People v. Mejia

40 Cal.App.5th 42

252 Cal.Rptr.3d 790

The PEOPLE, Plaintiff and Respondent,

v.Jesus Humberto MEJIA, Defendant and Appellant.

G052967

Court of Appeal, Fourth District, Division 3, California.

Filed September 18, 2019

As Modified October 8, 2019

OPINION

O'LEARY, P. J.

A jury convicted Jesus Humberto Mejia of attempted premeditated murder, burglary, robbery, street terrorism, and firearm possession. The jury also returned true findings on associated weapon and street gang allegations. In bifurcated proceedings, the trial court made true findings on prior conviction allegations. Mejia contends the court improperly instructed the jury on premeditated attempted murder under the natural and probable consequences doctrine. We agree the premeditation and deliberation special finding must be reversed.

Mejia also raises sentencing issues, which the Attorney General concedes. First, we agree with the parties that the trial court erred in imposing the full 10-year sentence for the gun-use enhancement. Second, we acknowledge and agree with the parties that a recent change in the law requires that this case be remanded to allow the trial court to exercise its discretion to strike the five-year prior conviction enhancement imposed pursuant to Penal Code section 667, subdivision (a)(1).¹ Finally, we order the trial court to correct numerous clerical errors on the abstract of judgment and minute order (brought to our attention by the Attorney General). In all other respects, we affirm the judgment.

FACTS

Mejia's primary argument in this appeal concerns instructional error related to the attempted murder conviction alleged in count 4. Accordingly, our facts focus on that crime.

Early one morning, Jose Ramirez and his wife, Alberta, heard their car alarm sounding.² Alberta saw a young man standing at the garage. Jose went to the garage and noticed Mejia was outside standing next to a black car talking on a cellphone. When Jose entered the garage, he saw the back passenger window of his vehicle was broken. He watched Francisco Rodriguez, who was inside the vehicle, attempting to remove the speakers. Jose tried to leave the garage when Rodriguez turned and pointed a shotgun at him. However, Mejia, who was now holding a pistol, ordered Jose back into the garage.

Alberta, who was standing nearby, was holding a cellphone in her hand. Mejia pointed his pistol at her and grabbed her phone. At this point, the apartment complex manager arrived and told the two culprits, "Lower your weapon. Don't be a fool. Think about what you're doing."

Rodriguez pointed his shotgun at Jose and pulled the trigger three times, but the weapon did not fire. Hearing sirens in the background, Mejia said, "Let's get out of here." The men left in the black car that had been left outside the garage.

Rodriguez and Mejia were tried as codefendants. As relevant to this appeal, the jury was instructed with CALCRIM Nos. 600 (Attempted Murder), 601 (Attempted Murder: Premeditated and Deliberation), 400 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: Intended Crimes), and 403 (Natural and Probable Consequences Doctrine).

A jury convicted Mejia of the following crimes: possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 1, 11); second degree vehicle burglary (§§ 459, 460, subd. (b); count 2); second degree robbery (§§ 211, 212.5, subd. (c); count 3); attempted premeditated murder (§§ 664, subd. (a)/187, subd. (a); counts 4, 9); attempted first degree robbery (§§ 664, subd. (a), 211, 212.5, subd. (a); counts 5, 7); first degree burglary (§§ 459, 460, subd. (a); counts 6, 8); and street terrorism (§ 186.22, subd. (a); count 10). The jury found true that in counts 3 and 9, Mejia personally used a firearm during the commission and attempted commission of such offenses. (§ 12022.53, subd. (b).) As to counts 4 and 7, vicarious use of a firearm by a gang member was also found to be true. (§ 12022.53, subds. (b), (e)(1).). Many of the counts were found to have been committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury also found true a prior conviction qualifying as a serious felony ( § 667, subd. (a)(1) ), and two prior convictions qualifying as strikes ( § 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A) ).

The court sentenced Mejia to an aggregate term of 44 years to life, consecutive to a determinate term of 62 years and 4 months. The court imposed the middle term of three years on count 3 (second degree robbery), enhanced by 10 years for the gang allegation, and further enhanced by 10 years for the use of a firearm; a consecutive term of 14 years to life on count 4 (attempted murder) enhanced by 10 years for the principal armed gang allegation; the middle term of two years on count 5 (robbery), plus 10 years for the gang allegation, further enhanced by 10 years for the weapon use allegation, to run consecutive to count 4; a consecutive term of eight months on count 7 (attempted first degree robbery), enhanced by 10 years for the weapon use allegation; and 30 years to life on count 9 (attempted murder), enhanced by 10 years for the weapon use allegation, to run consecutive to count 4. The court imposed an additional five year term for the prior serious felony conviction. It imposed and stayed the sentences on the remaining counts and allegations and ordered those would run concurrent with the sentence imposed on count 4.

DISCUSSION

I. Instructional Error

Mejia contends he was "deprived of his federal due process and fair trial rights where the jury was instructed it could find him guilty of premeditated attempted murder under the natural and probable consequences doctrine based on a codefendant's premeditation and deliberation." Mejia cites People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ) for its holding "that a first degree, premeditated and deliberate murder conviction for an aider and abettor cannot be based on the natural and probable consequence doctrine as a matter of law." He concedes the California Supreme Court in Chiu did not extend its holding to the crime of attempted murder. Mejia also acknowledges the Supreme Court, in People v. Favor (2012) 54 Cal.4th 868, 143 Cal.Rptr.3d 659, 279 P.3d 1131 ( Favor ), held an aider and abettor may be found to have committed attempted murder with premeditation on the basis of the natural and probable consequences doctrine. Mejia argues there is no principled reason for any distinction between the results in Chiu and in Favor. We agree.

In Favor , a codefendant shot and killed an employee during the course of a robbery.

( Favor, supra , 54 Cal.4th at pp. 873-874, 143 Cal.Rptr.3d 659, 279 P.3d 1131.) At trial, the prosecution's theory was that Favor was guilty of the target offense of robbery as an aider and abettor, and guilty of the nontarget offense of attempted murder as a natural and probable consequence of the robbery. ( Id. at p. 874, 143 Cal.Rptr.3d 659, 279 P.3d 1131.) On appeal, Favor argued the trial court committed reversible instructional error by failing to instruct the jury that a premeditated attempt to murder must have been a natural and probable consequence of the target offense. ( Ibid. ) The court disagreed, holding, "Under the natural and probable consequences doctrine, there is no requirement that an aider and abettor reasonably foresee an attempted premeditated murder as the natural and probable consequence of the target offense. It is sufficient that attempted murder is a reasonably foreseeable consequence of the crime aided and abetted, and the attempted murder itself was committed willfully, deliberately and with premeditation." ( Id. at p. 880, 143 Cal.Rptr.3d 659, 279 P.3d 1131.)

Two justices dissented in Favor. The dissenting opinion of Justice Liu, joined by Justice Kennard, reasoned, "A jury finding of reasonable foreseeability provides the crucial nexus that links a defendant's culpability for aiding and abetting the target offense to his criminal liability for the nontarget offense. Without that nexus, there is no basis—no legally sufficient theory of causation—to find the defendant culpable for the nontarget offense." ( Favor, supra , 54 Cal.4th at p. 882, 143 Cal.Rptr.3d 659, 279 P.3d 1131 (dis. opn. of Liu J.).) The dissent asserted the majority opinion "disregards the essential causal link that must exist between the charged nontarget offense and the target offense aided and abetted by defendant." ( Ibid. ) They questioned how a defendant could "be convicted of premeditated attempted murder on a natural and probable consequences theory when the jury was never asked to determine whether premeditated attempted murder was a natural and probable consequence of the target offense?" ( Ibid. )

Two years later, in the Chiu opinion, the Supreme Court held "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." ( Chiu, supra , 59 Cal.4th at pp. 159-160, 172 Cal.Rptr.3d 438, 325 P.3d 972.) The court began by discussing the principles related to the natural and probable consequences doctrine as articulated and refined over the years in California case law. ( Id. at pp. 161-162, 172 Cal.Rptr.3d 438, 325 P.3d 972.) The court noted it had "not previously considered how to instruct the jury on aider and abettor liability for first degree premeditated murder under the natural and probable consequences doctrine." ( Id. at p. 162, 172 Cal.Rptr.3d 438, 325 P.3d 972.)

In Chiu , the Attorney General urged the Supreme Court to reach the same result as it had in Favor , but the Supreme Court declined, finding Favor distinguishable in several respects. ( Chiu, supra , 59 Cal.4th at p. 163, 172 Cal.Rptr.3d 438, 325 P.3d 972.) The court reasoned that unlike Favor , "the issue in the present case does not involve the determination of legislative intent as to whom a statute applies." ( Ibid. ) Additionally, it reasoned Favor "involved the...