People v. Larios

• Decision Date: 03 December 2019
• Citation: 256 Cal.Rptr.3d 223,42 Cal.App.5th 956
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Rodriguez LARIOS, Defendant and Appellant.

42 Cal.App.5th 956

256 Cal.Rptr.3d 223

The PEOPLE, Plaintiff and Respondent,

v.Richard Rodriguez LARIOS, Defendant and Appellant.

Court of Appeal, Fifth District, California.

Filed December 3, 2019

Jeffrey S. Kross, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

Richard Rodriguez Larios appeals from an order denying a petition for recall of sentence and resentencing pursuant to Penal Code section 1170.95. (Statutory references are to the Penal Code unless otherwise stated.) This order is appealable pursuant to section 1237, subdivision (b), as an order after judgment affecting the substantial rights of the defendant. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 600–601, 179 Cal.Rptr.3d 365, 336 P.3d 686 [denial of petition for recall and resentencing appealable as order after judgment].) The convictions upon which Larios had petitioned were three counts of attempted murder, which were final at the time he filed his petition. Larios's counsel has raised no issue on appeal and asked this court for an independent review of the record to determine whether there are any arguable issues. ( People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.) Larios's counsel advised Larios, as did this court, of his right to file a supplemental brief to bring to this court's attention any issue he believes deserves review. ( People v. Kelly (2006) 40 Cal.4th 106, 120, 51 Cal.Rptr.3d 98, 146 P.3d 547.) Larios filed a supplemental brief in which he challenges the applicability of the natural and probable consequences doctrine to his case, and he requests resentencing under section 1170.95. After initial consideration of his arguments, this court requested briefing from counsel on the scope and applicability of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) to the crime of attempted murder, and in particular, final convictions of attempted murder. We directed counsel to discuss the recent cases of People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019, S258234 ( Munoz ) and People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175 ( Lopez ), which have addressed similar issues. Although we find ourselves in fundamental disagreement with the Lopez and Munoz decisions on the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder, we agree with their ultimate conclusion that section 1170.95 provides no relief for the crime of attempted murder. Consequently, we affirm the trial court's order denying relief to Larios on his petition.

PROCEDURAL AND FACTUAL HISTORY

We grant Larios's request to take judicial notice, pursuant to Evidence Code section 452, subdivision (d), of the unpublished opinion in People v. Larios 2011 WL 3655165 (Cal.App.5th. Aug. 19, 2011, F059866) (Larios I ). This court summarized the relevant facts and judicial proceedings in Larios I as follows:

"... Larios and his codefendant Ronnie Zuniga were two of three Norteno occupants of a brown or tan Mercury Cougar automobile that stopped to get gas at a convenience store on Bardsley Avenue in Tulare. Already there at a gas pump was a black Nissan Maxima occupied by two Surenos, Irving Rodriguez and Juan Saucedo, and a friend of Rodriguez's since childhood, 17-year-old Stephanie G. After some staring or ‘mad dogging’ between the rival gang members at the gas pumps, and a brief verbal exchange between Norteno Zuniga and Sureno Saucedo when the two men went inside the store to pay for gas, the Cougar followed the Maxima when the Maxima drove away from the convenience store. A short distance away, approximately five gunshots were fired from the Cougar, at least four of which struck the Maxima. None of the bullets struck any of the three occupants of the Maxima, although Stephanie G. received cuts from shattered window glass.

"A first trial ended in a mistrial when the jury could not reach a verdict. In the second trial, the subject of this appeal, a jury found both Larios and Zuniga guilty of three counts of premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)) and one count of shooting at an occupied motor vehicle (§ 246). The jury also found that the crimes were committed for the benefit of a street gang (§ 186.22, subd. (b)(4)) and that a principal personally discharged a firearm in the commission of each crime (§ 12022.53, subds. (c) and (e)(1)). Each defendant was sentenced to a term of 54 years to life." ( Larios I , supra , F059866, fn. omitted.)

In Larios I , this court directed the trial court to strike the 20-year section 12022.53 enhancement imposed and stayed on count 4, but in all other respects, affirmed.

The remittitur on the appeal in Larios I issued on November 3, 2011.

On January 2, 2019, Larios filed a petition seeking relief under recently enacted section 1170.95, in the Tulare Superior Court. In a preprinted form request for resentencing petition, Larios alleged he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and he could not now be so convicted because of newly effective changes to sections 188 and 189. The petition further alleged he was eligible for resentencing because he was not the actual killer; he did not intend to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; he was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony; and the victim of the murder was not a peace officer in the performance of his or her duties.

On January 9, 2019, the trial court summarily denied the petition, stating Larios was convicted of three counts of attempted murder, in violation of sections 664 and 187, and was "unable to establish a prima facie basis of eligibility for relief."

DISCUSSION

In his brief, Larios emphasizes that he was not the shooter, there was no evidence at trial that he knew or should have known that another person in the vehicle was armed with or was going to use a firearm, and there was no evidence that he aided or abetted in the commission of this crime. To the extent Larios is asking us to reconsider the sufficiency of the evidence as it pertains to his convictions, that time has long passed. As for his request that we grant his appeal for resentencing pursuant to section 1170.95, we have sought the input of counsel by directing them to answer the following questions in supplemental briefing:

"1. Does Senate Bill 1437 abrogate the natural and probable consequences doctrine as a theory of accomplice liability for crimes requiring the mental state of express malice aforethought?

"2. If the answer to the first question is yes, does Senate Bill 1437 provide or contemplate an exception for the crime of attempted murder?

"3. If the current law prohibits accomplice liability for attempted murder under the natural and probable consequences doctrine, does Penal Code section 1170.95 provide relief to persons convicted of attempted murder, whose convictions are final, as in the case of appellant herein?"

A. Does Senate Bill 1437 abrogate the natural and probable consequences doctrine as a theory of accomplice liability for crimes requiring the mental state of express malice aforethought?

Counsel for Larios observes, with no elaboration, that the court in Lopez "held that Senate Bill 1437 eliminated liability for murder under the natural and probable consequences doctrine." The People, more directly, answer this question "No." The People argue the history of Senate Bill 1437 and the plain language of the statutes amended by the legislation support this answer. Relying on both Lopez and Munoz , the People conclude the new legislation "abrogated the natural and probable consequences doctrine as a theory of accomplice liability for murder and nothing else."

We disagree with the People's conclusion, and in the process, disagree with our colleagues in Lopez and Munoz.

On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[ed] 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) This was accomplished through amendments to sections 188 and 189. It also added section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)

As to the natural and probable consequences doctrine, at issue here, Senate Bill 1437 added a provision to section 188 concerning the mens rea for accomplice liability as follows: "(3) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2.) "Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer ‘be imputed to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)" ( In re R.G. (2019) 35 Cal.App.5th 141, 144, 247 Cal.Rptr.3d 24 ; accord, Lopez , supra , 38 Cal.App.5th at p. 1103, rev. granted; Munoz , supra , 39 Cal.App.5th at p. 749, rev. granted.) These changes...