Filed 5/15/15 In re Martinez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re HECTOR MARTINEZ                                               D066705

on                                                                  (San Diego County
                                                                    Super. Ct. No. SCD224457)
Habeas Corpus.


THE COURT:

         Petition for habeas corpus. Petition denied.

         Marilee Marshall & Associates and Marilee Marshall for Petitioner.

         Kamala D. Harris, Attorney General, William M. Wood, Deputy Attorney

General, for Respondent.

         This case is before us a second time. In the prior case (People v. Martinez et al.

(March 5, 2013, D058929) [nonpub. opn.] (Martinez I)), Hector Martinez and his

codefendant appealed, contending among other things that their first degree murder

convictions should be reversed because the trial court erred by failing to adequately

instruct the jury on the natural and probable consequences doctrine of liability for aiders

and abettors. Specifically, they argued the instruction "failed to correctly inform the jury
that [they were] guilty of premeditated murder only if the jury found that premeditated

murder, and not merely murder, was the natural and probable consequence of the target

crimes." We rejected that argument based on People v. Favor (2012) 54 Cal.4th 868,

876-880. Martinez appealed to the California Supreme Court, which denied his petition

for review without prejudice to any relief he might obtain under People v. Chiu (2014) 59

Cal.4th 155, 166 (Chiu), which holds that the natural and probable consequences rule

cannot be a basis for convicting a defendant of first degree murder.

       Martinez filed this writ petition, arguing he is entitled to have his sentence reduced

to second degree murder under Chiu, supra, 59 Cal.4th 155.1 The People acknowledge

that we have jurisdiction to resolve this writ petition under Application of Hillery (1962)

202 Cal.App.2d 293, 294, but they argue we should remand the matter for the trial court

to resolve it in the first instance. We elect to exercise our jurisdiction to resolve the writ

petition. Because sufficient evidence supported Martinez's first degree murder conviction

under a direct aiding and abetting theory, we deny the petition.

                   FACTUAL AND PROCEDURAL BACKGROUND

       We take judicial notice of our decision in Martinez I, which affirmed Martinez's

conviction for the first degree murder of Guillermo Esparza (Pen. Code,2 § 187, subd.



1       The parties do not dispute that Chiu is retroactive and applies to this case. The
decision changed the law by disapproving the use of the natural and probable
consequences theory as a basis to elevate murder to first rather than second degree. (See
In re Johnson (1970) 3 Cal.3d 404, 410-411 [retroactivity of decisions announcing a new
rule of law].)

2      All statutory references are to the Penal Code.
                                               2
(a)); assault of Esparza with a semi-automatic firearm (§ 245, subd. (b)(1)) and assault

with force likely to cause great bodily injury to Jimmy Parker (§ 245, subd. (a)(1)). The

jury found true allegations that each crime was committed for the benefit of, at the

direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1));

Martinez was vicariously armed with a firearm in the commission of the murder

(§ 12022, subd. (a)(1)); the codefendants were principals in the commission of the

murder; and a principal used a firearm and proximately caused great bodily injury and

death (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced Martinez to a

determinate term of six years plus an indeterminate term of 50 years to life.3




3        In the trial court, Martinez moved for a modification of his sentence under section
1181, subdivision (6), arguing the evidence was insufficient to show he committed
murder; rather, at the most, it showed he had assaulted Parker. The People opposed
Martinez's motion, arguing sufficient evidence existed to sustain the first degree murder
conviction: "This murder was a cold[-]blooded, gang[-]motivated crime in which the
defendants seized the opportunity to represent themselves and their gang by committing
[a] violent crime that enhanced their and their gang's reputation. Under a simple aiding
and abetting theory, the People demonstrated that 1) [the codefendant] committed
murder, 2) [Martinez] knew [the codefendant] intended to commit murder, 3) before or
during the commission of the murder, [Martinez] intended to aid and abet [the
codefendant] in committing the murder, and 4) [Martinez's] words or actions did in fact
aid and abet [the codefendant's] commission of the murder. Indeed, the People argued [at
trial] that [the codefendant] and [Martinez] formed a murder team—each with a specific
role to play. Each defendant shared a gang, shared a motive to kill to enhance the gang's
reputation, shared common experience as gang members, worked in tandem to kill and
ran away from the scene together." The trial court agreed with the People: "Having
heard and considered the motion, and bearing in mind I presided over the jury trial in this
case, the motion is denied. And in denying the motion, I have weighed the merits of the
motion and I incorporate the People's response specifically as to the following: First of
all, the court is guided by a presumption in favor of the correctness of the verdict. [¶]
Second of all, there is sufficient credible evidence to sustain the verdict of first degree
murder, and the jury properly received and considered the evidence in this case. I find no
                                              3
       We summarize the facts set forth in Martinez I, supplementing it with expert

testimony from San Diego Police Department Detective Nestor Hernandez: Late in the

evening on August 20, 2009, the codefendant's girlfriend was with the codefendant and

Martinez when she saw the codefendant with a gun. She objected to his having a gun at

her house, and asked him to take the gun away. The codefendant, accompanied by

Martinez, left the house. But the codefendant had not disposed of the gun. A few hours

later, Martinez, the codefendant and his girlfriend were in her vehicle at a drive-thru

restaurant. She noticed a gun in the codefendant's lap. When she was driving home, the

codefendant suddenly told her to stop the vehicle. Martinez and the codefendant left the

vehicle and ran up to Jimmy Parker and Guillermo Esparza, who were walking down the

street. Martinez asked Parker, "Where are you from?" Parker mentioned the name of a

group that was not a gang, but rather engaged in tagging. Martinez punched Parker and

they fought. Parker heard the codefendant say, "This is Lomas," and the codefendant

shot Esparza, who died as a result. Martinez hit Parker once more after the gunshot was

fired. Immediately afterwards, Martinez and the codefendant ran from the crime scene.

       Detective Hernandez testified that Martinez and his codefendant were documented

Lomas gang members. According to the detective, gang members commonly carried

weapons when preparing to assault someone or enter rival gang territory, and by being

armed they showed their fellow gang members their willingness to commit violence to

defend themselves or the gang. Detective Hernandez stated that when gang members

basis in law or fact where I could exercise my discretion and either reduce the verdict or
set aside the verdict."

                                             4
approached someone and asked, "where are you from," that aggressive question set up a

challenge that usually ended with the questioner attacking the other person. Detective

Hernandez stated gang members were expected to support one another: "If you are a

companion or your gang associate or your gang member friend hit someone up and asks

where they are from, or is challenged or do the challenging, they have to back up their

gang associate or gang member friend, irregardless, for not only representation for

themselves . . . but the gang itself, and if they don't, then there is severe retaliation or

severe repercussions on that person who doesn't participate."

       The prosecutor asked Detective Hernandez: "If . . . a Lomas gang member were to

issue a gang challenge and engage in an assault with other Lomas gang members and

some of those others had any kind of weapon, would there be an expectation for the

person who has the weapon to use it in the confrontation?" Detective Hernandez replied

in the affirmative. The prosecutor posed a hypothetical based on the facts of this case,

asking what would happen if two Lomas gang members approached perceived rivals,

issued a gang challenge, received the reply that the perceived rival belonged to a tagging

group, and the Lomas members simply walked away. Detective Hernandez responded

that those individual gang members—and by extension the Lomas gang itself—would be

perceived as weak in the eyes of the tagging group and rival gangs.

       Detective Hernandez testified gang members value "respect," which they purport

to gain by "committing more acts of violence, more crimes, being involved with more

confrontations with other gang members, expressing that or relaying that to the other

active gang members themselves, not only that you are trying to up the status—your own

                                                5
status within the gang, but also up the status of the specific gang as to how it reflects on

rival gang members."

       The court instructed the jury with CALCRIM Nos. 400 and 401 regarding aiding

and abetting, and with CALCRIM No. 403 regarding the natural and probable cause

doctrine.4

                                       DISCUSSION

       "Both aiders and abettors and direct perpetrators are principals in the commission

of a crime." (People v. Calhoun (2007) 40 Cal.4th 398, 402; § 31.) "[A]iding and

abetting is one means under which derivative liability for the commission of a criminal

offense is imposed. It is not a separate criminal offense." (People v. Francisco (1994) 22

Cal.App.4th 1180, 1190.) "There are two distinct forms of culpability for aiders and

abettors. 'First, an aider and abettor with the necessary mental state is guilty of the

intended crime. Second, under the natural and probable consequences doctrine, an aider

and abettor is guilty not only of the intended crime, but also "for any other offense that

was a 'natural and probable consequence' of the crime aided and abetted." ' " (Chiu,

supra, 59 Cal.4th at p. 158.)


4        During deliberations, the jury sent the court a note stating: "Clarification Request
on description of [CALCRIM No.] 401[,] Aiding and Abetting: Point # 2 says: 'The
defendant knew that the perpetrator intended to commit the crime[.]' What is meant by
'the crime?' Did aider and abettor have to know or even expect the possibility that it will
be murder ([as charged in] count #1)? Or does it mean any crime?" The court replied
that " 'the crime' refers to any crime the defendant(s) are on trial for." Regarding aiding
and abetting, the court replied, "This is what the jury has to decide. Refer to [CALCRIM
Nos.] 400, 401 and 403, read together." The court added, " '[A]ny crime' means any
crime the defendants are on trial for."

                                              6
       Chiu holds : "[P]unishment 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. . . . [W]here the direct perpetrator is guilty of first degree premeditated murder,

the legitimate public policy considerations of deterrence and culpability would not be

served by allowing a defendant to be convicted of that greater offense under the natural

and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 166.)

       Chiu explains: "First degree murder, like second degree murder, is the unlawful

killing of a human being with malice aforethought, but has the additional elements of

willfulness, premeditation, and deliberation which trigger a heightened penalty.

[Citation.] That mental state is uniquely subjective and personal. It requires more than a

showing of intent to kill; the killer must act deliberately, carefully weighing the

considerations for and against a choice to kill before he or she completes the acts that

caused the death." (Chiu, supra, 59 Cal.4th at p. 166.)

       "When a trial court instructs a jury on two theories of guilt, one of which was

legally correct and one legally incorrect, reversal is required unless there is a basis in the

record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th at

p. 167.) Thus, a defendant's "first degree murder conviction must be reversed 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." (Ibid.) Under

those principles, the prosecution must show that the defendant aided or encouraged the

commission of the murder with knowledge of the unlawful purpose of the perpetrator and

                                               7
with the intent or purpose of committing, encouraging, or facilitating its commission.

(Id. at p. 167.)

       As noted, the jury here was instructed regarding aiding and abetting principles.

Applying those principles, we conclude sufficient evidence supports Martinez's first

degree murder conviction. We reiterate what we stated in Martinez I: "Here, [Martinez]

was the aider and abettor, but he initiated the attack by asking which gang the victims

belonged to, and swung and hit Parker. Even after approximately four minutes of

fighting, [Martinez] did not manage to overcome Parker's resistance. Afterwards, [the

codefendant] fired one shot. [Martinez], undeterred by the gunshot, subsequently took

another swing at Parker. It was not until [the codefendant] fired two more shots that

[Martinez and the codefendant] ran away. This evidence offers no indication that the

murder was anything other than willful, deliberate and premeditated."

       Chiu, supra, 59 Cal.4th 155, does not alter that conclusion, particularly as we

bolster our analysis with expert testimony relating to the jury's true finding that Martinez

committed the murder for the benefit of, at the direction of, and in association with a

criminal street gang. The jury reasonably could conclude Martinez was aware the

codefendant carried a gun in the vehicle because he was aware the codefendant had it

earlier, and after the girlfriend had told the codefendant to remove it from her house,

Martinez accompanied the codefendant who had promised to dispose of it. Further, the

gang expert's testimony provided the jury with a basis to find that Martinez likely was

emboldened to challenge Parker and Esparza—by asking them where they were from—

precisely because Martinez knew the codefendant was carrying a gun and Martinez relied

                                             8
on his codefendant's support as he attacked the others. Further, Martinez's use of

violence would enhance the respect he received within the gang and for the gang among

rival gangs. Lastly, Martinez encouraged and facilitated the first degree murder by

attacking Parker, thus simultaneously preventing Parker from defending Esparza, and

freeing up the codefendant to focus exclusively on Esparza, which the codefendant did by

shooting and killing him. Accordingly, we conclude that on this record, any instructional

error concerning the natural and probable consequences doctrine was harmless even

under the higher standard set forth in Chapman v. California (1967) 386 U.S. 18, 22-24.




                                            9
                                     DISPOSITION

      The writ petition is denied.




                                                   O'ROURKE, J.

WE CONCUR:


NARES, Acting P. J.


McINTYRE, J.




                                         10
