Opinion
A167204
05-22-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANGEL ABBATE, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05001319516
Fujisaki, J.
Defendant Joseph Angel Abbate appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95, now section 1172.6.A jury found defendant guilty of second degree murder in 2016. On appeal, defendant argues the resentencing court erred in determining the evidence proved beyond a reasonable doubt that he was a direct aider and abettor to the murder. We affirm.
All further statutory references are to the Penal Code. Defendant filed this petition pursuant to section 1170.95, but around the time he filed the petition, section 1170.95 was renumbered to section 1172.6. (Stats. 2022, ch. 58, § 10.) As such, we will refer to section 1172.6, but also refer to section 1170.95 as necessary to conform to the record.
Factual and Procedural Background
A. The Underlying Crimes and Procedural History
We begin with an overview of the crimes and the proceedings leading to defendant's sentence. Preliminarily, we note the parties and the resentencing court relied exclusively on the testimony and exhibits from defendant's 2016 murder trial, which are part of the record on appeal. (Cal. Rules of Court, rule 8.320(d)(2).) For the sake of efficiency and to provide context, we recite some of the procedural history of the case set out in People v. Abbate (2020) 58 Cal.App.5th 100 (Abbate I), our prior decision addressing defendant's direct appeal after conviction.
"The People charged defendant, Steven Cruz, and Ricardo Ochoa with the murder of Eduardo Ochoa (§ 187; count 1). The People alleged firearm enhancements (§ 12022.53, subds. (b)-(e)(1)) as to each defendant, and also alleged they committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, namely, 'Da Bay's Grimiest' also known as 'DBG' (see § 186.22, subd. (b)(1)). The People additionally charged defendant and his codefendants with conspiracy to commit a felony by active street gang participants (§ 182.5; count 2), and charged defendant alone with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3). As to the firearm possession count, the People alleged defendant committed the crime for the benefit of, at the direction of, and in association with DBG (§ 186.22, subd. (b)(1)).
Consistent with our prior opinion, we again will generally refer to defendant, his codefendants, and to the murder victim by their first names only.
"Defendant's first trial took place in 2014. Ultimately, the jury could not reach a verdict on the murder charge, resulting in a mistrial on that charge. Moreover, while the jury found defendant guilty of the remaining counts and found true the gang enhancement (§ 186.22, subd. (b)(1)) accompanying the firearm possession count, the court granted defendant's motion for new trial as to the gang conspiracy count (§ 182.5). In sum, after the first trial defendant stood convicted of the section 29800 count with the attendant gang enhancement.
"A second trial took place in 2016. The jury found defendant guilty of second degree murder and found true the attendant gang enhancement (§ 186.22, subd. (b)(1)) and firearm enhancement (§ 12022.53, subds. (d), (e)(1)). The jury also found defendant guilty of the section 182.5 gang conspiracy count. The court sentenced defendant to a term of 15 years to life in prison for the murder count, plus a consecutive 25 years to life term for the attendant firearm enhancement. The court also sentenced defendant to a term of 15 years to life for the gang conspiracy count, but stayed its execution pursuant to section 654. Finally, the court sentenced defendant to a consecutive two-year term for the firearm possession count, plus three years for the attendant gang enhancement." (Abbate I, supra, 58 Cal.App.5th at pp. 103-104.)
The following briefly summarizes the evidence at the second trial relevant to this appeal.
B.O. testified about the murder of her son, Eduardo, on April 11, 2012. She was lying down for a nap when she heard a noise, like a "boom," and saw a small white Toyota or Honda full of people outside her window looking at her house. She saw the car drive away, then opened the door of her room and saw her son bleeding on the floor. He had a "big hole in his chest," and he died in her arms.
Brian G., who had known defendant since middle school, testified as follows. Brian G. had driven a white Toyota to a party at the home of defendant's aunt in Richmond. Defendant was at the party, as well as Ricardo and Steven. Everyone was drinking and smoking marijuana. At some point, Brian G., Ricardo, Steven, and defendant, along with some women, went to a motel near the border of El Cerrito. They checked out the next morning at around 10:30 a.m., then they drove around El Cerrito. Ricardo was driving. At some point, the police followed them but did not pull them over. The group went back to the home of defendant's aunt. Defendant, Ricardo, and Steven went inside for 10 to 15 minutes, with Brian G. staying in the living room.
When they returned to Brian G.'s car, Ricardo wanted to drive and Steven wanted to sit "shotgun." Brian G. sat behind the driver's seat, while defendant sat behind the front passenger seat. After stopping at a liquor store, they went to the location of B.O.'s house. As they neared the location, defendant said loudly and clearly," 'That's him' and then 'That's 'E.' "
Without prompting, Ricardo immediately turned and slowed to a stop. Brian G. could see only one person, a Hispanic male standing in front of a house. Brian G. recalled someone saying the man was a" 'Dub boy'" and within seconds-again without prompting-Steven got out of the car, walked to within four feet of the man, and started "banging on" him by aggressively asking if he was a "Dub boy." Brian G., who remained in the car about 14 feet from Steven, could hear the man deny being a "Dub boy." After about a minute of talking, Steven pulled out a gun and pointed it at the man. Ricardo then said," 'Shoot that [racial slur],'" and Steven shot him once in the chest. Afterwards, the man ran into a house while Steven ran back to the car, and the group drove around the East Bay before returning to the house of defendant's aunt in Richmond.
Defendant expressed no surprise, disapproval, or confusion when Ricardo directed Steven to shoot the man, and no surprise that Steven pulled a gun on the man. During the drive afterward, defendant, Steven, and Ricardo appeared to be happy, listening to music and dancing like they "made a score." When Brian G. asked why they killed the man, defendant responded that the man had previously sent someone to try to kill him (defendant) but his niece was shot instead. During the car ride, Brian G. overheard defendant on the phone telling someone that Steven" 'got his feet wet.'" Defendant also told Steven-who appeared bothered-not to worry, and that he will feel "paranoid" the first time, but it would be okay. Defendant also shared the first time he killed someone, indicating he had been on the streets looking for "suckas" when he found one, yelled out "DBG," then shot someone on Dunn Avenue in Richmond, and the victim screamed out" 'Darkie.' "
Sergeant Tim Stratmeyer of the City of Hercules Police Department testified about a 2010 incident where someone shot several rounds through the front door of a residence, injuring a female minor. Defendant was one of the family members present at the home when Sergeant Stratmeyer responded to the scene.
The prosecution's gang expert testified a "sucka" typically means a rival gang member. A witness testified about the prior Dunn Street shooting. In short, in 2011 the witness was visiting a friend named Andrew Manriquez at a house on Dunn Street in Richmond. The house belonged to someone nicknamed "Darkie." The witness saw someone shoot at the house, killing Manriquez. The witness identified defendant in a lineup as a shooter, though he said he was not completely certain.
After returning to Richmond, they dropped Steven off. Later the same day, Ricardo got pulled over by the police while defendant and Brian G. were in the car; Ricardo and defendant gave false names to the police. They stayed at the house of defendant's aunt for the night, and the next day, Brian G. and defendant went to Antioch in Brian G.'s car. Brian G., who was drunk, crashed the car on his way back to Richmond. Brian G. left the car at the scene and got dropped off. This was the last time he hung out with defendant.
The police arrested Brian G. several weeks later and questioned him about the shooting. Brian G. told the police a few different stories that were not true before identifying Steven as the shooter and Ricardo as the driver. Brian G. continued to lie about defendant's involvement due to his fear of defendant. The day after his arrest, however, Brian G. finally identified defendant as the fourth person involved in the shooting by writing defendant's name on a piece of paper.
On cross-examination, the video of Brian G.'s initial interview with police was played for the jury. Brian G. acknowledged that in the video, he said something like "the dude in the back was like, 'What the F is going on.'" He explained what he meant by that: "I was shocked. . . . I didn't know what to do. I was fucking . . . scared . . . . He was more like shocked, but he was like happy, shocked. You know, like he's the one that pointed him out, Oh, that's him. You know." Brian G. explained that when he made that videotaped statement, he had not yet identified defendant as the fourth person and he was still claiming he did not know defendant. On re-direct, the prosecutor asked how defendant reacted to the shooting, and whether he seemed surprised or upset. Brian G. responded that defendant did not seem upset or question why Steven shot the victim; instead, defendant "had like a crazy look in his eye because he's the one that pointed him out." Brian G. indicated defendant seemed happy and in his right mind.
Braulio G. testified he bought a .9-millimeter Beretta from defendant who was accompanied by Steven. The police recovered the gun in July 2012. A criminalist testified that a .9-millimeter casing collected from the crime scene and the bullet from the victim's body were fired from the recovered Beretta. When the white Toyota was dusted for prints, police discovered the letters "DBG" written as if with a finger on the interior of the front windshield and the back right passenger seat window.
A former DBG gang member, Mauricio G., testified as follows. Defendant was a leader of the DBG gang. Defendant and another man founded the gang, and they decided who could be let into and out of the gang, and who would get beat up for breaking a rule. Defendant was present when Mauricio was "jumped in" (beaten) to be part of the gang; though defendant did not join in the beating, he watched and decided who would do it. Defendant told Mauricio that if a member wanted gang tattoos, they had to "[p]ut in work," such as by committing robberies. It was common for DBG members to carry guns, and the expectation was that if a DBG member saw a rival, they were supposed to fight or shoot.
Records for defendant's phone number corroborated Brian G.'s testimony about the group's whereabouts before, during, and after the shooting. Specifically, a text message on defendant's phone indicated the police followed the white Toyota just before the shooting. And shortly after the shooting, defendant sent an outgoing text message that read:" 'Watch out for them suckas. It's hot.' "
The prosecution's expert concerning DBG and other gangs in the San Pablo area testified as follows. Some of DBG's primary activities were robberies, carjackings, carrying concealed and loaded firearms, narcotics trafficking, and assaults with firearms. DBG's rivals included a Norteno gang called the Dub Boyz. DBG members assaulted "rivals" on sight. Defendant, Ricardo, and Steven were all DBG members. If only one or two people in DBG had the power to decide who gets to join or leave the gang, or be disciplined for violating rules, then that person would definitely be a leader. Presented with a hypothetical aligning with the evidence at trial, the expert opined the homicide-a "walk up" "execution-type murder"-would have been done for the benefit of, at the direction of, and in association with DBG. The expert explained that if a gang leader pointed out a rival, then there is "an expectation for someone in that car to get out and commit an act of violence on that rival gang member" and failure to perform could result in a punishment within the gang. A gang member just getting their feet wet would not shoot someone in a leader's presence unless that leader approved the act.
The gang expert testified concerning posts on what appeared to be defendant's Facebook page. Multiple posts dated before and after the murder discussed DBG, firearms, killing, and shooting people by doing "walk ups" (i.e., walking up to people and shooting them). One post that was dated after the murder read," 'Tha momma waiten for her son I sent him home-smak smak.'" The expert opined that "smak" meant a shooting and that the mother would be waiting for her son who has been sent to Heaven or the afterlife. The expert also testified that "DBG's signature is [a] walk up instead of a drive by."
B. Proceedings on the Section 1172.6 Petition
In 2022, defendant, through counsel, filed a petition for resentencing pursuant to former section 1170.95. Defendant's petition indicated that: (1) he was charged by information with second degree murder allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he was convicted of second degree murder; and (3) he could not now be convicted of murder.
The People conceded defendant stated a prima facie case for relief, and the trial court issued an order to show cause. Thereafter the parties filed briefs. Defendant argued in relevant part that the jury was instructed it could find defendant guilty of murder under the now invalid natural and probable consequences doctrine, and that the evidence presented at trial was insufficient to prove, beyond a reasonable doubt, that he directly aided and abetted the murder. The parties did not submit any new or additional evidence, and the court took the matter under submission.
Here, the natural and probable consequences instruction told the jury that "[t]he People may also prove that the defendant is guilty of Second Degree Murder on the alternative theory that the defendant aided and abetted the commission of an Assault with a Firearm and that the offense of Second Degree Murder was the natural and probable consequence of the commission of that crime." Despite the foregoing instruction, we note that in closing argument, the prosecutor never argued that the jury should rely on the natural and probable consequences doctrine, or that the target crime was a mere assault with a firearm. Instead, the prosecutor argued defendant's purpose in pointing out Eduardo was to point out who the intended shooting target was. The prosecutor even seemed to disavow that the target offense could have been an assault, stating: "And, again, afterward does the defendant . . . rebuke Steven . . . and say, You were supposed to do this instead of that. You were supposed to wave your gun and scare him. [¶] No. He rewards and praises Steven for getting his feet wet. He takes pride of it. He makes postings that are advertisement for his gang about how they do this kind of stuff in real life. [¶] He's promoting the gang. And, again, as he said, this is what you do to suckas. This is what he did to Manriquez. You heard earlier. Go looking for suckas. He shoots them."
In January 2023, the trial court issued a written order denying the petition. The court found, based on its own observations of the evidence and witness Brian G. at trial, that the testimony of Brian G. was credible, convincing, and substantially corroborated. In determining the evidence in its entirety proved beyond a reasonable doubt that defendant directly aided and abetted in the murder, the court explained: "The evidence established [defendant's] involvement in a planned, intended killing. As noted above, the evidence established that [defendant] aided and abetted the killing with express malice. But there is also no doubt that he acted, at the very least, with implied malice by authorizing and participating in acts that posed a serious danger to the life of Eduardo Ochoa." This appeal followed.
Discussion
A. General Principles
In 2018, the Legislature enacted Senate Bill No. 1437 (Senate Bill 1437) which "eliminated the natural and probable consequences theory of liability as a basis for a murder conviction." (People v. Reyes (2023) 14 Cal.5th 981, 984 (Reyes).) It did so by amending section 188 to provide that "except in cases of felony murder, 'in order to be convicted of murder, a principal in a crime shall act with malice aforethought.' (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)" (Reyes, at p. 986.)
Additionally, Senate Bill 1437 added section 1170.95 (later renumbered section 1172.6), which "provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis); Stats. 2022, ch. 58, § 10.) Where, as here, a prima facie showing for relief has been made (Lewis, at pp. 959-960), "the trial court issues an order to show cause, and then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'" (Id. at p. 960, italics added; see § 1172.6, subds. (c), (d).)
B. Sufficiency of Evidence
Defendant argues "[t]he evidence was not sufficient to prove beyond a reasonable doubt that [he] directly aided and abetted [Steven]'s act of shooting the victim." (Boldface omitted.) We disagree.
"Murder, whether in the first or second degree, requires malice aforethought. (§ 187.) Malice can be express or implied. It is express when there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills with 'no considerable provocation . . . or when the circumstances attending the killing show an abandoned and malignant heart' (§ 188, subd. (a)(2))." (People v. Gentile (2020) 10 Cal.5th 830, 844 (Gentile).) Case law explains that "[m]urder is committed with implied malice when 'the killing is proximately caused by" 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Reyes, supra, 14 Cal.5th at p. 988.)
"All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." (§ 31.) "[U]nder direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with 'knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends.'" (Gentile, supra, 10 Cal.5th at p. 843; People v. Beeman (1984) 35 Cal.3d 547, 561.)" '[T]o be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th at p. 991, italics omitted.)
We review the denial of a section 1172.6 petition for substantial evidence. (Reyes, supra, 14 Cal.5th at p. 988.) Under that familiar standard, we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt."' [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (People v. Clements (2022) 75 Cal.App.5th 276, 298.)
Here, the record contains more than ample evidence substantially supporting defendant's guilt as a direct aider and abettor to the murder. The testimony of Brian G. and the evidence of defendant's cell phone records establishes that just before the murder, defendant was in the car with Ricardo-who it was undisputed was the driver-and Steven-who it was undisputed was the shooter. The evidence further establishes that the group drove to the home of the victim's mother, and there defendant pointed out the victim and stated loudly and clearly, "That's him. . . . That's 'E.'" Once defendant said this, the car turned and halted, and Steven walked toward the victim and aggressively asked about his gang affiliation. After less than a minute of talking, Steven drew a gun and fatally shot the victim in the chest. Defendant expressed no surprise that Steven drew the firearm and no surprise, disapproval, or confusion when Ricardo told Steven to" 'Shoot that [racial slur].'" Defendant was not upset after the shooting and did not question Steven; instead, he was happy. Brian G. described defendant as having "a crazy look in his eye because he's the one that pointed [the victim] out." When Brian G. asked why they had killed the victim, defendant recounted that the victim had previously sent someone to try to kill him (defendant) but his niece was shot instead.
Beyond the foregoing, the trial testimony established that Ricardo and Steven were DBG gang members and that defendant was a DBG founder and leader who wielded the powers to accept or eject members from the gang, to allow members to get gang tattoos for committing crimes for the gang, and to discipline members. A former DBG member testified it was common for DBG members to carry guns, and the expectation was that if one saw a rival, then one would fight or shoot. In line with that testimony, the prosecution's gang expert testified that when a gang leader points out a rival, there is "an expectation" for a gang member to "commit an act of violence on that rival gang member." The gang expert also indicated a newer gang member would not shoot someone in a leader's presence unless that leader approved the act. As Brian G. recounted, just after the murder defendant described Steven as having "got his feet wet."
Considering the totality of the record, we find substantial evidence supporting the trial court's determination beyond a reasonable doubt that defendant directly aided and abetted Steven's shooting of the victim by pointing the victim out and effectively directing the shooting. There is also substantial evidence supporting the court's determination that when pointing out the victim, defendant knew Steven would walk up to and shoot the victim at close range; that defendant intended to facilitate, encourage, or instigate Steven in doing so; that defendant knew such an act is dangerous to human life; and that defendant acted in conscious disregard for human life. Notably, defendant told Brian G. the victim was killed because he had been involved in the shooting of defendant's niece. In sum, the record supports a determination beyond a reasonable doubt that defendant acted with either express or implied malice in aiding and abetting the shooting.
Defendant's arguments to the contrary are unavailing. In contending there was insufficient evidence to prove he knew Steven intended to shoot the victim, he principally attacks certain factual recitations in the trial court's written decision. This misapprehends the applicable standard of review.
On appeal, "we review the correctness of the court's ruling, not its reasoning. [Citation.] Because we are obligated to review the record independently to determine whether the ruling is supported by substantial evidence [citation], the court's statement of its reasons, while perhaps helpful in focusing our review, is not dispositive." (People v. Dickens (2005) 130 Cal.App.4th 1245, 1254.) We have independently reviewed the entire record, and as indicated, we conclude substantial evidence supports the trial court's decision.
We are unpersuaded by defendant's remaining contentions, which either selectively rely on evidence supportive of his position while ignoring adverse evidence, or essentially ask us to reweigh evidence. For example, defendant argues there was no evidence that he ordered the shooting, but he completely fails to grapple with the evidence showing how DBG operated and reflecting his and his members' respective roles in the gang, all of which established that when defendant pointed out the victim, defendant was ordering his subordinates to shoot the victim. And as an example of his lack of intent, defendant highlights Brian G.'s statement during a police interview that "the dude in the back was like, 'What the F is going on.'" But, again, he disregards the evidence Brian G. was still lying about defendant's involvement when he made that statement. Defendant also ignores the evidence that he appeared "happy, shocked" after the shooting, that he did not seem upset about the shooting and did not question why Steven shot the victim, and that he told Brian G. the victim was killed for his involvement in the shooting of defendant's niece.
Disposition
The order denying the petition for resentencing is affirmed.
WE CONCUR: Tucher, P. J., Rodríguez, J.