In re Flores CA4/3

Filed 2/18/21 In re Flores CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

In re VICTOR MANUEL FLORES G058938

on Habeas Corpus. (Super. Ct. No. 94CF2726

OPINION

Original proceedings; petition for a writ of habeas corpus. Petition granted.
Siri Shetty, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for
Respondent.

* * *
 Victor Manuel Flores petitions for a writ of habeas corpus. Flores’s
petition claims his first degree murder conviction should be reversed under People v.
Chiu (2014) 59 Cal.4th 155 (Chiu) and that his two convictions for attempted first degree
murder under the natural and probable consequences doctrine should be reversed under
Chiu and Alleyne v. United States (2013) 570 U.S. 99 (Alleyne). We issued an order to
show cause.
The Attorney General agrees that Flores’s first-degree murder conviction
should be reversed and remanded for further proceedings, but that his two attempted first
degree murder convictions should be upheld under People v. Favor (2012) 54 Cal.4th
868 (Favor). We agree with Flores on both claims and remand the matter for further
proceedings on his murder and attempted murder convictions.
The California Supreme Court’s opinion in Chiu is dispositive on Flores’s
first-degree murder conviction under the natural and probable consequences doctrine.
And in People v. Mejia (2019) 40 Cal.App.5th 42, review granted January 2, 2020,
S258796 (Mejia) and People v. Dennis (2020) 47 Cal.App.5th 838, review granted July
29, 2020, S262184 (Dennis), this court has previously opined at length on the issues
raised by Flores’s petition on the attempted first degree murder convictions. The
Supreme Court has granted review on these issues in People v. Lopez (2019) 38
Cal.App.5th 1087, review granted November 13, 2019, S258175 (Lopez). The briefs in
the present matter are well done and thorough but have not presented new arguments not
already considered by this court in Mejia and Dennis. Accordingly, our discussion of
those issues will be mercifully brief.

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 FACTS

Flores and Marcos Millones were jointly tried by jury and both were “sent
to prison for 26 years to life, plus two life terms, after [the] jury convicted them of
conspiracy, murder and two attempted murders. These were crimes committed for the
benefit of a criminal street gang while the defendants were vicariously armed.” (People
v. Millones (Sept. 30, 1998, G019380) [nonpub. opn.].) We recite the facts of the
underlying crimes by quoting from our opinion in Flores’s direct appeal.
“The September 25th Shooting
“On September 25, 1993, Grant Rowan was socializing with his friends,
Geroge Fernandez and Ruben Cantou. Ruben was a member of the ‘Compton Barrio’
gang (CB), and accompanied Grant along with Robert and George as they walked
through the carport of George’s apartment complex. There was a group of six or seven
Hispanic men in the carport, one of whom yelled something in Spanish. Someone
responded with the word, ‘Jeffrey,’ short for Jeffrey Street, the name of another criminal
gang. Suddenly, Ruben yelled, ‘they have a gun!’ Grant’s group took off for George’s
apartment, near the door of which stood George, ignorant of the immediately preceding
events. The Hispanic men chased Grant’s group, yelling ‘get ‘em; get ‘em!’ A series of
shots rang out, and one bullet hit George in the collarbone. After the spray of gunfire, the
Hispanic men fled, their parting refrain being ‘puro loco Jeffrey Street!’ The responding
police officers found numerous shell casings of both .380 and .25 caliber types, two
knives, numerous bullet holes and an unspent .380 caliber round.
“The October 3rd Murder
“Teofilo and Joel Carlos were attending a party at the home of their cousin,
Tony Carlos, in Anaheim. They were all members of a gang known as ‘La Fabrica.’
Around midnight, Tony, Teofilo and their friend, Rigoberto Garcia, went to use a clothes
hanger through the window of Rigoberto’s car to get his keys which were locked inside.

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As they walked along the street, a car came swerving towards them, the occupants yelling
‘big bad travelers; Jeffrey Street!’ The car screeched to a halt, and Teofilo was attacked
by the occupants, leaving him beaten on the street. When Joel tried to reach him to help,
one of the men from the car pulled a large knife on him and began swinging it back and
forth. The men jumped back into the car and drove off.
“Teofilo, Tony and Rigoberto were angry; a couple of their friends arrived
soon thereafter to discuss what had just transpired. As the five men were talking outside,
two cars and a white truck suddenly drove towards them and a yell could be heard, ‘big
bad Jeffrey Street.’ The stillness was shattered by a barrage of shots coming from the
vehicles. Joel received two bullet wounds: one in the stomach and one in the forehead
that exited through his nose. Teofilo lay dead on the ground nearby, gunshot wounds in
both legs and a fatal one to the back of his head. Numerous .380 and .25 caliber bullet
casings were found in the area. The bullets retrieved from Teofilo’s body were of both
.380 and .25 caliber types.
“Soon after the incident, Rigoberto spoke with police officers, telling them
he saw two men with guns fire on his friends. Then the people got back into the three
vehicles, yelled an obscenity along with ‘big bad Jeffrey Street,’ and drove away. He
then noted Millones’ picture in a photographic lineup looked ‘like one of the guys at the
scene,’ along with one, Marco Cisco. He also identified Juan Wezar as one of the
shooters, and Javier Godinez as the other one. He failed to identify Flores.
“Police officer Charles Sullivan interviewed defendant Flores soon after the
drive-by-shooting. Flores stated he was a Jeffrey Street gang member, having the
moniker of ‘Trigger.’ At first, he denied that he knew anything about the two shooting
incidents. He admitted, however, that a month before the September clash, he saw a car
he recognized as connected to the CB gang. The occupants ‘threw hand signs’ at him and
someone fired a hot, which missed. Such conduct was disrespectful to his gang, and he
informed his gang partners of what had happened. The Jeffrey Street gang and the CB

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were rivals and exchanged gunfire frequently via ‘paybacks.’ He added that the
September shooting could have been a payback for that incident of which he was the
brunt.
“Later in the conversation, Flores admitted he was involved in the
September shooting. He and Millones—whose nickname was ‘Shotgun’—were trying to
park in front of Flores’ home when people began throwing bottles at his truck. Someone
advanced on him with a knife, and Millones yelled that he saw a gun. Curt statement as
to their respective gang affiliations were exchanged, and Flores and Millones screeched
away to gather their forces. They collected three partners and returned to the location in
two vehicles, a truck and a car. They immediately noticed CB gang members, and both
groups started ‘throwing hand signs’ and exchanging gang names: taunting behavior
between gangs. One member of the Jeffrey Street group pulled out a black automatic
handgun and started firing. Flores ran back to the truck as he was the getaway driver for
the three of them. Flores described the incident as a gang-related shooting.
“Initially, he said he was not present at the October shooting, but that he
knew it was a payback for a beating of two Jeffrey Street members by La Fabrica. Later,
he talked to another officer and admitted he and Millones were at a party when fellow
Jeffrey Street members arrived, telling them that they had just ‘thrown blows’ with La
Fabrica. At that, the whole group piled into two cars and a truck and drove to the
location of the clash. Immediately, he leaped from his car and started fighting with some
men. Suddenly, gunshots were fired and Flores fled the area. He said his Jeffrey Street
friends had guns on them but he did not discover this until their arrival at the scene of the
fight. He fled with Millones and another gang member by the name of ‘Peewee.’
“Police officer Conley spoke with Millones, who admitted his nickname
was ‘Shotgun.’ He also knew that Flores’ nickname was ‘Trigger.’ Conley found
numerous items of Jeffrey Street gang material in Millones’ house. Millones initially
denied any involvement in the September incident. Later, he changed his story and

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admitted he was there but fled immediately upon hearing the gunshots. The driver of the
car he was in yelled ‘Calle Jeffrey’ as they were leaving. After returning to Jeffrey Street
territory, another of his partners in crime exclaimed, ‘We shot them!’
“As to the October shooting, Millones told Conley that he was not present
for the shooting of the two members of La Fabrica; but then he admitted he was; then he
denied the admission; then admitted again that he was there but did not see anything.
Although Millones gave different accounts as to everything that transpired that night, he
consistently said he was with Flores the night of the incident.” (People v. Millones,
supra, G019380.)

DISCUSSION

Flores’s First Degree Murder Conviction Must be Reversed
Flores argues that his first degree murder conviction must be reversed
under the holding of our Supreme Court in Chiu, supra, 59 Cal.4th 155. The Attorney
General agrees, as do we.
In Chiu, supra, 59 Cal.4th 155, our Supreme Court held “that an aider and
abettor may not be convicted of first degree premeditated murder under the natural and
probable consequences doctrine. Rather, his or her liability for that crime must be based
on direct aiding and abetting principles.” (Id. at pp. 158-159.)
Here, the jury was instructed with CALJIC No. 3.02, which stated: “One
who aids and abets [another] in the commission of a crime [or crimes] is not only guilty
of [those crimes], but is also guilty of any other crime committed by a principal which is
a natural and probable consequence of the crime[s] originally aided and abetted. [¶] In
order to find the defendant guilty of the crime[s] of Murder and Attempted Murder as
charged in Counts 1, 2, and 4 and the lesser related crimes, you must be satisfied beyond
a reasonable doubt that: [¶] (1) The crimes of Assault with force likely to cause great

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bodily injury (Penal Code Section 245(a)(1), or Assault (P.C. Section 240) or Battery
(P.C. Section 242 [were] committed, [¶] (2) The defendant aided and abetted such
crime[s], [¶] (3) A co-principal in such crime committed the crime[s] of Murder or a
lesser related crime thereto, and Attempted Murder or a lesser related crime thereto, and
[¶] (4) The crime[s] of Murder or a lesser related crime thereto, and Attempted Murder
or a lesser related crime thereto, was a natural and probable consequence of the
commission of the crime[s] of Assault with force likely to cause great bodily injury
(Penal Code Section 245(a)(1)), or Assault (P.C. Section 240) or Battery (P.C. Section
242).”
The court explained that “[a] Natural and Probable consequence is defined
as a consequence which is reasonably foreseeable. [¶] The aider and abettor or co-
conspirator need not intend that the ultimate crime be committed, nor need he even
personally foresee that it may be committed. It is enough that, objectively, it is
reasonably foreseeable that the ultimate crime may occur.”
The jury was also instructed “[t]o constitute a deliberate and premeditated
killing, the slayer must weigh and consider the question of killing and the reasons for and
against such a choice and, having in mind the consequences, [he] decides to and does
kill.” (Italics added.)
Thus, the jury was told the law permitted Flores to be convicted of first
degree murder based solely on his intent to commit one of the target crimes of assault
with force likely to cause great bodily injury, assault, or battery, and on a finding that the
crime of murder was the natural and probable consequence of the target crime. Only the
perpetrator, the “slayer,” in the words of the instruction, needed to have deliberated and
premeditated. Under this theory, the jury was not required to find that Flores acted with
premeditation and deliberation. Under Chiu, this was clear error.

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 Further, the error was not harmless. The prosecutor’s primary argument to
the jury was that first degree murder was the objectively foreseeable result of Flores’s
intent to commit an assault with force likely to cause great bodily injury, assault, or
battery, even though Flores did not intend to kill. As the prosecutor forcefully argued,
“The prosecution has never advanced a theory that either of these two defendants . . . are
the person who did the shooting. That is not the theory of prosecution in this case.”
“[D]id they go with the purpose of encouraging, facilitating, either by act or advice,
backing up, going back with the home boys, take care of business to backup, to throw
blows?” “One who aids and abets the commission of a crime, is not only guilty of that
crime or those crimes, but is also guilty of any other crime committed by a
principal . . . committed by whoever the shooters were, . . . which is a natural and
probable consequence of the crime originally aided and abetted.” “The aider and abettor
or conspirator need not intend. They don’t have to intend for it to happen that the
ultimate crime be committed, nor they even personally foresee it. In other words, they
don’t even have to think it was going to happen.” “With respect to the foreseeability of
the ultimate crime, the issue does not turn on the defendant’s subjective state of mind,
what the defendant was thinking but depends upon whether under all the circumstances
presented, in this particular case, and under all those circumstances, would a reasonable
person in defendant’s position, would have or should have known that the ultimate crime
was a reasonably foreseeable consequence of the crime . . . .” These quotations are but a
sample. The prosecutor continued to expound at length on the natural and probable
consequence theory of liability as the foundation of guilty verdict.
In view of the instruction permitting an erroneous theory of liability, and
the prosecutor’s argument emphasizing that theory, it cannot be said beyond a reasonable
doubt that the jury relied on a direct aiding and abetting theory in convicting Flores of
first degree murder rather than the invalid natural and probable consequences theory.
(Chiu, supra, 59 Cal.4th at p. 167 [“first degree murder conviction must be reversed

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unless we conclude beyond a reasonable doubt that the jury based its verdict on the
legally valid theory that defendant directly aided and abetted the premeditated murder”].)
Accordingly, we reverse Flores’s first degree murder conviction and
remand the matter to the trial court where the People will be allowed to retry the case and
seek a first degree murder conviction under a direct aiding and abetting theory, or to
accept a reduction of the conviction to second degree murder. (Chiu, supra, 59 Cal.4th at
p. 168.)

Under United States Supreme Court Authority, Flores’s Attempted Murder Convictions
Also Must be Reversed
In California, punishment for attempted murder varies as set forth in Penal
Code section 664, subdivision (a). A person guilty of attempted murder must be
punished by imprisonment in the state prison for five, seven, or nine years. But if the
person is guilty of attempted willful, deliberate, and premeditated murder, the punishment
is imprisonment for life with the possibility for parole. (Ibid.) Here, Flores was
convicted of two counts of attempted murder and the jury found true the allegation that
the attempted murder was willful, deliberate, and premeditated.
Flores now contends that the prosecution’s theory of liability for the
attempted premeditated murder convictions was the same theory advanced for the
premeditated murder conviction, i.e., the attempted murders were the natural and
probable consequences of the crimes of assault with force likely to cause great bodily
injury, assault, and battery. Indeed, both murder and attempted murder were included in
the instructions on the natural and probable consequences doctrine. Flores argues that
Chiu, supra, 59 Cal.4th 155, holding that the natural and probable consequences doctrine
is not a valid theory of guilt for first degree premeditated murder, applies equally to
attempted premeditated murder.

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 In a case decided only some 23 months before Chiu, the California
Supreme Court held “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.” (Favor, supra, 54 Cal.4th at p. 880.) Thus, the
Favor holding is clearly in tension with the Chiu rationale.
That tension was recognized by a panel of this court in Mejia, supra, 40
Cal.App.5th at page 50, review granted.1 The Mejia court explained, “The critical
holding in Chiu is that the perpetrator’s mental state of premeditation and deliberation ‘is
too attenuated to impose aider and abettor liability for first degree murder under the
natural and probable consequences doctrine.’ [Citation.] It follows then that in the
context of attempted murder, the perpetrator’s mental state of premeditation and
deliberation is equally too attenuated to impose liability for premeditated and deliberation
on an aider and abettor under the natural and probable consequences doctrine. The
unique mental state of willfulness, premeditation, and deliberation is no less subjective
and personal in the context of attempted murder than it is in the context of murder.”
(Mejia, at p. 49.) Accordingly, Mejia held that under state law, attempted premeditated
murder could not be based upon the natural and probable consequences doctrine.
Even if the holding of the Mejia court is incorrect, the propriety of jury
instructions like those given in this case was placed in further doubt by the United States
Supreme Court in Alleyne, supra, 570 U.S. 99, a case decided some 18 months after
Favor, supra, 54 Cal.4th 868. Alleyne held that the Sixth Amendment requires any fact
that, by law, increases the mandatory minimum penalty for a crime to be treated as an
“element” of the crime, meaning it must be submitted to the jury and found true beyond a

1
“[A] published opinion of a Court of Appeal in the matter has no binding or
precedential effect, and may be cited for potentially persuasive value only.” (Cal. Rules
of Court, rule 8.1115(e)(1).)

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reasonable doubt. (Alleyne, supra, at p. 103.) In another case involving the crime of
attempted premeditated murder, a panel of this court considered the application of the
Alleyne decision to the question whether jury instructions which mirrored those given in
this case withstand scrutiny under the Sixth Amendment and concluded they did not.
(Dennis, supra, 47 Cal.App.5th at p. 854, review granted.) In Dennis, we held, “[u]nder
the teaching of Alleyne, where a defendant is prosecuted for attempted premeditated
murder under the natural and probable consequences doctrine, the jury must be instructed
that it needs to find the attempted premeditated murder was a natural and probable
consequence of [the target crime]. The court’s failure to do so here deprived defendant of
his Sixth Amendment right to a fair trial.” (Ibid.) We further held “this violation of
defendant’s federal constitutional rights was not harmless beyond a reasonable doubt”
under Chapman v. California (1967) 386 U.S. 18, 24. (Dennis, at p. 854.)
“Decisions of the United States Supreme Court are binding not only on all
of the lower federal courts, but also on state courts when a federal question is involved,
such as constitutionality of a stature or construction of the federal Constitution or
statues.” (9 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 505; Moon v. Martin (1921)
185 Cal. 361, 366 [“state courts are bound by the decision of the supreme court of the
United States on questions depending upon the construction of the United States
constitution”].) Accordingly, in Dennis, supra, 47 Cal.App.5th 838, we held that Alleyne
required us to adhere to its holding, thus “freeing us from the potential stare decisis
strictures of the Favor opinion.” (Dennis, at p. 851.) We remanded “the matter to the
trial court to provide the prosecution an opportunity to decide whether to retry defendant
on [the special findings of willfulness, deliberation, and premeditation] with appropriate
jury instructions.” (Id. at p. 854.) For the reasons explained at length in Dennis, the
same disposition is appropriate here.

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 We recognize our opinions in Mejia, supra, 40 Cal.App.5th 42 and Dennis,
supra, 47 Cal.App.5th 838 will not be the final word on the question whether attempted
premeditated murder, under the natural and probable consequences doctrine, is a valid
theory of liability under Chiu, supra, 59 Cal.4th 155, and, even if it is, whether the jury
instructions given here survive scrutiny under Alleyne, supra, 570 U.S. 99. Suffice to say
that nothing in the Attorney General’s briefing here present arguments not previously
made and considered by our opinions in Mejia and Dennis. These issues will finally be
resolved by the California Supreme Court in its review of Mejia and the lead case of
Lopez, supra, 38 Cal.App.5th 1087, review granted. The Supreme Court’s grant of
review in Lopez limited review to two issues, one of which was identified by the court as
follows: “In order to convict an aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable consequences doctrine, must a
premeditated attempt to murder have been a natural and probable consequence of the
target offense? In other words, should [Favor, supra,] 54 Cal.4th 868 be reconsidered in
light of [Alleyne, supra,] 570 U.S. 99 and [Chiu, supra,] 59 Cal.4th 155?”

DISPOSITION

Flores’s petition for writ of habeas corpus is granted. The judgment on his
first degree murder conviction is reversed and remanded to the trial court where the
People will be allowed to retry the case and seek a first degree murder conviction under a
direct aiding and abetting theory, or to accept a reduction of the conviction to second
degree murder. The judgment on the two attempted murder convictions is affirmed, but
the special findings that the attempted murders were willful, deliberate, and premeditated
are vacated. On remand the prosecution will have the opportunity to decide whether to
retry Flores on the special findings under jury instructions consistent with this opinion.

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Flores will be resentenced in accordance with the outcomes of those further proceedings.2
Having served its purpose, the order to show cause is discharged.

IKOLA, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.

2
We note that in a companion case, we reversed the summary denial of
Flores’s petition for resentencing on the murder conviction under Penal Code section
1170.95 with directions to consider that petition on the merits. (People v. Flores
(Feb. 10, 2021, G058216) [nonpub. opn.].) This opinion has no bearing on the merits of
his Penal Code section 1170.95 petition.

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