People v. Guzman CA2/6 ( 2022 )

Filed 12/12/22 P. v. Guzman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B313211
(Super. Ct. No. 1312678)
Plaintiff and Respondent, (Santa Barbara County)
v.
ALEXIS GUZMAN,
Defendant and Appellant.
Alexis Guzman appeals an order denying his petition for
resentencing under former Penal Code section 1170.95 (hereafter
section 1170.95),1 renumbered as section 1172.6, effective June
30, 2022, with no change in text. (Stats. 2022, ch. 58, § 10.) The
trial court issued an order to show cause and held a second-stage
hearing under section 1170.95. The court found the People had
proved beyond a reasonable doubt that Guzman was guilty of
second degree murder. It found Guzman was a direct aider and
abettor of “second degree implied malice murder.” We conclude,
1 All statutory references are to the Penal Code.
among other things, the court did not err in denying his petition
and substantial evidence supports the court’s findings. We
affirm.
FACTS
Guzman and his brother Dennis Garcia Guzman (Dennis)
were West Park gang members. Northwest is a rival gang in
Santa Maria. One evening Guzman and Pedro Pozos, another
West Park gang member, were in an alley that the West Park
gang claimed as its gang’s territory.
Hector Perez and Jose Jarquin arrived in a car. They were
drinking and playing loud music. Perez was not a gang member.
Guzman asked Perez to lower the volume. Perez increased the
volume. Guzman and Perez traded insults. Perez told Guzman
that he was “just like” his brother Dennis and needed “help”
when he fights.
Guzman sent a text message to Javier Mendez, his fellow
gang member, stating, “Hey fool, bring the knife.” Guzman
texted Dennis asking him to “come by, this fool is from
Northwest,” and he texted Mendez again stating, “Come by fool
we are going to do something right now.” Guzman sent a text
message to his girlfriend stating that he was “about to beat some
fool right now.”
Dennis obtained a .25 caliber Beretta semi-automatic
pistol. He told fellow gang member Luis Ruiz that Northwest
gang members were in the alley and he did not want to get
“caught naked.”
Dennis arrived at the alley. There were now five or six
West Park members or associates who had assembled there.
Dennis challenged Perez to a fight. He handed the gun to
Guzman, who held it as Dennis and Perez fought. Perez
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prevailed in the fight. At one point at least one West Park gang
member tried to help Dennis fight Perez.
Dennis and his fellow West Park gang member were not
able to defeat Perez. Dennis retrieved the gun from Guzman and
fired shots at Perez. Perez was hit twice by bullets. He died from
those injuries. Guzman and Dennis fled.
Guzman and Dennis were convicted of first degree murder.
(§§ 189, 187.) The jury found a gang enhancement allegation was
true–that the murder was for the benefit of a criminal street
gang. (§ 186.22, subd. (b).) Both were sentenced to aggregate
state prison terms of 50 years to life. In 2013, we affirmed their
convictions. (People v. Guzman (July 24, 2013, B232497)
[nonpub. opn.].)
In a habeas proceeding in 2015, the trial court found that
the jury had been instructed on the natural and probable
consequences doctrine, and Guzman’s first degree murder
conviction was not valid. In lieu of retrial, the People accepted a
reduction of Guzman’s conviction to second degree murder. His
sentence was reduced to 40 years to life.
In 2019, Guzman filed a petition for resentencing under
section 1170.95. The trial court issued an order to show cause for
a second-stage section 1170.95 hearing. The parties elected not
to introduce additional evidence and to rely on the trial
transcripts.
The trial court denied the petition. It found, among other
things, that Guzman was guilty of second degree murder because
he “directly aided and abetted the murder committed by the
actual shooter under an implied malice theory.” Guzman was
“aware of the risk to Perez’s life” and he acted “with conscious
disregard of that risk.” Before the shooting, he indicated “there
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would be a gang fight” and he urged a fellow gang member to
bring a knife, showing his “conscious disregard” for life. “These
prefight events frame and highlight [Guzman’s] mindset during
the fight and at the time of the shooting.” He “passed the gun to
the direct shooter immediately before the fatal shots were fired.”
Guzman “intended to aid the shooter.” “[R]ather than seek help,
express concern for the victim’s well-being, or show surprise or
remorse, [Guzman] fled.” “The court is convinced beyond a
reasonable doubt that [Guzman] acted at least with implied
malice when he directly aided and abetted the direct shooter.”
DISCUSSION
Resentencing under Section 1170.95
The origin of section 1170.95 was the passage of Senate Bill
No. 1437 in 2018. (Stats. 2018, ch. 1015, § 4.) Senate Bill No.
1437 “ ‘amend[s] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417.)
A defendant convicted of murder may file a petition under
section 1170.95 alleging he or she “ ‘could not be convicted of first
or second degree murder’ ” because of changes to the law required
by Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38
Cal.App.5th at p. 417.) If the petitioner has made a prima facie
showing that he is entitled to resentencing relief, the trial court
will issue an order to show cause for a second-stage hearing. The
court will then make independent findings on the evidence and
decide whether to resentence the defendant. An appellate court
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reviews those findings for substantial evidence and draws all
reasonable inferences in favor of the trial court’s decision.
(People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-508.)
Direct Aider and Abettor Implied Malice Murder Liability
Senate Bill No. 1437 eliminated liability for second degree
murder based on a natural and probable consequences theory.
Guzman contends the legal theory of direct aider and
abettor implied malice murder is now invalid. He claims the trial
court therefore erred by denying his petition and finding he is
guilty of second degree murder. We disagree.
In People v. Gentile (2020) 10 Cal.5th 830, 850, our
Supreme Court held second degree murder may be based on a
“direct aiding and abetting theory.” “Such a theory requires that
‘the aider and abettor . . . know and share the murderous intent
of the actual perpetrator.’ ” (Ibid.) “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.” ’ ” (Ibid.)
The trial court found the enactment of Senate Bill No. 1437
did not invalidate or eliminate second degree murder liability
based on a direct aider and abettor implied malice murder theory.
The court said, “[N]otwithstanding Senate Bill 1437’s elimination
of natural and probable consequences liability for second degree
murder, an aider and abettor who does not expressly intend to
aid a killing can still be convicted of second degree murder if the
person knows that his or her conduct endangers the life of another
and acts with conscious disregard for life.” (People v. Gentile,
supra, 10 Cal.5th at p. 850, italics added.)
Guzman contends Gentile is no longer valid law. We
disagree. He argues the Legislature enacted Senate Bill No. 775
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which “expanded the scope of section 1170.95 beyond felony
murder and the natural and probable consequences doctrine.” He
claims it invalidates murder convictions “based on any ‘other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime.’ ” (§ 1170.95, italics
added.)
But direct aiding and abetting implied malice murder does
not impute malice “solely” on the defendant’s participation in a
crime. Malice can only be found if the defendant “knows that his
or her conduct endangers the life of another and acts with
conscious disregard for life.” (People v. Gentile, supra, 10 Cal.5th
at p. 850.) Moreover, as the People correctly note, Senate Bill No.
775 did not change the definition of murder from the definition
found in Senate Bill No. 1437. In Gentile, the court noted that
Senate Bill No. 1437 provided that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(Gentile, at p. 84, italics added.) Both Senate Bill Nos. 1437 and
775 have the same imputing malice prohibition. Gentile is
current law. “[T]here is no indication the Legislature intended to
abrogate the concept of aiding and abetting implied malice
murder as mentioned in Gentile.” (People v. Glukhoy (2022) 77
Cal.App.5th 576, 591.)
Substantial Evidence
Guzman contends there is insufficient evidence to support a
finding that he is guilty of second degree murder on a direct aider
and abettor implied malice theory.
“We review the trial court’s factual findings for substantial
evidence.” (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
We draw all reasonable inferences in support of the judgment,
and we do not resolve credibility or evidentiary conflicts. (Ibid.)
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Guzman claims he was a bystander who merely watched a
fight and the shooting.
The People claim Guzman’s analysis of this issue is
incomplete because he cites to a limited portion of the record. We
agree. “In reviewing the trial court’s findings, we analyze the
totality of the circumstances.” (People v. Owens, supra, 78
Cal.App.5th at p. 1023.) “The trial court properly considered all
of the evidence in determining appellant acted with reckless
indifference.” (Id. at p. 1025, italics added.)
Knowing and Reckless Indifference to Human Life
The People claim the trial court could reasonably find
Guzman was a major participant who knew he endangered
Perez’s life and acted with a conscious disregard for life. (People
v. Gentile, supra, 10 Cal.5th at p. 850.) We agree.
Guzman was not a bystander. He coordinated and initiated
a dangerous gang fight with Perez, who was unarmed. He
intended to initiate that fight because of Perez’s insults. Guzman
sent text messages to a fellow gang member, asking him to bring
a knife, and stating, “Come by fool we are going to do something
right now.” He sent a text message to Dennis stating that Perez
“is from Northwest.” Believing that a rival Northwest gang
member was involved, Dennis obtained a semi-automatic pistol.
Guzman’s state of mind shows he intended a violent attack. He
texted his girlfriend stating he was “about to beat some fool right
now.” The trial court properly considered Guzman’s state of mind
before the shooting to find that he intended to aid the shooter at
the time of the shooting. (People v. Owens, supra, 78 Cal.App.5th
at pp. 1023, 1025.) Before Dennis and another West Park
member fought Perez, Dennis handed the gun to Guzman.
Guzman held the gun for his brother, the actual shooter.
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Guzman contends the trial court erred by finding that he
passed the gun to Dennis who used it to kill Perez. The People do
not disagree. They note Dennis went to Guzman and took the
gun that Guzman was holding for Dennis. But this will not
change the result because, as the People note, the trial court
could reasonably infer Guzman “intentionally aided the
perpetrator of the shooting, Dennis, by holding the gun for
safekeeping during the fistfight, and relinquishing possession of
the gun once it was apparent Dennis was losing that fight.”
(Italics added.)
Increased Risk of Death Because of Gang Cultural Factors
The trial court could reasonably infer Guzman’s actions
involved the “risk of death” because they further a violent gang
cultural requirement. (In re Scoggins (2020) 9 Cal.5th 667, 676.)
West Park gang member Luis Ruiz testified West Park gang
members must do “whatever needs to be done for [the] gang,”
including “fighting, stabbing, shooting for the benefit of the
gang.” The alley where the shooting took place was designated as
territory “controlled by West Park.” To be “down” with the gang,
a West Park gang member must make the gang “look good.”
Fighting and “shooting” make the gang “look good.” Other
evidence showed that if a gang member is insulted, “they are
supposed” to “respond violently to address that insult.”
Committing a “violent crime” is the “quickest way to earn
respect” by the gang. Ignoring an insult to a West Park gang
member in gang territory would be a threat to the gang’s
reputation.
Consequently, holding the murder weapon to assist a fellow
West Park gang member fighting a rival is relevant evidence for
aider and abettor liability during a gang attack leading to a
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shooting. (People v. Thompson (2010) 49 Cal.4th 79, 118; People
v. Medina (2009) 46 Cal.4th 913, 924; People v. Mackey (2015)
233 Cal.App.4th 32, 121.) “Reckless indifference” includes
assisting “ ‘another in killing’ ” to “ ‘achieve a distinct aim, even if
the defendant does not specifically desire that death as the
outcome of his actions.’ ” (In re Scoggins, supra, 9 Cal.5th at pp.
676-677, italics added.)
The trial court could reasonably infer the “aim,” shared by
Guzman and Dennis, was to remove Perez as an obstacle to the
gang’s reputation in its territory (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1161, 1169), and, as the jury found, the killing
was for the gang’s benefit. (Ibid.) The court could reasonably
infer Guzman’s act of holding the gun aided and abetted Dennis
and his gang because: 1) it showed the gang’s authority in the
alley and intimidated those who would challenge it; 2) it
prevented Perez from leaving, forced him to fight surrounded by
the gang in its territory; and 3) it allowed Dennis to fight Perez
with the knowledge that Guzman held the superior means to
prevail if he lost the fistfight and thereby achieve the gang’s
violent cultural mandate. The court found Guzman and Dennis
were both “protagonists in the event immediately preceding the
killing.”
“Reckless indifference to human life is ‘ “implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death’ ” (In re Scoggins, supra, 9 Cal.5th at p. 676),
particularly where the defendant increases “the degree of risk to
human life.” (People v. Owens, supra, 78 Cal.App.5th at p. 1025,
italics added.) Guzman increased that risk, consistent with his
gang’s culture that required a violent response, by summoning
fellow gang members for an attack, asking one to bring a knife,
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stating his desire for violence, and holding the gun to assist the
killer. His intent and malice are shown by his statement to his
girlfriend, his motive was revenge, and his actions for his gang’s
benefit “posed obvious and extreme risks of lethal violence.” (Id.
at p. 1024; People v. Samaniego, supra, 172 Cal.App.4th at
p. 1169.)
Here there are multiple aggravating factors that support
the finding of ineligibility for resentencing relief: 1) Guzman
planned and initiated a dangerous gang confrontation; 2) he was
present at the scene; 3) he encouraged a violent attack; 4) he did
nothing to reduce the risk of violence; 5) violence was not an
incidental result, it was the goal; 6) Guzman knew the risk that
fellow gang members would be violent because he asked one to
bring a knife and he held the gun for the killer; 7) he and Dennis
were the “protagonists in the event immediately preceding the
killing”; and 8) after the shooting, Guzman showed conscious
disregard for the victim by not calling for help and fleeing the
scene.
Evidence about the defendant’s conduct after the shooting
is relevant on the issue of the defendant’s intent. (People v.
Owens, supra, 78 Cal.App.5th at pp. 1023, 1025.) The trial court
found Guzman showed no signs of surprise or remorse for the
killing. It could reasonably infer Guzman’s post-shooting conduct
showed Perez’s death was not a result inconsistent with what he
intended.
Guzman had the right and opportunity to present evidence
of any mitigating factors. But he elected to present no evidence
at the hearing on his petition. The evidence is sufficient to
support the findings.
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We have reviewed Guzman’s remaining contentions and we
conclude he has not shown grounds for reversal.
DIPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
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