Opinion
G062063
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. EDGAR FLORES, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 15CF2500 Kimberly Menninger, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Edgar Flores challenges the trial court's denial of his petition for resentencing under Penal Code section 1172.6, through which he sought to vacate his 2018 conviction for attempted murder. He contends the evidence did not support the court's finding that he was guilty of attempted murder under current law beyond a reasonable doubt. Alternatively, he claims the court erred by failing to consider his youth at the time of the offense when it evaluated the evidence. We affirm.
Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6, without substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code.
FACTS
I. Flores's Guilty Plea and Sentence
In July 2018, Flores pleaded guilty to attempted murder and street terrorism, both committed on or about November 2, 2015, and being an accessory after the fact to murder, committed on or about October 12, 2015. He also admitted he committed the attempted murder and street terrorism offenses in furtherance of criminal street gang activity. The trial court sentenced Flores to a total of 15 years in prison.
II. Evidence at the Preliminary Hearing
Flores, who was 16 years old at the time of the events in question, was a member of the Lopers criminal street gang. On the evening of November 2, 2015, Flores and three fellow gang members entered a rival gang's territory in search of rival gang members. Two of the other Lopers members were armed-one had a nine-millimeter handgun and the other a sawed-off shotgun. As the four men were walking through an alleyway in the heart of the rival gang's territory, two detectives with the Santa Ana Police Department's gang unit happened to drive by. When the men saw the detectives, they scattered, leaving the weapons behind. The detectives pursued and detained Flores and two of the others.
At the preliminary hearing, Detective Matthew Clear testified about his interview with Flores. According to Clear, Flores reported he and his fellow gang member had gone to "scope out" the rival gang's territory. When officers asked Flores if the group had gone "to hunt [rival] gang members," Flores agreed they had. Clear testified that the word "hunt" typically described gang members going to a rival gang's neighborhood "and look[ing] to assault or shoot, kill a rival gang member." Flores told Clear he was there for "backup." According to Clear, "backup in the gang subculture means to assist the primary or secondary aggressors in any way." Flores admitted to Clear that "if one of the other members had been hit, he would have picked up the gun . . . and used it." He also admitted he was willing to do "anything by all means possible" to gain respect from fellow gang members and rivals.
Following Flores's interview with Clear about the November 2, 2015, incident, Flores spoke with another officer regarding a murder that occurred a few weeks earlier, on October 12. On that night, Flores and several other Lopers gang members drove through rival gang territory looking for rival gang members. Flores served as the "backup." After the group identified rivals, one of Flores's fellow gang members shot and killed one of them. Flores told the interviewing officer he wished he had been the shooter because the victim was "an enemy."
III. Flores's Petition Under Section 1172.6
In January 2022, Flores filed a petition for relief under section 1172.6. The trial court found that he stated a prima facie case for relief and issued an order to show cause. The court held an evidentiary hearing in September 2022. At the hearing, the court admitted portions of the preliminary hearing transcript, among other documents. The prosecution also called one witness, whose testimony is not pertinent to this appeal.
In his in propria persona filing, styled as a "motion to modify sentence under [section 1172.6]," Flores did not actually seek relief under that provision. (Capitalization omitted.) The trial court and the prosecution nevertheless treated the filing as a petition under section 1172.6 for relief from his conviction for attempted murder, and the court appointed counsel for Flores.
Following the hearing, the trial court denied Flores's petition in a 14-page written ruling. The court found beyond a reasonable doubt that Flores was guilty of attempted murder under current California law as a direct aider and abettor. It found that he: (1) intended to kill rival gang members "by 'hunting' and 'scoping out' rival gang members in their territory with fellow gang members who were armed with a rifle and a pistol"; (2) "had knowledge of the unlawful purpose of the perpetrators and shared this same purpose"; (3) intended to "facilitat[e] or encourag[e] the commission of the hunting, shooting and 'scoping out' of rival gang members"; and (4) aided and abetted the commission of attempted murder by accompanying his fellow gang members into rival gang territory and "committing to be the back-up." Flores timely appealed.
DISCUSSION
Flores argues that the trial court erred by denying his resentencing petition because the evidence did not support a finding that he knew his fellow gang members intended to kill and that he intended to assist them in doing so. Alternatively, he contends the court erred by failing to consider his youth in making these findings.
As explained below, we conclude the evidence supported the trial court's findings. We further conclude that Flores forfeited his assertion that the court was required to consider his youth.
I. Sufficiency of the Evidence
A. Governing Law
Effective January 1, 2022, a defendant convicted of attempted murder may petition to have the conviction vacated if: (1) the charging document permitted the prosecution to proceed under the "natural and probable consequences" doctrine; (2) the defendant accepted a plea offer instead of going to trial; and (3) the defendant could not now be convicted of attempted murder "because of changes to Section 188 or 189 made effective January 1, 2019," which eliminated the "natural and probable consequences" theory of attempted murder liability. (§ 1172.6, subd. (a); as amended by Stats. 2021, ch. 551, § 2.)
If the petition states a prima facie case for relief, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the conviction. (§ 1172.6, subds. (c), (d)(1).) At that hearing, the prosecution has the burden to prove beyond a reasonable doubt that the defendant is guilty of attempted murder under California law as amended by the changes to section 188 or 189. (§ 1172.6, subd. (d)(3).) The prosecution therefore has to prove the defendant personally harbored an intent to kill. (People v. Das (2023) 96 Cal.App.5th 954, 960.) And if the prosecution contends the defendant is guilty as an aider and abettor, it must also prove that the defendant "'aid[ed] the commission of th[e] offense with "knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends."' [Citation.]" (People v. Curiel (2023) 15 Cal.5th 433, 463.)
We review the trial court's denial of a section 1172.6 petition after an evidentiary hearing for substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) Under this standard, "we view the evidence in the light most favorable to the [ruling] and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) "We presume in support of the [order] the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Citing People v. Vivar (2021) 11 Cal.5th 510, Flores asserts we should review the trial court's decision under an independent standard of review because it was based largely on the documentary record of his original trial. We disagree. Vivar addressed the standard of review of a trial court's prejudice determination in a motion for relief under section 1473.7. (Vivar, supra, at p. 524.) Every appellate court to have considered the issue has concluded that Vivar does not apply to petitions under section 1172.6 and that the substantial evidence standard applies even to review of a cold record in these proceedings. (People v. Njoku (2023) 95 Cal.App.5th 27, 41-43; People v. Werntz (2023) 90 Cal.App.5th 1093, 1109-1110; People v. Oliver (2023) 90 Cal.App.5th 466, 479-480; People v. Sifuentes (2022) 83 Cal.App.5th 217, 232-233; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591; People v. Clements (2022) 75 Cal.App.5th 276, 298, 302.) We agree with these courts and apply the substantial evidence standard.
B. Analysis
Ample evidence supported the trial court's findings that Flores both knew that his fellow gang members intended to commit murder and intended to help them do so. Flores's statements to police after he was apprehended described a pre-planned gang operation. He and his fellow gang members, two of them armed, entered a rival gang's territory to "scope [it] out" and "hunt" members of the rival gang. Flores served as "backup," meaning he was there to assist the attackers. If one of the attackers had been hit, Flores was prepared to "pick[] up the gun" and "use[] it." He was willing to do "anything" to gain respect.
Flores contends there was no evidence he used the word "hunt" to describe his gang's quest in a rival gang's territory. He asserts that Detective Clear "paraphrased [his] statement . . . to incorporate the term." Flores also maintains the word "hunt" was ambiguous and did not necessarily mean to attempt to kill rival gang members-Clear testified it could also mean an attempt "to assault" a rival gang member. We are unpersuaded.
First, the record does not suggest Clear paraphrased Flores when using the word "hunt." Rather, Clear testified that the officers questioning Flores used that word and that Flores agreed his task was "to hunt [rival] gang members." Second, while in the abstract the word "hunt" could also refer to pursuing with intent to assault, the trial court was entitled to conclude that to "hunt" rival gang members with a nine-millimeter handgun and a sawed-off shotgun meant to try to kill them.
Flores points to CALCRIM No. 224, which instructs that when relying on circumstantial evidence to find a defendant guilty, the factfinder "'must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.'" But it is for the factfinder-not for this court-to decide whether circumstantial evidence gives rise to a reasonable interpretation that suggests innocence. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 ["Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant's guilt beyond a reasonable doubt"].)
If the trial court still had any doubt that Flores was aware of his fellow gang members' murderous intent and intended to assist them in achieving it, the prior incident would have satisfied that doubt. Just a few weeks earlier, Flores and his gang followed a similar plan, with greater success. He and several other Lopers members entered rival gang territory in a search for targets. Then, too, Flores acted as the "backup." Upon identifying rival gang members, one of Flores's fellow gang members shot and killed one of them. Although Flores did not shoot the victim, he later told police he wished he had been the shooter, explaining that the victim was "an enemy." Given this evidence, the court was entitled to find that when Flores travelled with his fellow gang members to "hunt" rival gang members a few weeks later, he knew they intended to repeat their prior successful operation and he intended to help them do so.
In attempting to bolster his position that the evidence was insufficient to support the trial court's findings, Flores misrepresents the holding of Reyes, supra, 14 Cal.5th 981. There, our Supreme Court addressed a section 1172.6 petition by a defendant convicted of second degree murder. (Reyes, supra, at p. 984.) Flores wrongly claims the Supreme Court concluded there was insufficient evidence that the defendant was guilty under a theory of direct aiding and abetting an implied malice murder. In fact, the Supreme Court concluded only that the trial court had erred by failing to consider whether the defendant had the necessary "knowledge and intent with regard to the direct perpetrator's life endangering act." (Id. at p. 991.) It therefore remanded for the trial court to conduct the necessary inquiry. (Id. at p. 992.) Here, the trial court found that Flores had the necessary knowledge and intent regarding the direct perpetrators' attempt to kill rival gang members.
II. Consideration of Flores's Youth
Flores contends the trial court erred by failing to consider his youth at the time of the offense in finding that he intended to assist his fellow gang members kill rivals. In support, he cites cases holding that courts must consider defendants' youth in determining whether they were major participants acting with reckless indifference to human life for purposes of felony murder. (E.g., In re Moore (2021) 68 Cal.App.5th 434, 454; People v. Harris (2021) 60 Cal.App.5th 939, 960.) Those cases reasoned that youths are often unable to appreciate the danger posed by various actions and circumstances. (E.g., In re Moore, supra, at p. 454 ["Moore, as a 16 year old, lacked '"the experience, perspective, and judgment"' to adequately appreciate the risk of death posed by his criminal activities"]; People v. Harris, supra, at p. 960 [given defendant's youth at time of crime, it was "far from clear that [he] was actually aware 'of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants'"].)
Flores never asked the trial court to consider his youth in determining whether he had the necessary knowledge and intent. He therefore forfeited the contention he seeks to raise on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435 ["A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct"].) Flores asserts we should find no forfeiture because "the appellate decisions on the topic of youth and culpability are recent and evolving." Yet two of the cases he relies on-In re Moore and People v. Harris-were published long before his September 2022 evidentiary hearing.
Moreover, assuming the trial court was required to consider Flores's youth and did not do so, Flores has not shown that its failure to do so was prejudicial. (People v. Coley (1997) 52 Cal.App.4th 964, 972 [appellant has burden to show error and resulting prejudice].) After playing a supporting role in his gang's killing of a rival gang member, Flores said he wished he had been the shooter. This expression of approval and regret that he had not killed the victim himself strongly tended to negate any suggestion that he did not appreciate his associates' intent to kill when he embarked with them on yet another mission to hunt for rival gang members. Flores does not explain how his claimed inability to appreciate risks would have affected the assessment of his mental state under these circumstances. Accordingly, he cannot establish reversible error.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J. MOTOIKE, J.