Opinion
G061944
01-29-2024
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LARRY VALDEZ, Defendant and Appellant.
Daniel J. Kessler, 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, A. Natasha Cortina, Lynne G. McGinnis, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 97WF2116 Richard M. King, Judge. Reversed and remanded with instructions.
Daniel J. Kessler, 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, A. Natasha Cortina, Lynne G. McGinnis, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
In February 1998, Christopher Larry Valdez was convicted by a jury on two counts of attempted murder, one count of street terrorism, and one count of assault with a deadly weapon in connection with two violent incidents in Westminster on August 23, 1997. In an unpublished opinion, we affirmed his convictions on direct appeal. (See People v. Valdez (May 18, 2000, G023244 [nonpub. opn.].)
Some 23 years later, Valdez filed a petition for resentencing under former Penal Code section 1170.95 , which has since been reconstituted as section 1172.6. In his petition, he argued the 2019 abrogation of the natural and probable consequences doctrine in California rendered untenable his attempted murder convictions. The trial court denied the petition, finding Valdez had directly and intentionally aided and abetted attempted murder.
All further statutory references are to the Penal Code.
As we will detail herein, this is a rare circumstance in which we must find the trial court's judgment lacking in substantial evidence. While the evidence produced at Valdez's trial in 1998 may have been sufficient to establish his liability for attempted murder under the natural and probable consequences doctrine, there is no solid evidence showing Valdez harbored an intent to kill by engaging in the conduct proven. As a result, we reverse.
FACTS
To properly preface our conclusions, it is necessary for us to recount specific details established at trial about the night in question.
We take the facts of the night in question from the reporter's transcripts of Valdez's trial.
Assault of Anthony Navarro and Tony Dray
In 1997, Valdez held a leadership role with the Homer Street gang, which, not surprisingly, claimed territory around Homer Street in Westminster. On the night of August 23, 1997, Anthony Navarro and his friend Tony Dray were riding their bikes in Homer Street-friendly territory when they were jumped. Dray did not appear as a witness at trial, but Navarro testified he and Dray had been at a house earlier that evening where members of the West Trece gang hung out. West Trece and Homer Street were rival gangs. Navarro denied being in a gang himself, even if some of his peers were.
Navarro testified he was jumped in front of a store called Lucky's Market.At around 12:30 a.m., he saw two cars on Goldenwest Street coming toward him and Dray. One was a black four-door car, "like a small Nissan," and the other "looked like a Bronco or Suburban." Someone got out of the black Nissan-like vehicle and chased him on foot, even as the vehicle itself was following him. Navarro fell off of his bicycle and he was beaten by about four or five assailants. He heard voices saying "Homer Street" and "U.T.A." About 20 minutes after the beating, when he was heading back home with his bicycle, Navarro noticed the Bronco-like vehicle come up behind him and stop on the street. The individuals in the car said, "Homer Street" and "U.T.A." again. Navarro says he asked why they wanted to "jump [him] again" because they had already done it once. The individuals laughed and departed the scene. At no time did these individuals ask Navarro any questions or attempt to ascertain where he was from or if he was affiliated with any gangs.
Navarro sustained injuries to his head from the beating, and his memory of the incident was somewhat fuzzy.
Navarro said he understood this to be a reference to "Under The Addiction," another local gang.
Navarro did not recognize Valdez in the courtroom and testified he did not see Valdez on the evening he was jumped.
The prosecutor showed Navarro photographs of a Dodge Ramcharger vehicle registered to Valdez's father. Navarro said he could not "say that it looks similar" to the Bronco-type vehicle, but he thought "it could be it." After having his recollection refreshed by the police report, Navarro recalled the Bronco-like vehicle was two colors, a butter type of color and white. He had not seen the Bronco-like vehicle since the altercation, but had seen the black Nissan-like vehicle on Homer Street and in Garden Grove.
Two other witnesses testified about the altercation between Navarro and his attackers. The first was Michelle Green, an eyewitness in the parking lot outside the Edwards theater in Westminster around 12 midnight or 1:00 a.m. She witnessed a "Bronco vehicle" chasing a man on a bicycle, Navarro, through the parking lot. The chase continued around a restaurant in front of the theater, and she saw Navarro running away without his bicycle. She saw the Bronco-like vehicle make a U-turn from where Navarro was and stop. Approximately five to ten individuals got out of the Bronco-like vehicle and beat up Navarro. For about 45 seconds to a minute, the individuals punched and kicked Navarro and even used his bike to strike him. During this whole scuffle, Green saw a "little black vehicle" in the area nearby. She could not recall whether anyone got out of the black vehicle. But it left when the Bronco-like vehicle left.
Green said she described the Bronco-like vehicle to the police as a "big Bronco[,] kind of like a Blazer or Bronco," and it was a "reddish brown color." She did not see who was driving the vehicle. She did not recognize Valdez when he was pointed out to her in the courtroom, and she said she was unable to identify anyone who was there during the melee. The prosecutor showed Green the photos of the Dodge Ramcharger, but she could not be sure it was the same vehicle as the one she saw that night. She thought it looked similar in shape and color.
On cross-examination, Green admitted the police report of the incident indicated the car was beige. However, she maintained she had not told the police the car was beige; and perhaps another witness had described it as such.
The second eyewitness was Veronica Arellano, who was working at the Edwards movie theater on the night of August 23, 1997. She and a colleague were turning off projectors after the last showing of the night when she saw through the theater's glass windows a Bronco vehicle chasing a man on a bicycle, Navarro. The Bronco hit the bicycle's back wheel, toppling its rider, after which the Bronco stopped and "a bunch of guys" got out of the passenger side. Navarro attempted to run away toward the street, but the men went after him, including some who had gotten out of a black car which looked to Arellano like a Nissan Sentra. She witnessed the men, all of whom were bald, beating, kicking, and punching Navarro. They then got back into the two vehicles and departed.
Arellano thought the photo of the Dodge Ramcharger shown to her by the prosecutor looked similar to the Bronco-type vehicle she saw that night. She had told police the car had a white or beige color on the top and bottom and a red or dark brown stripe through the middle. The Dodge Ramcharger in the photo looked similar - white on top and bottom with a stripe through the middle. However, she couldn't be sure whether it was the same car. She did not recognize Valdez in the courtroom.
As Arellano was finishing up speaking with police, about 15 to 20 minutes after Navarro was beaten, a vehicle with two men drove up to report to officers that they had been shot at.
Shooting on Homer Street
Around the same time Anthony Navarro was being assaulted, Augustin Tapia and his coworker Jose Huerta were returning home from working the late shift at Boise Cascade in Garden Grove. Their shift ended at 1:00 a.m., and the two carpooled together in a car Tapia used to own but had sold to Huerta. Tapia's home was located on the corner of Denise Drive and Homer Street in Westminster. Huerta was to drop Tapia off at his house and then drive back to Compton, where he resided.
The two coworkers were listening to music with the windows down as Tapia drove the car towards his home. Tapia turned onto Homer Street from Goldenwest at about 10 or 15 miles per hour, then slowed down a bit because he saw pedestrians in the street, and he didn't want to hit them. The pedestrians were teenage males and he didn't recognize them. However, at a distance of more than 40 feet, he recognized Valdez standing to the left of the street. Tapia and Valdez were old family friends, so Tapia wanted to say hello. There were two females and a male standing near Valdez.
Tapia approached, trying to greet Valdez, just as Valdez began to ask Tapia and Huerta what would become a fateful question: "Hey,where you vatos from?" (he and Valdez would at times greet one another with this phrase in a joking manner). Tapia knew the phrase also held special significance amongst gang members, so they could identify which gang a person was from. In this instance, though, Valdez couldn't even get the question out before gunshots erupted. All Tapia heard was Valdez say "Hey where you -" in a regular tone before the gunfire began from the right-hand side of the car.
Huerta ducked down and Tapia sped away as a group of men began to converge on the car. Valdez was not among them. Instead, he stayed back. Some of the men in the group had guns and others threw objects like bottles and bricks at the car. Tapia recognized two types of shots being fired and there were somewhere between five and ten total shots fired at the car. The whole shooting took less than 20 seconds. Luckily, neither man was hurt. As the two of them drove off, Tapia angrily told Huerta that he knew Valdez. Both of them were confused about what was going on. They began looking for any police officers in the area for help. The damage to the vehicle from the gunfire was on its passenger side. Police recovered seven spent shell casings from the scene.
Sometime later, police brought Tapia and Huerta back to the scene for a field identification of a suspect. Both men recognized the suspect, who turned out to be a man named James Navarro, as being involved in the shooting. Huerta did not recall seeing Valdez at all that evening.
Tapia could not be sure whether James Navarro was the actual shooter. He acknowledged he could have been, but he was not sure. All he knew was he saw James Navarro during the shooting. Huerta, on the other hand, identified James Navarro as the shooter. We should also note Tapia testified at trial in exchange for transactional immunity because of an incident of what appears to be witness tampering. After being approached and allegedly threatened by James Navarro's family to withdraw his identification, Tapia had changed his story and told investigators James Navarro was not involved. Prosecutors agreed not to charge him with lying to police about the Navarro identification if he testified against Valdez.
Eyewitness Douglas Holstein lived in a condo on Homer Street, and heard the gunshots near his bedroom window. Unfortunately, this was not the first time he had heard gunshots in the neighborhood. After a few moments, he went outside and saw a young man running across the street. He could not identify the man. Shortly afterward, he saw a "whitish, white and dark colored utility vehicle" come out of an alleyway in a hurry. He thought the Valdez Dodge Ramcharger looked very similar to the car he saw -white with "unusual dark paneling" on the side. He did not recognize Valdez in the courtroom, though. He could not see the driver of the utility vehicle.
Detective Kevin Baker of the Westminster Police Department took Valdez into custody at his father's home in Anaheim and interviewed him. The Dodge Ramcharger was at his father's home. During his interview, Valdez denied being present at the time of the shooting, initially saying he was at home asleep. He later changed his story and said he had been out. When Detective Baker asked Valdez what kind of vehicle had attempted to run over Tony Dray, Valdez answered "my dad's Bronco." Detective Baker then asked, "Guess who was driving that car?," to which Valdez responded in a sarcastic tone, "Me."
At the time, Valdez was living at his father's home in Anaheim and not on Homer Street anymore. However, his mother still lived near Homer Street.
Next, Detective Darrick Vincent of the target gang unit of Westminster police, testified that Valdez was "one of the hardcore members" of Homer Street, and he was familiar with him. However, some illuminating details were elicited by Valdez's counsel on cross-examination. Detective Vincent said there is "usually. . . not much of a purpose" when a gang member asks where someone is from. The "general purpose is to find out what gang they are from." If they get the wrong response, violence can result.Also, James Navarro, the person Tapia and Huerta identified as being involved in the shooting, had a tattoo on his shoulders with the numbers one and three in it. Yet Detective Vincent was familiar with no Homer Street gang member who wore such a tattoo. Indeed, Detective Vincent ultimately determined James Navarro was affiliated with a gang called Southside Huntington Beach. He knew of no information showing Southside Huntington Beach was either an ally or a rival of Homer Street or U.T.A. In fact, he had not investigated the relationship between the gangs. On redirect, he explained Southside and Homer Street had a common rival in West Trece.
This is often called a "hit[] up."
On redirect, the detective clarified the question of "where you vatos from" was often asked as a formality - because the person asking it might already knew the answer.
Corporal Kevin Ruiz from the gang investigation detail with Santa Ana's police department also testified as an expert. His testimony focused on general practices and culture amongst street gangs, including the role of being a backup and assisting during a conflict, and the concept of "hitting up" strangers to identify their gang affiliation. On cross-examination, however, Corporal Ruiz admitted he had limited experience with Westminster gangs. He had never investigated Homer Street gang, and never had any role in investigating the crime for which Valdez was being charged. He was unfamiliar with Valdez.
The jury returned guilty verdicts on February 10, 1998, the same day they were adjourned to deliberate.
On November 1, 2021, Valdez filed a petition to vacate his attempted murder convictions and for resentencing under then-section 1170.95. The prosecution conceded a prima facie case, and the court set an order to show cause hearing on the petition for October 14, 2022. No additional or new evidence was presented to the court aside from the record of conviction. After hearing argument, the court took the matter under submission, and within a few days, it issued a minute order denying the petition.
In its order, the trial court indicated it had reviewed the trial transcripts, but had disregarded two pieces of evidence: (1) a statement made by Valdez at a parole hearing, and (2) any expert opinions prohibited by the rule handed down in People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez). With these two caveats, the trial court concluded beyond a reasonable doubt from the trial testimony that Valdez had aided and abetted attempted murder and "harbored the specific intent to kill when he acted."
The Sanchez rule provides that experts may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.)
DISCUSSION
On appeal, Valdez argues there was insufficient evidence to support the denial of his petition. This question we review for substantial evidence (see People v. Cooper (2022) 77 Cal.App.5th 393, 412); meaning we review the record in the light most favorable to the judgment in order to determine whether it reflects substantial evidence sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (See People v. Henley (2022) 85 Cal.App.5th 1003, 1017.) But we must remember that substantial evidence cannot just be any evidence. Rather, it must be "'"'reasonable, credible, and of solid value'"'" to "'support'" the finding made. (People v. Clark (2016) 63 Cal.4th 522, 618.) We find such evidence lacking here.
A criminal defendant who was prosecuted for attempted murder pursuant to the natural and probable consequences doctrine is eligible to file a petition under section 1172.6. (See id., subd. (a).) "Under the natural and probable consequences doctrine, '"' . . . the aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged.'"' [Citations.]" (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) While the crime of attempted murder requires a specific intent to kill (see People v. Guerra (1985) 40 Cal.3d 377, 386), the natural and probable consequences doctrine made it possible for such intent to be imputed onto the defendant by the actions of the actual perpetrator. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007.)
No more. "Effective January 1, 2019, the Legislature amended '" . . . 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."' [Citations.]" (People v. Cody (2023) 92 Cal.App.5th 87, 105.) Under the revised section 188, malice can no longer be "imputed" to a defendant "based solely on his . . . participation in a crime." (See id., subd. (a)(3).) And because it cannot, "the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder." (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)
In a hearing pursuant to section 1172.6, the prosecution bears the burden to prove beyond a reasonable doubt "that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189[.]" (§ 1172.6, subd. (d)(3).) The trial court may consider any evidence previously admitted at trials or hearings but only such evidence "admissible under current law[.]" (Ibid.) In the context of attempted murder, this requires the trial court to satisfy itself that the prosecution has shown beyond a reasonable doubt either that the petitioner himself committed attempted murder or directly aided and abetted the crime of attempted murder with the intent to kill. There is no evidence Valdez committed attempted murder, so we are left with direct aiding and abetting.
"A defendant aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, or instigate the perpetrator's commission of that crime. (People v. Chiu (2014) 59 Cal.4th 155, 166-167 [a conviction for first degree premeditated murder on direct aiding and abetting principles requires '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'], superseded by statute on another ground as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3; People v. Hamilton (1989) 48 Cal.3d 1142, 1169-1170 ['to be an aider and abettor as a matter of law an individual must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense"'].)" (People v. Lopez (2021) 73 Cal.App.5th 327, 333-334.) Thus, the required elements for aiding and abetting are: (1) the perpetrator's commission of the crime; (2) knowledge of the perpetrator's unlawful purpose, (3) specific intent to aid that purpose, and (4) an act by the defendant which facilitates the commission of the crime. (See CALCRIM No. 401.)
The first element is undisputed. And the evidence adduced at trial, viewed in the light most favorable to the judgment, establishes the second. Valdez was at the scene of the shooting. He was a senior member of Homer Street gang. Homer Streeters had just assaulted Navarro and Dray, two individuals associated with rival West Trece, near the Edwards theater. They were likely expecting retaliation at any time. While no witness could identify Valdez as a participant in the assault at the theater, a vehicle resembling one Valdez was known to drive - quite a distinctively painted one at that-was observed by multiple witnesses transporting assailants and chasing Navarro. He also seems to have admitted to Detective Baker that he was involved. There were also armed individuals in the street when Tapia and Huerta approached who quickly converged on the vehicle with weapons shortly after it drove up. Based on the testimony given by Detectives Vincent and Ruiz, most, if not all, Homer Streeters outside would have been in a state of high alert after the assault at the theater, preparing for payback. It is simply not credible to think Valdez, a hardcore member, did not know this.
We have more trouble with the third and fourth elements. There is a remarkable dearth of evidence regarding Valdez's own conduct, and thus scarce little supporting a specific intent to kill at the moment the gunfire erupted. Valdez was not the shooter. He was to the left of the vehicle when the gunfire started from the right side of the vehicle. Valdez's liability is squarely premised on five simple words and little else -"Hey, where you vatos from?" Indeed, it is probably more accurate to say he tried to say those five words, because, according to Tapia's testimony, shots rang out before Valdez could even get halfway through the question. The prosecutor at trial told the jury during closing the "vatos" question was the equivalent of "ready, aim, fire," or "charge," a sign of encouragement to his fellow members to attack the vehicle. This we find speculative, to say the least. There was no evidence at all to show what those five words meant amongst Homer Streeters. There was no evidence Valdez commanded his fellow gang members to shoot when he said those words. There was just no direct evidence to indicate what the question meant to the people on Homer Street that night - especially considering the history of Valdez and Tapia with that phrase.
The only evidence to support the prosecutor's assertion was the general gang testimony given by Detective Vincent and Corporal Ruiz. But their testimony on this point is not of solid value because even they could not consistently or clearly elucidate the function or purpose of asking "Hey where you vatos from?"
Corporal Ruiz testified the question "in certain situations . . . could be a prelude to a conflict." [Emphasis added.] He felt the question was intended to hit up or find out the affiliation of the person being questioned. And his experience was that it was usually an "aggressive" or "volatile" statement usually followed by violence right afterward. However, he admitted violence did not always result from asking the question. His best assessment, having no experience with Homer Street, was that Valdez, as a leader of the group, was using the question as a diversionary tactic to have the passengers in the vehicle focus on him.
Corporal Ruiz said if he heard the phrase on the street, he would duck and reach for his gun "because the next sound I hear is probably going to be gunfire." We agree with the trial court that this testimony is simply irrelevant; it is not Ruiz's reaction we care about, but rather, Valdez and his cronies.
Detective Vincent said the question had "no general purpose" except to ascertain what gang someone was from. A question with "no general purpose" can hardly be indicative of intent. He also testified the question was often a formality because the person asking would already know the answer. But he gave no indication how one might tell in any given context whether a gang member was asking the question merely as a "formality" or with the expectation of some response. And, we note, if Valdez did expect a response, he could scarcely have intended to kill the person he was asking before he could answer.
The two detectives' opinions on the meaning of the question "where you vatos from?" were quite professional: they were vague because there simply was not enough context to allow them to be specific. The responses were not directly connected to the people involved in the actual shooting. And they provide little insight into Valdez's intent. It is just impossible to know which of the many possibilities outlined was Valdez's.
This is not to minimize the tension on Homer Street that night. It was almost certainly a tinder box. Gang members were on high alert, and Valdez likely was too. But this is not enough to show he harbored a specific intent to kill Tapia and Huerta. After all, the gang retaliation that took place only a short time earlier involved only a beating. Detective Ruiz testified that violence often resulted when the vatos question was posed aggressively or in a volatile way. But Tapia testified Valdez asked it in a normal tone of voice, and not in an aggressive way - indicating the question was posed in a more inquisitive manner. And in fact, Valdez didn't finish his question. If his question was intended as some sort of command, he didn't even get to issue it.
We also find troubling the evidence regarding James Navarro, the only person identified as being involved in the shooting, whether he was the actual shooter or not. He was a member of the Southside Huntington gang. He had a tattoo which Detective Vincent had never seen on any Homer Street member. If James Navarro was indeed the shooter, he was not proven to be either a Homer Street member or an ally. That makes it even more difficult for us to conclude Valdez's vatos question was an inciting incident. His "command" might have carried weight with other members of his gang, but there is no reason shown why Navarro would have responded to it.
While the two violent episodes on August 23, 1997 were related, it is still important to keep them separate when ascertaining Valdez's intent. There was substantial evidence of Valdez's intent to aid and abet the assault of Anthony Navarro and Tony Dray. But this intent does not transfer to the shooting - an intent to assault Navarro and Dray cannot establish an intent to kill Tapia and Huerta. And while the two events took place in close temporal proximity to one another, they were in different locations. The assault had ended and the Homer Streeters were back on their turf.
At the heart of our discomfort is the Legislature's impetus for the changes it made to section 188. The Legislature intended to abolish imputed malice for participation in a group crime. If we were to assume malice in this instance based not on Valdez's own conduct, but instead on supposed gang practices generally, we would be imputing the malice of a generic gang member or leader to this particular defendant. We do not believe the current law allows us to do this in the absence of any other evidence to support it.
DISPOSITION
The order of the trial court denying appellant's petition for resentencing is reversed and remanded with instructions to grant the petition and undertake proceedings under section 1172.6 to resentence appellant.
WE CONCUR: MOORE, J., SANCHEZ, J.