Filed 4/5/22 P. v. Gutierrez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Mildred Escobedo, Judge. Affirmed.

Law Office of Charles Carbone and Charles Carbone for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

In 2011, defendant and appellant Robert Gutierrez was convicted of second degree murder. (Pen. Code, § 187.)[1] He was sentenced to 40 years to life in state prison. Defendant appealed his conviction, and on October 3, 2012, we affirmed the judgment. (People v. Gutierrez (Oct. 3, 2012, B233166) [nonpub. opn.], p. 2 (Gutierrez I).)

On February 11, 2019, defendant filed a petition for resentencing under section 1170.95, arguing that he was entitled to relief because he was convicted of second degree murder pursuant to the natural and probable consequences theory, as an aider and abettor of an assault, and could not be convicted of murder under the newly amended sections 188 and 189. The trial court denied his petition, and defendant appealed. On July 28, 2020, we reversed the trial court’s order and remanded the matter for the trial court to issue an order to show cause and hold a hearing pursuant to section 1170.95, subdivision (d). (People v. Gutierrez (July 28, 2020, B300346) [nonpub. opn.], pp. 2–3 (Gutierrez II).)

The trial court held an evidentiary hearing, and then denied defendant’s section 1170.95 petition, finding that defendant was a major participant in the crime who acted with reckless indifference to human life.

Defendant timely appealed. On appeal, he argues that the trial court’s order denying his section 1170.95 petition must be reversed because, pursuant to People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522, he was neither a major participant in the underlying crime nor acted with reckless indifference to human life.

We are not convinced by defendant’s arguments. Accordingly, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

“On June 20, 2008, near midnight, Leonardo Reyes (Leonardo) and his two sons, nine-year-old Leonardo, Jr., (Junior) and 11-year-old Rudy (Rudy), took a walk in the area of 1750 South Westmoreland, in the City of Los Angeles. As they were walking, [defendant], whom Rudy and Junior knew from the neighborhood as ‘Info,’ came out of an alley across the street and approached them, asking Leonardo where he was from. Leonardo and his sons kept walking and did not answer.

“[Defendant] had a knife in his hand which he put into his pocket. He punched Leonardo in the back, and a fight ensued. Junior thought that Leonardo was winning. A few minutes into the fight, a second unidentified man (unidentified man), wearing a blue shirt, exited the same alley as [defendant] had, crossed the street, and joined the fight against Leonardo. It appeared to Rudy that the man ‘ran and he helped . . . his friend.’ [Defendant] and the man continued hitting Leonardo for a couple of minutes. [Defendant] then disengaged from the fight, approached the boys and kicked Rudy, who landed on his head. [Defendant] laughed and rejoined the fight.

“At some point, the unidentified man told [defendant] to step aside. [Defendant] complied, the unidentified man moved closer to Leonardo, took a gun from his waist area and shot Leonardo. He told [defendant], ‘Let’s get out of here.’ They ran together back to the same alley from which they had come.

“Leonardo died from a single gunshot wound to the chest.” (Gutierrez I, supra, B233166, at pp. 2–3.)

At trial, the People also presented evidence that defendant was a current, active gang member, and that his gang’s territory included the location where Leonardo was shot. (Gutierrez I, supra, B233166, at pp. 3–4.) The gang expert added that “[g]angs control their territory . . . by asking [people] ‘Where are you from,’ a request for the gang affiliation of the person to whom the question is directed. There is no satisfactory answer to the question and to ignore it is to show disrespect. . . . The question is a prelude to a confrontation and informs the person that he is in the gang’s territory.” (Gutierrez I, supra, B233166, at p. 3.)

In addition, the gang expert testified that “t is common for gang members to commit crimes in tandem in order to have ‘backup’ in case a gang member cannot handle a situation by himself or to have one act as a lookout. Gang members commonly carry weapons. A gang member would not go out late at night without knowing what kind of weapon his fellow gang member was carrying and what the fellow gang member was willing to do if something happened. A gang member would not ‘hit up’ someone and ask where he is from unless there was a gun to back him up in case the person questioned was an armed rival gang member.” ([i]Gutierrez I, supra, B233166, at p. 4.)

Procedural Background

On direct appeal, we affirmed the judgment. (Gutierrez I, supra, B233166, at p. 2.) In so doing, we noted that defendant “and the unidentified man were fellow gang members engaging in a coordinated attack on Leonardo, or . . . even if he did not know the unidentified man, at some point during the assault, they began acting in concert.” (Gutierrez I, supra, B266133, at p. 7.)

On February 11, 2019, defendant filed a petition for resentencing. The trial court denied his petition, and defendant appealed. On July 28, 2020, we reversed and remanded the matter to the trial court with directions to hold an evidentiary hearing pursuant to section 1170.95. (Gutierrez II, supra, B300346, at pp. 2–3.)

On April 2, 2021, the trial court held the evidentiary hearing. No new evidence was presented by the parties.

The trial court then stated that it had reviewed the entire file, including the jury instructions, the jury’s verdicts, the motions filed by counsel, and “the remittitur” (an apparent reference to Gutierrez I).

Thereafter, the trial court summarized the facts of the case, as set forth in Gutierrez I. It emphasized our observation that defendant and the unidentified man were fellow gang members who engaged in a coordinated attack on the victim, noting that both men came out of the same alley and they were within the territory claimed by defendant’s gang. The trial court further noted that the gang expert testified that it would be unlikely for a gang member to “hit up someone unless there was a gun to back them up, as they wouldn’t know if the target of their actions was an armed rival gang member.” And, after the unidentified man joined the fight, defendant felt sufficiently comfortable that the victim was being handled that he disengaged from the fight to kick one of the victim’s children. The trial court also remarked that when the unidentified man told defendant to move, defendant did so without asking questions, “supporting the inference that [defendant] was fully aware of what the unidentified man was about to do.”

The trial court further stated that both men were perpetrators in the gang attack as well as aiders and abettors. In support, it pointed to the fact that the unidentified man told defendant, “‘Let’s get out of here,’” before the two men ran together to the same alley from which they had come, which “provides further support they were working together to commit a gang murder.”

Thus, the trial court denied defendant’s petition, reasoning: “In this case, those facts that the Appellate Court has recited thoroughly in their [opinion], thoroughly within the pleadings that is within this case, the findings of the jury based on their verdicts, the Court does find that factually there is overwhelming evidence that the defendant was a major participant in this crime; that he acted with reckless indifference to human life and was a major participant. That’s very clear in the fact, 1, that you’ve got the gang allegation, the classic gang procedure, if you will, of how one confronts another.

“And the confrontation, as the gang expert has explained and/or as is viewed is clear. It’s not, ‘Hey, how are you doing? You coming into our neighborhood? What’s happening?’ No. This is the County of Los Angeles. We know what gang confrontation is and what gang confrontation leads to. It’s either that you’re going to be killed or you’re going to kill. And that’s what happened in this case, and any gang member will know that. So we can’t disregard that.

“And that reflects a lot of the factual scenario and the participation and the reckless disregard to human life, because that is exactly what it is when someone comes up to another and says, ‘Hey, where [are] you from?’ displaying a weapon, and then one person gets shot and killed.

“The Court finds that there is beyond a reasonable doubt that, in fact and indeed, the defendant—it’s not even beyond a reasonable doubt. It goes lesser than that. The burden is—it meets all levels of burden, preponderance, clear and convincing, beyond a reasonable doubt. That indefinitely—or definitely—I’m sorry—definitely the defendant was a major participant, and he acted with complete and utter reckless indifference to human life.

“Therefore, the [section] 1170.95 [petition] is denied, and the defendant will not be resentenced. The sentence remains.”

DISCUSSION

I. Relevant law

Section 1170.95 provides a mechanism whereby people “who believe they were convicted of murder for an act that no longer qualifies as murder following the crime’s redefinition in 2019[] may seek vacatur of their murder conviction and resentencing by filing a petition in the trial court.” (People v. Drayton (2020) 47 Cal.App.5th 965, 973, overruled in part on other grounds in People v. Lewis (2021) 11 Cal.5th 952, 963.)

In order to obtain resentencing relief, the petitioner must file a facially sufficient section 1170.95 petition. (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial court proceeds to section 1170.95, subdivision (c), to assess whether the petitioner has made a prima facia showing for relief, thereby meriting an evidentiary hearing. (People v. Lewis, supra, 11 Cal.5th at p. 957.)

At the evidentiary hearing, the parties may rely upon evidence in the record of conviction or new evidence to demonstrate whether the petitioner is eligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecution bears the burden of proving, “beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); People v. Duchine (2021) 60 Cal.App.5th 798, 813–814; People v. Harris (2021) 60 Cal.App.5th 939, 952, review granted Apr. 28, 2021, S267802; People v. Hernandez (2021) 60 Cal.App.5th 94, 103.) If the prosecution cannot meet its burden, and the petitioner prevails, he is entitled to vacatur of the murder conviction and resentencing as set forth in section 1170.95, subdivision (e).

We review for substantial evidence the trial court’s factual determination under section 1170.95, subdivision (d)(3), that the prosecution proved beyond a reasonable doubt that the defendant was ineligible for resentencing.

II. The trial court properly denied defendant’s petition for resentencing

As set forth above, the trial court found that defendant was a major participant who acted with reckless indifference to human life. According to the Attorney General, this analysis was erroneous because those factors are only relevant in the context of felony murder, and defendant here was not tried under a theory of felony murder and no new evidence was presented at the evidentiary hearing that would support a finding that he was convicted of felony murder. (§ 189, subd. (a).) We need not reach this issue. Reckless indifference to human life is a higher level of culpability than is necessary for implied malice. (People v. Johnson (2016) 243 Cal.App.4th 1247, 1285.) Thus, we may affirm the trial court’s order if it is supported by substantial evidence.

Substantial evidence supports a finding that defendant is liable for murder as an aider and abettor who acted with malice. (§§ 187, subd. (a) [defining murder as the unlawful killing of a human being with malice aforethought], 188 [defining malice as either express or implied].)

A. Relevant law

Senate Bill No. 1437 did “not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 848.) In other words, “Senate Bill No. 1437 changed the circumstances under which a person could be convicted of murder without a showing of malice, but it did not exclude from liability persons convicted of murder for acting with implied malice.” (People v. Soto (2020) 51 Cal.App.5th 1043, 1057, overruled in part on other grounds in People v. Lewis, supra, 11 Cal.5th at p. 957.) Thus, one who directly aids and abets another who commits murder is liable for murder under the new law just as he was liable under the old law.

Guilt as a direct aider and abettor requires: (1) knowledge of the direct perpetrator’s intent to commit the crime; (2) intent to assist in committing the crime; and (3) conduct that in fact assists in committing the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The defendant must not only know the direct perpetrator’s intent, he must share that intent. (People v. Beeman (1984) 35 Cal.3d 547, 560; People v. McCoy, supra, at p. 1118.)

Intent to kill for purposes of murder, also known as express malice, is shown when the assailant either desires the death or knows to a substantial certainty that death will occur. (§ 188, subd. (a)(1); People v. Smith (2005) 37 Cal.4th 733, 739 (Smith); In re M.S. (2019) 32 Cal.App.5th 1177, 1185.) Intent to kill may be inferred from the defendant’s acts and the circumstances of the crime. (Smith, supra, 37 Cal.4th at pp. 740–741.)

The mental state required for implied malice murder—which also suffices to deny a section 1170.95 petition under the amended section 188 (see People v. Soto, supra, 51 Cal.App.5th at p. 1057)—represents a lower standard than intent to kill. (People v. Swain (1996) 12 Cal.4th 593, 602; People v. Olguin (1994) 31 Cal.App.4th 1355, 1379 [“the specific intent necessary for conviction of an aider and abettor in a murder would not be the specific intent to kill, but the intent to ‘encourage and bring about conduct that is criminal’”].) Implied malice murder requires knowledge that conduct endangers the life of another and a conscious disregard for life. (People v. Chun, supra, 45 Cal.4th at p. 1181.)

Under the direct aiding and abetting theory, an aider and abettor’s mental state must be at least that required of the direct perpetrator. “To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]” (People v. McCoy, supra, 25 Cal.4th at p. 1118.) It follows that to aid and abet an implied malice murder, the direct aider and abettor must intentionally commit, encourage, or facilitate life-endangering conduct with knowledge of the perpetrator’s purpose and conscious disregard for life. (Id. at p. 1118 & fn. 1.)

B. Analysis

Ample evidence supports the trial court’s implicit finding that defendant acted as a direct aider and abettor with malice. He was the one who initiated the attack, by “asking Leonardo where he was from.” (Gutierrez I, supra, B233166, at p. 2.) According to the gang expert, defendant would not have confronted Leonardo if he did not have “‘backup’” who was carrying a weapon. (Gutierrez I, supra, B233166, at p. 4.) And, defendant would have known what kind of weapon his backup (the unidentified man) was carrying and that he was willing to use it. (Ibid.)

Furthermore, as we noted in Gutierrez I, “there was substantial evidence that [defendant’s] initial attack on Leonardo was part of a planned attempt to stop Leonardo so as to hurt or kill him. This conclusion was further buttressed by the matter-of-fact manner in which [defendant] stepped aside so that the unidentified man could shoot Leonardo.” (Gutierrez I, supra, B233166, at p. 11.) Given this determination, it follows that there was substantial evidence that defendant intended to kill the victim when he stepped aside so that his companion could shoot him. As observed by the trial court at the resentencing hearing, “We know what gang confrontation is and what gang confrontation leads to. It’s either that you’re going to be killed or you’re going to kill. And that’s what happened in this case, and any gang member will know that.”

In light of the coordinated nature of this gang attack, and defendant’s matter-of-fact way of stepping aside when asked to do so just before the fatal shots were fired from close range, it is reasonable to infer that defendant was aware of and shared the shooter’s intent to kill. These facts also support a reasonable inference that defendant intended to aid the shooter, and that he actually did so. His continued presence at the scene, while armed with a knife, aided the shooter to the extent it discouraged potential defensive maneuvers by the victim. Also, by stepping aside when asked to do so, defendant aided the perpetrator by providing an unobstructed shot at the victim. Accordingly, there was substantial evidence that defendant knew of the perpetrator’s intent to commit the crime, that defendant intended to assist in committing the crime, and that he engaged in conduct that assisted in committing the crime.

To the extent defendant characterizes the evidence differently and asks us to draw a conclusion different than the one reached by the trial court, his argument fails. It is well-settled that when considering a challenge to the sufficiency of the evidence, we do not reweigh the evidence or redraw competing inferences from competing circumstances. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055–1056.) We also reject any challenge to the gang expert’s testimony as it is improper for us to consider whether that testimony was speculative in the context of this appeal.

DISPOSITION

The trial court’s order denying defendant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT

[1] All further statutory references are to the Penal Code unless otherwise indicated.