People v. Romero CA2/8 ( 2021 )

Filed 2/9/21 P. v. Romero CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306870
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA362787)
v.
JASON ROMERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Renee F. Korn, Judge. Affirmed.
Brett Harding Duxbury, 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, Daniel C. Chang and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Jason Romero appeals from the denial of his petition for
resentencing under Senate Bill No. 1437 (SB 1437), which
“amend[ed] 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).) The trial court found
Romero ineligible for relief as a matter of law because the record
demonstrates he was convicted as a direct aider and abettor.
We affirm.
PROCEDURAL BACKGROUND
On August 7, 2009, Jose R. was killed in a drive-by
shooting involving Romero, Christian Venegas, and Hernaldo
Ramos.1 The prosecution’s theory at trial was that Venegas was
the shooter; Romero directly aided and abetted by procuring a car
and a driver to accomplish the drive-by shooting; and Ramos was
the driver, who aided and abetted either directly (if he knew
about the gun), or under a natural and probable consequences
theory (if he did not). Romero was found guilty of first degree
murder and the jury found true additional firearm and gang
enhancements. He was sentenced a term of 50 years to life.
In his direct appeal, Romero asserted the trial court
committed instructional error, including that the instruction on
natural and probable consequences was incomplete or misleading
1 For purposes of this opinion, we need only summarize the
facts underlying Romero’s conviction. They are set forth in detail
in the opinion affirming the judgment against Romero (People v.
Venegas et al. (Nov. 5, 2012, B233131) [nonpub. opn.]) and the
decision denying his petition for writ of habeas corpus (In re
Romero (Oct. 9, 2018, B288243) [nonpub. opn.]).
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because it allowed the jury to conclude murder, rather than first
degree murder, was a natural and probable consequence of the
target crime of assault. We rejected Romero’s argument, noting
that “the record indicates the natural and probable consequences
theory was only argued as to Ramos, not Romero. The prosecutor
contended Romero was guilty of directly aiding and abetting
murder.” (People v. Venegas, supra, B233131, at pp. 10–11.)
Alternatively, we concluded, “even if the trial court should
have explicitly instructed the jury that first degree murder, not
just murder, must have been a reasonably foreseeable
consequence of the assault, . . . any error was harmless beyond a
reasonable doubt” because “[t]he evidence was overwhelming that
if Romero was guilty at all, he was guilty of a deliberate,
premeditated murder.” (Venegas, supra, B233131, at pp. 12–13.)
We further observed, “the jury asked whether it could find
Romero guilty of first degree murder as an aider and abettor,
even if it concluded Venegas was not the perpetrator. This
question suggested that while the jurors may have had some
doubt that Venegas was the shooter, they had no doubt Romero
was guilty of first degree murder.” (Venegas, supra, B233131, at
p. 13.) We affirmed the judgment against Romero.
Romero raised similar issues in his petition for writ of
habeas corpus to the Supreme Court. There, he argued he was
entitled to a new trial in light of People v. Chiu (2014) 59 Cal.4th
155, 158–159 (Chiu), which held that an aider and abettor may
not be convicted of first degree murder under the natural and
probable consequences doctrine. Although he conceded the
prosecution rested on a theory of “straight aiding and abetting,”
he argued the jurors were nevertheless provided a second theory
for conviction because the trial court instructed them on a
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natural and probable consequences theory of aiding and abetting
a planned assault. According to Romero, the jury could have
applied the natural and probable consequences instruction to him
as well as to Ramos, despite the prosecution’s argument.
On transfer from the Supreme Court, we found the trial
court instructed the jury in error under Chiu, but the error was
harmless beyond a reasonable doubt because the record showed
the jury relied on a direct aiding and abetting theory. (In re
Romero, supra, B288243, at p. 4.) In reaching this conclusion,
we again relied on the evidence provided at trial, the
prosecution’s theory of the case, and the jury’s question.
Additionally, we observed the trial court instructed the jury
to only consider a direct aiding and abetting theory as to Romero
when it responded to the jury question whether it could find
Romero guilty of first degree murder as an aider and abettor,
even if it concluded Venegas was not the perpetrator. The court
answered the question as follows: “In order to convict Mr.
Romero under an aiding and abetting theory, the People must
prove that he aided and abetted a perpetrator. That perpetrator
may be any other person. An aider and abettor may be convicted
of murder in the 1st or 2nd degree. For the elements of aiding
and abetting, please refer to instructions 400 and 401.” We found
the trial court’s reference to CALCRIM Nos. 400 and 401, which
describe direct aiding and abetting, and its failure to refer the
jury to CALCRIM Nos. 403 and 520, which explain the theory of
natural and probable consequences, “was a clear indication to the
jury that it should base its verdict regarding Romero on direct
aiding and abetting principles.” (In re Romero, supra, B288243,
at p. 4.)
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On May 22, 2019, Romero filed a petition for resentencing
pursuant to SB 1437. The trial court appointed counsel, and the
parties were given an opportunity to be heard on the petition.
The trial court denied the petition for resentencing, finding “the
Court of Appeal has already ruled that Romero was convicted of
murder as a direct aider and abettor. Quite simply, the facts do
not support that Petitioner was convicted on a felony murder
theory or murder under a natural and probable consequences
theory.” Romero timely appealed.
DISCUSSION
I. Governing Law
Effective as of January 1, 2019, SB 1437 was enacted 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).) Thus, SB 1437
amended Penal Code section 1882 to require that a principal to
murder act with malice aforethought, which will “not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)
Likewise, felony murder liability under section 189 was limited to
a defendant who was the “actual killer,” an aider or abettor in the
commission of murder in the first degree, or “a major participant
in the underlying felony [who] acted with reckless indifference to
human life.” (§§ 188, subd. (a)(3), 189, subd. (e), as amended by
Stats. 2018, ch. 1015, §§ 2, 3.) In short, SB 1437 did not change
2 All further statutory references are to the Penal Code
unless otherwise specified.
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the liability for a defendant who was convicted of murder as a
direct aider and abettor. (People v. Martinez (2019) 31
Cal.App.5th 719, 722–723 (Martinez).)
Section 1170.95 sets forth a three-step procedure for
defendants to seek resentencing if they could not be convicted of
murder in light of the changes to sections 188 and 189.
(Martinez, supra, 31 Cal.App.5th at p. 723.) In step one, the
defendant files a petition with the sentencing court to vacate the
defendant’s murder conviction and to obtain resentencing on any
remaining counts. (§ 1170.95, subd. (a).) The petition must
satisfy the following three conditions to make the initial prima
facie showing that he or she is eligible for relief: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine. (2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder. (3) The petitioner could not be convicted
of first or second degree murder because of changes to Section[s]
188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(a).)
If the defendant has made the initial prima facie showing
in step one, the trial court appoints counsel to represent him or
her. (§ 1170.95, subd. (c).) In step two, the defendant must make
a second prima facie showing that he or she is “entitled” to relief
rather than “eligible” for relief. At this stage of the proceedings,
the trial court may review the petition, its own file, and the
record of conviction, including a Court of Appeal opinion and a
jury’s findings in the underlying trial. (People v. Lewis (2020)
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43 Cal.App.5th 1128, 1137–1138 (Lewis), review granted Mar. 18,
2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 333,
review granted Mar. 18, 2020, S260493; People v. Torres (2020)
46 Cal.App.5th 1168, 1178, review granted June 24, 2020,
S262011.)
If the defendant demonstrates he or she is entitled to relief
in step two, the court must issue an order to show cause why
relief should not be granted. (§ 1170.95, subd. (c).) If the court
issues an order to show cause, a hearing will be held to determine
whether to vacate the murder conviction. (Lewis, supra, 43
Cal.App.5th at p. 1136.) In this third step of the proceedings, the
parties “may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (§ 1170.95,
subd. (d)(3).)
II. The Record Reveals Romero Is Ineligible For Relief
as a Matter of Law3
Romero contends the trial court erred to deny his petition
because the record does not conclusively establish which theory
the jury relied on to convict him. In making this argument,
Romero urges us to review the record, including the evidence
presented at trial, the prosecutor’s theory of the case, the jury’s
question, and the trial court’s response, and reach a different
conclusion from that of our previous two decisions.
Having concluded beyond a reasonable doubt that the jury
based his conviction on a theory that he directly aided and
abetted the murder, we decline to reverse ourselves. The issue
whether Romero acted as a direct aider and abetter has been
3 Romero’s second request for judicial notice of the appellate
court file from his direct appeal, People v. Romero, B233131, is
granted. (Evid. Code, § 459.)
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litigated and finally decided against him. (Lewis, supra, 43
Cal.App.5th at p. 1138, review granted on a different ground,
Mar. 18, 2020, S260598; see generally 1 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Defenses, § 208, pp. 683–684
[collateral estoppel applies in criminal cases].) In any event,
Romero had the burden to make a prima facie showing that he
was eligible for relief. (Lewis, supra, at p. 1137.) Aside from pure
speculation that the jury may have found him guilty of murder
under a natural and probable consequences theory in the face of
ample evidence to the contrary, Romero has failed to make such a
showing under section 1170.95.
DISPOSITION
The order denying Romero’s petition for resentencing under
section 1170.95 is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
STRATTON, J.
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