People v. Bravo

• Docket Number: H047752,H049726
• Decision Date: 20 July 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO BRAVO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO BRAVO, Defendant and Appellant.

H047752, H049726

California Court of Appeals, Sixth District

July 20, 2023

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C1646260

BAMATTRE-MANOUKIAN, ACTING P.J.

I. INTRODUCTION

Defendant and two codefendants were tried in 2018 for the murder of a rival gang member. Defendant was convicted of second degree murder, and the jury found true gang and firearm enhancements. The trial court imposed a total sentence of 40 years to life.

In case No. H047752, defendant asserts that the jury was instructed on a theory of murder that is no longer valid due to changes after his trial to Penal Code sections 188 and 189,^[1] and that his conviction was likely based on this now-invalid theory. The Attorney General concedes that defendant's conviction must be reversed on this basis. Defendant asserts remand for retrial is not appropriate because he could not be convicted of second degree murder under a theory that remains viable under current law. The Attorney General contends that defendant can still be convicted of second degree murder as a direct aider and abettor of the murder, and thus the matter should be remanded for retrial. Defendant also raises several other assertions of error during his trial, arguments the Attorney General asserts are rendered moot because defendant's conviction must be reversed for the instructional error.

In case No. H049726, defendant appeals from the trial court's denial of his petition for resentencing. In case No. H049726 defendant raises the same arguments that he was convicted on an invalid theory of murder as he did in case No. H047752, and the Attorney General makes the same concession.^[2]

In case No. H047752, we accept the Attorney General's concession that defendant's conviction must be reversed. We remand this matter to permit the prosecution to retry defendant if the prosecution can in good faith advance a valid theory of defendant's culpability. This disposition means we need not decide whether the trial court erred in the other ways defendant alleges. We dismiss defendant's appeal in case No. H049726 as moot.

II. BACKGROUND

Defendant and codefendants including Alex Arjona were charged by information with the murder of David Escalera. (§ 187.) The information alleged defendant committed the offense to benefit a criminal street gang. (§ 186.22, subd. (b)(5).) The information also alleged defendant was a principal in the murder and a principal personally discharged a firearm, causing the death of Escalera. (§ 12022.53, subds. (b)-(e)(1).) A jury found defendant guilty of second degree murder, and it found true the gang and firearm enhancement allegations.

Defendant and Arjona were members of a Sureno gang. Defendant, Arjona, and other people were in the parking lot of an apartment complex in an area claimed by the Sureno gang. Escalera, who was a member of a rival Norteno gang, was walking through this neighborhood with his girlfriend. Defendant pointed out to Arjona that a "buster" (a derogatory term for a Norteno gang member) was coming, and defendant told Arjona to retrieve a gun. Arjona obtained the gun from the waistband of one of the other Sureno members present at the scene.

As defendant's group drew nearer to Escalera and his girlfriend, Escalera said into his phone that he was about to be "jumped" by some Sureno gang members. Around this same time, defendant or a member of his group yelled, "[G]et that fool," or words to that effect. Escalera pulled out a gun. The evidence at trial was disputed as to whether Escalera fired the gun; however, none of the casings or other materials recovered from the scene matched Escalera's gun and the gun's safety was engaged when the weapon was recovered. Arjona shot at Escalera, hitting him at least three times and killing him.

At trial, the prosecution presented three theories as to why defendant was guilty of murder, even though Arjona was the one who fired the gun. The prosecutor argued defendant was guilty as a conspirator to commit murder, as a direct aider and abettor of murder, or as an aider and abettor of an assault on Escalera, which led to the murder as a natural and probable consequence of the intended assault. Regarding the last theory, the prosecutor argued the jury could find defendant guilty of murder because "a coparticipant in the assault to inflict great bodily injury, or conspiracy to assault to inflict great bodily injury, committed murder, and murder was a natural [and] probable consequence of that crime." The prosecutor argued that the jury could only find defendant guilty of second degree murder under this theory, because "if you find this to be the case, [defendant and a codefendant] were going to commit an assault with intent to inflict great bodily injury and someone ended up getting killed. They're still responsible under the natural and probable consequences theory." To support this argument, the prosecutor asserted that under the circumstances, "when you tell someone to get a gun when you're going to jump someone, that a natural and probable consequence of that is someone is going to get shot."

The trial court instructed the jury that it could find defendant guilty of murder under the natural and probable consequences doctrine if the jury found under all the circumstances that "a reasonable person in the defendant's position would have known the commission of the murder . . . was a natural [and] probable consequence of the commission of the conspiracy to assault by force likely to inflict great bodily injury, and/or assault by force likely to commit great bodily injury." The trial court instructed the jury that if it found defendant guilty of murder under the natural and probable consequences doctrine, the conviction must be for second degree murder.

After the jury found defendant guilty of second degree murder but before sentencing, defendant moved for a new trial, citing newly enacted changes to the Penal Code that specified the natural and probable consequences doctrine can no longer support a murder conviction. The trial court's ruling on the motion for a new trial recognized that after defendant's trial, section 188 had been amended to abrogate the natural and probable consequences doctrine, that the amendments applied retroactively to defendant's case, and that at trial, the prosecutor advanced the natural and probable consequences doctrine as a theory of defendant's culpability for murder. However, the trial court denied the motion, ruling that defendant was required to follow the procedures outlined in section 1170.95 (now section 1172.6) by filing a petition for resentencing after he was sentenced. The trial court sentenced defendant to 15 years to life for the murder and a consecutive sentence of 25 years to life for the firearm enhancement.

Defendant appealed the trial court's judgment.^[3] This court granted defendant's application for a stay of the appellate proceedings and returned this matter to the trial court to permit defendant to petition for resentencing under section 1170.95 (now section 1172.6). The trial court issued an order to show cause on defendant's petition and conducted an evidentiary hearing. At the evidentiary hearing, the prosecution did not introduce any new evidence, relying on the record from defendant's trial. The trial court denied the petition, concluding that defendant was ineligible for resentencing because "the record contains proof beyond a reasonable doubt that the defendant is guilty of implied malice second degree murder." Defendant then appealed the denial of his resentencing petition.

III. DISCUSSION

Defendant asserts that his murder conviction must be reversed because the jury was instructed on the natural and probable consequences doctrine, a doctrine rendered invalid after his trial by legislative amendments to the Penal Code. Defendant also asserts that while the jury most likely convicted him of murder under the natural and probable consequences doctrine, the other theory the jury could have convicted him under was as an aider and abettor of implied malice second degree murder, a theory he asserts is invalid under amendments to the Penal Code that took effect after his trial. Defendant also asserts that substantial evidence does not support the gang and firearm enhancements under recent legislative amendments, that the trial court erred in refusing to answer a question from the jury concerning self-defense, that a jury instruction concerning self-defense was erroneous, that prosecutorial misconduct deprived him of a fair trial, that the trial court violated his rights to a fair trial and an unbiased jury by permitting courtroom spectators to wear shirts with Escalera's picture on them, and that the cumulative impact of prejudice from the erroneous instructions rendered his trial unfair.

The Attorney General concedes that the "primary theory" the prosecution advanced for defendant's guilt of second degree murder "was that the murder was a natural and probable consequence of an assault." Because of this and because the jury was instructed defendant could be convicted of second degree murder if the shooting was the natural and probable consequence of defendant's intended assault of Escalera, the Attorney General concedes that defendant's conviction for second degree murder must be reversed and the matter should be remanded for retrial under a valid theory of culpability. The Attorney General argues defendant is entitled to reversal and remand under his direct appeal from the trial court's judgment, and therefore defendant's appeal from the denial of his resentencing petition is moot. The Attorney General then asserts, contrary to defendant's argument,...