People v. Love

• Decision Date: 01 October 2020
• Docket Number: B302892
• Citation: 55 Cal.App.5th 273,269 Cal.Rptr.3d 349
• Parties: The PEOPLE, Plaintiff and Respondent, v. Davaughn LOVE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

55 Cal.App.5th 273

269 Cal.Rptr.3d 349

The PEOPLE, Plaintiff and Respondent,

v.Davaughn LOVE, Defendant and Appellant.

B302892

Court of Appeal, Second District, Division 2, California.

Filed October 1, 2020

As Modified on Denial of Rehearing October 15, 2020

Certified for Partial Publication.^*

Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

HOFFSTADT, J.

In 2018, Senate Bill 1437 amended the statutes defining the crime of murder to eliminate, in all but one context, liability for murder based on the so-called "natural and probable consequences theory." ( Pen. Code, §§ 188, 189.)¹ Under that theory, a defendant may be held liable for murder if (1) he aids and abets some lesser crime, (2) the person he aided and abetted commits a murder, and (3) murder was a natural and probable consequence of the lesser crime. ( People v. Prettyman (1996) 14 Cal.4th 248, 262, 58 Cal.Rptr.2d 827, 926 P.2d 1013 ( Prettyman ), superseded in part by Sen. Bill No. 1437.)

But did Senate Bill 1437 also eliminate the natural and probable consequences theory of liability for attempted murder ?

So far, the Courts of Appeal have split three ways on the question. The first group has held that Senate Bill 1437 did not eliminate the natural and probable consequences theory for attempted murder at all—either prospectively or retroactively. ( People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-1093, 252 Cal.Rptr.3d 33, review granted Nov. 13, 2019, S258175 ( Lopez ); People v. Munoz (2019) 39 Cal.App.5th 738, 754, 252 Cal.Rptr.3d 456, review granted Nov. 26, 2019, S258234 ( Munoz ); People v. Dennis (2020) 47 Cal.App.5th 838, 841, 261 Cal.Rptr.3d 250, review granted July 29, 2020, S262184; People v. Alaybue (2020) 51 Cal.App.5th 207, 222, 264 Cal.Rptr.3d 876.) The second group has held that Senate Bill 1437 eliminated the natural and probable consequences theory for attempted murder prospectively, but not retroactively. ( People v. Larios (2019) 42 Cal.App.5th 956, 966, 969-970, 256 Cal.Rptr.3d 223, review granted Feb. 26, 2020, S259983 ( Larios ); People v. Sanchez (2020) 46 Cal.App.5th 637, 642, 259 Cal.Rptr.3d 829, review granted June 10, 2020, S261768 ( Sanchez ).) The last group has held that Senate Bill 1437 eliminated the natural and probable consequences theory for attempted murder prospectively and retroactively as to nonfinal convictions, but not retroactively as to final convictions. ( People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019, 256 Cal.Rptr.3d 200, review granted Mar. 11, 2020, S259948 ( Medrano ).)

Our Supreme Court has granted review on this question, and will soon provide guidance. We nevertheless publish because our analysis of the issue differs enough from the rationales of the other decisions that it may provide an additional perspective for the Supreme Court to consider. Specifically, we hold that Senate Bill 1437 does not eliminate the natural and probable consequences theory for attempted murder on any basis—either prospectively or retroactively. In reaching this holding, we conclude that (1) Senate Bill 1437's inapplicability to the crime of attempted murder on a prospective basis is not clear from its text, but is clear from its legislative history and not contradicted by any of the other canons of statutory construction, and (2) even if Senate Bill 1437 applied prospectively to the crime of attempted murder, that application would not have any retroactive effect because the bill's statutory mechanism for providing retroactive relief—namely, section 1170.95—limits relief to "convictions" for "murder," which rebuts the usual presumption that ameliorative changes in the law apply retroactively to nonfinal convictions ( In re Estrada (1965) 63 Cal.2d 740, 745-746, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada )).

For these reasons, and because we reject a further challenge to the sentence at issue in this case in the unpublished portion of this opinion, we affirm the order denying relief under Senate Bill 1437 as well as the judgment.

FACTS AND PROCEDURAL BACKGROUND

I. Facts²

In mid-August 2015, Davaughn Love (defendant) drove a fellow gang member (Antwoine Vaughn) into a rival gang's territory in the midst of a retaliation campaign against that rival gang. They enlisted a third gang member to follow them in a separate car and videotape their anticipated exploits. Once they arrived in the rival gang's territory, "[defendant] stopped the car, and Vaughn got out and approached a man standing on the sidewalk with a woman and two children. After exchanging a few words, Vaughn pulled out a gun and opened fire on the man's back. Vaughn continued ‘shooting wildly’ as the man tried to flee into a nearby intersection. All in all, 10 bullets hit the man (causing injuries to his head, chest, leg and hand), and three bullets struck a nearby car that was driving through the intersection. Vaughn got back into the car, and [defendant] drove away." The next day, defendant sent a text message to Vaughn, reminding him to "move" the gun.

II. Procedural Background

A. Initial trial court proceedings

The People charged defendant with (1) the attempted murder of the man Vaughn shot 10 times (§§ 187, subd. (a), 664, subd. (a)), and (2) shooting at the occupied vehicle struck by another three bullets Vaughn shot (§ 246). The People further alleged that these crimes were committed "for the benefit of, at the direction of, or in association with" a criminal street gang (§ 186.22, subd. (b)(4)), and that a principal had discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)).³

The trial court instructed the jury that defendant could be held liable for attempted murder (1) if he aided and abetted Vaughn in committing the attempted murder, (2) if he aided and abetted Vaughn in committing an "assault" and attempted murder was a natural and probable consequence of that assault, or (3) if he and Vaughn conspired to commit an assault and attempted murder was a foreseeable consequence of that conspiracy.

The jury convicted defendant of attempted murder and shooting at an occupied vehicle. The jury also found the gang and firearm allegations to be true.

The trial court sentenced defendant to state prison for life, with a minimum term of 47 years. For the attempted murder, the court sentenced defendant to life in prison with a minimum term of 32 years, with the minimum comprised of 7 years for the attempted murder itself plus an additional 25 years for the firearm enhancement. For shooting at an occupied vehicle, the court imposed a consecutive life term with a minimum term of 15 years.

B. First appeal

Defendant appealed his conviction and sentence. In an unpublished opinion issued on April 5, 2018, we affirmed defendant's conviction and sentence but remanded the matter so that the trial court could determine whether to exercise its newly conferred discretion to strike the firearm enhancement.

Defendant petitioned for review before the Supreme Court, and the Supreme Court granted review and remanded the matter to us with directions to consider whether to apply the newly enacted Senate Bill 1437.

After entertaining further briefing on the applicability of Senate Bill 1437, we issued an unpublished opinion on May 30, 2019 that (1) affirmed defendant's convictions, (2) remanded the matter for the trial court to consider whether to strike the firearm enhancement, and (3) denied any relief pursuant to Senate Bill 1437 without prejudice to defendant filing a petition for relief with the trial court pursuant to the mechanism set forth in section 1170.95 for seeking relief under the bill.

C. Proceedings on remand

1. Petition for relief under section 1170.95

On September 18, 2019 and October 7, 2019, defendant filed two separate petitions seeking to vacate his attempted murder conviction on the basis of section 1170.95.

On October 22, 2019, the trial court denied his motions on the ground that section 1170.95 does not apply to convictions for attempted murder.

2. Resentencing

On October 24, 2019, defendant filed a motion asking the trial court to exercise its newly conferred discretion to strike the 25-year firearm enhancement on the attempted murder count. In that motion, defendant urged that "substantial evidence" supported a finding that he "intended only to aid and abet a physical assault, not a shooting," and that his lack of personal intent to "kill anyone" warranted a 25-year reduction in his sentence.

The trial court held a hearing on November 20, 2019. After recounting the facts of the case, the court expressed its "confiden[ce]" that, "[b]ased on the totality of the evidence that was presented in this case," defendant "knew what was going on, that it wasn't just merely going to beat up" a rival gang member. The court reasoned: "You don't ... bring a gun to go beat somebody up. When you're going into rival gang territory, you're armed, and [defendant] was integral to the shooting." Given defendant's "integral" role, the court declined to "exercise its discretion to strike the gun allegation."

D. This appeal

On November 20, 2019, defendant filed a notice of appeal from the order denying his petitions for relief under section 1170.95. On May 6, 2020, we issued an order construing that notice of appeal also to encompass the trial court's judgment that declined to strike the firearm enhancement.

DISCUSSION

I. Denial of Relief under Senate Bill 1437

Defendant argues that he is entitled to have his attempted murder conviction vacated because it possibly rests on a natural and probable consequences theory. Resolving this argument requires us to examine two questions: (1) Does Senate Bill 1437 prospectively apply to the crime of attempted murder, and thus bar a conviction that potentially...