Filed 5/27/22 P. v. Cervantes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Omar Jesus Cervantes, in propria persona; and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Omar Jesus Cervantes appeals the denial of his Penal Code[1] section 1170.95 petition to vacate his conviction for second degree murder. After his counsel filed a no-issue brief under Anders/Wende[2], Cervantes filed his own supplemental brief challenging the sufficiency of the evidence supporting the denial order. We affirm.

I. FACTS

The Riverside County District Attorney charged Cervantes with murder (§ 187, subd. (a); count 1) and assault with a deadly weapon (a wooden bat) (§ 245, subd. (a)(1)), both committed for the benefit of a gang (§ 186.22, subd. (b)(1)). As to the murder count, the information alleged Cervantes was a principal who personally used a firearm causing great bodily injury and death. (§ 12022.53, subds. (d)-(e).)

At trial, the prosecution presented evidence that Cervantes was hanging out in Moreno Valley with members of his gang, 420 Kings, when he planned and directed the murder of Marquez, a member of the rival gang Kush Blown Kings. The 17-year-old Cervantes was driving his father’s car with one of his friends, when he saw the victim, Marquez, walking down the street. Cervantes picked up his fellow gang members, codefendants Mageo and Mariscal, at a local park. Cervantes knew Mariscal had a gun and drove Mariscal to his house to retrieve it. Afterward, they drove around looking for Marquez and found him walking back from Circle K with two friends, carrying soda and snacks.

Cervantes ordered Mariscal to “rob” and “shoot” Marquez. At trial, there was conflicting evidence about whether the other passengers in the car believed Cervantes wanted Mariscal to shoot Marquez or simply beat him and scare him with the gun. Cervantes remained in the driver’s seat as Mariscal and Mageo jumped out of the car, Mariscal carrying his gun and Mageo carrying a small wooden bat. They chased Marquez and his friends to a nearby residence where Marquez and one of his friends ran into the open garage. Mageo caught up with the friend in the garage and began beating him with the bat. Mariscal ran after the other friend, and when he realized he wasn’t Marquez, said, “that’s not him,” and doubled back to the garage. Mariscal found Marquez and shot him in the torso, killing him.

When Mariscal returned to the car, Cervantes was standing outside the driver’s door. He pointed at one of Marquez’s friends and told Mariscal to “kill that motherfucker too.” Instead, Mariscal climbed into the backseat and announced he “got” Marquez. Cervantes asked whether Mariscal “really did get him,” then started “bragging it up.” They left the scene and Cervantes drove Mariscal back to his house to get rid of the gun.

At trial, the prosecution argued Cervantes was guilty of murder under two alternative theories. They argued he aided and abetted Mariscal’s shooting of Marquez, or, at the very least, aided and abetted Mariscal’s assaulting Marquez with a firearm, and murder was a natural and probable consequence of that assault.

The jury convicted Cervantes of second degree murder and assault with a deadly weapon, found both crimes were committed for the benefit of a gang, but did not find the gun enhancement true. The trial court sentenced Cervantes to 15 years to life for the murder. For the assault, it imposed a consecutive sentence of nine years, consisting of the upper term of four years plus a five-year enhancement for the gang allegation.[3]

Cervantes appealed, and in 2020 this court affirmed his conviction. (People v. Cervantes, supra, 46 Cal.App.5th at p. 230.)

In January 2021, Cervantes filed a petition for resentencing under section 1170.95. Riverside County Superior Court Judge John D. Molloy issued an order to show cause why he should not be resentenced, and, after an evidentiary hearing, denied the petition.

During the hearing, the judge noted he was the trial judge on the case and recalled the facts well. He pointed out the crime was caught on camera, and the footage showed the assailants ignoring one of the victim’s friends in favor of attacking and murdering the victim. The judge found the video contained “overwhelming” evidence “that this was a conspiracy to assassinate a single individual,” and that the actions of the assailants “absolutely corroborates the version of facts presented by some of the witnesses that . . . Cervantes enlisted the aid of and directed the other folks to kill this gentleman.” The judge found, beyond a reasonable doubt, that Cervantes “had the specific intent to kill and, indeed, were it not for his actions, the young man who was killed in this case would never have been killed, because [Cervantes] was the entire force behind the murder.”

II. ANALYSIS

On Cervantes’s request, we appointed counsel to represent him on appeal. Counsel filed a brief declaring he found no arguably meritorious issues to appeal, setting out a statement of the case, and asking us to conduct an independent review of the record.

When appealing from a postconviction order a defendant does not have a constitutional right to independent review under Anders/Wende if appellate counsel is unable to identify any arguable issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1034, 1039, petn. for review granted Oct. 14, 2020, S264278.) However, “if the defendant files a supplemental brief, the Court of Appeal is required to evaluate any arguments presented in that brief and to issue a written opinion that disposes of the trial court’s order on the merits.” (Id. at p. 1040.) Here, after appellate counsel filed a brief notifying us Cervantes’s appeal presented no arguable issues, we offered Cervantes an opportunity to file a personal supplemental brief, and he did so. Cervantes also requested permission to file an additional supplemental brief, which we granted. We will therefore address the arguments he raises in both briefs.

Cervantes argues there was insufficient evidence for the judge to conclude he acted with intent to kill, and therefore he is entitled to be resentenced under section 1170.95.

In 2018, the Legislature passed Senate Bill No. 1437 (Senate Bill 1437), effective January 1, 2019, which amended the definition of felony murder in section 189 and eliminated liability for murder under a natural and probable consequences theory. Under the new law, “in order to be convicted of murder, a principal in a crime shall act with malice aforethought,” (§ 188, subd. (a)(3)) except under the amended felony-murder rule. Although the change eliminated liability under a natural and probable consequences theory and severely curtailed liability under the felony murder rule, it “did not . . . alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily ‘know and share the murderous intent of the actual perpetrator.’ ” (People v. Offley (2020) 48 Cal.App.5th 588, 595-596 (Offley).)

In Cervantes’s case the prosecution proceeded under both a natural and probable consequences theory of guilt and a direct aider and abettor theory of guilt. Thus, though the natural and probable consequences theory of guilt is now invalid, Cervantes could still be guilty of murder under a direct aider and abettor theory.

Direct aiders and abettors can still be found guilty of first or second degree murder if they harbor either express or implied malice. “In the case of express malice, the defendant must have intended to kill.” (Offley, supra, 48 Cal.App.5th at p. 598.) “For implied malice, the intent requirement is satisfied by proof that the actual perpetrator ‘ “knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.” ’ ” (People v. Gentile (2020) 10 Cal.5th 830, 850.)

Senate Bill 1437 also added section 1170.95, which allows “[a] person convicted of felony murder or murder under a natural and probable consequences theory,” to “file a petition with the court that sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be resentenced on any remaining counts.” (Pen. Code, § 1170.95, subd. (a); Stats. 2018, ch. 1015, § 4.) In deciding the petition, a trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard. (Pen. Code, § 1170.95, subd. (d)(3).)

However, we “ ‘examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 657-658.) We view the evidence in a light most favorable to the judgment and “resolve all evidentiary conflicts and questions of credibility ‘in favor of the [judgment].’ ” (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)

Here, substantial evidence supports the judge’s conclusion that Cervantes remained guilty even under the new law because he directly aided and abetted the murder. Cervantes spotted the victim and collected his friends to attack the victim. Cervantes even drove one of those friends to retrieve a gun. Cervantes told his friends to rob and shoot the victim. He made no attempt to stop them from attacking or shooting the victim. After fleeing, Cervantes and his friends bragged about the killing, and Cervantes helped them get rid of the gun.

These facts support the finding that Cervantes directly aided and abetted the murder. Cervantes was the driving force behind the murder, and multiple times instructed his friends to shoot people with a gun he helped them procure. We also agree with the judge that the evidence is even sufficient to establish beyond a reasonable doubt that Cervantes was the mastermind behind a conspiracy to assassinate the victim and the victim alone, indicating he had the express intent to kill.

However, even if we assume, for the sake of argument, the evidence is insufficient to show Cervantes acted with express malice, the evidence is still sufficient to support a finding he acted with implied malice. That is, at minimum Cervantes identified the victim as a target, recruited help to attack the victim, actively helped one friend get a gun, knew the other friend was armed with a bat, and set both friends loose on the victim with instructions to rob and shoot him. This conduct unquestionably endangered the victim and displays a conscious disregard for the victim’s life, even assuming Cervantes didn’t actively want him dead.

In his supplemental briefing, Cervantes argues there was insufficient evidence he harbored any kind of malice. Cervantes argues the jury’s finding that he committed second degree murder was a finding that he didn’t have the intent to kill, that the testimony of the witnesses against him was inconsistent and not credible, and that Mageo testified they didn’t discuss killing anyone before the shooting.

First, we note that both first and second degree murder require the jury to find the defendant acted with malice aforethought. (Penal Code, § 187, subd. (a); CALCRIM No. 520.) The distinction between first and second degree murder is not whether the offender intended to kill. Instead, first degree murder occurs when someone kills using certain statutorily specified means while “[s]econd degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Therefore, the fact the jury didn’t convict Cervantes of first degree murder doesn’t mean they found he lacked the necessary malice aforethought—only that the prosecution failed to prove the extra aggravating elements necessary to convict him of first degree murder.

Second, it isn’t enough to reverse the trial judge’s judgment that witnesses against Cervantes may have given inconsistent statements, or even that a witness gave evidence contradicting the jury’s verdict. On appeal, “[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact,” and we cannot reweigh the evidence or reassess witness credibility on our own. (People v. Young (2005) 34 Cal.4th 1149, 1181.) To the extent the judge found one version of events more credible than another, we are bound by that determination. Nevertheless, we also note the judge based much of his decision on video evidence rather than witness statements. Therefore, even if we could consider the credibility of the witness’s statements, there may still be sufficient video evidence to support the trial judge’s judgment.

For all of these reasons, we conclude substantial evidence supports the order.

III. DISPOSITION

We affirm the order denying Cervantes’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.

[1] Unlabeled statutory references refer to this code.

[2] Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende)

[3] The preceding facts concerning the underlying crime and procedural history of Cervantes’s conviction are taken verbatim from our prior opinion affirming the conviction. (People v. Cervantes (2020) 46 Cal.App.5th 213, 219-220.)