Filed 4/13/23 P. v. Guevara CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079711
v. (Super.Ct.No. RIF119968)
GUSTAVO ALONSO GUEVARA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, and Arlene A. Sevidal,
Lynne McGinnis, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Petitioner Gustavo Alonso Guevara participated in a gang-related drive-by
shooting. He was in one of two vehicles that drove by the home of a rival gang member;
shots were fired from one or both vehicles. The evidence was in conflict as to whether
petitioner was one of the shooters and even as to whether any shots were fired from the
vehicle that he was in. As a result of this incident, he was convicted of attempted murder
and other crimes.
This appeal concerns his petition to vacate his attempted murder conviction under
Penal Code section 1172.6.1 The trial court denied the petition on the ground that
petitioner was not convicted under the natural and probable consequences doctrine.
We will reverse. The trial court did instruct that petitioner could be convicted of
attempted murder if (1) he conspired to commit an assault with a firearm and (2) a co-
conspirator committed attempted murder. Although the instruction was erroneous and
incomplete, it was, in effect, an instruction on the natural and probable consequences
doctrine.
1 All further statutory citations are to the Penal Code, unless otherwise specified.
The petition was actually filed under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, however, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.
2 I
STATEMENT OF FACTS
The following facts are taken from our opinion in petitioner’s direct appeal.
(People v. Martinez (2008, E040764) [nonpub. opn.].)2
Three people in a white car drove past the home of a member of the Westside Riva
gang. The person in the passenger seat yelled, “Dogs Town” — the name of a rival gang.
According to one eyewitness, the person in the passenger seat also fired at least one shot
toward the house.
At the same time, an SUV coming from a different direction also drove past the
house. Someone in it also said, “Dogs Town,” and someone in it also fired shots.
After the police arrived, the white car drove by the house again; the police stopped
it. Three members of Dogs Town were in it, including petitioner, who was in the
passenger seat. Inside the white car, the police found a stolen, partially loaded nine-
millimeter handgun in a hidden compartment behind the glove box.
The back seat passenger — a minor — admitted that his group had driven past the
house and that petitioner had been in the passenger seat at the time. However, he denied
that anyone in his group fired any shots. He claimed the gun found was his. He also
2 Section 1172.6 allows the trial court to consider a prior appellate opinion as evidence of the procedural history of the case, but not as evidence of the facts in the case. (§ 1172.6, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292.) Nevertheless, petitioner’s own statement of facts is expressly based on our prior opinion. We deem this a forfeiture of any objection to our considering facts stated in the prior opinion.
3 claimed that, after the police stopped the car, he reached over the front seat and hid the
gun. The police, however, denied seeing him do this.
At the scene, the police found .25-caliber casings but no nine-millimeter casings.
Small amounts of gunshot residue were found on petitioner’s jacket and on the minor’s
sweatshirt.
II
STATEMENT OF THE CASE
In 2005, a jury found petitioner guilty of willful, deliberate, and premeditated
attempted murder (§§ 187, subd. (a), 664, subd. (a)), with a firearm enhancement
(§ 12022.53, subds. (c), (e)) and a gang enhancement (§ 186.22, subd. (a)), and of assault
with a firearm (§ 245, subd. (a)(2)), along with other crimes.
The jury was instructed on three theories of attempted murder.
First, it was instructed on an express malice theory. (CALJIC No. 8.66.)
Specifically, it was instructed that attempted murder required that “[t]he person
committing the act harbored express malice aforethought, namely, a specific intent to kill
unlawfully another human being.” (Ibid.) It was also instructed that, if it found
petitioner guilty of attempted murder, it also had to find whether the attempted murder
was willful, deliberate, and premeditated. (CALJIC No. 8.67.)
Second, it was instructed on an aiding and abetting theory. (CALJIC Nos. 3.00,
3.01.) Specifically, it was instructed that:
4 “A person aids and abets the commission or attempted commission of a crime
when he or she:
“1) With knowledge of the unlawful purpose of the perpetrator, and
“2) With the intent or purpose of committing or encouraging or facilitating the
commission of the crime, and
“3) By act or advice aids, promotes, encourages or instigates the commission of
the crime.” (CALJIC No. 3.01, brackets omitted.)
Third, it was instructed on a conspiracy theory. (CALJIC Nos. 6.10.5, 6.11, 6.12,
6.14.) Specifically, it was instructed, “A conspiracy is an agreement between two or
more persons with the specific intent to agree to commit the crimes of murder and assault
with a firearm, and with the further specific intent to commit that crime, followed by an
overt act committed in this state by one or more of the parties for the purpose of
accomplishing the object of the agreement.” (CALJIC No. 6.10.5.) “Each member of a
criminal conspiracy is liable for each act . . . of every other member of the conspiracy if
that act . . . is in furtherance of the object of the conspiracy. [¶] The act of one
conspirator pursuant to or in furtherance of the common design of the conspiracy is the
act of all conspirators.” (CALJIC No. 6.11 [only first two paragraphs given].)
The jury was not given an instruction — either in connection with aiding and
abetting or in connection with conspiracy — specifically designed to convey the natural
and probable consequences doctrine. (See CALJIC Nos. 3.02, 6.11 [last three paragraphs
not given].)
5 Petitioner was sentenced to (as subsequently amended) 23 years 4 months to life in
prison.
In 2022, he filed a petition to vacate the attempted murder conviction under
section 1172.6. The trial court appointed counsel and set a prima facie hearing. The
prosecution filed an opposition, arguing that petitioner was not eligible for relief because
the jury had not been instructed on the natural and probable consequences doctrine.
At the prosecution’s request, the trial court took judicial notice of the jury
instructions that had been given at trial. Defense counsel argued that the conspiracy
instructions allowed the jury to find petitioner guilty of attempted murder as long as he
conspired to commit an assault with a firearm, even if he did not intend to kill. The trial
court, however, agreed with the prosecution that petitioner was not eligible for relief
because the jury had not been instructed on the natural and probable consequences
doctrine. It therefore denied the petition.
III
THE CONSPIRACY INSTRUCTIONS
Petitioner contends that the trial court erred by finding him categorically ineligible
for relief.
A. Legal Background.
Ordinarily, attempted murder requires the specific intent to kill. (People v.
Covarrubias (2016) 1 Cal.5th 838, 890.) However, in 2005, when petitioner was
convicted, there was an exception — the natural and probable consequences doctrine.
6 This doctrine applied to a person who either aided and abetted a lesser crime or
conspired to commit a lesser crime. If it was reasonably foreseeable that, as a result of
the commission of the lesser (“target”) crime, the perpetrator would commit attempted
murder, and if the perpetrator did commit attempted murder, then the aider and
abettor/conspirator would also be guilty of attempted murder. This was true even if the
aider and abettor/conspirator lacked the intent to kill. (People v. Prettyman (1996) 14
Cal.4th 248, 260-263.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015.) Among other things,
SB 1437 amended section 188 so as to abrogate the natural and probable consequences
doctrine as applied to murder and attempted murder. (§ 188, subd. (a)(3), Stats. 2018, ch.
1015, § 2; see also People v. Gentile (2020) 10 Cal.5th 830, 849-851.) As a result, an
aider and abettor cannot be guilty of either murder or attempted murder unless he or she
personally acted with malice. (People v. Cortes (2022) 75 Cal.App.5th 198, 205.)
SB 1437 also enacted section 1172.6. (Stats. 2018, ch. 1015, § 4.) As originally
enacted, section 1172.6 provided: “A person convicted of . . . murder under a natural and
probable consequences theory may file a petition . . . to have the petitioner’s murder
conviction vacated,” provided the petitioner would not be guilty of murder under current
law. (Former § 1170.95, subd. (a), Stats. 2018, ch. 1015, § 4.)
In October 2021, Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775) amended
section 1172.6, effective January 1, 2022. (Stats. 2021, ch. 551, § 2.) SB 775 expanded
7 eligibility for relief to persons convicted of attempted murder. It also added the
following italicized language: “A person convicted of . . . murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, [or] attempted murder
under the natural and probable consequences doctrine, . . . may file a petition . . . to have
the petitioner’s murder [or] attempted murder . . . conviction vacated . . . .” (§ 1172.6,
subds. (a), (a)(1), Stats. 2021, ch. 551, § 2.)
B. Procedure Under Section 1172.6.
If a person files a facially sufficient petition under section 1172.6, the trial court
must hold a hearing to determine whether the petition states a prima facie claim for relief.
(§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 957.)
At the prima facie hearing, the trial court can consider the record of conviction.
(People v. Lewis, supra, 11 Cal.5th at pp. 970-972.) “‘[I]f the record, including the
court’s own documents, “contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination adverse to the
petitioner.”’ [Citation.]” (Id. at p. 971.) However, “a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’
[Citation.]” (Id. at p. 972.)
If the petition does state a prima facie claim, the trial court must hold an
evidentiary hearing, at which the prosecution has the burden to prove, beyond a
8 reasonable doubt, that the petitioner is guilty of murder or attempted murder even under
SB 1437. (§ 1172.6, subds. (d)(1), (d)(3).)
C. Application Here.
As petitioner acknowledges, section 1172.6, subdivision (a), when read literally,
grants potential eligibility to:
(1) “A person convicted of . . . murder under the natural and probable
consequences doctrine”;
(2) “A person convicted of . . . murder under . . . [an]other theory under which
malice is imputed to a person based solely on that person’s participation in a crime,” and
(3) “A person convicted of . . . attempted murder under the natural and probable
consequences doctrine . . . .”
On that reading, a person convicted of attempted murder under a theory of imputed
malice is not eligible for relief. Petitioner argues, however, that we should overlook the
omission of this category as a mere “scrivener’s error.”
We need not decide this question. We may assume, without deciding, that a
person convicted of attempted murder is not eligible for relief unless he or she was
convicted under the natural and probable consequences doctrine.
We turn to the two conspiracy instructions.
CALJIC No. 6.11 instructed that “[e]ach member of a criminal conspiracy is liable
for each act . . . of every other member of the conspiracy if that act . . . is in furtherance
of the object of the conspiracy.” The trial court omitted the last three paragraphs of
9 CALJIC No. 6.11, which would have stated the natural and probable consequences
doctrine as applied to conspiracy.
The principle that a member of a conspiracy is liable for acts of other members in
furtherance of the conspiracy is not a separate and distinct theory of imputed malice.
Rather, it is part of the natural and probable consequences doctrine. “[A] conspirator
may be vicariously liable for a crime committed in furtherance of a conspiracy only if
that crime was a natural and probable consequence of the conspiracy.” (People v. Prieto
(2003) 30 Cal.4th 226, 249–250; accord, People v. Guillen (2014) 227 Cal.App.4th 934,
999; People v. Zielesch (2009) 179 Cal.App.4th 731, 739; People v. Garewal (1985) 173
Cal.App.3d 285, 302; see also People v. Kauffman (1907) 152 Cal. 331, 334.)
In retrospect, then, there was a problem with CALJIC No. 6.11, as given. It stated
that each member of a conspiracy was liable for each act of every other member in
furtherance of the object of the conspiracy, without regard to whether that act was either
(1) the intended crime or (2) a natural and probable consequence of the intended crime.
However, even though it was erroneous and incomplete, and even though it did not use
the words “natural and probable consequences,” it was, in effect, an instruction on the
natural and probable consequences doctrine.
Meanwhile, CALJIC No. 6.10.5 defined “[a] conspiracy” as requiring “an
agreement between two or more persons with the specific intent to agree to commit the
crimes of murder and assault with a firearm, and with the further specific intent to
commit that crime . . . .”
10 The plural “crimes” and the conjunctive “and” conflicted with the reference later
in the same sentence to a singular “that crime.” As a result, CALJIC No. 6.10.5 was
ambiguous. It could mean that, unless petitioner had the intent to commit both murder
and assault with a firearm, then he was not a member of any conspiracy at all.
Alternatively, it could mean that, if petitioner had the intent to commit murder, then he
could be a member of a conspiracy to commit murder; and if he had the intent to commit
assault with a firearm, then he could be a member of a conspiracy to commit assault with
a firearm. On the latter reading, the two instructions, taken together, meant that as long
as petitioner was a member of a conspiracy to commit assault with a firearm, then he was
liable for each act of every other member of the conspiracy that was in furtherance of the
commission of assault with a firearm — including murder.
The People argue that it is not reasonably likely that the jury actually adopted the
latter reading. “When reviewing ambiguous instructions, we inquire whether the jury
was ‘reasonably likely’ to have construed them in a manner that violates the defendant’s
rights. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 873.) Here, we are not
deciding whether the instructions were erroneous; we are deciding whether petitioner
made a prima facie case for relief under section 1172.6. However, in this context, too,
most courts have applied the “reasonably likely” standard. (People v. Ervin (2021) 72
Cal.App.5th 90, 107-109; see also People v. Maldonado (2023) 87 Cal.App.5th 1257,
1267 [“the jury also could have reasonably construed the instructions in a manner
permitting it to convict appellant under a theory of imputed malice”]; but see People v.
11 Langi (2022) 73 Cal.App.5th 972, 984 [evidentiary hearing is required when the record
“does not conclusively negate the possibility” that the jury found petitioner guilty based
on imputed malice].)
On its face, the second meaning, requiring either intent to commit murder or intent
to commit an assault with a firearm, seems more probable. After all, petitioner was also
charged with assault with a firearm. Regardless of the jury’s verdict on the attempted
murder count, it still had to decide whether he was guilty of that charge. It was
reasonable that, as long as he entered into a conspiracy to commit assault with a firearm,
then the jury could find him guilty of assault with a firearm, even if he did not personally
fire a shot. Conversely, it would be unreasonable to suppose that the jury could not find
him guilty of assault with a firearm on a conspiracy theory unless he conspired to commit
both murder and assault with a firearm.
In addition, we “must consider the arguments of counsel in assessing the probable
impact of the instruction on the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.)
The prosecutor argued, “A conspiracy is an agreement between two or more persons with
the specific intent to commit a crime, followed by an overt act by one of the parties.”
(Italics added.) “Let’s look at the law of conspiracy. [¶] That is an agreement by two or
more persons to do something illegal.” “[The judge is] going to tell you that conspiracy
[is] two or more people with the specific intent to commit a crime when an overt act is
taken. . . . He’s going to tell you also that each member of a conspiracy is guilty.”
(Italics added.) “Even if you don’t believe that shots were fired from the white car,
12 [petitioner is] still guilty if you believe that there was an agreement to do the illegal
act — that is, the shooting.” (Italics added.)
This argument indicated that a conspiracy merely required an agreement to
commit a crime — not necessarily murder. Indeed, the prosecutor specifically argued
that petitioner was guilty of murder even if he agreed only to a shooting.
Admittedly, the prosecutor also argued that petitioner was guilty of attempted
murder either because he was the shooter, or because he aided and abetted and/or
conspired in an intended murder. As to whether the shooter intended to kill, he argued:
“When you fire shots at a person, you’re trying to kill them. I don’t think anyone
disputes that fact, especially when gang members yelled out and several shots are fired
where people have to run into the house. You’re trying to kill somebody.” However, he
presented these as alternative theories; they did not rule out a theory of conspiracy to
commit a shooting.3
In light of the prosecutor’s arguments, it is reasonably likely that the jury
understood that they could convict petitioner of attempted murder as long as he conspired
to commit a shooting and the shooter intended to kill.
3 As petitioner notes, the jury sent out a question asking, “If we found SUV and white car are connected together in this crime, are we to treat actions of both vehicles equal?” The trial court responded by referring the jurors back to the aiding and abetting and conspiracy instructions. This shows that the jurors were at least considering holding petitioner vicariously liable for shots fired from the SUV. However, it is not clear whether, by “this crime,” they meant an intended murder or merely an intended shooting.
13 Finally, we recognize that the jury found that the attempted murder was willful,
deliberate, and premeditated. However, this does not necessarily mean it found that
petitioner had the intent to kill. The instruction on this topic said: “To constitute willful,
deliberate, and premeditated attempted murder, the would-be slayer must weigh and
consider the question of killing and the reasons for and against such a choice and, having
in mind the consequences, decides to kill and makes a direct but ineffectual act to kill
another human being.” (CALJIC No. 8.67, italics added.) Nothing in the instruction
required the jury to find that petitioner — rather than the actual shooter — acted with
willfulness, deliberation and premeditation.
We therefore conclude that the jury may have convicted petitioner of attempted
murder under a natural and probable consequences theory. It follows that the trial court
erred by denying the petition without an evidentiary hearing.
IV
DISPOSITION
The order denying the petition is reversed. On remand, the trial court must issue
an order to show cause and hold an evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J. CODRINGTON J.