Lizarraga-Regalado v. Premo

Citation284 Or.App. 176,390 P.3d 1079
Decision Date01 March 2017
Docket NumberA154944
Parties Jose H. LIZARRAGA-REGALADO, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
CourtCourt of Appeals of Oregon

284 Or.App. 176
390 P.3d 1079

Jose H. LIZARRAGA-REGALADO, Petitioner-Appellant,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.


Court of Appeals of Oregon.

Argued and submitted June 23, 2015.
March 1, 2017

Jason L. Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP. Jose H. Lizarraga-Regalado filed a supplemental brief pro se.

Jona J. Maukonen, Portland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Haselton, Senior Judge.*


284 Or.App. 178

Petitioner appeals a judgment denying post-conviction relief. He assigns error to the trial court's dismissal, by way of summary judgment, of his claim based on criminal trial counsel's failure to challenge the giving of a "natural and probable consequences" uniform jury instruction identical to that which the Oregon Supreme Court later disapproved in State v. Lopez-Minjarez , 350 Or. 576, 582-84, 260 P.3d 439 (2011). For the reasons that follow, we conclude that (1) the first of the two alternative grounds on which the post-conviction court granted summary judgment was erroneous as a matter of law, see, e.g. , Walraven v. Premo , 277 Or.App. 264, 277-85, 372 P.3d 1 (2016) ; and (2) petitioner proffered sufficient contravening evidence to preclude summary judgment on the second alternative ground. Accordingly, we reverse and remand.1

The historical and procedural circumstances material to our review are undisputed. In March 2004, petitioner was charged, by way of a five-count indictment, with felonies against three victims, C, D, and E. The indictment further alleged that petitioner had committed each of those offenses "jointly" with five codefendants. Specifically, Count 1 (attempted murder) and Count 2 (second-degree assault) were based on conduct against C; Count 3 (first-degree robbery) pertained to conduct against D; and, finally, Count 4 (first-degree kidnapping with a firearm) and Count 5 (first-degree robbery with a firearm) were both based on conduct against E.

The criminal case proceeded to trial before a jury in the fall of 2004. The court—without exception from petitioner's criminal defense counsel—instructed the jury consistently with the then-extant accomplice liability "natural and probable consequences" uniform jury instruction:

"A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural
284 Or.App. 179
and probable consequence of the planning, preparation, or commission of the intended crime."2
390 P.3d 1082

Immediately before the court so charged the jury, the prosecutor, anticipating that instruction, had highlighted the "natural and probable consequences" concept in closing argument. The jury found petitioner guilty on all counts, and the court entered consequent judgments with sentences imposing 400 months' total incarceration.

After unsuccessfully appealing his convictions, petitioner timely initiated this action in January 2010. Thereafter, in August 2011, the Supreme Court issued its opinion in Lopez-Minjarez , and petitioner subsequently filed his operative first amended petition for post-conviction relief. That petition included nine claims of inadequate representation by criminal trial counsel, including petitioner's fourth claim, which was based on his defense attorney's failure to object to the giving of the "natural and probable consequences" instruction.3 With the first amended petition, petitioner submitted various "exhibits," including two pages from the trial transcript pertaining to the fourth claim. The first of those pages set out a portion of the state's closing arguments in which (as described above) the prosecutor referred to the content of the "natural and probable consequences" instruction and told the jury that that instruction was "most important" with respect to its consideration of the charges based on conduct against C. The second transcript page showed that the court had, in fact, given that instruction.

Defendant filed a motion for summary judgment against all nine claims alleged in the first amended petition. With reference to the fourth claim, defendant's summary judgment motion asserted:

284 Or.App. 180
"Petitioner was tried in 2004. The Supreme Court's decision in [Lopez-Minjarez ] was not published until about seven years after petitioner's trial. Petitioner has not provided any evidence to support a conclusion that all reasonable trial attorneys, in 2004, were objecting to the ‘natural and probable consequences' portion of the aider and abettor uniform instruction ."

(Emphasis added.)4 Thus, defendant's summary judgment motion related solely to the reasonableness of criminal trial counsel's conduct. The summary judgment motion did not assert, alternatively, that there were no genuine issues of material fact as to whether petitioner had been prejudiced by counsel's failure to object to the "natural and probable consequences" instruction.

Petitioner filed a response, including a declaration in which he averred, inter alia , that criminal trial counsel had, in fact, failed to object to the "natural and probable consequences" instruction. With respect to the fourth claim, the response remonstrated that "[t]he issue is not whether trial counsel should have anticipated [Lopez-Minjarez ]"—but rather, whether, in "a complicated case such as Petitioner's" and given the state of the law at the time of trial, including State v. Anlauf , 164 Or.App. 672, 995 P.2d 547 (2000), on which defense counsel in Lopez-Minjarez had relied, criminal trial counsel "should have at least preserved the argument for appellate review."5

284 Or.App. 181
390 P.3d 1083

Defendant countered with a reply memorandum in which he reiterated, verbatim, his contention that "petitioner has not provided any evidence to support a conclusion that all reasonable trial attorneys, in 2004, were objecting to the ‘natural and probable consequences' portion of the aider and abettor uniform instruction." In addition, defendant asserted for the first time that, given the evidence at trial and the manner in which the case had been tried, "there is no reason to think that the jury * * * relied on the ‘natural and probable consequences' instruction to find petitioner guilty on counts [one] and two" of the indictment, relating to conduct against C. As factual support for that newly advanced "lack of prejudice" contention, defendant submitted, for the first time on reply, extensive additional excerpts of the trial transcript.

The post-conviction court allowed defendant's motion in part, granting summary judgment against five of petitioner's nine claims—including the fourth claim—and denying the motion as to the others. With respect to the fourth claim, the court concluded:

"This claim presents no genuine issues of material fact. Clearly, trial counsel did not object to the Uniform Jury Instruction, but Petitioner fails to present any evidence that [failure to raise such an objection] was unreasonable based on the case law existing in 2004. Additionally, Petitioner fails to show how he was prejudiced by trial counsel not objecting to the instruction."

Thus, the court granted summary judgment against the fourth claim on alternative grounds, concluding that petitioner had failed to demonstrate material factual issues with respect to each of the elements of post-conviction relief, viz. , deficient performance by counsel and consequent prejudice. Following a trial on the remaining claims, the post-conviction court rejected those claims as well, and petitioner appeals from the ensuing judgment.

Our review of the allowance of summary judgment against petitioner's fourth claim implicates both the

284 Or.App. 182

substantive standards governing post-conviction relief and the procedural requisites and constraints of summary judgment. Very recently in Garner v. Premo , 283 Or.App. 494, 389 P.3d 1143 (2017), we summarized the "settled legal principles" pertaining to post-conviction relief claims based on purported deficient representation, including, specifically, failure to raise a legal challenge:

"A post-conviction petitioner who claims a deprivation of rights under Article I, section 11, of the Oregon Constitution must prove ‘(1) that his lawyer failed to exercise reasonable professional skill and judgment, and (2) that petitioner suffered prejudice as a result.’ Everett [v. Premo , 279 Or.App. 470, 478, 380 P.3d 1099 (2016) ]. A court considering whether a petitioner has met that burden must evaluate the adequacy of the lawyer's representation ‘from the lawyer's perspective at the time, without the distorting effects of hindsight.’ Lichau v. Baldwin , 333 Or.

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3 cases
  • McDonnell v. Premo
    • United States
    • Court of Appeals of Oregon
    • 10 d3 Fevereiro d3 2021
    ...the Oregon Rules of Civil Procedure generally apply to post-conviction proceedings"). As we said in Lizarraga-Regalado v. Premo , 284 Or. App. 176, 182-83, 390 P.3d 1079, rev. den. , 361 Or. 803, 401 P.3d 1183 (2017),"In post-conviction proceedings, as generally, a movant defendant is entit......
  • Delgado-Juarez v. Cain
    • United States
    • Court of Appeals of Oregon
    • 7 d3 Outubro d3 2020
    ...based upon a flawed perception of the facts, is unlikely to be the product of competent representation. See Lizarraga-Regalado v. Premo , 284 Or. App. 176, 186, 390 P.3d 1079, rev. den. , 361 Or. 803, 401 P.3d 1183 (2017) (explaining that "the exercise of reasonable professional skill and j......
  • Tristan v. United States
    • United States
    • U.S. District Court — District of Oregon
    • 25 d1 Junho d1 2018
    ...... See Lizarraga-Regalado v . Premo , 390 P.3d 1079, 1987 (Or. Ct. App. 2017) (holding, in a post-conviction proceeding, that genuine issues of material fact precluded ......

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