Skip to content

SB 1437–Gang-Murder Special Circumstance Preclude Eligibility for Resentencing at Prima Facie Stage?

Case Name: People v. Curiel (Nov. 4, 2021) [nonpub. opn.], review granted 1/26/2022
Case #: S272238/G058604
Last Updated: November 27, 2023

Does a jury’s true finding on a gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) preclude a defendant from making a prima facie showing of eligibility for resentencing under Penal Code section 1170.95?

In Penal Code section 1172.6 proceedings, a prior jury finding of intent to kill does not conclusively establish that the petitioner is ineligible for relief at the prima facie stage because intent to kill does not establish any valid theory of liability by itself. In 2006, a jury convicted Curiel of first degree murder and found true a gang-murder special circumstance allegation based on evidence that Curiel’s companion shot and killed a person during an altercation. After the enactment of Senate Bill No. 1437, Curiel filed a petition for resentencing under Penal Code section 1170.95 (now 1172.6) alleging that he had been convicted of murder under the natural and probable consequences doctrine. The trial court denied the petition at the prima facie stage, concluding that the jury’s finding that Curiel intended to kill, which was required for the gang-murder special circumstance, precluded relief. The Court of Appeal reversed and the California Supreme Court granted review to consider the effect of the jury’s true finding on the gang-murder special circumstance (specifically the intent to kill finding) on Curiel’s ability to state a prima facie case for relief under SB 1437. Held: Affirmed. Section 1172.6(a)(3) requires an otherwise-eligible petitioner to allege that he could “not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” After SB 1437, “a defendant cannot be convicted of murder based on the doctrine of natural and probable consequences, even with a showing of malice aforethought.” In cases like Curiel’s where section 188 is at issue, murder liability “requires a different, valid theory because of the changes to section 188 in Senate Bill 1437.” When a petitioner makes the section 1172.6(a)(3) allegation, he puts at issue all elements of the offense under a valid theory (for example, direct aiding and abetting). The petitioner’s allegation is not refuted by the record unless the record conclusively establishes every element of the offense. A finding of intent to kill does not cover all the required elements for liability and does not establish any valid theory of liability by itself.

Trial court erred in denying section 1172.6 petition at the prima facie stage because the jury’s findings in this case, including the intent to kill finding, are insufficient to establish petitioner is ineligible for relief. While a finding of intent to kill does not refute a petitioner’s section 1172.6(a)(3) allegation by itself, “[o]ther aspects of the record, such as additional jury findings, might be relevant to the remaining elements of the relevant homicide offense and conclusively refute a petitioner’s allegation[.]” Here, assuming the jury relied on the natural and probable consequences doctrine to convict Curiel of first degree murder, the Attorney General argued that the findings the jury necessarily made to reach its verdict cover all the elements of murder under the theory of direct aiding and abetting and therefore preclude relief under section 1172.6 at the prima facie stage. The Supreme Court disagreed. The jury was instructed on two underlying “target” offenses for the natural and probable consequences theory, disturbing the peace and carrying a concealed firearm by a gang member. The court analyzed the jury’s findings, the elements of direct aiding and abetting, and the elements of aiding and abetting implied malice murder, and concluded the jury did not necessarily find the requisite mens rea for aiding and abetting liability. The jury was required to find only that Curiel knew his companion intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder. “Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another’s acts. The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.” [Editor’s Notes: (1) The court noted that its holding does not necessarily apply to other cases where the jury found intent to kill, or even other cases where the jury found true the gang-murder special circumstance. The jury instructions and findings in other cases might be materially different. (2) In a footnote, the court noted it was not asked to examine how, or even whether, harmless error review principles might apply in the context of a section 1172.6 resentencing petition.]

The trial court properly gave preclusive effect to the jury’s intent to kill finding in petitioner’s section 1172.6 resentencing proceedings. As a threshold matter, the Supreme Court concluded the jury’s intent to kill finding was properly given preclusive effect in the section 1172.6 resentencing proceedings below. The finding met all the threshold requirements for issue preclusion, including that the issue was actually litigated and necessarily decided. But even if the threshold requirements are satisfied, there are equitable exceptions to the general rule of issue preclusion, including when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue. Curiel argued changes in the law governing the admissibility of expert testimony (see People v. Sanchez (2016) 63 Cal.4th 665) provided sufficient support for an equitable exception to issue preclusion. The Supreme Court analyzed Sanchez and the gang expert’s testimony at Curiel’s trial and concluded Sanchez is not a change that warrants reexamination of the jury’s intent to kill finding, even considering the specific circumstances of Curiel’s underlying trial. (Compare People v. Strong (2022) 13 Cal.5th 698.) Assuming a lack of incentive to litigate could justify an equitable exception to issue preclusion in certain situations, the court concluded such an exception would not apply here. Curiel had incentive to litigate his intent to kill because it was an element of one of the murder theories the prosecution pursued. The court also concluded that SB “1437 does not itself support an equitable exception to issue preclusion.” [Editor’s Note: The court disapproved some points of the issue preclusion analysis in People v. Gonzalez (2021) 65 Cal.App.5th 420.]

This case was decided on 11/27/2023. Chief Justice Guerrero authored the opinion (unanimous).

Review on this issue was also granted with briefing deferred in:

First District

  • People v. Gonzalez (F080555) [nonpub. opn.], review granted 6/15/22 (S274324)
  • People v. Curiel (F081143) [nonpub. opn.], review granted 7/13/2022 (S274467)
  • People v. Amante (A161567) [nonpub. opn.], review granted 8/10/2022 (S275395)
  • People v. Cardenas (A161694) [nonpub. opn.], review granted 9/14/2022 (S275778)
  • People v. Higuera (A161879) [nonpub. opn.], review granted 9/14/2022 (S275897)

Second District

  • People v. Navarro (B321066) [nonpub. opn.], review granted 10/25/2023 (S281324)

Third District

  • People v. Olague (Jan. 24, 2022, C092670) [nonpub. opn.], review granted 4/20/2022 (S273314)
  • People v. Williams (C096809) [nonpub. opn.], review granted 11/15/2023 (S282101)

Fourth District

  • People v. Pacheco (2022) 76 Cal.App.5th 118, review granted 5/18/2022 (S274030/G059940)
  • People v. Alaya (G059900) [nonpub. opn.], review granted 6/1/2022 (S274079)
  • People v. Reaza (E074012) [nonpub. opn.], review granted 6/1/2022 (S274110)
  • People v. Guadarrama (G059643) [nonpub. opn.], review granted 6/15/22 (S274405)
  • People v. Cardenas (Aug. 28, 2020, G058311) [nonpub. opn.], review granted 11/10/2020 (S264713)
  • People v. Cervantes (G058554) [nonpub. opn.], review granted 8/24/2022 (S275611)
  • People v. Ramirez (G060355) [nonpub. opn.], review granted 1/11/2023 (S277540)
  • People v. Reyes (G061334) [nonpub. opn.], review granted 5/31/2023 (S279727)
  • People v. Ramirez (G061275) [nonpub. opn.], review granted 9/20/2023 (S281415)

Fifth District

  • People v. Andrade (Feb. 14, 2022, F081878) [nonpub. opn.], review granted 4/20/2022 (S273659)

 

Link to Article