Filed 4/6/16




                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                      DIVISION THREE



In re JESUS LOPEZ                                      G051238

    on Habeas Corpus.                                  (Super. Ct. No. 04CF2780)

                                                       OPINION



                 Original proceedings; petition for writ of habeas corpus after a judgment of
the Superior Court of Orange County, Richard M. King, Judge. Petition granted.
Conviction for first degree murder vacated and matter remanded with directions.
                 Jesus Lopez, in pro. per.; and Eric R. Larson, under appointment by the
Court of Appeal, for Petitioner.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Lynne G. McGinnis, Deputy Attorneys General, for Respondent.
                                    INTRODUCTION
              A jury in 2008 convicted Jesus Lopez (Petitioner) of one count (count 1) of
first degree murder (Pen. Code, § 187, subd. (a)) and one count (count 2) of street
terrorism (id., § 186.22, subd. (a)). As to count 1, the jury found true a vicarious firearm
use enhancement (id., § 12022.53, subds. (d), (e)(1)) and a criminal street gang
enhancement (id., § 186.22, subd. (b)(1)). Petitioner was 17 years old at the time of the
offenses. The trial court sentenced Petitioner to a term of 50 years to life in prison. We
affirmed the conviction and sentence in People v. Lopez (Apr. 20, 2010, G040350)
(nonpub. opn.).
              By petition for writ of habeas corpus, Petitioner challenges his sentence of
50 years to life. He seeks relief based on two claims: (1) under People v. Chiu (2014) 59
Cal.4th 155 (Chiu), his first degree murder conviction must be vacated because it was
based on the natural and probable consequences doctrine and (2) his 50-year-to-life
sentence is unconstitutional under Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455]
(Miller). As a remedy for the first claim, Petitioner asks for relief from the first degree
murder conviction with the prosecution given the choice of accepting a reduction to
second degree murder or retrying the murder charge. As a remedy for the second claim,
Petitioner asks for an order that resentencing comport with Miller and other United States
Supreme Court and California Supreme Court authority.
              We hold Chiu is retroactive to convictions, such as Petitioner’s, that were
final on appeal when Chiu was decided. We also conclude Petitioner is entitled to relief
because the record shows his conviction for first degree murder was based on the natural
and probable consequences doctrine impermissible under Chiu. We therefore grant relief
and vacate Petitioner’s conviction for first degree murder. On remand, the People may
accept a reduction of the conviction to second degree murder or elect to retry the greater
offense. (Chiu, supra, 59 Cal.4th at p. 168.) In light of our decision on Petitioner’s first

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claim, Petitioner’s second claim is moot or not yet ripe for adjudication. We note that in
Montgomery v. Louisiana (2016) 577 U.S. __ [136 S.Ct. 718], the United Supreme Court
held that Miller applies retroactively to state convictions on collateral review.


                       FACTS AND PROCEDURAL HISTORY
                                              I.
                                            Facts
              We draw the facts from our prior unpublished opinion, People v. Lopez,
supra, G040350.
              In August 2004, Petitioner and his codefendant, Francisco Jose Lopez
(Francisco Lopez), who were both members of a territorial criminal street gang named
F-Troop, met at a park with three other F-Troop members and a man who belonged to an
affiliated street gang. The park was within F-Troop’s claimed territory. Francisco Lopez
displayed a handgun and told the others, “we have a gun . . . if something happens.” The
group left the park on bicycles and were followed by a truck carrying several other
people. The group first traveled to the home of a fellow F-Troop gang member and then
went to an intersection located either in or on the border of an area claimed by a rival
street gang named West Myrtle. An eyewitness testified, “a minimum of 50” people “on
bicycles” and “walking” were around the intersection at the time.
              Petitioner and the other bicyclists saw a car driven by Pedro Javier Rosario,
who was wearing a muscle T-shirt and sporting tattoos. The bicyclists hailed him and
surrounded his car when it stopped at a stop sign. Both Petitioner and Francisco Lopez
approached the driver’s side window and, while straddling his bicycle, Francisco asked,
“[w]here [are you] from.” Rosario said something and began to slowly drive away.
Francisco pulled out the handgun, aimed at the car, and, after a couple of seconds, fired
 1
   Our disposition in this matter does not affect Petitioner’s conviction and sentence on
count 2, which Petitioner did not challenge in the prior appeal.

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the weapon. The bullet shattered the car’s back window and struck Rosario in the back
of the head, killing him. The bicyclists and truck fled the scene. Petitioner was 17 years
old at the time.
              Details of the respective roles of Francisco Lopez and Petitioner in the
murder were supplied at trial by the testimony of Louis Perez, a former member of the
F-Troop gang, who witnessed the murder and testified as a prosecution witness. Perez
testified that Francisco Lopez had a gun and that, while at the park before the murder,
pulled the gun out of his waistband and showed it “to us,” which included Petitioner.
Francisco Lopez said something to the effect of, “we have a gun around, so if something
happens, you know”; however, Perez testified that nobody was expecting anything to
happen that day. Perez testified that Francisco Lopez “pulled the trigger.” When asked if
anybody else was at the scene, Perez testified, “Jesus Lopez and a few other[s] of us.”
According to Perez, only Francisco Lopez touched the gun that day. Perez testified he
was acting as backup, and it was important that he did so. About a week after the
shooting, another witness, Edward Reyes, prepared a diagram in which he placed each of
the participants. On the diagram, Petitioner is marked as being next to Francisco Lopez.


                                            II.
                                Trial Court Proceedings
              Petitioner was jointly tried with Francisco Lopez for the first degree murder
of Rosario. The prosecution presented the jury with three alternative legal theories for
convicting Petitioner: (1) Petitioner directly aided and abetted the murder, (2) Petitioner
aided and abetted the target crime of disturbing the peace and the subsequent murder was
a natural and probable consequence of disturbing the peace, and (3) Petitioner conspired
to disturb the peace and the subsequent murder was a natural and probable consequence
of the conspiracy. The jury was instructed it could convict Petitioner of first degree



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murder under the natural and probable consequences doctrine either as an aider and
abettor or as a coconspirator.
              The jury found Petitioner guilty of the first degree murder of Rosario
(count 1) and street terrorism (count 2). On count 1, the jury returned true findings of
discharging a firearm proximately causing death (Pen. Code, § 12022.53, subds. (d) &
(e)(1)), and the crime was committed for the benefit of or in association with a criminal
street gang (id., § 186.22, subd. (b)(1)). The jury returned a general verdict and did not
identify the theory under which it found Petitioner guilty of murder.
              The trial court sentenced Petitioner to a total prison term of 50 years to life,
consisting of 25 years to life on count 1 (first degree murder) and a consecutive term of
25 years to life for the firearm enhancement, with a concurrent two-year term on count 2
(street terrorism). A panel of this court affirmed the judgment against Petitioner in
People v. Lopez, supra, G040350. The California Supreme Court denied Petitioner’s
petition for review.


                                             III.
                                 Habeas Corpus Proceedings
              In January 2015, Petitioner, who was self-represented at the time, filed a
petition for writ of habeas corpus in this court. We issued an order to show cause
directing respondent to file a return. Counsel was appointed to represent Petitioner, and
counsel filed an amended petition asserting two claims for habeas corpus relief:
(1) Petitioner’s murder conviction was unlawfully obtained under the natural and
probable consequences doctrine and (2) Petitioner’s sentence constitutes cruel and
unusual punishment under the United States Constitution and the California Constitution.
In response to the amended petition, respondent filed an amended return, to which
Petitioner filed a traverse, thereby joining the issues for review.



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              After the traverse was filed, respondent filed a request to file a letter brief
addressing the issue whether Chiu has retroactive application to convictions, such as
Petitioner’s, that became final on appeal before that decision was issued. We granted the
request and, at our invitation, Petitioner filed a letter brief in response to respondent’s
letter brief. After Montgomery v. Louisiana, supra, 577 U.S. __ [136 S.Ct. 718], was
issued, we invited the parties to submit letter briefs addressing the effect of that opinion
on these issues: (1) whether Chiu, supra, 59 Cal.4th 155, applies retroactively to
convictions that were final on appeal when Chiu was decided and (2) whether Miller,
supra, 567 U.S. __ [132 S.Ct. 2455], applies retroactively to Petitioner’s conviction and
sentence. Petitioner and respondent each filed a letter brief.


                                       DISCUSSION
                                              I.
                                    Chiu Is Retroactive.
              In Chiu, supra, 59 Cal.4th at pages 158-159, the California Supreme Court
held an aider and abettor may not be convicted of first degree premeditated murder under
the natural and probable consequences doctrine. An aider and abettor’s liability for
premeditated first degree murder must be based on direct aiding and abetting principles.
(Id. at p. 159.) Punishment for second degree murder “is commensurate with a
defendant’s culpability for aiding and abetting a target crime that would naturally,
probably, and foreseeably result in a murder under the natural and probable consequences
doctrine.” (Id. at p. 166.)
              The Chiu opinion did not directly address whether a coconspirator may be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine. In People v. Rivera (2015) 234 Cal.App.4th 1350, 1356, the
Court of Appeal addressed that issue and concluded the reasoning of Chiu applied
equally to uncharged conspiracy liability because “the operation of the natural and

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probable consequences doctrines is analogous” for aiding and abetting and uncharged
conspiracy liability. The Court of Appeal explained: “This analogy appeared in Chiu
itself, when the court was cataloguing examples of the natural and probable consequences
doctrine as follows: ‘The natural and probable consequences doctrine was recognized at
common law and is firmly entrenched in California law as a theory of criminal liability.
([People v.] Prettyman [(1996)] 14 Cal.4th [248,] at pp. 260-261 . . . ; People v. Durham
(1969) 70 Cal.2d 171, 181-185 & fn. 11 . . . ; cf. People v. Kauffman (1907) 152 Cal.
331, 334 . . . [conspiracy liability]; [citation].)’ (Chiu, supra, 59 Cal.4th at p. 163.) Thus,
when the California Supreme Court in Chiu was explaining the natural and probable
consequences doctrine, it understood its applicability to both aiding and abetting and
conspiracy theories.” (People v. Rivera, supra, at p. 1356.) The People v. Rivera court
held that the trial court erred by instructing the jury it could reach a verdict of first degree
murder if it found the defendant conspired to commit the target crime and first degree
murder was a natural and probable consequence of the target crime. (Id. at p. 1357.) We
agree with the holding and analysis of People v. Rivera.
              The Chiu opinion does not state whether it applies retroactively to
convictions, such as Petitioner’s, that were final on appeal when Chiu was decided.
There are two potential tests for determining whether a new rule of law applies
retroactively to state court convictions on collateral review. The first test, which might
be called the federal test, was set forth in Schriro v. Summerlin (2004) 542 U.S. 348
(Schriro). The issue in Schriro was whether a new federal constitutional rule was
substantive or procedural. The United States Supreme Court clarified that the key issue
in retroactivity analysis on collateral review is whether the new rule is substantive or
procedural. “New substantive rules generally apply retroactively” (id. at p. 351) while
“[n]ew rules of procedure . . . do not apply retroactively” (id. at p. 352). “A rule is
substantive rather than procedural if it alters the range of conduct or the class of persons
that the law punishes” (id. at p. 353) or “modifies the elements of an offense” (id. at

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p. 354). “In contrast, rules that regulate only the manner of determining the defendant’s
culpability are procedural.” (Id. at p. 353.) The Supreme Court held the new rule was
procedural and therefore did not apply retroactively on collateral review of a state court
conviction. (Id. at p. 358.)
              The Chiu decision set forth a new rule of substantive law by altering the
range of conduct for which a defendant may be tried and convicted of first degree
murder. Under Chiu, a defendant cannot be punished for first degree murder as an aider
and abettor (or by analogy as a coconspirator) under the natural and probable
consequences doctrine; that is to say, the range of conduct the law punishes for first
degree murder has been altered to eliminate mere aiding and abetting or conspiring in the
commission of an uncharged target crime, the natural and probable consequence of which
is the commission of first degree murder by someone other than the aider and abettor or
coconspirator. Chiu thus created a new substantive rule that applies retroactively
pursuant to the federal test set forth in Schriro.
              Schriro concerned the retroactivity of a new rule of federal constitutional
law. In Montgomery v. Louisiana, supra, 577 U.S. at page __ [136 S.Ct. at page 729], the
court held that “when a new substantive rule of constitutional law controls the outcome of
a case, the Constitution requires state collateral review courts to give retroactive effect to
that rule.” Respondent argues Montgomery v. Louisiana has no effect on the retroactivity
of Chiu because Chiu did not concern a substantive rule of federal constitutional law but
an interpretation of California statute. Petitioner argues Chiu does concern a substantive
rule of federal constitutional law because the due process clause of the Fourteenth
Amendment prohibits a state from convicting a defendant of a crime without proving all
of the elements beyond a reasonable doubt. We do not decide the issue because, we
conclude, Chiu also is retroactive under the test set forth by the California Supreme Court
in People v. Mutch (1971) 4 Cal.3d 389, 392 (Mutch).



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              In Mutch, supra, 4 Cal.3d at page 392, the California Supreme Court
considered the retroactive effect of its decision overruling established precedent
regarding the scope of the offense of aggravated kidnapping. The court determined that
its decision should be given full retroactive effect to convictions that were final on
appeal. (Id. at p. 396.) The court reasoned that because all crimes in California are
statutory, the new interpretation of the aggravated kidnapping statute was not a change in
the law but was a declaration of “what the intent of the Legislature ha[d] been” since
enacting the amendment to the aggravated kidnapping statute. (Id. at p. 394.) “[W]e did
not overturn a judge-made rule of common law; rather, we recognized a statutory rule
which the Legislature adopted in 1951 but to which courts had not previously given
appropriate effect.” (Ibid.) Given this interpretation, the Supreme Court explained that it
need not “undertake the often perilous task of applying to the facts of this case the test of
‘retroactivity’ developed in a well-known series of decisions of the United States
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Supreme Court.” (Ibid.)
              Twenty years later, in Woosley v. State of California (1992) 3 Cal.4th 758,
794, the California Supreme Court offered this guidance in determining retroactivity
under Mutch: “‘To determine whether a decision should be given retroactive effect, the
California courts first undertake a threshold inquiry: does the decision establish a new
rule of law? If it does, the new rule may or may not be retroactive . . . ; but if it does not,
“no question of retroactivity arises,” because there is no material change in the law.
[Citations.]’ [Citation.] An example of a decision which does not establish a new rule of

 2
    The California Supreme Court has articulated a different, three-part test for
determining retroactivity of judicial opinions involving questions of procedure. Under
the three-part test, a court considers “‘(a) the purpose to be served by the new standards,
(b) the extent of the reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive application of the new
standards.’” (In re Dabney (1969) 71 Cal.2d 1, 9; see In re Johnson (1970) 3 Cal.3d 404,
410 [retroactivity of opinion holding invocation of privilege against self-incrimination
constitutes complete defense].)

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law is one in which we give effect ‘to a statutory rule that the courts had theretofore
misconstrued [citation] . . . .’ [Citations.] ‘Whenever a decision undertakes to vindicate
the original meaning of an enactment, putting into effect the policy intended from its
inception, retroactive application is essential to accomplish that aim. [Citation.]’
[Citation.]”
               Murder, as all crimes in California, is statutory, as are the degrees of
murder and the punishment. (Pen. Code, §§ 6, 187, 189, 190; see In re Brown (1973)
9 Cal.3d 612, 624 [“In California all crimes are statutory and there are no common law
crimes.”].) Aider and abettor liability likewise is statutory (Pen. Code, § 31; see Chiu,
supra, 59 Cal.4th at p. 161) as is coconspirator liability (Pen. Code, §§ 182, 183; see
People v. Zacarias (2007) 157 Cal.App.4th 652, 660). By limiting the scope of aider
and abettor liability in the commission of murder, the court in Chiu was, in effect,
engaging in statutory interpretation and declaring the Legislature’s intent just as the court
in Mutch did for the aggravated kidnapping statute. (Chiu, supra, at p. 164 [“We may, as
a court, determine the extent of aiding and abetting liability for a particular offense.”].)
               Because, as we conclude, Chiu must be applied retroactively, it was error
for the jury in this case to be presented with and instructed on a theory of first degree
murder based on the natural and probable consequences doctrine.


                                              II.

                           Petitioner Satisfies the Standard for
                                  Habeas Corpus Relief.
               Habeas corpus relief is available when the court has acted in excess of
jurisdiction. (Pen. Code, § 1487; In re Zerbe (1964) 60 Cal.2d 666, 667 (Zerbe).) The
concept of jurisdiction for purposes of habeas corpus is not limited to its fundamental
meaning, that is, jurisdiction over the person or the subject matter, but includes acts that
exceed the court’s powers as determined by constitutional provision, statute, or


                                              10
court-developed rules. (In re Harris (1993) 5 Cal.4th 813, 838-839; Zerbe, supra, 60
Cal.2d at pp. 667-668.)
              To determine whether Petitioner’s conviction for first degree murder was in
excess of the trial court’s jurisdiction, we consider the record on appeal in case
No. G040350. We previously granted Petitioner’s unopposed request to take judicial
notice of that appellate record.
              That record demonstrates the jury convicted Petitioner under the theory of
aiding and abetting, or conspiring to commit, the target offense of disturbing the peace,
with murder as a natural and probable consequence (impermissible under Chiu), not
under the alternate theory of direct aiding and abetting the murder (permissible under
Chiu). In closing argument, the prosecutor described aiding and abetting a murder as
“the least likely of the alternative theories of liability” in “a fact-driven analysis” and
spent little time on it. In contrast, the prosecutor told the jury the natural and probable
consequences doctrine based on disturbing the peace was “a more likely scenario, either
as an aider and abettor or a coconspirator” and argued that theory of liability at greater
length. The prosecutor urged the jury to convict based on the natural and probable
consequences doctrine because it had “[n]o intent to kill requirement.”
              The jury was instructed it could convict Petitioner of second degree
murder; however, the prosecutor’s argument led the jury to convict him of first degree
murder based on Francisco Lopez’s mental state. The prosecutor told the jury it first had
to determine if Francisco Lopez was the shooter, and, if he was, “he’s guilty of first or
second degree murder.” The prosecutor argued that, as to the “nonshooters,” the jury
could choose among the three theories of liability presented, the least likely of which, the
prosecutor had argued, was aiding and abetting a murder. Next, the prosecutor argued,
“[i]f you find any of these to be your theory of murder, then the nonshooter stands in the
shoes of the shooter. The law treats them equally.” Because the jury found Francisco
Lopez guilty of first degree murder, it is reasonably certain the jury also found Petitioner

                                              11
guilty of first, rather than second, degree murder, based on the natural and probable
consequences doctrine.
               In considering whether Petitioner has satisfied the standard for habeas
corpus relief, we cannot ignore the prosecutor’s comments urging the jury to convict
based on the natural and probable consequences doctrine and all but conceding the direct
aider and abettor theory. Although respondent argues the evidence was sufficient to
convict Petitioner as a direct aider and abettor, thereby arguably foreclosing habeas
corpus relief under California Supreme Court authority, it appears the jury did not convict
him on direct aiding and abetting. Whatever the basis for the jury’s verdict might have
been in theory, in reality the jury almost certainly convicted Petitioner of first degree
murder as an aider and abettor under the natural and probable consequences doctrine, an
interpretation of Penal Code section 31 rejected in Chiu.
               “[A] defendant is entitled to habeas corpus if there is no material dispute as
to the facts relating to his conviction and if it appears that the statute under which he was
convicted did not prohibit his conduct. [Citations.]” (Zerbe, supra, 60 Cal.2d at p. 668;
see In re Earley (1975) 14 Cal.3d 122, 125; Mutch, supra, 4 Cal.3d at p. 396.) Under the
undisputed facts, Penal Code section 31 did not make Petitioner’s conduct first degree
murder under a natural and probable consequences doctrine: “‘[T]here is no material
dispute as to the facts relating to [Petitioner’s] conviction and . . . it appears that the
statute under which he was convicted did not prohibit his conduct [as first degree murder
under a natural and probable consequences doctrine].’” (Mutch, supra, p. 396.)
Petitioner’s conviction was, therefore, in excess of the trial court’s jurisdiction, and
Petitioner is entitled to habeas corpus relief. Because we conclude Petitioner is entitled
to habeas corpus relief under the standard set forth in Zerbe, Mutch, and In re Earley, we
do not address his argument that he is entitled to relief under the standard used by the
majority opinion in In re Hansen (2014) 227 Cal.App.4th 906.



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                                      DISPOSITION
              The petition for a writ of habeas corpus is granted insofar as it seeks relief
from the conviction for first degree murder. The conviction on count 1 for first degree
murder is vacated. In accordance with Chiu, supra, 59 Cal.4th 155, this matter is
remanded to the trial court with directions to allow the People to accept a reduction of the
conviction on count 1 to second degree murder, or to elect to retry Petitioner for first
degree murder under a theory or theories other than natural and probable consequences.
If the People accept the reduction of the conviction on count 1, then the true findings on
the enhancements are affirmed, and Petitioner shall be resentenced.



                                                  FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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