People v. Partida CA2/2

Filed 8/3/23 P. v. Partida CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B321439
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA043905)
v.
DANIEL PARTIDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Shelly B. Torrealba, Judge. Reversed and
remanded.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Blake Armstrong, Deputy
Attorney General, for Plaintiff and Respondent.
******
Daniel Partida (defendant) appeals the summary denial of
his petition for resentencing under Penal Code section 1172.6
(former section 1170.95).1 We conclude that the trial court erred,
and remand this case for an evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Underlying crime
In January 1991, the 39th Street gang and the Street
Saints gang were rivals. Defendant was a member of the Street
Saints gang. One night in January 1991, defendant drove two
other members of the Street Saints gang into territory claimed by
the 39th Street gang, and one of defendant’s passengers opened
fire on a group of men standing on a street corner. The shooter
hit one of the men in the back of the head, killing him.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its new
numbering only.
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B. Underlying prosecution
1. The charges
The People charged defendant with murder (§ 187, subd.
(a)), and further alleged that he was armed with a firearm (§
12022, subd. (a)(1)).2
2. The trial
The matter proceeded to a four-day trial in May 1992.
a. Instructions during voir dire
During voir dire, the trial court instructed the jury that
defendant could be liable for murder for aiding and abetting his
cohorts in committing some lesser crime, if the natural and
probable consequence of that lesser crime was murder.3
b. Closing arguments
During closing argument, the prosecutor (in her opening
argument) and defense counsel sparred over whether defendant
had personally acted with the intent to kill. In response to
defense counsel’s argument, the prosecutor asked the court for
permission to argue that defendant “d[id] not need to have an
intent” and could still be liable for murder “as long as he aids and
2 The People also charged defendant with second degree
robbery (§ 211) committed on a different date, as well as alleged
that defendant had furnished his cohorts with firearms before the
charged murder (§ 12022.4). The People subsequently dismissed
the robbery charge and the furnishing allegation.
3 Although the voir dire portion of the trial was not
transcribed, the trial court later indicated that the natural and
probable consequences theory was “certainly something I
instructed the jury on during voir dire.” The parties have not
disputed the accuracy of the trial court’s self-report, and we have
no basis to question its accuracy.
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abets the commission of . . . the drive-by shooting” and as long as
murder is “reasonable and foreseeable” from such a shooting.
The prosecutor acknowledged that it was an “oversight” not to
ask the trial court to instruct the jury on the natural and
probable consequences theory that supported the argument she
wished to make, but sought permission to argue that theory
anyway because it was “the present state of the law.” Defendant
objected to giving any instruction on the natural and probable
consequences theory of liability, but the court said it would
ruminate over whether to give that instruction and would in the
meantime permit the prosecutor to argue that theory. The
prosecutor thereafter argued that the People did not “have to
prove the defendant guilty . . . as an aider and abettor [to the
crime of murder]” and did not “have to prove the defendant
intended to kill anyone” because “[t]hat is not the law”; instead,
the People merely had to prove that defendant aided and abetted
a “drive-by shooting[]” and that death “is a reasonably
foreseeable consequence of that conduct.” The prosecutor
concluded by saying, “[d]on’t look at this case and try to find
where the evidence is to prove that the defendant intended to kill
anyone” because “[t]here is no evidence that the defendant on
that night intended to kill anyone . . . .”
c. Closing instructions
Following the end of closing arguments, the trial court
instructed the jury that (1) defendant could be liable for murder if
he was (a) the actual killer, or (b) directly aided and abetted the
actual killer, and (2) the jurors must “accept and follow the law”
as stated by the court, even if any statement of law made by the
attorneys conflicted with the court’s instructions. The court did
not instruct the jury on the natural and probable consequences
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theory or the felony-murder theory of liability, but it also did not
acknowledge that it had given a natural and probable
consequences instruction during voir dire, correct that
instruction, or tell the jury that they should only follow the
instructions that the jurors received at the close of the trial.
d. Verdict
The jury found defendant guilty of second degree murder.
It found “not true” the allegation that defendant was personally
armed with a firearm.
e. Sentence
The trial court sentenced defendant to prison for 15 years
to life.
3. Appeal
We affirmed defendant’s conviction and sentence. (People
v. Partida (Sept. 8, 1994, B071301) [nonpub. opn.].)
II. Procedural Background
In November 2019, defendant filed a petition seeking
resentencing under section 1172.6. The trial court appointed
counsel. Following further briefing and a hearing, the trial court
summarily denied defendant’s petition. Specifically, the court
ruled that defendant was ineligible for relief under section 1172.6
as a matter of law because (1) the court erroneously believed that
the jury had never been instructed on the natural and probable
consequences (or felony-murder) theories of liability that give rise
to relief under section 1172.6, and (2) the prosecutor’s argument
on a natural and probable consequences theory could not trump
the absence of any instruction on that theory.
Defendant filed this timely appeal.
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DISCUSSION
A person is entitled to relief under section 1172.6 if, as
relevant here, (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) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder . .
. because of changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a).) In January 2019, our
Legislature amended section 188 to provide that “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought” and that “[m]alice shall not be imputed to a person
based solely on his . . . participation in a crime.” (§ 188, subd.
(a)(3).)
In assessing whether a defendant seeking relief under
section 1172.6 has made out a prima facie case warranting an
evidentiary hearing, a trial court must take the petition’s
allegations as true and ask “‘“whether the petitioner would be
entitled to relief if [those] allegations were proved.”’” (People v.
Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) “‘However, if the
record, including the court’s own documents [from the record of
conviction], “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Ibid.) Then, if the
defendant has made the prima facie showing (that is, if the
record of conviction does not establish ineligibility for relief as a
matter of law), the court must hold an evidentiary hearing to
determine whether the defendant is eligible for resentencing in
accordance with current law. (Id. at pp. 960, 971; § 1172.6,
subds. (c) & (d).)
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Whether the trial court erred in summarily denying
defendant’s section 1172.6 petition in this case turns, as a
threshold matter, on whether the trial court instructed the jury
on either of the now-invalid theories of liability (that is, the
felony-murder theory or the natural and probable consequences
theory). If the court instructed on either theory, then defendant
has met the requirements of section 1172.6, subdivision (a), and
the trial court erred in denying his petition without first holding
an evidentiary hearing. (People v. Lopez (2022) 78 Cal.App.5th 1,
20 (Lopez); People v. Langi (2022) 73 Cal.App.5th 972, 983.)
Conversely, if the court did not instruct on either theory, then
defendant is ineligible for relief as a matter of law and it was
proper to summarily deny his petition. (People v. Harden (2022)
81 Cal.App.5th 45, 52.)
Because our conclusion rests on the application of the law
to undisputed facts, we independently conclude that the trial
court erred in summarily denying defendant’s petition. (See
Lopez, supra, 78 Cal.App.5th at p. 14; Tsasu LLC v. U.S Bank
Trust, N.A. (2021) 62 Cal.App.5th 704, 715.) We “presume” that
juries “understand and follow” instructions given by the court.
(People v. Pearson (2013) 56 Cal.4th 393, 414 (Pearson); People v.
Yeoman (2003) 31 Cal.4th 93, 139; People v. Holt (1997) 15
Cal.4th 619, 662.) Although it is undisputed that the trial court
did not instruct the jury on the felony-murder theory, it is also
undisputed that the trial court did instruct the jury on the
natural and probable consequences theory. (Kelly v. Trans Globe
Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 203-204 (Kelly)
[instructions given during voir dire to be read in conjunction with
closing instructions]; cf. People v. Seumanu (2015) 61 Cal.4th
1293, 1358-1359 [trial court’s “informal[]” “comments” during voir
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dire, when trial court told the jury that they would “be given
formal instructions” later, do not infect subsequent penalty phase
instructions]; People v. Romero (2008) 44 Cal.4th 386, 423
[same].) Although the natural and probable consequences
instruction was not given as part of the final instructions, the
court never told the jury to disregard all prior instructions and
nothing in the court’s final instructions contradicted the court’s
earlier instruction that defendant could be liable for murder on a
natural and probable consequences theory. (Kelly, at pp. 203-204
[finding error when instruction given during voir dire included
“erroneous statement” of the law not later corrected]; People v.
Johnson (2004) 119 Cal.App.4th 976, 979, 984-986 [reversal
required due to erroneous jury instruction on the definition of
reasonable doubt given during voir dire, even when court
attempted to correct instruction at close of trial]; cf. Pearson, at
pp. 414-415 [any error in earlier-given instructions was harmless
where trial court instructed jury only to consider closing
instructions].) What is more, this was not a lengthy trial where
the time between the voir dire instruction and the final
instructions was so great that we would expect the jury not to
have the voir dire-given instructions firmly in mind: Here, voir
dire occurred on a Tuesday (May 26, 1992), and the final
instructions were given on a Friday (May 29, 1992). (Cf. People v.
Claxton (1982) 129 Cal.App.3d 638, 668-669 [nine-day gap;
court’s “‘explanation’” of law during voir dire dissipated when
correct instruction given during closing instructions], overruled
on other grounds in People v. Fuentes (1998) 61 Cal.App.4th 956,
967 & fn. 10; People v. Silveria (2020) 10 Cal.5th 195, 305-306
[same, but with four-month gap between erroneous voir dire
instruction and correct closing instruction].)
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Because the trial court instructed on a now-invalid theory,
we must reverse the ruling summarily denying defendant’s
section 1172.6 petition and remand for an evidentiary hearing on
the petition, where it will be the People’s burden to
independently prove to the trial court that defendant is guilty
beyond a reasonable doubt on any of the still-valid theories of
liability for murder. (Lewis, supra, 11 Cal.5th at p. 960.)
In light of our reasoning, we have no occasion to reach the
parties’ alternative arguments or defendant’s further argument
that his petition should have been heard by the same judge who
tried his case.
DISPOSITION
The order is reversed, and the matter remanded for an
evidentiary hearing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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