People v. Gray CA3

Filed 6/26/23 P. v. Gray CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096335
Plaintiff and Respondent, (Super. Ct. No. 00F07042)
v.
ADAM GRAY,
Defendant and Appellant.
A jury found defendant Adam Gray guilty of murder and found true special
circumstance allegations that the murder occurred during the commission of a kidnapping
and by means of lying in wait. Defendant filed a petition for resentencing under former
Penal Code1 section 1170.95 (now section 1172.6),2 alleging he was not the actual killer,
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6,
with no change in text (Stats. 2022, ch. 58, § 10).
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did not have the intent to kill, and was not a major participant who acted with reckless
indifference to human life. The trial court denied his petition, concluding the special
circumstance findings rendered him ineligible as a matter of law. On appeal, defendant
contends the trial court erred because the special circumstance findings do not necessarily
establish he is ineligible for relief given the jury instructions provided at his trial.
We agree with defendant and find the instructions for the lying-in-wait special
circumstance, and the prosecutor’s arguments on the instructions, may have permitted the
jury to find the lying-in-wait special circumstance allegation true without finding
defendant personally had the intent to kill. As there were no other findings necessarily
establishing defendant ineligible as a matter of law, we shall reverse the denial of
defendant’s petition and remand for further proceedings.
BACKGROUND
A. Prior Trial
Defendant was charged with murder (§ 187, subd. (a)), kidnapping (§ 207, subd.
(a)), and arson (§ 451, subd. (d)), and it was alleged the murder was committed with the
special circumstances of lying in wait (§ 190.2, subd. (a)(15)) and during a kidnapping
(Id., subd. (a)(17)). (People v. McLean (Mar. 13, 2003, C039364, C039767, C040137)
[nonpub. opn.] (McLean).)3 In defendant’s 2001 jury trial, evidence indicated defendant
and two codefendants conspired to kidnap and kill their supervisor Matthew Lenabat.
Lenabat’s body was found in his car, which was on fire at the bottom of a dirt trail near
where the codefendants had requested a tow shortly before. (Ibid.) Defendant told law
3 We granted the People’s request to take judicial notice of our opinion affirming the
judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459,
subd. (a) [“The reviewing court may take judicial notice of any matter specified in
Section 452”], 452, subd. (d) [permitting a court to take judicial notice of records of “any
court of this state”].) We provide this summary of facts from the prior opinion in
defendant’s direct appeal solely for context and do not rely on these facts for our analysis
or disposition here. (See § 1172.6, subd. (d)(3).)
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enforcement several versions of what happened, including that he helped dispose of
Lenabat’s body and car, but he did not participate in killing Lenabat. (Ibid.)
Defendant was tried with one of the codefendants and each had their own jury.
(McLean, supra, C039364, C039767, C040137.) Defendant’s jury was instructed on
three theories for first degree murder: willful, deliberate, and premeditated murder; lying
in wait; and felony murder based on arson or kidnapping.4 The jury was provided
general aiding and abetting law under CALJIC No. 3.00 that stated: “Each principal,
regardless of the extent or manner of participation is equally guilty. Principals include:
[¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2.
Those who aid and abet the commission of the crime.” The felony-murder instructions
stated an aider and abettor of the kidnapping or arson is guilty of first degree murder.
The instructions for the special circumstances included a modified version of
CALJIC No. 8.80.1. This instruction stated both circumstances, lying in wait and
kidnapping, must be found true beyond a reasonable doubt but, “[a]s to the kidnapping
special circumstance only, if you are satisfied beyond a reasonable doubt that the
defendant actually killed the victim, you need not find that the defendant intended to kill
the victim in order to find that special circumstance to be true. [¶] If you find that the
defendant was not the actual killer of the victim, or if you are unable to decide whether
the defendant was the actual killer or an aider and abettor, you cannot find the kidnapping
special circumstance to be true unless you are satisfied beyond a reasonable doubt that
the defendant with the intent to kill aided . . . or assisted any actor in the commission of
the murder in the first degree, or with reckless indifference to human life and as a major
participant aided . . . or assisted the commission of the crime of kidnapping which
resulted in the death of a human being.” As confirmed by the draft version of the
4 The facts are derived from defendant’s record of conviction provided in the record on
appeal.
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instruction not provided to the jury, the court struck a line through the portion of the third
paragraph stating “[u]nless an intent to kill is an element of a special circumstance,” and
replaced that language with “[a]s to the kidnapping special circumstance only.”
Defendant’s jury was also instructed with CALJIC No. 8.81.15.1. This instruction
provided that to find the lying-in-wait special circumstance allegation true, “each of the
following facts must be proved: [¶] 1. The defendant intentionally killed the victim; and
[¶] 2. The murder was committed by means of lying in wait.”
In the prosecutor’s closing argument on first degree murder, he explained: “Some
of you up there may believe that they were going to kill him, that they intended to kill
him . . . . Some of you may believe, you know what, they were going to kidnap him, but
I don’t know what was going to happen next . . . . [I]t doesn’t matter if you believe that
for some reason you don’t think [defendant] did the actual killing. If a kidnapping occurs
that he participated in, that he aided and abetted, that he helped, that he facilitated and a
death occurs intentionally, unintentionally, a person is guilty of first degree murder.” He
later stated: “You do not -- try to reinforce this. You do not have to be [the] actual killer
to be guilty of first degree murder.”
For the special circumstances, the prosecutor argued: “The special circumstances
require these things, that he be the actual killer or that he aid and abet the killer, that he
help, that either he and [the codefendant] did it, he did it or he helped [the codefendant]
do it, and . . . if you find that he’s not the actual killer, that he acted as a major participant
with reckless indifference to human life.” For lying in wait, the prosecutor stated, “Not
the defendant, a defendant killed the victim by means of lying in wait.” In rebuttal, the
prosecutor noted, “You go to lying in wait, and you will see also the only hook on that
instruction is the intent to kill.”
Defendant’s jury found him guilty of first degree murder, arson, and kidnapping.
(McLean, supra, C039364, C039767, C040137.) The jury also found both special
circumstance allegations true. (Ibid.) The verdict form for the lying-in-wait special
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circumstance stated the jury found true: “The murder of MATTHEW ANDREW
LENABAT was committed by defendant ADAM JEFFREY GRAY, and that the
defendant intentionally killed the victim by means of lying in wait.”
At defendant’s sentencing on December 28, 2001, defendant’s counsel contested a
line in the probation report indicating defendant participated in the killing. The trial court
agreed “it wasn’t clear precisely as to who wrapped the rope around the victim’s neck,”
but over defense counsel’s objection modified the statement to read that “the trunk was
opened and a rope was wrapped around the victim’s neck, and the clarification then
further is [a codefendant] and a second party, and we know that to be [the other
codefendant], pulled on the rope until the victim died.”
The trial court sentenced defendant to an indeterminate term of life without parole
plus a consecutive term of two years. Defendant appealed and we affirmed the judgment.
(McLean, supra, C039364, C039767, C040137.)
B. Defendant’s Petition
On July 8, 2021, defendant filed a petition for resentencing under former section
1170.95 (now section 1172.6). The petition alleged he was convicted of felony murder or
murder under the natural and probable consequences doctrine and could not now be
convicted of murder because of changes made to sections 188 and 189.
After appointment of counsel, briefing and a hearing, the trial court denied the
petition. The order stated: “Based on the jury instructions given and the jury’s verdict,
the court finds that the jury necessarily found [defendant] was either the actual killer,
acted with the intent to kill (as the [lying-in-wait special-circumstance] verdict
specifically states), or was a major participant who acted with reckless indifference to
human life.” Thus, the trial court concluded, “[t]he jury’s special circumstance finding,
affirmed on appeal, renders the defendant ineligible for relief.”
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DISCUSSION
Defendant contends the trial court erred in denying his petition based on the
special circumstance findings without holding an evidentiary hearing. We agree.
I
Senate Bill No. 1437
Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Senate Bill 1437), which became
effective on January 1, 2019, “amend[ed] 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 major participant in the underlying felony who acted with reckless indifference
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, 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); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also added former section 1170.95 (now section 1172.6), which
allows those convicted of felony murder or murder under the natural and probable
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consequences theory to petition the trial court to vacate the conviction and resentence the
defendant. (Stats. 2018, ch. 1015, § 4.)
“Upon receiving a petition in which the information required by . . . subdivision
[(b)] is set forth . . . if the petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner.” (§ 1172.6, subd. (b)(3).) “After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for 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” and hold an evidentiary hearing on the merits of the petition. (Id., subds. (c), (d).)
The prima facie inquiry under section 1172.6 subdivision (c) is “limited.” (People
v. Lewis (2021) 11 Cal.5th 952, 971.) 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 were proved.” ’ ” (Ibid.) Although the
court may rely on the record of conviction in determining whether defendant has made a
prima facie showing, the court “should not engage in ‘factfinding involving the weighing
of evidence or the exercise of discretion.’ ” (Id. at p. 972.)
II
Analysis
Defendant argues neither special circumstance finding renders him ineligible for
resentencing as a matter of law for several reasons. First, he contends the lying-in-wait
special circumstance instruction “omitted the essential element of intent to kill.” He
explains this was possible because under the modified CALJIC No. 8.80.1 instruction
given, if the jury could not find defendant was the actual killer, it explained only the
accomplice mental state required for the kidnapping special circumstance. Second, he
contends the California Supreme Court in People v. Strong (2022) 13 Cal.5th 698invalidated disqualifying defendants at the prima facie stage based on findings they were
a major participant who acted with reckless indifference to human life before People v.
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Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Third, the trial
court’s modification to the probation report established defendant was not the actual
killer. Thus, the jury did not necessarily make a finding rendering him ineligible for
relief as a matter of law and therefore he made a prima facie case for relief, necessitating
reversal and a remand for an evidentiary hearing.
The People agree defendant can no longer be ineligible based on a finding he was
a major participant who acted with reckless indifference to human life under the
kidnapping special circumstance. However, the People contend the lying-in-wait special
circumstance instruction required the jury to find defendant acted with the intent to kill.
They argue the CALJIC No. 8.80.1 instruction properly did not include lying in wait
because it requires an intent to kill, “as was noted in the given CALJIC No. 8.81.15.1
instruction.” This was also stated in the signed verdict form. Thus, according to the
People, the jury’s finding that defendant intentionally killed the victim renders him
ineligible as a matter of law.
As noted above, for defendant to be eligible for relief under section 1172.6, he
could not have been the actual killer, could not have acted with the intent to kill, and
could not have been a major participant in the felonies who acted with reckless
indifference to human life. Defendant’s first degree murder conviction is not conclusive
on the issue of intent to kill because defendant was charged with felony murder and the
jury was so instructed. Though premeditated murder and lying-in-wait murder require an
intent to kill, felony murder at the time of defendant’s trial permitted liability for
defendant’s intentional participation in the felony without malice. And, the jury did not
indicate which of the three first degree murder theories it found defendant guilty. Thus,
for defendant to be ineligible as a matter of law, and for the trial court’s finding to be
valid, the special circumstance findings must necessarily establish the jury found
defendant possessed one of the three mental states still valid after Senate Bill 1437. We
find none of these three mental states were established as a matter of law.
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First, there is no finding in the record establishing defendant was the actual killer,
and the People do not contend otherwise. We need not discuss whether we may consider
the trial court’s modifications to the probation report because none of the verdicts nor
instructions required the jury to find defendant was the actual killer. There is also
nothing else in the record of conviction that is properly considered at the prima facie
stage establishing he was the actual killer. To the contrary, the prosecutor emphasized in
closing the jury could find defendant guilty of both murder and the special circumstances
as an accomplice.
Second, we agree that defendant cannot be ineligible as a matter of law under the
major participant theory. The jury found defendant was, at a minimum, a major
participant who acted with reckless indifference to human life when he participated in the
kidnapping by finding true the kidnapping special circumstance. However, this was prior
to our Supreme Court’s opinions in People v. Banks, supra, 61 Cal.4th 788 and People v.
Clark, supra, 63 Cal.4th 522, which “both substantially clarified the law governing
findings under [section] 190.2, subdivision (d)” and what constitutes a major participant
and acting with reckless indifference to human life. (People v. Strong, supra, 13 Cal.5th
at pp. 706-707.) Our Supreme Court in Strong concluded, after the trial court denied
defendant’s petition, such findings before Banks and Clark cannot render a section
1172.6 petitioner ineligible for relief as a matter of law at the prima facie stage. (Strong,
at p. 721.)
This leaves intent to kill. The central dispute is whether the lying-in-wait special
circumstance allegation instruction and verdict necessarily established the jury found
defendant had an intent to kill. The lying-in-wait special circumstance statutory
provision, section 190.2, subdivision (a)(15), is satisfied if: “The defendant intentionally
killed the victim by means of lying in wait.” Section 190.2, subdivision (c) extends
special circumstance liability to “[e]very person, not the actual killer, who, with the intent
to kill, aids . . . or assists any actor in the commission of murder in the first degree.”
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Therefore, “[a] lying-in-wait special circumstance can apply to a defendant who,
intending that the victim would be killed, aids and abets an intentional murder committed
by means of lying in wait. [Citations.] In this factual setting, the questions are whether
defendant, with the intent to kill, aided and abetted the victim’s killing, and whether the
actual killer intentionally killed the victim by means of lying in wait.” (People v.
Johnson (2016) 62 Cal.4th 600, 630.)
Here, the record does not conclusively establish the jury was instructed it needed
to find defendant had the intent to kill to be an accomplice for a lying-in-wait murder.
The CALJIC No. 8.81.15.1 instruction informed the jury it had to find “[t]he defendant
intentionally killed the victim.” And the verdict form mirrored this language. This is the
exact language of section 190.2, subdivision (a)(15), for the actual killer. But the jury
was permitted to find this circumstance true without finding defendant was the actual
killer. In discussing the CALJIC No. 8.81.15.1 instruction during closing argument, the
prosecutor explained “[n]ot the defendant, a defendant killed the victim by means of
lying in wait,” meaning the instruction applied even if another defendant intentionally
killed the victim. (Italics added.) This was also consistent with the accomplice liability
instructions provided under CALJIC No. 3.00 and felony murder. Thus, the jury could
have found the lying-in-wait special circumstance allegation true under the CALJIC
No. 8.81.15.1 instruction given if defendant aided another defendant who intentionally
killed the victim.
Because there was evidence and argument defendant was an accomplice, the jury
had to be instructed on the intent to kill requirement for an accomplice under section
190.2, subdivision (c). (People v. Nunez and Satele (2013) 57 Cal.4th 1, 45 [finding
where there is evidence the defendant was an accomplice courts must instruct, and the
jury must find, the appropriate mental state required for accomplices]; People v. Jones
(2003) 30 Cal.4th 1084, 1117-1118 [same].) The intent to kill requirement for an
accomplice can be provided by a CALJIC No. 8.80.1 instruction for the special
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circumstances if the defendant was not the actual killer. But that instruction here was
specifically limited to the kidnapping special circumstance. And this instruction stated it
could be found true for an accomplice who was a major participant in the kidnapping
who acted with reckless indifference to human life. The jury therefore was never
provided with a specific instruction that an accomplice to lying-in-wait murder must
personally have the intent to kill.
This deficiency may have been overcome had the trial court not stricken the line in
CALJIC No. 8.80.1’s third paragraph, “[u]nless an intent to kill is an element of a special
circumstance.” But paragraph four of CALJIC No. 8.80.1 is the central means to explain
an intent to kill is required for an accomplice for a special circumstance. The version the
trial court modified at trial included a global bracket starting at, “or with reckless
indifference to human life and as a major participant.” The language in the global
bracket implies this final clause appending the major participant theory is optional and so
the instruction can be written to conclude at “defendant with the intent to kill” aided or
assisted. This would permit a complete and accurate instruction on the accomplice
liability for lying in wait by making explicit an accomplice must aid with the intent to
kill. Other courts have so modified this instruction. (See People v. Holmes, McClain and
Newborn (2022) 12 Cal.5th 719, 794, fn. 53 [quoting a version of CALJIC No. 8.80.1 the
trial court gave for a lying-in-wait special circumstance that included a modified
paragraph four stating the defendant must have, “with the intent to kill aided . . . or
assisted any actor in the commission of the murder in the first degree”].)
The prosecutor’s closing arguments also did not clarify the intent requirement and
may have done the opposite. He stated, “the special circumstances require these things,”
which included “if you find that he’s not the actual killer, that he acted as a major
participant with reckless indifference to human life.” (Italics added.) There was no
indication this was limited to the kidnapping special circumstance, and instead treated the
“special circumstances” collectively. Although the prosecutor argued in rebuttal that for
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the lying-in-wait special circumstance, “you will see also the only hook on that
instruction is the intent to kill,” he never clarified, just as the instructions failed to clarify,
defendant needed to possess the intent to kill, not just the actual killer. The kidnapping
special circumstance did not require the actual killer to have had the intent to kill for an
accomplice to still be found liable. Thus, the prosecutor’s statement is ambiguous as to
whether the “hook” was for the actual killer to have the intent to kill, the accomplice to
have the intent to kill, or both.
In short, the jury was not instructed in a manner to establish, as a matter of law, it
found defendant had the intent to kill. There was no instruction explicitly stating an
accomplice must personally have the intent to kill for the lying-in-wait special
circumstance, and there were also additional facts muddying the waters: the prosecutor
implied the CALJIC No. 8.80.1 instruction and its major participant language may apply
to the lying-in-wait special circumstance; the prosecutor argued only “a defendant” had to
intentionally have killed the victim; and there were other aiding and abetting instructions
permitting murder liability without an intent to kill. In this context, it is possible the jury
may have incorrectly believed it could find the special circumstance true as long it found
any defendant intentionally killed the victim without defendant himself having the
specific intent to kill.
Typically, when an instructional error occurs, a harmless error analysis is utilized.
Because the other instructions do not necessarily establish an intent to kill for this
defendant, it would require us to determine whether the “evidence of the defendant’s
intent to kill is overwhelming and the jury ‘ “could have had no reasonable doubt” that
the defendant had the intent to kill.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838,
929.) This kind of evidentiary analysis is improper at section 1172.6’s limited prima
facie stage. Thus, we must find the record of conviction does not establish as a matter of
law defendant acted with a mental state sufficient to render him ineligible for relief under
section 1172.6. The trial court consequently erred in finding defendant ineligible for
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relief at the prima facie stage and we shall reverse and remand for the trial court to hold
an evidentiary hearing under section 1172.6.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed. On remand
the trial court is to issue an order to show cause and to conduct further proceedings in
accordance with section 1172.6.
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
HORST, J.
 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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