Opinion
B330611
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. CANDE CALDERON ESPINOZA, Defendant and Appellant.
Cliff Gardner, under appointment by Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA021717 Terry A. Bork, Judge. Affirmed.
Cliff Gardner, under appointment by Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
DAVIS, J. [*]
Cande Espinoza (defendant), convicted in 1993 under then-controlling rules regarding felony murder, petitioned for resentencing under Penal Code section 1172.6 (former § 1170.95). The trial court denied the petition after an evidentiary hearing, finding beyond a reasonable doubt that defendant was a major participant who acted with reckless indifference to human life. Substantial evidence supports this finding, so we affirm.
Further statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
I. Defendant's 1993 Prosecution
A. Preliminary Hearing and Trial Evidence
At the evidentiary hearing on defendant's petition for resentencing, the trial court considered evidence from both the 1993 preliminary hearing and subsequent trial; accordingly, we include evidence from both proceedings in this statement of facts.
On July 5, 1990, defendant, then 17-years-old, and Juan Castellanos (Castellanos) participated in a robbery-burglary. After Leticia Hernandez and her boyfriend Ramon Avellan departed their apartment, their babysitter stayed behind, but eventually left to do laundry, leaving the apartment door ajar. Shortly thereafter, defendant and Castellanos entered.
When the babysitter returned from the laundry room, she found defendant and Castellanos in the apartment. Defendant grabbed her, hit her right shoulder with a gun, and tied her hands behind her back. He asked if she knew where the money was, to which she responded, "no." Defendant then placed her face down in a bedroom with a rag over her head. He then told Castellanos to search for "the money." The babysitter was in the apartment with the men for 20 to 30 minutes.
Hernandez and Avellan returned with Hernandez's one-year-old an hour and a half after they left. Avellan saw defendant holding a gun and Castellanos holding a knife. The apartment had been "ransacked," with "everything . . . on the floor" in all of the rooms. Defendant pointed the gun at Avellan and Hernandez and ordered them to "come in" as Castellanos stood nearby holding a knife with a 9-inch blade. Defendant and Castellanos ordered the couple into a bedroom, while Castellanos held the knife to Avellan's heart. At some point, Hernandez pulled Castellanos' hand, and Avellan warned Hernandez, "Don't do that because the son of bitch can kill me." Hernandez responded, "Don't be afraid, these sons of bitches won't do anything." Defendant then pointed the gun at her and Avellan, saying "Do you want to see? Do you want to see? Yes or no." Hernandez began arguing with defendant and Castellanos, at which point defendant grabbed a suitcase and exited the apartment, running. Castellanos "also left in a hurry." Avellan attempted to call police, but the phone had been disconnected. Hernandez then ran after the men, and "threw herself on top of" defendant, who alerted Castellanos by yelling "hey, homes." Castellanos then reached into a bag, grabbed the gun, turned, and shot Hernandez in the eye, killing her.
Although the record is uncontradicted as to defendant's holding a gun at least up until he left the apartment, there is conflicting testimony on whether Castellanos or defendant was the shooter. Castellanos testified he shot Hernandez himself, but Avellan testified defendant shot Hernandez. The People proceeded on the theory Castellanos was the shooter, and thus that the gun somehow transferred from defendant to Castellanos before the men fled the apartment.
B. The Verdicts and Jury Findings
The jury returned a verdict finding defendant guilty of first degree murder (§ 187, subd. (a)), but found not true that defendant personally used a firearm in connection with the murder (§ 12022.5). The jury found true robbery-murder and burglary-murder special circumstance allegations (§ 190.2, subd. (a)(17)), and also convicted defendant of residential robbery (§ 212.5), residential burglary (§ 459), and false imprisonment by violence (§ 236), and-in connection with these counts-found true that defendant personally used a firearm (§ 12022.5) and that a principal was armed (§ 12022, subd. (a)(1)).
Castellanos had already pleaded guilty to murder and maintained he was the one who shot Hernandez.
The trial court sentenced defendant to life without the possibility of parole for murder, plus a determinate term for the other offenses. In an unpublished opinion, we stayed the sentence for robbery, but otherwise affirmed the judgment. (People v. Espinoza (Feb. 28, 1995, B078136).)
II. Defendant's 2019 Petition for Resentencing, Summary Denial, and Remand for Evidentiary Hearing
In 2019, defendant filed a petition for resentencing under then section 1170.95. The trial court summarily denied the petition, and defendant appealed. In an unpublished opinion, we reversed the trial court's order and remanded the matter, directing the trial court to issue an order to show cause and conduct an evidentiary hearing. (People v. Espinoza (Oct. 13, 2021, B307453).)
III. Hearing Under Section 1172.6, Subdivision (d)(3)
On remand, although the trial court noticed an evidentiary hearing in accordance with section 1172.6, subdivision (d)(3), both parties relied solely on the trial and preliminary hearing transcript from the 1993 prosecution. At the conclusion of the hearing, the trial court found the evidence established beyond a reasonable doubt that defendant was guilty of murder under the amended law.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues insufficient evidence supports the trial court's finding that he acted with reckless indifference to human life within the meaning of new section 189, subdivision (e)(3).
I. Standard of Review
We review a trial court's denial of a section 1172.6 petition after an evidentiary hearing for substantial evidence. (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).) In so doing," 'we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier] of fact could reasonably have deduced from the evidence.'" (People v. Sifuentes (2022) 83 Cal.App.5th 217, 233.)
Relying on People v. Vivar (2021) 11 Cal.5th 510 (Vivar), defendant urges us to independently review the trial court's finding because that court was in no better a position to make factual findings than this court given that the evidence consisted only of transcripts. Vivar's endorsement of an independent standard of review was limited to section 1473.7, regarding whether to vacate a conviction due to negative immigration consequences. (Vivar, at pp. 524-527.) Indeed, the court cautioned that "[n]othing we say here disturbs a familiar postulate: when reviewing a ruling under the substantial evidence standard, 'an appellate court should defer to the factual findings made by the trial court,' regardless of 'whether the trial court's ruling[s are based] on oral testimony or declarations.'" (Id. at p. 528, fn. 7.) We therefore join the chorus of courts rejecting defendant's position. (E.g., People v. Njoku (2023) 95 Cal.App.5th 27, 41-43; People v. Clements (2022) 75 Cal.App.5th 276, 301; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591.)
II. Senate Bill No. 1437 and Section 1172.6, Generally
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which substantially limited the scope of the felony-murder rule by eliminating the "natural and probable consequences" doctrine as a basis for a first degree murder conviction. (People v. Ramirez (2021) 71 Cal.App.5th 970, 983 (Ramirez); People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842843, 847-848.) As relevant here, new section 189, subdivision (e)(3) limits the felony-murder exception to the malice requirements to circumstances in which the defendant was both a "major participant" in the underlying felony and acted "with reckless indifference to human life," as described in subdivision (d) of section 190.2.
The new statute," 'by its text, imposes an actus reus requirement, major participation in the enumerated felony, and a mens rea requirement, reckless indifference to human life.'" (Ramirez, supra, 71 Cal.App.5th at p. 985; In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins); accord, People v. Clark (2016) 63 Cal.4th 522, 615 (Clark); People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) The statutory revision codifies the holding of Tison v. Arizona (1987) 481 U.S. 137," 'which articulates the constitutional limits on executing felony murderers who did not personally kill.'" (Ramirez, at p. 985.)
Senate Bill 1437 also establishes a procedure for individuals convicted of felony murder under the no longer viable "natural and probable consequences" doctrine to petition the court to vacate the earlier murder conviction and resentence them on the remaining counts of conviction. Under section 1172.6, if a petitioner makes a prima facie showing of entitlement to relief, including that he "could not presently be convicted of murder or attempted murder" because of the changes to sections 188 or 189, (§ 1172.6, subd. (a)(3)), the trial court must conduct an evidentiary hearing" 'to determine whether to vacate the murder conviction and . . . resentence the petitioner on any remaining counts.'" (Ramirez, supra, 71 Cal.App.5th at p. 984.)
At such an evidentiary hearing, "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 and 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) At such a resentencing hearing, the trial court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law." (Ibid.) If the trial court applies the proper standard and burden of proof, its denial of the petition after an evidentiary hearing is reviewed for substantial evidence. (Vargas, supra, 84 Cal.App.5th at p. 951; Ramirez, supra, 71 Cal.App.5th at p. 985.)
III. "Major Participant" and "Reckless Indifference" Under Banks, Clark, and Scoggins
The overlapping factors for assessing whether a defendant was a major participant in an underlying serious felony and acted with reckless indifference to human life for purposes of section 190.2, subdivision (d), and thus for section 189, subdivision (e)(3), were identified in Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522, and reiterated in Scoggins, supra, 9 Cal.5th 667. (See generally People v. Strong (2022) 13 Cal.5th 698, 705, 707.)
To determine whether a defendant was a major participant, the Banks court has identified the following considerations: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? 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 inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
The Supreme Court has also clarified that "reckless indifference to human life" under the revised statute requires a greater showing than" 'the foreseeable risk of death inherent in any [violent felony].'" (Scoggins, supra, 9 Cal.5th at pp. 676677.) Rather, the standard requires proof beyond a reasonable doubt that the defendant" 'knowingly creat[ed] a "grave risk of death." '" (Id. at p. 677.)
A defendant's involvement in an armed or violent felony is not, by itself, proof of reckless indifference to human life; participation "in a garden variety armed robbery, where death might be possible but not probable" is insufficient. (Banks, supra, 61 Cal.4th at p. 802.) The "use of a gun in the commission of the underlying felony standing alone is not sufficient to support a finding of reckless indifference." (Ramirez, supra, 71 Cal.App.5th at pp. 785-786.) Nor is" 'the fact a participant [in] an armed robbery could anticipate lethal force might be used'" sufficient to establish reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 677, quoting Clark, supra, 63 Cal.4th at pp. 617, 623, and Banks, supra, 61 Cal.4th at pp. 801, 808.) Rather," 'reckless indifference'" encompasses "a willingness to kill (or to assist another in killing)." (Clark, at pp. 616-617.)
The Supreme Court has enumerated nonexclusive factors relevant to the determination of "reckless indifference": 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? (Scoggins, supra, 9 Cal.5th at p. 677.)"' "No one of these considerations is necessary, nor is any one of them sufficient." '" (Ibid.)
Courts must view "the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life." (Scoggins, supra, 9 Cal.5th at p. 677.) Youth is an additional factor bearing on whether a defendant acted with reckless indifference to human life. (E.g., People v. Keel (2022) 84 Cal.App.5th 546, 558-559 (Keel); Ramirez, supra, 71 Cal.App.5th at pp. 990-991; In re Moore (2021) 68 Cal.App.5th 434, 454-455.)
There is a" 'significant[ ] overlap'" in the showing required to demonstrate acting as a major participant in a dangerous felony and acting with reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614-615.)" '[T]he greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Id. at p. 615.)
IV. Substantial Evidence Supports the Trial Court's Finding
Although defendant only challenges the trial court's finding he acted with reckless indifference, we briefly discuss the evidence showing he was a "major participant" because it shows his role as a leader in carrying out the underlying felony and thus increases the likelihood he acted with reckless indifference. (See Clark, supra, 63 Cal.4th at pp. 614-615; People v. Williams (2015) 61 Cal.4th 1244, 1281 [major participant need not be the ringleader].)
Defendant and his accomplice acted in unison: They arrived at the same time, each armed with a weapon, and acted in concert at the crime scene. When the babysitter returned, defendant grabbed her, tied her hands, touched her with his gun, and then restrained her with her head covered. Defendant also directed Castellanos to search for the money while he tied the babysitter's hands. When Avellan and Hernandez returned, defendant pointed the gun at them and ordered them inside while Castellanos stood by holding a knife. Defendant and Castellanos ordered the couple into a bedroom, while Castellanos held a knife to Avellan's heart. These facts support the trial court's conclusion that defendant was not only a "major participant," but also a "leader" in the planning and execution of the crime.
The evidence also supports the trial court's finding that defendant acted with reckless indifference to human life. Defendant used a gun to threaten the occupants of the apartment, and was aware that Castellanos was using a knife to do the same. Defendant and Castellanos were in the apartment with the babysitter for a substantial period of time-somewhere between half an hour and an hour and a half-enough time, at least, to ransack every room in the apartment.
Defendant argues that his entry into the apartment after the babysitter's departure is evidence that he and Castellanos planned to burglarize an "empty apartment." But we must view the record in the light most favorable to the judgment, and so doing, we observe that the babysitter's leaving the door ajar placed defendant and Castellanos on notice that someone would likely return to the apartment at any moment. The babysitter's inability to reveal where "the money" was kept further informed defendant that other people lived in the apartment and could return at any time.
Defendant also argues his eventual flight, in the face of Hernandez's resistance, negates the requisite mens rea. Critically, however, defendant's flight occurred after defendant and Castellanos had already made several threats of violence over a stretch of time. Defendant did not flee when the babysitter returned and instead restrained her, held a gun to her, and made her lie face down with her head covered. Defendant likewise brandished a gun at Hernandez and Avellan and ordered them inside the apartment. Defendant had the opportunity to reduce the chance of violence by fleeing when Avellan and Hernandez returned to the apartment with their one-year-old daughter. Instead, he used a gun to order them inside the apartment with him, the knife-wielding Castellanos, and the tied-up babysitter. Instead of fleeing when Hernandez first resisted, defendant threatened to shoot Hernandez and Avellan, and Castellanos held a knife to Avellan's heart.
When Hernandez chased defendant after he and Castellanos finally fled, he yelled, "hey, homes" to Castellanos who at that point had the gun. Particularly when viewing the evidence in the light most favorable to the prosecution, one could reasonably infer this was an alert to Castellanos intended to prompt Castellanos to engage in further violence.
Defendant urges us to find insufficient evidence of reckless indifference to human life because he was only 17 years old when he committed the felony. Although youth is a relevant factor for determining whether a defendant acted with reckless indifference (Keel, supra, 84 Cal.App.5th at pp. 558-559), it is not dispositive, and does not negate the substantial evidence of reckless indifference present here. "[T]he case law discussing the differences in brain development among youthful offenders . . . stress two areas of divergence [from adult offenders]: (1) their relative impulsivity; and (2) their vulnerability to peer pressure." (People v. Oliver (2023) 90 Cal.App.5th 466, 489 (Oliver).) Particularly given defendant's role as an equal and major participant, there is no evidence that defendant was influenced by peer pressure like the youthful defendant in Ramirez, supra, 71 Cal.App.5th at page 991, or that he was subject to a youthful "' "recklessness, impulsivity, and heedless risk-taking" '" like the 15-year-old defendant in Keel. (Keel, at p. 562.) To the contrary, defendant "made an intentional and volitional choice to take a calculated risk." (Oliver, at p. 490.) Particularly viewed in the light most favorable to the People, the record shows defendant was a leader in the robbery that was more premeditated than it was impulsive.
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: MOOR, Acting P. J. KIM, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.