People v. Romero CA5 ( 2021 )

Filed 4/1/21 P. v. Romero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080588
Plaintiff and Respondent,
(Super. Ct. No. F13905308)
v.
ANGELITO AMANCIO ROMERO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff,
Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Detjen, J.
Defendant Angelito Amancio Romero was convicted of second degree murder.
Following an appeal in which we affirmed, defendant unsuccessfully petitioned for relief
under Penal Code section 1170.951 based on the newly enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437). Appointed counsel for defendant asked this
court to review the record to determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
responded, contending (1) Senate Bill 1437 applies to him because his jury was instructed
with CALCRIM No. 520 on natural and probable consequences; (2) implied malice was
not proved at trial because the victim, Jennifer Starr—not defendant—was the actual
“driver” of the vehicle as she grabbed the steering wheel and caused the accident that
resulted in her death; (3) the trial court essentially directed the verdict because defendant
was charged with second degree murder; and (4) the trial court should have instructed on
the unforeseeability of Starr’s death. Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm.
BACKGROUND
“In 2013, defendant was driving under the influence on the highway, and his
girlfriend[, Starr,] was sitting in the front passenger seat. Defendant was driving 80 miles
an hour when his van crossed over the traffic lanes, crashed into a tree on the right
shoulder, and went into a spin. [Starr] was thrown into the backseat; she died at the scene
as a result of blunt force trauma. Defendant’s blood-alcohol level was determined to be
between 0.17 percent and 0.175 percent at the time of the fatal collision.” (People v.
Romero (Jun. 20, 2018, F073680) [nonpub. opn.] at p. 2 (Romero).)
On September 18, 2014, a first amended information charged defendant with
“MURDER, in violation of … SECTION 187(a), a felony, … committed by
1 All statutory references are to the Penal Code.
2.
Angelito Amancio Romero, who did unlawfully, and with malice aforethought murder
Jennifer Mcelrath Starr.” The information further alleged that defendant personally
inflicted great bodily injury upon Starr in the commission of the crime (§ 1203.075).
“Prior to trial, the prosecution filed a trial brief/motion in limine stating that it was
pursuing a second degree murder conviction under an implied malice theory pursuant to
People v. Watson (1981) 30 Cal.3d 290 (Watson), based on defendant’s prior DUI
convictions, the murder admonishment he received in his 2008 prior conviction, and
driving under the influence in this case.[2]
“The People’s motion asserted that there were no lesser included offenses for the
murder charge in this case. The People stated that gross vehicular manslaughter while
intoxicated, and involuntary manslaughter, were not lesser included offenses of an
implied malice second degree murder, as set forth in People v. Sanchez (2001) 24 Cal.4th
983 (Sanchez) and section 192, subdivision (b).
“At a pretrial hearing, the court said it had reviewed the People’s motion and
agreed that lesser included offenses were not applicable in this case. However, the court
deferred any final ruling on the instructions until after the evidence had been introduced.
“The court asked defense counsel if he wanted to be heard. Defense counsel
replied, ‘No, I concur.’ ” (Romero, supra, F073680, at pp. 14–15, fn. omitted.)
At trial, defendant testified on his own behalf, explaining, in essence, that Starr
had caused the accident. Defendant testified he “was going between 65 to 70 miles
per hour in the far left ‘fast’ lane. [¶] … Starr again accused him of being involved with
the other woman. Defendant denied it, Starr yelled at him, and they argued. Defendant
claimed that Starr had been wearing her seatbelt, but she suddenly ‘got off her seat’ and
2 A “Watson murder” is a second degree murder based on implied malice,
committed when “the intoxicated killer drove while aware of the risk to life and
consciously disregarded that risk ….” (People v. Doyle (2013) 220 Cal.App.4th 1251,
1265.)
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grabbed the steering wheel. Defendant did not know if Starr released her seatbelt before
she grabbed the steering wheel. Defendant lost control of the van and did not have time
to react. The van crossed over three lanes and crashed into the tree.
“Defendant testified that Starr was in the control of the van when it crossed over
the lanes and crashed into the tree: ‘I was not in control [of the van] at the time of the
accident.’ Defendant admitted that he spoke to first responders while he was being
treated at the scene of the crash. He gave his name and birthdate, and identified Starr, but
he did not tell anyone that Starr grabbed the steering wheel. Defendant testified he did
not mention this fact because he did not trust the police.” (Romero, supra, F073680, at
pp. 11–12.)
“After the parties rested, the court reviewed the proposed jury instructions. The
court stated the defense had requested CALCRIM No. 590 on gross vehicular
manslaughter while intoxicated as a lesser included offense of murder. The court asked
defense counsel for argument on the matter.
“ ‘[DEFENSE COUNSEL]: I’ll withdraw it, Judge.
“ ‘THE COURT: All right. Is that based on the Court’s prior ruling
on motions in limine and/or trial tactic decision?
“ ‘[DEFENSE COUNSEL]: Yes.’ ” (Romero, supra, F073680, at
p. 15, fns. omitted.)
“The jury was instructed on second degree murder as the only theory of guilt. The
jury was not instructed on any lesser included offenses.” (Romero, supra, F073680, at
p. 15.)
On March 17, 2016, the jury found defendant guilty of second degree murder
(§ 187, subd. (a)) and found true the allegation that he personally inflicted great bodily
injury on Starr in the commission of the crime (§ 1203.075).
On April 20, 2016, the trial court sentenced defendant to 15 years to life in prison.
4.
Defendant appealed, and on June 20, 2018, we affirmed the judgment. (Romero,
supra, F073680.)
About six months later, on January 1, 2019, Senate Bill 1437 went into effect. It
amended sections 188 and 189, narrowing the scope of culpability for murder, and added
section 1170.95. (See Stats. 2018, ch. 1015, §§ 1–3.)
In 2019, defendant filed a petition for resentencing pursuant to the newly enacted
section 1170.95.
On December 19, 2019, the trial court denied the petition, explaining that
defendant failed to make a prima facie showing that he fell within the provisions of
section 1170.95 because he was not convicted of felony murder or murder under a natural
and probable consequences theory.
On January 6, 2020, defendant filed a notice of appeal.
DISCUSSION
We first note that most of the issues raised by defendant needed to be raised in his
appeal after trial; they are no longer timely. The only issue properly before us now is his
appeal from the trial court’s denial of his section 1170.95 petition.
I. Implied Malice Second Degree Murder and Senate Bill 1437
“Murder is the unlawful killing of a human being … with malice aforethought.”
(§ 187, subd. (a).) “[M]alice may be express or implied. [¶] … Malice is express when
there is manifested a deliberate intention to unlawfully take away the life of a fellow
creature. [¶] … Malice is implied when no considerable provocation appears, or when
the circumstances attending the killing show an abandoned and malignant heart.”
(§ 188.) Stated another way, “[m]alice is implied when the killing is proximately caused
by ‘ “an act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.” ’ [Citation.] In short, implied
malice requires a defendant’s awareness of engaging in conduct that endangers the life of
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another—no more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143; see
People v. Taylor (2004) 32 Cal.4th 863, 868.) This is a subjective standard: the
defendant must have actually appreciated the risk involved. (Watson, supra, 30 Cal.3d at
p. 297.)
In 2018, the Legislature enacted Senate Bill 1437 after determining there was
further “need for statutory changes to more equitably sentence offenders in accordance
with their involvement in homicides.” (Stats. 2018, ch. 1015, § l, subd. (b).) Senate
Bill 1437 changed murder liability under two theories—(1) the felony-murder rule and
(2) the natural and probable consequences doctrine—through two statutory amendments.
Only the latter is relevant here.
Before the enactment of Senate Bill 1437, “malice could be imputed to an aider
and abettor under the natural and probable consequences doctrine.” (People v. Roldan
(2020) 56 Cal.App.5th 997, 1002 (Roldan), italics added.) “When an accomplice aid[ed]
and abet[ted] a crime, the accomplice [was] culpable for both that crime and any other
offense committed that [was] the natural and probable consequence of the aided and
abetted crime. Natural and probable consequences liability [could] be imposed even if
the accomplice did not intend the additional offense.” (People v. Gentile (2020) 10
Cal.5th 830, 838 (Gentile).) Thus, “an aider and abettor who lacked express malice but
merely engaged in activity of which murder was a natural and probable consequence
could have implied malice imputed to him or her, and could therefore be convicted of
second degree murder.” (Roldan, at p. 1002.) Stated differently, “the natural and
probable consequences doctrine rendered a defendant liable for murder if he or she aided
and abetted the commission of a criminal act (a target offense), and a principal in the
target offense committed murder (a nontarget offense) that, even if unintended, was a
natural and probable consequence of the target offense.” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 248.) “[T]o amend the natural and probable consequences doctrine,
Senate Bill 1437 added section 188, subdivision (a)(3) … [, and now,] to be convicted of
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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.’ ” (Gentile, at
pp. 842–843; § 188, subd. (a)(3), added by Stats. 2018, ch. 1015, § 2.)
Understandably, CALCRIM No. 520’s reference to “natural and probable
consequences” in the definition of implied malice3 may be confused with the natural and
probable consequences doctrine of aiding and abetting within the meaning of Senate
Bill 1437 and section 1170.95. They are, however, “distinctly different concepts.”
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056–1057 (Soto), review granted Sept. 23,
2020, S263939.) Senate Bill 1437 “removed the natural and probable consequences
doctrine as a basis for a murder conviction only insofar as it applied to aider and abettor
liability.” (Roldan, supra, 56 Cal.App.5th at p. 1004, italics added.) “Senate Bill
No. 1437 changed the circumstances under which a person could be convicted of murder
without a showing of malice, but it did not exclude from liability persons convicted of
murder for acting with implied malice.” (Soto, at p. 1057, italics added, fn. omitted.)
“For implied malice murder, [the requisite] intent is that the perpetrator ‘ “knows
that his conduct endangers the life of another and … acts with conscious disregard for
life.” ’ [Citation.] The ‘physical component’ required for implied malice murder ‘is
satisfied by the performance of “an act, the natural consequences of which are dangerous
to life.” ’ [Citation.] [¶] The natural and probable consequence doctrine, by contrast, is
a theory of liability by which an aider and abettor who intends to aid a less serious crime
can be convicted of a greater crime. This doctrine comes into play when ‘an accomplice
3 CALCRIM No. 520 provides, in relevant part: “The defendant had implied malice
if: [¶] 1. (He/She) intentionally (committed the act/[or] failed to act); [¶] 2. The natural
and probable consequences of the (act/[or] failure to act) were dangerous to human life;
[¶] 3. At the time (he/she) (acted/[or] failed to act), (he/she) knew (his/her) (act/[or]
failure to act) was dangerous to human life; [¶] AND [¶] 4. (He/She) deliberately
(acted/[or] failed to act) with conscious disregard for (human/[or] fetal) life.” (Italics
added.)
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assists or encourages a confederate to commit one crime, and the confederate commits
another, more serious crime (the nontarget offense).’ [Citation.] Applying the natural
and probable consequences doctrine, ‘a defendant may be held criminally responsible as
an accomplice not only for the crime he or she intended to aid and abet (the target crime),
but also for any other crime that is the “natural and probable consequence” of the target
crime.’ [Citation.] Unlike aiding and abetting implied malice murder, which requires the
aider and abettor to (at least) share the mental state of the actual perpetrator of implied
malice murder, ‘ “aider and abettor culpability under the natural and probable
consequences doctrine is not premised upon the intention of the aider and abettor to
commit the nontarget offense [e.g., murder] because the nontarget offense was not
intended at all.” ’ ” (Soto, supra, 51 Cal.App.5th at p. 1058.)
Thus, Senate Bill 1437 eliminated the aider and abettor culpability under the
natural and probable consequences doctrine. The theory of second degree implied malice
murder, on the other hand, survived Senate Bill 1437. (Soto, supra, 51 Cal.App.5th at
pp. 1057–1058.)
II. Procedure under Senate Bill 1437
As we noted, Senate Bill 1437 also added section 1170.95 to provide a
postjudgment procedure by which a defendant “convicted of felony murder or murder
under a natural and probable consequences theory” may petition the trial court to have the
“murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95,
subd. (a), added by Stats. 2018, ch. 1015, § 4.)
Once a section 1170.95 petition is filed, there follows a multi-step process by
which the trial court first determines whether the petition is facially complete. “[T]he
person must file a petition with the trial court that sentenced the petitioner declaring,
among other things, that the petitioner ‘could not be convicted of first or second degree
murder because of changes to Section 188 or 189.’ (§ 1170.95, subd. (a)(3); see
§ 1170.95, subd. (b)(1)(A).) Then, the trial court must ‘review the petition and determine
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if the petitioner has made a prima facie showing that the petitioner falls within the
provisions of th[e] section.’ (§ 1170.95, subd. (c).)” (Gentile, supra, 10 Cal.5th at
p. 853.) To do so, the court must determine whether “(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) [t]he 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[, and] [¶] (3) [t]he petitioner could not
be convicted of first or second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a); id., subd. (c).) If the court
determines at this stage the petitioner is ineligible for relief as a matter of law, the
petition is denied; if not, the court proceeds to the next step, in which “the trial court must
issue an order to show cause and hold a hearing to determine whether to vacate the
murder conviction and to resentence the petitioner on any remaining counts. (§ 1170.95,
subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).) ‘The
prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ ” (Gentile, at p. 853.)
III. Analysis
In this case, the information charging defendant in 2014, in which he was the sole
defendant, alleged that he committed the murder of Starr with malice aforethought, and
personally inflicted great bodily injury upon her in the commission of the crime. The
prosecution proceeded on a theory of implied malice second degree murder under
Watson. The jury was instructed on implied malice murder, but not on felony murder or
the natural and probable consequences doctrine as it relates to aiding and abetting
liability for murder. The jury found defendant guilty as charged.
9.
In 2019, defendant filed, in propria persona, a section 1170.95 petition for
resentencing alleging on a pre-printed form that (1) the information filed against him in
2014 allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) at trial, he was convicted of
first or second degree murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine; (3) he could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189 pursuant to Senate
Bill 1437; and (4) he was convicted of second degree murder under the natural and
probable consequences doctrine and could not now be convicted of murder because of
changes made to section 188.
The trial court did not err in denying defendant’s section 1170.95 petition for
resentencing. Defendant was not charged with or convicted of murder under the natural
and probable consequences doctrine directed at accomplice liability. (See § 1170.95,
subd. (a)(1), (2); People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted
Aug. 12, 2020, S263219 [the defendant was ineligible as a matter of law where the jury
was not instructed on natural and probable consequences doctrine or felony-murder rule];
People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020,
S262481 [the defendant “could not meet the statutory prerequisites for even filing a
section 1170.95 petition because he was not charged or convicted of second degree
felony murder or murder under the natural or probable consequences doctrine directed at
accomplice liability”]; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1157 [the
defendant did not make the requisite prima facie showing that he was convicted of
murder under a natural and probable consequences theory].) Further, defendant could
still be convicted of second degree murder under the law as changed by Senate Bill 1437.
(See § 1170.95, subd. (a)(3).)
In sum, we have reviewed the record and find no arguable issues on appeal.
10.
DISPOSITION
We take judicial notice of the record and our prior opinion in Romero, supra,
F073680. The order denying defendant’s section 1170.95 petition for resentencing is
affirmed.
11.