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People v. Esquivel

California Court of Appeals, Fourth District, Second Division
Jun 20, 2024
No. E080804 (Cal. Ct. App. Jun. 20, 2024)

Opinion

E080804

06-20-2024

THE PEOPLE, Plaintiff and Respondent, v. JOHN ERIC ESQUIVEL, Defendant and Appellant.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. CR40021 Walter H. Kubelun, Judge. Reversed.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MILLER, J.

After a hearing on an order to show cause, the trial court denied the resentencing petition of defendant and appellant, John Eric Esquivel. (Pen. Code, § 1172.6.)Defendant contends the trial court erred because substantial evidence does not support the finding that he could be convicted under the amended felony murder laws. We reverse.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTS

A. FIRST TRIAL

In March 1991, defendant's girlfriend was Mary Walmsley (Walmsley). Jenny Cotanche (the victim) was friends with Walmsley. Walmsley and defendant visited the victim's home approximately 10 times.

On March 22, 1991, the victim, who was 18 years old, stayed home from high school because she felt ill. Defendant, who was 19 years old, went to the victim's home. Defendant's friends, Duane Wilson (Wilson) and Damien Lee Brown (Brown), also went to the victim's house. The victim asked defendant to tell Wilson to leave her house because she suspected Wilson had stolen her credit card on a prior occasion. Wilson walked toward the front door to leave but then walked back into the house, argued with the victim, and "started hitting her on the head" with a gun. Walmsley testified that defendant told her Wilson shot the victim. Firearms belonging to the victim's father were found in defendant's house after the victim's murder.

The victim suffered a gunshot wound to her head, "four rather large lacerations" on her scalp caused by blunt force trauma, bleeding under her scalp, bleeding on the surface of her brain, and two skull fractures. The victim had a dark red abrasion on her right backside, which was consistent with being kicked while on the ground. The victim's cause of death was "a gunshot wound to the head and blunt trauma to the head." Riverside County Forensic Pathologist Dr. Robert Ditraglia explained that the gunshot wound was "more significant with regard to immediate death," but "the blunt trauma to the head also contributed." The blunt force was significant and could have been fatal by itself "had not the gunshot wound" occurred.

When discussing jury instructions, the prosecutor said, "It is the People's position in this case that only one theory of homicide should go to this jury and that theory being felony murder robbery. The evidence is such that the People will concede we have not proven who struck the blows against the victim; that what we have shown is that the victim was beaten and shot, and then her house was ransacked and items were taken."

The trial court remarked, "It's either murder that was committed as part of a robbery because we don't have any testimony that would show there was an intent upon entering the property to commit a felony or anything that would lead to the burglary, all the elements of the burglary." The prosecutor conceded that if the theft "was truly an afterthought after the commission of the beating and the shooting," then there was not a robbery, because the victim was dead, so it would not be felony murder. The prosecutor explained, "It would be straight murder by somebody. And since I can't prove who wielded the gun, it would probably be a not guilty if that's the decision [the jury] come[s] to."

The jury found defendant guilty of first degree felony murder and found true the allegation that a principal was armed with a firearm during the murder. Defendant appealed, and this court reversed the judgment. (People v. Esquivel (1994) 28 Cal.App.4th 1386, 1401.) This court concluded that "the instructions did not require the jury to find that [defendant] had the intent to commit robbery before the victim was killed." (Id. at p. 1397.) This court determined the error was prejudicial because "[t]he evidence would reasonably support an inference that [defendant] did not form an intent to participate in the robbery until after [the victim's] death." (Id. at p. 1398.) In other words, the evidence could support the conclusion that it was not felony murder-it was a murder followed by theft.

B. SECOND TRIAL

Defendant's retrial occurred in 1996. Defendant told Walmsley that he, Wilson, and Brown planned to steal firearms from the victim's house; Defendant knew the victim's father kept firearms in the house. Defendant expected the victim to be at school when he went to her house on the day of the murder, i.e., no one would be home. Defendant rang the doorbell at the victim's house to confirm that no one was home, and he was surprised when the victim answered the door. Defendant entered the house. After a while, Wilson and Brown went up to the front door; the victim opened the door before they could knock. Brown asked if defendant was there and the victim invited them inside. The three men watched television.

The victim asked defendant to tell Wilson to leave because she suspected he had previously stolen her credit card. Defendant told Wilson that the victim wanted him to leave. Wilson "looked at [the victim] and mumbled under his breath, 'Fucking bitch.'" As Wilson walked toward the front door, the victim said," 'Don't let the door hit you in the ass.'" Wilson walked up from behind the victim and "started beating [the victim] on the back of her head with the gun that he had." As Wilson beat the victim with his gun, he directed defendant and Brown to assist him. Defendant and Brown punched the victim, and she fell to the floor. After the victim fell to the floor, Wilson continued striking the victim's head.

Wilson told Brown to shoot the victim, but Brown refused. Wilson told defendant to shoot the victim, and he also refused. Wilson pointed the gun at defendant and said," 'If you don't shoot her, I'll shoot you,' so [defendant] took the gun and shot [the victim]." After shooting the victim, the three men stole the victim's father's firearms and other valuable items.

Brown provided two more versions of the events. First, when speaking with investigators, Brown accused defendant and Wilson of beating the victim and accused Wilson of shooting the victim. Second, at defendant's retrial, Brown testified that defendant stood and watched while Wilson beat and shot the victim, i.e., defendant did not harm the victim. Brown further testified that Wilson stole the guns from the victim's house. Brown is defendant's friend. When Brown testified, he and Wilson had already been convicted for their involvement in the victim's death.

Riverside County Forensic Pathologist Dr. Robert Ditraglia testified that the beating alone could have killed the victim and that the gunshot wound would "necessarily have caused death." Ditraglia estimated that the victim died within minutes.

The record does not include the retrial's closing arguments or jury instructions. The retrial ended as a mistrial due to a hung jury.

C. GUILTY PLEA

In 1997, defendant pled guilty to second degree murder of the victim. A transcript of defendant's plea colloquy is not included in the record. The trial court sentenced defendant to prison for a term of 15 years to life.

D. PETITION FOR RESENTENCING

In 2019, defendant petitioned the trial court for resentencing asserting that he could no longer be convicted of murder under changes to sections 188 and 189. (Former § 1170.95.) In December 2021, the trial court issued an order "to show cause why defendant should not be resentenced." In a brief filed in response to the trial court's order, defendant asserted the prosecution could not prove that defendant (1) was the actual killer, (2) aided and abetted the killing, (3) was a major participant who acted with reckless indifference, or (4) acted with malice.

E. OPPOSITION

In 2023, in their opposition brief, the People argued several theories. First, the People contended defendant was the actual killer of the victim as demonstrated by the retrial evidence. Second, the People asserted that if defendant was not the actual killer, then he was a major participant in the burglary and acted with reckless indifference to the victim's life. The People argued that defendant was a major participant because he was in the room when the victim was killed; he did not intervene to stop the killing; he did not aid the victim after the killing; he helped plan the burglary; and he kept the stolen firearms. The People asserted defendant acted with reckless indifference because defendant (a) knew Wilson had a gun, (b) knew of the burglary plan, and (c) knew the victim was at home, so defendant knew the victim was in danger because she would "have to be subdued" for the burglary. Third, the People contended defendant aided and abetted the victim's murder by planning the burglary, knowing Wilson was armed, beating the victim, standing by while the victim was shot, and not intervening to aid the victim before or after the shooting.

F. REPLY

Defendant asserted that, in our 1994 appellate opinion following defendant's first trial, this court concluded the instructional error was prejudicial because the evidence would support a finding that defendant's intent to aid and abet was formed after the killing. Therefore, defendant asserted the evidence from the first trial could not support a murder conviction.

As to the retrial, defendant asserted that a juror or jurors did not find the evidence against defendant to be credible because, if they had, then they would have convicted defendant. Defendant asserted that, because the retrial ended with a hung jury, the trial court could not find the retrial evidence credible. Therefore, defendant argued the retrial evidence would not support a finding that defendant is guilty of murder.

G. HEARING

At the hearing on the order to show cause, the People asserted defendant was a major participant because he intended to burglarize the victim's house, he did not aid the victim when she was beaten by Wilson, and he kept the stolen firearms. Defendant argued that the retrial jury did not find the People's case proven beyond a reasonable doubt, so it would be irrational for the trial court to use that evidence to find the People could prove defendant's guilt.

H. ORDER

The trial court found defendant planned the burglary of the victim's home because defendant was more familiar with the victim's home than Wilson and Brown. Defendant's presence was the reason that the victim allowed Wilson and Brown into her house. Defendant "stood by and watched and waited" while Wilson beat and shot the victim. Defendant did not assist the victim after Wilson shot her, "but rather effectuated the burglary they had originally planned." The trial court concluded that defendant "was a major participant in the burglary of the [victim's] home."

The trial court found "there is no evidence that [defendant] knew Wilson was likely to kill before they entered the house, [but] once Wilson pulled out the gun and began beating [the victim] such likelihood became clear [citations]. But again, instead of doing anything to stop Wilson from killing [the victim], [defendant] stood close-by and watched. This exhibited reckless indifference to human life." The trial court reasoned that defendant would have realized the risk to the victim because "killing [the victim] would be the only way to prevent identification," as the victim knew defendant, Wilson, and Brown. The trial court denied defendant's petition for resentencing.

DISCUSSION

A. FELONY MURDER

Defendant contends substantial evidence does not support the trial court's finding that he could be convicted of felony murder under the current law.

We defer to the trial court's findings of fact and review those findings to determine if they are supported by substantial evidence. (People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) We view the evidence in the light most favorable to the trial court's findings and make all "factual inferences in favor of the trial court's ruling." (Ibid.)

1. UNION OF ACT AND INTENT

Every crime requires "a union, or joint operation of act and intent." (§ 20; see also People v. Pulido (1997) 15 Cal.4th 713, 728-729.) When a victim is killed during a burglary, a participant in the burglary, who is not the actual killer, will be guilty of murder if they were "a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(2).)" '[R]eckless indifference to human life' is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death." (People v. Estrada (1995) 11 Cal.4th 568, 577.)

The trial court found three criminal actions by defendant: (1) planning the burglary, (2) entering the house with intent to commit theft, and (3) stealing the victim's father's firearms. The trial court found that when defendant entered the victim's house, he did not know Wilson was armed. Defendant's lack of knowledge was demonstrated by defendant telling Wilson to leave the victim's house. Defendant thought Wilson would leave; Defendant did not know that Wilson had a gun and would kill in order to steal items from the victim's house. Accordingly, when defendant planned the burglary and entered the victim's house, he was not acting with reckless indifference because he was unaware of the grave risk.

After Wilson murdered the victim, defendant could not recklessly disregard her life because she was dead. Therefore, when stealing the firearms, defendant did not act with reckless indifference. In sum, based upon the trial court's findings, there was no time when defendant "acted with reckless indifference to human life." (§ 189, subd. (e)(2).) That means he could not be convicted of felony murder.

2. TRIAL COURT'S MAJOR PARTICIPANT REASONING

Our Supreme Court set forth factors for answering the question of whether a defendant was a major participant for purposes of felony murder, i.e., did the defendant significantly participate in criminal activities known to carry a grave risk of death. (People v. Clark (2016) 63 Cal.4th 522, 611 (Clark).) The trial court's ruling addressed those factors. We will review that major participant analysis by discussing the factors in turn.

The first factor:" 'What role did the defendant have in planning the criminal enterprise that led to one or more deaths?'" (Clark, supra, 63 Cal.4th at p. 611.) The trial court found defendant played a primary role in planning the burglary because "the only reasonable inference is that [defendant] chose [the victim's] home because he knew there were guns in the house .... Neither Brown nor Wilson had such intimate knowledge of the [victim's] family or home."

It is unclear why the trial court found that Wilson lacked intimate knowledge of the victim's home. Wilson previously had a romantic relationship with the victim, was in the victim's house when he stole her credit card on a prior occasion, knew the victim's father had firearms, and knew where the firearms were located in the house. Defendant was also familiar with the victim's home. It appears that Wilson, defendant, or the two of them together created the plan to burglarize the victim's home.

The second factor:" 'What role did the defendant have in supplying or using lethal weapons?'" (Clark, supra, 63 Cal.4th at p. 611.) The trial court found that defendant did not know Wilson was armed with a firearm until Wilson commenced murdering the victim. Therefore, defendant had no role regarding the murder weapon.

The third factor:" '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?'" (Clark, supra, 63 Cal.4th at p. 611.) The trial court found "there is no evidence that [defendant] knew that Wilson was likely to kill before they entered the house." That finding is supported by Brown's testimony that he and Wilson regularly burglarized unoccupied homes. Given Wilson and Brown's history of burglarizing unoccupied houses, defendant had no reason to expect that Wilson was likely to kill the victim in order to carry forward with the planned burglary. Therefore, defendant was unaware of the particular grave danger facing the victim.

The People attempt to distinguish the instant case from People v. Guiffreda, in which the appellate court reversed the denial of the defendant's resentencing petition. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 132.) In Guiffreda, the appellate court wrote," 'The degree of risk to human life is crucial to the analysis.' [Citation.] The context here is a far cry from situations in other cases where, for example, defendants had advance knowledge that their cohorts were convicted murderers [citation], or knew from prior robberies that their cohorts would be armed [citation]. As was the case in [In re Scoggins (2020) 9 Cal.5th 667], the record here does not show that [the defendant] knew her accomplices were likely to deviate from the plan and use weapons of any kind, let alone lethal force." (Guiffreda, at pp. 128-129.)

In the instant case, the trial court found defendant lacked knowledge that Wilson was armed and would use lethal force. Therefore, in the" 'crucial'" part of the analysis, this case is on point with Guiffreda, in that defendant lacked knowledge of the grave risk to the victim's life.

The People argue, "Under the circumstances of this case and in contrast to Guiffreda, [defendant] could have tried to diffuse the situation by leaving when [the victim] unexpectedly answered the door." The trial court found defendant was unaware of the grave risk posed by Wilson. Therefore, defendant had no reason to "diffuse the situation."

The fourth factor:" '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?'" (Clark, supra, 63 Cal.4th at p. 611.) The trial court found "[defendant] did nothing to prevent violence against [the victim]. He did not, for example, get [the victim] to leave." The trial court found that defendant had no knowledge of the grave risk to the victim until Wilson was killing the victim. Based on that finding, defendant had no reason to try to prevent a risk of lethal violence that he was unaware existed. Nevertheless, defendant told Wilson to leave because the victim did not want Wilson in her house. Therefore, despite being unaware of the risk, defendant tried to remove Wilson from the situation, which means the trial court's finding that defendant "did nothing to prevent violence" is not supported by the evidence.

The People contend defendant "could have . . . convinc[ed] Wilson . . . to leave when asked by [the victim]" Defendant did tell Wilson to leave, and Wilson walked toward the front door, so defendant likely believed he had successfully convinced Wilson to leave.

The trial court found defendant did nothing to stop the violence against the victim once Wilson attacked her. Inaction on the part of a coparticipant in an underlying felony is relevant when the use of lethal force is foreseeable. (Clark, supra, 63 Cal.4th at p. 619.) If the defendant (1) knows the risk of death to others, (2) witnesses "events leading up to" the use of lethal force, and (3) does nothing to restrain the actual killer or intervene on behalf of the victim, then the defendant's failure to act demonstrates" 'he shared in [the actual killer's] actions and mental state.'" (Ibid.)

The sequence of events is: Defendant told Wilson to leave, Wilson walked toward the door, then Wilson walked toward the victim and attacked her from behind, fatally beating her with a firearm and shooting her. The trial court found defendant was unaware of the risk of fatal violence. Further, there were no intermediate steps that would have suggested Wilson was about to kill the victim. Thus, the only opportunity that defendant had to restrain Wilson was during the murder itself.

The People contend defendant should have persuaded Wilson to stop beating the victim, or "at the [very] least, to not shoot her." The People's argument that defendant should have reasoned with Wilson in the midst of Wilson killing the victim fails. Defendant's inaction is only relevant if he knew about the risk of murder before the killing occurred and did nothing to prevent it because that inaction could show defendant shared Wilson's intent. (Clark, supra, 63 Cal.4th at p. 619.) The trial court found this is not a situation where the killing was foreseeable to defendant. Therefore, defendant's inaction during the murder does not indicate he shared in Wilson's intent.

Fifth:" 'What did the defendant do after lethal force was used?'" (Clark, supra, 63 Cal.4th at p. 611.) The trial court found defendant did not help the victim after Wilson shot her. Rather, he participated in stealing items from the victim's house. The trial court's finding is supported by the evidence that defendant did not call 911, and he stole firearms from the victim's house.

Based upon the trial court's factual findings, defendant is liable for conspiring to burglarize the victim's home and burglarizing the victim's home. The trial court found that defendant had no knowledge of the risk of lethal force being used until the murder was taking place, which means there was little opportunity for defendant to prevent the murder from occurring. Moreover, defendant told Wilson to leave the victim's house prior to the murder taking place. Given these facts, one cannot conclude that defendant significantly participated in activities known to carry a grave risk of death. (Clark, supra, 63 Cal.4th at pp. 611, 623.)

Given our conclusion that the trial court's major participant finding is not supported by the evidence, we need not go step-by-step through the trial court's reckless indifference analysis. As discussed ante, the trial court found that defendant only learned of the grave risk of death at the time the murder was taking place, at which point defendant took no action. Therefore, to the extent defendant was recklessly indifferent to the victim's life while the murder was taking place, there is no union of action at that time based upon the trial court's finding that defendant stood by and watched the murder happen.

3. THE PEOPLE'S ARGUMENT

The People assert defendant was a major participant because he was the reason the victim invited Wilson and Brown into her home. We agree that defendant was the reason that Wilson and Brown were inside the victim's home. However, the trial court found defendant did not know Wilson was armed and willing to kill when Wilson entered the home. That finding means defendant lacked knowledge of the grave risk posed by helping Wilson and Brown gain entry to the victim's house. As a result, defendant was not recklessly indifferent to the victim's life at the time he helped Wilson and Brown gain entry to the house. We reject the People's argument due to the lack of union between action and reckless indifference.

B. AIDING AND ABETTING

The People contend that any error is harmless because the trial court's factual findings support the conclusion that defendant aided and abetted the victim's murder.

"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." (People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. omitted.)

The trial court found there was no evidence of defendant having knowledge of Wilson being armed until Wilson commenced murdering the victim. The trial court also found that as Wilson killed the victim, defendant watched. Under the trial court's findings, there is no union of defendant's knowledge of Wilson's intent to kill and action by defendant. Accordingly, we reject the People's aiding and abetting theory.

Nevertheless, there is evidence in the record which, if expanded upon, might support a finding of defendant aiding and abetting murder with an intent to kill. When ruling on defendant's petition, the trial court did not consider defendant's probation reports. However, reliable hearsay in a probation report may be considered when ruling on resentencing petitions. (People v. Williams (2020) 57 Cal.App.5th 652, 662; People v. Hall (2019) 39 Cal.App.5th 831, 838.)

We are particularly focused on the portion of defendant's 1997 probation report that reflects defendant and Wilson told a friend, Markell Lewis, about their roles in killing the victim. According to Lewis, "defendant had told him he had cut the bullet to get it to split." The autopsy revealed that the bullet fragmented inside the victim's head. Arguably, if defendant cut the bullet, then he did so to aid in killing the victim.

Lewis did not testify at defendant's trials. It is unclear what hearsay exception, if any, would apply to the probation officer's retelling of Lewis's statements. We will reverse so the parties and trial court may once again hold proceedings on the order to show cause. (People v. Hill (2024) 100 Cal.App.5th 1055, 1068 [new theories of murder may be raised at the hearing on the order to show cause]; People v. Martinez (2017) 10 Cal.App.5th 686, 718 [unqualified reversal leaves the matter as though it had not been tried]; § 1262 ["If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial"].)

DISPOSITION

The order is reversed. If the People have evidence to present, then the trial court may again hold an evidentiary hearing on the order to show cause.

WE CONCUR: RAMIREZ P. J., CODRINGTON J.


Summaries of

People v. Esquivel

California Court of Appeals, Fourth District, Second Division
Jun 20, 2024
No. E080804 (Cal. Ct. App. Jun. 20, 2024)
Case details for

People v. Esquivel

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN ERIC ESQUIVEL, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jun 20, 2024

Citations

No. E080804 (Cal. Ct. App. Jun. 20, 2024)