human life,
allowed the jury to convict him of murder under the natural
and probable consequences doctrine. He acknowledges that
an identical interpretation of implied malice instructions
was rejected in People v. Soto (2020) 51 Cal.App.5th 1043,
review granted, Sept. 23, 2020, S263939 (Soto), which he
asserts was wrongly decided. Finding no error, we affirm.
BACKGROUND
A. Koufos’s Conviction1
In 2003, Koufos and several codefendants, including
DeWayne Ray Strong, were charged with the murder of
Carlos Ochoa. At Koufos’s trial, the prosecution evidence
established that Ochoa’s body was found in the desert near
Lancaster, heavily charred by a fire that appeared to have
been deliberately set. Autopsy results indicated that Ochoa
1 The facts in this subsection are taken from our prior
opinion. (People v. Koufos, supra, 2005 Cal.App.Unpub. LEXIS
4826, at *1-*9, *13-*18.)
3
had died from strangulation, and had sustained blunt force
trauma. Ochoa’s car was reported stolen, and a sheriff’s
deputy found the car being driven by Koufos’s codefendant
Strong, with its trunk smelling of gasoline.
The prosecution’s principal witnesses, David Valdez
and Jonathan Avery, testified as follows: On August 29,
2002, Koufos, Strong, Valdez, Avery, and Ochoa, along with
two others, spent time together outside Valdez’s trailer.
Koufos suddenly placed Ochoa in a “full nelson” grip, and
Strong punched Ochoa, knocking him out. Koufos (assisted
by Strong, according to Valdez) brought the unconscious
Ochoa into the trailer. Strong and the other two men joined
Koufos in the trailer. After some minutes (during which
Valdez heard a running or pounding noise inside the trailer),
Koufos and the other men emerged from the trailer without
Ochoa. Although Valdez and Avery did not testify directly to
this fact, their testimony and other evidence implied that
Koufos or another man placed Ochoa’s body in the trunk of
his car, which was parked nearby. Koufos and Strong drove
Ochoa’s car into the desert, followed by the other men (in
Avery’s car). On the way, Koufos and the other men stopped
at a gas station and filled a gas can, which was apparently
placed in Ochoa’s car. Ochoa’s car, occupied by Koufos and
Strong, halted at a location in the desert. The men then
drove off, and Avery saw a fire nearby.
Another witness, Tonya Downing, testified that Koufos
and Strong visited her home in Lancaster on the day they
allegedly killed Ochoa, and that Strong, in Koufos’s
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presence, told her “they had to go handle something.” They
then drove away together. When Downing saw Strong the
next morning, he had a bloody, “busted-open” knuckle and
smelled as if he had been at a brush fire.
Koufos admitted in his testimony that he accompanied
Strong to Downing’s home and to Valdez’s trailer on the day
of Ochoa’s death, and that when Ochoa arrived at the trailer,
one of the other men made a comment Koufos understood to
mean that Ochoa would receive “one hit.” Koufos further
admitted that he grabbed Ochoa (allegedly at the request of
another man), and that after Strong punched Ochoa, Koufos
helped carry him into the trailer’s back room. Koufos
claimed he neither saw nor heard any activity in the back
room, as he waited in a separate room. Koufos admitted
that after he and the other men drove into the desert in
Ochoa’s car, he saw Ochoa in the trunk of the vehicle. He
further admitted that he and Strong then bought gas and
returned to the desert. He claimed another man used the
gas to drench Ochoa’s body and set it on fire.
During closing arguments, the prosecutor argued at
length that Koufos’s and Strong’s conduct established their
shared intent to kill Ochoa. He indicated that Strong’s
alleged remark to Downing that he and Koufos needed to
handle something, though ambiguous, was evidence of
premeditation and deliberation. The prosecutor then
reaffirmed at length that “even that [remark] aside,”
Koufos’s conduct in conjunction with Strong’s, betrayed a
“preplanned action,” evidenced by their “coordinated actions
5
without communication” (i.e., Koufos’s grabbing Ochoa
before Strong knocked him out and immediately thereafter
carrying him into the trailer, without discussion).
The jury found Koufos guilty of first degree murder.
Koufos was sentenced to 25 years to life in state prison. He
appealed the judgment, contending, inter alia, that his trial
counsel was ineffective for failing to raise a hearsay objection
to Downing’s testimony about Strong’s alleged remark. We
concluded that counsel’s performance was not deficient, as
the record disclosed a rational tactical basis for the
challenged omission. We further concluded that Koufos
could not have been prejudiced by his counsel’s failure to
object to Downing’s testimony, explaining, in relevant part:
“Downing’s testimony suggests that appellant shared
Strong’s intent to kill Ochoa, and thus it merely corroborates
Avery’s and Valdez’s testimony on this matter. As depicted
by Avery and Valdez, appellant was a full participant in
Ochoa’s killing throughout the crime: appellant placed
Ochoa in a full nelson grip while Strong knocked him
unconscious; appellant helped carry Ochoa into the trailer;
Strong and appellant later drove Ochoa’s car -- with Ochoa’s
body in the trunk -- into the desert; and appellant and
Strong were alone with Ochoa’s body when the fire was set.”
We affirmed the judgment.
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B. Koufos’s Petition
In April 2019, Koufos filed a petition in propria
2
persona for postconviction relief under Section 1170.95. By
checking boxes on a form petition, he alleged that he was
convicted at trial “pursuant to the felony murder rule or the
natural and probable consequences doctrine,” and that under
the law as modified by Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (SB 1437), he could not now be convicted of murder.
At his request, the trial court appointed counsel to represent
him.
In August 2019, the People filed a response to Koufos’s
petition, arguing Koufos was ineligible for relief as a matter
of law because the jury had not been instructed on the felony
murder rule or the natural and probable consequences
doctrine. As exhibits, the People submitted our opinion
affirming the judgment, the verdict convicting appellant of
first degree murder, and the jury instructions given at
Koufos’s trial. The sole instruction on first degree murder
(CALJIC No. 8.20) defined it as murder “perpetrated by any
kind of wilfull, deliberate and premeditated killing with
express malice aforethought,” and provided that a conviction
for first degree murder required a finding of “intent on the
part of the defendant to kill, which was the result of
deliberation and premeditation . . . .” The instruction on
malice aforethought (CALJIC No. 8.11) defined express
2 Koufos filed a substantively identical petition in February
2020.
7
malice as an intent to kill, and defined implied malice as
requiring the following elements: “1. The killing resulted
from an intentional act; [¶] 2. The natural consequences of
the act are dangerous to human life; and [¶] 3. The act was
deliberately performed with knowledge of the danger to, and
with conscious disregard for, human life.” The jury was not
instructed on the felony murder rule or the natural and
3
probable consequences doctrine.
In July 2020, through his appointed counsel, Koufos
filed a reply in support of his petition. Koufos acknowledged
that the jury was not instructed on the felony murder rule or
the natural and probable consequences doctrine. He further
acknowledged that even after SB 1437’s amendments to
Penal Code sections 188 and 189, a defendant may be
convicted of murder if he was the actual killer or a direct
aider and abettor. Nevertheless, Koufos urged the court to
grant his petition on the ground that the prosecution failed
to prove he was the actual killer.
3 The jury received two instructions on aiding and abetting:
(1) CALJIC No. 3.00, which provided that principals guilty of a
crime include those who aid and abet the crime’s commission; and
(2) CALJIC No. 3.01, which provided that a person aids and abets
a crime’s commission when he or she aids, promotes, encourages
or instigates its commission by a perpetrator, with knowledge of
the perpetrator’s unlawful purpose and with the intent to
commit, encourage, or facilitate the crime’s commission. Neither
instruction articulated the natural and probable consequences
doctrine, which is the subject of a different CALJIC instruction,
viz., CALJIC No. 3.02.
8
At an August 2020 hearing on the petition, Koufos’s
counsel stated, “[I]t appears that the prosecution’s theory in
the matter was [direct] aiding and abetting. It does not
appear that natural [and] probable consequences or felony
murder were argued. That appears to be the state of the
case. I filed an 1170.95 response to the People’s reply in the
matter. And based upon that, the gentleman would seek
relief in the case, but I also understand the state of the law.
So submitted.” The People submitted on the briefs. The
court denied Koufos’s petition, concluding he had failed to
make a prima facie showing of eligibility for relief because
the record of conviction showed that the jury was not
instructed on (and the prosecution did not argue) the felony
murder rule or the natural and probable consequences
doctrine.
DISCUSSION
A. Principles
“Before [SB] 1437, the felony-murder rule and the
natural and probable consequences doctrine were exceptions
to the actual malice requirement [for murder liability]. The
felony-murder rule made ‘a killing while committing certain
felonies murder without the necessity of further examining
the defendant’s mental state.’ . . . The natural and probable
consequences doctrine made ‘a person who aids and abets a
confederate in the commission of a criminal act . . . liable not
only for that crime (the target crime), but also for any other
offense (nontarget crime) [including murder] committed by
9
the confederate as a “natural and probable consequence” of
the crime originally aided and abetted.’” (People v. Johns
(2020) 50 Cal.App.5th 46, 57-58.) SB 1437 amended Penal
Code sections 188 and 189 to eliminate murder liability
under the natural and probable consequences doctrine, and
to narrow the felony murder rule. (See People v. Johns,
supra, 50 Cal.App.5th at 58-59; Pen. Code, §§ 188, subd.
(a)(3), 189, subd. (e); Stats. 2018, ch. 1015, §§ 2-3).
SB 1437 also enacted Section 1170.95. (See Stats.
2018, ch. 1015, § 4.) This section permits a defendant who
was convicted of felony murder or murder under a natural
and probable consequences theory, but who could not be
convicted of murder following SB 1437’s changes to the law,
to petition the sentencing court to vacate the conviction.
(Pen. Code, § 1170.95, subd. (a).) After ascertaining that the
petition includes certain basic information, the court must
appoint counsel for the petitioner (if requested), receive the
People’s response to the petition, allow the petitioner to file a
reply, and determine whether the petitioner has made a
prima facie showing of entitlement to relief. (Id., § 1170.95,
subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 960-968
(Lewis).) If the court determines the petitioner has made a
prima facie showing, it must issue an order to show cause.
(Pen. Code, § 1170.95, subd. (c).) If the parties do not
thereafter stipulate that the petitioner is entitled to relief,
the court must hold a hearing and, if the prosecution fails to
prove the petitioner’s ineligibility for relief beyond a
10
reasonable doubt, vacate the petitioner’s murder conviction.
(Id., § 1170.95, subd. (d).)
“The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section 1170.95,
allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra,
11 Cal.5th at 971.) “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.’” (Id. at 972.) “‘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.”’” (Id. at 971.)
B. Analysis
The trial court did not err in denying Koufos’s petition
without issuing an order to show cause (after allowing
Koufos to brief the petition with the assistance of appointed
counsel), because the record of conviction refuted Koufos’s
allegation that he had been convicted under the felony
murder rule or the natural and probable consequences
doctrine. As Koufos’s counsel acknowledged, the jury
instructions given at his trial omitted any instruction on
either theory. The omission of such instructions established,
as a matter of law, that Koufos was not entitled to relief
under Section 1170.95. (See Soto, supra, 51 Cal.App.5th at
1055, rev.gr. [“the jury instructions in this case demonstrate,
11
on their face and as a matter of law, that Soto was not and
could not have been convicted of second degree murder
under the natural and probable consequences doctrine. This
is so because the jurors were not provided any instruction on
which they could have found Soto guilty of murder under
that doctrine”]; People v. Daniel (2020) 57 Cal.App.5th 666,
677, review granted Feb. 24, 2021, S266336 [“no instructions
were given on felony murder or murder under the natural
and probable consequences doctrine. Thus, Daniel is not ‘[a]
person convicted of felony murder or murder under a natural
and probable consequences theory,’ and he is therefore
ineligible for relief as a matter of law” (footnote omitted)].)
The jury’s verdict and our prior opinion, considered in
conjunction with the jury instructions, confirmed Koufos’s
ineligibility as a matter of law. Premeditation and
deliberation was the only theory of first degree murder on
which the jury was instructed. It was also the theory argued
by the prosecutor, in principal reliance on Valdez’s and
Avery’s testimony indicating Koufos was a “full participant
in Ochoa’s killing throughout the crime.” In light of the
instructions and the prosecutor’s argument, the jury’s
verdict finding Koufos guilty of first degree murder
necessarily reflected a finding that Koufos, acting on a
premeditated intent to kill, either killed Ochoa or directly
aided and abetted the killing. As Koufos’s counsel
acknowledged, SB 1437 did not affect murder convictions
based on such findings. Because Koufos was convicted under
a theory that remains valid after SB 1437, he is ineligible for
12
relief under Section 1170.95. (See Pen. Code, § 1170.95,
subd. (a)(3) [petitioner is eligible for relief only if, inter alia,
“[t]he petitioner could not [now] be convicted of first or
second degree murder because of changes to Section 188 or
4
189 made [by SB 1437]”].)
Koufos suggests the jury might have convicted him
under the natural and probable consequences doctrine
pursuant to the pattern instruction on malice aforethought
(CALJIC No. 8.11), seizing on this instruction’s reference to
the “natural consequences” of his acts in defining implied
malice. In so doing, Koufos not only overlooks the jury’s
finding of express malice, but also misrepresents the
relationship between implied malice and the natural and
probable consequences doctrine. At Koufos’s trial, the sole
jury instruction on first degree murder defined it as murder
“perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought . . . .”
4 Koufos emphasizes another condition for relief under
Section 1170.95, viz., that “[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.” (Pen.
Code, § 1170.95, subd. (a)(1), italics added.) It is immaterial
whether this single condition was satisfied. The record of
conviction showed that the prosecution did not proceed under
either specified theory, regardless of whether it had been allowed
to do so, and that Koufos was instead convicted under a theory
that remains valid after SB 1437, rendering him ineligible for
relief under Section 1170.95. (See id., § 1170.95, subd. (a)(3).)
13
(Italics added.) By convicting Koufos of first degree murder,
the jury necessarily found he acted with express malice,
rendering CALJIC No. 8.11’s definition of implied malice
immaterial. (Cf. People v. Jackson (1989) 49 Cal.3d 1170,
1199 [“in view of the jury having found a premeditated,
deliberate, first degree murder, any error in failing to
instruct on implied-malice second degree murder would
clearly be harmless”].) In any event, CALJIC No. 8.11 did
not allow the jury to convict Koufos under the natural and
probable consequences doctrine, which imposes vicarious
liability on a defendant for the unintended consequences of
the acts of another, by defining implied malice with
reference to the “natural consequences” of Koufos’s own acts.
(See People v. Daniel, supra, 57 Cal.App.5th at 677, fn. 4,
rev.gr.; cf. People v. Clements (2021) 60 Cal.App.5th 597,
618, review granted April 28, 2021, S267624 [“Though [SB
1437] abolished the natural and probable consequences
doctrine, it maintained the viability of murder convictions
based on implied malice, and the definition of implied malice
remains unchanged”].) We agree with Soto on this point.
(See Soto, supra, 51 Cal.App.5th at 1059, rev.gr. [“The
‘natural consequences’ language in the instruction for second
degree [implied-malice] murder does not transform Soto’s
conviction [for such murder] into one for murder under the
natural and probable consequences doctrine within the
meaning of section 1170.95”].)
In sum, as Koufos’s counsel implicitly conceded at the
hearing on his petition, the record of conviction refuted his
14
allegation that he had been convicted under the felony
murder rule or the natural and probable consequences
doctrine. Absent that predicate, Koufos could not make a
prima facie showing of eligibility for relief under Section
1170.95. (See Lewis, supra, 11 Cal.5th at 971-972.)
Accordingly, the trial court did not err in denying Koufos’s
petition without issuing an order to show cause.
15
DISPOSITION
The order denying Koufos’s petition for relief under
Penal Code section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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