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Attempted murder convictions reversed due to instruction in natural and probable consequences

People v. Perez (Cal. Ct. App., May 2, 2022, No. B300396) 2022 WL 1302282, at *1
Summary: Appellants Perez,Rosas and Sanchez engaged in a fist fight with two men outside of a liquor store in the middle of the day. During the fight, Perez retrieved a gun from his car and fired at the two men as they ran into a busy street. Perez’s shots missed the men, but struck three passing vehicles, including a four-year-old boy in the backseat of his mother’s car. Appellants challenge the application of the natural and probable consequences doctrine to Rosas’s and Sanchez’s convictions. The Coirt of Appeal held the attempted murder must be reversed

Senate Bill 1437 and the Natural and Probable Consequences Doctrine
Senate Bill No. 1437 amended the law of accomplice liability for murder by amending the felony murder rule and the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830.)

Senate Bill No. 1437 also added section 1170.95, which created a procedure by which a person convicted of felony murder or murder under a natural and probable consequences theory could apply to have his or her murder conviction vacated and be resentenced on any remaining counts. (§ 1170.95, subd. (a).) Pursuant to section 1170.95, an offender must file a petition averring that: “(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 188 or 189 made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3).)

If the petitioner makes a prima facie showing that he falls within the provisions of section 1170.95, the court issues an order to show cause. (§ 1170.95, subd. (c).) The court then holds a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) The burden of proof is 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.” (§ 1170.95, subd. (d)(3).) In People v. Gentile, supra, 10 Cal.5th at page 855, 272 Cal.Rptr.3d 814, 477 P.3d 539, our Supreme Court held that the section 1170.95 petitioning process was the exclusive mechanism for seeking retroactive relief for those defendants who were convicted under a natural and probable consequences theory of murder regardless of whether a sentence was final.
Senate Bill No. 775 (2021–2022 Reg. Sess.), which took effect on January 1, 2022, amended the section 1170.95 petition process to include individuals convicted of “attempted murder under the natural and probable consequences doctrine.” (Stats. 2021, ch. 551, § 2.) It further allows offenders to challenge their convictions that come under the purview of section 1170.95 on direct appeal. (§ 1170.95, subd. (g).)

The parties agree that the trial court erred by instructing the jury on the natural and probable
consequences doctrine with respect to the attempted murder charges. Moreover, they agree that Senate Bill No. 775 applies to this case because Rosas and Sanchez will not have exhausted their appeal rights from their judgments of conviction and sentence before January 1, 2022 when the law became effective. (See In re Estrada (1965) 63 Cal.2d 740, 744–745, 48 Cal.Rptr. 172, 408 P.2d 948 [absent evidence of contrary legislative intent, we infer Legislature intended ameliorative criminal statutes to apply to all cases not final when statutes become effective].)
Remedy
Senate Bill No. 775 was silent on what the appropriate remedy is for a defendant who successfully challenges the validity of his conviction on direct appeal. Section 1170.95, subdivision (d)(3) allows both parties to produce additional evidence and gives the prosecution an opportunity to establish a valid theory of murder, such as direct aiding and abetting implied or express malice murder. While the Legislature amended both subdivisions (d)(3) and (g), it did not state that vacation of the conviction on appeal without a subdivision (d)(3) hearing is the appropriate remedy.
Here, we conclude that reversing the convictions and remanding the matter to give the prosecution the opportunity to retry the attempted murder counts against Sanchez and Rosas is appropriate. The statutes clearly contemplate an opportunity for the prosecution to present new or additional evidence to show that defendants can still be convicted under a valid theory of aiding and abetting. Where the prosecution makes its case under the law as it stood at trial, double jeopardy is not implicated as it would otherwise be where there is insufficient evidence. (People v. Shirley (1982) 31 Cal.3d 18, 71, 181 Cal.Rptr. 243, 723 P.2d 1354; see Burks v. United States (1978) 437 U.S. 1, 11–15, 98 S.Ct. 2141, 57 L.Ed.2d 1.) Thus, we reverse the attempted murder counts as to Sanchez and Rosas and direct the trial court to allow the prosecutor to retry those counts based on a currently valid theory.

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