Jury Finding of Intent to Kill, 1172.6 Relief Barred?

If one has followed the myriad of published appellate court rulings on how to apply the new felony murder rule to those seeking resentencing under the process provided by Senate Bill No. 1437, it can certainly seem confusing.

The recent Orange County Superior Court, then California Court of Appeal ruling from the Fourth District in Santa Ana, and finally, the California Supreme Court’s ruling in People v. Freddy Alfredo Curiel certainly seems counterintuitive, so it is worth a closer look.

In 2006, in Orange County Superior Court, a jury convicted Mr. Curiel of first degree murder (Penal Code § 187(a)) and found true the gang murder special circumstance allegation (Penal Code § 190.2(a)(22)) and the criminal street gang sentencing enhancement (Penal Code § 186.22(b)(1)). The jury also found true two firearm enhancements (Penal Code § 12022.53(d) and (e)) and convicted Mr. Curiel of active participation in a criminal street gang (Penal Code § 186.22(a)). The gang was O.T.H.

In the underlying murder, Mr. Curiel was not the shooter.

The trial court judge sentenced Mr. Curiel to life imprisonment without the possibility of parole, consecutive to an indeterminate term of 25 years to life in prison.

Twelve years later, the Legislature enacted Senate Bill (SB) No. 1437, which narrowed or eliminated certain forms of accomplice liability for murder. Among other things, SB 1437 eliminated the use of the natural and probable consequences doctrine to obtain a murder conviction. People v. Gentile (2020) 10 Cal. 5th 830, 851. It also established that malice cannot be imputed to a person solely based on a his or her participation in a crime.

Senate Bill No. 1437 also created “a procedure for convicted murderers who could not be convicted under the new law as amended to retroactively seek relief.” People v. Lewis (2021) 11 Cal. 5th 952, 957.

Mr. Curiel petitioned for relief and resentencing under this new procedure. He alleged that he had been convicted of first degree murder under the natural and probable consequences doctrine. After appointing counsel for Mr. Curiel and receiving briefing, the trial court judge (Julian Bailey) denied Mr. Curiel’s petition for failure to state a prima facie case. Judge Bailey believed that the jury’s finding that Mr. Curiel “intended to kill,” which was required for the gang murder special circumstance, refuted Mr. Curiel’s argument that he could not be convicted under the amended felony murder rule.

Mr. Curiel appealed and the Fourth District reversed. It held that the jury’s finding of intent to kill was insufficient to establish Mr. Curiel was guilty under current law. For example, to be convicted as a direct aider and abettor under current law, the prosecution would have to prove Mr. Curiel harbored a culpable mental state (mens rea) and he committed a culpable act (actus reus).

The California Supreme Court granted review to consider the effect of the jury’s true finding on the gang murder special circumstance, specifically its finding that Mr. Curiel intended to kill, on his ability to state a prima facie case for relief under SB 1437.

The Supreme Court found that Judge Bailey erred in denying Mr. Curiel’s petition at the prima facie stage based on a jury finding of intent to kill. Such a finding in isolation does not establish that one is ineligible for relief. There also must be an act in furtherance of this mental state by aiding or encouraging the commission of the murder.

The Supreme Court affirmed the appellate court, which reversed the order denying Mr. Curiel’s petition and remanded the matter for an evidentiary hearing.

This ruling is pleasing to us because we have had more than one ruling by Judge Julian Bailey that we believed were certainly incorrect and merited an appeal, but our client was not financially capable of paying for an appeal. It was discouraging to see in our judiciary, particularly because this judge did so and ordered that Greg Hill stop arguing and leave the courtroom.

Mr. Curiel, however, was capable and so it is nice to see this judge’s legal competence criticized by not only the appellate court, but the California Supreme Court.