Opinion
C097108
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. EDWARD GARCIA et al., Defendants and Appellants
NOT TO BE PUBLISHED
(Super. Ct. No. 07F09847)
HULL, Acting P. J.
Defendants Hector Garcia (Hector) and Edward Garcia (Edward) (together, defendants), who are brothers, and numerous others participated in a confrontation between rival gang members which culminated in defendants' associate Manuel Alvarez shooting Stephen Clay, Ali Khan, and Gary Motheral. Clay died from his gunshot wound. A jury found Alvarez guilty of first degree murder and two counts of attempted murder.
The jury found defendants guilty of the same crimes, relying on the no-longer-valid natural and probable consequences doctrine for the murder convictions. On their prior appeal from the judgment, another panel of this court, among other things, reversed defendants' first degree murder convictions for possible retrial unless the People agreed to a reduction to second degree murder. After the People agreed to the reduction and the trial court resentenced defendants, they petitioned for resentencing pursuant to Penal Code section 1172.6. (Statutory section citations that follow are found in the Penal Code unless otherwise stated.)
The trial court issued an order to show cause and conducted an evidentiary hearing. The court denied defendants' petitions, concluding the evidence established, beyond a reasonable doubt, that they were guilty of aiding and abetting implied malice murder.
On appeal, defendants assert the trial court erroneously denied their petitions because (1) it misapprehended the law concerning aiding and abetting implied malice murder, and (2) substantial evidence does not support the trial court's determination. We agree with defendants that the trial court misapplied the law and further conclude substantial evidence does not support the determination that defendants aided and abetted implied malice murder. We reverse and remand, directing the trial court to grant defendants' petitions.
FACTS AND HISTORY OF THE PROCEEDINGS
Because Hector joins in certain sections of Edward's later-submitted arguments on appeal, including those based on People v. Reyes (2023) 14 Cal.5th 981 (Reyes), which the Supreme Court decided after Hector filed his opening brief, we treat all arguments as raised by both defendants.
The parties stipulated that the facts in our prior opinion, People v. Garcia (Dec. 18, 2019, C066714) (nonpub. opn.) (Garcia) were admissible in their entirety for all purposes and that the trial court could rely on the factual statements in that opinion in reaching its determination. The trial court in its decision, and the parties on appeal, quote that opinion at great length. We shall do the same, but we have excised material not relevant to the issues presented on this appeal.
The Trial
"The People's Case-in-chief
"On August 19, 2007, Hector, Edward, [Sergio] Rodriguez, Hector's girlfriend Kristine Torres, Samantha S. and Angela G. were in Torres's car (the Garcia car) at a stop sign. A car passed them, and Angela G. saw [her former boyfriend, Anthony] Amaro, also known as 'Banks,' in the car. Amaro was with Khan, Clay, and two women. Amaro turned his car around and started following the Garcia car, yelling and throwing bottles or cans. Amaro pulled his car alongside the Garcia car, and the occupants of the cars yelled at each other. According to Khan, both Amaro and the males in the Garcia car were throwing gang signs and 'saying where they were from.' Amaro rammed his vehicle into the Garcia car several times. [Khan testified that Hector rammed Amaro's vehicle as well. Amaro turned his car in front of the Garcia car, which was forced to stop. Amaro and [Khan] exited their car and went over to the Garcia car. One of the occupants of the Garcia car tried to get out, but [Khan] prevented him from opening the door. Eventually, [Khan] walked back to Amaro's car, and the Garcia car drove off.
In some instances, our opinion in People v. Garcia, supra, C066714, erroneously referred to Khan as "Kahn." We have corrected those errors here.
"Amaro drove to a nearby trailer park. There, he and his companions encountered Motheral, Motheral's brother, and Travis Vance. [Khan] explained what had happened. Amaro called Angela G.'s cell phone and threatened and screamed at her. Amaro walked around the trailer park speaking on the phone, cursing and saying, 'Bring it on.'
"Meanwhile, after the initial encounter, Hector and Edward were angry and 'wanted to go handle it.' They pressed Angela G. for contact information for Amaro. They parked on Peralta Avenue and the Garcias got out of the car while Rodriguez remained in the car with the girls. [Manuel] Alvarez and [David] Ballesteros were standing nearby with Petey Martinez.
"Angela G. told the group that Amaro was crazy and might have guns. Rodriguez heard someone in the group say, '[W]e don't care.' Edward asked Hector if 'they're strapped,' and Hector responded that he was 'pretty sure' they were. According to Torres, Alvarez said he was not worried, and that 'they ha[d] theirs, too.'
"The [defendants] and others got back in the Garcia car, while Alvarez, Ballesteros, and Martinez got into Ballesteros's white Monte Carlo, and they all drove back to Edward's house on Perktel Street. Amaro continued to call Angela G. and yell at her. When the Garcia group arrived at Perktel Street, [Juan] Valdez and some others were there because Edward had called them and told them to meet him at his house.
"Amaro called Angela G. again and told her to 'tell 'em to meet us on Eleanor.' Angela G. gave her phone to Edward and he and Amaro yelled at each other. Everyone left Perktel Street in three cars while Angela G. and Samantha S. stayed behind. Rodriguez went in Valdez's red truck with Valdez and Allen Appolon. Hector, Edward, Ballesteros, and Martinez went with Torres in the Garcia car. Alvarez went alone in Ballesteros's white Monte Carlo. According to Torres, Alvarez was to go to the location first to be the lookout and 'check out the scene.' Torres acknowledged having stated in an interview with Detective Scott MacLafferty that Alvarez was 'going to be looking out since he ha[d] the protection.' Ballesteros's jury heard that, in his interview with MacLafferty, Ballesteros admitted that he knew Alvarez had a gun at that time. The three cars drove to Eleanor Avenue.
"On Eleanor Avenue, Amaro and his companions were waiting near an apartment complex. [Khan] saw a number of cars pull up in front of the apartment complex. [Khan] observed some sticks on the ground, retrieved them, and gave one to Motheral. [Khan] also knew Clay carried a knife.
"Khan saw Valdez get out of the red pickup truck wearing a red shirt, red sweats, and a red hat. According to Khan, Valdez pulled a chrome gun from his sweatpants and said, 'Where in the fuck is Banks?' According to Rodriguez, however, when Valdez got out of his truck, he was holding a small bat. Rodriguez testified that he did not see Valdez with a gun.
"Torres heard Martinez yell, 'Gardenland' during the ensuing melee and thought Martinez threw his hands up to make an 'L' sign for Gardenland. Torres also believed she heard one other person yell 'Gardenland,' but she did not know who. Rodriguez acknowledged that he had previously said in a statement to the police that, 'some people were saying "Gardenland" and just yelling that out.' . . .
"A witness, who was at a child's birthday party in a yard nearby, observed a male wearing a white shirt and jean shorts, who was holding a large knife, run across the street towards some individuals in a car. He then ran back across the street. Torres observed a man with a knife, and retreated to her car.
"Amaro, armed with a knife, squared off with Edward. According to Khan, Rodriguez advanced on him, attempted to punch him, then retreated. Vance and Khan each struck Rodriguez, one with a stick and one with a cane. Firefighter Emil Reitmayer, who was on a fire engine stopped nearby because it could not proceed due to cars being parked in the street, saw someone swing a stick or a bat striking another person who then fell to the ground. Reitmayer then saw someone run to a vehicle and reach into the vehicle. Shortly after that, gunfire erupted.
"Rodriguez saw a muzzle flash coming from the direction of the white Monte Carlo, and heard 16 or 17 shots fired. Other witnesses and participants in the conflict reported hearing between six and 20 or more shots. Khan felt a bullet fly by his face and was then struck in the leg and fell to the ground. Motheral sustained a gunshot wound to the right side of his back. After the gunfire, everyone scattered.
"Police arrived and secured the scene, and the firefighters from the fire engine rendered assistance. Reitmayer and another firefighter attended to Clay, who was lying face down on the ground. Clay did not have a pulse and was not breathing. He was pronounced dead at the scene. Police found a knife next to his body and a sheath for a knife was found in his pocket.
"Police discovered 13 .40-caliber cartridge casings at the scene, as well as a number of bullet fragments.... [¶] . . . [¶]
"A forensic pathologist who performed the autopsy on Clay determined that he sustained a single gunshot wound to his back. Based on the upward trajectory of the bullet in Clay's body, the pathologist opined that either the shooter was aiming the gun upward towards Clay, or Clay was 'bent over, possibly either going to the ground, tripping and falling or running and bent over ....' The pathologist testified that Clay had a 'very devastating' injury to his heart, and that, while he might have made it a step or two after being shot, 'he wasn't going to go very far.' [¶] . . . [¶]
"Gang Testimony
"According to Rodriguez, Hector and Edward were members of the Varrio Gardenland gang.... [¶] . . . [¶]
"Shown a photograph of a tattoo depicting the letters 'GL,' Rodriguez identified it as the tattoo on Edward's arm. Rodriguez said, 'GL' stands for Gardenland. From another photograph, Rodriguez identified a tattoo on Hector's neck that read, 'Gardenland.' Hector had that tattoo when Rodriguez met him in 2006. Rodriguez further testified that Valdez and Martinez also claimed Gardenland.
"Torres, Hector's girlfriend, testified that the 'Gardenland' tattoo on Hector's neck represented the Gardenland gang and that Hector was a gang member in 2007. She testified that Hector 'would claim Gardenland, and he would wear red, and stuff, but not so much about Norte, but more of his hood.' Torres also identified Edward's 'GL' tattoo on his arm depicted in a photograph and testified it stands for Gardenland. In another photo, Torres identified Hector throwing up an 'L' with his hand and a person named Alfonso, who was throwing up a four with his hand, which Torres testified stood for 14. In a photograph taken in Mexico a couple of months before the shooting, Torres identified Appolon, Valdez and Edward. In this photograph, Valdez is depicted throwing up 14 (a single finger on one hand four fingers on the other) and Edward is throwing up an 'L.' Torres identified both Hector and Edward depicted in a photograph in which Edward is wearing a red hat, throwing up an 'L' and has his arm around Hector, who is wearing a red shirt....
"Detective John Sample testified as an expert on criminal street gangs.... [¶] . . . [¶]
"According to Sample, Nortenos in Sacramento are very turf-oriented and break down into subsets based on neighborhoods or varrios. Examples of Sacramento Norteno subsets include the Del Paso Heights Nortenos, Oak Park Nortenos, and Varrio Gardenland. In further describing what a subset is, Sample testified, 'A subset is a branch of the larger gang,' and continued: 'For instance, Varrio Gardenland is a subset, a smaller group of Nortenos who associate themselves to a specific area in Sacramento, in a specific neighborhood.' . . . [¶] . . . [¶]
"Sample testified to what he called 'commonalities' between a subset such as Varrio Gardenland and the larger Norteno group, stating that they shared identifying symbols, such as the number 14 and the color red. However, he further testified that the subset will also 'have [its] own thing,' such as Varrio Gardenland members throwing up the 'L' sign, representing the 'land' in 'Gardenland.' [¶] . . . [¶]
"Sample testified that, as of the date of the incident at issue here, Edward was a validated Varrio Gardenland Norteno.... According to Sample, Edward acknowledged being a Varrio Gardenland Norteno. [¶] . . . [¶]
"Describing the circumstances resulting in Hector's validation, Sample noted that Hector had also admitted to being a Varrio Gardenland Norteno. . . .
"Sample testified that, at the time of the shooting, Alvarez had not been validated as a gang member. However, Sample testified that, based on his knowledge of Alvarez as of the time of trial, he could validate Alvarez as a gang member.... [¶] . . . [¶]
"According to Sample, in gang culture, respect is a form of 'currency' and is extremely important. Unlike ordinary citizens, gang members give or gain respect through fear and intimidation, specifically by threats and the use of violence. They react with violence when they are disrespected. Often, a very small incident can occur between gang members who had no prior feud which will escalate into something much bigger. Respect is the 'root cause of a lot of the reasons these shootings happen.'
"Sample also testified that 'reputation is everything to a gang.' Therefore, if a gang member does not respond to a threat or challenge, that gang member's reputation will suffer and he or she will be perceived as 'weak' or as 'a punk.' Other gang members do not associate with such gang members. Asked about a situation where a group of gang members are going to a location to fight someone and one of them declines to go, Sample testified that such a person would be perceived as weak. Also, that person would not be trusted because he 'wouldn't seem like somebody down for the cause.' On the other hand, anyone who goes along would benefit the gang by adding to the number of people in the group. The more people in the group during a confrontation 'adds to that fear and intimidation factor.' [¶] . . . [¶]
"Sample testified that at the scene of a violent confrontation, gang members may state their gang name or throw up gang signs to claim responsibility for their actions. Gang members '[w]ant people to know what [they] are all about....' '[R]eputation is extremely important, and if you want to be known for violence, you're gonna let everybody know this is what you're about, and this is what you do.' [¶] . . . [¶]
"Sample testified that Amaro was a validated Del Paso Heights Norteno. . . .
"Evidence Presented by Edward
[¶] . . . [¶]
"Edward testified that, when he arrived at his house on Perktel Street following the initial confrontation with Amaro, he was not planning on doing anything. There were a number of people there, including Valdez, Appolon, Ballesteros, Alvarez, and Rodriguez, but Edward testified that he had not talked to anyone on the phone about the confrontation.
"According to Edward, Rodriguez was still upset and was saying, '[w]e should go whip their ass,' but Edward did not agree. Amaro called Angela G., and she stated that Amaro wanted to fight one of the guys. Edward did not hear any remarks about Amaro being crazy, and he did not hear anything about guns. Eventually, Edward left his house with the others, assuming that he was going to Eleanor Avenue and that there would be a fight. Edward testified that he 'just went because my brother went and my friend.' Edward was not prepared to fight, but would do so if he had to.
"As the cars pulled up at Eleanor Avenue, Edward observed five or six guys standing by an apartment building. Initially, Edward did not see any weapons. However, after he exited the car, he observed that the guys by the apartment building had sticks. Edward saw people squaring off with Rodriguez. Edward then observed two guys approaching him, one of whom was trying to conceal a knife. Edward began to back away. He then yelled to Rodriguez, '[C]ome on, come on, let's go.' The guy with the knife ran at Edward and swiped the knife at Edward. The guy then backed up and returned to the area near the apartment building. Edward then saw someone hit Rodriguez on the head, and, immediately thereafter, Edward heard gunshots. He did not see who was shooting. Edward crouched down and then ran back to the car. Edward, Ballesteros, Martinez, Hector, and Torres piled into the car and drove back to Peralta Avenue. [¶] . . . [¶]
"When asked if he was a gang member, Edward responded, 'Yes, I guess you could say that.' He admitted that he was in the Gardenland or VGL gang, but asserted that it was 'not the way the gang detective described it.' . . .
"Evidence Presented by Alvarez
"Alvarez testified that he and Ballesteros were driving in Ballesteros's Monte Carlo when they ran into Hector and the others in the Garcia car, and they followed them to Hector's house on Perktel Street. There was talk among some of the people of going over to Eleanor Avenue to fight. Alvarez testified that he was not paying much attention to the discussion. He claimed he never said anything about having a gun or being strapped or anything like that, and he did not hear anyone else say anything to that effect. He denied having a gun. However, he knew that there was a gun in the front seat of the Monte Carlo between the passenger seat and the center console. Alvarez testified that he had not placed the gun there; it was there when he got in the car earlier that day.
"Eventually, everyone started getting into the cars, and Alvarez figured they were going to Eleanor Avenue. He tried to get into the Garcia car, but it was full. Valdez's truck was full too. Ballesteros gave Alvarez the keys to his Monte Carlo and told him to drive it. Martinez suggested Alvarez drive by the area first to see if there were a lot of people around. However, immediately after Alvarez got the keys to the Monte Carlo and got in, Torres pulled away in the Garcia car, so Alvarez followed in the Monte Carlo.
"When he arrived on Eleanor Avenue, Alvarez observed a group of people standing nearby. One of the individuals approached his group, and, as he drew nearer, Alvarez observed that the individual was holding a large knife. As the scene became more chaotic, Alvarez was thinking he should leave, particularly because he believed that police would soon be on the way, and he did not want to get caught with the gun in the car. Alvarez yelled to Ballesteros that they should leave. Alvarez then observed individuals fighting. Someone hit Rodriguez with a stick, and Rodriguez fell. Alvarez then observed the individual who had the knife approaching Rodriguez. Alvarez also saw another individual with a knife running toward Rodriguez.
"Alvarez testified that he reached into Ballesteros's Monte Carlo and grabbed the gun. He pointed the gun in the air and fired three shots. No one reacted. One of the guys with a knife was still going towards Rodriguez, who was trying to get up off the ground. There were still two individuals with sticks nearby. Alvarez did not think that they were going to let Rodriguez go. Alvarez observed Clay wielding a knife, approach to within eight to 10 feet of Rodriguez. Alvarez pointed the gun at Clay and started shooting. He acknowledged that he was trying to shoot Clay. He testified: 'I'm trying to shoot the guy that I seen running over there.' Alvarez kept shooting until the gun stopped firing. He then rushed back to the Monte Carlo, threw the gun in the car, got in, and took off." (Garcia, supra, C066714, fns. omitted.)
A jury found Alvarez guilty of murder in the first degree and two counts of attempted murder and found Hector and Edward guilty of the same crimes and found true various enhancement allegations. (Garcia, supra, C066714.) The trial court sentenced Hector to 143 years eight months to life, and sentenced Edward to 109 years four months to life. (Ibid.)
Defendants' Prior Appeal, Remand, and Resentencing
On defendants' prior appeal from the judgment, another panel of this court reversed defendants' convictions of attempted murder and vacated the sentences imposed on those counts, and reversed their convictions of first degree murder for possible retrial unless the People accepted a reduction of the convictions to second degree murder. (Garcia, supra, C066714.)
On remand, the district attorney accepted the reduction to second degree murder. As to both defendants, the court reversed the attempted murder convictions on counts two and three, vacated the sentences imposed on those counts, struck the true findings on the section 186.22 and 12022.53 enhancements, and vacated those sentences as well. The trial court resentenced Hector to 15 years to life for second degree murder on count one, doubled to 30 years to life based on his prior strike conviction, plus one year for a section 12022, subdivision (a)(1) firearm enhancement. The court resentenced Edward to 15 years to life for second degree murder on count one plus one year for a section 12022, subdivision (a)(1) firearm enhancement.
Defendants' Section 1172.6 Petitions for Resentencing
Defendants filed petitions for resentencing pursuant to section 1172.6, asserting charging instruments were filed against them that allowed the prosecution to proceed under a theory of murder under the natural and probable consequences doctrine, that they were convicted of murder under that doctrine, and that they could not now be convicted of first or second degree murder based on changes made to sections 188 and 189, effective January 1, 2019.
The trial court found defendants made a sufficient prima facie showing and issued an order to show cause. As stated, the parties stipulated the facts in our prior opinion, Garcia, supra, C066714, were admissible for all purposes.
At the evidentiary hearing, defendants discussed, among other things, what could be deemed the perpetrator's "life-endangering" act that they allegedly aided and abetted. Defendants asserted that the only life-endangering act here was Alvarez pulling out the firearm and firing it at Clay, and there was no evidence they aided and abetted in this act. The prosecution asserted there could be multiple life-endangering acts.
The Trial Court's Denial of Defendants' Petitions
The trial court denied defendants' petitions, finding, beyond a reasonable doubt, that defendants were guilty of aiding and abetting implied malice murder. The court found that "the life endangering act Edward and Hector aided and abetted . . . is promoting and encouraging Alvarez to go and violently encounter the Amaro group, after
Hector and Edward learned their group (which includes Alvarez) had at least one firearm available for the encounter."
DISCUSSION
I
Senate Bill No. 1437, Section 1172.6, and Standard of Review
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) amended "the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 achieved this by amending sections 188 and 189.
Section 188, subdivision (a)(3) now provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189 and felony murder are not at issue here.
Senate Bill No. 1437 also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. Section 1172.6, subdivision (a) provides, insofar as relevant here: "A person convicted of . . . murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . murder under the natural and probable consequences doctrine .... [¶] (2) The petitioner was convicted of murder
. . . following a trial .... [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." If a defendant submits a facially sufficient petition, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) If the petitioner makes a prima facie case, the court must issue an order to show cause. (Ibid.)
Insofar as relevant here, after issuance of the order to show cause, at the ensuing evidentiary 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 . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion.... The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3).)
In reviewing an order denying a resentencing petition based on the trial court's finding that the prosecution proved beyond a reasonable doubt that a defendant is guilty of murder under current law, "[w]e review the trial judge's factfinding for substantial evidence." (People v. Clements (2022) 75 Cal.App.5th 276, 298.) "We' "examine 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 that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Ibid.)
II
Murder and Aiding and Abetting Implied Malice Murder
"Murder is the unlawful killing of a human being or a fetus 'with malice aforethought.'" (People v. Cravens (2012) 53 Cal.4th 500, 507, quoting § 187, subd. (a).) Malice may be either express or implied. (§ 188, subd. (a).) "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.'"' [Citation.]' "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." '" (Reyes, supra, 14 Cal.5th at p. 988.)
" '[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.'" (People v. Johnson (2016) 62 Cal.4th 600, 630.)" '[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, quoting People v. Powell (2021) 63 Cal.App.5th 689, 712-713 (Powell).) "The relevant act is the act that proximately causes death." (Powell, at p. 713, fn. 27.)
III
The Parties' Contentions
Defendants assert that the trial court's conclusion that they were guilty of aiding and abetting second degree murder is not supported by substantial evidence. According to defendants, the only "life-endangering act" here was Alvarez retrieving the handgun from the Monte Carlo and firing it at Clay, and there was no evidence they aided Alvarez in this act. There "was no evidence supporting a reasonable inference that [they] specifically intended that Alvarez shoot Clay," and there was "absolutely no evidence that [they] did anything to 'aid or encourage' Alvarez's act of retrieving and discharging his firearm, the only act relevant to a proper aiding and abetting analysis." Defendants also assert that the trial court misunderstood the elements of the offense, and therefore the matter is subject to our independent review.
The People respond that substantial evidence supports the trial court's determinations that Alvarez bringing a loaded firearm to the gang confrontation was a life-endangering act, that this act was a proximate cause of Clay's death, and that defendants aided Alvarez in this act. The People assert that, while Alvarez's act of shooting Clay was also a proximate cause of Clay's death, it did not break the causal connection between bringing the firearm to the confrontation and Clay's death. According to the People, the shooting was a foreseeable result of Alvarez bringing the firearm to the confrontation.
IV
"Life-endangering Act"
Although ordinarily the denial of a section 1172.6 petition is reviewed for substantial evidence, "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." (Reyes, supra, 14 Cal.5th at p. 988.)
As stated, to be liable for an implied malice murder, the direct aider and abettor must aid in the commission of the perpetrator's life-endangering act. (Reyes, supra, 14 Cal.5th at p. 991; Powell, supra, 63 Cal.App.5th at p. 713.) As for the mental state, the direct aider and abettor must know the perpetrator intended to commit the lifeendangering act, intend to aid the perpetrator in the commission of the life-endangering act, know the life-endangering act is dangerous to human life, and act in conscious disregard for human life. (Reyes, at p. 991; Powell, at p. 713.) Identifying the perpetrator's life-endangering act, then, is critical to assessing a defendant's potential liability for aiding and abetting implied malice murder.
Alvarez's shooting at Clay was obviously one life-endangering act. However, that is not the life-endangering act on which the trial court relied in denying defendants' petitions or on which the People rely on appeal. In denying defendants' petitions, the trial court expressly found that "the life endangering act Edward and Hector aided and abetted . . . is promoting and encouraging Alvarez to go and violently encounter the Amaro group, after Hector and Edward learned their group (which includes Alvarez) had at least one firearm available for the encounter."
It is, again, the perpetrator's life-endangering act that defendants must be found to have aided and abetted. (Reyes, supra, 14 Cal.5th at p. 991; Powell, supra, 63 Cal.App.5th at p. 713.) Thus, the court concluded, in effect, that the perpetrator's life-endangering act was Alvarez going to the location of the confrontation to engage in violence with the Amaro group after defendants learned someone in their group was armed. We are not persuaded that merely encouraging Alvarez "to go and violently encounter the Amaro group" knowing someone in the Garcia group was armed could amount to aiding and abetting the perpetrator, Alvarez, in a life-endangering act. Elsewhere, however, the court stated it was convinced defendants knew it was Alvarez who possessed the firearm. We shall independently review (see Reyes, supra, 14 Cal.5th at p. 988) whether aiding and abetting Alvarez in going to the location of the confrontation knowing he was armed was indeed another life-endangering act, in addition to the life-endangering act of shooting at Clay, that can support the trial court's determination, beyond a reasonable doubt, that Hector and Edward aided and abetted implied malice murder.
As stated in Powell, a life-endangering act "is the act that proximately causes death." (Powell, supra, 63 Cal.App.5th at p. 713, fn. 27.) As a general matter, the People are correct that" 'there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.'" (People v. Garcia (2022) 82 Cal.App.5th 956, 963.) However, even so, the act, or acts, at issue necessarily must proximately cause the victim's death. (Powell, at p. 713, fn. 27.) The Supreme Court's recent analysis in Reyes is particularly helpful in making our determination whether the act on which the trial court relied was indeed a life-endangering act.
The defendant in Reyes "was convicted of second degree murder following a homicide committed by a fellow member of Santa Ana's F-Troop gang. Reyes was one of several members or affiliates of F-Troop who were present when the killing occurred, although the evidence showed he was not the shooter." (Reyes, supra, 14 Cal.5th at p. 984.) Because the record in Reyes was not clear as to whether the trial court denied the defendant's resentencing petition based on a theory that he was the direct perpetrator of implied malice murder or on a theory that he aided and abetted implied malice murder, the Supreme Court analyzed potential liability under both theories. (Id. at p. 987.)
In considering the defendant's potential liability based on the direct perpetrator theory, the Supreme Court stated:"' "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." '" (Reyes, supra, 14 Cal.5th at p. 988.) While the Supreme Court made this observation in discussing the direct perpetrator theory, it is equally applicable here where we are considering defendants' liability on an aiding and abetting theory. The aider and abettor must aid the perpetrator's commission of the life-endangering act (id. at p. 991; Powell, supra, 63 Cal.App.5th at p. 713), and that act must have been a substantial factor rather than insignificant or theoretical (Reyes, at p. 988).
In further discussing the direct perpetrator theory, the Supreme Court stated: "The evidence established that Reyes proceeded to an area on the edge of territory belonging to a rival gang and, alongside the other bikers, chased after Rosario's car. But acts that merely create a dangerous situation in which death is possible depending on how circumstances unfold do not, without more, satisfy this causation requirement. There was no evidence that Reyes's acts precipitated or provoked the shooting. And there is no reason to believe that the killing of Rosario would not have occurred if Reyes had not accompanied his fellow gang members on the ride or participated in the chase." (Reyes, supra, 14 Cal.5th at p. 989, italics added.)
The Supreme Court in Reyes further stated: "we also take issue with the trial court's conclusion that '[t]he natural and probable consequences' of Reyes's act of traveling to rival gang territory with several other gang members, one of whom was armed, 'were dangerous to human life.' To suffice for implied malice murder, the defendant's act must not merely be dangerous to life in some vague or speculative sense; it must' "involve[] a high degree of probability that it will result in death." '" (Reyes, supra, 14 Cal.5th at p. 989, italics added.) The Supreme Court continued: "the prosecutor conceded that Reyes was not the shooter; the evidence established that Reyes and his fellow gang members, one of whom was armed, bicycled to an area on the edge of territory belonging to a rival gang. It may have been likely that this act would result in some sort of gang confrontation, and it is possible that someone would get hurt or killed. But the act does not by itself give rise to a high degree of probability that death will result." (Ibid., italics added.)
With regard to the aiding and abetting theory, the Supreme Court concluded that, by "relying exclusively on the legal principles outlined in CALCRIM No. 520, the trial court did not appear to recognize that implied malice murder requires, among other elements, proof of 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 court continued: "The trial court's factual findings illustrate the nature of its error. The court found that 'the defendant, along with several other gang members, one of which [was] armed, traveled to rival gang territory' and then considered whether that act was done with the mental state required for implied malice. In particular, after finding the natural and probable consequence of the act to be 'dangerous to human life,' the trial court asked whether Reyes 'at the time he acted, . . . knew that the act was dangerous to human life,' and whether 'he deliberately acted with conscious disregard for human life.' But implied 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. [Citation.] 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." (Reyes, supra, 14 Cal.5th at pp. 991-992.)
The circumstances in Reyes are substantially similar to those here and we find the Supreme Court's discussion highly relevant. The defendant in Reyes traveled to a rival gang's territory with fellow gang members, one of whom was armed with a handgun. That individual showed the group the revolver he was carrying. (Reyes, supra, 14 Cal.5th at p. 985.) Thus, the defendant knew his associate was armed, although the Supreme Court stated there was no direct evidence the defendant knew the gun was loaded. (Ibid.) The Supreme Court in Reyes determined that, while these circumstances gave rise to a likelihood of a resulting gang confrontation and possibly someone getting hurt or killed, they were not enough to "give rise to a high degree of probability that death will result." (Id. at p. 989.) Elsewhere, the court stated that "acts that merely create a dangerous situation in which death is possible depending on how circumstances unfold do not, without more, satisfy th[e] causation requirement." (Ibid.)
The People claim that Reyes "does not help" defendants in their argument that the only life-endangering act was Alvarez shooting at Clay. The People distinguish this case from Reyes as more clearly and foreseeably auguring a deadly conclusion: "Violence had already occurred and two groups of gang members were planning for a violent encounter. [Defendants] and Alvarez knew that the other group was armed and were crazy. [Citation.] Unlike in Reyes where a confrontation was merely possible here the violent confrontation was a given."
We are not able to dismiss the applicability of Reyes so readily. On the contrary, we find Reyes highly informative here. We do agree that the circumstances here may have indicated a greater likelihood of a violent confrontation between rival gang members and their associates than in Reyes. However, we are not persuaded that this distinction was sufficient on its facts to establish that here, there was "a high degree of probability that death will result," whereas in Reyes, involving highly similar facts, such was not the case. (Reyes, supra, 14 Cal.5th at p. 989.)
Here, there is evidence that there was a considerable preexisting likelihood of violence between the two rival gang members, and defendants were instrumental in that conflict. The incident began with the occupants of the Amaro car and the Garcia car yelling at each other and throwing gang signs; Amaro ramming the Garcia car with his car and, according to Khan, the Garcia car reciprocating; the cars going their separate ways and their occupants regrouping and gathering reinforcements; Edward and Amaro yelling at each other on the phone; and the Garcia group in three cars going to where the Amaro group was located to confront them. In short, the groups wanted a violent confrontation and intended to make it happen.
As in Reyes, here, one of the Garcia group was armed with a handgun. Before going to the confrontation, "Edward asked Hector if 'they're strapped,' and Hector responded that he was 'pretty sure' they were. According to Torres, Alvarez said he was not worried, [seemingly about the Amaro group potentially being armed,] and that 'they ha[d] theirs, too.'" (Garcia, supra, C066714.) According to Torres, Alvarez was to go to the location of the confrontation first "to be the lookout and 'check out the scene.' Torres acknowledged having stated in an interview . . . that Alvarez was 'going to be looking out since he ha[d] the protection.' Ballesteros's jury heard that, in his interview with MacLafferty, Ballesteros admitted that he knew Alvarez had a gun at that time." (Ibid.)
After the Garcia group arrived, the physical confrontation began, involving attempts at fist fighting, Rodriguez being hit with a stick and a cane, Amaro brandishing a knife, and Clay advancing on people with his knife. (Garcia, supra, C066714.) As all of this unfolded, Reitmayer, the firefighter, saw someone-Alvarez-run from wherever he was to a car and reach into the car, after which gunfire erupted. (Ibid.)
While the circumstances here are different in several respects from those in Reyes, the facts critical to our analysis are largely the same. In both cases, the defendants went to rival gang territory with fellow gang members or associates, one of whom was armed with a firearm. In Reyes, there was direct evidence the defendant knew his associate had a firearm; here, there was evidence from which a trier of fact could infer defendants knew someone among their group was armed with a firearm, and even that they knew it was Alvarez who was armed with a firearm.
We conclude, however, that Alvarez going to the location of the confrontation with a gun in the Monte Carlo was not the act, or, for that matter, an act, "that proximately cause[d] [Clay's] death." (Powell, supra, 63 Cal.App.5th at p. 713, fn. 27.) Rather, it was an act that "merely create[d] a dangerous situation in which death [wa]s possible depending on how circumstances unfold[ed]." (Reyes, supra, 14 Cal.5th at p. 989.) This premise bears out in considering how events did unfold. Whatever action Alvarez initially took upon arriving at the location, at some point, as witnessed by the firefighter Reitmayer, a disinterested witness, Alvarez ran from wherever he was at that point back to a vehicle and reached into it, at which point, gunfire erupted.
Alvarez's act of traveling to the site of the confrontation with a gun in the Monte Carlo did not necessarily involve"' "a high degree of probability" '" that death would result. (Reyes, supra, 14 Cal.5th at p. 989.) In short, "[i]t may have been likely," and even more likely here than in Reyes, "that this act would result in some sort of gang confrontation, and it is possible that someone would get hurt or killed. But the act does not by itself give rise to a high degree of probability that death will result." (Ibid.)
Defendants' conduct was plainly egregious and dangerous. However, guided by Reyes, we cannot conclude that Alvarez going to the site of the confrontation with a gun in the car constitutes a life-endangering act sufficient to support defendants' convictions of aiding and abetting implied malice murder. We agree with the trial court that defendants orchestrated their group, including Alvarez, going to where Amaro and his group were located for the purpose of engaging in a violent confrontation. We also agree there is no reason to believe Alvarez would have gone to that confrontation but for defendants' encouragement. And, obviously, Alvarez was armed with a firearm. However, again, under the circumstances of this case and guided by Reyes, we cannot conclude that Alvarez traveling to the location of the confrontation with a handgun in the Monte Carlo, without more, rose to the level of a "life-endangering act" sufficient to support defendants' convictions for aiding and abetting implied malice murder. As such, whether defendants indeed aided and abetted that act is irrelevant.
As defendants assert, the trial court's analysis, as well as certain of the People's arguments, appear to amount, in essence, to the application of the natural and probable consequences doctrine: defendants caused their group including Alvarez, one of whom was armed with a firearm, to go to the location where Amaro's group was located and continued a violent confrontation, the natural and probable consequences of which were the shooting in which Clay died.
Alvarez's conduct of retrieving the gun and shooting at Clay obviously was a lifeendangering act. However, neither the trial court nor the People rely on this act, and seemingly for good reason: there is no evidence in the record to support the premise that defendants aided and abetted Alvarez in committing the life-endangering act of retrieving the gun and firing it at Clay. There is no evidence, let alone substantial evidence, that defendants, with knowledge of Alvarez's intention to retrieve the gun and shoot at Clay, and with the intent of encouraging or facilitating the commission of the offense, by act or advice aided, promoted, encouraged, or instigated Alvarez's commission of the crime. (See Reyes, supra, 14 Cal.5th at p. 992; see also People v. Johnson, supra, 62 Cal.4th at p. 630 [defining aiding and abetting].) Put another way, "[t]here was no evidence that [defendants'] acts precipitated or provoked the shooting." (Reyes, at p. 989.) "As our Supreme Court recently emphasized, liability for aiding and abetting' "require[s] some affirmative action"' that assists or encourages the commission of the crime. [Citation.] A person present at the scene of a crime-even one who is the criminal's companion, knows a crime is being committed, fails to prevent it, and later expresses approval of it- is not guilty of aiding and abetting the crime if he takes no action to aid or encourage the crime." (In re K.M. (2022) 75 Cal.App.5th 323, 329.)
We conclude the trial court incorrectly determined Alvarez's act of traveling, armed, to rival territory where an earlier violent confrontation was to be continued amounted to a life-endangering act defendants aided and abetted sufficient to support their liability for implied malice murder. In light of our determination, we need not address whether substantial evidence supports the determination that defendants aided and abetted Alvarez in this act. And, as we have determined, substantial evidence does not support the conclusion defendants aided and abetted Alvarez in the life-endangering act of retrieving a gun and shooting at Clay.
DISPOSITION
The order denying defendants' section 1172.6 petitions is reversed and the matter is remanded to the trial court with directions to grant the petitions, vacate defendants' murder convictions, and for further proceedings consistent with this opinion.
We concur: MAURO, J., KRAUSE, J.