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Court of Appeal:
Interplay of Personal Gun Use, Guilty Verdict Establishes Requisite Intent to Kill
Attempted Premeditated Murder Conviction, Together With Allegation, Established That Jury Found Defendant to Be Direct Perpetrator
By a MetNews Staff Writer
Div. Two of the First District Court of Appeal held Friday that a finding by a jury that a man personally used a firearm during an attempted premeditated murder of an armored truck security guard was sufficient to establish that the defendant was the direct perpetrator of the shooting, and harbored an intent to kill, despite the presence of a codefendant and the absence of an identification of the shooter by the victim.
As a direct perpetrator of attempted premeditated murder, the defendant was ineligible for a hearing on resentencing under Penal Code §1172.6 even though the prosecution explicitly presented the now defunct natural and probable consequences theory as an alternative basis for conviction on the attempted murder charge.
Justice Marla J. Miller wrote the opinion which affirms the order by Sonoma Superior Court Judge Patrick Broderick denying the defendant’s petition for resentencing. Presiding Justice Therese M. Stewart and Justice James A. Richman joined in the opinion.
Armored Truck Robbery
Appealing the denial was Ivan Morales, who robbed an armored truck at a bank with his longtime friend Sergey Gutsu on July 12, 2016. An employee of the Loomis armored truck company had just exited the vehicle with a bag containing $30,000 in cash when one of the two robbers fired shots from an AK-47 assault rifle.
The employee, referred to during the trial only as “Glenn,” was shot multiple times before one of the robbers grabbed the bag of money and drove away from the bank. The victim suffered life-threatening injuries from three rifle-shot wounds, but survived.
The shooter was wearing a ski mask during the robbery and was never identified by the victim.
Later the same day, Calistoga Police Officer Luis Paniagua attempted a traffic stop of the fleeing vehicle. Gutsu, who was driving, jumped out of the car and shot at the officer with a semi-automatic pistol. The officer identified Gutsu as the shooter.
Morales ran from the vehicle, and was found a few hours later. An AK-47 registered to Morales’ wife was found in the car.
Jury Trial
Morales and Gutsu were tried together with separate juries, but Gutsu pled no contest to all charges before his case went to the jury. At trial, the prosecution argued that the two defendants robbed the Loomis employee together, Morales shot the employee, Gutsu fired at Paniagua, and each of the shootings was an attempted premeditated murder.
The prosecutor argued that Morales was the shooter of the guard based on comments he made, before and after the assault, referencing an AK-47 and internet searches involving the weapon.
But the prosecution alternatively argued that Morales was liable for any acts committed by Gutsu under the natural and probable consequences doctrine because taking part in the robbery “ties Defendant Morales to all other crimes that were committed during the commission of that robbery.”
In 2018, the jury found Morales guilty of, among other things, robbery and attempted premeditated murder of the Loomis employee. The jury found true allegations under Penal Code §12022.53(d) that Morales personally discharged a firearm and caused great bodily injury.
Resentencing Statutory Scheme
In 2018, the Legislature passed Senate Bill 1437 to ensure that murder liability is not imposed on a defendant who is not the actual killer, did not have the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.
The bill eliminates murder liability based on the natural and probable consequences doctrine and significantly narrows the scope of the felony-murder rule.
Senate Bill 1437 creates a procedure, now codified at §1172.6, for defendants convicted of murder under prior law to seek retroactive relief. Effective Jan. 1, 2022, Senate Bill 775 extends retroactive relief to defendants convicted of attempted murder based on the natural and probable consequences doctrine.
When a petition for resentencing is filed, a court must evaluate it to determine whether the petitioner has made a prima facie case for relief. If the petition and record conclusively establish that the defendant is ineligible for relief, a petitioner has not made the prima facie case and the court may dismiss without further hearing.
In 2022, Morales filed a petition for resentencing, arguing that the prosecution relied on the now-invalid theory of natural and probable consequences.
Prima Facie Case
Miller noted that “if the record of conviction in this case conclusively establishes the jury found facts sufficient to support Morales’s conviction of attempted murder under current law, he has not made his prima facie case.”
Turning to the record, the jurist said:
“The jury convicted Morales of robbery, which means it found, as a factual matter, Morales was one of the two individuals who robbed Glenn. The jury also found Morales guilty of attempted premeditated murder of Glenn. Because the jury was instructed on the natural and probable consequences doctrine, this finding by itself does not establish that the jury found Morales was the direct perpetrator of an attempted premeditated murder. Under the instructions given, the guilty verdict establishes that the jury determined, first, that an attempted premeditated murder of Glenn occurred and, second, that the crime was committed by either Morales or his coparticipant in the robbery, Gutsu.”
However, she continued:
“[T]hese guilty verdicts were not the jury’s only findings regarding the robbery and attempted premeditated murder of Glenn. The jury also found Morales guilty of assault with an assault weapon and found true the allegation under section 12022.53(d) that Morales personally and intentionally discharged a firearm and caused great bodily injury in the commission of the robbery and attempted premeditated murder of Glenn.”
Taken Together
Miller opined that, taken together, these facts were sufficient to establish that the jury did not convict Morales on a natural and probable consequences theory of attempted murder. She wrote:
“[T]he jury’s finding that an attempted murder was committed means the jury must have found, as a factual matter, that one of the robbers, with intent to kill, took a direct but ineffectual act toward killing Glenn by shooting him with an AK-47 semi-automatic rifle. And, by finding Morales guilty of assault with an assault weapon and finding the discharge allegation under section 12022.53(d) true, the jury found Morales was the robber who shot Glenn with the AK-47 semi-automatic rifle and, therefore, he was the direct perpetrator of the attempted premeditated murder.”
Under these circumstances, Miller declared:
“[W]e are confident the jury necessarily made all the factual findings required to establish Morales is guilty of attempted murder under the still-valid theory that he, with the requisite mental state of intent to kill, committed a direct but ineffectual act toward killing Glenn.”
Personal Use Case
Morales pointed to the 2020 case of People v. Offley, in which the Court of Appeal for this district held that a finding that the defendant personally and intentionally discharged a firearm causing the victim’s death does not, by itself, show that a defendant acted with the intent to kill and so does not preclude resentencing relief.
Miller distinguished the case, saying:
“This holding does not help Morales because the relevance of the section 12022.53(d) firearm discharge finding in this case is not to prove the requisite mental state but to establish that the jury found Morales was the shooter and, therefore, was the direct perpetrator of the attempted premeditated murder. The required mental state was established by the jury’s guilty verdict for attempted premeditated murder of Glenn, as the jury found intent to kill, which is express malice.”
The case is People v. Morales, 2024 S.O.S. 1974.
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