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People v. Gonzalez

California Court of Appeals, Fourth District, Third Division
Aug 2, 2023
No. G061157 (Cal. Ct. App. Aug. 2, 2023)

Opinion

G061157

08-02-2023

THE PEOPLE, Plaintiff and Respondent, v. PAULINO OLMOS GONZALEZ, Defendant and Appellant.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County No. 14NF2001, Sheila F. Hanson, Judge.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

This is an appeal from the trial court's denial of defendant Paulino Olmos Gonzalez's petition to vacate his murder conviction pursuant to Penal Code section 1172.6. After an evidentiary hearing on the merits, the trial court denied his petition. Defendant now appeals, arguing there was insufficient evidence to convict him under current law. We disagree and affirm the order denying defendant's petition.

Subsequent statutory references are to the Penal Code unless otherwise indicated. The Legislature renumbered former section 1170.95 to section 1172.6 without substantive change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)

I

FACTS

Underlying Facts

We draw this statement of facts from our prior appeal in this matter, People v. Olmos Gonzalez (Sep. 21, 2017, G053251) [nonpub. opn.]. "On November 3, 1991, at about 12:30 a.m., a man who lived near a rural orange grove in Yorba Linda heard two gunshots in rapid succession. Later that morning, another man who was walking through the grove saw [Salvador] Murillo's dead body underneath one of the orange trees. Murillo had been shot once in the eye and once in the side of his torso. The police found a shell casing and a beer can a few feet away from the body. The police were unable to identify any suspects.

According to other evidence introduced at trial, the beer can was found two feet east and 44 feet south of the body. According to defendant, the reason for the presence of the beer can with his fingerprint and DNA on it in close proximity to the body was that they had a bag with trash, including beer cans, which Chago, one of the perpetrators, took with him out of the car at the time of the murder and did not return it to the car.

"In August 2007, a crime scene investigator obtained a DNA sample from the mouth of the beer can. In April 2014, the Orange County Sheriff's Department was notified that the DNA profile from the beer can matched Olmos, who was in federal custody in Texas, and was about to be deported. Investigators Eric Hatch and Cruz Alday flew to Dallas to interview Olmos. [¶] . . . [¶]

"On May 1, 2014, at about 2:00 p.m., Hatch and Alday met with Olmos in an interview room located within a federal immigration detention facility. The investigators were dressed in plain clothes. A federal employee escorted Olmos to the interview room; he was not handcuffed. The investigators introduced themselves and told Olmos they were investigating an old case from Orange County.

"During the interview, Olmos initially denied knowing Murillo. Eventually, Olmos admitted knowing Murillo, but he said, 'I was not the one who did this, the one who killed him.' Olmos said that he was driving a car on the night of the killing. He said that he and two other men, Fidel and Chago, picked up Murillo in Santa Ana, and then drove to a rural location near the 91 freeway. Olmos said that he dropped off Murillo, Fidel, and Chago. Olmos said he waited nearby and got out of the car at one point to tell Fidel and Chago, 'Hey, let's go.' Olmos said that when Fidel and Chago returned to the car they told him, 'We already, already did what we had to do.' Olmos said, 'I was driving the car, that's all I was doing. Which maybe it gives me the same complicity like if I would've done it, right, but I was just driving the car.' [¶] . . . [¶]

"On May 2, 2014, at about 10:00 a.m., investigators Hatch and Alday returned to the same interview room at the immigration detention facility. A different federal employee escorted Olmos to the interview room; Olmos was again not in handcuffs. Hatch took a buccal swab from Olmos's cheek; he then advised Olmos that 'we wanted to ask you some questions today, and uhm, but we, before we do that, we have to advise you of your rights and -- cause charges are gonna be filed against you for murder through the DA's office.' [Defendant's rights were read to him.] [¶] . . . [¶]

"Olmos then went on to answer the detectives' questions, which largely clarified what Olmos had said the day before. Olmos said that Fidel had told him a couple of weeks before the murder that he had been looking for Murillo because Murillo had stolen drugs from him at gunpoint. He said that on the night of the murder they spotted Murillo in Santa Ana and he got into the car with Chago and Fidel without resistance. Olmos said that Chago had a black pistol. He said that when he stopped and dropped the group off near the freeway, he just thought 'that they were going to beat him up, I never thought that they were gonna kill him.' Olmos said he 'never saw the body laying there, I never saw the body laying there.' Olmos said that when Fidel told him, '"It happened what had to happen,"' he thought that Fidel meant that Murillo had to be killed." (People v. Olmos Gonzalez, supra, G053251.) A forensic analyst testified at trial that the DNA found on the beer can had less than one in a trillion odds of belonging to someone other than defendant. Further, defendant's fingerprints matched the fingerprints on the beer can.

At trial, the statements from the first interview were not introduced. The court denied a defense motion to exclude defendant's statements from the second interview. (People v. Olmos Gonzalez, supra, G053251.) The jury found defendant guilty of first degree murder, and the trial court sentenced him to 25 years to life in prison. On direct appeal, we rejected defendant's argument that his statements from the second interview were inadmissible. (Ibid.)

Resentencing Petition

In January 2019, defendant filed a petition for resentencing under former section 1170.95. In December 2020, the court issued an order to show cause, accepting the prosecution's concession that defendant had established a prima facie showing, and set the matter for an evidentiary hearing.

The hearing was held in February 2022. The court accepted into evidence the reporter's transcripts from the original trial, and an exhibit which was a transcription of defendant's interview with law enforcement. The parties rested without offering additional evidence. The court ultimately denied the petition, finding that defendant would still be liable for first degree murder under current law. The court found that beyond a reasonable doubt, defendant was guilty of felony murder as a major participant in the homicide and that he knowingly engaged in criminal activity that involved a great risk of death, thereby acting with reckless disregard for human life. The court specifically rejected defendant's explanation for the beer can being in the vicinity of the victim's body, finding it not credible.

Defendant now appeals.

II

DISCUSSION

Statutory Context

"Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the felony-murder rule by adding section 189, subdivision (e). (Stats. 2018, ch. 1015, § 3.) It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708.)

"Although an accomplice can no longer be convicted of murder under the natural and probable consequences theory, an accomplice can still be convicted of murder as a direct aider and abettor. (§§ 188, 189.) 'Murder is the unlawful killing of a human being . . . with malice aforethought.' (§ 187.) 'If it is shown that the killing resulted from an intentional act with express or implied malice . . . no other mental state need be shown to establish the mental state of malice aforethought.' (§ 188, subd. (b).)" (People v. Pacheco (2022) 76 Cal.App.5th 118, 124, review granted May 18, 2022, S274102.) "A direct aider and abettor's 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.'" (Ibid.)

Standard of Review

It is the role of the trial court to sit as fact finder and determine whether there is evidence of murder, under current law, beyond a reasonable doubt. (People v. Clements (2022) 75 Cal.App.5th 276, 295-296.) On appeal, we review the trial court's decision for substantial evidence. (Id. at p. 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."' [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Ibid.) In a hearing on a petition under section 1172.6, however, "the trial judge isn't charged with holding a whole new trial on all the elements of murder. Instead, the parties will focus on evidence made relevant by the amendments to the substantive definition of murder." (Clements, at p. 298.)

In this case, the relevant facts were related to the changes to direct aiding and abetting liability and felony murder (§ 189, subds. (e)(2), (3)). We focus our analysis on felony murder under section 189, subdivision (e)(3), because we agree with the trial court that it is the most direct path to a resolution in this case. The question is therefore whether there was substantial evidence that defendant was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e)(3).)

Major Participant and Reckless Indifference to Human Life

As noted above, section 189, subdivision (e) sets forth the scope of felony murder, which is a type of first degree murder. "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(1)-(3).) Section 189, subdivision (a), includes kidnapping as a predicate crime.

Section 190.2, subdivision (d), provides that, "[i]n the case of first degree felony murder, 'every person, not the actual killer, who, with reckless indifference to human life and as a major participant' aids or abets the crime may be convicted of special circumstance murder." (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) Banks and People v. Clark (2016) 63 Cal.4th 522 (Clark) "clarified the meaning of the special circumstances statute." (In re Scoggins (2020) 9 Cal.5th 667, 671 (Scoggins).) Section 190.2, subdivision (b), "imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Banks, at p. 798.)

As to the major participant requirement, "the ultimate question [is] whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.'" (Banks, supra, 61 Cal.4th at p. 803.) Among the factors that may be considered are "[w]hat role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining . . ." whether the defendant was a major participant in the crime. (Ibid., fn. omitted; see Clark, supra, 63 Cal.4th at p. 611.)

"Reckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.' [Citation.] Examples include 'the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property.' [Citation.] Reckless indifference 'encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.'" (Scoggins, supra, 9 Cal.5th at pp. 676-677.)

The reckless indifference requirement has "both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.'" (Clark, supra, 63 Cal.4th at p. 617; see Scoggins, supra, 9 Cal.5th at p. 677.) The factors applicable in deciding whether a defendant was a major participant significantly overlap with the reckless indifference inquiry. (Clark, at p. 615.)

Defendant argues there was no substantial evidence that he was a major participant in the kidnapping or acted with reckless indifference to human life. But this contention is based on a cherry-picked reading of the facts that reflects only the parts of the record that most benefit defendant. For example, defendant argues he told the police that he did not plan the kidnapping and contended he was driving Fidel around at Fidel's direction on the night of the kidnapping and murder. But this leaves out that he also told the police that he had picked Fidel up around 8:00 p.m. He knew Fidel was either selling drugs or picking up money for the drugs that night.

Defendant contends that Fidel had not told him he was looking for the victim and claimed it was a coincidence that they saw him. But this does not exculpate him from kidnapping. Fidel and Chago, ordered the victim into the car. Although defendant claimed they did not use force, defendant told the police that they said, "'Get in!' 'Get in!'" Fidel, Chago, and the victim sat in the backseat after the victim was ordered into the car. He thought all three were in the back "[m]aybe so that [the victim] wouldn't get out or something." Defendant claims his involvement was "minimal" but admitted driving Fidel, Chago, and the victim to a secluded location. He knew Chago, at a minimum, was armed that night and told the police that Fidel "always had weapons."

In sum, even in defendant's charitable version of the facts, he admitted to driving Fidel around that night to sell drugs or collect money. He stopped the car when told to and witnessed Fidel and Chago order the victim into the car. Defendant then drove to a remote location knowing that Chago was armed and Fidel was "always" armed and was present when the victim was taken from the car. All of these facts indicate defendant's knowing and willing participation in the kidnapping.

Indeed, beyond defendant's sanitized version of the facts, there was ample evidence from which the court could conclude defendant was a major participant in the kidnapping. He knew that Fidel sold drugs, worked for a dangerous cartel and was always armed. Nonetheless, he characterized Fidel as a "friend." He claimed not to work for Fidel, but admitted taking money from him "every now and then."

After the victim was forced into the car, he saw Fidel and Chago sitting with the victim in a cramped backseat and was aware they were trying to keep the victim from getting out of the car. While in the car, he heard Fidel or Chago ask the victim "'why did you do it,'" in an apparent reference to the money that had been stolen from Fidel. Despite his protestations that he was not present for the murder, defendant's DNA and fingerprints were found on a beer can approximately 40 feet from the victim's body -easily within eyeshot and earshot of the murder, and the trial court specifically rejected defendant's "trash bag" explanation for how the beer can ended up in that location. He remained with Fidel and Chago after the murder, taking them to Fidel's apartment and spending the night there.

Looking to some of the factors suggested in Clark, supra, 63 Cal.4th at page 611, there was substantial evidence that defendant had an awareness of the particular danger of Fidel and Chago kidnapping someone with whom Fidel was angry and had blamed for stealing from him. Defendant knew that Fidel was armed, dangerous, and he repeated numerous times to the investigators that Fidel was not someone to be trifled with. He was present at the scene of the killing. He facilitated the murder by participating in what he knew was a kidnapping, aware that Fidel and Chago sat in the backseat with the victim so that the victim "wouldn't get out or something." He also facilitated the murder by driving the car to a secluded area. After lethal force was used, defendant did nothing, claiming he was not in a position to cross Fidel.

All of these facts support that defendant was a major participant in the kidnapping. He also demonstrated the requisite reckless disregard for human life, satisfying both the objective and subjective elements. (Clark, supra, 63 Cal.4th at p. 611.) By participating in a kidnapping with armed drug dealers, defendant engaged in criminal activity known to carry a grave risk of death. Any reasonable person, aware that an armed drug dealer connected to a major cartel believed the victim had stolen from him, would know that the victim's life was in grave danger. The danger became even more obvious when defendant was told to drive to a remote area with a kidnapped victim. Defendant's actions demonstrated a desire to please his friend Fidel at all costs, even if he knew it would cost the victim his life. In short, his conduct displayed a reckless disregard for the life of the victim.

The evidence of defendant's culpability for felony murder under current California law was supported by substantial evidence. Accordingly, we need not consider whether he was also liable as a direct aider and abettor.

III

DISPOSITION

The order is affirmed.

WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.


Summaries of

People v. Gonzalez

California Court of Appeals, Fourth District, Third Division
Aug 2, 2023
No. G061157 (Cal. Ct. App. Aug. 2, 2023)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PAULINO OLMOS GONZALEZ, Defendant…

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

Date published: Aug 2, 2023

Citations

No. G061157 (Cal. Ct. App. Aug. 2, 2023)