Originally Judge Paul Richardson was going to move from criminal to family court, but late in December that changed and so the 1437 case involving James Olague and Ernesto Arellano, two of the defendants in the original Halloween Homicide case who were convicted of a 2002 double murder, have moved from Judge Dave Rosenberg’s courtroom back to Judge Richardson’s – where it was originally placed. The next hearing is set for January 23.
At the most recent 1437 hearing (from a petition based on SB 1437, changing accomplice liability in felony murder cases), the Yolo County DA’s office has acknowledged that under the November ruling from the 4th District Court of Appeals, SB 1437 is constitutional. They have also indicated that they are likely to writ such rulings to the 3rd District Court of Appeals, which is currently waiting to hear the Davidson case (see here).
The Yolo County court in the case of Mr. Olague and Mr. Arellano has indicated that there should be a “hearing on the prima facie showing.”
Deputy Public Defender Ron Johnson, representing Mr. Olague, indicated “a substantial period would be needed to review and gather all of the trial records to fully brief the issue of prima facie showing.”
However, Mr. Johnson writes, in a briefing joined by Robert Spangler, representing Mr. Arellano, “of concern to the court was the true finding on the gang special circumstance, and briefing was
ordered on the limited question of whether or not that true finding renders defendants per se ineligible for relief pursuant to the newly enacted Penal Code 170.95.”
Mr. Johnson disagrees that special circumstances renders the petitioners ineligible as a matter of law.
Mr. Johnson here notes that the original jury in 2006 was instructed on two theories of liability for homicide – aiders and abettors to the crime itself, or to the accompanying assaults of which murder was a natural and probable consequence of those crimes.
A 2014 California Supreme Court decision held “an aider and abettor may not be convicted of first degree murder based on the natural and probable consequences doctrine. To be culpable for first degree premeditated murder, the aider and abettor must be based on direct aiding and abetting principles.”
The court held, “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.”
Mr. Johnson argues that the same standard applies here, that the jury verdict must be based “on the legally valid theory that defendant directly aided and abetted the premeditated murder.”
In the 2016 People v. Brown case, the court addressed “the identical issue that the court requested briefing on, that is whether a defendant who was convicted of first degree murder along with the gang special circumstance pre-Chiu is per se ineligible for relief because of the true finding in the gang enhancement.”
This case is similar in all ways except neither Mr. Olague, nor Mr. Arellano, were said to be the actual shooter. In the Brown case, the defendant was found to have true findings in the gang special circumstance.
Writes Mr. Johnson: “Despite the language in the special circumstance quoted by the people in this case, the court found that the true finding was not dispositive and could not conclude beyond a reasonable doubt under the totality of the circumstances of that case that the jury did not convict the defendant of first degree murder based on the natural and probable consequences theory, and reversed the first degree murder finding along with the special circumstance based on Chiu.”
Deputy DA Ryan Couzens disagrees, arguing that what the defendant “omits from his brief are the unique circumstances Brown relied upon to reach this unusual and counterintuitive ruling.” Absent those facts here, Mr. Couzens maintains the special circumstance “should be dispositive.”
Mr. Couzens argues that “the jury was also instructed on a number of enhancements that can only be found true if the jury finds an intent to kill.”
In the gun enhancement, Mr. Couzens argues that the jury was instructed “that the term ‘principal’ as used in this instruction, means a person who directly and actively commits the act constituting the crime, or a person who aids or abets the commission of the crime.”
Second, he argues that the special circumstance instruction says “you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant (acted) with the intent to kill.”
Third, they were also given a special circumstances for killing by a gang member, which says that “(a] defendant intentionally killed the victim or, with the intent to kill, aided or abetted in the killing.”
The jury then convicted on Counts 1 and 2 and found the special circumstances true.
Mr. Couzens argues that there are problems with the defendant’s reliance on Brown. Notably, he argues, “Brown did not simply hold that a true gang special circumstance finding (including an intent to kill) will not render harmless an instruction that allowed for conviction without an intent to kill.”
Second, he argues that “the present case does not concern Chiu error described in Brown. That is, this case does not turn on whether a natural and probable consequence instruction is ‘harmless error.'”
As stated, the case will return to Judge Richardson on January 23 for a hearing on these legal arguments.
—David M. Greenwald reporting