SB 1437 applies to attempted murder convictions based on the natural and probable consequences doctrine

People v. Medrano, 2019 WL 6487272 (Cal.App. 5 Dist.), 21 (Cal.App. 5 Dist., 2019)

Natural and probable consequences doctrine and attempted murder

The Fifth District Court of Appeal held that Senate Bill 1437 not only abrogated the natural and probable consequences doctrine to murder charges but attempted murder charges also. The Fifth District departed from decisions made by other Appellate 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, it agreed with  Lopez and Munoz that the petitioning process for re-sentencing added in section 1170.95 does not apply to attempted murder. Instead, the Court reviewed their claim under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and concluded defendants are entitled to relief on direct appeal. The Court reversed the judgments of conviction for attempted murder as to Medrano and Martinez.

Salient Facts:

Machado lived in a mobile home where he grew medical marijuana. On November 24, 2010, Machado was at home when he heard a truck outside. He then heard multiple footsteps on his porch. Someone said “FBI” and kicked in his door and entered. Machado later  identified the defendants as those who entered his home.Machado grabbed a shotgun and crouched down in his bedroom. 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.

SB 1437 and the natural and probable consequences doctrine

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.” SB 1437   amended Penal Code 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 convictions.

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.)

Argument that SB 1437 applies to attempted murder

 Martinez and Medrano applied for 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.

Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted a crime, the natural and probable consequences of which was attempted murder or murder, could be convicted of not only the target crime but also of the resulting attempted murder or murder, but not first degree murder. (People v. Chiu (2014) 59 Cal.4th 155, 161, 166, 172 Cal.Rptr.3d 438, 325 P.3d 972; In re R.G., supra, at p. 144, 247 Cal.Rptr.3d 24.) “ ‘By its very nature, 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 because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense.’ ” (People v. Chiu, supra, 59 Cal.4th at p. 164, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

The Court concluded that Senate Bill 1437 precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder.  Since “implied malice cannot support a conviction of an attempt to commit murder” (People v. Bland, supra, 28 Cal.4th at p. 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107; see fn. 4, ante), the current version of section 188 requires proof the aider and abettor acted with the intent to kill while aiding and abetting the target offense.

In departing from the rulings in Lopez and  Munoz, the Court found the legislative intent to restrict the imputation of malice in prosecutions for both murder and attempted murder is demonstrated by the precise language used to amend section 188 where it did not provide an exception for attempted murder

The Court found that Senate Bill 1437’s abrogation of the natural and probable consequences doctrine as stated in section 188, subdivision (a)(3) necessarily applies to attempted murder. To hold otherwise would ignore the plain language of the statute and conflict with the underlying policy of the legislation.

Martinez and Medrano cannot petition for re-sentencing under Section 1170.95

 The plain language of section 1170.95, subdivision (a) limits relief to persons “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court ….” No language in section 1170.95 references relief to persons convicted of attempted murder. The legislative history of Senate Bill 1437 supports the conclusion section 1170.95 was intended to apply only to persons convicted of murder.

Martinez and Medrano may not obtain relief at the trial court level pursuant to section 1170.95’s petition procedure, but may, based on the Estrada rule (In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 bring their claims on direct appeal.

“[N]o part of [the Penal Code] is retroactive, unless expressly so declared.” However, “new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final.” (People v. Conley, supra, 63 Cal.4th at p. 656, 203 Cal.Rptr.3d 622, 373 P.3d 435, citing In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.)


 The attempted murder convictions for Medrano and Martinez are reversed.

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