Opinion
B313669
06-29-2022
THE PEOPLE, Plaintiff and Respondent, v. LIFALFA GREEN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA016472, Charlaine F. Olmedo, Judge. Affirmed in part and reversed in part.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, ACTING P.J.
In 1992, petitioner, Lifalfa Green, suffered convictions for the murder of Juan Nunez, the attempted murder of Jorge Nunez (Juan's brother), and robbery (of Juan's vehicle). With respect to the murder, the jury found true that Green personally used a firearm and found not true a robbery murder special circumstance. The jury also found the allegation that Green used a firearm true with respect to the attempted murder and found that the attempted murder was willful, deliberate, and premeditated based on an instruction requiring the jury to consider Green's confederate's mental state, not Green's mental state.
In 2019, Green filed a petition for resentencing pursuant to Penal Code section 1170.95, which the resentencing court denied after holding a hearing at which no party presented new evidence. On appeal, Green challenges the sufficiency of the evidence to support his convictions for murder and attempted murder under current law. We conclude that substantial evidence supported the murder conviction because the evidence shows Green acted as a major participant in the underlying robbery with reckless indifference to human life. We find no substantial evidence supported the finding that Green intended to aid and abet an attempted murder. We affirm in part and reverse in part the resentencing court's order denying Green's petition for resentencing.
All statutory citations are to the Penal Code.
FACTS AND PROCEDURE
Michael Allen, Green's fellow gang member, shot and killed Juan Nunez on March 17, 1990. Allen and Green were tried separately. In an unpublished decision, this court affirmed the judgment. (People v. Green (June 3, 1994, B068877) [nonpub. opn.] (Green I).)
In the current appeal, both parties base their factual background on the facts described in the appellate opinion following the judgment of conviction. We begin with the facts in the appellate opinion and then turn to additional relevant facts from the underlying trial, a transcript of which was admitted in the resentencing court. Finally, we turn to Green's resentencing petition and the resentencing court's findings.
1. Prior appellate opinion
In the prior appeal, this court described the facts as follows: "Green and several of his fellow Crips (Newton, Allen, Bethea, and Crayon) and other buddy (Gaither) were loitering in front of a liquor store when Juan and Jorge Nunez, on their way to a boxing match in Juan's Buick Regal, stopped at a red light. When he noticed the Buick and its chrome wire wheels ('laces'), Allen said to Green, 'Look . . ., there go some laces. There go a jack move [i.e., somebody worth robbing].' Allen ran up to the driver's side of the Buick and, without a word, shot Juan twice. When the car started to roll, Allen reached inside, put it in park and then fired several more shots at Jorge (who was trying to pull Juan from the car). Allen got into the driver's seat, Jorge and Juan fell out [of] the passenger side, Green ran up to the car and, after pointing his own gun at Juan and Jorge, got into the car with Allen and the two drove away. Juan died from his wounds." (Green I, supra, B068877.)
"Green and Allen were charged with Juan's murder, robbery and the attempted murder of Jorge, with a felony murder special circumstance allegation and gun-related enhancements. Allen's motion to sever was granted and he is not a party to this appeal. At trial, Bethea, Gaither and Newton identified Green and described his involvement in the crimes. The jury rejected Green's alibi defense and convicted him of the substantive charges and the gun use allegations but found the special circumstance allegation untrue." (Green I, supra, B068877.)
In a portion of the prior appellate opinion not relied upon by the resentencing court but relied upon by Green in his supplemental brief, this court rejected Green's contention that the trial court improperly admitted hearsay evidence. Specifically, Gaither answered "no" when asked whether he told the police that "an unidentified woman told him that Green had' "jacked" the Mexican for his car.'" (Green, supra, B068877.) The appellate opinion noted that "the trial court instructed the jury that the statement was 'not being offered for its truth that any unknown female said anything.'" (Ibid.) Instead, it was offered to impeach the witness. (Ibid.)
2. Additional facts described during Green's 1992 trial
According to Jorge, at the time of the shooting, Juan was driving a car with "true classic wire wheels." Jorge was a passenger in the car. While the car was stopped at a red light, Allen "without saying anything . . . started shooting" Juan. Allen "didn't say anything at all. He just shoot [sic] at" Juan. Allen ordered Juan and Jorge Nunez out of the car and then "shot 2 or 3 more shots" at Juan. Jorge testified he thought the latter two or three shots were intended for him "but they hit my brother again, because my brother was on top of me, and we were getting out of the car."
Charles Bethea, Green's fellow gang member, testified that he saw Allen and Green run to Juan's car. Bethea identified Green as "the guy on the passenger side of the car that was running" to the car. Bethea had his "eye on both of them . . . because [he] saw both of them running." At the time he heard gunshots, Allen was on the driver side and Green was on the passenger side. Shante Newton, also a gang member, saw Green run up to the car as Allen was firing.
Jorge testified that he did not see Green approach the car until Jorge and Juan were outside the car. Jorge saw Green holding a gun in both hands and pointing the gun at him and Juan "until they [Allen and Green] got away." Green walked past Juan and Jorge to enter the car and pointed a gun at them as Green passed. Jorge "just looked at [Green], because I [Jorge] couldn't do anything. I was at his mercy." Green walked past Jorge and Juan to enter the car.
Green and several other witnesses testified that Green was at a party at the time of the murder. Green also testified, "I wouldn't want to jack for something that I could purchase for $100 or less, or a little bit more, from the streets." He also testified that he did not need the rims because he already had rims. Green testified, "I have no knowledge of what that man [Allen] did on that night, because I was not with him."
The trial court instructed the jury on natural and probable consequences as follows: "One who aids and abets is not only guilty of the particular crime aided and abetted but is also liable for the natural and probable consequences of the commission of such crime. [¶] In order to find the defendant guilty of the crime of murder and attempted murder, as charged in Counts 1 and 3, you must be satisfied beyond a reasonable doubt that the crime of robbery was committed, and if so, that the defendant is guilty of robbery as an aider and abettor, and that the crimes of murder and attempted murder charged in Counts 1 and 3 were a natural and probable consequence of the commission of the crime of robbery." The trial court also instructed the jury on felony murder. With respect to attempted murder, the jury was instructed the actual perpetrator had to harbor the specific intent to kill. The court instructed the jury that to find willful, deliberate, and premeditated attempted murder the "would-be slayer" had to "weigh and consider the question of killing . . . ." Under the instructions, the jurors could find defendant used a firearm if they concluded he displayed it in a menacing manner, intentionally fired it, or intentionally struck a human being with it.
The court also instructed the jury with a robbery murder special circumstance. During jury deliberation, the jury asked "that the judge clarify the requirements of [the] 'special circumstance,'" specifically asking: "[O]nce it is proved that (1) the murder was committed while the defendant was engaged in the robbery and (2) the murder was committed in order to carry out the robbery, does the finding of the special circumstance being true hinge solely on the defendant having intent to kill while aiding and abetting the commission of murder?" The court responded, "Yes." The jury found the special circumstance not true.
The special circumstance instruction provided in pertinent part: "If you find the defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true: murder in the commission of a robbery. [¶] . . . If you find beyond a reasonable doubt that the defendant was an aider or abettor, then you must also find beyond a reasonable doubt that the defendant with intent to kill aided and abetted an actor in commission of the murder in the first degree, in order to find the special circumstance to be true."
The trial court sentenced defendant to 29 years to life for the murder, three years for the robbery, and life with the possibility of parole for the attempted murder, and ordered all terms to run concurrently.
3. The resentencing court holds a section 1170.95, subdivision (d)(3) hearing and finds beyond a reasonable doubt Green could be convicted under current law of murder and attempted murder
On March 20, 2019 Green filed a petition for resentencing pursuant to section 1170.95. After Green filed his resentencing petition, the resentencing court found a prima facie case of eligibility and held a section 1170.95, subdivision (d)(3) hearing. The court admitted a disc containing the trial transcript.
We previously took judicial notice of the appellate record from the prior appeal, and we have reviewed the trial transcript.
No party presented new evidence at the section 1170.95, subdivision (d)(3) hearing. The resentencing court relied on the appellate opinion and indicated that the entire transcript of the underlying trial was admitted. The resentencing court stated that it was basing its decision both on the "appellate decision[s] and also sitting as an independent fact-finder finding beyond a reasonable doubt."
Following the section 1170.95, subdivision (d)(3) hearing at which Green was represented by counsel, the resentencing court found Green "acted as a direct aider and abettor with the express malice and also acted as a major participant under a felony murder theory of liability."
The resentencing court found Green had express malice with respect to the attempted murder and murder. The court also found that Green was a major participant. The court explained its reasoning at the section 1170.95, subdivision (d)(3) hearing: "[T]here was no doubt obviously the defendants had no idea necessarily that the Nunez brothers were going to be driving by in a car with tricked out rims. [¶] They saw it. Allen made a comment of that, basically, is a perfect target of our robbery and there was a group that we're hanging out of fellow gang members and Allen proceeds then to go effectuate that robbery. And Green knowing full well what Allen's intent was, to do a robbery, joins him." The court continued: "Mr. Green knew the target of the robbery being the car, . . . that Mr. Allen intended to effectuate[ the robbery]; that he obviously knew a gun was used and very importantly that Mr. Green had a gun." Green "used a lethal weapon to effectuate the robbery." "[I]n conducting a carjacking/robbery where participants are armed, . . . there is an awareness of the dangers involved with that." Green did not render aid to the victims. Green's defense was an alibi, not that he did not know Allen would shoot.
Green timely appealed from the order denying his resentencing petition.
DISCUSSION
"Senate Bill 1437 'amend[ed] 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.]" (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) Senate Bill No. 1437 also added section 1170.95 to permit persons convicted of murder based on a felony murder theory or a natural and probable consequence theory to seek retroactive relief. (Gentile, at p. 843.)
Under section 1170.95, a petitioner first has to make a prima facie case for relief. (§ 1170.95, subd. (a).) Then, as here, a trial court issues an order to show cause and holds a hearing under section 1170.95, subdivision (d) at which either party may present new evidence. (§ 1170.95, subdivision (d)(3).)
At a section 1170.95, subdivision (d)(3) hearing, the resentencing court acts as an independent trier of fact. (People v. Owens (May 18, 2022, B310427) __Cal.App.5th __ [2022 WL 1565241 at p. *3] (Owens).) The prosecution bears the burden to show beyond a reasonable doubt the petitioner is ineligible for relief. (Ibid.) An appellate court reviews the resentencing court's findings for substantial evidence. (People v. Garrison (2021) 73 Cal.App.5th 735, 747.) Under that standard of review, we must view the evidence in the light most favorable to the judgment. (Owens, supra, __Cal.App.5th at p.__ [2022 WL 1565241 at p. *3].) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it." (People v. Vang (2001) 87 Cal.App.4th 554, 563.)
A. Substantial Evidence Supported the Murder Conviction
Under current law, a person may be convicted of murder if that person acted as a major participant in the underlying felony with reckless indifference to human life. (Gentile, supra, 10 Cal.5th at p. 842.) Under new subdivision (e) of section 189, "[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] 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[;] [¶] [or] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . ." (§ 189, subd. (e).) Here, substantial evidence supported that Green was a major participant in the underlying felony and acted with reckless indifference to human life.
The following question underlies the determination of whether a defendant is a major participant: Was "the defendant's participation 'in criminal activities known to carry a grave risk of death [citation] . . . sufficiently significant to be considered 'major' [citations]?" (People v. Banks (2015) 61 Cal.4th 788, 803 (Banks).) Relevant factors include: "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?" (Ibid., fn. omitted.)
Reckless indifference to human life concerns defendant's subjective awareness that his"' "participation in the felony involved a grave risk of death."' [Citation.]" (Banks, supra, 61 Cal.4th at p. 807.) The factors of major participant and reckless indifference overlap. (People v. Clark (2016) 63 Cal.4th 522, 614-615 (Clark).)" '[T]he culpable mental state of "reckless indifference to life" is one in which the defendant "knowingly engag[es] in criminal activities known to carry a grave risk of death" [citation] . . . .' [Citation.]" (In re Bennett (2018) 26 Cal.App.5th 1002, 1021 (Bennett)) Where these factors identify nothing that "elevated the risk to human life beyond those risks inherent in any armed robbery" the special circumstance is inapplicable. (Clark, at p. 623.)
Our high court has identified nonexclusive factors relevant to considering whether defendant acted with reckless indifference to human life: (1) the defendant's knowledge of weapons and use of a weapon even if the defendant did not kill the victim; (2) the defendant's presence at the scene of the crime and failure to aid the victim; (3) the duration of the felony; (4) the defendant's knowledge of a cohort's likelihood of killing; (5) the defendant's efforts to minimize risk of violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-623.) No single factor is" 'necessary'" or" 'necessarily sufficient.'" (Bennett, supra, 26 Cal.App.5th at p. 1019.)
The following substantial evidence supported the resentencing court's findings that Green was a major participant in criminal activities known to carry a grave risk of death and that Green acted with reckless indifference to human life. (See Owens, supra, __Cal.App.5th at p.__ [2022 WL 1565241 at p. *4] [significant overlap in factors relating to major participant and factors relating to reckless indifference to human life].) Green took a firearm to an armed robbery and pointed it at Juan and Jorge. Green knew that Allen intended to rob the Nunez brothers and was present during the robbery. Green continued to participate in the robbery knowing that Allen had shot multiple times. Green entered Juan's car and drove away with Allen. Rather than attempting to deescalate the violence, Green ensured that he and Allen could escape by pointing his gun at Juan and Jorge. Even if arguendo Green was not aware that Allen intended to shoot Juan and Jorge, there was no evidence that he took any steps to minimize the possibility of violence or to obtain help after Juan was mortally wounded. Green demonstrates no error in denying his resentencing petition with respect to the murder conviction. (People v. Law (2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490 [finding as a matter of law a petitioner involved in violent robbery who used gun to threaten victims and was at the scene of the shooting but did not stop accomplice or help victim was a major participant and acted with reckless indifference to human life].)
B. Assuming Section 1170.95, Subdivision (d)(3) is Retroactive, the Resentencing Court's Reliance on the Prior Appellate Opinion Did Not Prejudice Green
After Green's evidentiary hearing, "effective January 1, 2022, the Legislature limited use of prior appellate opinions [in a section 1170.95, subdivision (d)(3) hearing], allowing trial judges to 'consider the procedural history of the case recited.'" (People v. Clements (2022) 75 Cal.App.5th 276, 292, citing § 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551; see also People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) Clements explained that "the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (Clements, at p. 292.)
Assuming arguendo that the revised procedural rules are retroactive, we may reverse for evidentiary error only if the error was prejudicial. State evidentiary law error is reviewed under the People v. Watson (1956) 46 Cal.2d 818, 836 standard for prejudice. (People v. Samuels (2005) 36 Cal.4th 96, 113-114.)" '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 955.)
In Owens, supra, __Cal.App.5th__ , the majority suggested that the procedural rules in section 1170.95, subdivision (d)(3) are not retroactive and the dissent disagreed. For purposes of this appeal, we need not decide this issue because even if the new evidentiary rule were retroactive, any error in relying on the prior appellate opinion was not prejudicial.
Green argues that the resentencing court's reliance on the prior appellate opinion was prejudicial for the following reasons: It states that Green spoke to Allen "with regard to a 'jack move' as opposed to the group in general"; Green presented an alibi defense; the appellate opinion describes hearsay evidence that a woman said Green" 'jacked' the Mexican for his car." Green also faults the resentencing court for failing to discuss the jury instructions.
Green demonstrates no prejudice from the trial court's reliance on the prior appellate opinion. Even if Allen spoke to a group, rather than just Green, Green was the only person who participated in the robbery with Allen. What Allen told the others is irrelevant to whether Green acted as a major participant with reckless indifference to human life. The prior appellate decision accurately describes Green's defense as an alibi defense as Green and several of his friends testified that Green was at a party at the time of the shooting. Moreover, Green's alibi is not probative of whether he acted as a major participant with reckless indifference to human life. The resentencing court did not rely on hearsay testimony that a woman said Green" 'jacked' the Mexican for his car," and in any event, that evidence would be cumulative of Green's admission in his appellate briefing that he "ran up to the car and, after pointing his own gun at Juan and Jorge, got into the car with Allen and the two drove away." (Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.' "].)
Although Green faults the resentencing court for failing to consider the jury instructions, he identifies no jury instruction relevant to the determination whether beyond a reasonable doubt Green was a major participant with reckless indifference to human life. Finally, Green's claim of prejudice flowing from the resentencing court's reliance on the prior appellate opinion is undermined by Green's own reliance on that opinion as the basis for his factual background.
C. No Substantial Evidence Supported the Attempted Murder
Attempted murder requires the specific intent to kill. (People v. Perez (2010) 50 Cal.4th 222, 229 (Perez).) Our high court explained: "[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing-which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (People v. Lee (2003) 31 Cal.4th 613, 624.) There is no crime of attempted felony murder. (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4.)
On appeal, Green argues no substantial evidence supports the finding that he intended to kill Jorge. Respondent counters that the finding is supported by the following evidence: "Allen approached the victims' car and began shooting without saying a word, and did so before appellant even began his role in the robbery. [Citations.] Appellant then ran 133 feet to join in the robbery. [Citation.] Once he arrived, appellant pointed his gun at both victims. [Citation.] Appellant kept the gun on the victims even after he got into the car. [Citation.] No evidence was presented that appellant and Allen said a word to each other during the robbery, or that appellant was surprised by the use of lethal force. Accordingly, the evidence supports the reasonable inference that appellant continued with the robbery despite Allen shooting Juan at the outset because killing the victim-witnesses was part of their plan to take the car."
The actual evidence contradicts respondent's unsupported, speculation that Allen and Green planned to kill all "victim-witnesses." It is undisputed that Green walked past Jorge and Juan, while holding a gun, and refrained from shooting either one. Green never discharged his gun. Had Green intended to shoot Jorge he had the opportunity to do so as Jorge recognized, testifying he was at Green's "mercy." There was no evidence that Green was "thwarted from" shooting by "circumstances beyond his control." (See Perez, supra, 50 Cal.4th at pp. 230-231.) Prior to the robbery, Allen referred to a robbery for the wire wheels, but did not refer to killing anyone let alone all victims or all witnesses. In addition, the jury found that Green did not intend to kill Juan, and respondent neither provided new evidence at the section 1170.95, subdivision (d)(3) hearing nor offered any theory under which Green could have intended to kill only the surviving brother. Contrary to respondent's argument, the evidence does not support "the reasonable inference that appellant continued with the robbery despite Allen shooting Juan at the outset because" of a predetermined plan to kill all victim-witnesses. The evidence supports a predetermined plan to commit an armed robbery for "laces" or rims, not a predetermined plan to kill Jorge.
Because no substantial evidence supported the trial court's finding, we need not consider Green's argument that the special circumstance finding, standing alone, precluded the trial court from finding intent to kill. We recognize that other courts have held that a not true finding on a robbery-murder special circumstance requires resentencing. (People v. Harrison (2021) 73 Cal.App.5th 429, 439-440; People v. Clayton (2021) 66 Cal.App.5th 145, 149.)
Finally, the jury did not find otherwise. Although the jury found the attempted murder was willful, deliberate, and premeditated, the instruction for that finding was based on the "would-be slayer['s]" premeditation, not Green's premeditation.The trial court also instructed the jury that only Allen, not Green, had to have the specific intent to kill. Under the instructions given, jurors could have convicted Green of attempted murder if he had the specific intent to aid and abet a robbery for which the attempted murder was a natural and reasonably foreseeable consequence. Such a finding would no longer support an attempted murder conviction.
Specifically, the court instructed the jury: "To constitute willful, deliberate, and premediated attempt to commit murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice, and having in mind the consequences, decides to kill, and makes a direct but ineffectual act to kill another husqman being."
The court instructed the jury as follows: "You have been instructed that the crime of attempted murder requires a finding that the perpetrator had the specific intent to kill at the time of the attempt. However, if you should find that defendant is liable as an aider and abettor, then you need not find that he personally entertained an intent to kill the victim. He is liable for attempted murder if you find beyond a reasonable doubt that the following are true: [¶] 1. That an attempted murder was committed by the actual perpetrator, and that the actual perpetrator had the specific intent to kill Jorge Nunez; 2. That the defendant, Lifalfa Green, had the specific intent to aid and abet the actual perpetrator in the commission of an armed robbery; and, 3. The attempted murder was a natural and reasonably foreseeable consequence of the armed robbery, which Green intended to assist."
DISPOSITION
The order denying Green's resentencing petition on the murder conviction is affirmed. The order denying Green's resentencing petition with respect to attempted murder is reversed. The case is remanded to the trial court for resentencing consistent with this opinion. Upon resentencing, the trial court shall forward the amended Abstract of Judgment to the Department of Corrections and Rehabilitation.
We concur: CHANEY, J., MORI, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.