People v. Aguilera CA2/4 ( 2023 )

Filed 6/27/23 P. v. Aguilera CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B321572
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA150865)
v.
JAVIER ALFREDO AGUILERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Renee F. Korn, Judge. Affirmed.
Ralph H. Goldsen, 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,
William H. Shin and Nicholas J. Webster, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted defendant and appellant Javier Alfredo Aguilera
(defendant) in 2000 of first degree murder, premeditated attempted murder,
and assault with a deadly weapon. This court affirmed the judgment of
conviction in 2001. (People v. Aguilera (Dec. 11, 2001, B144894) [nonpub.
opn.].) In 2020, defendant filed a petition for resentencing under former
Penal Code section 1170.95 (now section 1172.6),1 which permits persons
convicted of murder under a natural and probable consequences theory to
petition the sentencing court to vacate their convictions and resentence them.
(§ 1172.6, subd. (a).) On May 23, 2022, the trial court denied defendant’s
petition after conducting an evidentiary hearing.
We affirm the trial court’s order.
PROCEDURAL BACKGROUND
On May 4, 2000, a jury found defendant guilty of first degree murder
(§ 187, subd. (a), count 1), premeditated attempted murder (§§ 664/187, subd.
(a), count 3), and assault with a deadly weapon (§ 245, subd. (a)(1), count 4).
The jury further found defendant used a firearm in the commission of count
1. The trial court found defendant served two prior prison terms (§ 667.5,
subd. (b)) and sentenced defendant to 25 years to life on count 1, plus 10
years for the firearm enhancement, a consecutive term of life with possibility
of parole for count 3, and two additional years for the prior prison terms.
Count 4 was stayed pursuant to section 654. This court affirmed the
1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no significant change in text. (Stats. 2022, ch. 58, § 10.)
We will refer to the section by its new numbering only. All further statutory
references are to the Penal Code.
2
judgment with minor modifications to the sentence. (People v. Aguilera,
supra, B144894.)
In 2020, defendant filed a petition for resentencing, arguing the jury in
his 2000 trial had been instructed on aiding and abetting murder under the
natural and probable consequence doctrine, entitling him to relief under
section 1172.6.2 Although the jury was not instructed on aider and abettor
culpability or the natural and probable consequences theory on the attempted
murder charge, defendant claimed the prosecutor had presented both
theories of culpability to the jury on the attempted murder charge during
closing argument.
The trial court concluded defendant had made a prima facie case for
relief and issued an order to show cause. After holding an evidentiary
hearing in which the trial court reviewed the available minute orders and
2 The jury was instructed on aiding and abetting murder pursuant to
CALJIC No. 3.02 as follows: “One who aids and abets another in the
commission of a crime or crimes is not only guilty of those crimes, but is also
guilty of any other crime committed by a principal which is a natural and
probable consequence of the crimes originally aided and abetted. [¶] In order
to find the defendant guilty of the crime of murder, as charged in Count One,
you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of
assault with force likely to cause great bodily injury was committed; [¶]
2. That the defendant aided and abetted that crime; [¶] 3. That a co-
principal in that crime committed the crime of murder; and [¶] 4. The crime
of murder was a natural and probable consequence of the commission of the
crime of assault with force likely to cause great bodily injury. [¶] Whether a
consequence is ‘natural and probable’ is an objective test based not on what
the defendant actually intended but on what a person of reasonable and
ordinary prudence would have expected would be likely to occur. The issue is
to be decided in light of all of the circumstances surrounding the incident. A
‘natural consequence’ is one which is within the normal range of outcomes
that may be reasonably expected to occur if nothing unusual has intervened.
‘Probable’ means likely to happen.” The jury was also instructed on direct
aiding and abetting culpability pursuant to CALJIC Nos. 3.00 and 3.01.
3
reporter’s transcripts from defendant’s 2000 trial, the court denied
defendant’s petition, concluding beyond a reasonable doubt that defendant
had aided and abetted the murder and attempted murder with both express
and implied malice.
The trial court thereafter resentenced defendant pursuant to section
1170, subdivision (d), to 25 years to life for count 1, and a consecutive term of
life with possibility of parole for count 3. The court stayed the sentences for
the firearm enhancement, the prior prison term enhancements, and count 4.
On June 9, 2022, defendant filed a notice of appeal from the order
denying his resentencing petition.
FACTUAL BACKGROUND3
The Maravilla Project Boys (MPB), the Rascals Trece Maravilla
(Rascals), and the High Times Stoners (High Times) were affiliated gangs4
allied with one another. The Maravilla gangs were based at the Maravilla
Housing Projects (the Projects) near Belvedere Park in East Los Angeles.
The Arizona Maravilla (Arizona) gang was a rival of the Maravilla
gangs. Until April 1996, the Arizona and Maravilla gangs considered
Belvedere Park as neutral territory. In April 1996, however, Arizona gang
members began using graffiti as part of an effort to claim Belvedere Park as
Arizona gang territory.
3 The relevant facts are taken from the reporter’s transcript of
defendant’s 2000 trial.
4 The MBP, Rascals and High Times gangs are referred to collectively as
the Maravilla gangs.
4
At 7:00 p.m. on April 30, 1996, Ruben Garcia (Ruben)5 and Luis Olmos
(Olmos), both MPB gang members, were playing handball at Belvedere Park
when at least 15 Arizona gang members confronted them. One of the Arizona
gang members accused Ruben and Olmos of crossing out Arizona gang
graffiti, a means of disrespecting the gang. Although Ruben and Olmos
denied doing so, the Arizona group attacked them, beating them before
Ruben and Olmos fled to the Projects. There, they entered the home of
Debbie Arellano (Arellano). Defendant, a Rascals gang member, was present
in the home, along with Maravilla gang members Jose Sandoval (Sandoval),
Alexander Dukes (Dukes), Hector Guillen (Hector), Ralph Guillen (Ralph),
and Ezekiel Ordaz (Ordaz). Arellano and Iris Serrano were also present.
When Ruben and Olmos disclosed what had happened to them,
Sandoval told the others that they should go to Belvedere Park and seek
retribution. Ruben, Olmos, and Hector grabbed knives from Arellano’s
kitchen, and the group ran to the park. Ruben testified at the trial that he
returned to the park intending to hurt and possibly kill Arizona gang
members.
When the group arrived at the park, they saw Arizona gang members
Manuel Chavez (Chavez) and Manuel Garcia (Garcia) and attacked them.
Ruben testified that he and Dukes beat Garcia with their fists. Ruben saw
Olmos stab Chavez while Hector stood nearby with a knife in his hand.
Chavez fell to his knees while trying to protect his face and chest. Defendant
then walked over and shot Chavez in the head with a small caliber chrome
semiautomatic handgun. Defendant was less than two feet away from
5 Because Ruben Garcia and one of the victims, Manuel Garcia, share
the same surname, we refer to Ruben Garcia by his first name to avoid
confusion.
5
Chavez when he fired his gun. Ruben saw Dukes shoot at Chavez with a
larger caliber handgun from approximately seven feet away. Chavez
sustained four stab wounds, three fatal. Chavez also suffered one non-fatal
gunshot wound under his right eye that did not strike any vital organs. The
forensic evidence showed that he had been shot from no more than two feet
away. Chavez died as a result of the stab wounds.
After the shots were fired, the entire group fled from the park and
returned to the Projects. The perpetrators met in the parking lot, where
Olmos and Hector handed Ruben their knives and the shirt Olmos had been
wearing, which was covered in blood. Ruben wrapped the two knives, along
with the knife he had taken to the park, in the bloody shirt and gave them to
Marcelo Rodriguez, who said he would get rid of them. Defendant and Dukes
then gave Ruben their guns and asked him to get rid of them. Ruben gave
the guns to Sandoval with instructions to dispose of them.
Ordaz was a MPB and High Time gang member and went to Belvedere
Park with other Maravilla gang members on the day of the crimes. He
testified at trial as a reluctant witness and denied seeing anyone shoot
Chavez. Ordaz’s testimony was impeached with statements he gave to the
police, as well as his testimony in a previous trial involving other
perpetrators. Ordaz told police officers that he, Ruben, Hector, and Dukes
beat Garcia. A couple of feet away from him, Ordaz saw defendant, Olmos,
and Sandoval beating Chavez. Ordaz then saw defendant shoot Chavez with
a handgun.
Garcia testified at the trial that he and Chavez were at Belvedere Park
on April 30, 1996. Garcia knew that an altercation between Arizona and
Maravilla gang members had occurred earlier that day. He told Chavez that
they should leave the park before the Maravilla gang members returned.
6
Garcia and Chavez did not have time to leave because multiple Maravilla
gang members soon surrounded them. Garcia was hit in the back of the
head. He fell forward onto the ground and was kicked three times. Multiple
people were beating him, and he lost consciousness.
Iris Serrano also testified at trial as a reluctant witness. She denied
knowing defendant and denied knowing anything about the crimes. She was
impeached with a signed statement she gave to the police. In her written
statement, Serrano stated she was present in Arellano’s apartment when
defendant and Dukes returned from the park after the crimes, covered in
blood. Defendant washed himself in Arellano’s kitchen sink.
Gang expert Anthony Rivera testified that he was familiar with the
gangs in the Maravilla Projects. He stated that the MPB, Rascals and High
Time gang members all got along, and that he considered each of those gangs
as the same when investigating crimes. Rivera further testified that there
was tension between the Maravilla and Arizona gangs in April 1996.
CONTENTIONS ON APPEAL
Defendant raises the following contentions on appeal:
1. De novo review applies to the trial court’s denial of defendant’s
resentencing petition.
2. The trial court failed to identify specific conduct by defendant that
aided and abetted Chavez’s murder.
3. There was insufficient evidence that defendant aided and abetted
Garcia’s attempted murder.
4. An aider and abettor cannot be held culpable for implied malice
murder.
7
5. The trial court had the authority to reduce defendant’s first degree
murder conviction to second degree murder and erred by denying defendant’s
request to do so.
DISCUSSION
I. Resentencing Under Section 1170.95
The Legislature enacted Senate Bill No. 1437 (SB 1437), which became
effective on January 1, 2019, “to amend the felony murder rule and the
natural and probable consequences doctrine,[6] 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.” (Stats.
2018, ch. 1015, § 1, subd. (f).) SB 1437 amended section 188, which defines
malice, and section 189, which defines the degrees of murder, to address
felony-murder liability. Section 188 now requires, when the felony-murder
rule does not apply, that a principal in the crime of murder “shall act with
malice aforethought” and “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3); People v.
Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) With one exception not
applicable here,7 SB 1437 effectively eliminated murder convictions premised
on a theory of imputed malice—that is, any theory by which a person can be
convicted of murder for a killing committed by someone else, such as felony
6 Under the natural and probable consequences doctrine, an aider and
abettor of criminal conduct is guilty of not only the intended crime, but also
“for any other offense that was a ‘natural and probable consequence’ of the
crime aided and abetted.” (People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu).)
7 That exception is set forth in section 189, subdivision (f), which applies
to the killing of a police officer.
8
murder or the natural and probable consequences doctrine—unless the
prosecutor also proves that the nonkiller defendant personally acted with the
intent to kill or was a major participant who acted with reckless disregard to
human life. (§§ 188, subd. (a)(3) & 189, subd. (e).)
SB 1437 also added what is now section 1172.6, providing a procedure
by which defendants whose cases are final can seek retroactive relief by
petitioning the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1172.6, subd. (a).) The statute permits persons
convicted of felony murder or murder under a natural and probable
consequences theory to petition for relief. (Stats. 2018, ch. 1015, § 4, subd.
(a).) Effective January 1, 2022, the Legislature expanded the scope of the
petitioning procedure to allow persons convicted of attempted murder under
the natural and probable consequences doctrine also to petition for relief.
(Stats. 2021, ch. 551, § 2; § 1172.6, subd. (a); People v. Saibu (2022) 81
Cal.App.5th 709, 747.)
If a petitioner makes a prima facie showing of entitlement to relief, the
trial court must issue an order to show cause. (§ 1172.6, subd. (c).) If the
trial court determines the petitioner has made a prima facie showing for
relief and issues an order to show cause, the court must hold a hearing “to
determine whether to vacate the murder . . . conviction and to recall the
sentence and resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.” (Former
§ 1172.6, subd. (d)(1).) At the hearing, the parties may rely on the record of
conviction or present “new or additional evidence” to support their positions,
and “the burden of proof shall be on the prosecution to prove, beyond a
9
reasonable doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended.” (§ 1172.6, subd. (d)(3).)
II. Standard of Review
A. Section 1172.6 Petition
Citing People v. Vivar (2021) 11 Cal.5th 510 (Vivar) and In re Cudjo
(1999) 20 Cal.4th 673 (Cudjo), defendant argues that because the trial court’s
adjudication of his resentencing petition was made on a “cold” record, i.e.,
based exclusively on the reporter’s transcript of defendant’s 2000 trial, we
should independently review the denial of his petition. We disagree. Neither
Vivar nor Cudjo addressed appellate review of a petition under section
1172.6. Appellate courts that have done so have applied the substantial
evidence standard. (People v. Oliver (2023) 90 Cal.App.5th 466; People v.
Clements (2022) 75 Cal.App.5th 276, 298 (Clements); People v. Sifuentes
(2022) 83 Cal.App.5th 217, 232–233; People v. Mitchell (2022) 81 Cal.App.5th
575, 590–591; People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) As the
court in Clements observed, an appellate court’s review of a section 1172.6
petition “is different from the trial judge’s job in deciding the petition. While
the trial judge must review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all under the
reasonable doubt standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a rational
fact finder’s findings beyond a reasonable doubt.” (Clements, supra, 75
Cal.App.5th at p. 298.)
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B. Trial Court’s Authority under Section 1172.6
We review de novo appellant’s contention that section 1172.6 should be
construed to authorize the trial court to reduce defendant’s first degree
murder conviction to second degree murder. (People v. Ramirez (2019) 41
Cal.App.5th 923, 931 [construction of a statute is a question of law subject to
de novo review on appeal].)
III. Aider and Abettor Liability
“A person who aids and abets the commission of a crime is culpable as a
principal in that crime. (§ 31.) Aiding and abetting is not a separate offense
but a form of derivative liability for the underlying crime.” (Gentile, supra,
10 Cal.5th at p. 843.) Such derivative liability results from an act by the
perpetrator to which the aider and abettor contributed. (People v. Prettyman
(1996) 14 Cal.4th 248, 259.)
“[A] person aids and abets the commission of a crime when he or she,
acting with (1) knowledge of the unlawful purpose of the perpetrator; and
(2) the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561 (Beeman).) “[A]ider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by
the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the
direct perpetrator’s unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the
aider and abettor that in fact assists the achievement of the crime.” (People
v. Perez (2005) 35 Cal.4th 1219, 1225.) As to the mens rea element, the
11
defendant must not only know the direct perpetrator’s intent but also share
that intent. (Beeman, supra, 35 Cal.3d at p. 560.)
Aiding and abetting may be shown by circumstantial evidence. It is
well-settled that a defendant’s presence at the scene of the crime and failure
to prevent it, companionship and conduct before and after the offense,
including flight, are relevant to determining whether the defendant aided
and abetted in the commission of the crime. (People v. Lara (2017) 9
Cal.App.5th 296, 322; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
A. Substantial Evidence that Defendant Aided and Abetted Chavez’s
Murder
First degree murder, as defined in section 189, includes any willful,
deliberate, and premeditated killing. (§ 189, subd. (a).) Murder requires
malice aforethought, which can be express or implied. (Gentile, supra, 10
Cal.5th at p. 844.) Malice is express when there is a manifest intent to kill.
(§ 188, subd. (a)(1).) 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.) Malice is
implied when someone kills with “no considerable provocation . . . or when
the circumstances attending the killing show an abandoned and malignant
heart.” (§ 188, subd. (a)(2).) Implied malice murder requires knowledge that
conduct endangers the life of another and a conscious disregard for life.
(People v. Chun (2009) 45 Cal.4th 1172, 1181.)
SB 1437 “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.) “One who directly aids and abets
12
another who commits murder is thus liable for murder under the new law
just as he or she was liable under the old law.” (Id. at p. 596.) For a
defendant to be liable for first degree murder as a direct aider and abettor,
“the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or
facilitating its commission.” (Chiu, supra, 59 Cal.4th at p. 167.)
“[W]hen a person, with the mental state necessary for an aider and
abettor, helps or induces another to kill, that person’s guilt is determined by
the combined acts of all the participants as well as that person’s own mens
rea.” (People v. McCoy (2001) 25 Cal.4th 1111, 1122 (McCoy).) This is
because “the dividing line between the actual perpetrator and the aider and
abettor is often blurred. It is often an oversimplification to describe one
person as the actual perpetrator and the other as the aider and abettor.
When two or more persons commit a crime together, both may act in part as
the actual perpetrator and in part as the aider and abettor of the other, who
also acts in part as an actual perpetrator.” (Id. at p. 1120.) A person who
“‘chooses to become a part of the criminal activity of another’” accordingly
“‘says in essence, “your acts are my acts . . . .”’ [Citations.]” (Id. at p. 1118.)
Defendant contends the trial court erred by not identifying the specific
acts he committed to assist the perpetrators in murdering Chavez.8 We
disagree. The trial court’s ruling identifies several specific acts by defendant
that assisted in the murder. Defendant and the perpetrators, all affiliated
Maravilla gang members who were hostile to the Arizona gang, went to
8 Defendant does not challenge the trial court’s finding that he acted
with express malice in aiding and abetting Chavez’s murder, conceding that
his shooting Chavez in the head at close range would support that finding.
13
Belvedere Park to exact violent revenge on rival Arizona gang members.
Before leaving for the park, defendant armed himself with a .25 caliber
firearm and the perpetrators armed themselves with knives. When the group
arrived at Belvedere Park, they encountered Arizona gang members Chavez
and Garcia and immediately attacked them. Defendant participated in
beating Chavez. Olmos stabbed Chavez, who fell to his knees. Defendant
then shot Chavez in the head from approximately two feet away with a .25
caliber semiautomatic handgun. Forensic evidence and eyewitness testimony
confirmed that Chavez was still alive when defendant shot him, and that the
shot was fired from no more than two feet. Investigators recovered a .25
caliber bullet from Chavez’s body after his death.
After shooting Chavez, defendant and the other perpetrators fled. They
met in a nearby parking lot, where they collectively arranged to dispose of
their weapons. Defendant then went to Arellano’s apartment, where he
washed to remove blood from his body. Substantial evidence supports the
trial court’s finding that defendant’s conduct before, during, and after the
crimes made him culpable as an aider and abettor of murder. (Beeman,
supra, 35 Cal.3d at p. 561.)
That defendant did not participate in stabbing Chavez, and that
Chavez was fatally wounded when defendant shot him, does not preclude a
finding that defendant aided and abetted Chavez’s murder. Defendant had
the requisite intent to kill, and his culpability as an aider and abettor of
murder is determined by the combined acts of all the perpetrators. (McCoy,
supra, 25 Cal.4th at p. 1122.) People v. Pulido (1997) 15 Cal.4th 713, cited by
defendant in a footnote as support for his claim that he cannot be held
culpable for Chavez’s murder, is factually distinguishable and inapposite.
The perpetrator in Pulido, acting alone, killed a person during commission of
14
a robbery. An accomplice thereafter aided and abetted the robbery by
transporting and securing the stolen property. (Id. at p. 716.) The court in
Pulido held that participation in the robbery did not subject the accomplice to
murder liability because the killer and accomplice were not jointly engaged in
a robbery at the time of the killing. (Id. at p. 716.) Here, in contrast,
defendant and the perpetrators were jointly engaged in inflicting harm on
Chavez with the intent to kill him.
The record does not support defendant’s claim that he “came along
after Chavez had already been killed.” Defendant was armed and present
throughout the crime. Defendant actively participated in beating Chavez,
thereby disabling him and preventing him from fleeing. After Chavez had
been stabbed but was still alive, defendant walked over and shot him in the
head at close range. “‘The act of firing toward a victim at a close, but not
point blank, range “in a manner that could have inflicted a mortal wound had
the bullet been on target is sufficient to support an inference of intent to kill
. . . .”’” (See People v. Smith, supra, 37 Cal.4th at p. 741.)
Substantial evidence supports the trial court’s finding that defendant
was guilty of aiding and abetting Chavez’s murder.
B. Substantial Evidence that Defendant Aided and Abetted the
Attempted Murder of Garcia
Attempted murder requires “the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.” (People v. Booker (2011) 51 Cal.4th 141, 177–178.) An aider and
abettor of attempted murder gives aid or encouragement to the perpetrator
“with knowledge of the criminal purpose of the perpetrator and with an
15
intent or purpose either of committing, or of encouraging or facilitating
commission of, the offense.” (Beeman, supra, 35 Cal.3d at p. 560.)
As we concluded in defendant’s previous appeal (People v. Aguilera,
supra, No. B144894), there is substantial evidence that the perpetrators
intended to kill Garcia and that defendant shared that intent. Ruben’s
testimony that he went to the park to exact revenge on Arizona gang
members and possibly kill someone; Ruben’s testimony that he and others
armed themselves with knives; and defendant’s arming himself with a
semiautomatic handgun evidence an intent to kill. Although Ruben and the
others used their fists against Garcia instead of their weapons, they beat
Garcia with sufficient force to cause him to lose consciousness.
Substantial evidence also supports the trial court’s finding that
defendant’s conduct aided and abetted Garcia’s attempted murder. Although
defendant argues his “mere presence” at the scene of the crime is not
sufficient to make him an aider and abettor, his presence is a circumstance
that the trier of fact can consider in determining his guilt or innocence.
(People v. Durham (1969) 70 Cal.2d 171, 181.) The circumstances here show
defendant was not merely present at the scene of the crime, but that he also
provided companionship, encouragement, and support to the perpetrators
before, during, and after the attempted murder. Defendant armed himself
with a semiautomatic handgun beforehand, and others in the group armed
themselves with kitchen knives. When defendant and his companions
encountered Garcia and Chavez, the group immediately attacked them.
Defendant participated in beating Chavez. Olmos then stabbed him. At the
same time, only two feet away, Ruben, Ordaz, Sandoval, Dukes, and Hector
beat Garcia to unconsciousness. After defendant shot Chavez, he fled with
the rest of the group. In a nearby parking lot, defendant and the other
16
perpetrators disposed of the weapons they had used to commit the crimes.
Defendant and Dukes washed themselves in Arellano’s home to remove blood
from their bodies.
There was also evidence that defendant and the perpetrators were
acting in unison as affiliated gang members. Although “gang evidence
standing alone cannot prove a defendant is an aider and abettor to a crime”
(People v. Guillen (2014) 227 Cal.App.4th 934, 992), the expert and witness
testimony about the Maravilla and Arizona gangs strengthened the
inferences arising from other specific evidence concerning defendant’s
participation in the crimes. (See People v. Nguyen (2015) 61 Cal.4th 1015,
1055 [expert’s testimony that gang members in Orange County would drive
around “‘hunting for their rivals,’” that the defendant’s gang was in a state of
war with a rival gang, and the defendant’s presence and conduct in a car at
time of shooting, bolstered evidence of the defendant’s involvement the
crime].) Gang expert Anthony Rivera testified that the Maravilla gangs,
including the Rascals gang to which defendant belonged, cooperated with one
another and worked in unison. Rivera further testified that the Maravilla
gangs were in conflict with the Arizona gang at the time of the crimes.
Rivera’s testimony was corroborated by Ruben and Ordaz, who confirmed
that defendant belonged to the Rascals gang, was affiliated with the
perpetrators’ respective gangs, and that the affiliated Maravilla gangs were
in conflict with the Arizonas. Ruben testified that he and the other
perpetrators went to Belvedere Park to exact violent retribution for the
savage beating Arizona gang members had inflicted on him. The evidence is
sufficient to establish defendant’s culpability as an aider and abettor of
attempted murder.
17
C. Aiding and Abetting Implied Malice Murder
Defendant forfeited his appellate challenge to the trial court’s finding
he participated in Chavez’s murder and Garcia’s attempted murder with
implied malice by failing to raise the claim in the trial court below. (People v.
Riggs (2008) 44 Cal.4th 248, 292.) Defendant concedes he is unable to find
any case authority to support an argument against such forfeiture.
Defendant argues his challenge raises a pure question of law and that
we should exercise our discretion to consider it notwithstanding his forfeiture
of the issue. Although an appellate court has discretion to consider an issue
not raised in the trial court to the extent it presents a pure question of law or
involves undisputed facts (People v. Young (2017) 17 Cal.App.5th 451, 463),
we decline to do so here. As defendant notes, multiple Courts of Appeal have
upheld the denial of resentencing petitions based on findings by the trial
court that the petitioner acted with implied malice in aiding and abetting a
murder. (People v. Vargas (2022) 84 Cal.App.5th 943, 953–954; People v.
Schell (2022) 84 Cal.App.5th 437, 443; People v. Vizcarra (2022) 84
Cal.App.5th 377, 387–393; People v. Cortes (2022) 75 Cal.App.5th 198, 205.)
We see no reason to depart from these appellate courts’ holdings.
IV. Reduction of Conviction to Second Degree Murder
We reject defendant’s contention that section 1172.6 may be construed
to authorize the trial court to reduce defendant’s first degree murder
conviction to second degree murder. Nothing in the language of the statute
authorizes the trial court to do so. The relief available under section 1172.6
is specific and narrowly circumscribed. Section 1172.6, subdivision (d)(3)
states in part: “If the prosecution fails to sustain its burden of proof [that the
petitioner is guilty of murder or attempted murder under California law as
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amended SB 1437], the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and the petitioner
shall be resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
That language is clear and unambiguous, and further statutory construction
is unnecessary. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007; People v.
Batt (1994) 24 Cal.App.4th 1044, 1048.)
The relief defendant seeks is potentially available to him in a writ of
habeas corpus. (In re Martinez (2017) 3 Cal.5th 1216, 1218, 1221–1222
[murder conviction may be collaterally attacked for error under Chiu, supra,59 Cal.4th 155 through habeas petition].) Defendant filed a separate petition
for a writ of habeas corpus in 2022, arguing that this court’s 2001 opinion
affirming his convictions compels a grant of relief under Chiu, supra, 59
Cal.4th 155. We address defendant’s claim that he is eligible to have his
conviction for first degree murder reduced to second degree murder in a
separate order.
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DISPOSITION
The order denying the petition for recall of sentence and resentencing
under section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.*
WE CONCUR:
CURREY, Acting P. J.
COLLINS, J.
*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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