People v. Pswatai CA4/1

Filed 3/8/23 P. v. Pswatai CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080367
Plaintiff and Respondent,
v. (Super. Ct. No. FBA800772)
DUDZAI PROSPER PSWATAI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino,
John P. Vander Feer, Judge. Reversed and remanded with instructions.
Valerie G. Wass for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel, Lynne G. McGinnis, and Tami Falkenstein Hennick, Deputy
Attorneys General for Plaintiff and Respondent.
I
INTRODUCTION
In 2009, a jury found Dudzai Prosper Pswatai guilty of the first degree
murder of Robert Mastrangelo (Pen. Code, § 187, subd. (a)).1 The jury
returned a true finding on an allegation that, in the commission of the
murder, Pswatai personally and intentionally discharged a firearm and
proximately caused Mastrangelo’s death (§ 12022.53, subd. (d)).
Based on recent changes to our state’s murder laws, Pswatai petitioned
the trial court for vacatur of his murder conviction and resentencing under
section 1172.6. The court summarily denied the resentencing petition
without issuing an order to show cause, reasoning that Pswatai’s record of
conviction precluded him from obtaining relief as a matter of law.
Contrary to the trial court, we conclude Pswatai’s record of conviction
does not foreclose relief as a matter of law. We reach this conclusion because
the jury may have found Pswatai guilty of natural and probable consequences
murder without finding that he harbored malice aforethought, which is no
longer a permissible theory of murder liability under the recent amendments
to the state’s murder laws. Because we cannot rule out the possibility that
Pswatai may have been convicted of murder under a theory of liability that is
no longer legally valid, we reverse the summary denial order and remand the
matter with directions that the trial court issue an order to show cause and
conduct such further proceedings as are required by section 1172.6.
1 Further undesignated statutory references are to the Penal Code.
2
II
BACKGROUND2
A. Factual Background
On June 10, 2008, Robert Mastrangelo asked his friend to meet with
Jeffrey “Slutter” Berrouet to buy ecstasy pills. (People v. Pswatai (Jan. 5,
2012, D056851) [nonpub. opn.].) The friend met with Berrouet and made the
purchase, but discovered the supposed ecstasy pills were fake. (Ibid.) The
friend met with Berrouet a second time and Berrouet returned the money
from the sale of the fake ecstasy pills. (Ibid.)
A few days later, Mastrangelo’s body was discovered in a roadside ditch
in Barstow. (Pswatai, supra, D056851.) He was wearing only his underwear
and his ankles were bound with a black cloth. (Ibid.) He had been shot six
times in the head, neck, and torso. (Ibid.) Soon after, law enforcement
arrested Pswatai, who lived with Berrouet in the home of Celina Sanchez.
(Ibid.)
In a post-arrest interview, Pswatai told detectives that Berrouet asked
him to help “ ‘with this thing [Berrouet was] doing’ by getting some rope and
water.” (Pswatai, supra, D056851.) He said he went into Sanchez’s garage
and saw Mastrangelo with Berrouet and three other men. (Ibid.) According
to Pswatai, one of the men was trying to tie Mastrangelo’s legs and he
instructed Pswatai to help. (Ibid.) Pswatai denied shooting Mastrangelo, but
said he gave Berrouet a rope and held Mastrangelo’s legs while someone else
tied him up. (Ibid.)
2 Pswatai filed a request for judicial notice of the appellate record from
the direct appeal of his judgment of conviction (case number D056851), which
includes the pleadings, reporter’s transcripts, verdicts, and jury instructions
from his murder trial. We granted the unopposed request for judicial notice.
3
Prosecutors charged Pswatai by amended information with the first
degree murder of Mastrangelo (§ 187, subd. (a); count 1); one count of
kidnapping (§ 207, subd. (a); count 2); and one count of second degree robbery
(§ 211; count 3); as well as a separate count of soliciting the murder of
Sanchez, who testified at Pswatai’s trial (§ 653f, subd. (b); count 4). For
counts 1–3, the amended information alleged a principal personally used a
firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a
firearm (id., subd. (c)), and personally and intentionally discharged a firearm
causing great bodily injury and death to Mastrangelo (id., subd. (d)).
The prosecution pursued multiple theories of murder liability against
Pswatai, arguing he was guilty: (1) as a direct perpetrator of deliberate and
premeditated murder; (2) as a direct aider and abettor of deliberate and
premeditated murder; (3) of kidnapping and/or robbery felony murder; (4) as
an aider and abettor of kidnapping and/or robbery felony murder; (5) as a
member of an uncharged conspiracy (with Berrouet and/or Sanchez) to
commit murder; and (6) as a member of an uncharged conspiracy (with
Berrouet and/or Sanchez) to commit a kidnapping and/or a robbery, the
natural and probable consequence of which was murder. The trial court
instructed the jury on each of these theories of vicarious liability and murder
liability.3
Of particular relevance here, the court instructed the jury on the
natural and probable consequences doctrine in cases of conspiracy. It
instructed the jury: “A member of a conspiracy is criminally responsible for
3 The court instructed the jury on aiding and abetting principles
(CALCRIM Nos. 400 and 401), uncharged conspiracies and liability for
coconspirators’ acts (CALCRIM Nos. 416 and 417), malice murder (CALCRIM
No. 520), and felony murder (CALCRIM Nos. 540A and 540B).
4
the crimes that he or she conspires to commit, no matter which member of
the conspiracy commits the crime. [¶] A member of a conspiracy is also
criminally responsible for any act of any member of the conspiracy if that act
is done to further the conspiracy and that act is a natural and probable
consequence of the common plan or design of the conspiracy. … [¶] To prove
that the defendant is guilty of the crime[s] charged in Count[s] 1, 2 or 3, the
People must prove that: [¶] 1. The defendant conspired to commit one of the
following crimes: Murder, Robbery or Kidnapping; [¶] 2. A member of the
conspiracy committed Murder, Robbery or Kidnapping to further the
conspiracy; [¶] AND [¶] 3. Murder, Robbery or Kidnapping (were) natural and
probable consequence[s] of the common plan or design of the crime that the
defendant conspired to commit.” (Emphasis added.)
Consistent with these instructions, the prosecution argued to the jury
that it could find Pswatai guilty of murder as a member of an uncharged
conspiracy. Specifically, after discussing malice murder and felony murder,
the prosecution argued: “Now, to make it even a little more fun, I’m giving
you yet another way that you can find him guilty of murder. Conspiracy. …
Conspiracy, now, is being part of the plan. He doesn’t have to take any direct
steps towards the murder, but he’s still guilty if he conspires to commit any of
these three [target crimes]. If he conspires, comes up with this plan to rob,
kidnap or murder Robert Mastrangelo, that’s it. [¶] ... [¶] … Obviously
someone did an act. A couple of people did acts, because Robert is dead. [¶]
So what do you have to do? Like I said before, conspire to commit any one of
these crimes. Any one. You do an act, and the result is something that
makes sense. Well, you pull the trigger, the fact someone dies after you pull
the trigger, that makes sense. That’s a reasonable, probable consequence of
5
your action. You tie someone up and kick them in the head, yeah, they’re
going to bleed. It’s a reasonable, probable consequence of what you did.”
After deliberations, the jury found Pswatai guilty of the first degree
murder, kidnapping, and second degree robbery charges (counts 1–3), and not
guilty of the solicitation of murder charge (count 4). For each conviction, the
jury found that Pswatai personally and intentionally discharged a firearm,
which proximately caused great bodily injury and death to Mastrangelo,
within the meaning of section 12022.53, subdivision (d).4 The verdict form
for the murder charge did not specify which theory or theories of liability the
jury relied on to find Pswatai guilty of the crime.
The trial court sentenced Pswatai to 109 years to life in state prison.
Our court affirmed the judgment (Pswatai, supra, D056851), and the
Supreme Court denied review.
B. Procedural Background
After Pswatai’s judgment became final, Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Stats. 2018, ch. 1015) went into effect. Senate Bill No. 1437
limited the scope of the felony murder rule and abolished the natural and
probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015,
§§ 2–3; see People v. Gentile (2020) 10 Cal.5th 830, 839, 842.) It also enacted
former section 1170.95, now codified in section 1172.6, which established a
4 For each conviction, the jury also returned true findings on allegations
that Pswatai personally used a firearm (§ 12022.53, subd. (b)), and that he
personally and intentionally discharged a firearm (Id., subd. (c)).
6
procedure for convicted murderers who could not be convicted under the law,
as amended, to seek retroactive relief.5 (Stats. 2018, ch. 1015, § 4.)
Following the effective date of Senate Bill No. 1437, Pswatai filed a
petition to have his murder conviction vacated and to be resentenced under
section 1172.6. He put checkmarks next to statements on the petition
averring: (1) a complaint, information, or indictment was filed against him
that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine; (2) at trial, he
was convicted of first or second degree murder pursuant to the felony murder
rule or the natural and probable consequences doctrine; and (3) he could not
now be convicted of first or second degree murder because of the legislative
changes implemented by Senate Bill No. 1437. After the resentencing
petition was filed, the trial court appointed counsel for Pswatai.
The People, represented by the district attorney, opposed Pswatai’s
resentencing petition. They argued the court should deny the petition
because the first degree murder verdict and “the testimony” from the trial
established that Pswatai was “the actual killer,” a purported fact that,
according to the People, rendered Pswatai ineligible for relief.
The trial court summarily denied the resentencing petition without
issuing an order to show cause or setting an evidentiary hearing. The court
found Pswatai was not entitled to relief, as a matter of law, because his
murder conviction and the true finding on the firearm enhancement under
section 12022.53, subdivision (d), conclusively established he was “the actual
killer.”
5 Assembly Bill No. 200 (2021–2022 Reg. Sess.) renumbered section
1170.95 as section 1172.6. (See Stats. 2022, ch. 58, § 10.) For purposes of
this opinion, we will refer to this statutory provision as section 1172.6.
7
III
DISCUSSION
The question presented in this appeal is whether Pswatai’s record of
conviction—specifically, the jury’s true finding on the section 12022.53,
subdivision (d), firearm enhancement—bars him from obtaining relief under
section 1172.6 as a matter of law. We conclude the record of conviction does
not preclude Pswatai from obtaining relief as a matter of law.
A. Summary of Senate Bill No. 1437
“Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill No. 1437) significantly limited the scope of the felony-murder
rule and eliminated liability for murder under the natural and probable
consequences doctrine through two key provisions. [Citations.] First, Senate
Bill No. 1437 amended section 189 so that ‘[d]efendants who were neither
actual killers nor acted with the intent to kill can be held liable for murder
only if they were ‘major participant[s] in the underlying felony and acted with
reckless indifference to human life.” ’ [Citations.] Second, it amended section
188 to provide that, when the felony-murder rule does not apply, a principal
in the crime of murder can only be convicted where [he or] she acted ‘with
malice aforethought,’ and ‘[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.’ ” (People v. Guiffreda (2023) 87
Cal.App.5th 112, 122.)
“Senate Bill [No.] 1437 also created a special procedural mechanism for
those convicted under the former law to seek retroactive relief under the law
as amended. [Citation.] Under newly enacted section 1172.6, the process
begins with the filing of a petition containing a declaration that all
requirements for eligibility are met [citation], including that ‘[t]he petitioner
could not presently be convicted of murder or attempted murder because of
8
changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,’
the effective date of Senate Bill [No.] 1437 (§ 1172.6, subd. (a)(3)).” (People v.
Strong (2022) 13 Cal.5th 698, 708 (Strong), fn. omitted.)
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
petition ‘to determine whether the petitioner has made a prima facie case for
relief.’ [Citations.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition. [Citations.] If, instead, the defendant has made a
prima facie showing of entitlement to relief, ‘the court shall issue an order to
show cause.’ ” (Strong, supra, 13 Cal.5th at p. 708.) “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.) As the Supreme
Court has explained, “the ‘prima facie bar was intentionally and correctly set
very low.’ ” (Ibid.)
Unless the parties stipulate that the petitioner is eligible for relief, the
trial court must then “hold an evidentiary hearing at which the prosecution
bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is
guilty of murder or attempted murder’ under state law as amended by Senate
Bill [No.] 1437.” (Strong, supra, 13 Cal.5th at p. 709.) “ ‘If the prosecution
fails to sustain its burden of proof, the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.’ ” (Ibid., quoting
§ 1172.6, subd. (d)(3).)
9
B. The Trial Court Erred in Summarily Denying the Resentencing Petition
As noted, the trial court summarily denied Pswatai’s petition for
resentencing on the basis that his murder conviction and the true finding on
the section 12022.53, subdivision (d), firearm enhancement rendered him
ineligible for resentencing as a matter of law. Because the jury might have
convicted Pswatai of natural and probable consequences murder without
finding beyond a reasonable doubt that he acted with malice aforethought—a
theory of murder liability that is no longer legally permissible—we disagree
with the trial court’s conclusion.
“ ‘The natural and probable consequences doctrine was recognized at
common law and is firmly entrenched in California law as a theory of
criminal liability.’ ” (People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th
896, 904–905.) The natural and probable consequences doctrine provides
that “ ‘ “ ‘[a] person who knowingly aids and abets criminal conduct is guilty
of not only the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.’ ” ’ ” (Id. at p. 905.)
Although the natural and probable consequences doctrine applies most
commonly when a defendant directly aids and abets a target offense, it
“applies with equal force to cases involving the vicarious liability of
conspirators for a crime committed in furtherance of the conspiracy.” (People
v. Weddington (2016) 246 Cal.App.4th 468, 487; see People v. Zielesch (2009)
179 Cal.App.4th 731, 739 (Zielesch) [“The law has been settled for more than
a century that each member of a conspiracy is criminally responsible for the
acts of fellow conspirators committed in furtherance of, and which follow as a
natural and probable consequence of, the conspiracy, even though such acts
were not intended by the conspirators as a part of their common unlawful
10
design.”].) In this context, “[t]he question whether an unplanned crime is a
natural and probable consequence of a conspiracy to commit the intended
crime ‘is not whether the aider and abettor actually foresaw the additional
crime, but whether, judged objectively, [the unplanned crime] was reasonably
foreseeable.’ ” (Zielesch, at p. 739.) “Whether the unplanned act was a
‘reasonably foreseeable consequence’ of the conspiracy must be ‘evaluated
under all the factual circumstances of the individual case’ and ‘is a factual
issue to be resolved by the jury’ [citation], whose determination is conclusive
if supported by substantial evidence.” (Ibid.)
At the time the jury found Pswatai guilty of murder, our state
permitted a member of a conspiracy to be convicted of the crime of murder
pursuant to the natural and probable consequences doctrine, even in the
absence of any finding that the defendant acted with malice. (See, e.g.,
Zielesch, supra, 179 Cal.App.4th pp. 741–742 [affirming murder conviction
against conspirator under natural and probable consequences doctrine];
People v. Maciel (1987) 199 Cal.App.3d 1042, 1048 [“Each defendant, as an
active participant in the conspiracy to assault the occupants of the car, is
liable for the murder of [the victim], a natural and probable consequence of
their violent attack with deadly weapons.”].) In accordance with the law in
effect at the time, the trial court instructed the jury it could convict Pswatai
of murder, as a member of a conspiracy, pursuant to the natural and probable
consequences doctrine.6
6 Case law issued subsequent to Pswatai’s first degree murder conviction
abolished first degree premeditated murder liability under the natural and
probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155[aiding and abetting context]; People v. Rivera (2015) 234 Cal.App.4th 1350[conspiracy context].)
11
However, after Pswatai was found guilty of murder, Senate Bill
No. 1437 abolished the natural and probable consequences doctrine as
applied to the crime of murder. Now, section 188 provides that, “in order to
be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3), as amended by Stats. 2018,
ch. 1015, § 2.) Such malice may be express or implied. (Id., subd. (a).) “In
the case of express malice, the defendant must have intended to kill.
[Citation.] Implied malice also involves a mental component, namely a
‘ “conscious disregard for the danger to life that the [defendant’s] act poses.” ’
[Citation.] This requires ‘ “examining the defendant’s subjective mental state
to see if he or she actually appreciated the risk of his or her actions.” ’
[Citation.] “It is not enough that a reasonable person would have been aware
of the risk.” ’ ” (People v. Offley (2020) 48 Cal.App.5th 588, 598 (Offley).)
Because the prosecution advanced a theory of murder liability that is
no longer viable under our state’s amended murder statutes, and the trial
court instructed the jury with the now-impermissible theory of murder
liability, it is possible the jury relied solely on an invalid theory of liability to
find Pswatai guilty of murder. And because the jury may have used a now-
forbidden theory of liability to find Pswatai guilty of murder, we conclude the
trial court erred in summarily denying the petition for resentencing.
In the trial court, and again on appeal, the People argue Pswatai is not
entitled to resentencing, as a matter of law, because the jury found that he
was Mastrangelo’s actual killer. In particular, they rely on the fact the jury
returned a true finding on the section 12022.53, subdivision (d), firearm
sentencing enhancement. Because the jury returned a true finding on this
firearm sentencing enhancement, the jury necessarily found that Pswatai
12
personally and intentionally discharged a firearm and proximately caused
Mastrangelo’s death. (See § 12022.53, subd. (d).) We agree with the People
the jury’s finding establishes that Pswatai fired the weapon that killed
Mastrangelo. However, that fact, standing alone, does not foreclose Pswatai
from obtaining relief under section 1172.6, given that the jury might have
convicted him of natural and probable consequences murder.
In non-felony murder contexts, a defendant—even an actual killer—
cannot be convicted of murder unless he or she acts with malice aforethought.
(§ 188, subd. (a)(3).) The jury’s finding that Pswatai personally fired the
weapon that killed Mastrangelo does not establish, as a matter of law, that
he acted with express malice—i.e., that he intended to kill Mastrangelo.
(Offley, supra, 48 Cal.App.5th at p. 598 [section 12022.53, subdivision (d) is “a
general intent enhancement, and does not require the prosecution to prove
that the defendant harbored a particular mental state as to the victim’s
injury or death”]; see also People v. Lucero (2016) 246 Cal.App.4th 750, 759–
760.) Nor does the jury’s finding show that Pswatai necessarily acted with
implied malice—i.e., that he consciously disregarded the danger to life posed
by his acts. Because the firearm sentencing enhancement finding does not
conclusively establish that Pswatai acted with express or implied malice, it
does not preclude him from obtaining resentencing relief as a matter of law.
The case of Offley, supra, 48 Cal.App.5th 588, is instructive. There, the
defendant and at least two other persons fired shots into a vehicle in a gang-
related shooting, killing one of the occupants of the vehicle. (Id. at p. 592.)
Like the present case, the jury was instructed on the natural and probable
consequences doctrine in cases of conspiracy. (Id. at p. 593.) Further, like
the case at hand, the jury found the defendant guilty of murder and found he
personally and intentionally discharged a firearm, proximately causing great
13
bodily injury and death to the victim, within the meaning of section 12022.53,
subdivision (d). (Ibid.) After Senate Bill No. 1437 went into effect, the
defendant filed a petition for resentencing, which the trial court summarily
denied based on the firearm sentencing enhancement finding. (Id. at p. 594.)
The Court of Appeal reversed the summary denial order. (Offley,
supra, 48 Cal.App.5th at p. 597.) It reasoned the finding on the section
12022.53, subdivision (d) enhancement did not foreclose relief, as a matter of
law, because it did “not establish that the defendant acted with malice
aforethought.” (Offley, at p. 598.) Further, while other aspects of a
defendant’s record of conviction could preclude relief under different
circumstances—for example, if the record showed the jury convicted the
defendant on the basis of his or her own malice aforethought—the Offley
court could not “rule out the possibility that the jury relied on the natural
and probable consequences doctrine” when it found the defendant guilty of
murder. (Id. at p. 599.) The jury may have found the defendant “intended to
take part in a conspiracy to commit [one or more target offenses], with the
aim of either injuring or merely frightening [the victim].” (Ibid.) It “could
have then concluded that [the victim’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.” (Ibid.)
Similarly, the jury in the present case might have found Pswatai guilty
of murder under the natural and probable consequences doctrine without
finding that he acted with malice aforethought. In particular, it could have
found that Pswatai intended to take part in a conspiracy to commit one or
more target offenses (kidnapping and/or robbery) and that he shot a firearm
in furtherance of the target offense(s). The jury could then have found that
Mastrangelo’s death was the natural and probable consequence of the
14
conspiracy, which would have enabled it to find Pswatai guilty of murder
without finding beyond a reasonable doubt that he acted with malice
aforethought. Given that we cannot exclude this possibility, we conclude the
trial court erred in summarily denying Pswatai’s petition for resentencing.
IV
DISPOSITION
The order summarily denying the petition for resentencing is reversed.
The trial court is instructed to issue an order to show cause and conduct such
further proceedings as are mandated by Penal Code section 1172.6. We
express no opinion regarding Pswatai’s entitlement to relief during the
further proceedings required by Penal Code section 1172.6.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
BUCHANAN, J.
15