People v. Medrano

• Decision Date: 03 December 2019
• Docket Number: F068714,F069260
• Citation: 42 Cal.App.5th 1001,256 Cal.Rptr.3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Xavier Ysauro MEDRANO et al., Defendants and Appellants.

42 Cal.App.5th 1001

256 Cal.Rptr.3d 200

The PEOPLE, Plaintiff and Respondent,

v.Xavier Ysauro MEDRANO et al., Defendants and Appellants.

F068714

F069260

Court of Appeal, Fifth District, California.

Filed December 3, 2019

As Modified on Denial of Rehearing December 23, 2019

Certified for Partial Publication.^*

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Xavier Ysauro Medrano.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Trinidad Valdez Martinez.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Rey Robert Avellanoza.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

INTRODUCTION

Defendants Xavier Ysauro Medrano (also known as Xavier Ysidro Medrano), Trinidad Valdez Martinez, and Rey Robert Avellanoza were found guilty after a jury trial of attempted murder, burglary, assault with a firearm, and participation in a criminal street gang. Avellanoza was found guilty of shooting into an inhabited dwelling; Medrano and Martinez were acquitted of this charge. Enhancements alleging premeditation and deliberation, use of firearms, causing great bodily injury, and committing the offenses for a criminal street gang were also found true by the jury. Each defendant received a substantial state prison sentence, including an indeterminate sentence for the attempted first degree murder conviction. The defendants were only partially successful in their appeal of the judgment.

On February 1, 2017, the California Supreme Court granted Medrano's and Martinez's petitions for review pending consideration and disposition of People v. Mateo , S232674. The Supreme Court denied Avellanoza's petition for review (remittitur issued Feb. 7, 2017). On April 10, 2019, the California Supreme Court returned the case to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). In connection with the Supreme Court's transfer, the remittitur pertaining to Avellanoza was recalled on October 8, 2019. In supplemental briefing, Martinez and Medrano now argue the recent enactment of Senate Bill 1437 requires reversal of their attempted murder convictions because the jury instructions and the prosecutor's arguments allowed the jury to convict them on the now repudiated theory that attempted murder was a natural and probable consequence of aiding and abetting assault likely to cause bodily harm and because Penal Code section 188 no longer permits imputed malice. (Undesignated statutory references are to the Penal Code.) Relatedly, they argue Senate Bill 1437 applies to charges of attempted murder and that relief should be available through direct appeal, rather than limited to the petitioning procedure provided for in newly enacted section 1170.95. Martinez further contends the trial court should be permitted to exercise its newfound discretion to strike or dismiss the firearm enhancements imposed pursuant to sections 12022.5 and 12022.53 (Sen. Bill No. 620 (2017–2018 Reg. Sess.) [Senate Bill 620] ), and the five-year prior serious felony enhancement imposed pursuant to section 667 (Sen. Bill No. 1393 (2017–2018 Reg. Sess.) [Senate Bill 1393] ).

In the published part of this opinion, we find merit to the new claims pertaining to the natural and probable consequences doctrine as to Medrano and Martinez. We conclude Senate Bill 1437 not only abrogated the continuing application of this doctrine to murder charges, we further determine this change in the law applies to attempted murder charges premised on this doctrine. In doing so, we part company with our sister courts in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175, and People v. Munoz (2019) 39 Cal.App.5th 738 ( Munoz ), review granted November 26, 2019, S258234. However, we agree with Lopez and Munoz that the petitioning procedure added in section 1170.95 does not apply to attempted murder. Because the section 1170.95 petitioning procedure does not apply to defendants for their convictions of attempted murder, we review their claim under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and conclude defendants are entitled to relief on direct appeal. Thus, we reverse the judgments of conviction for attempted murder as to Medrano and Martinez.

In the unpublished part of the opinion, as to all three defendants, we reverse the gang convictions and the gang enhancements. At resentencing, the court shall consider whether to exercise its discretion pursuant to Senate Bills 620 and 1393, if applicable to any defendant. In all other respects, the judgments are affirmed.

PROCEDURAL BACKGROUND ^†

DISCUSSION

I. Dismissal of Original Information^††

II. Effect of Senate Bill 1437

A. Abbreviated Factual Summary

We briefly summarize the salient facts as they pertain to the question of the effects of Senate Bill 1437 to Medrano's and Martinez's convictions for attempted murder.

Machado lived in a mobilehome where he was growing medical marijuana. At around 11:00 p.m. on November 24, 2010, Machado was at home when he heard a truck outside. Shortly after, he heard multiple footsteps on his porch. Someone said "FBI" just before kicking in his door and entering. (Machado subsequently identified the defendants as those who entered his home.) Machado grabbed a shotgun and crouched down in his bedroom on the right side of a couch between his bed and a closet. Machado recognized Avellanoza standing in the doorway. Avellanoza pointed a pistol at Machado and fired. Machado fired back. Several bullets grazed his body and one penetrated Machado's shoulder. After the shots were fired, Machado could see Medrano and Martinez fleeing from the "marijuana grow room." Each was carrying a handgun. Additional gunfire was directed toward Machado through the wall of his bedroom by defendants as they exited his home.

The jury found all three defendants guilty of attempted murder, and true allegations that each used a firearm in its commission. However, the jury did not find true that Medrano and Martinez acted as principals or caused great bodily injury. On the other hand, the jury found true allegations Avellanoza personally used a firearm, acted as a principal and that he inflicted great bodily injury. In addition, Avellanoza was found guilty of shooting into an inhabited dwelling. Medrano and Martinez were acquitted of this charge.

Among other theories, the jury was instructed on the natural and probable consequences doctrine to support attempted murder liability against Medrano and Martinez.

B. Introduction

On September 30, 2018, while defendants' petition for review in this case was pending in the California Supreme Court, 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. "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.) These changes reflect the Legislature's intent that "[a] person's culpability for murder ... be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g); see People v. Martinez (2019) 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860 ; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147, 244 Cal.Rptr.3d 499.)

C. Contentions

Martinez and Medrano contend they are entitled to relief under Senate Bill 1437 because the prosecutor argued, and the court instructed the jury, that Martinez and Medrano could be convicted of attempted murder based on the now invalidated natural and probable consequences theory. Specifically, Martinez argues he "is entitled to some form of relief on appeal from the attempted-murder conviction because amendment of section 188 now forbids imputed malice which benefits [Martinez] and his conviction is not yet final." He asserts "[e]ither the petition process [provided for in section 1170.95] must be interpreted as applying to crimes other than murder, i.e., to the lesser included offense of attempted murder, or the petition process does not operate as [an] implied savings clause for attempted-murder convictions and, thus, does not preclude retroactive application of the ameliorative amendment of version [sic ] of section 188 to cases not yet final." He contends "[r]eversal of the conviction on appeal would afford the prosecution the option of retrial on the issue of malice because reversal will not be upon grounds of insufficient evidence."

Similarly, Medrano argues Senate Bill 1437's amendment to section 188, subdivision (a)(3) "repeals the natural and probable consequences theory of murder liability" and "allows murder liability based only upon the individual defendant's mens rea." Accordingly, "murder can no longer be based only on the putative...