People v. Strawther CA3

Filed 9/9/24 P. v. Strawther CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099325

Plaintiff and Respondent, (Super. Ct. No. 11F06454)

v.

CHEMA STRAWTHER,

Defendant and Appellant.

Defendant appeals from the trial court’s denial of his Penal Code former section 1170.95 petition. (Statutory section citations that follow are found in the Penal Code unless otherwise stated.) Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) For ease of exposition, we will refer to this provision as section 1172.6 throughout.) Defendant argues the court erred in denying his petition at the prima facie stage without conducting an evidentiary hearing. Because the record of conviction conclusively establishes defendant was the actual killer, we affirm the judgment.

1

FACTS AND HISTORY OF THE PROCEEDINGS In 2011, the People charged defendant with murder (§ 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), discharge of a firearm at an inhabited dwelling (§ 246), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The People alleged several firearm allegations, including that defendant personally and intentionally discharged a firearm causing the death of the victim (§ 12022.53, subd. (d)). The People also alleged the special circumstance that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)). At trial, the court instructed the jury on two theories of first degree murder: (1) willful, deliberate, and premeditated murder; and (2) felony murder. The title of the felony murder instruction given to the jury specified that “Defendant Allegedly Committed Fatal Act.” The court did not instruct the jury with CALCRIM No. 520B, which applies when a coparticipant allegedly committed the fatal act, or CALCRIM No. 520C, which applies when other acts allegedly caused the death. The court did not provide any instructions on aiding and abetting liability or the natural and probable consequences doctrine. During summation, the prosecutor argued the defendant “fire[d] one shot into the back of [the victim’s] head. No clearer case of first degree murder under either theory.” The prosecutor made no reference to an accomplice. As to the allegation that defendant personally and intentionally discharged a firearm causing death, the trial court instructed the jury that “[a]n act causes death if the death is the direct, natural, and probable consequence of the act and death would not have happened without the act.” In closing argument, the prosecutor said that “[i]ntentional discharge is a no-brainer. Once you get to murder under either first or second, obviously he’s the guy that pulled the trigger. There is no other possible interpretation of the evidence.”