Opinion
2d Juv. No. B296312
07-09-2020
In re B.D., A Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.D., Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2016041480)
(Ventura County)
B.D. appeals the juvenile court's order sustaining a wardship petition after finding true allegations that she committed voluntary manslaughter (Pen. Code, (§ 192, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). (Welf. & Inst. Code, § 602.) The court also found the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). The court ordered appellant committed to the care, custody, and control of the probation department for suitable placement and sentenced her to 952 days in juvenile hall with time served. Appellant contends the finding that she committed voluntary manslaughter must be reversed in light of Senate Bill (SB) 1437 (2017-2018 Reg. Sess.). We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On June 28, 2016, appellant, who was then 16 years old, ran away from home. She began staying with her friend Julissa Gutierrez. The next day, appellant asked Gutierrez to pick up appellant's boyfriend Luis "Luigi" Aguilar, a member of the Colonia gang, from a market in Oxnard. Gutierrez drove appellant to the market in her Honda Civic, where they picked up Aguilar and his fellow Colonia members Richard Hernandez and Alexis Ramirez. Gutierrez then drove appellant and the three men to her work. Gutierrez gave appellant permission to use her car to drive to Ramirez's house.
Appellant, Aguilar, Hernandez and Ramirez spent the next several hours driving around Ventura in Gutierrez's car. They went into rival gang territory, where appellant got out of the car and took pictures of Aguilar, Hernandez and Ramirez flashing gang signs. While Hernandez was driving and appellant was sitting in the front passenger seat, Hernandez took videos on his cell phone depicting Ramirez brandishing a handgun and Aguilar flashing gang signs.
At about 4:00 p.m., Corey Smith and Cameron Miller, both African-American, were walking on the sidewalk on the corner of Main Street and Telephone Road in Ventura when one of the occupants of Gutierrez's vehicle called out to them, "What's up, bitches." Smith and Miller did not respond and kept walking.
Gutierrez's vehicle followed Smith and Miller to a bridal shop on Main Street. Two or three of the men in the vehicle got out and one of them said, "Colonia." Appellant got into the driver's seat. Miller pulled out a knife to defend himself, and one of the Colonia members pulled out a gun and threatened to shoot him. Miller put the knife away and he and Smith continued walking down Main Street.
Appellant yelled at Aguilar, Hernandez, and Ramirez to get into the vehicle. After all three men got in, appellant drove down the street at a high rate of speed and turned into a parking lot. Aguilar, Hernandez, and Ramirez got out of car while appellant remained in the driver's seat. The men shot at Smith and Miller, who then ran across the street. Miller suffered a fatal gunshot wound to his chest and Smith was shot in the leg. Hernandez, who was seen running with a gun in hand, was overheard saying, "I got him."
After all three men got back into the car, appellant drove away and onto the 126 freeway. A few minutes later appellant pulled over and switched seats with Hernandez, who took over driving. They drove to a McDonald's in Oxnard, where all four entered the restaurant and ordered food.
While the investigation at the crime scene was still underway, a corporal from the Ventura Police Department saw Gutierrez's vehicle traveling northbound on Victoria Avenue near the intersection of Telephone Road. A high-speed chase ensued, the car crashed, and Hernandez fled on foot. Police pulled Ramirez, the rear left passenger, out of the car. Aguilar was unconscious and lying face down in the center console. Appellant was pulled out of the front passenger seat because her leg was stuck. Hernandez was apprehended in a nearby field. Later at the hospital, appellant made numerous statements implicating herself in the crime. She was overheard telling Aguilar "I love you, Luigi" and added, "Stars up and niggers down."
Oxnard Police Department Detective Jess Aragon, the prosecution's gang expert, opined that the shooting was done for the benefit of the Colonia gang and that all of the offenders, including appellant, acted for the benefit of the gang or in association with the gang. The detective reasoned that the gang members had challenged two African-American men, yelled out their gang name, and shot them, showing that they were willing to do whatever it takes to end the confrontation victoriously. When appellant said "[s]tars up and niggers down," she was declaring her allegiance to the gang because the five-pointed star of the Dallas Cowboys is one of the gang's symbols and the term "niggers" was a reference to their attack on the two African-American men.
Appellant was initially charged in a wardship petition with murder (§ 187, subd. (a); count 1) and attempted murder (§§ 187, subd. (a), 664; count 2). It was further alleged that (1) appellant committed her crime for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)) and (2) a principal personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d) & (e)(1)).
The prosecution petitioned the juvenile court to transfer the case to adult court pursuant to former Welfare and Institutions Code section 707, subdivision (a)(1). Following a transfer hearing, the court determined that the case should remain in juvenile court.
On October 22, 2018, an amended petition was filed charging appellant with voluntary manslaughter (§ 192, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)), with attendant gang enhancement allegations. The prosecution indicated that the amended petition was filed "in light of [the] recent legislation that's been signed by the governor, [SB] 1437." The prosecutor explained that although the law would not be going into effect until January 1, 2019, "we're gonna [sic] proceed as if it's the current law." Appellant's attorney indicated that she had no objection to the amendment.
At the contested disposition hearing, the prosecution argued that appellant could be found to have committed the voluntary manslaughter on two different theories: (1) directly aiding and abetting the target offense of voluntary manslaughter; and (2) directly aiding and abetting the target offense of assault with a firearm, the natural and probable consequences of which was the nontarget offense of voluntary manslaughter. In sustaining all of the allegations of the petition, the court stated: "I'm not going to go into a lengthy explanation of what got me here. But . . . it was very difficult to put much credence into [appellant's] statements because they were filled with demonstrable lies that the evidence showed she was just not telling the truth to the police officers. The statement that she made in the hospital to her codefendant, the stars up statement, solidified for me what her knowledge was [and] what her mindset was. And I've made my ruling." The court later indicated at sentencing that although appellant "did the bare minimum to earn her manslaughter conviction" and played a lesser role than her accomplices the court was "convinced beyond a reasonable doubt . . . that she aided and abetted in that" crime.
In discussing the court's ruling, appellant erroneously cites to comments made at the conclusion of the transfer hearing, which was held before a different judge. Moreover, those comments were made in the context of deciding whether the prosecution had met its burden of establishing that appellant should be transferred to adult court, not whether she had committed the crimes with which she was charged.
DISCUSSION
In her sole claim on appeal, appellant contends the juvenile court's finding that she committed voluntary manslaughter must be reversed because SB 1437, which eliminated the natural and probable consequences theory of murder, applies retroactively to her case. She claims the prosecution "changed the charge from murder to voluntary manslaughter to make an end [run] around the SB 1437 restrictions on using the natural and probable consequences doctrine to establish accomplice liability for homicides."
We recently held, however, that "[SB] 1437 does not apply retroactively on direct appeal." (In re R.G. (2019) 35 Cal.App.5th 141, 146.) Accordingly, a party seeking relief under Senate Bill 1437 must first file a petition in the trial court under section 1170.95. (Ibid.)
Section 1170.95, provides in pertinent part: "A person convicted of felony murder or murder under a natural and probable consequences theory" may file a petition "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." --------
We have also recognized, as have other courts, that section 1170.95 does not apply to voluntary manslaughter: "[T]he language of the statute unequivocally applies to murder convictions. There is no reference to the crime of voluntary manslaughter. To be eligible to file a petition under section 1170.95, a defendant must have a first or second degree murder conviction. The plain language of the statute is explicit; its scope is limited to murder convictions. [Citation.]" (People v. Cervantes (2020) 44 Cal.App.5th 884, 887 (Cervantes), italics added; see also People v. Turner (2020) 45 Cal.App.5th 428 (Turner); People v. Flores (2020) 44 Cal.App.5th 985 (Flores).)
Appellant's attempts to distinguish these authorities are unavailing. Although she notes that the stated purpose of SB 1437 was "to more equitably sentence offenders in accordance with their involvement in homicides" (Stats. 2018, ch. 1015, § 1, subd. (b)) and that manslaughter is considered a form of homicide, the language of section 1170.95 plainly and unambiguously refers only to murder convictions. She also notes that the defendants in Cervantes, Turner, and Flores sought relief from final convictions involving guilty pleas to voluntary manslaughter, but fails to persuasively explain how this distinction is relevant to our analysis.
Appellant's citations to People v. Medrano (2019) 42 Cal.App.5th 1001, review granted March 11, 2020, S259948 (Medrano), and People v. Larios (2019) 42 Cal.App.5th 956, review granted Feb. 26, 2020, S259983 (Larios), are also unavailing. In those cases, the court held that SB 1437 applies on direct appeal to defendants convicted of attempted murder, even though section 1170.95 does not apply to those previously convicted of attempted murder. (Medrano. at pp. 1016-1018.) The court concluded that notwithstanding the clear and unequivocal language of section 1170.95, SB 1437's changes to sections 188 and 189 preclude imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. (Larios, at p. 966; Medrano, at p. 1013.) The court in Larios reasoned that section 188 as amended states that "'malice shall not be imputed to a person based solely on his or her participation in a crime'" (Larios, at pp. 967-968), and contained "no exceptions for attempted murder, which indisputably requires express malice." (Id. at p. 967.)
Appellant, however, was found to have committed voluntary manslaughter, not attempted murder. Voluntary manslaughter "is the unlawful killing of a human being without malice." (§ 192, italics added; People v. Soto (2018) 4 Cal.5th 968, 974.) Appellant is thus not entitled to the relief she seeks.
In light of our conclusion, appellant's remaining claims are moot.
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Ryan J. Wright, Judge
Superior Court County of Ventura
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.