Opinion
H049085
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARCUS DEJONG, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC779769
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Robert Marcus Dejong pleaded guilty in 2010 to second degree murder (Pen. Code, § 187) for his role in the fatal stabbing of a suspected rival gang member. The trial court sentenced defendant to prison for 15 years to life.
All further statutory references are to the Penal Code.
In 2019, defendant petitioned under section 1172.6 to have his conviction vacated and to be resentenced. The trial court issued an order to show cause and conducted an evidentiary hearing before denying the petition. Defendant appeals the trial court's denial of his petition. For reasons we will explain, we will affirm the trial court's denial of defendant's petition.
Defendant's petition was filed under section 1170.95, which was later renumbered. For ease of reference, we will refer to this statute by its current designation, section 1172.6.
II. BACKGROUND
A. Factual Summary
We provide a brief summary of the evidence presented at the evidentiary hearing conducted on defendant's petition, which consisted of the transcript of defendant's preliminary hearing and exhibits introduced at the preliminary hearing.
Defendant and codefendants including Kosal Khek were believed to be members of a gang of about 10 to 15 people. Members of defendant's group planned to stab a 16-year-old boy in retaliation for earlier acts, including the shooting of a member of defendant's group. Members of defendant's group exchanged messages about their plans to either kill or hurt the 16-year-old suspected rival gang member, and they shared the intended victim's photograph and information about his schedule among themselves. Defendant was not part of the group that exchanged these messages. However, defendant was part of other message threads within his group in which violent activity was discussed and in which defendant expressed a desire to inflict harm on suspected rival gang members.
Defendant drove Khek and another person to the intended victim's location. Defendant stopped in front of a shopping center and Khek got out. Khek walked up to the victim and asked him to confirm his name; when the victim did so, Khek stabbed the victim in the stomach two times before running away. While this was occurring, defendant drove to the rear of the shopping center, where he met Khek after the stabbing. When Khek returned to the car, he said, "I got him three times," and that he may have stabbed the victim in the neck. The victim died from "stab wounds [to] the trunk."
Police interviewed defendant one week later. Defendant at first denied being at the scene of the stabbing or having seen Khek recently. When pressed, however, defendant admitted to helping plan the attack and driving Khek to the scene of the stabbing. Defendant then stated that the group did not plan to kill the victim, but just wanted to "hurt" him. Asked what the group planned to do to the victim, defendant told police that the group either planned to "jump" him or stab him in the stomach, which they did not believe would kill the victim. Defendant said the entire group in the car -defendant, Khek, and a third person - came up with this plan. Defendant also stated the group's motivation for attacking this specific victim included the belief that the victim was involved in stealing money from a member of defendant's group during a drug deal. Defendant told police that he and the others involved went to the shopping center to carry out the attack, but that they did not want to go through with the plan because the victim looked like "a little kid," so defendant and the others left. Defendant told police that the group then returned to the area moments later, when Khek got out and committed the stabbing.
B. Procedural History
Defendant pleaded guilty to second degree murder, and a gang allegation was dismissed. The trial court sentenced defendant to prison for 15 years to life. The plea colloquy from defendant's guilty plea was not included in the appellate record.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) took effect on January 1, 2019, imposing "statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) Senate Bill 1437 added section 1172.6, which provides an avenue for a person convicted in a case involving felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and to be resentenced.
Defendant petitioned for relief under section 1172.6, declaring that if his case had proceeded to trial, the prosecution would have presented a theory of liability under the natural and probable consequences doctrine, and that he could not now be convicted of murder because of recent changes to murder law. The trial court issued an order to show cause. At the evidentiary hearing, the trial court considered the testimony and exhibits from defendant's preliminary hearing; no witnesses testified at the evidentiary hearing.
The trial court issued an oral ruling denying the petition, finding that the evidence demonstrated beyond a reasonable doubt that defendant acted with at least implied malice in aiding and abetting the stabbing. The trial court cited the messages among other group members, defendant's relationship with these other members, the group's motive to retaliate against the victim, defendant's statements to police officers recognizing that a stabbing in the stomach would take place, defendant's control of the vehicle, evidence that the group deliberated whether and how to ambush the victim, and defendant's lack of concern immediately after the stabbing as support for its conclusion that defendant acted with at least implied malice in aiding and abetting the murder. Thus, the court ruled: "I believe that the only interpretation of the evidence that is reasonable is that [defendant] knew and had a subjective awareness of that risk and danger to human life and that by his own acts and mens rea he consciously disregarded that risk." This appeal followed.
III. DISCUSSION
Defendant raises two main arguments that the trial court erred in denying his section 1172.6 petition. He first asserts that the trial court erred in failing to consider defendant's youth in determining whether he possessed the requisite mental state. Second, he contends that implied malice aiding and abetting murder is no longer a valid theory of murder liability, and thus the trial court applied the wrong mens rea standard in concluding that defendant aided and abetted the stabbing with "conscious disregard" for human life.
Defendant argues that this court should review the trial court's ruling under a de novo standard. "Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.]" (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) "But where there is an issue as to whether the trial court misunderstood the elements of the applicable offense, the case presents a question of law which we review independently. [Citation.]" (Ibid.) Defendant does not argue that the trial court's ruling was incorrect in its factual conclusions. Rather, he argues that the trial court committed legal error by failing to consider evidence of his youth and by stating an incorrect mens rea standard. It is therefore appropriate to review defendant's assertions as questions of law that we review independently. Upon this independent review, we find no error, and therefore we will affirm the trial court's ruling.
A. Consideration of Defendant's Youth
In the section 1172.6 proceedings, defense counsel represented in briefing to the trial court that defendant was 18 years old when the stabbing occurred. At the evidentiary hearing, defense counsel mentioned defendant's age of 18 four times to assert defendant was sincere when he told police he did not believe the victim would die from being stabbed in the stomach, and thus defendant did not possess a conscious disregard for human life. The trial court did not specifically address defendant's age in issuing its oral ruling denying the petition.
As the parties note, several Court of Appeal decisions have recently held that a defendant's youth is a relevant factor in section 1172.6 proceedings as to the question of whether the defendant possessed the necessary mens rea required under amended murder law with regard to felony murder. (See, e.g., People v. Harris (2021) 60 Cal.App.5th 939, 960 (Harris); People v. Ramirez (2021) 71 Cal.App.5th 970, 987; People v. Keel (2022) 84 Cal.App.5th 546, 562; People v. Jones (2022) 86 Cal.App.5th 1076, 10911093 (Jones); People v. Oliver (2023) 90 Cal.App.5th 466, 489-490 (Oliver).) In People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman), the Court of Appeal held: "The policy interests underlying the felony-murder cases-that youth is relevant to a criminal defendant's ability to perceive risk and consequences, and therefore to the level of culpability-apply equally in the context of implied malice murder." (Id. at p. 417.) In some of the cases listed above, the courts have held that they would not presume the trial court considered the defendant's age as a factor unless the trial court articulated this, given recent case law development in this area. (See, e.g., Jones, supra, at p. 1092 ["[I]t is unlikely in this particular instance that the trial court could have known to consider Jones's age and maturity level, particularly to the extent now required by cases issued after Jones's hearing"]; Oliver, supra, at p. 488 [applying Jones]; Pittman, supra, at p. 417 ["[T]here was no discussion of Pittman's youth in the proceedings in the trial court, and the court did not mention the subject in its otherwise comprehensive ruling. We cannot, therefore, assume the trial court implicitly considered it. [Citation.]"].)
Assuming without deciding that the trial court was required to consider defendant's youth when determining that defendant was guilty of implied malice aiding and abetting murder, we find no prejudicial error in the trial court's ruling. The trial court did not specifically state whether it considered defendant's youth in making its ruling. However, the trial court heard defense counsel's repeated references to defendant's age of 18 years in arguing that defendant did not appreciate the risk involved in stabbing the victim in the stomach, and the trial court rejected this argument, ruling: "I do not find it credible that [defendant] did not think that the stabbing was highly dangerous to human life. I also do not find it credible that he did not consciously disregard that risk at the time he facilitated and assisted the actual stabber in committing the crime." We have no reason to believe the trial court did not consider defendant's age for the purposes for which it was offered. By the time the trial court issued its order, the first of the cases that stated a defendant's youth is a relevant consideration in section 1172.6 proceedings (Harris) had been decided for more than two months. "[W]e apply the general rule 'that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
However, even if the trial court failed to consider defendant's age, any such error was harmless because there was no "reasonable probability that the failure to consider [defendant's] youth impacted the trial court's decision. [Citation.]" (Pittman, supra, 96 Cal.App.5th at p. 417.) In Oliver, the Court of Appeal found that any error in the trial court's failure to expressly consider the defendant's youth was harmless, in part because "Oliver has failed to present on appeal or in the court below any specific support for the proposition that his level of maturity somehow lessened his culpability for this murder." (Oliver, supra, 90 Cal.App.5th at p. 490.) The court in Oliver reached this conclusion in part by comparing its facts to the facts of Jones, where the record of conviction included a defense-provided report that "asserted that [the defendant] had a traumatic and violent upbringing, had suffered from under-diagnosed mental health issues and drug abuse, witnessed his first murder at age 10, had become numb to violence, was vulnerable to increased aggression, and appeared to be impulsive rather than criminally sophisticated." (Jones, supra, 86 Cal.App.5th at p. 1091.) As in Oliver, no evidence similar to that in Jones has been presented in the instant case; defense counsel merely mentioned defendant's age in asserting that defendant did not appreciate the risk from stabbing someone in the stomach. On appeal, defendant asserts that the argument concerning his age was supported by a statement by a police detective who stated defendant appeared "sincere" in his emotional reaction during the interview. However, the trial court considered this argument and found it not credible, and we see nothing about this statement that lessens defendant's culpability or that demonstrates he was not aware of the risk to human life from his actions. Defendant participated in an attack in which he drove another person to commit a stabbing against a suspected rival gang member, knowing the person defendant drove planned to stab the victim in the stomach. Defendant presented no evidence to the trial court that his age would affect his appreciation of the danger involved in this act, and we see nothing about defendant's age that would cause the trial court to believe that defendant did not act with the requisite mens rea simply because he was 18 years old at the time of the stabbing.
B. Applicable Mens Rea - Implied Malice Aiding and Abetting Murder
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) The malice necessary for a killing to constitute murder comes in two forms, express or implied. (§ 188, subd. (a).) "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (Id., subd. (a)(1).) "Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Id., subd. (a)(2).) Prior to recent amendments to the Penal Code, "[t]he natural and probable consequences doctrine made 'a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a "natural and probable consequence" of the crime originally aided and abetted.' [Citation.]" (People v. Johns (2020) 50 Cal.App.5th 46, 58.) Therefore, "the natural and probable consequences doctrine constituted an exception to the requirement of either express or implied malice for a murder conviction. [Citation.]" (People v. Vargas (2022) 84 Cal.App.5th 943, 953.) Following the enactment of Senate Bill 1437, however, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The trial court ruled that despite the elimination of the natural and probable consequences doctrine - the theory defendant asserted the prosecution would have proceeded under if his case had gone to trial - defendant remained liable for murder. The trial court ruled that aiding and abetting murder with implied malice remains a valid theory of murder, and that the evidence proved beyond a reasonable doubt that defendant harbored the mental state necessary under this theory. In his opening brief, defendant contended that the trial court erred in two related respects. First, he asserted that "[i]mplied malice is not a sufficient mens rea for aiding and [abetting] murder because it does not meet the requirement that an aider and abettor harbor the specific intent to commit murder." Second, he argued that the trial court erred because it found that defendant acted with conscious disregard for life, the standard for implied malice murder, instead of the reckless indifference to human life standard he asserts is appropriate in this situation.
Following the completion of briefing in this matter, the California Supreme Court issued its decision in Reyes. In Reyes, our Supreme Court noted in reviewing a trial court's denial of a section 1172.6 petition that "[c]ase law has recognized and applied" the theory of direct aiding and abetting second degree murder, "and we see no basis to abrogate it." (Reyes, supra, 14 Cal.5th at p. 990.) The court stated that" 'to 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.' [Citation.]" (Id. at p. 991.) Because the California Supreme Court issued this decision following the completion of briefing in the instant case, we provided the parties the opportunity in supplemental briefing to address the impact of this decision on defendant's arguments concerning the current validity of the theory of implied malice aiding and abetting murder. In response, defendant acknowledges that Reyes establishes that implied malice aiding and abetting murder remains a valid theory of murder, and that Reyes's references to the "conscious disregard" standard under this theory appear to negate his argument that the trial court employed the wrong standard. We agree. Reyes establishes that the trial court applied the correct "conscious disregard for human life" standard in ruling the prosecution proved beyond a reasonable doubt that defendant is still guilty of implied malice murder as an aider and abettor under current law.
IV. DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
WE CONCUR: GROVER, J., BROMBERG, J.