Opinion
G060514 G061453
07-12-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERTO DIAZ, Defendant and Appellant.
Alissa Bjerkhoel and Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, and Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 96CF0802 Scott A. Steiner, Judge. Reversed and remanded with directions. Appellant's request for judicial notice is denied.
Alissa Bjerkhoel and Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, and Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Defendant Carlos Alberto Diaz appeals from a postjudgment order denying his petition for resentencing made pursuant to Penal Code former section 1170.95 (now Pen. Code, § 1172.6). Diaz and four codefendants-Juan Carlos Rivera, Miguel Angel Tapia, Guadalupe Adam Vertiz, and Jorge Perez Castro-were convicted in 1998 of second degree murder for the stabbing death of Cesar Arroyo. The trial court denied the petition after conducting a hearing under section 1172.6, subdivision (d).
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We shall use the current Penal Code section number throughout our opinion. All statutory references are to the Penal Code.
We conclude substantial evidence does not support the trial court's finding that Diaz could have been convicted of implied malice murder, as no substantial evidence supports the trial court's finding that Diaz knew one of his codefendants was in possession of a knife at the time of their assault on Cesar Arroyo. This finding is necessary to convict Diaz under an implied malice murder theory or an aiding and abetting of an implied malice murder theory after People v. Reyes (2023) 14 Cal.5th 981.
Accordingly, we reverse the trial court's order denying Diaz's resentencing petition and remand the matter with directions to grant Diaz's petition, vacate his murder sentence, and resentence him on the remaining counts and enhancements.
FACTUAL BACKGROUND
I. The Carjacking Two Weeks Earlier
On February 26, 1996, J.A. and Diaz's eventual codefendant Tapia, among others, carjacked C.S. at gunpoint. During the carjacking, Tapia possessed and brandished a knife. C.S. reported this incident to the police and returned to the scene later that night, where he and his cousin saw Diaz. C.S.'s cousin identified that person as Diaz, also known as "Diablo." Tapia was later arrested and told police that Diaz was not involved with the carjacking. At trial, another witness to the carjacking also testified that Diaz was present, but not involved with the carjacking.
II. The First Incident on the Day of the Murder
On March 14, 1996, at around 9:00 p.m., L.C., A.V., and several other friends left a quinceanera practice at a home on the corner of Wakeham and Oak streets in Santa Ana. While they stood outside at the corner, a brown-colored car with four occupants approached them and stopped a couple of feet away. Both L.C. and A.V. identified Rivera before and at trial.
Diaz, Rivera, Tapia, and Castro got out of the car at the same time. Rivera yelled "Lopers" and someone else said "Eastside." Diaz and his codefendants threw beer cans at L.C., A.V., and their friends. L.C., A.V., and their friends backed away without responding to the taunts.
While Rivera was standing about 30 feet away, L.C. saw an object in his pocket that had a shape resembling a knife. L.C. never saw Rivera remove that object from his pocket and saw no weapons. A.V. did not see Rivera in possession of any weapons.
At trial, A.V. testified that one of the four men (possibly Diaz) came after him with a knife and tried to stab him in the stomach, but A.V. lifted his arm to block the stab and the attacker dropped the knife. A.V. then ran away. L.C. testified he did not see anyone get into a physical fight; he testified "there was no fight."
Diaz, Rivera, Tapia, and Castro returned to their car and drove off. After buying more beer, they went and picked up defendant Vertiz. After picking up Vertiz, defendants went to buy more beer.
III. The Beating and Murder of Cesar Arroyo
At 9:20 p.m. that same night, K.L., her boyfriend Cesar Arroyo, and her sister L.L. were walking northbound on Standard Street in Santa Ana on their way to the grocery store. A brown-colored car approached them from the opposite direction. As the car drove past, its five occupants stared at them. The car made a U-turn and pulled up beside K.L., Arroyo, and L.L. Rivera jumped out of the car and, with a beer can in his hand, asked Arroyo, "'Where you from?'" Arroyo responded, "'I don't claim.'" When Rivera asked him again, Arroyo insisted, "'Really I don't claim.'" Rivera proclaimed, "'We're from Lopers,'" or "'big, bad Lopers'" and threw the beer can at Arroyo. K.L. interceded, and the beer can hit her on the head.
The other four defendants then jumped out of the car and all five began beating Arroyo. Arroyo, who was five feet five inches in height and weighed 131 pounds, did not fight back. One defendant was punching Arroyo in the stomach with his fist.
After a minute or two of being beaten, Arroyo fell to the ground against the fence. He tried to cover and protect himself while the defendants continued to hit and kick him. They continued to kick and hit Arroyo for five to six minutes as he lay on the ground. Tapia and Vertiz punched K.L. when she tried to pull them off of Arroyo.
K.L. testified that while Arroyo was on the ground the defendants hit and kicked him. L.L. testified that four of the five defendants "piled on" Arroyo as he lay on the ground and one defendant stood behind her.
At some point, Tapia stepped away and stood behind L.L. A few seconds later, three of the defendants got back into the car while another stood at the back of the car and waited. Arroyo managed to stand up. One defendant, identified as wearing a blue shirt and dark, square pants, went up to Arroyo and pushed him in the chest. Arroyo started walking, then stumbled and fell to the ground.
The defendant who pushed Arroyo ran back to the car. Once all five were inside the car, they drove away.
L.L. went to seek help, and police officers arrived shortly thereafter. Arroyo had been stabbed several times and later died of his wounds.
The police officers took K.L. and L.L. to a liquor store where the officers had pulled over a car matching that of the defendants. Diaz and his four codefendants were inside the car. Diaz was the driver. A steak knife was found in the car's locked glove compartment. After defendant Castro was arrested, his home was searched, and a knife was found underneath a mattress in the garage.
At trial, L.L. identified all five defendants as participating in the attack on Arroyo. When asked how many of them struck Arroyo, L.L. testified, "The five of them." Neither K.L. nor L.L. saw any weapons or objects in the defendants' hands other than the beer can used by Rivera.
IV. The Pathologist's Testimony
Joseph Halka, a pathologist for the Orange County Sheriff-Coroner, performed an autopsy on Arroyo's body. Halka testified that Arroyo died from exsanguination (he bled to death) caused by a stab wound to the heart and left lung.
Halka found a total of seven stab or slash wounds. Before Arroyo died, emergency surgery had been performed that altered "some of the contours" of the wounds. The wound to the heart was caused by a knife with a "two-edged configuration," meaning it was sharp on both edges or sides. A stab wound to Arroyo's left kidney was potentially fatal and also appeared to have been caused by a "two-edged configuration" knife. The remaining knife wounds, including defensive slash and "punctate" wounds, were non-fatal and could have been caused by either a two-edged knife or a one-edged knife. Arroyo also had bruises and contusions on his body.
V. Tapia's Police Interview and Testimony
Police investigators interviewed Tapia early on March 15, 1996. Tapia admitted that he and his fellow gang members had attacked Arroyo but repeatedly denied having used a weapon. Tapia told the investigators that, before the attack, "the other guys said, 'watch that guy,'" with reference to Arroyo. Diaz (the driver) stopped the car, everyone got out, and they started fighting Arroyo. When asked why Tapia was fighting Arroyo, Tapia responded, "[b]ut was very - if you see him in the street like that, you're going to figure he's a gang member, and you're going to stop him, and you're going to say hey, you understand me?" Tapia claimed he did not have any weapons and he did not stab Arroyo.
At trial, Tapia testified that he had stabbed Arroyo and had lied to police when he was arrested. He testified he had in his pockets a knife which he had obtained from work at a Del Taco, where he used it to cut up boxes. The knife was "straight" (as opposed to being a folding knife), had a three-inch blade and a three-inch handle, and was sharp on both edges. Tapia did not have a sheath or pouch for the knife but on March 14, 1996, he was wearing oversized pants with huge pockets that could accommodate the knife. Tapia testified he had forgotten about the knife when he left work at 4:00 p.m.
Tapia testified that he and his codefendants did not have any discussion about getting into a fight. Tapia had been drinking earlier that night and was drunk. Tapia claimed that as the five drove past Arroyo he screamed "Little Minnie Locotes" and lifted his hand with five fingers outstretched at a 45-degree angle. The car made a U-turn. All five got out of the car and attacked Arroyo. Tapia took out the knife and stabbed Arroyo. Tapia remembered stabbing Arroyo a few times. Tapia did not remember how it happened because he was drunk and did not recall why he stabbed Arroyo. When he realized he was stabbing Arroyo with a knife, Tapia got scared and ran back to the car. He did not think he had seriously injured Arroyo because Arroyo was still standing and walking.
According to Tapia, he and his codefendants got back into the car and drove off. They returned to the place where they had attacked Arroyo and there saw an ambulance. They next drove to a liquor store to buy more beer. Soon thereafter, they were stopped by police officers and arrested.
At first, Tapia claimed that he could not remember what he did with the knife. He then testified that he had tossed the knife out of the driver's side window while on the way to the liquor store. Tapia claimed that none of his codefendants knew that he had a knife, that he had stabbed Arroyo, or that he had tossed the knife out of the window.
Regarding the earlier confrontation with L.C. and A.V.'s group, Tapia claimed that he, Rivera, Diaz, Castro, and two brothers whose names he did not know were in the car when someone in that group looked at them and said something, which led Tapia and his codefendants to stop the car. Tapia and his codefendants threw beer cans at the people in L.C. and A.V.'s group. Tapia testified that neither he nor any of his codefendants got close to or chased after anybody. He was not sure whether he or any of his codefendants shouted "Lopers" as "the music was on loud." He denied using the knife during the incident.
PROCEDURAL HISTORY
I. The Charges and Trial
Diaz and all four codefendants were charged by amended information filed in 1997 with the murder of Arroyo (§ 187, subd. (a); count 1). Rivera, Tapia, Diaz, and Castro were charged in count 2 with the attempted murder of L.C. and in count 3 with the attempted murder of A.V. (§§ 664, 187).
In May 1998, Diaz and the codefendants were tried together by jury. Outside the jury's presence all defendants admitted that they were members of the Lopers, it was a criminal street gang, and any alleged crimes they were convicted of committing had been committed for the benefit of the Lopers. After the prosecution rested its case-in-chief, the court granted a defense motion pursuant to section 1118.1 acquitting Rivera, Tapia, Diaz, and Castro on count 2 (attempted murder of L.C.) and dismissing the enhancements associated with that count.
The jury was instructed on aiding and abetting, the natural and probable consequences doctrine, conspiracy, murder, express and implied malice, attempted murder, second degree murder resulting from an unlawful act dangerous to life, and the lesser included offenses of assault with a deadly weapon, simple battery, and simple assault.
The jury convicted all defendants of second-degree murder. Under count 3 (attempted murder of A.V.), the jury acquitted all defendants of attempted murder but found them guilty of the lesser included offense of misdemeanor assault (§ 240). The jury also found that Tapia personally used a knife at the time of the commission of the murder.
The trial court sentenced Diaz to a term of 15 years to life.
Diaz and the other defendants appealed. In an unpublished opinion, a panel of this court remanded for reconsideration of presentence custody credits but otherwise affirmed the judgment and sentence. (People v. Diaz (Mar. 28, 2001, G023892) [nonpub. opn.].)
II. Diaz's Resentencing Petition
In 2019, Diaz filed a petition to vacate his murder conviction and for resentencing pursuant to Penal Code section 1172.6. The petition was denied, and Diaz appealed. During the pendency of the appeal, Diaz requested, and this court granted, a stay of proceedings of the appeal to allow Diaz to file a new petition in the trial court, given the passage of Senate Bill No. 775, which amended section 1172.6. (Stats. 2021, ch. 551, § 2.) The trial court conducted a hearing on this new petition and denied it as well. Defendant took a second appeal, which was consolidated with the first.
Based upon the reporter's transcript of both hearings, the trial court's ruling on the petition appeared to be premised upon a finding that Diaz knew before the assault on Arroyo that one of his codefendants had a knife, based on the evidence presented at trial concerning the first incident on that same day. The trial court appears to have rejected the notion that the jury's acquittal of the defendants on the attempted murder charges stemming from that incident affected the trial court's ability to consider that evidence in support of a finding on the subsequent murder.
The Attorney General concedes the trial court's ruling was based upon a finding that Diaz knew someone in the group had a knife when they confronted Arroyo.
DISCUSSION
I. Standard of Review
A trial court's denial of a section 1172.6 petition following a hearing under section 1176.2, subdivision (d)(1) is reviewed under the substantial evidence standard. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) We review the record in the light most favorable to the order denying the petition in order to determine whether the evidence is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) "[W]e defer to the trial court's implicit credibility findings and accept all reasonable inferences from the evidence. (People v. Oliver (2023) 90 Cal.App.5th 466, 482.) Substantial evidence is not just any evidence but must constitute substantial proof. (People v. Bell (2020) 47 Cal.App.5th 153, 179.) We presume the court has made all necessary implied findings in support of the judgment or order. (People v. Francis (2002) 98 Cal.App.4th 873, 878.)
II. Resentencing Under Section 1172.6
By legislation effective January 1, 2019, the Legislature amended the felony-murder rule and eliminated the natural and probable consequences theory of liability as a basis for a murder conviction. (Stats. 2018, ch. 1015, § 2; see Reyes, supra, 14 Cal.5th at p. 984.) The latter result was accomplished by amending sections 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.)
Section 1172.6 lays out a procedure by which convicted murderers who could not be convicted under the law as amended could retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 952, 957.) To obtain relief under section 1172.6, a petitioner must file a petition alleging these three conditions have been met: (1) the petitioner was convicted based on a pleading "that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" (§ 1172.6, subd. (a)(1)); (2) the petitioner was convicted of murder or attempted murder (id., subd. (a)(2)); and (3) the petitioner could not now be convicted of murder or attempted murder as those offenses are presently defined (id., subd. (a)(3)).
If the court determines the petitioner has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter 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." (§ 1172.6, subd. (d)(1).) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution 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 made effective January 1, 2019." (Id., subd. (d)(3).) At the evidentiary hearing, the resentencing court sits as an independent fact finder. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
III. Knowledge of the Knife is a Necessary Prerequisite to Implied Malice Murder Here
Murder 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."'" (People v. Knoller (2007) 41 Cal.4th 139, 143.) "'To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.'" (People v. Jennings (2010) 50 Cal.4th 616, 643.)
A defendant may directly aid and abet an implied malice murder. (Reyes, supra, 14 Cal.5th at p. 990.) "'[N]otwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (Ibid.)
The elements of aiding and abetting an implied malice murder were recently confirmed by the California Supreme Court in Reyes: "'[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, 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.'" (Reyes, supra, 14 Cal.5th at pp. 990-991.)
In Reyes, the California Supreme Court clarified what mental state is necessary to impose liability for aiding and abetting implied malice murder. In Reyes, the defendant was convicted of second degree murder under the natural and consequences theory for his role in a gang-related killing. (Reyes, supra, 14 Cal.5th at p. 984.) The defendant met with a group of gang members in a park, where one gang member (Lopez) showed the group a revolver he was carrying. (Id. at p. 985.) Several hours later, the defendant and several other gang members set off on their bicycles to an area on the edge of territory claimed by a rival gang. (Ibid.) One of the bicycle riders called out for a passing car to stop. (Ibid.) The car sped up instead, and the group chased after it. (Ibid.) While the group was stopped at an intersection, the car they were chasing made a U-turn and drove past them. (Ibid.) There was a gunshot, and the riders fled in different directions. The driver of the car had been struck by a single gunshot. (Ibid.) The defendant was not the shooter. (Id. at p. 989.)
The trial court denied the defendant's section 1172.6 petition on the ground that the act of riding into rival gang territory with several other gang members, one of whom was armed, was dangerous to human life, the defendant was aware that act was dangerous to human life, and the defendant deliberately acted with conscious disregard for that danger. (Reyes, supra, 14 Cal.5th at pp. 986-987.) The Court of Appeal affirmed the trial court's decision. (Id. at p. 987.) The Supreme Court, reversing the Court of Appeal, concluded the defendant's murder conviction could not be sustained under either a direct perpetrator or aiding and abetting implied malice murder theory. (Id. at p. 992.)
Relevant to the matter at hand is the Supreme Court's discussion of aiding and abetting implied malice murder. After reciting the definition and elements of that theory of liability, quoted above, the court stated, "the trial court did not appear to recognize that implied malice murder requires, among other elements, proof the aider and abettor's knowledge and intent with regard to the direct perpetrator's life endangering act." (Reyes, supra, 14 Cal.5th at p. 991.) The trial court had erred by finding the life-endangering act was traveling with other gang members, one of whom was armed, into rival gang territory. (Id. at pp. 991-992.) The correct focus, the Supreme Court explained, is on the acts of the direct perpetrator: "[I]mplied malice murder requires attention to the aider and abettor's mental state concerning the life-endangering act committed by the direct perpetrator, such as shooting at the victim." (Id. at p. 992.) "Here, assuming the life-endangering act was the shooting, the trial court should have asked whether Reyes knew that Lopez intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life." (Ibid.)
Under Reyes, the "direct perpetrator" in this case was the person who stabbed Arroyo (likely Tapia). The "life-endangering act committed by the direct perpetrator" was the stabbing. There is no substantial evidence that the beating, absent the knife wounds, would have resulted in Arroyo's death; only the lethal stab wound to the heart and the stab wound to the kidney area were described by the pathologist as even potentially fatal. Thus, for Diaz to be guilty of implied malice murder, he must have known that one or more persons in his group had (and intended to use) a knife. The trial court appears to have come to the same conclusion, and the Attorney General does not argue otherwise.
No substantial evidence supports a finding that Diaz himself stabbed Arroyo.
IV. No Substantial Evidence Supports the Trial Court's Denial of the Petition
As the record suggests and the Attorney General acknowledges, the trial court applied the correct legal standard: proof of Diaz's knowledge of the knife prior to the killing was necessary to sustain Diaz's murder conviction under an implied malice theory. However, the trial court erred by relying on evidence from the earlier encounter the same day to support a finding that Diaz knew of the knife. The Attorney General's arguments suffer from the same flaw.
Crucially, the jury acquitted all four defendants of the attempted murder of A.V. and convicted them instead of misdemeanor assault. The jury also declined to convict the defendants of assault with a deadly weapon, assault with intent to cause great bodily injury, and battery, despite being instructed on those charges as potential lesser included offenses. The only reasonable deduction from the verdict is the jury did not believe A.V., who was the only person who testified to the knife attack. The jury must instead have concluded the knife attack on A.V. never happened, as defense counsel strenuously argued at trial. Acquittal on the attempted murder counts also eliminates the theory that Diaz and his codefendants were out on the hunt for a rival gang member to kill, and being unsuccessful the first time, attacked Arroyo to kill him.
Vertiz was not present for the earlier incident and therefore was not charged.
A.V.'s testimony about the knife attack therefore cannot be used as support for a finding that Diaz either had or knew somebody within his group had a knife. "'[A] trial court cannot deny relief in a section [1172.6] proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.'" (People v. Arnold (2023) 93 Cal.App.5th 376, 384.) Without evidence of a knife being displayed in an attack on A.V., the only remaining evidence of Diaz's advance knowledge of the knife is the carjacking, weeks earlier. The gap in time between the carjacking and the killing renders that evidence insubstantial; seeing someone carrying an object on a single occasion, without more, does not result in a reasonable inference that the same person must be carrying the same object weeks later.
The prosecution did offer a gang expert who testified that in his experience, "when gang members go into rival gang territory and there is a weapon in the vehicle, that most oftentimes all of the members in there know that there is a weapon in there." The expert's testimony cannot, however, serve as the sole evidence of guilt (People v. Nguyen (2015) 61 Cal.4th 1015, 1097 (conc. & dis. opn. of Cuellar, J.) and, outside the expert's testimony, there was no substantial evidence that Diaz knew any of the other defendants had a knife. Indeed, the prosecution's expert also testified that gang members sometimes act spontaneously and that whether or not a gang member would tell fellow gang members he had a knife "would be dependent completely on the totality of the circumstances." The expert acknowledged that on a prior occasion he had testified he did not know whether or not most gang members would tell anybody if they were carrying a knife. Neither the trial court (in making its ruling) nor the Attorney General (in arguing for an affirmance) rely significantly on the gang expert's testimony.
The lack of solid evidence to prove Diaz stabbed Arroyo or knew about the knife and aided the person who did, explains why the prosecutor at trial relied so heavily on the natural and probable consequences theory to seek a murder conviction. In closing, the prosecutor argued there "was no need to prove knowledge of a knife." The prosecutor stressed that point: "We started up with a fight and we ended up with someone who was murdered. That's all that has to be proven. That's why . . . I didn't spend a lot of time in trying to prove to you who the stabber was." Later, the prosecutor repeated that argument: "You don't have to prove that they all did the stabbing. If they all went out to beat up a rival that night, and that's what they did and a death resulted, and that death is a natural and probable consequence, that's it."
The prosecutor's closing argument of course is not evidence and does not control our decision or that of the trial court. It is, however, confirmation of the lack of solid evidence that Diaz knew one of his codefendants had a knife, the codefendant intended to stab Arroyo with the knife, and Diaz aided the codefendant in stabbing Arroyo.
V. People v. Schell
People v. Schell (2022) 84 Cal.App.5th 437 (Schell), though similar in many respects, demonstrates by distinction why Diaz could not be convicted for aiding and abetting implied malice murder. In Schell, eight gang members attacked and killed a man whom they suspected had called the police to complain the gang had disturbed the peace. (Id. at p. 440.) The victim used a baseball bat to fend off the attackers until one of the attackers grabbed the bat and used it to beat the victim. Another attacker hit the victim in the head with a shovel. The defendant participated in the attack with his hands and fists. (Ibid.) The victim was stabbed with a knife, but the prosecution could not prove the defendant was the stabber. (Ibid.)
The defendant brought a petition for resentencing under section 1172.6. (Schell, supra, 84 Cal.App.5th at p. 441.) At the conclusion of an evidentiary hearing, the trial court found the defendant's participation in the gang assault resulting in death rendered him liable for second degree implied malice murder and denied the petition. (Ibid.) The trial court made clear its ruling "'does not depend on the knife.'" (Ibid.)
The Court of Appeal agreed with the trial court and affirmed. (Schell, supra, 84 Cal.App.5th at p. 440.) The defendant was one of at least eight gang members or associates who had viciously assaulted the victim. (Id. at p. 443.) The trial court could reasonably infer that the defendant knew the victim was being hit in the head by a shovel and bat and intended to aid those acts. (Ibid.) The defendant was at the scene when a cohort wrested the bat from the victim. During the attack, the blows to the victim with the bat and shovel were loud enough to be heard by several neighbors and cries of "'stop it'" and "'you're killing him'" also could be heard. (Ibid.) The defendant was so deep into the fray that his pants, underwear, and jacket became stained with the victim's blood. (Ibid.) The appellate court concluded: "Appellant's presence at the scene, his participation in the attack on the victim, his companionship with other perpetrators, his conduct before and after the crimes, and his motive of retaliation for disrespect all support the finding that he aided and abetted an implied malice murder. [Citation.] As the People note, '[a]ppellant did not need to specifically know that someone would strike [the victim] with [a shovel and bat] in that particular manner to be liable under an implied malice theory. It suffices that he knew he was aiding in a violent attack, knew dangerous weapons were being used against [the victim], and intended to stop [the victim] from escaping or defending himself by helping the perpetrators surround and hit him.'" (Ibid.)
In Schell, the perpetrator's mental state could be imputed to the defendant, without reference to the knife, because the evidence supported a finding that he knew other gang members were using dangerous weapons to attack the victim. (Schell, supra, 84 Cal.App.5th at p. 443.) Although the present case is, like Schell, an attack by a group of gang members on a single person, unlike Schell there was no solid evidence that Diaz knew someone in his group had a knife and intended to use it. There was no evidence that anybody saw a weapon (except for a thrown beer can) or saw a weapon being wrested from Arroyo. There was no evidence that anybody heard noises indicating weapons were being used, and there was no evidence that Diaz's clothing, or anybody else's, was bloodied in the attack on Arroyo.
DISPOSITION
The postjudgment order denying Diaz's resentencing petition is reversed and the matter is remanded with directions to grant the petition, vacate Diaz's murder sentence, and resentence him on the remaining counts and enhancements.
We deny appellant's request that we take judicial notice of the opinion we rendered in case No. G061635, as it is unnecessary to our decision.
I CONCUR: BEDSWORTH, ACTING P. J.
Moore, J., Concurring and Dissenting.
The majority opinion accurately summarizes the California Supreme Court's recent intervening holding in People v. Reyes (2023) 14 Cal.5th 981 (Reyes). The majority notes that the Supreme Court has "clarified what mental state is necessary to impose liability for aiding and abetting implied malice murder." (Maj. opn., ante, at p. 12.)
I concur with the result. That is, I agree that this court should reverse the trial court's postjudgment order, which denied defendant Carlos Alberto Diaz's petition for resentencing under former Penal Code section 1170.95 (now Pen. Code, § 1172.6).
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10); all further undesignated statutory references are to the Penal Code.
However, I respectfully dissent from the disposition. Just as the Supreme Court ordered in Reyes, I would remand the matter to the trial court with directions to conduct a new evidentiary hearing. (See § 1172.6.) I think this disposition would give the parties a fair opportunity to present any additional evidence and/or make any additional arguments in light of the Supreme Court's clarification in Reyes. I think this disposition would also give the trial court a fair opportunity to reconsider its ruling in light of Reyes. (See § 1260 [an appellate court may "remand the cause to the trial court for such further proceedings as may be just under the circumstances"].)
The parties and the trial court would also have the opportunity to consider any other relevant, intervening case law. (See, e.g., People v. Pittman (2023) 96 Cal.App.5th 400.).
I also fundamentally disagree with the majority's substantial evidence analysis. Given the requirements of section 1172.6, the trial court is the exclusive trier of fact at an evidentiary hearing. (§ 1172.6, subd. (d)(3).) It is not this court's role to judge the credibility of witnesses or to reweigh the evidence. Consequently, and without expressing my views on the relative weight of the evidence, I cannot agree with the majority's analysis that the trial court's ruling was not supported by substantial evidence.
I will briefly highlight: 1) the substantial evidence standard of review; 2) the expert testimony; 3) the evidence regarding the carjacking that took place a couple of weeks prior to the murder of Cesar Arroyo; and 4) the evidence regarding the assault of A.V. that occurred about 20 minutes before the murder of Arroyo.
1. Substantial Evidence
"When considering a challenge to the sufficiency of the evidence . . ., we review 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-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27, italics added.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) "The reviewing court presumes in support of the judgment the existence of every fact the [trier of fact] could reasonably deduce from the evidence. [Citations.] Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
Here, the evidence supporting Diaz's liability for an implied malice murder is "admittedly not overwhelming, but 'we need not be convinced beyond a reasonable doubt .... The relevant inquiry on appeal is whether "'any rational trier of fact'" could have been so persuaded.'" (See People v. Wharton (1991) 53 Cal.3d 522, 546.)
2. Expert Testimony
A gang expert testified at the jury trial that weapons are very important to gang members. In response to a hypothetical question, the expert opined that if five Lopers gang members were driving in a car and pulled up to three people walking on the street, and one of those people may have claimed a rival gang, the expert would expect one or more of the Lopers gang members to be armed with a weapon. The expert said when Lopers gang members confront rival gang members, "they would want to be armed themselves during that confrontation." The expert testified: "It is my experience that when gang members go into rival gang territory and there is a weapon in the vehicle, that most oftentimes all of the members in there know that there is a weapon ...." The expert explained that "in the event of a violent confrontation, the gang members need to know where their protection is coming from, and if, in fact, they do have protection."
As the majority notes, this testimony was challenged during the trial, and it is certainly not dispositive. However, the finder of fact on remand may (or may not) determine that it strengthens other evidence in the record (e.g., the evidence below) supporting the prosecution's theory that Diaz knew another member of his gang was armed with a knife before the murder of Arroyo. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1055 ["Although 'gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime' . . ., [the gang expert's] testimony strengthened inferences arising from other evidence specific to defendant's role in the crime"].)
3. Evidence Regarding the Carjacking
As to the carjacking that occurred a couple of weeks before Arroyo's murder, the majority opinion states: "The gap in time between the carjacking and the killing renders that evidence insubstantial; seeing someone carrying an object on a single occasion, without more, does not result in a reasonable inference that the same person must be carrying the same object weeks later." (Maj. opn., ante, at pp. 14-15.)
The majority's analysis of the evidence seems reasonable. But again, this is a substantial evidence review and our role is to "presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence." (See People v. Lindberg, supra, 45 Cal.4th at p. 27.) It also seems reasonable to infer that evidence of a knife being present at a carjacking by Lopers gang members just two weeks before Arroyo's murder corroborates the gang expert's testimony that gang members usually arm themselves with weapons-and they are aware that other gang members are armed with weapons-before they commit crimes in rival gang territory.
4. Evidence Regarding the Assault
Collateral estoppel "'bars relitigation of issues earlier decided "only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding."'" (People v. Arnold (2023) 93 Cal.App.5th 376, 386, italics added (Arnold).)
As to the assault of A.V., which occurred about 20 minutes before the murder of Arroyo, the majority opinion states that "the jury acquitted all four defendants of the attempted murder of A.V., and convicted them instead of misdemeanor assault. The jury also declined to convict the defendants of assault with a deadly weapon, assault with intent to cause great bodily injury, and battery, despite being instructed on those charges as potential lesser included offenses. The only reasonable deduction from the verdict is the jury did not believe A.V., who was the only person who testified to the knife attack. The jury must instead have concluded the knife attack on A.V. never happened, as defense counsel strenuously argued at trial." (Maj. opn., ante, at p. 14, fn. omitted.)
The majority concludes: "A.V.'s testimony about the knife attack therefore cannot be used as support for a finding that Diaz either had or knew somebody within his group had a knife." (Maj. opn., ante, at p. 14.)
However, this is not my understanding of how the doctrine of collateral estoppel (issue preclusion) works. The jury necessarily decided the prosecution did not prove beyond a reasonable doubt that Diaz and his fellow gang members committed the crime of attempted murder (and the lesser included felony offenses). The jury also necessarily decided that a misdemeanor assault by the gang members was proven beyond a reasonable doubt. But the jury did not necessarily decide that there was not a knife present during the misdemeanor assault because that issue was not actually litigated. The majority's "reasonable deduction" about the jury's deliberations is nothing more than an educated guess. (See People v. Abilez (2007) 41 Cal.4th 472, 513 [valid jury verdicts may reflect "'jury lenity, compromise, or mistake'"].)
The majority's reliance on Arnold, supra, 93 Cal.App.5th 376, seems somewhat misplaced. In Arnold, the trial court denied defendant's section 1172.6 petition. (Arnold, at p. 381.) After reviewing the jury trial transcripts at an evidentiary hearing, the trial court found defendant was the actual killer and "'it is clear beyond a reasonable doubt that [defendant] stabbed the victim.'" (Id. at p. 382.) But the jury had found not true a sentencing allegation that defendant personally used a weapon during the murder. (Id. at p. 381.) Applying the doctrine of collateral estoppel, the Court of Appeal found: "The issue of whether defendant stabbed the victim was actually litigated at the original trial. As described above, the jury necessarily decided the issue in rendering its not true finding on the knife use allegation." (Id. at p. 387, italics added.) Thus, the appellate court reversed the ruling of the trial court. (Id. at p. 393.)
But unlike the weapon allegation in Arnold, the issue of whether Diaz knew that one of his fellow gang members had a knife prior to the murder of Arroyo was not actually litigated or necessarily decided at the original jury trial. Thus, it does not seem to me that the Arnold opinion is directly applicable to the issues in this appeal.
For all the foregoing reasons, I concur in the result, but I dissent from the disposition, and I also disagree with the majority's substantial evidence analysis.