Opinion
A166364
08-24-2023
THE PEOPLE, Plaintiff and Respondent, v. EDGAR CONTRERAS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. No. SCUKCRCR1583264)
CHOU, J.
Defendant and appellant Edgar Contreras appeals the trial court's denial of his petition for resentencing pursuant to Penal Code section 1170.95. The trial court initially denied the petition after finding that Contreras failed to make a prima facie showing that he was eligible for relief. Contreras appealed that denial and this court reversed and remanded the matter for an evidentiary hearing. Following that hearing, the trial court again denied the petition because it found that Contreras could still be convicted of murder under amended section 189. Specifically, the court concluded that the evidence showed beyond a reasonable doubt that
All further statutory references are to the Penal Code unless otherwise specified.
The Legislature subsequently renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) For clarity and consistency, we will only reference section 1172.6.
Contreras was a major participant in the underlying robbery and acted with reckless indifference to human life. We agree and affirm.
We take judicial notice of the record in Contreras' prior related appeal, People v. Contreras (June 18, 2021, A160042) [nonpub. opn.], notwithstanding the People's failure to request judicial notice of this record by separate motion. We remind the People that a separate motion is required under California Rules of Court, rule 8.252(a).
A. Procedural History
In March 2016, plaintiff and respondent the People of the State of California (People) filed an information charging Contreras, Mario Godinez Gonzalez, and Isidro Lopez Bernal (collectively, defendants) with one count of murder (§ 187), with a special circumstance that the murder was committed during a robbery (§ 190.2, subd. (a)(17)(D)), and one count of second degree robbery (§§ 211, 212.5, subd. (c)). The information further alleged that all three defendants personally and intentionally discharged firearms during the commission of these crimes (§ 12022.53, subd. (c)) and that they personally and intentionally discharged firearms which proximately caused the victim's death (§ 12022.53, subd. (d)).
In February 2017, Contreras pled guilty to second degree murder and admitted to personally using a firearm during the commission of the crime. (§ 12022.53, subd. (b).) On the People's motion, the trial court dismissed the remaining count and special allegations. The parties agreed Contreras would receive a sentence of 15 years to life for the murder conviction plus a consecutive 10-year term for the firearm enhancement. Accordingly, the trial court sentenced Contreras to 25 years to life in state prison.
In February 2019, Contreras filed a petition for resentencing pursuant to section 1172.6. The petition alleged that Contreras was prosecuted under a felony-murder theory; that he pled guilty to second degree murder because he believed he could have been convicted at trial under the felony murder rule; and that he could no longer be convicted of murder because of amendments to sections 188 and 189. Following briefing by the parties, the trial court concluded that Contreras failed to make a prima facie case for relief and denied the petition. Specifically, the court found that, based on the evidence, "the prosecution could have proceeded on a felony-murder theory, a direct perpetrator theory and an aiding and abetting theory." Contreras appealed this denial. In an unpublished opinion, this court reversed and remanded the matter "with directions to issue an order to show cause and to hold a hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that Contreras is ineligible for resentencing." (People v. Contreras, supra, A160042.)
On remand, the trial court held an evidentiary hearing on July 11, 2022. The People relied on the transcript from the preliminary hearing as well as the victim's autopsy report as evidence. Contreras did not offer any evidence. Following the hearing, the trial court again denied the petition.The court held that the evidence showed beyond a reasonable doubt that Contreras "was a major participant in [a second degree] robbery and in its commission acted with reckless indifference to human life." The court specifically noted that this was a planned robbery and that Contreras and Gonzalez "fired their weapons when a voice from the dark told them to stop stealing the marijuana. There is no evidence they fired their weapons in self-defense." The court concluded that Contreras could still be convicted of murder under amended section 189 and was therefore not entitled to relief under section 1172.6. Contreras timely appealed this second denial.
The trial court conducted a joint evidentiary hearing with codefendant Gonzalez as he also filed a petition for resentencing and the parties requested that their petitions be heard together.
The trial court's order noted that statements by Contreras and Gonzalez were admitted at the preliminary hearing under Evidence Code section 1220 and were admissible at the evidentiary hearing on the same grounds in that "the respective statements of the petitioners are admissible as to only the declarant/defendant/petitioner." Thus, neither Contreras nor the People can rely on any inadmissible hearsay statements by his codefendants on appeal.
B. Facts from Preliminary Hearing
At around 1:00 a.m. on September 27, 2015, Gonzalez drove his truck to a friend's house after she asked to borrow it. When Gonzalez arrived at the house, he told his friend he needed a ride. Contreras was in the passenger seat of the truck. The friend got into the backseat and Gonzalez drove. They stopped and picked up Bernal. They continued driving for about an hour before Gonzalez turned down a dirt road and stopped under an oak tree at around 2:00 a.m. Gonzalez and Contreras got out to retrieve firearms that Gonzalez previously hid in this area for safekeeping. Gonzalez handed Contreras a pistol, Bernal a rifle, and kept another rifle for himself. They got back into the truck and drove for a mile before stopping again. This time, all three defendants got out and the friend drove the truck away. Defendants proceeded to walk towards a marijuana garden.
Contreras later stated he met with Gonzalez and Bernal that night with the intent of going to this garden to steal marijuana. Contreras also claimed he did not expect anyone to be at the garden. When asked why he brought a gun, Contreras replied, "I am not experienced, but it's what you do when you do these things." Contreras stated his intent was not to kill anyone. Once they arrived at the garden, defendants began cutting and bundling the marijuana. Contreras and Gonzalez cut and bundled the marijuana at a top garden while Bernal was somewhere else, possibly moving the bundled marijuana away from the area. At some point, Gonzalez gave his rifle to Contreras and took Contreras' pistol so that it would be easier for Gonzalez to cut the marijuana.
After about an hour in the garden, Contreras heard a man's voice saying, "stop, don't move." He then heard gunshots and ran. Contreras stated he fired his rifle once into the air. He saw Gonzalez fire his gun and also heard multiple shots fired before he started running. As Contreras ran, he was shot by Bernal. Bernal and Gonzalez helped Contreras call 911 before they left him.
When police officers arrived, they walked up the hill and found an encampment at the top as well as what appeared to be a well-traveled trail. The police followed the trail and discovered the victim's body. The victim had three separate bullet wounds. The victim also had a firearm at his side that was in its holster. Two nearby trees at the top of the hill were damaged by bullets. A rifle casing was found in the garden below and .9mm shell casings were found throughout the area. Nine .9mm fired casings were found in one of the marijuana bundles. The victim's autopsy revealed that he was shot from afar and that the fatal shot was likely fired at a downward angle. The autopsy did not reveal what kind of ammunition caused the victim's gunshot wounds.
II. DISCUSSION
A. Law and Standard of Review
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)" '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).)" (People v. Gentile (2020) 10 Cal.5th 830, 846-847.) Among other things, Senate Bill 1437 added section 189, subdivision (e), which "limits liability under a felony-murder theory principally to 'actual killer[s]' ([] § 189, subd. (e)(1)) and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree' (id., subd. (e)(2)). Defendants who were neither the actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life'" under section 189, subdivision (e)(3). (People v. Strong (2022) 13 Cal.5th 698, 708.)
Senate Bill 1437 also added section 1172.6, which outlines the procedure for defendants convicted of murder to petition for resentencing in the trial court if they believe they could no longer be convicted of murder based on amended section 189. (Stats. 2018, ch. 1015, § 4.) If the trial court determines that the petitioner has made a prima facie showing for relief, it must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subd. (c).) At the evidentiary hearing, the parties may rely upon evidence in the record of conviction or new evidence to show whether the petitioner is eligible for resentencing. (§ 1172.6, subd. (d)(3).) The prosecution bears the burden of proving, "beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.)
On appeal, we review the trial court's factual findings for substantial evidence. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) The test is" 'whether any rational trier of fact could have' made the same determination, namely that '[t]he record ... disclose[s] . . . evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find [as did the superior court]. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the [order] the existence of every fact the [superior court] could reasonably have deduced from the evidence.'" (Ibid.)
B. Substantial Evidence Supports the Trial Court's Findings.
Contreras contends the trial court's denial of the petition must be reversed because there was insufficient evidence that he was a major participant in the robbery or that he acted with reckless indifference to human life. We disagree.
1. Major Participant in Underlying Felony
In determining whether a defendant was a major participant in the underlying felony, the "ultimate question" is whether "the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citations]." (People v. Banks (2015) 61 Cal.4th 788, 803 (Banks).) Relevant factors to consider include: "[1] What role did the defendant have in planning the criminal enterprise that led to one or more deaths? [2] What role did the defendant have in supplying or using lethal weapons? [3] 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? [4] 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 inactions play a particular role in the death? [5] What did the defendant do after lethal force was used?" (Ibid.) In making this determination, "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient." (Ibid.)
Consideration of the above factors supports the trial court's finding that Contreras was a major participant in the underlying robbery. As to the first factor, although the extent of his involvement in the planning was not clear, Contreras did admit that he and his co-defendants met after midnight and drove an hour to the garden specifically to steal marijuana. As to the second factor, Contreras accepted a firearm from Gonzalez and was aware that his co-defendants each had a firearm as well. Contreras himself not only carried a firearm the entire time he was in the garden stealing marijuana but fired it in the dark in response to hearing someone telling him to stop. Contreras contends the third factor is in his favor because he did not expect violence. But this contention is belied by the fact that all three defendants entered the garden armed and by Contreras' explanation that he was armed because "it's what you do when you do these things." Based on those facts, a rational trier of fact could conclude that Contreras was aware of the risk of violence when trespassing onto another's land in the middle of the night to steal marijuana. Although Contreras may have hoped defendants would not need to use their guns, he would not have joined his co-defendants in carrying firearms unless he anticipated the possibility that someone might be there to stop them.
With respect to the fourth factor, Contreras was not only present at the scene of the killing but fired his rifle in the dark in response to hearing a man's voice. Contreras argues there was no evidence he actually shot the victim because his co-defendants also fired shots. But the actions of his co-defendants do not negate his role as a major participant in the underlying robbery. It is also nonsensical to argue that Contreras "did nothing to facilitate the firing of shots by his companions" when Contreras also had a gun and fired it. Indeed, his shot may have very well been one of the three shots that struck the victim. His self-serving claim that he fired only one shot in the air does not negate this possibility.
Finally, with respect to the fifth factor, Contreras lied to the police officers who discovered him wounded at the marijuana garden when he claimed he was in the area trimming marijuana and refused to tell the officers any further details about what had happened. More notably, Contreras could have, but did not, alert the officers to the fact that someone else in the area may be wounded and require medical attention.
Substantial evidence therefore supports the trial court's finding that Contreras was a major participant in the underlying robbery.
2. Reckless Indifference to Human Life
"Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, '[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.' [Citations.] As to the objective element,' "[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." '" (In re Scoggins (2020) 9 Cal.5th 667, 677.)
The totality of the circumstances is analyzed to determine whether a defendant acted with reckless indifference to human life. "Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (Ibid.) Again, no one factor is necessary, nor is any one of them necessarily sufficient. (Ibid.)
Substantial evidence supports that Contreras acted with reckless indifference to human life. Many of the factors described above overlap with those used to establish that Contreras was a major participant and will not be repeated. We again emphasize that Contreras not only carried a firearm during the robbery but fired it in the dark in response to hearing the victim's voice telling him to stop. The trial court properly concluded that there was no evidence Contreras fired the rifle in self-defense, as the victim was found with his firearm still in its holster. Contreras claims he fired the rifle as "a spontaneous reaction to hearing an unexpected voice." But even if true, Contreras still acted with reckless indifference to human life when he blindly fired his weapon in the dark in response to that unexpected voice. In any event, Contreras' claim is belied by the evidence, which suggests that Contreras first ran after hearing the voice and gunshots. It is questionable how "spontaneous" it was then to fire his rifle after he was already running. Further, the fact that Contreras himself was shot by Bernal demonstrates the recklessness of and risk of harm created by his firing of a gun in the dark.
In People v. Bradley (2021) 65 Cal.App.5th 1022, 1036 (Bradley), this court noted that it was not aware of any case "in which a defendant actively participated in a robbery, wielded a firearm during that robbery, and was present for the shooting, but an appellate court found insufficient evidence to support a finding that the defendant acted with reckless indifference for human life." We too are unaware of any such case. In his reply brief, Contreras argues that the facts in Bradley are distinguishable as the defendant there was aware of the violent nature of the planned robbery. Although Bradley did involve different facts, its emphasis on "the importance of a defendant being an active participant who wielded a firearm" in determining whether a defendant acted with reckless indifference is equally applicable here. (Id. at p. 1035.)
Indeed, Contreras identifies no case in which a court found insufficient evidence to support a finding of reckless indifference where, as here, the defendant carried a firearm during the commission of a felony and was present at the shooting." 'The defendants who have shown their culpability was too slight under Banks and Clark "are those who were not wielding guns themselves and also not present for the shooting (either because they were acting as getaway drivers or because they were involved in the planning of the crime only." '" (Bradley, supra, 65 Cal.App.5th at p. 1035.) Here, Contreras not only wielded a firearm during the robbery; he fired it. Whether he anticipated that his marijuana theft would become violent is therefore irrelevant. Likewise, although Contreras' actions may not have been as egregious as the actions of those defendants in the cases he cites in his briefs, this does not diminish the reckless indifference shown by Contreras in carrying a firearm during a robbery and blindly firing it in the dark upon hearing someone telling him to stop.
III. DISPOSITION
The order denying the section 1172.6 petition is affirmed.
We concur. JACKSON, P. J., BURNS, J.