Jose H. Lizarraga-Regalado v. Jeff Premo

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, 582-84, 260 P3d

439 (2011). For the reasons that follow, we conclude that

(1) the first of the two alternative grounds on which the postconviction

court granted summary judgment was erroneous

as a matter of law, see, e.g., Walraven v. Premo, 277 Or App

264, 277-85, 372 P3d 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 (firstdegree

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

1 In a supplemental pro se brief, petitioner raises additional assignments of

error pertaining to the disposition of some other claims. We reject those contentions

without further discussion.

Cite as 284 Or App 176 (2017) 179

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:

2 In the current compilation of the Uniform Criminal Jury Instructions, that

instruction is listed as “withdrawn” as an “incorrect statement of the law” in the

light of Lopez-Minjarez. See UCrJI 1053.

3 The first amended petition did not allege that the relief sought pursuant to

the fourth claim related only to certain counts/convictions; nor did petitioner, in

opposing the motion for summary judgment, so limit that claim. However, in his

appellate brief, petitioner states, “In this appeal, petitioner is not contesting his

convictions for counts 4 and 5.” Consequently, for purposes of our analysis and

disposition, the fourth claim is so circumscribed.

180 Lizarraga-Regalado v. Premo

“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 P2d 547 (2000), on

which defense counsel in Lopez-Minjarez had relied, criminal

trial counsel “should have at least preserved the argument

for appellate review.”5

4 Defendant concurrently asserted that the first amended petition, including

the fourth claim, did not comply with the “attachment” requirement of ORS

138.580, which provides that “affidavits, records or other documentary evidence

supporting the allegations of the petition shall be attached to the petition.”

As described below, the post-conviction court’s disposition with respect to

the fourth claim was based on its conclusion that “[t]his claim presents no genuine

issues of material fact”—that is, the generic standard for granting summary

judgment—and not on any purported noncompliance with ORS 138.580. The parties’

briefing on appeal, which include no arguments pertaining to ORS 138.580,

comports with that understanding.

5 In Anlauf, we addressed, and reversed, the denial of a motion for judgment

of acquittal on a charge of unlawful use of a weapon, where the state’s theory of

accomplice liability was predicated on the “natural and probable consequences”

concept. 164 Or App at 678-79. In so holding, although we had no occasion to

“decide the viability of the ‘natural and probable consequences’ instruction,”

Walraven, 277 Or App at 280 (emphasis in original), we

“characterized the case law as not supporting liability for the natural and

probable consequences of separate acts committed by accomplices and also

noted that any such theory was based on principles of accomplice liability

Cite as 284 Or App 176 (2017) 181

Defendant countered with a reply memorandum

in which he reiterated, verbatim, his contention that “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.” In addition, defendant

asserted for the first time that, given the evidence

at trial and the manner in which the case had been tried,

“there is no reason to think that the jury * * * relied on the

‘natural and probable consequences’ instruction to find petitioner

guilty on counts [one] and two” of the indictment,

relating to conduct against C. As factual support for that

newly advanced “lack of prejudice” contention, defendant

submitted, for the first time on reply, extensive additional

excerpts of the trial transcript.

The post-conviction court allowed defendant’s

motion in part, granting summary judgment against five of

petitioner’s nine claims—including the fourth claim—and

denying the motion as to the others. With respect to the

fourth claim, the court concluded:

“This claim presents no genuine issues of material fact.

Clearly, trial counsel did not object to the Uniform Jury

Instruction, but Petitioner fails to present any evidence that

[failure to raise such an objection] was unreasonable based

on the case law existing in 2004. Additionally, Petitioner

fails to show how he was prejudiced by trial counsel not

objecting to the instruction.”

Thus, the court granted summary judgment against the

fourth claim on alternative grounds, concluding that petitioner

had failed to demonstrate material factual issues

with respect to each of the elements of post-conviction relief,

viz., deficient performance by counsel and consequent prejudice.

Following a trial on the remaining claims, the postconviction

court rejected those claims as well, and petitioner

appeals from the ensuing judgment.

Our review of the allowance of summary judgment

against petitioner’s fourth claim implicates both the

that predated the adoption of the Criminal Code of 1971 and specifically,

ORS 161.155.”

Id. (quoting Wade v. Brockamp, 268 Or App 373, 384, 342 P3d 142 (2015)).

182 Lizarraga-Regalado v. Premo

substantive standards governing post-conviction relief and

the procedural requisites and constraints of summary judgment.

Very recently in Garner v. Premo, 283 Or App 494,

___ P3d ___ (2017), we summarized the “settled legal principles”

pertaining to post-conviction relief claims based on

purported deficient representation, including, specifically,

failure to raise a legal challenge:

“A post-conviction petitioner who claims a deprivation of

rights under Article I, section 11, of the Oregon Constitution

must prove ‘(1) that his lawyer failed to exercise reasonable

professional skill and judgment, and (2) that petitioner

suffered prejudice as a result.’ Everett [v. Premo, 279 Or

App 470, 478, 380 P3d 1099 (2016)]. A court considering

whether a petitioner has met that burden must evaluate

the adequacy of the lawyer’s representation ‘from the lawyer’s

perspective at the time, without the distorting effects

of hindsight.’ Lichau v. Baldwin, 333 Or 350, 360, 39 P3d

851 (2002). A lawyer has performed inadequately, for purposes

of the constitutional analysis, only if the lawyer’s

decisions ‘reflect an absence or suspension of professional

skill and judgment.’ Gorham v. Thompson, 332 Or 560, 567,

34 P3d 161 (2001).

“* * * * *

“The mere fact that an attorney could have raised an

argument does not establish that the attorney is inadequate

for having failed to raise it; nor can the petitioner

prevail simply by establishing that there was no evident

downside to the attorney making such an argument. Green

[v. Franke, 357 Or 301, 314, 350 P3d 188 (2015)]. Rather,

the pertinent question remains whether the lawyer’s failure

to make the argument ‘constituted inadequate assistance,

especially when viewed in light of the strategy that

the petitioner’s counsel did pursue.’ Id.”

283 Or App at 501-02.6

In post-conviction proceedings, as generally, a

movant defendant is entitled to summary judgment against

a claim

6 Because we ultimately conclude that petitioner’s criminal trial counsel was

inadequate under Article I, section 11, we frame our analysis without reference

to petitioner’s alternative contention under the Sixth Amendment. See Montez v.

Czerniak, 355 Or 1, 7 n 3, 322 P3d 487, adh’d to as modified on recons, 355 Or 598,

330 P3d 595 (2014).

Cite as 284 Or App 176 (2017) 183

“if the pleadings, depositions, affidavits, declarations and

admissions on file show that there is no genuine issue as to

any material fact and that the moving party is entitled to

prevail as a matter of law. No genuine issue as to a material

fact exists if, based upon the record before the court

viewed in a manner most favorable to the adverse party,

no objectively reasonable juror could return a verdict for

the adverse party on the matter that is the subject of the

motion for summary judgment. The adverse party has the

burden of producing evidence on any issue raised in the

motion as to which the adverse party would have the burden

of persuasion at trial.”

ORCP 47 C.

Here, as noted, the post-conviction court granted

summary judgment against the fourth claim on two alternative

bases, either of which, if sustained, would compel

affirmance. Accordingly, we address each in turn.

The post-conviction court first concluded that defendant

was entitled to summary judgment because, although

petitioner’s criminal trial counsel did not object to the “natural

and probable consequences” instruction, petitioner had

“fail[ed] to present any evidence” that the failure to raise

such an exception was “unreasonable based on the case law

existing in 2004.” Implicit in that conclusion is the court’s

acceptance of defendant’s premise, asserted in the motion for

summary judgment and reiterated in defendant’s reply, that

it was incumbent on petitioner to have proffered evidence

“to support a conclusion that all reasonable trial attorneys,

in 2004, were objecting to the ‘natural and probable consequences’

” instruction.

The post-conviction court erred in that regard. We

and the Supreme Court have consistently held, in generally

analogous circumstances, that the determination of whether

criminal defense counsel’s failure to raise a legal challenge

breached the standard of “reasonable professional skill and

judgment” depends on “an examination of the state of the

law at the relevant times,” Krieg v. Belleque, 221 Or App

36, 40, 188 P3d 413, rev den, 345 Or 317 (2008), and the

potential risks and benefits of raising such a challenge. See,

e.g., Garner, 283 Or App at 505; Krieg, 221 Or App at 40. See

184 Lizarraga-Regalado v. Premo

generally Burdge v. Palmateer, 338 Or 490, 497-500, 112 P3d

320 (2005). Here, petitioner proffered evidence pertaining

to those considerations that, at least, precluded summary

judgment for defendant on the issue of whether criminal

trial counsel’s conduct breached the requisite standard of

care.

In two recent decisions, issued after the postconviction

court entered judgment here, we have concluded

that defense counsels’ failure to except to the accomplice

liability “natural and probable consequences” instruction

in trials that (as here) occurred after we issued Anlauf in

2000 and before the Supreme Court issued Lopez-Minjarez

in 2011 constituted a failure to exercise reasonable professional

skill and judgment. See Walraven, 277 Or App 264;

Wade v. Brockamp, 268 Or App 373, 342 P3d 142 (2015).7

Walraven, which substantially incorporated, but

refined and amplified, Wade’s reasoning is especially instructive.

There, the petitioner had been charged with multiple

counts of aggravated murder, as well as one count each of

felony murder and intentional murder, all arising from an

armed robbery and subsequent fatal shooting committed

with his older brother. 277 Or App at 266-67. During the

criminal trial—which occurred in July 2000, six months

after Anlauf issued—the state presented evidence that

either the petitioner had personally committed the murder

or, even if he had not himself killed the victim (i.e., his

brother had), he had at least participated with his brother

in the armed robbery of the victim, which had immediately

7 Conversely, in Hale v. Belleque, 255 Or App 653, 686, 298 P3d 596, adh’d

to on recons, 258 Or App 587, 312 P3d 533, rev den, 354 Or 597 (2013), and Eklof

v. Steward, 273 Or App 789, 792-93, 359 P3d 570 (2015), rev’d in part on other

grounds, 360 Or 717, 385 P3d 1074 (2016), we held that where the petitioners’

criminal trials antedated Anlauf, there was no such failure. In Eklof, we highlighted

that temporal distinction:

“[In Wade, we] distinguished that case from Hale because the underlying

criminal trial in Hale was decided before State v. Anlauf , where we signaled

that the uniform jury instruction misstated the law. Unlike Wade and

like Hale, petitioner’s criminal trial occurred before Anlauf and, thus, petitioner’s

counsel was not alerted to the fact that the instruction was legally

flawed.”

Id. at 792 n 2 (citations omitted); see also Eklof, 360 Or at 719 n 2 (rejecting without

discussion the petitioner’s challenge to the granting of summary judgment

against claim based on counsel’s failure to object to “natural and probable consequences”

instruction).

Cite as 284 Or App 176 (2017) 185

preceded the killing. Id. at 268-69. Given that evidence,

the state proceeded, in part, on a theory of accomplice liability

by which the jury could find the petitioner guilty of

aggravated murder and intentional murder “without finding

that he intended to kill or help kill the victim, so long

as it found that [he] was involved in the armed robbery.”

Id. at 269. Accordingly, the state requested, and the court—

without exception from the petitioner’s defense counsel—

gave a “natural and probable consequences” instruction

(which was identical to that given in the present petitioner’s

criminal trial four years later). Id. at 273.

The jury found the petitioner guilty of aggravated

murder, as well as felony murder and intentional murder, and

the petitioner ultimately sought post-conviction relief, alleging

that criminal trial counsel had been deficient in myriad

respects, including in failing to object to the “natural and

probable consequences” instruction. Id. at 266. Following a

trial, the post-conviction court rejected all claims, including

that pertaining to the “natural and probable consequences”

instruction. Id. at 275. In so holding, the court found persuasive

an explanation advanced by criminal defense counsel

that, given the law existing at the time of the criminal

trial, he “had no reason to believe that an objection to the

jury instruction would have been successful.” Id. at 274. The

post-conviction court further determined that the petitioner

had failed to demonstrate that he had been actionably prejudiced

by criminal defense counsel’s inaction in that regard.

Id. at 275.

We reversed in part the post-conviction court’s disposition

of the claim based on the failure to object to the “natural

and probable consequences” instruction. Specifically,

we concluded that (1) counsel’s inaction constituted a failure

to exercise reasonable professional skill and judgment,

id. at 279-85; and (2) while the petitioner had been consequently

prejudiced with respect to the jury’s consideration of

the aggravated murder and intentional murder charges, he

had not been so prejudiced with respect to the felony murder

charge. Id. at 285-87.8

8 We also affirmed, without further discussion, the post-conviction court’s

rejection of the petitioner’s other claims.

186 Lizarraga-Regalado v. Premo

Our conclusion regarding the breach of requisite

care in representation derived from the conjunction of

three premises. First, the exercise of reasonable professional

skill and judgment requires criminal defense counsel

to research and analyze “ ‘the law to the extent appropriate

to the nature and complexity of the case.’ ” Id. at 283

(quoting Krummacher v. Gierloff, 290 Or 867, 875, 627 P2d

458 (1981)). Second, given the “nature and complexity of

the case” in Walraven—including the prosecution’s partial

reliance on an accomplice liability theory that purported to

“reliev[e] the jury of the requirement to find an element”

(viz., intent) of felony charges—it was incumbent on counsel

to investigate whether, or to what extent, the “natural

and probable consequences” instruction on which the state’s

theory depended comported with the existing law of accomplice

liability. Id. at 283-84. Finally, reasonable investigation

“would have led to the discovery of Anlauf.” Id. at 284.

That “discovery” would, in turn, have caused any reasonable

defense counsel to object to the instruction:

“Although Anlauf did not explicitly render the instruction

obsolete (an issue we were not called upon to decide),

we did establish that the erroneous accomplice liability

theory—that a defendant who participates in one crime is

necessarily responsible as an accomplice for other crimes

that were the natural and probable consequences of the

intended predicate crime—was not supported by statutes

or case law.”

Id. (emphasis in original); see also id. at 282 (summarizing

ratio decidendi in Wade: “Trial counsel’s failure was not a

failure to ‘anticipate’ reversal in the law of accomplice liability,

as argued by the defendant, but rather a failure to

compare the instruction to the law of accomplice liability,

which would have led counsel to Anlauf.”).

In so holding in Walraven, we rejected the defendant’s

efforts to distinguish Wade either on temporal

grounds (viz., that while six years had elapsed between

Anlauf and Wade’s criminal trial, the interval between

Anlauf and Walraven’s criminal trial was only six months)

and on differences in the evidence offered in the respective

post-conviction proceedings, including affidavits by counsel

Cite as 284 Or App 176 (2017) 187

pertaining to discussions within the criminal defense bar

and local practice norms. Id. at 282-84. While acknowledging

the defendant’s proposition that, because of the much

shorter interval in Walraven, “the broader criminal defense

bar had not yet had time to absorb the impact of Anlauf

on the viability of the instruction,” we concluded that that

circumstance did not excuse trial counsel’s failure because

“nothing prevented counsel from discovering the decision in

preparing for a trial heavily dependent on a theory of accomplice

liability.” Id. at 284. We further concluded that, given

the controlling legal principles, evidence (of the sort submitted

in Wade, but not in Walraven) that before the criminal

trial, the criminal defense bar had engaged in listserve discussions

of “Anlauf and the instruction” was “not essential”

to the conclusion that failure to object to the “natural and

probable consequences” instruction was unreasonable. Id.

We return to this case. In opposing summary judgment,

petitioner proffered evidence that, when viewed most

favorably to his claim, would establish that (1) his criminal

trial occurred after Anlauf issued; (2) he was charged

with felonies, which, allegedly, he committed jointly with

codefendants; (3) one of the state’s theories of liability, with

respect to one or more of the charged felonies, was that

petitioner was liable as an accomplice because of the “natural

and probable consequences” of other crimes in which

he had participated jointly; (4) the criminal trial court gave

the uniform accomplice liability “natural and probable consequences”

instruction; (5) petitioner’s defense counsel did

not object to that instruction; and (6) the jury found defendant

guilty of all charges. Those facts alone, without any

additional evidence, constituted a prima facie showing that,

by failing to object to the instruction, petitioner’s criminal

defense counsel breached the standard of reasonable professional

skill and judgment. See Walraven, 277 Or App at 284;

Wade, 268 Or App at 386-88.

As noted, the premise of the post-conviction court’s

conclusion to the contrary was that petitioner had “fail[ed]

to present any evidence” that the failure to raise such an

objection “was unreasonable based on the case law existing

in 2004.” With respect—and with full appreciation that the

court’s ruling antedated Wade and Walraven—we disagree.

188 Lizarraga-Regalado v. Premo

As described immediately above, petitioner did present

such evidence—evidence that was, and is, legally sufficient

to support the requisite determination as to the alleged

“unreasonableness” of counsel’s performance. Moreover, to

the extent the post-conviction court assumed (as defendant

repeatedly argued) that, to defeat summary judgment, petitioner

was obligated to submit evidence of discussions or

practice among other criminal defense attorneys circa 2004,

that was incorrect. Rather, given the post-Anlauf timing of

petitioner’s criminal trial, the nature of the charges against

him, and the prosecution’s reliance on a theory of accomplice

liability predicated on the “natural and probable consequences”

instruction, additional evidence of that sort was

“not essential” to establish a failure of reasonable professional

skill and judgment. Walraven, 277 Or App at 284.

In sum, the post-conviction court erred in granting

summary judgment on the first alternative ground.

Nor can the post-conviction court’s disposition be

affirmed in its entirety on its alternative rationale that petitioner

had “fail[ed] to show how he was prejudiced by trial

counsel not objecting to the instruction.” As noted, that matter

was raised for the first time in defendant’s reply memorandum,

supplemented by additional excerpts from the

criminal trial transcript.9 Upon review of the summary judgment

record, including the portion of the prosecutor’s closing

argument that petitioner proffered, we conclude that when

“viewed in a manner most favorable” to petitioner, ORCP 47 C,

the record discloses genuine issues of material fact as to

whether petitioner was prejudiced with respect to either or

both Counts 1 and 2 of the indictment (pertaining to conduct

against C), but not as to Count 3 (pertaining to conduct

against D), by criminal trial counsel’s failure to object to the

“natural and probable consequences” instruction.

9 On appeal, petitioner does not contend that the post-conviction court’s

consideration of lack of prejudice as an alternative basis for summary judgment

was procedurally improper in this posture. But see Two Two v. Fujitec America,

Inc., 355 Or 319, 324-26, 325 P3d 707 (2014) (party opposing summary judgment

bears burden of producing evidence demonstrating existence of genuine issue of

material fact only with respect to issues raised in motion for summary judgment,

and not with respect to issues first raised in a movant’s reply memorandum). See

generally Eklof, 360 Or at 730, 736.

Cite as 284 Or App 176 (2017) 189

The post-conviction court erred in granting summary

judgment against petitioner’s fourth claim in its entirety.

Judgment on petitioner’s fourth claim reversed and

remanded; otherwise affirmed.