In re Martinez

• Decision Date: 04 December 2017
• Docket Number: S226596
• Citation: 3 Cal.5th 1216,226 Cal.Rptr.3d 315,407 P.3d 1
• Court: California Supreme Court
• Parties: IN RE Hector MARTINEZ on Habeas Corpus.

3 Cal.5th 1216

407 P.3d 1

226 Cal.Rptr.3d 315

IN RE Hector MARTINEZ on Habeas Corpus.

S226596

Supreme Court of California

Filed December 4, 2017

Marilee Marshall & Associates and Marilee Marshall, Los Angeles, for Petitioner Hector Martinez.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Lise Jacobson and Kimberley A. Donohue, Deputy Attorneys General, for Respondent State of California.

Liu, J.Petitioner Hector Martinez was convicted of first degree murder after the jury was instructed on both a direct aiding and abetting theory and a natural and probable consequences theory. After his conviction, we held in People v. Chiu(2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ) that a natural and probable consequences theory of liability cannot serve as a basis for a first degree murder conviction. It is undisputed that the trial court in this case committed Chiu error. The sole question is whether the error was prejudicial. We hold that on a petition for writ of habeas corpus, as on direct appeal, Chiu error requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on a legally valid theory in convicting the defendant of first degree murder. Because we are unable to reach such a conclusion based on the record here, we vacate Martinez's first degree murder conviction.

I.

Martinez was convicted of the first degree murder of Guillermo Esparza ( Pen. Code, § 187, subd. (a) (all undesignated statutory citations are to this code)), assault of Esparza with a semiautomatic firearm (§ 245, subd. (b)(1)), and assault of Jimmy Parker with force likely to cause great bodily injury (§ 245, subd. (a)(1)). In a general verdict, the jury found true allegations that each crime was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); that Martinez was vicariously armed with a firearm in the commission of the murder (§ 12022, subd. (a)(1)); that the codefendants were principals in the commission of the murder; and that a principal used a firearm and proximately caused great bodily injury and death (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced Martinez to a determinate term of six years plus an indeterminate term of 50 years to life.

The facts of the crime committed by Martinez and his codefendant Darren Martinez (no relation to petitioner) are summarized by the Court of Appeal as follows: Late in the evening on August 20, 2009, Darren's girlfriend was with Darren and Martinez when she saw Darren with a gun. She objected to his having a gun at her house and asked him to take the gun away. Darren, accompanied by Martinez, left the house but did not dispose of the gun. A few hours later, Martinez, Darren, and Darren's girlfriend were in her car at a drive-thru restaurant. She noticed a gun in Darren's lap. When she was driving home, Darren suddenly told her to stop the car. Martinez and Darren got out of the car and ran up to Jimmy Parker and Guillermo Esparza, who were walking down the street. Martinez asked Parker, "Where are you from?" Parker mentioned the name of a group that was not a gang but was engaged in tagging. Martinez punched Parker, and they fought. Parker heard Darren say, "This is Lomas," and Darren shot Esparza, who died as a result. Martinez hit Parker once more after the gunshot was fired. Martinez and Darren then ran from the crime scene.

At trial, Detective Nestor Hernandez testified that Martinez and Darren were documented Lomas gang members, that gang members commonly carried weapons when preparing to assault someone or enter rival gang territory, that the question "where are you from?" is a challenge to those perceived to be trespassing on gang territory, and that gang members can be expected to stand up for one another.

The court instructed the jury with CALCRIM Nos. 400 and 401 regarding aiding and abetting, and with CALCRIM No. 403 regarding the natural and probable consequences doctrine. CALCRIM No. 403 provides in part: "To prove that a defendant is guilty of murder, the People must prove that: [¶] 1.

The defendant is guilty of assault and/or battery; [¶] 2. During the commission of assault and/or battery, a coparticipant in that assault and/or battery committed the crime of murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault and/or battery."

Martinez timely appealed, contending among other things that his first degree murder conviction should be reversed because the trial court's instruction on the natural and probable consequences doctrine "failed to correctly inform the jury that [the defendants were] guilty of premeditated murder only if the jury found that premeditated murder, and not merely murder, was the natural and probable consequence of the target crimes." The Court of Appeal rejected that argument based on its reading of People v. Favor(2012) 54 Cal.4th 868, 878–880, 143 Cal.Rptr.3d 659, 279 P.3d 1131. We denied Martinez's petition for review without prejudice to any relief he might obtain under Chiu, which was pending before this court at the time. We subsequently held in Chiu that a natural and probable consequences theory cannot be a basis for convicting a defendant of first degree murder. ( Chiu, supra, 59 Cal.4th at p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

Martinez filed this writ petition in the Court of Appeal, arguing that he is entitled to have his conviction reduced to second degree murder under Chiu. While recognizing that the jury instruction on natural and probable consequences was error under Chiu, the Court of Appeal affirmed Martinez's first degree murder conviction because it was supported by "sufficient evidence." We granted review to address the proper standard of prejudice for Chiu error on a petition for writ of habeas corpus.

II.

In Chiu, we said that "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the ... public policy concern of deterrence. [¶] Accordingly, we hold that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine.

We further hold that where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine." ( Chiu, supra, 59 Cal.4th at p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

We went on to say: "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. ( People v. Guiton(1993) 4 Cal.4th 1116, 1128–1129, 17 Cal.Rptr.2d 365, 847 P.2d 45 ; People v. Green(1980) 27 Cal.3d 1, 69–71, 164 Cal.Rptr. 1, 609 P.2d 468.) Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder." ( Chiu, supra, 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

The Attorney General contends that a different standard of prejudice should apply with respect to Chiu error when a defendant seeks to attack his conviction not by direct appeal, as in Chiu, but collaterally through a petition for writ of habeas corpus. The Attorney General relies on a line of our earlier cases in which we said: "Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. [Citations.] For purposes of this writ as well as prohibition or certiorari, the term ‘jurisdiction’ is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court's powers as defined by constitutional provision, statute, or rules developed by courts. [Citations.] In accordance with these principles a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct." ( In re Zerbe(1964) 60 Cal.2d 666, 667–668, 36 Cal.Rptr. 286, 388 P.2d 182 ( Zerbe ), italics added; see People v. Mutch(1971) 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 482 P.2d 633 ( Mutch ) [applying same standard]; In re Earley(1975) 14 Cal.3d 122, 125, 120 Cal.Rptr. 881, 534 P.2d 721 ( Earley ) [same].)

In determining the prejudicial effect of Chiu error in a habeas corpus proceeding, the Courts of Appeal have differed on the appropriate standard. (See In re Johnson(2016) 246 Cal.App.4th 1396, 1406, 201 Cal.Rptr.3d 214 [adopting Chiu standard of prejudice and rejecting the standard set forth in the "older line of habeas corpus cases"]; In re Lopez(2016) 246 Cal.App.4th 350, 360–361, 200 Cal.Rptr.3d 559 [ Zerbe and Mutch set forth the proper standard for determining whether Chiu error is prejudicial in a habeas corpus proceeding].)

The justification for requiring habeas corpus petitioners to meet a more demanding standard of prejudice was explained by Justice Traynor in In re Bell(1942) 19 Cal.2d 488, 122 P.2d 22. Bell involved a county ordinance prohibiting labor picketing. A...