People v. Nava CA2/8

Filed 1/31/22 P. v. Nava CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B303587

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA036614) v.

FABIAN NAVA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Reversed and remanded with directions. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee, David C. Chang and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent. __________________________

Defendant and appellant Fabian Nava was charged with the first degree murder of Carlos Mora in a gang-related shooting in 1999. At trial, the prosecution presented evidence showing Mora died after being attacked twice by members of a rival gang to which defendant belonged. During the first attack, several members of the gang severely beat Mora and someone fired a gun at him. Two witnesses identified defendant as a participant in the assault. Following the initial attack, Mora tried to escape but was chased down by a car and shot repeatedly by one of its occupants. Circumstantial evidence showed the same people were responsible for both attacks. The prosecutor primarily relied on the natural and probable consequences doctrine in arguing defendant’s guilt, but also argued a theory of direct aiding and abetting. The jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)). It found not true the allegation defendant personally used a firearm (§ 12022.5) but did find the offense was committed on behalf of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subds. (d) & (e)(1)). We affirmed defendant’s conviction (People v. Nava (July 16, 2002, B151094) [nonpub. opn.]). In August 2018, defendant filed a petition for writ of habeas corpus asserting he was unlawfully convicted of first degree murder, relying on People v. Chiu (2014) 59 Cal.4th 155 which held that first degree murder liability may not be based on the natural and probable consequences doctrine. The prosecution conceded it could not prove beyond a reasonable doubt that the jury relied on a legally valid theory to convict defendant of first