Opinion
B321066
07-02-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO SANDOVAL NAVARRO, Defendant and Appellant.
Eric R. Larson, 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, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA082399. Richard M. Goul, Judge. Affirmed.
Eric R. Larson, 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, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
In June 2023, we affirmed the trial court's denial, after an evidentiary hearing, of defendant and appellant Francisco Sandoval Navarro's petition for resentencing pursuant to Penal Code section 1172.6 (former § 1170.95). We concluded there was substantial evidence supporting the trial court's finding beyond a reasonable doubt that defendant was guilty as a direct aider and abettor who acted with intent to kill. Defendant's petition for review was granted by the Supreme Court.
On April 24, 2024, the Supreme Court transferred the matter to us with directions to vacate our decision and reconsider the cause in light of People v. Curiel (2023) 15 Cal.5th 433 (Curiel). Having done so, we again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 23, 2003, Alvaro S. was hanging out in the courtyard of a Long Beach apartment building with his two sons and four other men. A group of males entered the courtyard. One of the intruding males asked who was "the one fucking with [his] sister" and in short order, a "melee ensued." (People v. Navarro (July 19, 2013, B236494) [nonpub. opn.].) More than one of the assailants yelled out "This is BST," referring to Barrio Small Town, a criminal street gang of which defendant concedes he is a member. (Ibid.) Alvaro S. was fatally stabbed during the attack, and two of the other men who had been in the courtyard with him received nonfatal knife wounds. (Ibid.) We reserve a more detailed discussion of the trial evidence to part 3 of the Discussion, post.
Defendant was charged, along with three codefendants, with one count of murder (Pen. Code, § 187, subd. (a); count 1) and two counts of attempted murder (§§ 187, subd. (a), 664; counts 2 &3) arising from the attack. Gang allegations were alleged as to all three counts. The codefendants were three of defendant's fellow BST gang members, one of whom was his brother (Daniel Sandoval Navarro, Juan Manuel Aguas, and Juan Carlos Portillo). (People v. Navarro, supra, B236494.) The jury was instructed on the principles of direct aiding and abetting liability and the natural and probable consequences doctrine. The prosecutor argued both theories of liability. (Ibid.)
The jury found defendant guilty on all three counts with true findings the offenses were committed for the benefit of, at the direction of or in association with a criminal street gang. Defendant was sentenced to 55 years to life in prison. (People v. Navarro, supra, B236494.) In 2013, we affirmed defendant's conviction, concluding there was substantial evidence defendant was a participant in the attack that resulted in the fatal and nonfatal stabbings. (Ibid.)
After defendant's conviction became final, the Legislature passed two pieces of legislation amending the law regarding liability for murder and attempted murder: Senate Bill 1437 (2017-2018 Reg. Sess.) which became effective January 1, 2019 (Stats. 2018, ch. 1015, § 4) and Senate Bill 775 (2021-2022 Reg. Sess.) which became effective January 1, 2022 (Stats. 2021, ch. 551, § 2).
As relevant here, the new legislation amended Penal Code section 188, eliminating the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 2.) It also enacted section 1172.6 which provides a procedural mechanism for defendants convicted under the natural and probable consequences doctrine to seek resentencing. (Stats. 2018, ch. 1015, § 4.) Senate Bill 775 extended the sentencing relief available to those convicted of attempted murder. (Stats. 2021, ch. 551, § 2.)
Defendant filed in propria persona a form petition for resentencing pursuant to Penal Code section 1172.6 based on the ground he had been convicted as an accomplice under the natural and probable consequences theory. The court appointed counsel for defendant and ordered the People to file a response to the petition. The People filed opposition, and defendant, through appointed counsel, filed a reply. After a hearing in August 2020, the court denied defendant's petition, finding defendant failed to make a prima facie case for relief and there was "ample evidence" in the record for the jury to find defendant possessed the intent to kill in aiding and abetting his codefendants. (People v. Navarro (Nov. 16, 2021, B308269) [nonpub. opn.].)
Defendant appealed the denial of his petition. Defendant also filed a petition for writ of habeas corpus (In re Navarro (May 26, 2021, B312680)), arguing his conviction for first degree murder must be vacated in light of People v. Chiu (2014) 59 Cal.4th 155, 158-159 (Chiu) which held "that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles" (italics omitted). Respondent conceded the merits of defendant's habeas petition.
In November 2021, we reversed the denial of defendant's resentencing petition, concluding the record did not establish as a matter of law that defendant was ineligible for sentencing relief. (People v. Navarro, supra, B308269.) We directed the trial court to issue an order to show cause and conduct an evidentiary hearing in accordance with Penal Code section 1172.6, subdivision (d)(3) as to all three counts. (People v. Navarro, supra, B308269.) We also granted defendant's petition for habeas corpus and ordered the superior court to vacate his conviction on count 1 for first degree murder. (In re Navarro, supra, B312680.)
On remand, the People elected not to retry defendant for first degree murder and agreed to entry of a judgment for second degree murder. The evidentiary hearing pursuant to Penal Code section 1172.6, subdivision (d)(3) took place on March 21, 2022. Defendant was present and represented by counsel. Neither party offered new evidence but instead relied on the evidentiary record from the 2012 trial.
The court said it read the 2013 opinion affirming defendant's conviction and the transcripts from the 2012 trial. The court entertained argument from counsel, acknowledged its role as an independent factfinder and then took the matter under submission. Two months later, the court issued its denial of defendant's petition, finding the People had proved beyond a reasonable doubt that defendant acted as a direct aider and abettor. The court reasoned that while defendant was not the actual killer of Alvaro S., there was "clear evidence in the trial transcript that he shared the intent to kill and aided and abetted the murder, and attempted murders, with the intent to kill."
This appeal followed. We granted defendant's request for judicial notice of the appellate record and our prior 2013 opinion from his direct appeal in People v. Navarro, supra, B236494, and respondent's request for judicial notice of the appellate record and our 2021 opinion in People v. Navarro, supra, B308269. In June 2023, we affirmed the trial court.
After the Supreme Court transferred the matter back to this court in April 2024, the parties filed supplemental briefs. In accordance with the Supreme Court's directions, we have vacated our original decision and reconsidered the cause in light of Curiel, supra, 15 Cal.5th 433. We again affirm, concluding substantial evidence supports the trial court's findings that defendant was guilty, beyond a reasonable doubt, as a direct aider and abettor.
DISCUSSION
1. Standard of Review
At an evidentiary hearing pursuant to Penal Code section 1172.6, subdivision (d)(3), the trial court sits as an independent factfinder and determines whether the People have established the defendant's guilt beyond a reasonable doubt. When we are asked, as we are here, to review a trial court's factual findings at a section 1172.6 evidentiary hearing, we review those findings according to the familiar substantial evidence standard. (People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) In conducting this review, we must consider the whole record in the light most favorable to the judgment below (People v. Brooks (2017) 3 Cal.5th 1, 57), and "we presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence, whether direct or circumstantial" (Mitchell, at p. 591; accord, Brooks, at pp. 57, 58).
2. Curiel, supra, 15 Cal.5th 433
Curiel has limited applicability here. As in this case, the trial court in Curiel instructed the jury with liability for aiding and abetting and natural and probable consequences liability for the crimes. The significant difference between this case and Curiel is that the trial court in Curiel denied relief at the prima facie stage based on the jury's finding, in connection with a gang murder special circumstance allegation, that Curiel had acted with intent to kill as an accomplice to murder. (Curiel, supra, 15 Cal.5th at p. 440.) In contrast, in this case, the court held an evidentiary hearing at which it made findings that, beyond a reasonable doubt, the circumstantial evidence proved defendant was liable under current law for aiding and abetting the crimes.
The Supreme Court in Curiel explained that the "essence of aiding and abetting is involvement in the crime of another.... [Citation.] . . . [Citation.] Although intent to kill is certainly blameworthy, it is insufficient standing alone to render a person culpable for another's acts. The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator's acts that confers liability on the aider and abettor." (Curiel, supra, 15 Cal.5th at p. 468.) Because the jury had been instructed with the natural and probable consequences doctrine, the jury was not required to make the necessary findings supporting guilt as a direct aider and abettor of murder. "[T]he jury was required to find only that Curiel knew that [the perpetrator] intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder." (Ibid.) Accordingly, Curiel concluded it was error for the trial court to have denied relief at the prima facie stage. (Id. at p. 471.) The jury's findings did not conclusively establish as a matter of law that Curiel was ineligible for relief and the trial court should have proceeded to an evidentiary hearing. (Id. at p. 441.)
Curiel acknowledged the narrowness of its holding. "[W]e note that our holding today does not necessarily apply to other cases where the jury found intent to kill, or even other cases where the jury found true the gang-murder special circumstance.
The jury instructions in other cases might be materially different, and they might therefore have required different factual findings by the jury. We hold only that under the jury instructions here, the findings the jury must have made are insufficient to conclusively establish that Curiel is liable for murder under current law." (Curiel, supra, 15 Cal.5th at p. 471.)
Curiel is of limited applicability here because, in this case, the trial court did not deny defendant's petition at the prima facie stage. The trial court held an evidentiary hearing, sat as a factfinder, assessed defendant's guilt anew under current law and found the evidence sufficient for a finding of guilt beyond a reasonable doubt as an aider and abettor. Our role is to determine whether substantial evidence supports that conclusion.
3. Substantial Evidence Supports the Court's Factual Findings of Defendant's Guilt as a Direct Aider and Abettor in the Murder and Attempted Murders.
Defendant argues the court's findings of guilt are not supported by substantial evidence. He says there was no evidence he knew any of his accomplices had a knife or intended to kill anyone in the courtyard, nor any eyewitness testimony he even participated in the attack. He argues that without direct evidence he knew of the actual killer's intent to kill and engaged in acts that assisted the perpetrator who inflicted the fatal wounds, the circumstantial evidence was insufficient to properly hold him liable as an aider and abettor under the law as clarified by Curiel. We disagree.
We set forth here the facts established at the 2012 trial relevant to defendant's guilt, as neither party offered new or additional evidence at the evidentiary hearing and no party contends the factual summary of the trial testimony from our 2013 opinion contains any inaccuracies or omits any material fact. Defendant also requested we take judicial notice of the prior opinion in People v. Navarro, supra, B236494, along with the appellate record. Defendant specifically requested we take judicial notice of the facts, which we understand to be a waiver of the requirements of Penal Code section 1172.6, subdivision (d)(3) which states that "[t]he court may also consider the procedural history of the case recited in any prior appellate opinion." Further, as already stated above, the trial court, acting as the independent factfinder, read the transcripts from the 2012 trial and did not merely rely on the factual summary from our prior opinion in People v. Navarro, supra, B236494.
Alvaro S. (the murder victim), Javier S. and Diego S. (sons of the murder victim), Pedro V. and Jose L. (the two victims who received nonfatal stab wounds), Benjamin E. and John E. were talking and hanging out in a courtyard outside an apartment building in Long Beach. "[A] group of between 6 and 13 Hispanic males, most with shaved heads and wearing white T-shirts, entered the area through a gate from a rear alley. One of the intruding males approached Javier S., and asked him, 'Are you the one fucking with my sister?' Javier S. replied that they had the wrong person. The man punched Javier S. in the face." (People v. Navarro, supra, B236494, fn. omitted.)
A "melee ensued" with the victims scattering and attempting to run away. (People v. Navarro, supra, B236494.) During the attack, more than one of the assailants yelled, "This is BST," the gang to which defendant, his brother and his other codefendants all belonged. (Ibid.) Alvaro S. was fatally stabbed in the abdomen, Jose L. was "stabbed multiple times in the back, and Pedro V. was stabbed in the chest. Witnesses saw and or heard two cars race from the area." (Ibid.) One of those cars was registered to the mother of codefendant Aguas. As it sped away, it crashed into a car and flipped over. The occupants climbed from the wreck and fled. (Ibid.)
Javier S. identified defendant's brother Daniel in court as one of the men present during the attack and testified he thought Daniel was one of the attackers wielding a knife. Testimony from the investigating officers and detectives confirmed that Javier S. had also identified Daniel in a photographic lineup as one of the attackers. (People v. Navarro, supra, B236494.)
Diego S. could not identify anyone at trial. Other testimony established that Diego identified codefendant Aguas as the first one to enter the courtyard, confront his brother and hit him. (People v. Navarro, supra, B236494.)
Neither of the victims who survived, Pedro V. or Jose L., was able to identify their assailants. (People v. Navarro, supra, B236494.)
Benjamin E. also could not identify anyone at trial, but he identified defendant's brother Daniel in a pretrial photographic lineup as someone who" 'might have been there that night.'" (People v. Navarro, supra, B236494.)
John E. was unable to make an in-court identification. Prior to trial, John E. identified codefendant Aguas in a photographic lineup, saying "something to the effect that 'he looked like the first guy that came into the courtyard.'" (People v. Navarro, supra, B236494.) Further evidence established that John E. also identified defendant's brother Daniel in a photographic lineup as someone who" 'was there that night.'" (Ibid.)
Other testimony established that numerous opened, unopened and broken beer bottles were recovered from the area around the crime scene. DNA testing was performed on samples from the beer bottles. "A partial DNA profile with 10 DNA 'markers' on the mouth of a whole beer bottle recovered from the alley behind the courtyard had a random match possibility to [defendant] of 'one in 171 billion' or '24 times the world's population.' The partial DNA profile on the whole bottle was excluded as coming from Daniel." (People v. Navarro, supra, B236494.) DNA testing on a separate broken beer bottle matched defendant's brother Daniel. (Ibid.)
Erick Moran, an accomplice who testified pursuant to an immunity agreement, also testified about how and why the attack occurred. In July 2003, Moran was dating Liliana, the sister of codefendant Aguas. Liliana told Moran that "some guys" from the KA's, a tagging crew, had harassed her and pushed her against a wall. (People v. Navarro, supra, B236494.) Moran knew the KA's were from Sixth Street in Long Beach. Moran went to codefendant Portillo's house. Codefendant Aguas and other BST members were there. Moran told Portillo and Aguas what had happened to Liliana. (Ibid.)
"Moran, Aguas, and Portillo got in a car to drive to Sixth Street." (People v. Navarro, supra, B236494.) People in one or possibly two other cars followed them. They parked in an alley near an apartment building. Aguas went into the courtyard first, but" '[e]verybody' in the alley went into the courtyard." (Ibid.) Aguas" '[s]ocked some guy,'" and then chased him when he ran. (Ibid.) The intruders who went in the courtyard" 'were fighting and some people were running out through the front.'" (Ibid.) Moran saw Portillo and Aguas fighting. When asked initially if he saw defendant or his brother go into the courtyard, Moran said no. But on redirect, "he testified that he did remember seeing them." (Ibid.) Moran said he did not personally know everyone who was involved. (Ibid.)
Moran said he and the others fled the scene in separate cars. He "heard or saw one of the cars crash. The car 'flipped,' and two to four people got out and ran away." (People v. Navarro, supra, B236494.) The car belonged to codefendant Aguas's mother. (Ibid.)
Jesus Prieto, a member of BST, testified and confirmed that defendant, his brother Daniel, Aguas and Portillo were all members of BST, as was Moran. Prieto's recorded statement to the investigating detectives was presented to the jury. Prieto told the detectives about a night when he, both Navarro brothers, Aguas and Portillo were at Portillo's house drinking. "At some point, Prieto passed out. The next day or a couple of days later, Portillo (Wacko) made statements to the effect that 'they got in a fight' or 'got down with some gang,' or 'taggers.' It was the same night they 'crashed the car.' Portillo said 'he fucked some dudes up.'" (People v. Navarro, supra, B236494.)
"[U]nder direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with 'knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends.'" (People v. Gentile (2020) 10 Cal.5th 830, 843; accord, Curiel, supra, 15 Cal.5th at pp. 466-467.)
A defendant's presence at the crime scene, companionship and conduct with the perpetrators before and after the murder and attempted murders, and motive are all relevant factors in determining aiding and abetting liability. (People v. Schell (2022) 84 Cal.App.5th 437, 443.) The trial evidence set forth above establishes all of these factors, including a gang motive, defendant's involvement with the killer and codefendants before the attack, defendant's presence at the scene with other members of his gang (BST) including his brother who was identified as one of the individuals with a knife, and fleeing with his codefendants after the attack.
Defendant is correct there was no eyewitness testimony describing defendant's conduct during the fatal attack, other than that he was in the courtyard with his accomplices. But that does not mean the circumstantial evidence, and the reasonable inferences therefrom, is insufficient to support the court's findings. The record contains ample circumstantial evidence that defendant and his accomplices acted in accordance with a prearranged plan of attack on a group of individuals who had harassed the sister of codefendant Aguas. (People v. Thomas (2011) 52 Cal.4th 336, 355 [intent is "rarely susceptible of direct proof and must therefore be proven circumstantially"].) Defendant is essentially asking us to consider contrary inferences and reweigh the evidence. That is not our role and we decline to do so.
Finally, defendant argues that even if the evidence was legally sufficient, we should nevertheless remand for another evidentiary hearing so that the trial court can assess the evidence again under the law as clarified by Curiel.
Curiel did not change or clarify the substantive requirements of aiding and abetting liability. Curiel discussed the well-established elements required to prove aiding and abetting liability, citing cases such as Chiu, supra, 59 Cal.4th at page 167 ("prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission"). Nothing in the record suggests the trial court was unaware of or misapplied the substantive law regarding aiding and abetting liability for murder and attempted murder.
DISPOSITION
The order denying defendant and appellant Francisco Sandoval Navarro's petition for resentencing is affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.