Filed 1/31/22 P. v. Nava CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303587
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA036614)
v.
FABIAN NAVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Martin L. Herscovitz, Judge. Reversed and
remanded with directions.
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Charles S. Lee,
David C. Chang and Scott A. Taryle, Deputy Attorneys General,
for Plaintiff and Respondent.
__________________________
Defendant and appellant Fabian Nava was charged with
the first degree murder of Carlos Mora in a gang-related shooting
in 1999. At trial, the prosecution presented evidence showing
Mora died after being attacked twice by members of a rival gang
to which defendant belonged. During the first attack, several
members of the gang severely beat Mora and someone fired a gun
at him. Two witnesses identified defendant as a participant in
the assault. Following the initial attack, Mora tried to escape but
was chased down by a car and shot repeatedly by one of its
occupants. Circumstantial evidence showed the same people
were responsible for both attacks. The prosecutor primarily
relied on the natural and probable consequences doctrine in
arguing defendant’s guilt, but also argued a theory of direct
aiding and abetting.
The jury convicted defendant of first degree murder (Pen.
Code, § 187, subd. (a)). It found not true the allegation defendant
personally used a firearm (§ 12022.5) but did find the offense was
committed on behalf of a criminal street gang (§ 186.22,
subd. (b)(1)) and that a principal personally and intentionally
discharged a firearm in the commission of the offense
(§ 12022.53, subds. (d) & (e)(1)). We affirmed defendant’s
conviction (People v. Nava (July 16, 2002, B151094)
[nonpub. opn.]).
In August 2018, defendant filed a petition for writ of
habeas corpus asserting he was unlawfully convicted of first
degree murder, relying on People v. Chiu (2014) 59 Cal.4th 155
which held that first degree murder liability may not be based on
the natural and probable consequences doctrine. The prosecution
conceded it could not prove beyond a reasonable doubt that the
jury relied on a legally valid theory to convict defendant of first
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degree murder. The trial court granted the petition and reduced
defendant’s conviction to second degree murder.
That same year, Senate Bill 1437 (2017–2018 Reg. Sess.)
was passed. Penal Code section 1170.95 was enacted as part of
the legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
While his habeas petition remained pending, defendant
filed in propria persona a separate petition for resentencing
pursuant to Penal Code section 1170.95. The court found a prima
facie case, appointed counsel, and issued an order to show cause.
The parties filed briefs and the prosecutor also submitted
exhibits from the underlying trial, the jury instructions, excerpts
of the reporter’s transcripts, and the appellate opinion from
defendant’s direct appeal. No new evidence was offered by either
party at the evidentiary hearing.
The trial court denied defendant’s petition, reasoning the
jury must have found defendant acted with actual malice as a
direct aider and abettor in finding him guilty of first degree
murder, and alternatively that there was sufficient evidence
demonstrating defendant had acted with actual malice.
Defendant filed this appeal.
In our original unpublished decision, we reversed and
remanded with directions to the superior court to conduct a new
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3). (People v. Nava (Jan. 27, 2021, B303587)
[nonpub. opn.].)
Respondent filed a petition for review asking the Supreme
Court to grant review and defer briefing because this case raised
the same issue then pending before the Court in People v. Duke
(2020) 55 Cal.App.5th 113, review granted January 13, 2021,
S265309, that is, whether the trial court, during an evidentiary
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hearing under Penal Code section 1170.95, acts as an
independent fact finder or reviews the record for substantial
evidence. On April 14, 2021, the Supreme Court granted
respondent’s petition.
In October 2021, the Legislature passed Senate Bill 775
(2021–2022 Reg. Sess.) which, among other things, amended the
language of Penal Code section 1170.95, subdivision (d)(3).
(Stats. 2021, ch. 551, § 2.)
On December 22, 2021, the Supreme Court transferred this
case to us with directions to vacate our decision and reconsider
the matter in light of the passage of Senate Bill 775. Having
vacated our original decision and reconsidered the issues
presented in light of the new legislation, we again reverse and
remand with directions to the superior court to issue an order to
show cause and conduct a new evidentiary hearing in accordance
with Penal Code section 1170.95, subdivision (d)(3), as amended.
DISCUSSION
The trial court suggested two bases for denying defendant’s
petition for resentencing: (1) the jury necessarily convicted
defendant under a direct aiding and abetting theory; and
(2) there was sufficient evidence in the record supporting
defendant’s conviction as a direct aider and abettor.
The parties agree, as do we, that the first ground is
unsupportable. In reaching its conclusion, the trial court relied
on language in CALJIC No. 8.20 providing that “[i]f you find that
the killing was preceded and accompanied by a clear, deliberate
intent on the part of the defendant to kill, which was the result of
deliberation and premeditation . . . , it is murder of the first
degree.” The court reasoned, in light of this instruction, the jury
must have concluded defendant acted with the intent to kill when
it convicted him of first degree murder.
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The problem with this reasoning is that CALJIC No. 8.20
does not require the jury to find the defendant acted with an
intent to kill in order to convict him of first degree murder;
rather, it states only that such a finding is sufficient. The
instruction, moreover, goes on to state that “[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.) This reference to “the slayer,”
rather than “the defendant,” permitted the jury to convict
defendant of first degree murder under the natural and probable
consequences doctrine. (In re Loza (2018) 27 Cal.App.5th 797,
805.) Indeed, the trial court apparently reached this same
conclusion when it granted defendant’s previous petition for
habeas corpus and reduced his conviction from first to second
degree murder.
As to the trial court’s second basis for denying the petition,
the record does not establish the court conducted the proper
inquiry under the appropriate standard. Although the court’s
minute order indicates it was “convinced beyond reasonable
doubt that the petitioner had express malice when he aided and
abetted the murder of Carlos Mora,” its oral statements at the
hearing suggest it may have applied a substantial evidence
standard. In its concluding remarks, for example, the court noted
“the evidence supports [the jury’s] decision” that defendant
formed express malice and intended to kill Mora. (Italics added.)
Had the court been acting as an independent fact finder, there
would have been no reason to reference the jury’s decision.
Senate Bill 775, among other things, amended and clarified
the procedures governing an evidentiary hearing conducted
pursuant to Penal Code section 1170.95, subdivision (d)(3).
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“[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (d)(3).) The new text provides that a prior
“finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” (Ibid.)
The amendments also expand on the consideration of
evidence at the hearing, during which both sides may “offer new
or additional evidence to meet their respective burdens.”
(Pen. Code, § 1170.95, subd. (d)(3).) The amended statute
provides, in relevant part, that “[t]he admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of
the case recited in any prior appellate opinion.” (Ibid.)
In their supplemental, postremand briefing, the parties
agree that remand is appropriate and that a new evidentiary
hearing must be conducted in which the trial court acts as an
independent fact finder and applies the beyond a reasonable
doubt standard of proof in accordance with the amended
statutory language.
We agree remand and a new evidentiary hearing is
necessary. On remand, the trial court shall conduct a new
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3), as amended by Senate Bill 775. At the
evidentiary hearing, the trial court shall act as an independent
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fact finder and apply the beyond a reasonable doubt standard of
proof. (See also People v. Gentile (2020) 10 Cal.5th 830, 855
[“section 1170.95 requires the superior court to determine on an
individualized basis, after considering any new or additional
evidence offered by the parties, whether the defendant is entitled
to relief”].)
Defendant requests we order the trial court, on remand,
may not consider the factual summary in the prior opinion from
his direct appeal, citing to the new text in Penal Code
section 1170.95 providing that the “procedural history” may be
considered, but not saying a prior opinion can be considered in its
totality. We decline to issue the order requested by defendant, as
this court does not provide advisory opinions on what evidence
may be admitted at the hearing; we have said already the
hearing shall be held pursuant to section 1170.95,
subdivision (d)(3), as amended by Senate Bill 775, and that is
enough.
DISPOSITION
The order denying defendant’s petition for resentencing is
reversed. The case is remanded to the superior court to conduct a
new evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3), as amended.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. WILEY, J.
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