Opinion
G062545
08-02-2024
THE PEOPLE, Plaintiff and Respondent, v. PORFIRIO GARCIA, Defendant and Appellant.
James M. Crawford, 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, Robin Urbanski, Donald W. Ostertag and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed.
James M. Crawford, 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, Robin Urbanski, Donald W. Ostertag and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Porfirio Garcia was convicted of murder and attempted murder in 2009. He later filed a petition for resentencing under Penal Code section 1170.95, alleging his convictions were no longer valid under current law. The trial court held an evidentiary hearing and concluded beyond a reasonable doubt that defendant had the requisite intent and knowledge to be found guilty of murder under current law as a direct aider and abettor. Defendant challenges this ruling on appeal. We find the court's order is supported by substantial evidence and affirm.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch.5, §10); all further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
In 2008, the district attorney filed an information charging defendant, Moises Cabrera, and Ismael Nunez with three counts: (1) the murder of Jose Guzman (§ 187, subd. (a)); (2) the attempted murder of Paulino Nava (§§ 664, subd. (a), 187, subd. (a)); and (3) street terrorism (§ 186.22, subd. (a).) Several enhancements were also alleged.
Defendant and Nunez were tried together, while Cabrera was tried separately. The following testimony from defendant's trial is primarily taken from our prior opinion in People v. Garcia (Jan. 27, 2012, G044562) [nonpub. opn.]. (See People v. Lewis (2021) 11 Cal.5th 952, 972 ["Appellate opinions . . . are generally considered to be part of the record of conviction" for purposes of a section 1172.6 petition].)
I. TRIAL
A. Testimony of Claudia R.
"[Claudia R.] was in custody facing murder charges in the instant case. She testified pursuant to a grant of immunity, which guaranteed dismissal of the charges against her in exchange for her truthful testimony. [Claudia R.] recognized defendant and Ismael Nunez, whom she had met through her ex-boyfriend Moises Cabrera. Cabrera and the 'guys I knew that would hang out with' him claimed to be members of the gang known as 'Delhi.'
"On March 3, 2006, [Claudia R.] and Cabrera spent the day together. Just before midnight, they went out to get something to eat. [Claudia R.] drove her blue Acura Legend automobile. After leaving the restaurant, the couple drove to Nunez's house. Nunez, defendant, and Juan Avelar were at Nunez's house. While [Claudia R.] sat in the car, the four males stood outside talking to one another. Soon thereafter, all five individuals departed. Nunez, Avelar, and defendant drove in Nunez's car; [Claudia R.] and Cabrera drove in [Claudia R.'s] car. [Claudia R.] followed Nunez's car.
"After driving past 'some guys outside' a house on Broadway, the two vehicles circled around and stopped at the intersection of Broadway and Saint Andrew in Santa Ana, California. Defendant, Avelar, and Cabrera got out of the cars. Cabrera, addressing another group of males gathered nearby, asked 'the guys where they're from. They hit 'em up.' The other group responded they were from West Myrtle (another Santa Ana gang), and defendant's group replied 'Delhi.'" (People v. Garcia, supra, G044562.)
Cabrera then walked towards the backseat area of Nunez's car and "got close together" with defendant and Avelar. Cabrera then came back to outside of Claudia R.'s car and began firing a gun at the other group of men. "One of the individuals being shot at successfully ran away. Cabrera shot at a car in which one of the other individuals was sitting. The shots 'didn't stop. It just kept going.' Cabrera, Avelar, and defendant got back in their cars and the two cars drove away." (People v. Garcia, supra, G044562.)
B. Testimony of I.B.
I.B. and A.B. used to live on Broadway near "the scene of the crime. On the evening of March 3, 2006, [I.B.], [A.B.], Paulino Nava, and Jose Guzman were hanging out near [the residence of I.B. and A.B]. [I.B.] saw two automobiles stop; 'when they got out of the cars, they started . . . hitting up my brother, his friend [Guzman], and my cousin [Paulino].' One of the cars was a 'bluish Acura.' 'For sure, I saw like four people get out of the cars.' The four individuals had 'mostly shaved' heads. Within five seconds, the individuals from the cars pulled out two guns and began firing. [I.B.] heard at least 10 shots. [A.B.] was running northbound on the east side of Broadway. Neither Nava nor Guzman ran. [I.B.] saw Nava get shot in his arm and torso; he saw Guzman get shot in the head. Guzman was in his car trying to leave when he was shot. The attackers 'hopped in their cars and they took off.'
"When asked whether he recognized defendant, [I.B.] provided an ambiguous response. Later, he testified he was 'chuckling' while looking at defendant '[b]ecause he looks exactly like the dude I saw who did it.' [I.B.] later said with regard to defendant, 'He looks like the person who was shooting, yeah.'" (People v. Garcia, supra, G044562.)
C. Testimony of A.B.
"[A.B.] 'saw both cars open their doors, and I heard them . . . call out "Delhi." And I'm not stupid. I know what was coming. So that's when I turned around and . . . started running.' The day after the shooting, [A.B.] identified a photograph of defendant as someone who looked familiar from the shooting." (People v. Garcia, supra, G044562.)
D. Testimony of Detective Matthew McLeod
"Called as an expert witness on Santa Ana street gangs (in particular, Delhi), Matthew McLeod opined: (1) the Delhi street gang currently (at the time of trial) had approximately 200-250 members; (2) the Delhi street gang's primary activities are assaults, murders, and weapons possession; (3) West Myrtle is a rival gang of Delhi; (4) defendant, Nunez, Avelar, and Cabrera were active members of Delhi; (5) Guzman had a link to West Myrtle; and (6) a hypothetical murder similar to that committed in this case would be committed for the benefit of Delhi." (People v. Garcia, supra, G044562.)
McLeod also opined that "if a group of individuals does a hit-up and the response is a rival gang's name," then "there would definitely be some type of violence." He explained, the group initiating the hit-up "is basically stating that they are ready to inflict corporal injury upon the person that they are hitting up."
II. VERDICT AND SENTENCE
The jury convicted defendant on all three counts: murder, attempted murder, and street terrorism. As to the murder and attempted murder counts, the jury also found true that defendant vicariously discharged a firearm causing great bodily injury to the victim (§ 12022.53, subds. (d), (e)(1)), and that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to the murder count, the jury found true a criminal street gang special circumstance (§ 190.2, subd. (a)(22)).
The court sentenced defendant to life in prison without the possibility of parole plus two consecutive terms of 25 years to life and a consecutive life sentence.
PROCEDURAL HISTORY
This division affirmed defendant's convictions and sentence in People v. Garcia, supra, G044562.
Defendant filed a writ of habeas corpus in the trial court seeking resentencing following the United States Supreme Court's decision in Miller v. Alabama, supra, 567 U.S. 460. The trial court granted defendant's petition and vacated his sentence. Defendant was resentenced to 40 years to life, comprised of 15 years to life for the murder, a consecutive term of 25 years to life for the accompanying firearm enhancement (§ 12022.53, subds. (d), (e)(1)), and a concurrent term of 25 years to life for the attempted murder and related firearm enhancement.
Miller v. Alabama (2012) 567 U.S. 460, 465, held that a mandatory life sentence without the possibility of parole "'for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on "cruel and unusual punishments."'" Here, defendant was 17 years old at the time of the offense.
In 2019, defendant filed a petition to vacate his murder and attempted murder convictions under former section 1170.95 (now section 1172.6). The trial court denied the petition on grounds section 1172.6 was unconstitutional. We reversed and directed the trial court to consider the petition on remand. (People v. Garcia (Oct. 22, 2020, G057952) [nonpub. opn.].)
Following a hearing on defendant's petition, the court found it did not state a prima facie case for relief. Defendant appealed. We again reversed and remanded the matter to the trial court. (People v. Garcia (Jan. 4, 2022, G060149) [nonpub. opn.].)
On remand, the trial court issued an order to show cause, held an evidentiary hearing, and then denied the petition. Based on the testimony of Claudia R., I.B., and A.B., the court concluded "beyond a reasonable doubt that . . . [defendant] acted with the intent to kill. He acted with the requisite intent and knowledge to be held as a principal by aiding and abetting." The court explained, "when we get to these issues of mental states, knowledge and intent, I have to rely on the circumstantial evidence and in its entirety there's only one reasonable conclusion I can reach and that is at the time of the shootings, [defendant] was not merely present. He was part of a group who acted with a joint intent. He personally had knowledge. He personally acted with that intent."
On appeal, defendant argues there is insufficient evidence to support his convictions for murder and attempted murder. We disagree.
DISCUSSION
I. APPLICABLE LAW
"Effective January 1, 2019, the Legislature passed [Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §4.) (SB 1437)] 'to amend 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.' [Citation.] In addition to substantively amending sections 188 and 189 of the Penal Code, [SB 1437] added section 1170.95, [now section 1172.6,] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis, supra, 11 Cal.5th at p. 959.)
To seek relief under section 1172.6, a convicted murderer must file a declaration stating that (1) a charging document was filed against the petitioner allowing the prosecution to proceed under a felony murder or natural and probable consequences theory of murder, (2) the petitioner was convicted of murder, and (3) the petitioner could not presently be convicted of murder due to the amendments to sections 188 and 189. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708.)
If the defendant's section 1172.6 petition states a prima facie case for relief, the trial court issues an order to show cause. (§ 1172.6, subd. (c).) This generally leads to "an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by [SB 1437]." (People v. Strong, supra, 13 Cal.5th at pp. 708-709; § 1172.6, subd. (d)(1)-(3).) If the prosecution meets this burden, the petitioner is ineligible for relief and his or her section 1172.6 petition is denied. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
A trial court's denial of a section 1172.6 petition following an evidentiary hearing is reviewed for substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) "'In applying the substantial evidence test, we view the facts in the light most favorable to the [prevailing party], resolving all conflicts in [its] favor and accepting all reasonable inferences deduced from the evidence.'" (People v. Shrier (2010) 190 Cal.App.4th 400, 412.) "'If the circumstances reasonably justify the [factfinder's] findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.' [Citation.] We do not reweigh the evidence or resolve conflicts in the testimony when determining its legal sufficiency.'" (People v. Garcia (2020) 46 Cal.App.5th 123, 144-145.) II.
SUFFICIENCY OF THE EVIDENCE
Here, the court found defendant guilty of murder as a direct aider and abettor, which remains a valid murder theory following SB 1437. (People v. Curiel (2023) 15 Cal.5th 433, 462.) "[T]o establish liability for murder under the theory of direct aiding and abetting, 'the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.'" (Id. at p. 466.) Three areas of proof are required: "'(a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea'-which . . . includes knowledge that the direct perpetrator intends to commit the crime or life-endangering act, 'and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime.'" (Id. at p. 467.) The final element "is satisfied where the aider and abettor 'by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" (People v. Lara (2017) 9 Cal.App.5th 296, 315.) "Aiding and abetting may be shown by circumstantial evidence. It is well settled that the presence at the scene of the crime and failure to prevent it, companionship and conduct before and after the offense, including flight, are relevant to determining whether a defendant aided and abetted in the commission of the crime." (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599; People v. Nguyen (2015) 61 Cal.4th 1015, 1054 [Courts may consider "'presence at the scene of the crime, companionship, and conduct before and after the offense'"]. "'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.'" (Id. at pp. 1054-1055.)
Here, defendant appears to argue there is insufficient evidence to show he had the required mens rea or engaged in conduct that assisted the crimes. We disagree. His conduct before the shooting, his presence and actions at the scene, and his conduct after the shooting support a finding that defendant knew Cabrera intended to shoot the victims, and he encouraged Cabrera to do so.
We begin with the broader context of the shooting. Evidence showed the four members of defendant's group-defendant, Cabrera, Nunez, and Avelar-were members of the Delhi gang. Delhi's primary activities during the time of the shooting "were assaults, inclusive of murders, as well as weapons possession." The shooting victims were members of a rival gang, West Myrtle. Detective McLeod testified that rival gang members are viewed as enemies and "must be attacked at any and all costs." Attacks could include "[p]hysical beatings, shootings, [or] stabbings."
Claudia R. testified that prior to the shooting, the four men spoke with each other at Nunez's house. After their conversation, Cabrera asked to borrow Claudia R.'s car and wanted to drop her off at home, but she insisted on staying in her car. Claudia R. and the four men then departed in two separate cars. Claudia R. drove her car and followed Nunez's car. They initially drove past the victims, and Cabrera asked Claudia. R. to drop him off on the corner. She refused, and the two cars circled back to the other group of men and stopped. Cabrera, defendant, and Avelar got out of the cars and "hit up" the other group of men.
The above facts indicate planning. A factfinder could reasonably conclude the four men were looking for specific people because their cars initially drove past the two men and then circled back. Since this event occurred directly after the four men spoke at Nunez's house, it could be reasonably inferred that they either discussed confronting these specific individuals or discussed looking for rival gang members to confront. Such an inference is supported by evidence that Cabrera initially wanted Claudia R. to go home and then wanted her to drop him off on the corner. A factfinder could reasonably infer Cabrera did not want her around because the four men planned to engage in violence with rival gang members.
After the victims responded to the "hit-up" by identifying themselves as rival gang members, Cabrera huddled close to defendant and Avelar. Cabrera then started firing at the victims. From these facts, along with the facts above, a factfinder could reasonably infer that Cabrera signaled to defendant and Avelar his intention to shoot the victims and they encouraged him to do so. This conclusion is supported by Detective McLeod's testimony that (1) the group initiating the hit-up "is basically stating that they are ready to inflict corporal injury upon the person that they are hitting up," and (2) there would "definitely be some type of violence" if a rival gang responded to a hit-up.
Cabrera then fired around 10 shots at the victims. Significantly, although defendant, Avelar, and Nunez had a separate car, they did not flee or drive off in their car when Cabrera started firing. Rather, the evidence shows Nunez's car-which held Nunez, Avelar, and defendant-did not leave until after Cabrera stopped shooting the gun. Since all four men left the scene together after Cabrera finished shooting, it could be reasonably inferred that they expected the shooting, which signifies it was planned. A factfinder could reasonably find this conduct indicated the three other men shared an intent to kill and encouraged Cabrera to shoot the victims.
Defendant's case is similar to People v. Nguyen (2015) 61 Cal.4th 1015. In that case, the defendant Lam Thanh Nguyen was a gang member sitting in the backseat of a car (Nguyen's car). Nguyen's car started following another car (the second car), which contained several rival gang members. At one point, Nguyen's car passed the second car, and Nguyen stared at the second car. Nguyen's car then waited for the second car to pass and began following it again. After a few blocks, the two cars stopped next to each other at a stop light. While the two cars were stopped, the front passenger (the shooter) in Nguyen's car shot and killed the driver of the second car. A few days after the shooting, Nguyen visited the home of one of the rival gang members who had been in the second car and asked him, "'What's up with the cops?'" (Id. at pp. 1053-1054.)
The Supreme Court considered the above circumstantial evidence along with evidence of an ongoing war between the two gangs at issue. It found the jury could have inferred Nguyen knew of the shooter's intent, shared that intent, and aided the shooter by spotting potential targets. (People v. Nguyen, supra, 61 Cal.4th at p. 1055.) Likewise, here, based on the circumstantial evidence above, a factfinder could reasonably conclude that defendant knew Cabrera intended to shoot the rival gang members, shared that intent, and encouraged the shooting.
Defendant spends much of his brief comparing this case to People v. Reyes, supra, 14 Cal.5th 981. But Reyes examined whether there was sufficient evidence to convict the defendant of implied malice murder either as a direct perpetrator or a direct aider and abettor. (Id. at pp. 987-988, 990.) This case does not involve implied malice. It involves express malice, i.e., intent to kill. (See § 188, subd. (a)(1) ["Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature"].) As such, we do not find Reyes to be persuasive.
DISPOSITION
The order is affirmed.
WE CONCUR: O'LEARY, P. J. SANCHEZ, J.