People v. Nava CA2/8 ( 2021 )

Filed 1/27/21 P. v. Nava CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303587
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA036614)
v.
FABIAN NAVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Martin L. Herscovitz, Judge. Reversed and
remanded.
Sylvia W. Beckham, 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 Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
A jury convicted Fabian Nava of murdering a rival gang
member in 1999. Nava subsequently petitioned the court for
resentencing pursuant to Penal Code section 1170.95, on the
basis that he was convicted as an aider and abettor under a
natural and probable consequences theory. After issuing an
order to show cause and holding a hearing, the trial court denied
the petition. Nava contends the order must be reversed because
(1) the trial court erroneously concluded the jury convicted him as
a direct aider and abettor and (2) the trial court applied the
wrong legal standard to deny his petition. We reverse and
remand the case for the court to conduct a new hearing.
FACTUAL AND PROCEDURAL BACKGROUND1
Nava was charged with the first degree murder of Carlos
Mora in a gang-related shooting in 1999. At trial, the prosecution
presented evidence showing Mora died after being attacked twice
by members of a rival gang to which Nava belonged. During the
first attack, several members of the gang severely beat Mora and
someone fired a gun at him. Two witnesses identified Nava as a
participant in the assault. Following the initial attack, Mora
tried to escape but was chased down by a car and shot repeatedly
by one of its occupants. Circumstantial evidence showed the
same people were responsible for both attacks.
In closing, the prosecutor briefly argued the evidence
established that Nava was in the car that chased down Mora, and
that he directly aided and abetted the shooter. The prosecutor’s
primary theory, however, was that Nava was guilty of murder
under the doctrine of natural and probable consequences based
1 We take some of the facts from the prior nonpublished
opinion in this case, People v. Nava (July 17, 2002, B151094)
[nonpub. opn.].
2
on the evidence showing he participated in the initial assault.
Consistent with this theory, the trial court instructed the jury as
follows: “One who aids and abets [another] in the commission of
a crime is not only guilty of [that crime] . . . , but is also guilty of
any other crime committed by a principal which is a natural and
probable consequence of the crime[] originally aided and abetted.”
The court further instructed the jury with CALJIC No.
8.20, which defined first degree murder as follows: “All murder
which is perpetrated by any kind of willful, deliberate and
premeditated killing with express malice aforethought is murder
of the first degree. . . . [¶] . . . If you find that the killing was
preceded and accompanied by a clear, deliberate intent on the
part of the defendant to kill, which was the result of
deliberation and premeditation . . . , it is murder of the first
degree. . . . [¶] . . . To constitute a deliberate and premeditated
killing, the slayer must weigh and consider the question of killing
and the reasons for and against such a choice and, having in
mind the consequences, [he] decides to and does kill.”
The jury convicted Nava of first degree murder. It did not
find true the allegation that Nava personally used a firearm
(Pen. Code, § 12022.5),2 but did find the offense was committed
on behalf of a criminal street gang (§ 186.22, subd. (b)(1)) and
that a principal personally and intentionally discharged a firearm
(§ 12022.53, subds. (d) & (e)(1)). This court affirmed the
conviction (People v. Nava (July 17, 2002, B151094) [nonpub.
opn.]).
In August 2018, Nava filed a petition for writ of habeas
corpus asserting he was unlawfully convicted of first degree
2 All further undesignated statutory references are to the
Penal Code.
3
murder. Nava apparently argued his conviction was premised on
the natural and probable consequences doctrine, which People v.
Chiu (2014) 59 Cal.4th 155 held cannot be the basis for a first
degree murder conviction. The prosecution conceded it could not
prove beyond a reasonable doubt that the jury relied on a legally
valid theory to convict Nava of first degree murder. The trial
court granted the petition and reduced Nava’s conviction to
second degree murder.
While Nava’s habeas petition was pending, he separately
filed a petition for recall of sentence pursuant to section 1170.95.
Among other things, Nava suggested he was entitled to relief
because he was convicted under the natural and probable
consequences doctrine, which Senate Bill No. 1437 (2017–2018
Reg. Sess.) (SB 1437) had abolished as a basis for a murder
conviction.
After reviewing the petition, the trial court found Nava set
forth a prima facie basis for relief, appointed counsel to represent
him, and issued an order to show cause why relief should not be
granted.
The prosecution filed a response to the petition and
opposition to the order to show cause, urging the court to deny
Nava’s petition. In support of its arguments, the prosecution
submitted exhibits from the underlying trial, the jury
instructions, excerpts of the reporter’s transcripts, and the
appellate opinion. Nava filed a reply brief in support of his
petition. Before the hearing on the order to show cause, the
parties stipulated to proceed based on the paperwork that had
already been submitted.
At the hearing, the prosecutor argued the court should
deny the petition because it was clear, based on the instructions
4
given at trial, the jury either found Nava acted with actual
malice, or alternatively there was sufficient evidence from which
it could have made that finding. Nava, in response, stressed that
the prosecution in the underlying trial advanced the natural and
probable consequences theory because it was unable to prove he
was the actual shooter.
The trial court concluded Nava was not entitled to relief
and denied his petition. The court reasoned the jury must have
found Nava harbored express malice, as evidenced by the fact
that it was instructed it could convict him of first degree murder
if “the killing was preceded and accompanied by a clear,
deliberate intent on the part of the defendant to kill . . . .” (Italics
added.) The court alternatively found that, even if the
instruction had not been given, relief was not warranted in light
of the evidence showing Nava acted with express malice.
The court summarized its conclusions as follows: “So I
think both the jury found that the defendant formed express[]
malice and intended to kill Mr. Mora, and I think the evidence
supports the decision, that the defendant—that Mr. Mora be
killed, and actively participated in this killing. So for those
reasons, his petition has to be denied.” The court’s minute order
states it denied the petition because it was “convinced beyond
reasonable doubt that the petitioner had express malice when he
aided and abetted the murder of Carlos Mora.”
Nava timely appealed.
DISCUSSION
Nava contends, and the Attorney General concedes, the
trial court erroneously concluded the jury in his underlying trial
convicted him as a direct aider and abettor. Nava also asserts
the court erroneously applied a substantial evidence standard to
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deny his petition. We agree that the jury in Nava’s underlying
trial did not necessarily convict him as a direct aider and abettor.
We further hold that to establish a petitioner’s ineligibility for
relief under section 1170.95, the prosecution must prove, beyond
a reasonable doubt, each element of first or second degree murder
under the law as of January 1, 2019. Here, remand is necessary
because it is not clear whether the court applied this standard to
deny Nava’s petition.3
A. Relevant Law
The Legislature passed SB 1437 in 2018 to “amend the
felony murder rule and the natural and probable consequences
doctrine, . . . 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).) SB 1437 amended section 188 to require that
a principal “shall act with malice aforethought. Malice shall not
be imputed to a person based solely on his or her participation in
a crime.” (§ 188, subd. (a)(3).)
3 The Attorney General contends the trial court prematurely
denied the petition and remand is necessary so that it can issue
an order to show cause and conduct an evidentiary hearing.
Nava does not advance this argument on appeal, and rightfully
so. The record is clear that the trial court issued an order to
show cause as required under section 1170.95, subdivision (c),
and conducted an evidentiary hearing as required under section
1170.95, subdivision (d). Although the parties did not present
new evidence at the hearing, it is because they stipulated not to
do so. The trial court followed the procedures set out in section
1170.95. Accordingly, we do not accept the Attorney General’s
concession that the matter should be remanded on this basis.
6
SB 1437 “did not, however, alter the law regarding the
criminal liability of direct aiders and abettors of murder because
such persons necessarily ‘know and share the murderous intent
of the actual perpetrator.’ [Citations.] One who directly aids and
abets another who commits a murder is thus liable for murder
under the new law just as he or she was liable under the old law.”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review
granted on different grounds Mar. 18, 2020, S260598.)
SB 1437 also added section 1170.95, which sets forth the
procedure by which a “person convicted of felony murder or
murder under a natural and probable consequences theory may
file a petition with the court that sentenced the petitioner to have
the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts . . . .” (§ 1170.95, subd. (a).) The
petition must include a declaration stating the petitioner meets
all the requirements for resentencing, including that the
petitioner “could not be convicted of first or second degree murder
because of changes to Section 188 and 189 made effective
January 1, 2019.” (§ 1170.95, subds. (a)(3), (b)(1)(A).)
Once a complete petition is filed, the court reviews it and
determines whether “the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served . . . . If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c).)
7
After the court issues an order to show cause, a hearing is
held to determine whether to vacate the murder conviction, recall
the sentence, and resentence the petitioner on any remaining
counts. (§ 1170.95, subd. (d)(1).) At the hearing, “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges. The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id., subd.
(d)(3).)
B. Analysis
The trial court suggested two bases for denying Nava’s
petition: (1) the jury necessarily convicted Nava under a direct
aiding and abetting theory and (2) the evidence supported Nava’s
conviction as a direct aider and abettor. We consider each in
turn.
1. Nava was not necessarily convicted as a direct
aider and abettor
As to the trial court’s first basis for denying the petition,
Nava contends, the Attorney General concedes, and we agree,
that the court erred in finding the jury necessarily convicted
Nava as a direct aider and abettor. In reaching its conclusion,
the trial court relied on language in CALJIC No. 8.20 providing
“[i]f you find that the killing was preceded and accompanied by a
clear, deliberate intent on the part of the defendant to kill, which
was the result of deliberation and premeditation . . . , it is murder
of the first degree.” The court reasoned that, in light of this
8
instruction, the jury must have concluded Nava acted with the
intent to kill when it convicted him of first degree murder.
The problem with this reasoning is that CALJIC No. 8.20
does not require the jury find the defendant acted with an intent
to kill to convict him of first degree murder; rather, it states only
that such a finding is sufficient. The instruction, moreover, goes
on to state that “[t]o constitute a deliberate and premeditated
killing, the slayer must weigh and consider the question of killing
and the reasons for and against such a choice and, having in
mind the consequences, [he] decides to and does kill.” (Italics
added.) This reference to “the slayer,” rather than “the
defendant,” permitted the jury to convict Nava of first degree
murder under the natural and probable consequences doctrine.
(In re Loza (2018) 27 Cal.App.5th 797, 805.) Indeed, the trial
court apparently reached this same conclusion when it granted
Nava’s previous petition for habeas corpus.
2. It is not clear whether the trial court applied the
correct standard
As to the trial court’s second basis for denying the petition,
Nava insists the court erroneously employed a substantial
evidence standard, asking whether there is sufficient evidence
from which a jury could convict him of murder under a still-valid
theory. He argues the court was instead required to apply a more
stringent standard, and he suggests two possibilities.
Nava first posits that a trial court may deny a section
1170.95 petition only if it finds, beyond a reasonable doubt, that
the petitioner was actually convicted of murder under a still-valid
theory. This is the same harmless error standard applicable
when a trial court instructed a jury on alternative theories of
guilt, one of which was legally invalid. (See People v. Chiu,
9
supra, 59 Cal.4th at p. 167.) As applied to this case, it would
require the prosecution to prove the jury in Nava’s underlying
trial convicted him under a direct aiding and abetting theory,
rather than a natural and probable consequences theory.
Nava’s proposed standard is inconsistent with the statutory
scheme in at least two ways. First, section 1170.95, subdivision
(a)(3) requires as a necessary condition for resentencing that the
petitioner “could not be convicted of first or second degree murder
because of changes to Section 188 and 189 made effective
January 1, 2019.” Under subdivision (d)(3), the prosecution has
the burden to “prove beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
Reading these provisions together, it follows that a trial court
must deny a petition if the prosecution proves, beyond a
reasonable doubt, that the petitioner could be convicted of first or
second degree murder under the law as of January 1, 2019. The
standard Nava proposes would require the prosecution prove
something different: that the petitioner was convicted under a
still-valid theory.
Further, the provision in section 1170.95, subdivision (d)(3)
permitting the parties to present new evidence to establish their
respective burdens would be superfluous if, as Nava contends,
the determinative issue is whether the petitioner was convicted
under a still-valid theory. Indeed, it would be nonsensical for a
court to consider evidence that was not presented in the
underlying proceedings to determine on what basis the petitioner
was convicted in those proceedings. For these reasons, we reject
Nava’s contention that a trial court may deny a petition only if it
finds the petitioner was actually convicted under a still-valid
theory of murder.
10
We are not persuaded by Nava’s brief contention that his
proposed standard is necessary in order to preserve the
petitioner’s constitutional right to a jury trial. As the court
explained in People v. Anthony (2019) 32 Cal.App.5th 1102, “the
retroactive relief . . . afforded by Senate Bill 1437 is not subject to
Sixth Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate [a petitioner’s]
Sixth Amendment rights. (See People v. Perez (2018) 4 Cal.5th
1055, 1063–1064 [a trial court may make determinations of fact
based on new evidence regarding a petitioner’s eligibility for
resentencing under Proposition 36 because retroactive
application of the benefits from the proposition are a legislative
act of lenity that does not implicate [Sixth Amendment] rights].)”
(People v. Anthony, at pp. 1156–1157.)
Nava proposes in the alternative that a trial court must act
as an independent factfinder and may deny a section 1170.95
petition only if it finds the prosecution has proven, beyond a
reasonable doubt, the petitioner is guilty of murder under a still-
valid theory. There is currently a split of authority as to whether
such a finding is required. In People v. Duke (2020) 55
Cal.App.5th 113, Division One of this District stated the
prosecution need only prove “that the defendant could still have
been convicted of murder under the new law—that a reasonable
jury could find the defendant guilty of murder with the requisite
mental state for that degree of murder [under current law]. This
is essentially identical to the standard of substantial evidence, in
which the reviewing court asks ‘ “ ‘whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond a
reasonable doubt . . . . [¶] . . .” [Citation.]’ [Citation.]” (Id. at
p. 123.)
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The court in People v. Lopez (2020) 56 Cal.App.5th 936(Lopez), disagreed with Duke, holding the plain language of
section 1170.95 requires “the prosecutor to prove beyond a
reasonable doubt each element of first or second degree murder
under current law in order to establish ineligibility . . . .” (Lopez,
at p. 942.) The court explained the substantial evidence standard
is applied “by an appellate court on appeal of a judgment of
conviction. It is not a standard of proof to be employed by a fact
finder.” (Id. at p. 950.)
The court in People v. Rodriguez ( 2020) 58 Cal.App.5th 227(Rodriguez), reached the same conclusion. The court explained
that the legislative goal of section 1170.95—to reform “aider and
abettor liability in homicide cases to more equitably sentence
both past and future offenders in relation to their own actions
and subjective mentes reae”—is “best effectuated by
resentencing . . . if the evidence, whether from the record of
conviction alone or with new and additional evidence introduced
at the subdivision (d)(3) hearing, fails to establish beyond a
reasonable doubt [petitioners], in fact, acted during the crime
with the now-required mental state. To deny resentencing
simply because a jury could have found that they may have acted
with express malice would frustrate the legislation’s purpose.”
(Rodriguez, at pp. 240–241.)
The court further noted that “beyond a reasonable doubt” is
the standard of proof considered by the independent factfinder in
a criminal trial. Moreover, just two months before the
introduction of SB 1437, the California Supreme Court held a
prosecutor must prove beyond a reasonable doubt a petitioner is
ineligible for resentencing under Proposition 36, the Three
Strikes Reform Act of 2012. (See People v. Frierson (2017) 4
12
Cal.5th 225, 226.) In light of this context, the Rodriguez court
found it unlikely the Legislature would have used “beyond a
reasonable doubt” language in SB 1437 had it “intended only an
appellate-type review of the sufficiency of the evidence of the
petitioner’s guilt on a still-viable theory, rather than requiring
the prosecutor to actually establish the petitioner’s guilt under
the newly amended statutes.” (Rodriguez, supra, 58 Cal.App.5th
at p. 242.)
The Rodriguez court criticized Duke’s “overly literal
analysis” of the statutory language, explaining: “Use of a
conditional verb in section 1170.95, subdivision (a)(3), is a normal
grammatical construct to express the hypothetical situation an
inmate . . . faces when filing the petition—what would happen
today if he or she were tried under the new provisions of the
Penal Code? [Citation.] But once a prima facie case of eligibility
has been made and an order to show cause issued, the
prosecution’s burden is neither conditional nor hypothetical.
Under subdivision (d)(3) the prosecutor must prove ‘the petitioner
is ineligible for resentencing,’ not that he or she might be or could
be ineligible.” (Rodriguez, supra, 58 Cal.App.5th at p. 241.)
We find the reasoning in Lopez and Rodriguez persuasive
and agree with their conclusion that a trial court must act as an
independent factfinder and determine whether the prosecution
has established beyond a reasonable doubt the petitioner is guilty
of murder under the law as of January 1, 2019. Our conclusion is
also consistent with the Supreme Court’s recent decision in
People v. Gentile (2020) 10 Cal.5th 830, in which the high court
explained “section 1170.95 requires the superior court to
determine on an individualized basis, after considering any new
13
or additional evidence offered by the parties, whether the
defendant is entitled to relief.” (Id. at p. 855.)
Here, there is some ambiguity as to what standard the trial
court applied. Although the court’s minute order indicates it was
“convinced beyond reasonable doubt that the petitioner had
express malice when he aided and abetted the murder of Carlos
Mora,” its oral statements at the hearing suggest it may have
applied a substantial evidence standard. In its concluding
remarks, for example, the court noted “the evidence supports [the
jury’s] decision” that Nava formed express malice and intended to
kill Mora. (Italics added.) Had the court been acting as an
independent factfinder, there would have been no reason to
reference the jury’s decision. Out of an abundance of caution, and
to remove any ambiguity, we remand the case for the trial court
to conduct a new hearing and clearly state its findings on the
record.
DISPOSITION
The judgment is reversed. The case is remanded for the
trial court to conduct a new hearing under section 1170.95,
subdivision (d).
BIGELOW, P. J.
We Concur:
GRIMES, J. STRATTON, J.
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