Opinion
F086388
12-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE GONZALEZ, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF037619D-96 Melinda Myrle Reed, Judge.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1996, a jury convicted petitioner Jose Gonzalez of first degree murder (Pen. Code, § 187, subd. (a), count 1). As to count 1, the jury found true the special circumstance that petitioner committed the murder while engaged in the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)). The trial court sentenced petitioner on count 1 to a term of life without the possibility of parole.
All further references are to the Penal Code, unless otherwise indicated.
Petitioner was convicted of additional offenses and enhancements, as described below.
In 2019, petitioner filed a petition for resentencing pursuant to section 1172.6 (former § 1170.95). The trial court summarily denied the petition. In petitioner's initial appeal, he contended the special circumstance finding should not preclude him from resentencing relief because his conviction predated our Supreme Court's decision in Banks/Clark, which clarified the meaning of "major participant" and "reckless indifference to human life." We affirmed the court's denial of resentencing.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).
Subsequently, our Supreme Court held a pre-Banks/Clark special circumstance finding does not render a section 1172.6 petitioner ineligible for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698.) Therefore, our Supreme Court transferred the matter back to this court with instructions to vacate our initial decision and to reconsider in light of Strong. Accordingly, we reversed the trial court's order denying the section 1172.6 petition and remanded the matter for further proceedings. (People v. Gonzalez (Nov. 14, 2022, F081139 [nonpub. opn.] (Gonzalez I).)
Thereafter, the trial court conducted an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). The court found beyond a reasonable doubt that petitioner "was a major participant in the crimes charged who acted with reckless disregard to human life and had the specific intent to kill and aid and abet the actual murder in this homicide." Accordingly, the court denied petitioner's section 1172.6 petition for resentencing. Petitioner filed a timely appeal.
On March 14, 2024, appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), asking this court to independently review the entire record on appeal. On June 3, 2024, petitioner filed a supplemental letter brief, contending that: (1) the trial court improperly relied on inadmissible evidence during his evidentiary hearing; and (2) "the evidence [admitted] did not show that [he] was a major participant in the robbery who acted with reckless indifference to human life under Banks and Clark."
Petitioner further challenges the fact that "no one has given [him] the evidence used against [him] at the [evidentiary] hearing[.]" Specifically, he argues he has not been given access to the trial transcripts in this case. However, such an argument would be more appropriately brought, if at all, in a habeas petition rather than on an appeal after a denial of a section 1172.6 petition. Accordingly, we do not address this contention in this appeal.
We conclude substantial evidence exists to establish petitioner was a major participant who acted with reckless indifference to human life. Accordingly, we affirm the trial court's denial of petitioner's section 1172.6 petition.
PROCEDURAL BACKGROUND
I. Underlying Charges and Convictions
In Gonzalez I, we previously summarized the procedural background regarding petitioner's convictions as follows:
"On October 17, 1996, a jury convicted petitioner of first degree murder (§ 189, subd. (a), count 1) and robbery (§ 211, count 2). As to the murder offense, the jury found true a robbery special circumstance (§ 190.2, subd. (a)(17)). As to both counts, the jury found not true a firearm enhancement (§ 12022.5, subd. (a)). On November 19, 1996, the trial court sentenced petitioner on count 2 to the aggravated term of five years. As to count 1, the trial court sentenced petitioner to a concurrent term of life without the possibility of parole. Petitioner did not appeal." (Gonzalez I, supra, F081139, at pp. 3-4, fn. omitted.)
II. Section 1172.6 Petition
"On March 21, 2019, petitioner, in propria persona, filed a petition for resentencing on his murder conviction pursuant to section 1172.6. In the form petition, petitioner stated a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony-murder or murder under the natural and probable consequences doctrine; he was convicted of first or second degree murder at trial; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Petitioner also requested the court appoint counsel during the resentencing process. Petitioner further stated he was not the actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; or that he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. Petitioner further stated the murder victim was not a peace officer acting in the performance of his or her duties. Petitioner further stated he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony-murder doctrine and he could not now be convicted of murder because of changes to section 188, effective January 1, 2019. Lastly, petitioner stated there had been a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d) and therefore is entitled to section 1172.6 resentencing." (Gonzalez I, supra, F081139, at pp 4-5.)
"On March 17, 2020, the People sent an email to defense counsel, with a copy to the assigned judge, regarding cases on the previous day's calendar, '[a]s [the assigned judge] instructed.' Therein, the People stated:
'Based on the record of conviction including the associated appellate opinions, the following cases fail to state a prima facie case for relief under [Senate Bill No.] 1437 [(2017-2018 Reg. Sess.) (Senate Bill 1437)]. Please note that where the special circumstance murder allegations were found true, that defendant would be ineligible as a matter of law because the jury found him/her to have been a major participant who acted with reckless disregard for human life.'
"With specific regard to petitioner, the People stated:
'The jury found the special circumstance to be true. [Petitioner] was found to have been a major participant with reckless disregard. As such, he cannot establish that had the changes to [section] 188 and [section] 189 been in place, he could not have been convicted of murder.' [¶] ... [¶]
"The matter was heard on April 17, 2020, and the trial court stated:
'As to [another of the petitioners referred to in the prosecutor's email], his request is denied for resentencing. The [c]ourt finds he is not eligible for the relief requested. The same is true-the [c]ourt makes the same finding as to [petitioner]. Seeing the DA's response, he is not eligible.'
"The court's minute order state[d] only, '[Petitioner] not eligible.' "A timely appeal followed. In a nonpublished opinion, we affirmed the trial court's denial of resentencing." (Gonzalez I, supra, F081139, at pp. 5-6.)
III. Reconsideration in Light of Strong
"On August 9, 2022, petitioner filed a petition for review asking the court to transfer this case for reconsideration in light of our Supreme Court's opinion in Strong. On September 28, 2022, our Supreme Court granted his petition for review and transferred the matter back to this court with instructions to vacate our June 30, 2022, opinion and reconsider in light of Strong. Based on Strong, we issued an order that it was the 'intention of the court to reverse and remand this matter [to the trial court] with directions to issue an order to show cause[,]' but provided either party 15 days to serve and file an objection. On October 10, 2022, this court received a letter from the Attorney General's office indicating they 'ha[d] no objections to the court's intended resolution.' Accordingly, in light of Strong and the People's concession, the trial court's order denying the section 1172.6 petition [was] reversed and the matter remanded for further proceedings." (Gonzalez I, supra, F081139, at p. 6.)
IV. Evidentiary Hearing (§ 1172.6, subd. (d)(3))
On April 3, 2023, the prosecution filed a brief and argued the evidence established the following:
"The evidence proves beyond a reasonable doubt that [petitioner] was a major participant who acted with reckless disregard in the robbery and murder of the victim .... On the day of the murder, [petitioner], along with George Contreras ., Santos Pasillas, Louis Fernandez, and minor, J.V., went to the residence of Pasillas to plan the robbery. They next went to the residence of [Jesus] Fernandez to obtain two shotguns that they planned to use to carry out their plans. After retrieving the firearms, the five of them drove to a small grocery store located in the city of Visalia, where they discovered that there were too many people around for their plan to be successful. They then chose to rob [a market] in Farmersville instead.
"Upon their arrival at [the market, petitioner] and [Contreras], both armed with rifles, entered the store. Pasillas checked out the store from outside and gave the go ahead to the others. [Petitioner] and [Contreras] armed themselves and entered the store. The two men brandished their weapons at the victim, who quickly produced his own .25 caliber handgun. Immediately, Contreras fired a shot, striking the victim. [Petitioner] attempted to fire his rifle as well, however, the gun did not go off. Contreras shot the victim one more time in the back as he lay face down on the floor, killing him."
On April 26, 2023, defense counsel filed a brief and argued the evidence established:
"Contreras exercised a position of control over the other individuals involved in the robbery of the [market] and that this control was based on the fear that he would kill anyone who did not cooperate.... [¶]
"The evidence of [petitioner's] role in planning the robbery is minimal.
"There is no evidence that [petitioner] had knowledge that Contreras was likely to kill prior to the events of the robbery. Similarly, there is no evidence that [petitioner] was aware of past instances where Contreras had engaged in similar violent conduct which caused the death of someone else.
"There is evidence that [petitioner] took efforts to minimize the risk of violence during the robbery....[¶]
"There is no evidence that [petitioner] had an opportunity to restrain Contreras from firing the first shot.. The testimony at trial was that events happened very quickly.
"The evidence from the autopsy suggests that after the first shot struck the victim, there was no aid that [petitioner] could have provided which would have prevented the victim's death.....[¶]
"After lethal force was used by Contreras, [petitioner] refused to 'finish off' the victim......[¶]
"[Petitioner] stated that he was fearful of Contreras....[¶]
"Based on the statements of [petitioner] and Loui[s] Fernandez, there is sufficient evidence to believe that [petitioner] acted under duress during the events of the robbery and that he did not form the mental state of specific intent required to make him an aider and abettor to murder."
Thereafter, on April 27, 2023, the trial court conducted the evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). The court indicated it had "fully read and considered both sides' trial briefs" and proceeded with the hearing. Both sides indicated they had no other evidence to introduce at the hearing. At this point, the court provided both the prosecution and defense counsel the opportunity to make additional arguments. Subsequently, the court concluded petitioner was a major participant in the robbery and acted with reckless indifference to human life, and thus, denied his petition for section 1172.6 resentencing. Petitioner then filed a timely appeal.
V. Appellate Counsel's Wende/Delgadillo Brief
Appellate counsel filed a brief pursuant to Wende/Delgadillo from the order denying petitioner's section 1172.6 petition. The brief also included appellate counsel's declaration she advised petitioner he could file his own brief with the court. Thereafter, on June 3, 2024, this court received petitioner's supplemental letter brief.
On its own motion, this court took judicial notice (Evid. Code, §§ 452, 459) of the clerk's and reporter's transcripts filed in People v. Fernandez (July 26, 1999, F027238 [nonpub. opn.]). Petitioner and Jesus Fernandez were tried together in the same trial. Upon review of the transcript of the April 27, 2023 section 1172.6, subdivision (d)(3) evidentiary hearing, it appears the trial court read and considered these same transcripts in its ruling. Accordingly, the factual summary is based on the reporter's transcripts filed in Fernandez.
Petitioner knew Contreras, Pasillas, Louis Fernandez, and Jesus Fernandez. Jesus Fernandez owned two firearms, a 12-gauge shotgun and a .22 caliber rifle, which he used for hunting. Prior to December 1994, Contreras had borrowed these firearms to go hunting.
Louis Fernandez and Jesus Fernandez are not related.
Just after December 25, 1994, Contreras called Jesus Fernandez and asked him if he could borrow these two firearms. Because Jesus Fernandez would be at work, he told his wife to give Contreras the firearms when he came over. Jesus Fernandez's wife testified that petitioner was with Contreras when she gave him the firearms.
Subsequently, on December 29, 1994, petitioner ran into Pasillas and asked him for a ride. Pasillas agreed and gave Contreras, petitioner, and J.V. a ride to Pasillas's apartment. According to petitioner, Pasillas and Contreras talked about their intention to commit a robbery later that day. Both petitioner and J.V. were aware Contreras was planning to commit a robbery. Petitioner stated the plan was for everyone to share in the proceeds of the robbery.
At Pasillas's apartment, Contreras and Pasillas took pillowcases, cut holes in them, and decided to wear them during the robbery in order to cover their faces.
That same day, the group left Pasillas's apartment with Louis Fernandez driving his car, J.V. in the front passenger seat, petitioner in the middle back seat, and Pasillas sitting to petitioner's right and Contreras to petitioner's left. The men, including petitioner, in the back seat were sitting on the two firearms as Louis Fernandez drove around at Contreras's direction. During the drive, petitioner, Pasillas, and Contreras discussed the plan for the robbery.
The group drove around Visalia looking for a store to rob, but chose not to rob any stores in Visalia because there were too many people present. According to petitioner, he was told the plan was not to hurt anyone during the robbery.
At approximately 3:30 p.m., the group approached the route to Farmersville, which was at the intersection where the market was located. After Louis Fernandez pulled into a parking lot, Contreras told him to stay in the car and leave the engine running, and to not leave until Contreras, petitioner, and Pasillas completed the robbery. At about this time, Contreras and Pasillas got out of the car and covered their faces with pillowcases to conceal their identity. The plan was for Louis Fernandez and J.V. to remain in the car, while Contreras, petitioner, and Pasillas went into the store to commit the actual robbery.
The group then arrived at the market; Contreras told petitioner to take the rifle and Contreras armed himself with the shotgun. According to petitioner, he was supposed to go into the store first and pretend he was going to buy something. Petitioner did as he was told and entered the store with the .22 caliber rifle concealed under his jacket, knowing the plan was to commit the robbery.
According to petitioner, he unloaded the rifle to ensure no one got hurt. However, despite law enforcement questioning him about whether the rifle was loaded, petitioner never stated before trial that he had in fact unloaded the rifle. Despite his testimony, petitioner told J.V. after the robbery he had attempted to fire the rifle in the store, but the rifle jammed.
Petitioner walked into the store and made eye contact with the victim, and Contreras entered the store carrying the shotgun out in the open. Petitioner heard the victim say, "[O]h, you guys," and then heard Pasillas say the victim had a firearm. Petitioner then observed Contreras point the shotgun at the victim and also heard the sound of a clicking noise from the small firearm the victim had pointed at Contreras. Petitioner heard the shotgun go off and observed the victim fall to the ground. Contreras then told petitioner "[t]o finish him off," but petitioner refused and told "him no, because [he] was not a criminal." At this point, Contreras then shot the victim a second time in the back and killed him. Contreras tried to open the cash register, but could not get the drawer open. However, Contreras did take the victim's firearm and wallet because he thought the wallet may contain money.
Petitioner further stated he "wasn't sure if [the victim] was saying [']help me['] or [']kill me[']" while laying on the floor.
The victim died as a result of blood loss from two shotgun wounds.
Contreras then rummaged through the victim's wallet looking for money and eventually he gave the wallet to petitioner. Petitioner kept the wallet because he was afraid of Contreras and wanted to keep something to corroborate his version of the events. Later on, petitioner showed J.V. the wallet. Subsequently, Louis Fernandez drove everyone back to Pasillas's apartment. After some time had passed, the group went to a bar and then to another house to drink alcohol and use drugs. That same day, petitioner had a conversation with Arturo V. and told him the group "[t]ried to rob a store" and that he had looked all over the store for money to steal.
Arturo is mistakenly spelled "Artero" at times in the reporter's transcript in case No. F027238.
DISCUSSION
I. Appellate Review and Delgadillo
In Delgadillo, our Supreme Court held a Wende analysis is not applicable to a trial court's order denying a petition for resentencing relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Delgadillo, at pp. 231-232.)
"If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.... If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] . While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)
Here, petitioner filed a supplemental brief wherein he challenges the trial court's denial of his section 1172.6 petition on two grounds: (1) the court improperly relied on inadmissible evidence during his evidentiary hearing; and (2) "the evidence [admitted] did not show that [he] was a major participant in the robbery who acted with reckless indifference to human life." Pursuant to the procedures outlined in Delgadillo, we address both these contentions below.
Petitioner further contends that defense counsel provided ineffective assistance of counsel during the section 1172.6 evidentiary hearing. However, as we discuss below, irrespective of defense counsel's performance, petitioner is unable to establish prejudice because there is substantial evidence to conclude he was a major participant in the robbery and acted with reckless indifference to human life. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . that course should be followed."].)
II. General Legal Principles
Effective January 1, 2019, the Legislature passed Senate Bill 1437 "to amend the felony murder rule and the natural and probable consequences doctrine ... 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).) Relevant here, the bill amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if that participant was a major participant in the felony and acted with reckless indifference to human life. (§ 189, subd. (e)(3); accord, People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
Senate Bill 1437 also added section 1172.6, which provides a petition procedure for persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Curiel, supra, 15 Cal.5th at pp. 449-450.)
If the trial court determines the defendant has made a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause and conduct an evidentiary hearing. (Curiel, supra, 15 Cal.5th at p. 450; accord, § 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, "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 [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. (§ 1172.6, subd. (d)(3).) The trial court also "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." (Ibid.) Under the amendments made by Senate Bill No. 775 (2021-2022 Reg. Sess.), the admission of evidence at the hearing is governed by the Evidence Code, and hearsay admitted at the preliminary hearing is admissible only under an exception to the hearsay rule. (§ 1172.6, subd. (d)(3).)
We review a trial court's denial of a section 1172.6 petition after the evidentiary hearing for substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) "Under [the substantial evidence] standard, we review the record '" 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" '" (Ibid.)
III. The Section 1172.6, Subdivision (d)(3) Evidentiary Hearing
First, petitioner contends the trial court improperly relied on preliminary hearing testimony in support of denying his section 1172.6 petition. Specifically, he argues the court improperly relied on inadmissible testimony at the preliminary hearing examination by: (1) Arturo V.; (2) Visalia Police Officer Jeff MacIntosh regarding statements made to him by Fernando Lopez; and (3) Tulare County Sheriff's Detective Jesse Gutierrez regarding statements made to him by Jesus Fernandez. Petitioner further argues the court erred if it relied on evidence introduced at Contreras's severed trial.
Second, petitioner contends insufficient evidence exists to establish he was a major participant in the robbery and acted with reckless indifference to human life, as articulated by our Supreme Court in Banks and Clark.
A. Additional Factual Background
At the section 1172.6, subdivision (d)(3) evidentiary hearing, the prosecutor argued the following:
"And certainly [petitioner] was a major participant. He was involved in the planning. He was involved in casing different locations for the robbery until they landed on the victim's store, which they felt it was the appropriate place because there were not as many people present. Using bandanas and entering the store with a weapon, standing side by side with the actual killer. The only reason [petitioner] was not the actual killer is because his gun jammed. Certainly [this] shows that he was a major participant with the underlying felony, the robbery, as well as his reckless disregard for human life.
"Not only [did] he participate[] in the assault on the victim, but he further did not do anything to prevent the shooter from doing the mortal shooting, as well as he never attempted to render any aid to the victim. Those are requirements under Banks and Clark, which [petitioner] squarely meets." (Italics added.)
Defense counsel argued:
"I'll address the [matter] of whether or not [petitioner] acted with reckless disregard first. I don't think that the evidence shows that. I think that the [prosecution]'s contention that [petitioner] walked into the store and stood side by side with [Contreras], who was the actual killer, I don't think that is shown by the evidence.
"What [petitioner] testified to was that he went into the store. At that time, his rifle was covered under his jacket. He wasn't brandishing it, wasn't pointing it at somebody, and that he acted as he was instructed to do, which was to pretend to buy something. There's no testimony, at least in my reading of the transcript, as to where he was standing in relationship to [Contreras].
"The rest of the testimony was that the initial shooting happened very quickly. But I think there is-at best, it's a contested issue as to whether or not [petitioner] would have been able to act in any way to restrain [Contreras] when he fired the first shot, which struck the victim in this case.
"Additionally, the testimony of Dr. Miller was that that first shotgun shot, which hit the front of the victim, that caused extensive hemorrhaging. I think that he also testified that it caused tearing of internal organs. I believe it was kidney, the bowel, and the spleen. Based on that, I think that that first shot would have been fatal on its own. There's no evidence to suggest that there's any aid that [petitioner] could have rendered at that point which would have prevented the victim from dying.
"With respect to the issue of whether or not [petitioner] attempted to discharge his rifle while he was inside the store, [petitioner's] testimony was that he did not. Now, he did confirm that he made a later statement to the juvenile witness in this case, [J.V.] [⁋] … [⁋]
"In a conversation with J.V., [petitioner] had stated that while inside the store, he attempted to discharge his rifle, but it jammed. [Petitioner] explained, though, that he had said that because that was a conversation that [Contreras] was also present for and he was concerned that [Contreras] had designs to kill [petitioner] for failing to comply with orders inside of the store that [petitioner] was to kill the [victim].
"There was also testimony that [petitioner], while he was inside of the car before the robbery happened, unloaded his rifle so that it did not have ammunition in it when the robbery took place. That's not contradicted by any of the physical evidence that was found, as there were no rifle shells or any other types of casings that were found at the scene.
"During the autopsy, what was removed from the victim's body was shotgun pellets. There was nothing related to rifle fire that was there.
"And then I think the [prosecution] mention[ed] the case of Clark and Banks. I think there are other factors that have a bearing on this that need to be addressed.
"[Petitioner] was not the one that provided the weapons that were used in the robbery. There is some evidence to suggest that he helped with transporting them....[⁋] … [⁋]
"He went-and I believe he went with [Pasillas]. And the two people that exercised the greatest degree of control over the members of the group were [Contreras] and [Pasillas]. I believe with the exception of J.V., [petitioner] was the youngest member of the group. He was 18 at the time that happened.
"There's also no evidence that [petitioner] was aware that [Contreras] had engaged in any type of conduct like this before or that he had previously engaged in violent conduct that ended in the death of another person. So I don't think it's reasonable to infer that he could have anticipated that this was the result that was likely. I think the evidence falls short with respect to showing [petitioner] acted with reckless disregard." (Italics added.)
The prosecutor responded as follows:
"Your Honor, [petitioner's] self-serving statements at the time of trial is not up to date with the ample evidence with his reckless disregard for human life. For one, the victim was not dead after the first shot. He was actually in such a state that he was asking to be killed by some accounts.
"And the [petitioner's] conduct, even after the events, contradicts his statements. They celebrated the shooting by going to bars, drinking that night, and consuming methamphetamine until late hours of the night. Those are also factors under Banks and Clark to be considered.
"All evidence points to a very willful participation in the underlying felony, the robbery, and very clear picture of reckless disregard for human life by celebrating the shooting and killing of the [victim]." (Italics added.)
Subsequently, after hearing argument, the trial court ruled as follows:
"The Court's considerations include whether [petitioner], with the intent to kill, aided and abetted the actual murderer, whether [petitioner] was a major participant in the underlying felonies, and whether he acted with reckless indifference to human life.
"The Court, again, has considered all of the evidence in the case and finds [petitioner's] testimony, which has been pointed out largely by defense counsel, to be self-serving and not credible.
"I also make the following findings under Clark and Banks, and I am guided by the CALCRIM jury instructions concerning this matter.
"As to reckless indifference to human life, [petitioner] and co-defendant Contreras were armed with rifles when they entered the victim's store. They transported the rifles to the store by sitting on them in the back seat of the car they arrived in. Co-defendant Pasillas acted as a lookout and advised Contreras and [petitioner] there was nobody in the store prior to their entry. [Petitioner] and Contreras were masked with pillow cases [sic] that they made prior to the robbery.
"According to witness J.V., [petitioner] told him that after Contreras shot the victim the first time, [petitioner] tried to shoot the victim again, but his gun wouldn't fire. [Petitioner] admitted making this statement to J.V. when he testified at trial. [Petitioner] was present when Contreras kicked the victim, shot him-and shot him a second time.
"Not only was [petitioner] in the victim's presence during the shooting, he also had the opportunity to at least try to stop Contreras from shooting the victim a second time and to help the victim. There is evidence the victim may have been asking for help after the first shot as he laid on the floor. There is no evidence that [petitioner] provided any assistance to the victim in response to his pleas. There is nothing indicating that [petitioner] acted to minimize the possibility of violence.
"As to whether [petitioner] was a major participant, [petitioner's] role in planning the crime is significant. According to witness [Arturo V.], [petitioner] and his co-defendants' motive was to make some quick cash. Witness M[.]F[.] testified that the night before the murder, [petitioner] and Contreras picked up the guns from her house. In preparation for the robbery, [petitioner] and Contreras cut pillow cases [sic] and tied them around their necks so that they could pull them up over their faces during the robbery.
"Prior to arriving at the victim's store, [petitioner] and the co-defendants elected not to stop at that store because there were too many people there.
"After the victim was shot, [petitioner] took the victim's wallet and Contreras took the victim's gun. According to witness [J.V.], [petitioner] showed [him] the wallet he took from the victim.
"As to the events after the fatal beating and robbery-shooting, actually, and robbery, [petitioner] and the co-defendants sped away from the murder and went to the homes of the co-defendants, various parties, and a bar. They were drinking there and using methamphetamine. There was testimony that [petitioner] seemed excited about the killing. There was nothing about any showing of remorse by [petitioner].
"To conclude, based on all of the evidence, I find [petitioner] was a major participant in the crimes charged who acted with reckless disregard to human life and had the specific intent to kill and aid and abet the actual murder in this homicide. As such, I find [petitioner] is guilty beyond a reasonable doubt of murder and the special circumstances alleged. [Petitioner's] petition for resentencing is denied." (Italics added.)
B. Preliminary Hearing Testimony &Evidence Introduced at Contreras's Trial
At the outset, the trial 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. (§ 1172.6, subd. (d)(3).) "However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (Ibid.)
Section 872, subdivision (b) states the following in relevant part: "Notwithstanding [s]ection 1200 [(hearsay rule)] of the Evidence Code, the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted." (§ 872, subd. (b).)
Here, during its order, the trial court specifically stated it had "considered all of the evidence in the case" and found petitioner "was a major participant in the crimes charged who acted with reckless indifference to human life and had the specific intent to kill and aid and abet the actual murder in this homicide." The evidence relied on by the court was introduced during petitioner's trial. When the record is silent," '[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law.'" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) Because there is nothing in the record to indicate otherwise, we presume the court only weighed admissible evidence before making its determination. (Ibid.; see § 1172.6, subd. (d)(3).) Furthermore, there is nothing in the record to indicate the court relied on evidence introduced at Contreras's severed trial. Accordingly, we conclude the court properly relied on admissible evidence before making its determination that petitioner was ineligible for section 1172.6 resentencing relief.
C. Banks
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Clark Factors
In Banks, our Supreme Court listed the following as "[a]mong those factors" that may be considered in determining "whether the defendant's participation ... was sufficiently significant to be considered 'major' ": "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
As to "[r]eckless indifference to human life[, it] has a subjective and an objective element. [Citation.] As to the subjective element, '[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,' and he or she must consciously disregard 'the significant risk of death his or her actions create.' [Citations.] As to the objective element,' "[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." '" (In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) 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." (Clark, supra, 63 Cal.4th at p. 617; accord People v. Strong, supra, 13 Cal.5th at p. 706.)
"We analyze the totality of the circumstances to determine whether [the defendant] acted with reckless indifference to human life. Relevant factors include: Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony? [Citation.]' "[N]o one of these considerations is necessary, nor is any of them necessarily sufficient." '" (Scoggins, supra, 9 Cal.5th at p. 677.)
The requirements of being a major participant and having reckless indifference to human life overlap," 'for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.'" (Clark, supra, 63 Cal.4th at p. 615.) Thus, "the trial court's factual finding that [the defendant] was a major participant in the underlying felony is-itself-supportive of the court's additional factual finding that [the defendant] acted with reckless indifference to human life." (People v. Cody (2023) 92 Cal.App.5th 87, 113; see Scoggins, supra, 9 Cal.5th at p. 677.)
Because of this overlap, we apply the Banks/Clark factors together, and in viewing the totality of the circumstances, we conclude the record contains substantial evidence to support the trial court's conclusion that petitioner was a major participant in the robbery that acted with reckless indifference to human life.
a. Role in Planning the Robbery
Here, the trial court found that petitioner "and his co-defendants' motive was to make some quick cash," that "[i]n preparation for the robbery, [he] and Contreras cut pillow cases [sic] and tied them around their necks so that they could pull them up over their faces during the robbery," and that "[p]rior to arriving at the victim's store, [he] and the co-defendants elected not to stop at that store because there were too many people there." Accordingly, the evidence establishes that petitioner had an active "role .. in planning the criminal enterprise that led to [the victim's] death[]." (Banks, supra, 61 Cal.4th at p. 803.)
As discussed above, it appears only Contreras and Pasillas wore the pillowcases to hide their faces. However, irrespective of this individual fact, there still exists substantial evidence to conclude petitioner was a major participant in the robbery and acted with reckless indifference to human life.
b. Supplying or Using Lethal Weapons
Here, the trial court concluded that Jesus Fernandez's wife "testified that the night before the murder, [petitioner] and Contreras picked up the guns from her house." Prior to the robbery, both petitioner and Contreras sat on these firearms as the group drove around the Visalia area looking for a robbery target. After locating the market, petitioner grabbed the .22 caliber rifle, hid it in his jacket, and possessed the firearm throughout the entirety of the robbery. He then attempted to fire the rifle, but was unsuccessful because the firearm jammed. Petitioner not only helped retrieve the firearms used during the robbery, but also used a firearm himself. Accordingly, there is substantial evidence to support a finding petitioner and Contreras were armed with firearms and that they used these firearms during the robbery.
c. Physical Presence at the Robbery and Opportunities to Restrain the Crime and/or Aid the Victim
"Proximity to the murder and the events leading up to it may be particularly significant where . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state.. [Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.'" (Clark, supra, 63 Cal.4th at p. 619.) Petitioner implicitly concedes he was present during the murder but argues "there is no evidence there that [he] had any opportunity to restrain the shooter or help the victim." However, the trial court noted, "Not only was [petitioner] in the victim's presence during the shooting, he also had the opportunity to at least try to stop Contreras from shooting the victim a second time and to help the victim. [Specifically,] [t]here is evidence the victim may have been asking for help after the first shot as he laid on the floor. There is no evidence that [petitioner] provided any assistance to the victim in response to his pleas." Under Clark, petitioner's presence and behavior at the market bolsters the court's conclusion that he acted with reckless indifference to human life.
d. Duration of Felony
With respect to the duration of the felony, "[c]ourts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant.... Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder." (Clark, supra, 63 Cal.4th at p. 620.) Petitioner argues that "because the shooting here was unexpected and was supposedly done when the [victim] surprised Contreras, this factor weighs in [his] favor." We accept this assertion, but it does not alter our view of the totality of the circumstances. (Clark, at p. 618 [" '[N]o one of these considerations is necessary, nor is any of them necessarily sufficient.' "].)
e. Petitioner's Knowledge of Contreras's Likelihood of Killing
With respect to his knowledge of Contreras's likelihood of killing, petitioner focuses on evidence pertaining to Contreras's general propensity for violence, rather than evidence pertaining to petitioner's knowledge Contreras wanted to kill the victim and was armed. The record is clear, and petitioner himself admits, that at one point during the robbery the victim was lying on the floor and petitioner "wasn't sure if [the victim] was saying [']help me['] or [']kill me[']." Contreras then told petitioner "[t]o finish him off," but petitioner told him no. At this point during the encounter, petitioner was aware that Contreras was likely to kill the victim while armed with the shotgun. Accordingly, substantial evidence exists to support the finding petitioner had knowledge Contreras was likely to kill the clerk.
f. Efforts to Minimize the Risks of Violence During the Felony
Here, the trial court noted, "There is nothing indicating that [petitioner] acted to minimize the possibility of violence." If anything, petitioner increased the likelihood of violence by bringing the rifle into the store with the understanding he may need to use it if the robbery went sideways. Accordingly, petitioner made no efforts to minimize the risk of violence used during the robbery.
g. Petitioner's Actions After Lethal Force Was Used
The trial court noted that "after the fatal .. robbery-shooting, actually, and robbery, [petitioner] and the co-defendants sped away from the murder and went to the homes of the co-defendants, various parties, and a bar. They were drinking there and using methamphetamine.... There was nothing about any showing of remorse by [petitioner]." Petitioner never attempted to call emergency personnel, nor did he attempt to render aid to the victim. Rather, he sped off with his group in the vehicle and enjoyed the rest of his day as though nothing had happened. Accordingly, petitioner's failure to call emergency personnel, along with the fact he chose not to render aid to the victim, support the court's conclusion.
Nonetheless, in his supplemental letter brief, petitioner goes through each of the Banks/Clark factors and challenges numerous pieces of testimony made against him during his 1996 trial. However, under substantial evidence review, "[w]e do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Jacobo (2019) 37 Cal.App.5th 32, 42.)
Furthermore, petitioner cites his youth at the time of the offense as a factor in his favor. Assuming his youth is a relevant factor to consider in the totality of the circumstances, it is not dispositive. (In re Harper (2022) 76 Cal.App.5th 450, 470.) Because the evidence supports the trial court's determination that petitioner was fully aware and supported Contreras's intent to kill the victim, and took a lead role in the robbery, we cannot conclude petitioner's youth alters our conclusion that substantial evidence supports the determination he was a major participant in the robbery and acted with reckless indifference to human life. (See People v. Oliver (2023) 90 Cal.App.5th 466, 489-490.)
Petitioner argues he "was only 17 at the time of the murder" even though the probation report stated he "was 19 ... [and he] ha[s] a birth certificate that shows [he] was 17[.]" Again, petitioner's youth may be relevant, but it is not dispositive as it relates to our determination that he was a major participant in the robbery and acted with reckless indifference to human life.
In further support of his contention, petitioner refers this court in a second supplemental letter brief to the unpublished case from the Fourth District Court of Appeals, People v. Esquivel (June 20, 2024, E080804 [nonpub. opn.] (Esquivel)). However, unpublished opinions "must not be cited or relied on by a court or a party in any other action." (Cal. Rules of Court, rule 8.1115(a).) Therefore, we do not consider Esquivel in reaching our conclusion in this case.
Therefore, we conclude substantial evidence supports the trial court's finding that petitioner is still guilty of first degree murder following the passage of Senate Bill 1437. Accordingly, petitioner is ineligible for resentencing relief under section 1172.6 and, thus, the court correctly denied his petition.
DISPOSITION
The order denying petitioner's petition for resentencing under section 1172.6 is affirmed.
[*] Before Hill, P. J., Detjen, J. and Franson, J.