United States District Court, C.D. California, Western Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE GEORGE H. KING UNITED STATES DISTRICT JUDGE
On May
9, 2016, the United States Magistrate Judge issued a Report
and Recommendation ("R&R"), recommending that
petitioner's Petition for Writ of Habeas Corpus be denied
and that this action be dismissed with prejudice. On May 19,
2016, petitioner filed Objections to the R&R.
In his
Objections, petitioner argues, inter alia, that the
R&R failed to address his equal protection claim,
i.e., that there is no rational basis for limiting
liability under the natural and probable consequences
doctrine for premeditated murder and not premeditated
attempted murder, because "[t]he only difference between
[premeditated] murder and premeditated attempted murder is a
bad shot or something otherwise preventing the person from
executing his plan."[1] (Objections at 6-7).
"The
Equal Protection Clause of the Fourteenth Amendment commands
that no State shall 'deny to any person within its
jurisdiction the equal protection of the laws, ' which is
essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249,
87 L.Ed.2d 313 (1985) (citation omitted). "When those
who appear similarly situated are nevertheless treated
differently, the Equal Protection Clause requires at least a
rational reason for the difference, to ensure that all
persons subject to legislation or regulation are indeed being
'treated alike, under like circumstances and
conditions.'" Engquist v. Oregon Dep't of
Agr., 553 U.S. 591, 602, 128 S.Ct. 2146, 2153, 170
L.Ed.2d 975 (2008).
As set
forth in the R&R, the California Supreme Court's opinions
in People v. Chiu, 59 Cal.4th 155, 172 Cal.Rptr.3d
438 (2014), and People v. Favor, 54 Cal.4th 868, 143
Cal.Rptr.3d 659 (2012), explain the rationale for the
sentencing schemes for aiders and abettors of premeditated
murder and premeditated attempted murder.
"[Attempted
premeditated murder and attempted unpremeditated murder are
not separate offenses, " as "[attempted murder is
not divided into different degrees." Favor, 54
Cal.4th at 876 (citations omitted). "[T]he provision in
[California Penal Code] section 664, subdivision (a),
imposing a greater punishment for an attempt to commit a
murder that is 'willful, deliberate, and
premeditated' does not create a greater degree of
attempted murder but, rather, constitutes a penalty provision
that prescribes an increase in punishment (a greater base
term) for the offense of attempted
murder."[2] Id. at 877 (citation omitted). To
impose liability to an aider and abettor under Section
664(a), even under the natural and probable consequences
doctrine, it is only necessary that the attempted murder
"'be committed by one of the perpetrators with the
requisite state of mind.'" ki at 879 (citation
omitted). If the jury finds that the attempted murder was
deliberate and premeditated, both the direct perpetrator and
the aider and abettor are subject to the penalty provision of
Section 664(a). Id.
On the
other hand, murder is divided into separate degrees --i.e.,
first and second degree murder - and premeditation is an
element of the crime of first degree premeditated murder.
Chiu, 59 Cal.4th at 163; see Cal. Penal Code
§§ 187, 189. The California Supreme Court in
Chiu held that "an aider and abettor may not be
convicted of first degree premeditated murder under the
natural and probable consequences doctrine" because
"the connection between the [aider and abettor's]
culpability and the perpetrator's premeditative state is
too attenuated to impose aider and abettor liability for
first degree murder[.]" Chiu, 59 Cal.4th at
158-59, 166 (emphasis omitted). Thus, for the crime of
murder, an aider and abettor can at most be convicted of
second degree murder under the natural and probable
consequences doctrine, which "is commensurate with a
defendant's culpability for aiding and abetting a target
crime that would naturally, probably, and foreseeably result
in a murder." Id. at 166.
Based
on Favor and Chiu, under California law an
aider and abettor can be convicted of premeditated attempted
murder, but not premeditated first degree murder, under the
natural and probable consequences doctrine. To the extent
petitioner argues that aiders and abettors of attempted
murder are being treated more harshly than aiders and
abettors of murder because, as set forth in Chiu and
Favor, the former group can be held liable for the
actual perpetrator's premeditation while the latter group
cannot, his argument fails. A defendant convicted of aiding
and abetting an attempted murder, with no finding of
premeditation, is subject to a determinate term of five,
seven, or nine years. If the jury finds the premeditation
allegation true, the defendant is subject to a sentence of
life with the possibility of parole after seven years.
Chiu, 59 Cal.4th at 163 (citing Cal. Penal Code
§§ 664(a), 3046(a)(1)). A defendant charged with
aiding and abetting a premeditated murder under the natural
and probable consequences doctrine can, at most, be convicted
of second degree murder, which carries a sentence of fifteen
years to life, with a minimum term of fifteen years before
parole eligibility. Chiu, 59 Cal.4th at 163 (citing
Cal. Penal Code §§ 190(a), 3046(a)(2)). Thus, with
respect to the natural and probable consequences doctrine, an
aider and abettor of a premeditated attempted murder is not
punished the same or more severely as an aider and abettor of
second degree murder.
Nor has
petitioner shown that the above sentencing scheme is
irrational. First, Chiu and Favor both note
that the California Legislature has declined to "limit
section 664(a) only to those attempted murderers who
personally acted willfully and with deliberation and
premeditation." Chiu, 59 Cal.4th at 162-63;
Favor, 54 Cal.4th at 878. As set forth above, an
aider and abettor of attempted murder is subject to a
determinate term of five, seven, or nine years. When an aider
and abettor is found guilty of attempted murder and the jury
finds the premeditation allegation true, the sentence changes
to an indeterminate term of life with the possibility of
parole after seven years. The California Legislature could
have rationally concluded that, when premeditation is
involved, the aider and abettor deserves a harsher punishment
than a range of five to nine years, even if the aider and
abettor was found guilty under the natural and probable
consequences doctrine and did not personally act with
premeditation. In other words, it was not irrational for the
California Legislature to determine that when an individual
aids and abets a crime, an attempted murder was the
reasonably foreseeable consequence of that crime, and the
actual perpetrator acted with premeditation, the aider and
abettor should receive an indeterminate sentence of seven
years to life. See Favor, 54 Cal.4th at 878
("[E]ven in the case of aiders and abettors under the
natural and probable consequences doctrine, punishment need
not be finely calibrated to the criminal's mens rea. It
takes account of other valid penalogical considerations, such
as the defendant's conduct, the consequences of such
conduct, and the surrounding circumstances, including the
fact that the murder attempted was willful, deliberate, and
premeditated."). This sentence of seven years to life,
while lengthy, is still less severe than the sentence of
fifteen years to life given to aiders and abettors of second
degree murder.
For
these reasons, petitioner has not shown an equal protection
violation. Petitioner's remaining objections are
adequately addressed in the R&R.
CONCLUSION
Based
on the foregoing and pursuant to 28 U.S.C. § 636, the
Court has reviewed the Petition, the other records on file
herein, the Magistrate Judge's Report and Recommendation,
and petitioner's objections to the Report and
Recommendation. The Court has engaged in a de novo
review of those portions of the Report and Recommendation to
which objections have been made. The Court concurs with and
accepts the findings and conclusions of the Magistrate Judge.
ACCORDINGLY,
IT IS ORDERED:
1. The
Report and ...