People v. Larios

Filed 12/3/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078759
Plaintiff and Respondent,
(Super. Ct. No. VCF211993C)
v.

RICHARD RODRIGUEZ LARIOS, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and
Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Richard Rodriguez Larios appeals from an order denying a petition for recall of
sentence and resentencing pursuant to Penal Code section 1170.95. (Statutory references
are to the Penal Code unless otherwise stated.) This order is appealable pursuant to
section 1237, subdivision (b), as an order after judgment affecting the substantial rights
of the defendant. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 600–601 [denial of
petition for recall and resentencing appealable as order after judgment].) The convictions
upon which Larios had petitioned were three counts of attempted murder, which were
final at the time he filed his petition. Larios’s counsel has raised no issue on appeal and
asked this court for an independent review of the record to determine whether there are
any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Larios’s counsel advised
Larios, as did this court, of his right to file a supplemental brief to bring to this court’s
attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106,
120.) Larios filed a supplemental brief in which he challenges the applicability of the
natural and probable consequences doctrine to his case, and he requests resentencing
under section 1170.95. After initial consideration of his arguments, this court requested
briefing from counsel on the scope and applicability of Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) to the crime of attempted murder, and in particular, final
convictions of attempted murder. We directed counsel to discuss the recent cases of
People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26, 2019,
S258234 (Munoz) and People v. Lopez (2019) 38 Cal.App.5th 1087, review granted
November 13, 2019, S258175 (Lopez), which have addressed similar issues. Although
we find ourselves in fundamental disagreement with the Lopez and Munoz decisions on
the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder,
we agree with their ultimate conclusion that section 1170.95 provides no relief for the
crime of attempted murder. Consequently, we affirm the trial court’s order denying relief
to Larios on his petition.
PROCEDURAL AND FACTUAL HISTORY
We grant Larios’s request to take judicial notice, pursuant to Evidence Code
section 452, subdivision (d), of the unpublished opinion in People v. Larios (Aug. 19,
2011, F059866) (Larios I). This court summarized the relevant facts and judicial
proceedings in Larios I as follows:

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 “… Larios and his codefendant Ronnie Zuniga were two of three
Norteno occupants of a brown or tan Mercury Cougar automobile that
stopped to get gas at a convenience store on Bardsley Avenue in Tulare.
Already there at a gas pump was a black Nissan Maxima occupied by two
Surenos, Irving Rodriguez and Juan Saucedo, and a friend of Rodriguez’s
since childhood, 17-year-old Stephanie G. After some staring or ‘mad
dogging’ between the rival gang members at the gas pumps, and a brief
verbal exchange between Norteno Zuniga and Sureno Saucedo when the
two men went inside the store to pay for gas, the Cougar followed the
Maxima when the Maxima drove away from the convenience store. A
short distance away, approximately five gunshots were fired from the
Cougar, at least four of which struck the Maxima. None of the bullets
struck any of the three occupants of the Maxima, although Stephanie G.
received cuts from shattered window glass.

“A first trial ended in a mistrial when the jury could not reach a
verdict. In the second trial, the subject of this appeal, a jury found both
Larios and Zuniga guilty of three counts of premeditated attempted murder
(Pen. Code, §§ 664/187, subd. (a)) and one count of shooting at an
occupied motor vehicle (§ 246). The jury also found that the crimes were
committed for the benefit of a street gang (§ 186.22, subd. (b)(4)) and that a
principal personally discharged a firearm in the commission of each crime
(§ 12022.53, subds. (c) and (e)(1)). Each defendant was sentenced to a
term of 54 years to life.” (Larios I, supra, F059866, fn. omitted.)
In Larios I, this court directed the trial court to strike the 20-year section 12022.53
enhancement imposed and stayed on count 4, but in all other respects, affirmed.
The remittitur on the appeal in Larios I issued on November 3, 2011.
On January 2, 2019, Larios filed a petition seeking relief under recently enacted
section 1170.95, in the Tulare Superior Court. In a preprinted form request for
resentencing petition, Larios alleged he was convicted of first or second degree murder
pursuant to the felony-murder rule or the natural and probable consequences doctrine,
and he could not now be so convicted because of newly effective changes to sections 188
and 189. The petition further alleged he was eligible for resentencing because he was not
the actual killer; he did not intend to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in the first degree; he was
not a major participant in the felony or he did not act with reckless indifference to human

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life during the course of the crime or felony; and the victim of the murder was not a peace
officer in the performance of his or her duties.
On January 9, 2019, the trial court summarily denied the petition, stating Larios
was convicted of three counts of attempted murder, in violation of sections 664 and 187,
and was “unable to establish a prima facie basis of eligibility for relief.”
DISCUSSION
In his brief, Larios emphasizes that he was not the shooter, there was no evidence
at trial that he knew or should have known that another person in the vehicle was armed
with or was going to use a firearm, and there was no evidence that he aided or abetted in
the commission of this crime. To the extent Larios is asking us to reconsider the
sufficiency of the evidence as it pertains to his convictions, that time has long passed. As
for his request that we grant his appeal for resentencing pursuant to section 1170.95, we
have sought the input of counsel by directing them to answer the following questions in
supplemental briefing:

“1. Does Senate Bill 1437 abrogate the natural and probable
consequences doctrine as a theory of accomplice liability for crimes
requiring the mental state of express malice aforethought?

“2. If the answer to the first question is yes, does Senate Bill 1437
provide or contemplate an exception for the crime of attempted murder?

“3. If the current law prohibits accomplice liability for attempted
murder under the natural and probable consequences doctrine, does Penal
Code section 1170.95 provide relief to persons convicted of attempted
murder, whose convictions are final, as in the case of appellant herein?”
A. Does Senate Bill 1437 abrogate the natural and probable consequences
doctrine as a theory of accomplice liability for crimes requiring the mental
state of express malice aforethought?
Counsel for Larios observes, with no elaboration, that the court in Lopez “held that
Senate Bill 1437 eliminated liability for murder under the natural and probable
consequences doctrine.” The People, more directly, answer this question “No.” The
People argue the history of Senate Bill 1437 and the plain language of the statutes

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amended by the legislation support this answer. Relying on both Lopez and Munoz, the
People conclude the new legislation “abrogated the natural and probable consequences
doctrine as a theory of accomplice liability for murder and nothing else.”
We disagree with the People’s conclusion, and in the process, disagree with our
colleagues in Lopez and Munoz.
On September 30, 2018, 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) This was
accomplished through amendments to 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 previously sustained
convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
As to the natural and probable consequences doctrine, at issue here, Senate Bill
1437 added a provision to section 188 concerning the mens rea for accomplice liability as
follows: “(3) Except as stated in subdivision (e) of Section 189, in order to be convicted
of murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (Stats. 2018, ch.
1015, § 2.) “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; accord, Lopez, supra, 38 Cal.App.5th at p. 1103, rev. granted; Munoz, supra, 39
Cal.App.5th at p. 749, rev. granted.) These changes reflect the Legislature’s intent that
“[a] person’s culpability for murder … be premised upon that person’s own actions and

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subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g); see People v. Martinez
(2019) 31 Cal.App.5th 719, 723; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147.)
Based on the new statutory language in section 188 and the cases cited above, we
conclude the natural and probable consequences doctrine no longer may support a murder
conviction.
B. Does Senate Bill 1437 provide or contemplate an exception for the crime of
attempted murder?
The applicability of Senate Bill 1437 to the crime of attempted murder presents an
issue of statutory interpretation for our independent review. (See People v. Tran (2015)
61 Cal.4th 1160, 1166 [“We review de novo questions of statutory construction”]; In re
R.G., supra, 35 Cal.App.5th at p. 146.) 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 nontarget crime of attempted murder or murder, but not first
degree murder. (People v. Chiu (2014) 59 Cal.4th 155, 161, 166; In re R.G., supra, at p.
144.)
“‘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.) The Chiu court further explained:

“[S]ection 31 provides in relevant part that ‘[a]ll persons concerned in the
commission of a crime, whether it be felony or misdemeanor, and whether
they directly commit the act constituting the offense, or aid and abet in its
commission … are principals in any crime so committed.’ It does not
expressly mention the natural and probable consequences doctrine. Where
the statutory language is vague, ‘the statutory definition permits, even
requires, judicial interpretation.’ (People v. Chun (2009) 45 Cal.4th 1172,
1181.) We may, as a court, determine the extent of aiding and abetting
liability for a particular offense, keeping in mind the rational function that
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 the doctrine is designed to serve and with the goal of avoiding any
unfairness which might redound from too broad an application.
[Citations.]” (People v. Chiu, supra, 59 Cal.4th at p. 164.)
Excepting the felony-murder rule,1 an accomplice may be convicted of a crime
under one of two alternative theories: direct aiding and abetting liability and the natural
and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
“[O]utside of the natural and probable consequences doctrine, an aider and abettor’s
mental state must be at least that required of the direct perpetrator.” (Id. at p. 1118.) It
follows that if malice is an element of a charged offense, accomplice liability under the
natural and probable consequences doctrine necessarily entails the imputation of malice.
(See McCoy, at pp. 1117–1118; People v. Lee (2003) 31 Cal.4th 613, 623–624; see also
People v. Prettyman (1996) 14 Cal.4th 248, 259 [“‘We euphemistically may impute the
actions of the perpetrator to the accomplice by “agency” doctrine; in reality, we demand
that she who chooses to aid in a crime forfeits her right to be treated as an individual’”].)
However, as amended by Senate Bill 1437, section 188 plainly states: “Malice shall not
be imputed to a person based solely on his or her participation in a crime.” (Id., subd.
(a)(3), italics added.)
Pursuant to the above reasoning, we conclude 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. Put differently, since “implied malice cannot support a conviction of
an attempt to commit murder” (People v. Bland, supra, 28 Cal.4th at p. 327; see fn. 1,

1Senate Bill 1437’s changes to section 189 are not at issue because “California has no
crime of attempted felony murder.” (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4, citing
People v. Bland (2002) 28 Cal.4th 313, 328; accord, People v. Brito (1991) 232 Cal.App.3d 316,
321 [“California courts have consistently held that there are no crimes of attempted felony
murder [or] attempted murder based on implied malice”].)

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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.
We acknowledge two of our sister courts have held Senate Bill 1437 does not
affect the natural and probable consequences doctrine as it relates to attempted murder.
(Lopez, supra, 38 Cal.App.5th at pp. 1102–1113, rev. granted; Munoz, supra, 39
Cal.App.5th at pp. 753–769, rev. granted.) However, we respectfully disagree with their
analyses and conclusions. Here’s why.
“The ‘“goal of statutory construction is to ascertain and effectuate the intent of the
Legislature.”’ [Citation.] In approaching this task, we must first look at the plain and
commonsense meaning of the statute because it is generally the most reliable indicator of
legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the
language, the Legislature is presumed to have meant what it said, and we need not resort
to legislative history to determine the statute’s true meaning.” (People v. Cochran (2002)
28 Cal.4th 396, 400–401.) In other words, the plain meaning controls unless the words
are ambiguous. (People v. Costella (2017) 11 Cal.App.5th 1, 6.) “‘If the statute is
ambiguous, we may consider a variety of extrinsic aids, including legislative history, the
statute’s purpose, and public policy.’” (Ibid.) We may “‘examin[e] the context in which
the language appears and adopt[] the construction which best serves to harmonize the
statute internally and with related statutes.’” (People v. Gonzalez (2008) 43 Cal.4th
1118, 1126.)
The Lopez opinion acknowledges that “Senate Bill 1437 eliminates aider and
abettor liability for murder under the natural and probable consequences doctrine”
(Lopez, supra, 38 Cal.App.5th at p. 1092, rev. granted), but it suggests the imposition of
vicarious liability for attempted murder under the same doctrine is not based on imputed
malice. (Id. at p. 1106.) The logic of this argument escapes us.2 We are also

2“‘The word “impute” … means to bring into the reckoning, to attribute or to ascribe. It
is sometimes used to attribute vicariously,—to ascribe as derived from another.’” (Black’s Law
Dict. (11th ed. 2019) p. 908, quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 605.)

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unpersuaded by Lopez’s reliance on the absence of any reference to “attempted murder”
in Senate Bill 1437. (Lopez, at pp. 1103–1105.) The omission is meaningless when one
considers that sections 187, 188, and 189 have never included that term. Yet we look to
these statutes in conjunction with section 21a, which explains the law of attempt, to
define attempted murder.
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
Murder is defined as “[t]he unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Express malice is synonymous with the intent to kill.
(§ 188, subd. (a)(1); People v. Gonzalez (2012) 54 Cal.4th 643, 653; People v. Moon
(2005) 37 Cal.4th 1, 29.) A criminal attempt “bears an extremely close relationship to the
completed crime. Attempts, after all, are defined as incomplete efforts to commit a
completed crime.” (People v. Fontenot (2019) 8 Cal.5th 57, 64.) Attempted murder thus
requires “the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Booker (2011) 51 Cal.4th 141,
177–178.)
The Legislature is presumed to be aware of existing interpretations of statutory
language when it amends a statute. (Dix v. Superior Court (1991) 53 Cal.3d 442, 461–
462.) When the Legislature amended section 188 to state “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime” (id., subd. (a)(3)), it made
no exceptions for attempted murder, which indisputably requires express malice. (People
v. Booker, supra, 51 Cal.4th at p. 178.) By failing to exclude attempted murder from the
ambit of section 188, the Legislature must have intended for its provisions to apply to all
crimes requiring express malice. We thus find the Lopez court’s reasoning to be
untenable. (See Lopez, supra, 38 Cal.App.5th at p. 1104, rev. granted [“Had the
Legislature meant to bar convictions for attempted murder under the natural and probable
consequences doctrine, it could easily have done so”].)

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 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. Had the Legislature intended to confine its repudiation of the natural and
probable consequences doctrine to murder, it could easily have said: “Except for
attempted murder, malice shall not be imputed to a person based solely on his or her
participation in a crime.” (Italics added.) The same preposition, “except,” appears in the
preceding sentence to exclude felony-murder prosecutions from the scope of the
provision. (§ 188, subd. (a)(3); cf. Munoz, supra, 39 Cal.App.5th at p. 757, rev. granted
[“‘“When the Legislature ‘has employed a term or phrase in one place and excluded it in
another, it should not be implied where excluded.’” [Citation.]’”].) Because the crime of
attempted murder is tethered to the murder statutes, i.e., it does not exist without them,
there is no logical basis for applying section 188 to murder and treating the crime of
attempted murder as being subject to an impliedly different and unspecified rule of law.
Neither Lopez nor Munoz persuades us to conclude otherwise.
The foregoing analysis is buttressed by the California Supreme Court’s recent
observation that “courts impose a ‘heightened intent requirement’ for attempts … even
when the completed crime requires a less demanding mental state” in order “[t]o ensure
that only those whose intentions and actions made them a pronounced threat to
accomplish what a given criminal statute prohibits may be found criminally liable.”
(People v. Fontenot, supra, 8 Cal.5th at p. 67.) “In effect, the higher bar serves as a
bulwark against convicting someone of attempting to accomplish something he or she
never set out to do.” (Id. at pp. 67–68.) The Legislature codified this safeguard in
section 21a by making “‘specific intent to commit the [completed] crime’” a required
element of attempt crimes. (Fontenot, at p. 68.)
For all these reasons, 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

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conflict with the underlying policy of the legislation. As noted by our state Supreme
Court, “where the natural-and-probable-consequences doctrine does apply, an attempted
murderer who is guilty as an aider and abettor may be less blameworthy [than the
principal offender].” (People v. Lee, supra, 31 Cal.4th at p. 624.) Our interpretation of
Senate Bill 1437 comports with its stated goal of ensuring a defendant’s culpability is
premised upon his or her own actions and subjective mens rea. (Stats. 2018, ch. 1015,
§ 1, subds. (d), (g).)
C. If the current law prohibits accomplice liability for attempted murder under
the natural and probable consequences doctrine, does section 1170.95 provide
relief to persons convicted of attempted murder, whose convictions are final,
as in the case of appellant herein?
Senate Bill 1437 also added section 1170.95. Newly enacted section 1170.95
permits those “convicted of felony murder or murder under a natural and probable
consequences theory [to] file a petition with the court that sentenced the petitioner to
have the petitioner’s murder conviction vacated and to be resentenced on any remaining
counts ….” (Id., subd. (a).) An offender may file a petition under section 1170.95 where
all three of the following conditions are met: “(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[; and] [¶] (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, subd. (a)(1)–(3).) A trial court receiving a
petition under section 1170.95 “shall review the petition and determine if the petitioner
has made a prima facie showing that the petitioner falls within the provisions of this
section.” (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court
“shall issue an order to show cause.” (Ibid.) The trial court must then hold a hearing “to

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determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not been previously been [sic] sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
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. And, as noted in Lopez, the legislative history of
Senate Bill 1437 supports the conclusion section 1170.95 was intended to apply only to
persons convicted of murder:

“There may well be sound policy reasons for the Legislature to adopt
ameliorative provisions like those in Senate Bill 1437 for individuals
charged with, or convicted of, attempted murder under the natural and
probable consequences doctrine. But the Legislature’s decision to limit
sentencing reform at this time to offenders in cases of murder is certainly
rational. First, the gap between a defendant’s culpability in aiding and
abetting the target offense and the culpability ordinarily required to convict
on the nontarget offense is greater in cases where the nontarget offense is
murder, than where the nontarget offense is attempted murder or, in the
prosecutor’s discretion, aggravated assault. The Legislature could have
reasonably concluded reform in murder cases ‘was more crucial or
imperative.’ …

“Second, the process created in section 1170.95 for those convicted
of felony murder or murder under a natural and probable consequences
theory to petition the sentencing court to vacate that conviction and to be
resentenced is not cost free. The staff of the Senate Appropriations
Committee estimated, if 10 percent of the inmates eligible for relief under
Senate Bill 1437 petitioned the courts for resentencing, additional court
workload costs would approximate $7.6 million. The committee’s report
expressed concern that this increase in workload ‘could result in delayed
court services and would put pressure on the General Fund to fund
additional staff and resources.’ (Sen. Com. Appropriations Report, p. 3.)
Additional expenditures would also be required to transport petitioners in
custody to and from court hearings. (Ibid.)

“In a world of limited resources, it is reasonable for the Legislature
to limit the scope of reform measures to maintain the state’s financial

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 integrity. [Citations.]” (Lopez, supra, 38 Cal.App.5th at pp. 1111–1112,
fn. omitted, rev. granted; see Munoz, supra, 39 Cal.App.5th at pp. 753–760,
rev. granted.)
We agree with the reasoning of Lopez and Munoz that the relief provided in
section 1170.95 is limited to certain murder convictions and excludes all other
convictions, including a conviction for attempted murder. The language and the
legislative history of section 1170.95 support this conclusion. And there is a rational
basis for the Legislature’s decision to grant relief pursuant to section 1170.95 only to
murder convictions and exclude attempted murder convictions based on judicial economy
and the financial costs associated with reopening both final murder and final attempted
murder convictions. In light of this unambiguous language, Larios is categorically
excluded from seeking relief through the section 1170.95 petitioning procedure for his
attempted murder convictions, which have long been final.
DISPOSITION
The order is affirmed.

___________________________
PEÑA, J.
WE CONCUR:

__________________________
POOCHIGIAN, Acting P.J.

__________________________
FRANSON, J.

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