People v. Iraheta, B173223 (Cal. App. 11/20/2009)

• Decision Date: 20 November 2009
• Docket Number: B173223
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CARLOS MIGUEL IRAHETA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. CARLOS MIGUEL IRAHETA, Defendant and Appellant.

B173223

Court of Appeals of California, Second Appellate District, Division Three

November 20, 2009

Appeal from a judgment of the Superior Court of Los Angeles County, No. YA053907, John V. Meigs, Judge. Reversed.

Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports

KLEIN, P. J.

Defendant and appellant, Carlos Miguel Iraheta, appeals the judgment entered following his conviction, by jury trial, for second degree murder with firearm use findings (Pen. Code, §§ 187, subd. (a), 12022.53).¹

The judgment is reversed.

FACTUAL BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established the following.

1. Prosecution evidence.

On December 20, 2002, a man stared hard at Noe Martinez as he stood in line at an Inglewood liquor store. Two hours later, Martinez passed the liquor store while riding in his car and saw the same man standing outside. The man was talking to some people in a car being driven by defendant Iraheta. After the man pointed at Martinez, Iraheta began following Martinez's car. Martinez became concerned and asked his friend Michael Orozco, who was driving, to stop at the side of the road. Orozco did and Martinez got out of the car. Iraheta pulled up next to Martinez's car, produced a revolver, reached across the front passenger seat and fired one shot out the window. The shot hit Orozco in the neck, killing him.

The police apprehended Iraheta shortly thereafter. A revolver found in Iraheta's car had fired the fatal bullet.

2. Defense evidence.

Iraheta testified he was not a gang member, but he carried a handgun for protection because he had been beaten up earlier that year. On the day of the incident, Iraheta was out driving with his girlfriend and his brothers when he stopped at the liquor store to see his friend, Herman. Herman said the occupants of a passing white car had given him problems. Herman did not, however, tell Iraheta to shoot the people in the white car. After Iraheta left the liquor store, he saw the white car stopped in the middle of the street in front of him. Martinez was standing next to the car. As Iraheta slowly maneuvered around the white car, one of his brothers said, "[K]eep moving; he's got a gun." Orozco was sitting in the driver's seat with something in his hand, which Iraheta thought was a small handgun. Iraheta reached for his own gun, fired a single shot out the passenger-side front window of his car, and sped away.

Although there was testimony from a number of other defense witnesses, including Iraheta's girlfriend and his brothers, none of it shed any further light on what occurred at the exact moment of the shooting. However, the general tenor of this other testimony contradicted the prosecution theory that Iraheta had aggressively gone after the white car in order to assault its occupants.

PROCEDURAL BACKGROUND

On December 12, 2004, Iraheta's appellate counsel filed an opening brief contending the trial court had erred by giving inadequate jury instructions on imperfect self-defense and by coercing a verdict from the jury. The Attorney General filed a responsive brief, but Iraheta's attorney did not file a reply brief or ask for oral argument. On January 26, 2006, this court issued an unpublished opinion rejecting Iraheta's contentions and affirming his conviction. There was no petition for rehearing or petition seeking review by the California Supreme Court. We issued the remittitur on March 30, 2006.

On February 6, 2007, this court received a letter from Iraheta. He inquired about the status of his case, indicating that his retained appellate attorney, who had agreed to file a reply brief and present oral argument, had not been in touch with him. On April 16, this court, acting sua sponte, issued an order recalling the remittitur, vacating the opinion, reinstating the appeal and directing the appointment of new counsel on appeal. Our order stated: "[I]t appears that appellant's retained counsel on appeal . . . abandoned the representation of [appellant] prior to the conclusion of the appeal by failing to communicate with [appellant] or participate in the litigation of the appeal after the filing of the appellant's opening brief."

Newly appointed appellate counsel filed a new opening brief raising different issues than the ones briefed by Iraheta's previous attorney. On April 30, 2008, this court affirmed the conviction. The Supreme Court subsequently granted Iraheta's petition for review and, on June 10, 2009, transferred the case back to us with directions to vacate our decision and reconsider the cause in light of People v. Chun (2009) 45 Cal.4th 1172. We have received supplemental briefing from the parties and we now reverse Iraheta's conviction.

CONTENTIONS

1. The Attorney General contends the remittitur should not have been recalled.

2. Iraheta contends he was improperly convicted of second degree felony murder.

DISCUSSION

1. Remittitur was not improvidently recalled.

The Attorney General contends the appeal should be dismissed because recall of the remittitur was improvidently granted. We disagree.

"The legal principles applicable to the recall of remittiturs are fairly well settled. `Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error. . . . [A] decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error.' [Citation.] `[W]hile the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued, a mistake or an improvident act which results in prejudicial error or miscarriage of justice may nevertheless be corrected upon a recall of remittitur.'" (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 165; see Rowland v. Kreyenhagen (1864) 24 Cal. 52, 60 [remittitur properly recalled if "the order or judgment had been irregularly made; that is, made upon a false suggestion, or under a mistake as to the facts of the case"].)

Thus, in People v. Hickok (1949) 92 Cal.App.2d 539, the remittitur was recalled to save a criminal appeal that had been dismissed when confusion between newly retained and former counsel led to a failure to file the opening brief: "[T]he appellant, the real party in interest, was not at fault. He was incarcerated and was doing all that he could to protect his rights, and thought that he had done so. . . . In a proper case the court . . . has power to recall a remittitur inadvertently or improperly issued. [Former California Rules of Court, r]ule 25(d) provides that `A remittitur may be recalled by order of the reviewing court on its own motion, on motion after notice supported by affidavits, or on stipulation setting forth facts which would justify the granting of a motion.' This is an inherent power of the court and was recognized long before the above rule was adopted. [Citations.] Under these cases, and others that could be cited, and under the rule, one of the grounds for exercising the power is that the court has been induced to decide the case under a misapprehension of the true facts. That rule is applicable here." (Id. at pp. 540-541.) The current version of rule 25(d) is California Rules of Court, rule 8.272(c)(2), which provides: "On a party's or its own motion or on stipulation, and for good cause, the court may stay a remittitur's issuance for a reasonable period or order its recall."

In the case at bar, this court was operating under the mistaken belief Iraheta was being actively represented by counsel when, in fact, he was not. Iraheta's attorney filed an opening brief, but then failed to carry out promises to file a reply brief and appear for oral argument. Subsequently, the attorney failed to inform Iraheta his appeal had been denied. Our docket indicates the clerk of the court twice sent Iraheta's attorney a copy of our former opinion in this matter, and twice the opinion was returned to the clerk as undeliverable. These facts established good cause for recalling the remittitur.

Hence, we reject the Attorney General's contention that recall of the remittitur was improvidently granted.

2. Iraheta was improperly convicted of second degree felony murder.

Iraheta contends his conviction must be reversed because the jury was improperly instructed on second degree felony murder and the error was prejudicial. This claim is meritorious.²

The jury was instructed on three possible theories of second degree murder: (1) an intentional killing where the evidence was insufficient to prove premeditation and deliberation; (2) an unintentional killing resulting from a dangerous act performed with conscious disregard for human life; and, (3) second degree felony murder based on a killing committed while violating section 246 (shooting at an occupied motor vehicle). When Iraheta's case was initially before this court, he claimed his conviction had to be reversed because the felony-murder instruction should have been excluded by the merger doctrine set forth in People v. Ireland (1969) 70 Cal .2d 522. We rejected this claim, citing the analyses in People v. Hansen (1994) 9 Cal.4th 300, People v. Robertson, supra, 34 Cal.4th 156, and People v. Randle (2005) 35 Cal.4th 987.

In People v. Chun, supra, 45 Cal.4th 1172, our Supreme Court overruled Hansen, Robertson, and Randle. Chun reviewed the history of the Ireland merger doctrine and held: "When the underlying felony is...