People v. Reyes

Filed 10/9/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E084354 v. (Super.Ct.No. RIF108728) REINA DOLORES REYES, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Joshlyn Pulliam, Judge. Reversed with directions. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Andrews Mestman, Seth M. Friedman and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent. In 2005, a jury convicted Reina Dolores Reyes of one count of conspiracy to commit murder and two counts of attempted murder. Reyes subsequently petitioned for resentencing relief under Penal Code section 1172.6, and the trial court denied the petition at the prima facie stage. (Unlabeled statutory references are to the Penal Code.) 1 The court found that the conviction of conspiracy to commit murder precluded relief as a matter of law because the jury must have found that Reyes personally harbored specific intent to kill. We conclude that the trial court erred, because the jury at Reyes’s trial was given a version of CALJIC No. 8.69 that erroneously allowed her to be convicted of conspiracy to commit murder without a finding that she had intent to kill. (See People v. Garton (2018) 4 Cal.5th 485, 516 (Garton).) In addition, the jury was instructed that it could convict Reyes of the attempted murders if they were natural and probable consequences of the criminal objective of the conspiracy. Under those instructions, the jury could have convicted Reyes of attempted murder and conspiracy to commit murder without finding that she acted with malice. The conviction of conspiracy to commit murder consequently did not render Reyes ineligible for relief under section 1172.6. BACKGROUND1 I. The trial In 2005, the People charged Reyes and two codefendants, Joe Varela (Reyes’s brother) and Tony Armster, with numerous felony offenses arising from a drive-by shooting at Justin S.’s home in 2003. The charges against Reyes, Varela, and Armster included one count of conspiracy to commit murder (§ 182, subd. (a)(1); count 1), five counts of attempted murder (§§ 187, subd. (a), 664; counts 2-6), and one count of assault with a firearm (§ 245, subd. (a)(2); count 7). 1 We granted the People’s unopposed motion to take judicial notice of the records in Reyes’s direct appeal. (People v. Armster (Dec. 7, 2007, E038151) [nonpub. opn.].) 2  The shooting happened on the same day that Justin advised his friend Roque V. to end Roque’s one-year romantic relationship with Reyes. Roque did so later that day and also told Reyes that she had to move out of his house. Roque then called Justin, who came to Roque’s house to help get Reyes to leave. Reyes confronted Justin and threatened him: “‘I’m going to fucking kill you, got a bullet with your name on it, and I’m going to call my brother to come shoot your house.’” Reyes subsequently called Varela. Donzelle Benton (a housemate of Varela’s) then drove Varela and Armster (an acquaintance of Benton’s) to pick up Reyes. Benton, Reyes, Armster, and Varela later drove to Justin’s house. Armster and Varela fired multiple shots at the house from the car, striking and nonfatally wounding one victim (Michael R.). Reyes was tried before a separate jury. Her jury was instructed with CALJIC No. 8.69 on conspiracy to commit murder. The instruction stated that conspiracy to commit murder is “an agreement entered into by two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder followed by an overt act .... [¶] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being.” The instruction then defined the elements of conspiracy to commit murder as follows: “One, two or more persons entered into an agreement to kill unlawfully another human being; two, at least two other persons specifically intended to enter into an agreement with one or more of the other persons for that purpose; three, at least two of the persons to the agreement harbored express malice 3 aforethought, namely, a specific intent to kill unlawfully another human being; and, four, an overt act was committed in this state by one or more of the persons who agreed and intended to commit murder.” (Italics added.) (See CALJIC No. 8.69.) The jury was instructed on joint responsibility for conspiracy with CALJIC No. 6.11, as follows: “A member of a conspiracy is not only guilty of the particular crime that to her knowledge her confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a coconspirator to further the object of the conspiracy, even though that crime or act was not intended as a part of the agreed-upon objective.” The instruction further provided: “You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed-upon crime or crimes, and if so, whether the crimes alleged in Counts 2 through 6 [i.e., the attempted murder counts] were perpetrated by coconspirators in furtherance of that conspiracy and were a natural and probable consequence of the agreed-upon criminal objective of that conspiracy.” The instruction explained the concept of natural and probable consequences as follows: “In determining whether a consequence is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected would be likely to occur.” The jury was also instructed on attempted murder (CALJIC No. 8.66), direct aider and abettor liability (CALJIC No. 301), the kill zone (CALJIC No. 8.66.1), and liability under the natural and probable consequences doctrine as a theory of liability for count 7 (assault with a firearm) (CALJIC No. 3.02). 4  The jury convicted Reyes of conspiracy to commit murder (count 1), attempted willful, deliberate, and premeditated murder of Justin and Michael (counts 2 & 6), and assault with a firearm (count 7). The jury acquitted Reyes on two attempted murder counts (counts 3 & 4) and was deadlocked on the other attempted murder count (count 5), which was later dismissed. Reyes was sentenced to an aggregate term of 51 years eight months to life in state prison, which included consecutive sentences for the conspiracy and attempted murder convictions. Reyes appealed. In an unpublished opinion, we directed the trial court to stay both the 25-years-to-life sentence for the conspiracy conviction and an associated enhancement, but we otherwise affirmed the judgment. (People v. Armster, supra, E038151.) On remand, Reyes was resentenced to an aggregate term of 25 years eight months to life in state prison. II. Section 1172.6 proceeding In 2022, Reyes filed a petition to vacate her attempted murder convictions under what is now section 1172.6. In support of the petition, she subsequently filed a memorandum of points and authorities with attached exhibits, including certain jury instructions, jury questions, parts of the verdict, and an excerpt of the reporter’s transcript. Reyes argued that the instruction on conspiracy to commit murder erroneously allowed the jury to convict her of that crime without finding that she had the specific intent to kill, and it was therefore possible that the jury convicted her of the attempted murder of Justin (count 2) on a now-invalid theory of liability. With respect to the attempted murder of Michael (count 6), she argued that she was eligible for resentencing 5 because the kill zone instruction, along with the prosecutor’s closing argument, allowed the jury to convict her “on a theory under which malice is imputed to a person based solely on his participation in a crime.” The People filed a request for judicial notice, asking that the court take judicial notice of the complete set of jury instructions, this court’s opinion from the direct appeal, and all of the records from the trial. The People argued that under People v. Medrano (2021) 68 Cal.App.5th 177 (Medrano I), the conspiracy conviction rendered Reyes ineligible for relief as a matter of law as to both counts of attempted murder. The trial court denied the petition without issuing an order to show cause, reasoning that “conspiracy to commit murder requires the specific intent to unlawfully kill another human being.” DISCUSSION Reyes contends that the trial court prejudicially erred by failing to comply with certain procedural requirements of section 1172.6. The People counter that any such error was harmless because the conviction of conspiracy to commit murder rendered Reyes ineligible for resentencing relief under section 1172.6 as a matter of law. We disagree with the People. Because Reyes’s jury received erroneous instructions on the elements of conspiracy to commit murder, the jury’s finding of guilt on that charge does not preclude relief as a matter of law. “‘[U]nder the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the “natural and 6 probable consequence” of the crime the accomplice aided and abetted (i.e., the nontarget offense).’” (People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel).) Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a theory of liability for murder and attempted murder and narrowed the definition of first degree felony 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); §§ 188, 189.) Senate Bill 1437 eliminated the natural and probable consequences doctrine for murder and attempted murder by amending section 188 to provide that, with the exception of first degree felony murder under section 189, a defendant must “act with malice aforethought” in order to be convicted of murder, and “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Senate Bill 1437 created a procedural mechanism for retroactive application of those changes in the law to defendants who were convicted of murder under prior law but could not be convicted under current law. (§ 1172.6; Curiel, supra, 15 Cal.5th at p. 449.) The Legislature subsequently amended the statute to make it applicable to defendants convicted of “attempted murder under the natural and probable consequences doctrine.” (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 1; see also Curiel, at p. 449.) Upon the filing of a facially sufficient petition under section 1172.6, the trial court must determine whether the petitioner has made a prima facie showing of entitlement to 7 relief. (§ 1172.6, subd. (c); see generally People v. Lewis (2021) 11 Cal.5th 952, 971- 972.) In conducting the prima facie review, the court treats the petitioner’s factual allegations as true and makes a preliminary assessment of whether the petitioner would be entitled to relief if those allegations were proved. (Lewis, at p. 971.) In determining whether the petitioner has made a prima facie showing or the allegations are conclusively rebutted by the record, the trial court may review the record of conviction. (Id. at p. 972; People v. Lovejoy (2024) 101 Cal.App.5th 860, 865 (Lovejoy).) At the prima facie stage, the “court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’” (Lewis, at p. 972.) We independently review a trial court’s denial of a section 1172.6 petition at the prima facie stage. (Lovejoy, supra, 101 Cal.App.5th at p. 865.) Because Reyes was convicted of attempted murder, she is prima facie eligible for relief under section 1172.6 if her convictions may have been based on a theory of imputed malice, such as the natural and probable consequences doctrine.2 (§ 1172.6, subd. (a)(1).) The petition therefore could properly be denied at the prima facie stage “only if the record affirmatively demonstrates the jury did not rely” on such a theory. 2 Strictly speaking, the present case does not involve the natural and probable consequences doctrine, in which the defendant directly aids and abets the target offense and is held liable for crimes committed as a natural and probable consequence of that offense. Rather, this case involves conspiracy liability, in which the defendant conspires to commit the target offense and is held liable for crimes committed in furtherance of the conspiracy and as a natural and probable consequence of the agreed target offense. For purposes of section 1172.6 petitions concerning attempted murder convictions, the case law has treated the two theories similarly. (See Lovejoy, supra, 101 Cal.App.5th at pp. 866-867.) 8 (Lovejoy, supra, 101 Cal.App.5th at p. 865.) Reyes’s record of conviction does not demonstrate that. “A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) “‘[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder.’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 641; Medrano I, supra, 68 Cal.App.5th at p. 183.) “Conspiracy to commit murder may be based only on express malice, i.e., an intent to kill.” (Beck & Cruz, at p. 642.) A conviction of conspiracy to commit murder thus “requires a finding of intent to kill.” (People v. Swain (1996) 12 Cal.4th 593, 607.) The instruction on conspiracy to commit murder that was given to Reyes’s jury was a version of CALJIC No. 8.69 that the Supreme Court has since concluded is erroneous. (Garton, supra, 4 Cal.5th at p. 516; see also People v. Petznick (2003) 114 Cal.App.4th 663, 681 (Petznick).) The erroneous instruction permitted the jury to find Reyes guilty of conspiracy to commit murder if “at least two of the persons to the agreement harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” (Italics added.) “Asking the jury to find specific intent for ‘at least two’ conspirators in a conspiracy with more than two members, none of whom is feigning involvement, could potentially lead a jury to find an individual 9 conspirator guilty without finding that he or she possessed a specific intent to agree or to kill.”3 (Garton, at p. 516.) But a defendant cannot be guilty of conspiracy to commit murder unless the defendant was “one of the participants who harbored the specific intent to kill.” (Petznick, at p. 681.) The flawed instruction on conspiracy to commit murder thus erroneously allowed the jury to find that Reyes conspired to commit murder without finding that she possessed intent to kill. (See Petznick, supra, 114 Cal.App.4th at p. 681 [the erroneous instruction allows a jury to find a defendant “guilty of conspiracy to commit murder without regard to whether or not he [or she] personally intended to kill so long as they found that at least two of the other participants harbored that intent”].) The jury was instructed that it could convict Reyes on the attempted murder counts if it convicted her of conspiracy to commit murder and also found that the attempted murders were “perpetrated by coconspirators in furtherance of that conspiracy and were a natural and probable consequence of the agreed-upon criminal objective of that conspiracy.” As a result, the instructions allowed the jury to convict Reyes of attempted murder on a theory of imputed malice. That is, the jury could have convicted her of attempted murder without finding that she harbored malice herself. Rather, the jury could in effect have imputed malice to her “based solely on . . . her participation in a 3 The use notes for CALJIC No. 8.69 explain that this version of the instruction substitutes “at least two” for “each” in order “to accommodate the situation where there is a feigned accomplice,” such as “‘“a false coconspirator or government agent.”’” (Use Note to CALJIC No. 8.69; Garton, supra, 4 Cal.5th at p. 516.) 10 crime” (§ 188, subd. (a)(3)), namely, the crime of conspiracy to commit murder, for which the jury (erroneously) was not required to find that she acted with malice. That is prohibited by section 188 as amended by Senate Bill 1437. And because it is possible that the jury convicted Reyes of attempted murder on a now-invalid theory, her record of conviction does not show that as a matter of law she is ineligible for relief under section 1172.6. The trial court therefore erred by denying her petition at the prima facie stage. The People’s argument to the contrary is based on cases holding that a conviction of conspiracy to commit murder precludes eligibility for relief under section 1172.6 on associated murder or attempted murder convictions. (Medrano I, supra, 68 Cal.App.5th at pp. 182-186 [conspiracy to commit murder and first degree murder of same victim targeted by the conspiracy]; People v. Medrano (2024) 98 Cal.App.5th 1254, 1267-1268 (Medrano II) [same]; People v. Nguyen (2024) 103 Cal.App.5th 668, 672-674, 679-680, 686 [conspiracy to commit murder and first degree murders of target and nontarget victims]; Lovejoy, supra, 101 Cal.App.5th at pp. 860-868 [conspiracy to commit murder and attempted murder of same victim targeted by the conspiracy].) Those cases are distinguishable because the juries in those cases were correctly instructed on the elements of conspiracy to commit murder. (Medrano I, at pp. 182-186; Medrano II, at pp. 1267- 1268; Nguyen, at pp. 674-675, 678-679; Lovejoy, at pp. 865-866.) Consequently, when the juries in those cases convicted the defendants of conspiracy to commit murder, they necessarily found that the defendants harbored specific intent to kill. (Medrano I, at pp. 184-186; Medrano II, at p. 1267; Nguyen, at pp. 678-679; Lovejoy, at p. 866.) But 11 unlike the juries in Medrano I, Medrano II, Nguyen, and Lovejoy, Reyes’s jury could have convicted her of conspiracy to commit murder without finding that she had intent to kill, because of the erroneous instruction on the elements of conspiracy to commit murder. (Petznick, supra, 114 Cal.App.4th at p. 681.) Because it is possible that the jury convicted Reyes of attempted murder on a now- invalid theory, her record of conviction does not establish as a matter of law that she is ineligible for relief under section 1172.6. The trial court therefore erred by denying Reyes’s petition at the prima facie stage. On remand, the court must issue an order to show cause and conduct an evidentiary hearing. (§ 1172.6, subds. (c), (d).) We express no opinion on whether Reyes should be granted relief following the hearing. DISPOSITION The order denying Reyes’s petition under section 1172.6 is reversed. The trial court is directed to issue an order to show cause under section 1172.6, subdivision (c), and to conduct an evidentiary hearing under section 1172.6, subdivision (d). CERTIFIED FOR PUBLICATION MENETREZ J. We concur: McKINSTER Acting P. J. FIELDS J. 12