Opinion
G059153
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA MARIE TRIVIZO, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB051357-1) OPINION Appeal from a postjudgment order of the Superior Court of San Bernardino County, Arthur Harrison, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Yolanda Marie Trivizo appeals from the denial of her petition for resentencing under Penal Code section 1170.95. In 2007, she was convicted, along with Daniel Olguin and Jose Ralph Marquez, of first degree felony murder (§§ 187, subd. (a), 189), torture (§ 206), and false imprisonment by violence (§ 236). We affirmed the judgment in an unpublished opinion. (People v. Olguin (May 28, 2009, G040196, G040418) [nonpub. opn.] (Olguin).)
All further statutory references are to the Penal Code unless otherwise stated.
Defendant petitioned for resentencing following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which, among other things, amended the felony-murder rule "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).) The court held a hearing on defendant's petition, where she was represented by counsel. After the court indicated "the facts of the case . . . need consideration" both parties submitted on their briefs, which included our unpublished opinion from defendant's direct appeal. The court denied defendant's petition, concluding she was a major participant in the torture and murder of the victim and therefore was not entitled to relief under section 1170.95.
On appeal, defendant raises three contentions. First, she argues Senate Bill 1437 is constitutional. The Attorney General agrees, as do we. (See People v. Cruz (2020) 46 Cal.App.5th 740, 747 [concluding Senate Bill 1437 is constitutional because it does not amend voter approved initiatives]; People v. Solis (2020) 46 Cal.App.5th 762, 769 [same].) This contention requires no further discussion.
Second, defendant contends the court's denial of her petition based on section 189, subdivision (e)(3) was erroneous because this paragraph does not apply to felony murder where the predicate crime is torture. Third, defendant asserts the court erred in denying her petition because "there was no evidence" (capitalization and bold omitted) she was a major participant acting with reckless indifference to human life as required by section 189, subdivision (e)(3). We reject both contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The facts concerning the offense are taken from our unpublished opinion in defendant's prior appeal. (Olguin, supra, G040196, G040418.)
The Murder of Sean Rounsville
"Trivizo and Steven Martin rented rooms in a house in San Bernardino. Marquez visited often because Trivizo was his girlfriend. Olguin lived across the street. Defendants and Martin smoked methamphetamine regularly, mostly in the attached garage, which had access through the kitchen and stored a race car.
"One morning, 22-year-old Sean Rounsville walked by the house. Rounsville, a longtime methamphetamine user, was thin, standing five-feet eleven inches tall and weighing no more than 135 pounds. He was a diabetic who had to take insulin twice a day with his meals; if he did not take his insulin shortly after a meal, the situation became "fairly serious" and he could get low blood pressure and possibly insulin shock. Over the years, he had been hospitalized about four times for diabetic shock when he failed to take his insulin.
"Martin saw Rounsville and went inside to inform Trivizo who had previously told him 'she had a problem with . . . Rounsville and . . . wanted to deal with it.' About 10 minutes later, Marquez accompanied Rounsville into the garage. Olguin, who was bigger and heavier than Rounsville, walked into the garage, said something to him and then punched him in the face without provocation. In the house with Trivizo, Martin could hear Rounsville screaming, 'Stop hitting me.'
"Martin said to Trivizo, 'I wonder why they are doing that' but she seemed to know what was going on. She told him Rounsville had previously shot at her and her ex-boyfriend as they were standing in the front of the house and that she had called Olguin to come over to the house to 'handle the problem for her.'
"After about 15 minutes, Olguin came into the house and asked for some duct tape. Rounsville was lying on the ground with Marquez standing over him. Martin handed the duct tape to Olguin, who returned to the garage and closed the door.
"At one point, Marquez showed Martin and Trivizo a video on his cell phone displaying Marquez and Olguin hitting and kicking Rounsville and burning him with a cigarette. Marquez had a grin on his face as he showed them and was amused by it. He held the video up like a trophy of what they had done.
"About 20-25 minutes later, Olguin asked Martin to watch Rounsville. When Martin walked into the garage, he saw Rounsville inside the race car on the driver's side with his arms duct-taped around the window and his head duct-taped to the seat. Martin could not tell if he was conscious. Rounsville looked like he had been beaten, with his eyes swollen shut and his whole face bloody and swollen.
"Marquez and Olguin gave Martin a gun and told him to watch Rounsville while they were gone. While Martin and Trivizo waited, Rounsville began to move and make noise so Martin hit him in the back of the head and told him to be quiet. He did that each time Rounsville began making noise.
"After about 4 or 5 hours, Martin and Trivizo began worrying Marquez and Olguin would not return and Trivizo said if that happened they needed to find a way to get rid of Rounsville. Rounsville asked Martin "why they were doing this." Martin told him to cooperate and they would let him go.
"Martin discovered Rounsville was diabetic and Trivizo told him Rounsville needed a needle to take an insulin shot. Martin had Trivizo get honey buns because he thought Rounsville was low on sugar and Martin untied Rounsville's hands so he could eat. Blood was coming from Rounsville's forehead and one of his eyes and was all over his face. Martin also gave him a Sprite to drink.
"Trivizo said they needed to find a way to get rid of him and suggested feeding him bullets to get him to choke. When Rounsville said he had a headache, Trivizo put some aspirin and two bullets in his mouth and gave him a Sprite. Martin heard one of the bullets hit the car floor and was not sure if Rounsville swallowed any.
"Olguin and Marquez returned, laughing as they entered the garage. Rounsville appeared panicked and wanted to go home. Martin did not assist him because he was afraid that Olguin and Marquez would kill him. With Marquez standing behind him, Olguin walked over to Rounsville and choked him while he gasped for air until he finally stopped breathing. Olguin, Marquez, and Martin then sat in the garage and smoked methamphetamine. Olguin and Marquez subsequently left, telling Martin to watch Rounsville's body and make sure no one entered the garage.
"They came back the next morning with a van to transport Rounsville's body. As they pulled him out, Marquez kicked his body and called him a punk. Olguin and Marquez drove to some orange groves and dumped the body. Although Olguin and Marquez told Martin to burn Rounsville's clothes and shoes, he buried them instead.
"When Rounsville's father filed a missing persons report and the police department did not appear to take it seriously, he hired a private investigator. Rounsville's body was found in the orange groves about a month after his death. A belt was wrapped around his neck and tied in a knot, and there were two strands of yellow wire wrapped around his right wrist. The cause of death was strangulation. An autopsy showed his neck was missing part of the hyoid bone and there were upper arm and scalp hemorrhages, a crushed larynx, and contusions occurring prior to death to the back of the head, the left forehead, the top of the head, and over the muscles of the right temple." (Olguin, supra, G040196, G040418.)
At the ensuing trial, the prosecution proceeded on a felony-murder theory, arguing Rounsville was tortured and died while being strangled during the course of that torture. Defendant, Olguin, and Marquez were convicted of first degree felony murder, torture, and false imprisonment by violence. Defendant was sentenced to prison for a term of 25 years to life for murder. The court imposed and stayed under section 654 a life term for torture and a two-year term for false imprisonment. We affirmed the judgment in 2009. (Olguin, supra, G040196, G040418.) Defendant's Section 1170 .95 Petition and Briefing in the Trial Court
Ten years later, after the passage of Senate Bill 1437, defendant petitioned the superior court to vacate her murder conviction and resentence her under section 1170.95. In her petition, she asserted she was entitled to relief because she was an accomplice prosecuted under a felony-murder theory and could not now be convicted of murder following Senate Bill 1437's amendment of section 189. In support of her petition, defendant attached our unpublished opinion in her direct appeal.
The People filed two responsive documents. One was a motion to strike defendant's petition for resentencing on the ground Senate Bill 1437 is unconstitutional. The other was an informal response that argued defendant had not demonstrated a prime facie case for relief because she failed to provide evidentiary support for the allegations in her petition. The People requested the court take judicial notice of the following under Evidence Code section 452: (1) the decision and records in defendant's direct appeal (a copy of our unpublished opinion was attached to the informal response); (2) the information filed in the underlying case (a copy of the information was attached); and (3) "[t]he files and records in Case No. FSB051357." The People urged the court to deny the petition but requested the ability to file a formal response if the court determined an order to show cause should issue.
A hearing on defendant's petition was scheduled before the original trial judge but was continued multiple times while the issue of the constitutionality of Senate Bill 1437 was pending in the Fourth Appellate District Court of Appeal. After Senate Bill 1437 was upheld as constitutional in two cases (People v. Superior Court (Gooden) 42 Cal.App.5th 270 and People v. Lamoureux (2019) 42 Cal.App.5th 241), defendant filed an opposition to the People's motion to strike the petition and argued an order to show cause should issue because defendant had made a prima facie showing of entitlement to relief.
The People filed a response stating its position that defendant was ineligible for relief under section 1170.95 "based upon the facts elicited at the jury trial and the statement of facts from the appellate decision in this case." The People argued the facts in the prior appellate opinion "paint[ed] a vivid portrait" of defendant's conduct and proved that even though she was not the actual killer, "she acted with the specific intent to kill." The People also asserted defendant was not entitled to relief because she was "a major participant" in the events leading up to the victim's death and she "wanted the victim dead."
Defendant filed a supplemental opposition, arguing the court should grant relief and resentence her because she could not now be convicted of felony murder under the amendments to section 189. Addressing the People's argument that defendant was a principal who acted with an intent to kill, defense counsel stated his recollection and belief that the People pursued a felony-murder theory at trial because the People had difficulty proving defendant intended to kill the victim. Citing portions of the trial transcript, counsel argued defendant did not intend to kill the victim and emphasized she was not present when the murder occurred. Defendant asserted she did not act with an intent to kill and could not now be convicted of felony murder under section 189, subdivision (e)(2). Defendant also argued section 189, subdivision (e)(3) did not apply because she was not a major participant in the torture and did not act with reckless indifference to human life.
In her supplemental opposition, defendant urged the court not to rely on the facts in our opinion on her direct appeal because they were "a summary" of the evidence and did "not detail the contested facts at trial." Attempting to discount the facts stated in our prior opinion, defendant asserted they were based on the accomplice testimony of Steven Martin, who made a deal with the prosecution for a reduced charge and sentence in exchange for his testimony.
Trial Court Hearing
At the hearing on defendant's petition, the court informed the parties it was not going to dismiss the petition based on unconstitutionality but was inclined to consider the petition on its merits and stated its belief that "the facts of the case . . . need consideration." The court indicated it would "be happy to hear from each side" or they could submit on the documents. A discussion was then held off the record.
Back on the record, the parties referenced their most recent briefs and submitted on the arguments contained therein. The court thanked the parties for their briefs and indicated it had a clear recollection of the evidence presented at trial. Given an opportunity to present further argument, defense counsel reiterated defendant was not a major participant and did not have the necessary mens rea to be convicted and sentenced under the amended felony-murder rule.
Denying the petition, the court ruled: "The conduct of the defendant is such, and it was found by the jury, to have participated in murder to the extent of responsibility under the existing code sections.
"In looking at this matter, the Court is of the opinion that without [defendant]'s conduct, the killing would not have occurred. I don't know how that doesn't make her a major participa[nt].
"The circumstantial evidence and the testimony by Mr. Martin, some of which was certainly believed by the Court and no doubt by the jury in this matter, would suggest that she initiated what occurred. She participated with Mr. Martin in holding Mr. Rounsville while the other two participants left for a while. She's certainly guilty of the torture that occurred. The circumstances, as I indicated, suggest she is also responsible for the murder.
"She contests Mr. Martin's truthfulness and veracity. The Court previously observed that it believed some of what he had to say and some of what—not some of what he had to say.
"The issue of feeding Mr. Rounsville bullets, as I recall, was somewhat substantiated. There was a bullet in the carpeting where the very badly deteriorated body was ultimately found months and months later.
"That Mr. Rounsville got—I'm sorry—Mr. Martin got something for his testimony, a reduction from a murder sentence, is understandable. It's what's done. I think he probably got the benefit of his bargain, not a great way, because of the conduct involved in this case where he'd feel the maximum that he had allowed in his plea agreement should be imposed.
"But I am going to leave the previous sentencing for Ms. Trivizo to stand. I'm denying the request for resentencing."
Defendant appealed.
DISCUSSION
SENATE BILL NO. 1437
Prior to the enactment of Senate Bill 1437, the mens rea required to convict an accomplice of first degree felony murder was "'simply the specific intent to commit the underlying felony [citation] . . . .'" (People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).) "The actus reus requirement for an aider and abettor to first degree felony murder [was] aiding and abetting the underlying felony or attempted felony that results in the murder." (Ibid.) But liability for accomplices under the felony-murder rule changed with the passage of Senate Bill 1437. This legislation "amend[ed] 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." (Stats. 2018, ch. 1015, § 1, subd. (f).)
"To further that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): 'A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.'" (People v. Gentile (2020) 10 Cal.5th 830, 842.)
Second, Senate Bill 1437 added subdivision (a)(3) to section 188, to amend the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, § 2.) Because defendant was not convicted of murder under a natural and probable consequences theory, this provision is not at issue here.
Third, Senate Bill 1437 added section 1170.95 to provide a procedure for defendants previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the superior court to have their murder convictions vacated and be resentenced, if they could no longer be convicted of murder under the ameliorative amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4; People v. Gentile, supra, 10 Cal.5th at p. 843.) A petition filed under section 1170.95 must: (1) include "[a] declaration by the petitioner that he or she is eligible for relief" under section 1170.95; (2) provide "[t]he superior court case number and year of the petitioner's conviction"; and (3) state "[w]hether the petitioner requests the appointment of counsel." (Id., subd. (b)(1).) The petition must be filed with the court that sentenced the petitioner and served on the prosecution and the attorney who represented the defendant at the time of conviction. (Ibid.)
Upon receiving a section 1170.95 petition with all the required information, the court must "review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of [the] section." (§ 1170.95, subd. (c).) The court must appoint counsel for petitioner if petitioner requested counsel, and the prosecution is afforded time to file a response and petitioner can file a reply. (Ibid.) "If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (Ibid.)
Section 1170.95, subdivision (d), prescribes the procedure after the court issues an order to show cause. "[T]he court shall 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 been previously been sentenced" (§ 1170.95, subd. (d)(1)), unless the parties "stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing" and waive a resentencing hearing (id., subd. (d)(2)). At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing, and "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Id., subd. (d)(3).) "If the prosecution fails to sustain its burden of proof, 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." (Ibid.)
Here, the court did not march in lockstep with the procedures set out in section 1170.95 as the court did not explicitly find defendant had made a prima facie showing that she fell within the provisions of section 1170.95 and the court did not issue an order to show cause (id., subd. (c)) before holding a hearing to determine whether defendant was entitled to relief (id., subd. (d)(3)). We note neither party objected to the court proceeding in the manner it did. After an off-the-record discussion, both parties elected to rely on the arguments and evidence contained in their briefs.
We respectfully urge the trial court to adhere to the procedure in section 1170.95 when considering these petitions and to ensure a clear record to facilitate appellate review.
We further note that in her opening brief, defendant did not argue the court erred by denying her petition without issuing an order to show cause or challenge the way the court conducted the hearing. In their initial briefs on appeal, both parties viewed the court's denial of defendant's petition as occurring after an order to show cause was implicitly issued and a hearing conducted. But for the first time in her reply brief, defendant contends it is "fundamentally unfair that the trial court" denied her petition at the prima facie stage and deprived her of "a full hearing." Quoting People v. Drayton (2020) 47 Cal.App.5th 965, defendant asserts the court should not have engaged in "factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing, as described in section 1170.95, subdivision (d)." (Id. at p. 982.) We do not consider arguments made for the first time in a reply brief. (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) Moreover, because there was no objection below, we deem the argument forfeited on appeal. Thus, we analyze the court's denial of defendant's petition as occurring after a hearing was held to determine petitioner's entitlement to relief under section 1170.95, subdivision (d).
In a footnote in her opening brief, defendant "urge[s] this Court not to rely upon [its] 2009 opinion as it relates to the 'facts.'" She asserts the facts in our prior opinion were based on the issues raised in that appeal and did not focus on facts concerning whether she was a major participant acting with reckless indifference. Defendant's "Statement of Facts" quotes from her counsel's argument in the supplemental opposition filed in the trial court. We disagree with defendant that a court, trial or appellate, should ignore a prior appellate opinion in determining whether a defendant is entitled to relief under section 1170.95.
Section 1170.95 states that at the evidentiary hearing conducted to determine whether the petitioner is entitled to resentencing, "[t]he prosecutor and the petitioner may rely on the record of conviction . . . to meet their respective burdens." (Id., subd. (d)(3).) "A [C]ourt of [A]ppeal opinion, whether or not published, is part of the appellant's record of conviction." (People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review granted Mar. 18, 2020, S260493.) Thus, we, and the trial court, may rely on our prior opinion in determining whether defendant was entitled to relief under section 1170.95. STATUTORY INTERPRETATION
The Supreme Court has granted review in People v. Lewis (2020) 43 Cal.App.5th 1128, March 18, 2020, S260598, on the related issue of whether a superior court may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under section 1170.95.
The court determined defendant was not entitled to relief under section 1170.95 because she was guilty of felony murder under section 189, subdivision (e)(3) as she was a major participant in the torture of the victim and acted with reckless indifference to human life. Defendant contends section 189, subdivision (e)(3) does not apply to torture felony murder and therefore the court erred in relying on it when denying her petition. We disagree.
We begin by noting defendant did not raise this issue below. Indeed, in the trial court, defendant identified subdivision (e)(3) of section 189 as being the relevant provision for the court to consider in determining whether she was entitled to relief. The Attorney General has not asserted defendant's failure to raise this claim in the trial court forfeited the issue. Moreover, we review questions of statutory construction de novo. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.) Thus, we address the issue on its merits.
To analyze defendant's contention that section 189, subdivision (e)(3) does not apply to torture felony murder: "We begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes' nature and obvious purposes." (People v. Cole (2006) 38 Cal.4th 964, 975.)
"Section 189 codifies the first degree felony-murder rule." (People v. Banks (2015) 61 Cal.4th 788, 810 (Banks).) It defines first degree felony murder as murder that is committed in the perpetration of, or attempted perpetration of, certain enumerated felonies including torture. (§ 189, subd. (a).) As discussed above, Senate Bill 1437 amended the felony murder rule by adding subdivision (e) to section 189. (Stats. 2018, ch. 1015, § 3.) Subdivision (e) states: "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] . . . [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Defendant's argument focuses on the language in section 189, subdivision (e)(3) that states "as described in subdivision (d) of Section 190.2." Section 190.2 is a special circumstance statute enacted by initiative in 1990. (In re Scoggins (2020) 9 Cal.5th 667, 674.) The felony-murder aider and abettor special circumstance in subdivision (d) of section 190.2, provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4." Defendant notes that subdivision (d) of section 190.2 refers to felonies enumerated in subdivision (a)(17) and that torture is not an enumerated felony in subdivision (a)(17).
She points out that torture is listed separately in paragraph (18) of subdivision (a) in section 190.2. "[T]he torture-murder special circumstance [in section 190.2, subdivision (a)(18)] requires proof '[t]he murder was intentional and involved the infliction of torture.'" (People v. Pearson (2012) 53 Cal.4th 306, 322.) Thus, a defendant who was not the actual killer but aids and abets a murder involving torture is eligible for capital punishment only if he or she acted with the intent to kill. (Id. at pp. 322-323.) As Pearson explained, "The exception in subdivision (d) of [section 190.2], allowing a true finding for a nonkiller defendant who acts as a 'major participant' in a predicate felony and with 'reckless indifference' to human life, applies only to the felony-murder special circumstances listed in section 190.2, subdivision (a)(17) and not to the torture-murder special circumstance set out in subdivision (a)(18)." (Id. at p. 322.)
Based on the above, defendant concludes section 189, subdivision (e)(3), does not apply to torture felony murder. She contends felony murder liability for a major participant who acted with reckless indifference to human life does not apply to torture felony murder under section 189, subdivision (e)(3) because torture is not an enumerated felony in section 190.2, subdivision (a)(17). She reasons because torture is treated differently than the other predicate crimes in section 190.2, then it must be treated differently in section 189, subdivision (e). Defendant argues "it is clear that the crime of torture is being treated differently from other crimes, such as robbery, in the special circumstance statute and requires a higher mental state than just being a major participant acting with reckless indifference." She asserts a defendant can only be convicted of torture felony murder if he or she was the actual killer (§ 189, subd. (e)(1)) or acted with the intent to kill (id., subd. (e)(2)).
Defendant is conflating the predicate offenses for felony murder simpliciter in section 189, subdivision (a) with the qualifying offenses for felony murder special circumstances listed in section 190.2, subdivision (a)(17). The issue is whether an accomplice can be convicted of torture felony murder under section 189, subdivision (e)(3), and the answer is yes under the plain language of the statute. As the Attorney General explains, "The felony murder provision, section 189, subdivision (e)(3), expressly authorizes felony murder liability for participants in a felony listed in subdivision (a), and section 206, torture, is listed in subdivision (a)." Defendant's interpretation would nullify section 189's express inclusion of torture as a predicate felony for felony murder.
The most natural reading of section 189, subdivision (e)(3)'s reference to section 190.2, subdivision (d), is that it serves the limited purpose of describing "major participant[s]" in the underlying felony who acted with "reckless indifference to human life." (§§ 189, subd. (e)(3), 190.2, subd. (d).) As explained below, these phrases, as used in section 190.2, subdivision (d), have been interpreted and explained by the Supreme Court in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, prior to the enactment of Senate Bill 1437.
The different treatment of the torture-murder special circumstance in section 190.2 is of no moment. Defendant was not charged with the torture-murder special circumstance and when ruling on defendant's section 1170.95 petition, the court did not need to determine whether the evidence supported this special circumstance. Accordingly, we reject defendant's interpretation of section 189, subdivision (e)(3). SUFFICIENCY OF THE EVIDENCE
Defendant contends the court erred in denying her section 1170.95 petition because she was convicted of torture felony murder but was not a major participant in the torture and did not act with a reckless indifference to human life. She raises three subclaims within this contention. First, she asserts the court's finding that she was a major participant was based on a misunderstanding of the law. Second, she contends under the correct legal standard, there is "no evidence" she was a major participant in the torture acting with a reckless indifference to human life. Third, defendant asserts that the issue of whether she was a major participant acting with a reckless indifference to human life should not be decided retroactively because these elements were not decided by the jury at her trial. Addressing each in turn, we affirm the court's order denying defendant's petition.
The Trial Court Applied the Correct Legal Standard
Defendant's argument that the court applied the wrong standard in denying her petition focuses on two sentences of the court's ruling, where the court stated: "In looking at this matter, the Court is of the opinion that without [defendant]'s conduct, the killing would not have occurred. I don't know how that doesn't make her a major participa[nt]." Defendant contends this "statement by the court demonstrated its misunderstanding of the pertinent law" as it indicated the court was applying "a 'but for' test" rather than considering the factors identified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, for determining whether a defendant was a major participant acting with a reckless indifference to human life. Defendant asserts the court's ruling should be reversed because it was based on erroneous legal reasoning. We disagree.
Defendant has not overcome the presumption that the court knew and followed the correct law. (People v. Ramirez (2021) 10 Cal.5th 983, 1042 ["Absent evidence to the contrary," a reviewing court presumes the trial court "knew the law and followed it"]; Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 783 ["A trial court is presumed to have known and followed the law"].) Here, the record indicates the court was aware of the factors to consider in determining whether a defendant was a major participant and acted with a reckless indifference to human life. In the supplemental opposition defendant filed in the trial court, she listed the factors set out in Banks, supra, 61 Cal.4th 788, to analyze whether a defendant was a major participant in a special circumstance felony murder. She then applied these factors to her case and argued she was not a major participant in the torture that killed the victim. She also argued her conduct did not show she acted with reckless indifference to human life. It is clear from the court's statements in denying defendant's petition that it was familiar with the arguments contained in defendant's briefs. The court, however, reached a different conclusion.
We review the court's ruling in its entirety and do not focus singularly on the court's comment cited by defendant. In denying defendant's petition, the court discussed the evidence concerning defendant's conduct and involvement in the torture and murder of the victim. Defendant is not entitled to a reversal on this ground.
Substantial Evidence Supports the Court's Finding that Defendant was a Major Participant who acted with a Reckless Indifference to Human Life
Defendant contends there was no evidence she was a "major participant" acting with "reckless indifference to human life" as these terms were defined in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th at pages 618 to 623. The Attorney General responds substantial evidence supports the trial court's conclusion that defendant was a major participant in the perpetration of the torture that led to the victim's death and she acted with reckless indifference to human life. We agree with the Attorney General.
To deny defendant's petition, the court had to find "beyond a reasonable doubt" (§ 1170.95, subd. (d)(3)) that defendant was a major participant in the torture and "acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(3)). We review the court's findings for substantial evidence. (People v. Lopez (2020) 56 Cal.App.5th 936, 953-954, review granted Feb. 10, 2021, S265974.) "When reviewing a challenge to the sufficiency of the evidence, we ask '"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for '"substantial evidence—that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt." (Banks, supra, 61 Cal.4th at p. 804.) We presume the existence of every fact in support of the judgment the trier of fact could reasonably deduce and accept all logical inferences it might have drawn from the circumstantial evidence. (Clark, supra, 63 Cal.4th at p. 610.)
The Supreme Court has granted review in People v. Duke (2020) 55 Cal.App.5th 113, January 13, 2021, S265309, on the issue of whether the People can meet their burden of establishing a petitioner's ineligibility for relief at a hearing under section 1170.95, subdivision (d)(3), by presenting substantial evidence of a petitioner's liability for murder under amended section 188 and/or 189 or must the People prove each element of murder under the amended statutes beyond a reasonable doubt. --------
Under section 189, subdivision (e)(3), a participant in the perpetration of an enumerated felony, like torture, can be convicted of first degree felony murder, even if the participant was not the killer and did not act with the intent to kill if he or she "was a major participant in the underlying felony and acted with reckless indifference to human life." This language tracks that in section 190.2, subdivision (d), the felony-murder aider and abettor special circumstance provision. Section 190.2, subdivision (d), "imposes an actus reus requirement, major participation in the enumerated felony, and a mens rea requirement, reckless indifference to human life." (In re Scoggins, supra, 9 Cal.5th at p. 674.)
In Banks, supra, 61 Cal.4th 788, the Supreme Court addressed the actus reus requirement of major participation in section 190.2, subdivision (d), examining Tison v. Arizona (1987) 481 U.S. 137, the "'source of the language of section 190.2(d)'" (Banks, at p. 798), and Enmund v. Florida (1982) 458 U.S. 782. The issue in Banks was the circumstances under which "an accomplice who lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty." (Banks, at p. 794.) The Banks court set out several factors to consider, as discussed below, in making this determination. (Id. at p. 803.) A few years later, in Clark, the Supreme Court addressed the mens rea requirement in section 190.2, subdivision (d)(2), reckless indifference to human life, also identifying relevant factors to consider. (Clark, supra, 63 Cal.4th at pp. 614-623.)
Because Banks and Clark were decided before Senate Bill 1437 was enacted, we must presume the Legislature was aware of the Supreme Court's judicial interpretation of the language in section 190.2, subdivision (d) and that it intended the same interpretation apply to the language in section 189, subdivision (e)(3). (People v. Secrease (2021) 63 Cal.App.5th 231, 254; Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2019) 42 Cal.App.5th 148, 154 [reviewing court presumes "the Legislature was aware of the judicial interpretations of [existing] laws, and that it intended that the same interpretation apply to related laws with identical or substantially similar language"], review granted Jan. 22, 2020, S259850.) Accordingly, we look to Banks and Clark for the factors to consider in determining whether defendant was a major participant who acted with reckless indifference to human life.
1. Major Participant
In Banks, our Supreme Court identified the following factors as relevant to the determination of whether an accomplice was a major participant in a special circumstance felony murder: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.) The Banks court explained, "No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.'" (Ibid.)
Analyzing these factors in defendant's case, substantial evidence supports the finding that defendant was a major participant. The first factor to consider is defendant's role in planning the events that led to Rounsville's death. (Banks, supra, 61 Cal.4th at p. 803.) As the court found, defendant initiated the false imprisonment and torture of Rounsville that led to his death. She enlisted the assistance of her roommate Martin, her boyfriend Marquez, and her neighbor Olguin to help her deal with Rounsville, with whom she was angry because he had previously shot at her and her ex-boyfriend. (Olguin, supra, G040196, G040418.)
Defendant had told Martin that she had a problem with Rounsville and wanted to deal with it. After Martin saw Rounsville walk by the house, he informed defendant. Marquez got Rounsville into defendant's garage, and defendant called Olguin to come "handle the problem for her." Olguin entered the garage and punched Rounsville in the face without provocation. For several minutes, Olguin and Marquez ruthlessly hit and kicked Rounsville and burned him with a cigarette. They duct-taped Rounsville's arms around the window of a race car in the garage and his head to the car's seat. After Olguin and Marquez left, Martin and defendant kept Rounsville as their captive, with Marquez hitting Rounsville in the head any time he made a noise. (Olguin, supra, G040196, G040418.)
Next, we consider defendant's role in supplying or using lethal weapons. Rounsville was strangled to death by Olguin, and the lethal weapon in this case was likely the belt found wrapped around Rounsville's neck and tied in a knot. There was no evidence indicating defendant supplied the belt or was aware of its use to strangle Rounsville.
There was also no evidence indicating defendant was aware of the violent nature of Martin or Marquez prior to the torture of Rounsville. But it can reasonably be inferred from the evidence that defendant was aware of Olguin's violent nature. Indeed, it seems that was the very reason she called him to her house to "handle" her problem with Rounsville. Even if defendant was unaware of Marquez and Olguin's violent nature in the past, she became aware of their propensity for violence early in the detention of Rounsville. Marquez showed defendant a video of him and Olguin hitting and kicking Rounsville and burning him with a cigarette. Defendant also saw Rounsville's injuries, his eyes were swollen shut and his whole face was bloody and swollen, and that he was bound to the car. (Olguin, supra, G040196, G040418.)
A factor in defendant's favor is that apparently she was not present when Rounsville was killed. Defendant argues she never "had the power to stop the continuation of the torture beyond the initial beating." This is debatable. But what is clear is that defendant did not do anything to mitigate the violence while Olguin and Marquez were torturing Rounsville, even though she could hear him pleading, "Stop hitting me." Even after Marquez and Olguin left, defendant did not stop the torture of Rounsville. Instead, she expressed the need to "get rid" of Rounsville and tried to make him choke by putting bullets in his mouth. (Olguin, supra, G040196, G040418.)
There is no evidence in the record concerning defendant's actions after Rounsville was killed. Weighing the above factors, we conclude substantial evidence supports the finding that defendant's participation in the torture was major.
2. Reckless Indifference
"[T]here is significant overlap between being a major participant and having a reckless indifference to human life." (In re Bennett (2018) 26 Cal.App.5th 1002, 1022.) "'[T]he greater the defendant's participation in the felony murder, the more likely that he [or she] acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615.) In Clark, the Supreme Court explained the reckless indifference element has both subjective and objective components and "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Clark, at p. 617.) "To satisfy the reckless indifference mental state . . . , the defendant must have '"'knowingly engag[ed] in criminal activities known to carry a grave risk of death.'" [Citation.] The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.'" (In re Bennett, at p. 1023.)
"To focus the analysis that must be undertaken to decide the sufficiency of proof of reckless indifference, the Clark court highlighted a number of factors that warrant consideration: the defendant's knowledge of weapons, and the use and number of weapons; the defendant's proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the offense conduct, that is, 'whether a murder came at the end of a prolonged period of restraint of the victims by defendant'; the defendant's awareness his or her confederate was likely to kill; and the defendant's efforts to minimize the possibility of violence during the crime." (In re Miller (2017) 14 Cal.App.5th 960, 973.)
Analyzing these factors in defendant's case, we conclude there is substantial evidence defendant acted with a reckless indifference to human life. Defendant knew her cohorts had a gun. She was present when Martin had the gun and was beating Rounsville with it when he made noise. Although this weapon was not used to end Rounsville's life, its presence informed defendant that Rounsville's life was at risk. But a defendant's awareness that a gun will be used in the felony is insufficient by itself to establish reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 618.)
An accomplice's physical presence is an important factor in determining his or her culpability in capital-eligible cases. (Clark, supra, 63 Cal.4th at p. 619.) "Proximity to the murder and the events leading up to it may be particularly significant where, . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state. . . . [Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.'" (Ibid.)
Defendant was not present when Rounsville was killed. But our Supreme Court has explained "physical presence is not invariably a prerequisite to demonstrating reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 619.) Here, the evidence of defendant's presence and actions prior to the murder is significant. While defendant was not at the house when Rounsville was finally killed, she was there during the many hours Rounsville was held in the garage and tortured. During this time, she was able to observe the viciousness of Olguin and Marquez. Defendant knew Rounsville was suffering a severe beating and that he was then bound to the car in the garage and unable to leave or defend himself. There is no evidence defendant attempted to stop the beating or release Rounsville. It is reasonable to conclude defendant, like Olguin and Marquez, intended to cause Rounsville extreme pain and suffering.
Defendant asserts she tried to save Rounsville's life by feeding him food after she learned he was diabetic. What she omits is the evidence she fed him bullets hoping he would choke. (Olguin, supra, G040196, G040418.)
Whether the "murder came at the end of a prolonged period of restraint" (Clark, supra, 63 Cal.4th at p. 620) is also a weighty in this case. As explained in Clark, "Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder." (Clark, at p. 620.) Here, the duration of the torture presented heightened risks and exhibited reckless indifference to human life beyond that associated with the crime itself. After Olguin and Marquez severely beat Rounsville and bound him to the car, defendant and Martin held Rounsville in the garage for several hours. During this time, Martin had a gun and repeatedly hit Rounsville and defendant tried to cause him to choke by putting bullets in his mouth.
"A defendant's knowledge of factors bearing on a cohort's likelihood of killing are significant to the analysis of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 621.) Here, there is no evidence that prior to the torture of Rounsville defendant knew either Olguin or Marquez were likely to kill him. But defendant knew and expected some violence to occur as she called Olguin to come over and deal with Rounsville. While there was no evidence defendant had instructed Olguin or Marquez to kill Rounsville, she did nothing to stop them from continuing the torture or killing him.
Substantial evidence supports the finding that defendant acted with a reckless disregard for human life in instigating and participating in the torture of Rounsville.
Thus, we conclude substantial evidence supports the court's finding that the requirements of section 189, subdivision (e)(3) have been satisfied. Defendant was both a major participant in the torture and she acted with reckless indifference to human life.
Right to a Jury Trial
Defendant also contends she "should not now be convicted of first degree murder under the felony murder rule" because the jury at her original trial did not decide whether she was a major participant in the torture and acted with a reckless indifference to human life, the elements added to the felony-murder rule in section 189, subdivision (e)(3). She asserts we "should not step into the role of deciding an issue the jury never decided."
Defendant is not entitled to a jury determination of whether she was a major participant in the torture and acted with reckless indifference to human life. (See People v. James (2021) 63 Cal.App.5th 604, 608-609 [consideration of a § 1170.95 petition does not trigger a Sixth Amendment right to a jury trial; and cases cited therein].) As the court explained in James: "Section 1170.95 is 'an act of lenity' that requires, under specified circumstances, reduction of the offense for which [the defendant] was properly convicted. The constitutional right to a jury trial does not require a jury determination of those circumstances. '[T]he retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights.' [Citation.] This reasoning has consistently been followed in proceedings under section 1170.95. [Citations.] No constitutional provision required the Legislature to authorize relief under the conditions specified in section 1170.95 and none compels it to make the conditions subject to jury determination." (Id. at p. 609.) "Because the authorization of retroactive relief in Senate Bill No. 1437 was an act of lenity, the Legislature was free to condition the availability of such relief on the convicted person prevailing at an evidentiary hearing conducted pursuant to the non-jury procedure set forth in section 1170.95." (Id. at pp. 610-611.)
Defendant is not entitled to a reversal of the court's order on this ground.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.