People v. Estrada

• Decision Date: 25 April 2022
• Docket Number: B311019
• Parties: The PEOPLE, Plaintiff and Respondent, v. Obed ESTRADA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 941

292 Cal.Rptr.3d 844

The PEOPLE, Plaintiff and Respondent,

v.Obed ESTRADA, Defendant and Appellant.

B311019

Court of Appeal, Second District, Division 8, California.

Filed April 25, 2022

Rudolph J. Alejo, Berkeley, 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, Amanda V. Lopez and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

HARUTUNIAN, J.^*

Obed Estrada appeals from an order denying his petition for resentencing under Penal Code section 1170.95.¹ A jury previously convicted Estrada of one count of first degree murder. We affirmed that conviction in an unpublished opinion. ( People v. Estrada , 2011 WL 5995909 (Nov. 28, 2011, B226963) [nonpub. opn.].)

After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), Estrada filed a petition for resentencing under section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill No. 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) The trial court denied Estrada's petition, finding that Estrada was not eligible for relief as a matter of law because the record demonstrated he was convicted as an aider and abettor. We agree and affirm the order denying Estrada's petition for resentencing.

BACKGROUND²

In 2010, a jury found Estrada guilty of one count of first degree murder with a gang enhancement. (§§ 186.22, subd. (b)(1)(C); 187, subd. (a).) The jury found not true allegations that Estrada personally and intentionally discharged or used a firearm. The trial court sentenced Estrada to a total prison term of 50 years to life. Estrada appealed, and we affirmed.

In March 2019, Estrada filed a petition for resentencing pursuant to section 1170.95, declaring he was not the actual killer, did not act with intent to kill, and was not a major participant in the felony or did not act with reckless indifference to human life. The trial court appointed counsel for Estrada, and both parties submitted briefing.

In January 2021, the trial court held a hearing and denied Estrada's petition without issuing an order to show cause, after finding that Estrada did not meet his prima facie burden under section 1170.95. The trial court found that nothing in the record reflected that Estrada was prosecuted under a natural and probable consequences theory. The court also noted that the felony murder doctrine was not relevant to Estrada's case. The court found that Estrada was convicted under an aiding and abetting theory, and that Estrada acted as a "backup" or "security" in this "classic aider and abettor case."

Estrada timely appealed.

DISCUSSION

I. Governing Law

On January 1, 2019, Senate Bill No. 1437 took effect " ‘to amend 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.’ " ( People v. Lewis (2021) 11 Cal.5th 952, 959, 281 Cal.Rptr.3d 521, 491 P.3d 309 ( Lewis ).) Senate Bill No. 1437 amended sections 188 and 189 of the Penal Code and added section 1170.95, which provides a procedure for individuals convicted of murder who could not be convicted under the law as amended to retroactively seek relief. ( Lewis, supra, 11 Cal.5th at p. 957, 281 Cal.Rptr.3d 521, 491 P.3d 309 ; People v. Gentile (2020) 10 Cal.5th 830, 842–843, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).)

Section 1170.95 created a three-part eligibility test: (1) the defendant must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a theory of felony murder or under the natural and probable consequences doctrine, (2) the defendant must have been convicted of first or second degree murder, and (3) the defendant could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 effectuated by Senate Bill No. 1437. ( § 1170.95, subd. (a).)

A petition for relief under section 1170.95 must include a declaration that the petitioner is eligible for relief based upon meeting these three requirements, the superior court case number and year of conviction, and a statement as to whether the petitioner requests the appointment of counsel. ( § 1170.95, subds. (b) (1) (A)-(C).) "Where the petition complies with [ section 1170.95,] subdivision (b)’s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief." ( Lewis , supra , 11 Cal.5th at p. 960, 281 Cal.Rptr.3d 521, 491 P.3d 309, citing § 1170.95, subd. (c).)

If the court determines the petitioner has made a prima facie showing of eligibility for relief, it must issue an order to show cause. ( § 1170.95, subd. (c).) If the parties do not stipulate that the petitioner is entitled to relief at that point, then the court must hold a hearing and vacate the murder conviction if the prosecution fails to prove that the petitioner is ineligible for relief beyond a reasonable doubt. ( § 1170.95, subd. (d).)

II. Estrada Is Ineligible for Relief as a Matter of Law

Estrada argues that the trial court erred because the record establishes that he may have been convicted of first degree murder under a natural and probable consequences theory. We disagree. The record establishes that Estrada was convicted of first degree murder as an aider and abettor with intent to kill, and he is therefore ineligible for resentencing under section 1170.95. (See Gentile , supra , 10 Cal.5th at p. 848, 272 Cal.Rptr.3d 814, 477 P.3d 539 ["Senate Bill No. 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"].)

First, as we previously held, the record establishes that the jury instructions "ensured that the jury would only find Estrada guilty of first degree murder, even as an aider and abettor, if it concluded he acted willfully and with intent to kill ...." ( People v. Estrada , supra , B226963 at p. 17.) Accordingly, to find Estrada guilty of first degree murder, which the jury did here, it necessarily found that he acted with intent to kill, not merely that murder was the natural and probable consequences of a nonhomicide crime he committed. The natural and probable consequences doctrine was amended by Senate Bill No. 1437 precisely because it allowed a factfinder to impute malice based solely on participation in a nonhomicide crime, which Senate Bill No. 1437 changed to require actual malice. (See Gentile , supra , 10 Cal.5th at p. 845, 272 Cal.Rptr.3d 814, 477 P.3d 539 [until the enactment of Senate Bill No. 1437, "when a person aided and abetted a nonhomicide crime that then resulted in a murder, the natural and probable consequences doctrine allowed him or her to be convicted of murder without personally possessing malice aforethought"].) Because the changes in Senate Bill No. 1437 to the natural and probable consequences doctrine do not apply to those who act with malice in aiding and abetting, the trial court's denial of Estrada's petition was appropriate here. (See Gentile , supra , 10 Cal.5th at p. 848, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Second, the trial court never instructed the jury on CALCRIM Nos. 402 or 403, which contain the natural and probable consequences doctrine. Estrada concedes this fact. Instead, he argues that because the trial court provided to the jury a bracketed portion of CALCRIM No. 400, this bracketed instruction, coupled with statements by the prosecution in the closing argument, which Estrada characterizes as a "natural and probable consequences theory of first-degree murder," could have led a jury to find him guilty of first degree murder on a natural and probable consequences theory.

The Bench Notes to CALCRIM No. 400 provide in relevant part: "When the prosecution is relying on aiding and abetting, give this instruction before other instructions on aiding and abetting to introduce this theory of culpability to the jury." It goes on to state: "If the prosecution is also relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph." (Judicial Council of Cal., Crim. Jury Instns. (2022) Bench Notes to CALCRIM No. 400.) This bracketed paragraph reads: "Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." (Ibid .)³ The People do not dispute that this bracketed paragraph was given to the jury.

The Bench Notes to CALCRIM No. 400 further instruct that after CALCRIM No. 400 is given, "[d]epending on which theories are relied on by the prosecution, the court should then instruct" the jury on either (1) " CALCRIM No. 401, Aiding and Abetting: Intended Crimes" for "Target Crimes," or (2) CALCRIM Nos. 402 or 403 for "Natural & Probable Consequences Doctrine (Non-Target Crimes)," and that the latter is appropriate when "the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime ...." (Judicial Council of Cal., Crim. Jury Instns., supra , Bench Notes to CALCRIM No. 400, emphasis omitted.)

Here, only CALCRIM No. 401 —regarding aiding and abetting liability—was given to the jury. The record establishes, and Estrada concedes, that the prosecution never argued the trial court should give CALCRIM Nos. 402 or 403 because they are required under the Bench Notes when proceeding on a natural and probable consequences theory. (Judicial Council of Cal., Crim. Jury Instns., supra , Bench Notes to CALCRIM No. 400.)...