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Lizarraga-Regalado v. Premo

Court of Appeals of Oregon

March 1, 2017

JOSE H. LIZARRAGA-REGALADO, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and submitted June 23, 2015.

         Marion County Circuit Court 10C10112 Linda Louise Bergman, Senior Judge.

          Jason L. Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP. Jose H. Lizarraga-Regalado fled a supplemental brief pro se.

          Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and Haselton, Senior Judge. [*]

         Case Summary:

         Petitioner appeals a judgment denying post-conviction relief. He assigns error to the trial court's dismissal, by way of summary judgment, of his claim based on criminal trial counsel's failure to challenge the giving of a "natural and probable consequences" uniform jury instruction identical to that which the Oregon Supreme Court later disapproved in State v. Lopez-Minjarez, 350 Or 576, 260 P.3d 439 (2011). Held: Neither of the alternative grounds relied upon by the trial court support summary judgment. Petitioner demonstrated that there are genuine issues of material fact as to whether trial counsel's failure to object to the jury instruction breached the standard of reasonable professional skill and judgment. Petitioner also proffered suffcient contravening evidence to preclude summary judgment on the second alternative ground, that is, whether he was prejudiced by counsel's alleged default.

         Judgment on petitioner's fourth claim reversed and remanded; otherwise affrmed.

          HASELTON, S. J.

         Petitioner appeals a judgment denying postconviction relief. He assigns error to the trial court's dismissal, by way of summary judgment, of his claim based on criminal trial counsel's failure to challenge the giving of a "natural and probable consequences" uniform jury instruction identical to that which the Oregon Supreme Court later disapproved in State v. Lopez-Minjarez. 350 Or 576, 582-84, 260 P.3d 439 (2011). For the reasons that follow, we conclude that (1) the first of the two alternative grounds on which the post-conviction court granted summary judgment was erroneous as a matter of law, see, e.g., Walraven v. Premo. 277 Or.App. 264, 277-85, 372 P.3d 1 (2016); and (2) petitioner proffered sufficient contravening evidence to preclude summary judgment on the second alternative ground. Accordingly, we reverse and remand.[1]

         The historical and procedural circumstances material to our review are undisputed. In March 2004, petitioner was charged, by way of a five-count indictment, with felonies against three victims, C, D, and E. The indictment further alleged that petitioner had committed each of those offenses "jointly" with five codefendants. Specifically, Count 1 (attempted murder) and Count 2 (second-degree assault) were based on conduct against C; Count 3 (first-degree robbery) pertained to conduct against D; and, finally, Count 4 (first-degree kidnapping with a firearm) and Count 5 (first-degree robbery with a firearm) were both based on conduct against E.

         The criminal case proceeded to trial before a jury in the fall of 2004. The court-without exception from petitioner's criminal defense counsel-instructed the jury consistently with the then-extant accomplice liability "natural and probable consequences" uniform jury instruction:

"A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime."[2]

         Immediately before the court so charged the jury, the prosecutor, anticipating that instruction, had highlighted the "natural and probable consequences" concept in closing argument. The jury found petitioner guilty on all counts, and the court entered consequent judgments with sentences imposing 400 months' total incarceration.

         After unsuccessfully appealing his convictions, petitioner timely initiated this action in January 2010. Thereafter, in August 2011, the Supreme Court issued its opinion in Lopez-Minjarez, and petitioner subsequently filed his operative first amended petition for post-conviction relief. That petition included nine claims of inadequate representation by criminal trial counsel, including petitioner's fourth claim, which was based on his defense attorney's failure to object to the giving of the "natural and probable consequences" instruction.[3] With the first amended petition, petitioner submitted various "exhibits, " including two pages from the trial transcript pertaining to the fourth claim. The first of those pages set out a portion of the state's closing arguments in which (as described above) the prosecutor referred to the content of the "natural and probable consequences" instruction and told the jury that that instruction was "most important" with respect to its consideration of the charges based on conduct against C. The second transcript page showed that the court had, in fact, given that instruction.

         Defendant filed a motion for summary judgment against all nine claims alleged in the first amended petition. With reference to the fourth claim, defendant's summary judgment motion asserted:

"Petitioner was tried in 2004. The Supreme Court's decision in [Lopez-Minjarez] was not published until about seven years after petitioner's trial. Petitioner has not provided any evidence to support a conclusion that all reasonable trial attorneys, in 2004, were objecting to the 'natural and probable consequences' portion of the aider and abettor uniform instruction!'

         (Emphasis added.)[4] Thus, defendant's summary judgment motion related solely to the reasonableness of criminal trial counsel's conduct. The summary judgment motion did not assert, alternatively, that there were no genuine issues of material fact as to whether petitioner had been prejudiced by counsel's failure to object to the "natural and probable consequences" instruction.

         Petitioner filed a response, including a declaration in which he averred, inter alia, that criminal trial counsel had, in fact, failed to object to the "natural and probable consequences" instruction. With respect to the fourth claim, the response remonstrated that "[t]he issue is not whether trial counsel should have anticipated [Lopez-Minjarez]"-but rather, whether, in "a complicated case such as Petitioner's" and given the state of the law at the time of trial, including State v. Anlauf.164 Or.App. 672, 995 P.2d 547 (2000), on which defense counsel in Lopez-Minj ...


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