People v. Nunez CA4/3 ( 2022 )

Filed 12/20/22 P. v. Nunez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G061072
v. (Super. Ct. No. 02CF2185)
ISAIAS NUNEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles Ragland, Assistant Attorney General, Robin Urbanski and Brendon
W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
In 2004, appellant Isais Nunez was convicted of second degree murder for
aiding and abetting the fatal shooting of a rival gang member. In this proceeding, he
contends there is insufficient evidence to support the trial court’s denial of his petition for
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resentencing under Penal Code section 1170.95. However, the record contains
substantial evidence appellant directly aided and abetted the shooting, which renders him
ineligible for resentencing. We therefore affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2001, appellant was a member of a criminal street gang
known as Sycamore Street. The gang had been feuding with a rival outfit called UBC,
and on the morning of the 16th, appellant talked about getting a gun from someone in his
gang. The record does not disclose whether appellant actually succeeded in that regard.
However, that afternoon he was driving in UBC territory with fellow Sycamore Street
member Alejandro Mejia when they came upon a carload of UBC members waiting at a
stop sign. Appellant abruptly stopped his vehicle in the middle of the street, allowing
Mejia to alight from the passenger door with a gun in his hand. Mejia fired several shots
at the UBC members, hitting and killing Jesse Renteria. Then he got back in appellant’s
vehicle, and they sped off together.
After the shooting, appellant told members of his gang that he and Mejia
had shot someone from UBC. He warned of possible payback from UBC and then
headed to Mexico for a few months. Upon arrest, he initially denied any involvement in
Renteria’s murder but eventually admitted he was with Mejia when the incident unfolded.
Appellant claimed he was just giving Mejia a ride at the time and did not know he was
armed or intending to shoot anyone. He said he was surprised when Mejia exited his
vehicle and opened fire on the victims’ car.
1
That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.)
Because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to
Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.
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At trial, a gang expert testified that in the weeks leading up to the shooting,
UBC members had been “tagging,” i.e., spray painting provocative graffiti, in Sycamore
Street territory. The expert said that in the underground world of criminal street gangs,
such territorial intrusions are considered highly disrespectful and are expected to be met
with stern retaliation. If the retaliation took the form of a drive-by shooting, the driver
and shooter would be expected to work together and back each other up. And if they
were successful in terms of hitting their target, they would not only enhance the
reputation of their gang, they would garner individual respect from their fellow gang
members for carrying out such a brazen criminal act.
The trial court instructed appellant’s jury it could find him guilty of murder
if he directly aided and abetted that offense, or if murder was a natural and probable
consequence of a lesser crime he and Mejia intended to commit. Without specifying
which theory it adopted, the jury convicted appellant of second degree murder, for which
he was sentenced to an indeterminate term of 15 years to life in prison.
On appeal, we affirmed the judgment, rejecting appellant’s claim the gang
expert’s testimony rendered his trial unfair. (People v. Nunez (Mar. 24, 2006, G034426)
[nonpub. opn.].) Appellant also came up empty in the California Supreme Court and
Federal District Court. However, he received new hope in 2018, when the Legislature
enacted Senate Bill No. 1437. As relevant here, that bill eliminated the natural and
probable consequences theory for the crime of murder. It also added section 1170.95,
which allows defendants convicted of murder under that theory to obtain relief if no other
theory of murder justified their conviction.
Upon receiving appellant’s petition for resentencing, the trial court found
he made a prima facie case for relief and set an evidentiary pursuant to section 1170.95,
subdivision (d)(3). At the hearing, the parties stipulated the trial court could consider the
record of conviction in appellant’s underlying case to determine whether he was eligible
for resentencing. Neither side offered any new evidence for the court’s consideration.
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After reviewing the documentary record, the trial court found beyond a reasonable doubt
that appellant could be convicted of Renteria’s murder under the still-valid theory of
direct aiding and liability. It therefore denied his petition for resentencing.
DISCUSSION
Appellant contends there is insufficient evidence to support the trial court’s
denial order. We disagree.
As a preliminary matter, we first take up appellant’s claim we should
forego the deferential standard of review that typically governs sufficiency-of-the-
evidence claims. Because the trial court decided his case based on the documentary
record of his underlying trial, and not live witnesses, appellant argues there is no reason
to give the trial court’s factual findings any deference because we are in as good of
position as the trial court to make our own factual findings from the record. Therefore,
we should apply de novo review and only affirm if the record convinces us beyond a
reasonable doubt that appellant directly aided and abetted the shooting.
However, as an appellate court, our primary responsibility is to review trial
court findings, not make them ourselves. Appellant correctly points out that there are
some legally oriented appellate issues involving mixed questions of law and fact where
deference is not accorded to the trial court’s factual findings when they are derived from
a cold, documentary record. (See, e.g., People v. Vivar (2021) 11 Cal.5th 510, 528
[motion to withdraw guilty plea for failure to advise of immigration consequences]; In re
Long (2020) 10 Cal.5th 764, 774 [ineffective assistance of counsel claim in habeas
proceeding]; People v. Duff (2014) 58 Cal.4th 527, 551 [motion to suppress statements
taken in violation of the Fifth Amendment].) But in this case, appellant’s petition turned
on a purely factual assessment of his mental state and his actions at the time of the
shooting. Indeed, the trial court’s factual findings on these issues were solely
determinative of his eligibility for resentencing. Under those circumstances, there is “no
reason to withhold the deference generally afforded to such factual findings” even though
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“the trial court [was] bound by and relie[d] solely on the record of conviction to
determine [appellant’s] eligibility.” (People v. Perez (2018) 4 Cal.5th 1055, 1066 [while
a petition for resentencing under Proposition 36 is typically decided on a purely
documentary record, the substantial evidence standard of review still applies on appeal];
People v. Sledge (2017) 7 Cal.App.5th 1089, 1096-1097 [same for resentencing requests
made pursuant to Proposition 47].) Therefore, as our colleagues have done (People v.
Sifuentes (2022) 83 Cal.App.5th 217, 232-233; People v. Clements (2022) 75
Cal.App.5th 276, 297), we conclude the substantial evidence standard of review applies
when, as here, the trial court denies a petition for resentencing based solely on a
documentary record.
Under that standard, the test is not whether the prosecution met its burden
of proving beyond a reasonable doubt that appellant is ineligible for resentencing, but
whether any rational trier of fact could have so found. (People v. Williams (2020) 57
Cal.App.5th 652, 663.) In making that determination, “‘we review the evidence in the
light most favorable to the prosecution and presume in support of the [order] the
existence of every fact the [trial judge] could reasonably have deduced from the evidence.
[Citation.] “Conflicts [in the evidence] . . . subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the trial judge . . . to
determine the . . . truth or falsity of the facts upon which a determination depends.
[Citation.]”’ [Citation.]” (Ibid.) “Although we must ensure the evidence is reasonable,
credible, and of solid value” (People v. Jones (1990) 51 Cal.3d 294, 314), reversal is not
warranted unless “‘“upon no hypothesis whatever is there sufficient substantial evidence
to support the [trial court’s ruling].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th
500, 508.)
Looking at the record from this perspective, we are convinced there is
sufficient evidence to support the trial court’s ruling. As we have explained, the central
question presented at the evidentiary hearing was whether appellant directly aided and
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abetted Renteria’s murder. To establish liability under that theory, the prosecution had to
prove appellant had murderous intent, meaning he either intended to kill or was
consciously indifferent to the life-threatening danger created by his actions. (People v.
Gentile (2020) 10 Cal.5th 830, 850.) It also had to show that he actually encouraged or
assisted Mejia in carrying out the murder. (People v. Perez (2005) 35 Cal.4th 1219,
1225.)
Claiming he neither helped Mejia nor shared his murderous intent,
appellant insists the evidence comes up short on both of these requirements. But we feel
there is strong circumstantial evidence that both he and Mejia were out to murder a
member of UBC on the day of the shooting.
UBC had been antagonizing appellant’s gang by tagging in its territory.
The gang expert testified this necessitated retaliation by appellant’s gang, lest it lose face
in the gang community. He opined payback in the form of a drive-by shooting would
suffice to preserve Sycamore Street’s reputation, and he explained how the shooter and
the driver would have to work together to carry out such a shooting. He also made it
clear that successfully executing a drive-by shooting against a rival gang member would
have considerable reputational benefits for the shooter, the driver and their gang.
These motivational circumstances set the stage for Renteria’s murder. That
day, appellant talked about getting a gun from one of his fellow gang members. Then he
drove with Mejia into UBC territory and abruptly pulled up in the middle of the street in
close proximity to where Renteria and his crew were waiting at a stop sign. From that
vantage point, Mejia was able to exit appellant’s vehicle and carry out the shooting with
no resistance from the victims.
While appellant told the police he had no idea Mejia was armed or intended
to shoot anyone, the trial judge was not required to accept this claim. Indeed, the fact
appellant bragged to other members of his gang about the shooting and fled to Mexico in
its wake casts serious doubt on the veracity of his innocent-bystander claim.
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All told, we are satisfied there is substantial evidence appellant directly
aided and abetted Renteria’s murder. Appellant’s presence at the scene, his gang
association with Mejia, his conduct before and after the shooting, and his motive of
retaliation all support the trial court’s finding he actively and knowingly assisted Mejia
with malice aforethought. We therefore reject his challenge to the sufficiency of the
evidence.
DISPOSITION
The trial court’s order denying appellant’s petition for resentencing is
affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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