Opinion
G055244
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. RENE DANIEL PENALOZA and ERICK SILVA-SUAREZ, Defendants and Appellants.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant Rene Daniel Penaloza. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant Erick Silva-Suarez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING: NO CHANGE IN JUDGMENT
It is ordered that the opinion filed September 6, 2019, be modified as follows:
On page 3, the fourth sentence of the first full paragraph, which begins "During the evening of March 9, 2013," insert the words "Carillo or" after the word "where."
On pages 18 and 19, delete the paragraph which begins "At oral argument, Silva-Suarez's counsel argued" and insert the following paragraph:
The felony murder instruction given in this case, which was correct when given, does not create a conflict between Alleyne and the unanimity rule but creates a sufficiency of evidence issue for which the exclusive remedy is a petition under section 1170.95. Moreover, Silva-Suarez does not contend the jury verdict would be different for him under the correct felony murder instruction. At oral argument, Silva-Suarez's counsel stated that Silva-Suarez does not benefit from the changes to the felony murder rule made by Senate Bill No. 1437 and the defect in the felony murder instruction given to the jury does not apply to him.
On page 25, second sentence of the last paragraph, which begins "The evidence at trial was sufficient to establish," insert the words "Carillo or Penaloza" after the word "with."
The modification does not change the judgment.
Appellant Erick Silva-Suarez's petition for rehearing is denied.
FYBEL, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF0854) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed with limited remand. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant Rene Daniel Penaloza. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant Erick Silva-Suarez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
While Andrew Pacheco was walking home from a party with his brother Randy and some friends, he was accosted by defendants Rene Daniel Penaloza and Erick Silva-Suarez, both gang members who had robbed two other people that evening. Andrew resisted and knocked Penaloza to the ground. Penaloza told Silva-Suarez to "get the filero," referring to an eight-inch-long knife with a brass knuckle they had brought with them. Silva-Suarez approached Andrew from behind and, with a roundhouse swing, stabbed Andrew directly in the abdomen. Andrew tried to escape by hopping a fence, but Penaloza and Silva-Suarez pursued him, kicked him repeatedly, and stabbed him again. Silva-Suarez rifled through Andrew's pockets and later declared, "I killed him for a dollar."
Andrew died from his wounds. A jury convicted Penaloza and Silva-Suarez of first degree murder for the benefit of a criminal street gang. The jury found true the allegation Silva-Suarez had personally used a knife in the commission of the murder (§ 12022, subd. (b)(1)) (undesignated code sections are to the Penal Code).
The trial court sentenced Penaloza to a term of 25 years to life for first degree murder with a consecutive two-year sentence because he had admitted the crime occurred while he was on bail from another case. The trial court sentenced Silva-Suarez to a term of 50 years to life (25-years-to-life doubled to 50 years because Silva-Suarez had admitted a prior strike conviction) with a consecutive term of five years for the prior serious felony conviction (§ 667, subd. (a)(1)) and a consecutive term of one year for the weapon use enhancement.
We affirm. We conclude: (1) there was no error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) in the prosecutor's exercise of peremptory challenges; (2) California's unanimity rule for first degree murder remains constitutional; (3) substantial evidence supports the first degree murder convictions under both a theory of deliberate and premeditated murder and a theory of felony murder; and (4) Penaloza cannot obtain relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) on direct appeal. We remand for the limited purpose of permitting the trial court to exercise its discretion whether to strike or dismiss the five-year prior felony conviction enhancement imposed against Silva-Suarez.
FACTS
I.
Penaloza and Silva-Suarez Go on a Crime Spree of Theft,
Vandalism, and Robbery.
During the evening of March 9, 2013, Giovanni Carillo drove from his home in Corona to Anaheim where he picked up Penaloza and two girls. Penaloza was a member of the Barrio Pobre gang and wore a hat with the letter "P," a common symbol for that gang. His gang moniker was "Darky." Carillo drove Penaloza and the two girls to a WalMart store, where Penaloza stole spray paint. After tagging a wall near the WalMart, Carillo drove to Magnolia High School, where Penaloza spray painted "BP" and other gang-related tags on a wall.
As Carillo drove down a street, Penaloza saw a man walking alone and had Carillo stop the car. Penaloza got out of the car and made contact with the man, who turned out to be Silva-Suarez. Penaloza returned to the car with Silva-Suarez and both got in. Silva-Suarez was a member of the Santa Ana Lopers gang and had the moniker "Droopy." Carillo drove Penaloza and Silva-Suarez to various locations in Anaheim where they tagged their respective gang symbols and monikers and crossed out other gangs' tags.
Carillo had with him a knife with an eight-inch-long blade and a brass knuckle (a handle in which fingers can be inserted). Carillo gave the knife to Silva-Suarez.
While the group was driving around, Penaloza and Silva-Suarez had Carillo stop the car. Penaloza and Silva-Suarez got out quickly and robbed a man riding a scooter. Later, when Carillo mentioned he was running low on gas, Penaloza and Silva-Suarez got out of the car and robbed a man on a bicycle. They took the man's money and his bicycle, which they put in the back of Carillo's car. Carillo, Penaloza, and Silva-Suarez used the money to buy gas and beer. They then drove back toward Magnolia High School.
II.
Andrew Pacheco Is Murdered.
At about midnight on March 9, 2013, 17-year-old Randy Pacheco and his 19-year-old brother Andrew left a party with four or five friends and began to walk home. Andrew and Randy were walking side-by-side as they passed the entrance to the Magnolia High School parking lot. Randy noticed a small car slowing down and stopping about five feet in front of them. Penaloza and Silva-Suarez jumped out of the car and walked aggressively toward Andrew and Randy. Silva-Suarez had pulled his hood over his head, and both he and Penaloza wore bandanas. Randy was scared and stepped back about 30 feet.
Penaloza and Silva-Suarez walked to about one foot in front of Andrew. Silva-Suarez asked him, "Where are you from?" Andrew answered, "Nowhere." Either Penaloza or Silva-Suarez said, "This is Barrio Pobre." Andrew asked, "Why are you all up in my face?"
An argument ensued, and the argument escalated into a fist fight between Andrew and Penaloza. Silva-Suarez pointed and swung the knife toward the others to keep them at bay.
Andrew knocked Penaloza to the ground. Penaloza got up and told Silva-Suarez, "Get the filero" ("filero" is Spanish slang for knife). Silva-Suarez pulled the knife from his waistband and approached Andrew from behind. Silva-Suarez hesitated for three seconds and then used a roundhouse swing to stab Andrew in the stomach.
Silva-Suarez, holding the knife outwards, turned to Randy and the others and threatened, "You want some too?" Andrew tried to escape by scaling a nearby fence and entering onto the high school parking lot. In the parking lot, Andrew, holding his stomach, staggered for a few seconds before falling unconscious to the ground.
Penaloza and Silva-Suarez got back into the car and Carillo started driving. Either Penaloza or Silva-Suarez told Carillo to go back. Carillo made a U-turn and drove the car into the Magnolia High School parking lot and stopped near the spot where Andrew lay unconscious. Penaloza and Silva-Suarez jumped out of the car and began kicking and stomping Andrew in the head. As they kicked Andrew, Silva-Suarez said, "That's what you get for fucking up my homey." Andrew was stabbed again, either by Penaloza or Silva-Suarez, with the eight-inch-long, brass knuckle knife.
Silva-Suarez bent down and searched Andrew's pockets. Either Penaloza or Silva-Suarez screamed, "Barrio Pobre." One of them turned to the others and said, "If you call the cops, we'll kill you."
Penaloza and Silva-Suarez got back inside the car and Carillo drove off. Silva-Suarez declared, "I killed him for a dollar." He ordered everyone in the car to say nothing "or else" and made a throat-cutting motion with his hand. Carillo dropped Silva-Suarez off near his home so he could change his clothes and then took Penaloza home.
After undergoing surgery, Andrew died in the hospital the next day. An autopsy showed he had two stab wounds to the left side of the abdomen. One wound punctured his abdominal aorta, causing him to bleed to death.
Police arrested Silva-Suarez on March 12, 2013. On that same day, they conducted a search of his residence. They found a notebook, covered in gang graffiti, in which Silva-Suarez used rap lyrics to brag about stabbing and killing. He had written: "Got a filero by my side. Ready to commit homicide"; "Cut your throat with a knife. Now it's time to end your life," and "We kill vatos like you. It's automatic you bitches . . . it's time for me to head to the streets with my homies."
Police arrested Penaloza 10 days later after a long and intense manhunt. A team of officers, a police K-9, and a Riverside Police Department helicopter searched for Penaloza in a mobile home park. The dog eventually alerted the officers to a garbage can in a driveway. An officer kicked the garbage can over, and Penaloza fell out.
III.
Expert and Percipient Testimony on Gangs
Anaheim Police Officer Ryan Killein testified as an expert witness on criminal street gangs. The following is a summary of his testimony.
Penaloza was an active participant in the Barrio Pobre gang when Andrew was murdered. Barrio Pobre was established in the 1980's in Long Beach and Compton and later expanded into Anaheim. Barrio Pobre had approximately 30 members and claimed an area in Anaheim as its territory. Forty-two days before Andrew was murdered, Killein had issued Penaloza a STEP notice advising him that he was a suspected Barrio Pobre gang member. Penaloza acquired several Barrio Pobre gang tattoos after the murder of Andrew.
Killein testified about the role of respect in gang culture. Gang members commit crimes together to earn respect and to make community members afraid to report the crimes. A gang member can earn respect from other gang members by committing violent crimes in front of witnesses. Gang members can increase their status in the gang by putting in "work." A hit-up is one way of putting in work. Every gang member knows that when a hit-up occurs, there is a high risk of violence. Gang members make each other aware of any weapons they have when they go out and commit crimes together. Gang members are expected to back each other up during fights.
In Killein's opinion, Penaloza and Silva-Suarez were allies from different gangs. Killein based his opinion on the fact that Penaloza and Silva-Suarez tagged their respective gang graffiti in the same locations at the same time, thereby promoting both of their gangs in association with each other.
Anaheim Police Officer James Pewsey testified about his conversation with Silva-Suarez during a traffic stop in June 2010. Silva-Suarez said at that time he had become a member of the Santa Ana Lopers gang when he was 13 years old. He belonged to a subset of the Lopers gang, known as Calle Cinco. Because he was usually drunk or high, his gang moniker was "Droopy." Silva-Suarez demonstrated to Pewsey various Lopers gang hand signs and showed him his gang tattoos.
DISCUSSION
I.
There Was No Batson/Wheeler Error.
The prosecutor exercised peremptory challenges against 14 prospective jurors. Penaloza and Silva-Suarez argue the prosecutor engaged in purposeful discrimination by excusing Juror No. 104 and Juror No. 183, who are claimed to be Hispanic, and the trial court erred by denying their motion under Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258.
"Hispanic-surnamed" jurors are cognizable as a class for purposes of Batson/Wheeler issues. (People v. Davis (2009) 46 Cal.4th 539, 584.)
A. Background Facts
After the prosecutor had exercised 14 peremptory challenges, counsel for Penaloza made a Batson/Wheeler motion. Counsel asserted that the last three prospective jurors excused by the prosecution were Hispanic. After some discussion about which prospective jurors counsel was referring to, a consensus was reached that the motion was based on the prosecution's decision to excuse Juror No. 104, Juror No. 183, and Juror No. 210. The trial court invited the prosecution to give reasons for excusing those prospective jurors "even though you're not obliged to."
As to Juror No. 210, the prosecutor stated: "She works here within the Superior Court. She also in her voir dire with [Silva-Suarez's] counsel expressed a stick-to-your-guns type attitude that caused me some concern." On appeal, Penaloza and Silva-Suarez do not contend that excusing Juror No. 210 constituted a Batson/Wheeler violation.
As to Juror No. 104, the prosecutor stated: "104 is a special ed[ucation] teacher and P.E. person. She is single. Did not appear to me to have—I try to phrase it in a polite way. She just seemed weak in opinion." The prosecutor explained he was concerned about Juror No. 104's occupation because "it involves her not working with adults, as much as with children." The prosecutor continued: "I would prefer a person [who] works in a more adult setting. There are other teachers on the panel. My general impression [of] her was that she just seemed favorable to the defense."
As to Juror No. 183, the prosecutor stated: "Works for the post office. Also wearing a beard. The fact that he has lived [in] Santa Ana his entire life, yet seemed to have very little, in terms of opinion, about gangs, I found somewhat odd."
The trial court denied the Batson/Wheeler motion. The court stated: "I don't think a prima facie case has been made. There are good reasons for discharging all of those folks. And in downtown Santa Ana, lots of jurors are going to be Hispanic. And discharging three does not show a pattern to me. And I think there are good reasons for those discharges."
B. Relevant Law and Standard of Review
"Peremptory challenges are a long-standing feature of civil and criminal adjudication. But the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution. [Citations.] Such conduct also violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez).)
"At issue in a Batson/Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citation.] Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal.
"When a party raises a claim that an opponent has improperly discriminated in the exercise of peremptory challenges, the court and counsel must follow a three-step process. First, the Batson/Wheeler movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing '"evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."'
"Second, if the court finds the movant meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenges. To meet the second step's requirement, the opponent of the motion must provide 'a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] In evaluating a trial court's finding that a party has offered a neutral basis—one not based on race, ethnicity, or similar grounds—for subjecting particular prospective jurors to peremptory challenge, we are mindful that '"[u]nless a discriminatory intent is inherent in the prosecutor's explanation,"' the reason will be deemed neutral.
"Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was '"more likely than not that the challenge was improperly motivated."' [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, '"among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy."' [Citations.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility.
"We review a trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] A trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' [Citation.] What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual." (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.)
C. Penaloza and Silva-Suarez Failed to Demonstrate a
Prima Facie Case of Discriminatory Purpose.
The trial court found that Penaloza and Silva-Suarez did not demonstrate a prima facie case, the first step of the Batson/Wheeler process. "[W]e now review independently the totality of the circumstances as they existed when defendant objected to determine whether the trial court correctly ruled that defendant did not make out a prima facie case of discrimination." (People v. Sánchez (2016) 63 Cal.4th 411, 435 (Sánchez).)
Penaloza and Silva-Suarez argue that we must move directly to the third step of the Batson/Wheeler process because the trial court invited the prosecutor to state his reasons for excusing Juror No. 104 and Juror No. 183. The California Supreme Court has rejected that argument. "We have found it proper for trial courts to request and consider a prosecutor's stated reasons for excusing a prospective juror even when they find no prima facie case of discrimination; indeed, we have encouraged this practice." (People v. Taylor (2010) 48 Cal.4th 574, 616 (Taylor), italics added.) "[W]here (1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling." (People v. Scott (2015) 61 Cal.4th 363, 391.)
We conclude, based on the totality of the circumstances, that Penaloza and Silva-Suarez did not demonstrate a prima facie case of discrimination. In making a Batson/Wheeler motion, the defendant "'should make as complete a record of the circumstances as is feasible.'" (Taylor, supra, 48 Cal.4th at p. 614.) Trial counsel for Penaloza and Silva-Suarez did not identify any evidence to show that Juror No. 104 and Juror No. 183 are in fact Hispanic. Counsel did not refer to the jurors' surnames, voir dire answers, jury questionnaire answers, or any other evidence that might indicate ethnicity. (See, e.g. Sánchez, supra, 63 Cal.4th at p. 435 ["Both prospective jurors identified themselves as Mexican-American in their jury questionnaire"].)
Whether a prosecutor used a disproportionate number of challenges against members of the identified group is a consideration at the first step of the Batson/Wheeler process. (Sánchez, supra, 63 Cal.4th at p. 434.) Here, the prosecutor excused 14 jurors, only three of whom are claimed to have been Hispanic. In Sánchez, supra, 63 Cal.4th at page 436, the court concluded that "[e]xercising two of eight peremptory challenges to excuse two of the five Hispanic prospective jurors then subject to challenge did not itself provide an inference of discriminatory purpose." Gutierrez, supra, 2 Cal.5th at page 1154, in which the California Supreme Court reversed the denial of a Batson/Wheeler motion, provides a helpful contrast. In Gutierrez, 10 of the prosecution's 16 peremptory challenges at the time of the Batson/Wheeler motion were directed to people who were Hispanic, and four of the challenges were consecutive. (Gutierrez, supra, 2 Cal.5th at p. 1156.)
Another relevant consideration is whether the prosecution struck most or all of the members of the identified group from the venire. (Taylor, supra, 48 Cal.4th at p. 615.) In this case, virtually no evidence was presented of the ethnic composition of the jury pool, the venire, or the empaneled jury. The only evidence we have is that counsel for Penaloza excused Juror No. 157 for cause, and the prosecutor noted, with no basis appearing in the record, that juror was a Hispanic man. We cannot assume the majority of the prospective or empaneled jurors were white. (See ibid.) As the trial court noted, "in downtown Santa Ana, lots of jurors are going to be Hispanic."
The defendants are Hispanic, but so were the victim and all the civilian witnesses of the crime. Thus, if Juror No. 104 and Juror No. 183 were indeed Hispanic, no inference of discrimination would arise. "It is not clear prosecutors would be motivated to excuse prospective jurors who self-identified as Mexican-American in a case involving so many apparently Hispanic victims, including at least one from Mexico. This factor does not support an inference of discriminatory purpose." (Sánchez, supra, 63 Cal.4th at p. 436; see People v. Reynoso (2003) 31 Cal.4th 903, 926, fn. 7 ["Here, . . . both the defendants and the murder victim were of Hispanic ancestry, a circumstance that might be viewed as neutralizing any suspected untoward belief on the prosecutor's part that Hispanic jurors would tend to be biased in favor of, and thereby be more inclined to vote to acquit, the Hispanic defendants"].)
Another consideration is whether the prosecutor engaged the challenged jurors in a perfunctory voir dire or asked them any questions at all. (Taylor, supra, 48 Cal.4th at p. 615.) Here, the prosecution engaged in a conversation with Juror No. 183 and, although the prosecutor did not ask Juror No. 104 any questions, did observe defense counsel's substantive discussion with Juror No. 104.
The totality of the circumstances did not permit an inference of discriminatory purpose. The trial court therefore correctly found no prima facie case and denied the Batson/Wheeler motion.
D. The Trial Court Did Not Err at Steps 2 and 3 of the
Batson/Wheeler Analysis.
Penaloza and Silva-Silva contend that by inviting the prosecutor to state his reasons for excusing Juror No. 104 and Juror No. 183, the trial court was expressing doubt about its own finding of no prima facie case of discriminatory purpose. We disagree. The court stated a prima case had not been made, and inviting the prosecutor to state reasons was in keeping with Taylor, supra, 48 Cal.4th at page 616. Nonetheless, we go to steps 2 and 3 of the Batson/Wheeler analysis and address whether the prosecutor's stated reasons were neutral and whether Penaloza and Silva-Suarez proved purposeful discrimination.
The prosecutor's stated reasons for excusing Juror No. 104 were she was a special education teacher, was single, "seemed weak in opinion," and seemed to favor the defense. The prosecutor expressed concern with Juror No. 104's occupation because she worked with children, not adults, and the prosecutor preferred someone who "works in a more adult setting."
Those justifications are neutral and lack any inherent discriminatory motivation. Nobody disputes that Juror No. 104 was in fact a special education teacher who worked with children and was single. Juror No. 104 answered several voir dire questions in a way that would suggest she would have difficulty forming an opinion and reaching a decision. Juror No. 104, when presented with a hypothetical evidentiary issue, said it "would be really tough" to reach a decision. The prosecutor's demeanor observations—that Juror No. 104 seemed weak in opinion and to favor the defense—"even if not explicitly confirmed by the record, are a permissible race-neutral ground for peremptory excusal." (People v. Mai (2013) 57 Cal.4th 986, 1052.)
The prosecutor's stated reasons for excusing Juror No. 183 were that he works for the post office, has a beard, and lived his entire life in Santa Ana yet seemed to have no opinion about gangs. Those justifications likewise are neutral and lack any inherent discriminatory motivation. Nobody disputes that Juror No. 183 works for the post office and has a beard. In Sifuentes v. Brazelton (9th Cir. 2016) 825 F.3d 506, 5531, the prosecutor excused a juror in part because he was a postal worker, and "'they're lazy.'" The Ninth Circuit Court of Appeals concluded the prosecutor's stereotype of postal workers "is not persuasive" but "is neutral on its face." (Ibid.) Having a beard is also neutral justification. (Purkett v. Elem (1995) 514 U.S. 765, 769 ["'The wearing of beards is not a characteristic that is peculiar to any race'"].)
During voir dire, Juror No. 183 stated he had lived his entire life in Santa Ana but did not know of any particular gang areas and had had no experience with gangs or police. The prosecutor thought that was "somewhat odd." This is a nondiscriminatory reason. Prospective jurors may be excused for hunches or even arbitrary or idiosyncratic reasons. (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
At the third step of the Batson/Wheeler analysis, the trial court assesses the subjective genuineness of the prosecutor's reasons to determine whether the moving party has proven purposeful discrimination. (Gutierrez, supra, 2 Cal.5th at p. 1158.) "'[T]he issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible.'" (Lenix, supra, 44 Cal.4th at p. 613.) The best evidence of credibility is often the demeanor of the attorney exercising the challenge. (Id. at p. 614.) To uphold the trial court's decision, "[i]t should be discernable from the record that (1) the trial court considered the prosecutor's reasons for the peremptory challenges at issue and found them to be race neutral; (2) those reasons were consistent with the court's observations of what occurred, in terms of the panelist's statements as well as any pertinent nonverbal behavior; and (3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges." (Id. at p. 625.)
The trial court in this case fulfilled its obligations under step 3 of the Batson/Wheeler analysis. The court listened to voir dire, observed the demeanor of prospective jurors and counsel, and heard and considered the prosecutor's reasons. The prosecutor's stated reasons were supported by substantial evidence and consistent with what the trial court observed. The court entertained argument from counsel and was fully engaged in addressing the issues. The court found the prosecutor's reasons were race-neutral and there was no pattern of discrimination. The trial court agreed there were good reasons for excusing Juror No. 104 and Juror No. 183.
Penaloza and Silva-Suarez argue the trial court should have engaged in a comparative juror analysis. Nobody at trial asked for one. Comparative juror analysis is required in the trial court and for the first time on appeal only "if relied upon by the defendant and the record is adequate to permit the urged comparisons." (Lenix, supra, 44 Cal.4th at p. 622.) Those conditions are not satisfied here.
Nothing in the record suggests the trial court did not make a "sincere and reasoned effort" to evaluate the prosecutor's nondiscriminatory reasons. (People v. Burgener (2003) 29 Cal.4th 833, 864.) The court's conclusions are entitled to deference on appeal, and we review them with restraint. (Ibid.) The trial court properly considered the Wheeler/Batson motion and its findings are supported by substantial evidence. We conclude the trial court did not err by denying the Batson/Wheeler motion.
II.
California's Unanimity Rule for First Degree Murder
Remains Constitutional.
Penaloza and Silva-Suarez were charged in count 1 with first degree murder. They were prosecuted under, and the trial court instructed the jury on, two theories of first degree murder: (1) deliberate and premeditated murder and (2) felony murder. In addition, the trial court instructed the jury on second degree murder under a natural and probable consequences theory. The court gave the unanimity instruction, CALCRIM No. 548, stating, "You do not all need to agree on the same theory, but you must unanimously agree whether the murder is in the first or second degree." A special verdict was not used; the verdict does not reveal the theory on which the jury found Penaloza and Silva-Suarez guilty of first degree murder.
Silva-Suarez argues the instruction telling the jurors they need not agree unanimously on the same theory of first degree murder violated his Sixth Amendment right to have the jury determine beyond a reasonable doubt the facts necessary to convict him of first degree murder instead of second degree murder. He relies on Alleyne v. United States (2013) 570 U.S. 99 (Alleyne), which he contends "changes the dynamics of existing law regarding jury unanimity and requires that facts constituting the theory of first degree murder be treated like a statutory element of the offense for purposes of the Sixth Amendment."
Premeditated murder and felony murder are not distinct crimes but alternative theories of liability. (People v. Sattiewhite (2014) 59 Cal.4th 446, 451.) A jury is not required to agree unanimously on whether a murder was deliberate and premeditated or felony murder so long as the jurors agree unanimously the defendant is guilty of first degree murder. (Ibid.; People v. Manibusan (2013) 58 Cal.4th 40, 99; People v. Tully (2012) 54 Cal.4th 952, 1022-1023; People v. Geier (2007) 41 Cal.4th 555, 592, overruled on another ground in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305; People v. Carpenter (1997) 15 Cal.4th 312, 394.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) the United States Supreme Court held the United States Constitution requires any fact that increases the maximum penalty for a crime, other than a prior conviction, must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. The California Supreme Court has repeatedly held that California's unanimity rule does not violate Apprendi. (People v. Nakahara (2003) 30 Cal.4th 705, 712-713 ["We see nothing in Apprendi that would require a unanimous jury verdict as to the particular theory justifying a finding of first degree murder"]; see People v. Mora and Rangel (2018) 5 Cal.5th 442, 496-497; People v. Tully, supra, 54 Cal.4th at pp. 1023-1024; People v. Loker (2008) 44 Cal.4th 691, 707-708.)
In Alleyne, the United States Supreme Court addressed the issue whether facts that increase a mandatory minimum sentence, as opposed to facts that increase a statutory maximum sentence, must be submitted to a jury and found beyond a reasonable doubt. (Alleyne, supra, 570 U.S. at p. 103.) A plurality of the court held: "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt. [Citation.] Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." (Ibid.) A majority of the court agreed to overrule Harris v. United States (2002) 536 U.S. 545, which held to the contrary. (Alleyne, supra, 570 U.S. at p. 103; see id. at pp. 122-124 (conc. opn. of Breyer, J.).)
A plurality opinion of the United States Supreme Court, though a "point of reference for further discussion," is not binding precedent. (Texas v. Brown (1983) 460 U.S. 730, 737.)
Alleyne does not support the proposition that a jury must unanimously agree on the theory of first degree murder once the jurors agree unanimously the defendant is guilty of first degree murder. Under California law, a murder is presumed to be of the second degree. (People v. Thomas (1945) 25 Cal.2d 880, 895.) In this case, as required under California law, the facts which elevated the presumed second degree murder to first degree murder were submitted to the jury and found beyond a reasonable doubt. That is all that Alleyne, if it is applicable, requires. The punishment for either theory presented—deliberate and premeditated murder or felony murder—was the same. (§ 190, subd. (a).) The plurality in Alleyne, in reaching its holding, relied on Apprendi and concluded the principle applied in that opinion "applies with equal force to facts increasing the mandatory minimum." (Alleyne, supra, 570 U.S. at pp. 111-112.) A majority of the justices agreed to overrule Harris v. United States because it could not be reconciled with Apprendi. (Alleyne, supra, 570 U.S. at pp. 103, 107; id. at p. 122-124 (conc. opn. of Breyer, J.).) As noted, the California Supreme Court has repeatedly held that California's unanimity rule does not violate Apprendi. It follows, then, that California's unanimity rule does not violate Alleyne.
At oral argument, Silva-Suarez's counsel argued the unanimity rule, as applied in this case, is in conflict with Alleyne because the trial court gave a legally invalid instruction on the elements of felony murder. The felony murder instruction given in this case, which was correct when given, does not create a conflict between Alleyne and the unanimity rule but creates a sufficiency of evidence issue for which the exclusive remedy is a petition under section 1170.95. Moreover, this argument is inapplicable to Silva-Suarez because he does not contend the jury verdict would be different for him under the correct felony murder instruction.
III.
Substantial Evidence Supports the First Degree Murder
Convictions.
Penaloza and Silva-Suarez argue the evidence was insufficient to support their respective convictions for first degree murder under either theory—premeditated murder or felony murder—presented at trial. We conclude substantial evidence supports the first degree murder convictions under both theories.
A. Standard of Review
When considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) We do not reweigh the evidence or reassess witness credibility, and presume in support of the judgment every fact reasonably inferable from the evidence. (Ibid.) Nor can we reverse the judgment simply because the evidence could be reconciled with a contrary finding. (Ibid.)
B. Substantial Evidence Supports the Convictions Based on a
Theory of Deliberate and Premeditated Murder.
1. The Law
Murder that is committed by "willful, deliberate, and premediated killing" is first degree murder. (§ 189, subd. (a).) "Deliberate" means the defendant carefully thought about and weighed considerations for and against the proposed course of action. (People v. Houston (2012) 54 Cal.4th 1186, 1216; People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "Premeditated" means the defendant thought about or considered the act in advance. (People v. Houston, supra, 54 Cal.4th at p. 1216; People v. Koontz, supra, 27 Cal.4th at p. 1080.)
Deliberation and premeditation do not require any extended period of time. "'"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'" (People v. Koontz, supra, 27 Cal.4th at p. 1080; see People v. Solomon (2010) 49 Cal.4th 792, 812; People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.) The tests and definitions boil down to this: "'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.'" (People v. Pearson (2013) 56 Cal.4th 393, 443.)
Three categories of evidence are normally considered in determining whether evidence supports a finding of deliberation and premeditation: (1) motive, (2) planning activity, and (3) manner of killing. (People v. Jennings (2010) 50 Cal.4th 616, 645.) Evidence in these categories does not have to be present in any particular combination to find substantial evidence of deliberation and premeditation. (Ibid.)
Penaloza contends the jury could not have found him guilty of first degree murder on a felony murder theory or on an aiding and abetting theory of deliberate and premeditated murder. "'[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.) "An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder." (People v. Chiu (2014) 59 Cal.4th 155, 167.)
2. The Evidence
The evidence at trial was more than sufficient to support a finding that Penaloza, either as a perpetrator or an aider and abettor, and Silva-Suarez murdered Andrew with deliberation and premeditation. To start, there was evidence of motive. After Penaloza hit up Andrew, a fight ensued, and Andrew knocked Penaloza to the ground. Later, after Andrew had been stabbed twice and kicked repeatedly, Silva-Suarez taunted him by saying, "That's what you get for fucking up my homey." (Witnesses could not identify who made that statement, but given the context, it must have been Silva-Suarez.) Anger, humiliation, and desire for revenge were motives shared by Penaloza and Silva-Suarez that the jury could reasonably have deduced from the evidence. Silva-Suarez, who was carrying the knife, had the additional motive of helping Penaloza, who had been knocked flat.
The prosecution's gang expert, Killein, testified a gang member can earn respect from other gang members by committing violent crimes in front of witnesses. Killein's testimony thus supports another motive: Penaloza and Silva-Suarez, both gang members, could earn respect by killing Andrew.
There is evidence of planning: Penaloza and Silva-Suarez brought with them an eight-inch-long knife with a brass knuckle and wore hoodies and bandanas to mask their appearance. Acquiring the murder weapon and bringing it to the murder scene is evidence of planning. (People v. Lee (2011) 51 Cal.4th 620, 636 [defendant brought loaded handgun with him on the night the victim was killed]; People v. Steele (2002) 27 Cal.4th 1230, 1250 ["As to planning, the jury could infer that defendant carried the fatal knife into the victim's home in his pocket, which makes it 'reasonable to infer that he considered the possibility of homicide from the outset'"].) The knife carried by Silva-Suarez was not just some kitchen utensil but a ferocious weapon with an eight-inch-long blade, to increase the chance a stab would be fatal, and with a brass knuckle, to prevent the hand from slipping.
The most telling evidence of deliberation and premeditation is the sequence of events leading to Silva-Suarez stabbing Andrew. Eyewitnesses testified that after Andrew knocked him to the ground, Penaloza turned to Silva-Suarez and told him, "Get the filero." The jury could reasonably conclude from that statement that Penaloza had carefully thought about and made the decision to have Andrew killed and was instructing Silva-Suarez to carry out the deed. Silva-Suarez's decision to obey Penaloza is in itself evidence of deliberation and premeditation. Silva-Suarez approached Andrew from behind, pulled out the brass-knuckled knife, and waited for three seconds before stabbing Andrew. The period of time from when Silva-Suarez heard Penaloza tell him to get the filero to when Silva-Suarez stabbed Andrew was long enough for Silva-Suarez to consider whether to kill Andrew and decide to do so. The jury could deduce from this evidence that Penaloza and Silva-Suarez did not act rashly, but carefully thought about and considered in advance killing Andrew.
The manner in which Silva-Suarez killed Andrew supports a finding of deliberation and premeditation. Silva-Suarez did not try to stun or disable Andrew by stabbing or slashing him in an area, such as a limb or the buttocks, where a wound less likely would be fatal. Nor did Silva-Suarez aimlessly stab at Andrew, as one behaving rashly might do. Rather, Silva-Suarez used a roundhouse swing to stab Andrew directly in the abdomen, where a wound more likely would be fatal. (See People v. Koontz, supra, 27 Cal.4th at p. 1082 [evidence that the defendant fired a shot at a victim's abdomen was "a manner of killing indicative of a deliberate intent to kill"].)
After Andrew was stabbed, Penaloza and Silva-Suarez behaved in a manner that further showed they did not act out of rash or unconsidered impulse. Andrew climbed over a fence, trying to escape. Penaloza and Silva-Suarez had Carillo turn the car around; Penaloza and Silva-Suarez got out, walked up to Andrew, who had collapsed unconscious, and kicked and stomped on his head. Penaloza kicked Andrew with such force that Penaloza injured his foot. Either Penaloza or Silva-Suarez stabbed Andrew again. Had Penaloza and Silva-Suarez stabbed Andrew the first time merely out of a rash or unconsidered impulse, they would not have gone to such lengths afterwards to finish him off.
Silva-Suarez wrote in notebooks, found in his home after the murder, that he had a "filero by my side" and was "[r]eady to commit homicide" and other things displaying a desire to kill people. Finally, neither Penaloza nor Silva-Suarez ever sought help for Andrew, expressed remorse, or said or did anything to suggest killing him was an accident or the product of rash or unconsidered impulse.
People v. Harris, supra 43 Cal.4th 1269 supports affirming the first degree murder conviction here. In that case, the victim and her daughter went to work at a donut shop. (Id. at p. 1277.) The victim left the shop to get supplies and, on returning, tapped on the door as a signal for her daughter to open it. (Ibid.) As the daughter approached the door, the victim saw the defendant standing at the service window and told her daughter to wait on him. The daughter took the defendant's order and, while preparing it, heard the victim scream. (Ibid.) The daughter ran to the door and saw the victim struggling with the defendant, who had a butcher knife. The victim collapsed and died. (Ibid.) She had a stab wound to the left side of her chest which cut through a piece of one rib and completely through the heart. (Ibid.) The trial court, applying the sufficiency of the evidence standard, denied the defendant's motion for a judgment of acquittal as to the charge of first degree murder. (Id. at p. 1286.)
The California Supreme Court upheld the trial court's decision. (People Harris, supra, 43 Cal.4th at p. 1287.) The Supreme Court stated: "Here, defendant was armed with a knife and stabbed [the victim] without provocation directly in the heart with enough force to penetrate part of a rib and pierce entirely through the heart. In the time it took for [the daughter] to go from the door to the service window, and to take and prepare defendant's order, there was ample time for him to deliberate and premeditate before attacking [the victim]. Under these circumstances, we cannot say the jury could not reasonably have found defendant guilty of first degree murder." (Ibid.)
In this case, the evidence of deliberation and premeditation is far stronger than the evidence in Harris deemed sufficient to support a first degree murder conviction. Here, unlike Harris, there was evidence of motive and behavior after the murder supporting deliberation and premeditation. The period of time for reflection on and consideration of a course of action appears to have been a bit longer in Harris than in this case, but in Harris that period of time was not particularly long. In Harris, there was no evidence of statements made by the defendant (such as "get the filero") reflecting deliberation and premeditation. If the evidence in Harris was enough to support a conviction for deliberate and premeditated murder, so is the evidence in this case.
Silva-Suarez relies on People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman) to support his claim that there was no evidence of premeditation and deliberation. In that case, the defendant pointed a loaded gun at his girlfriend and jokingly cocked the hammer back; the hammer slipped, the gun fired, and the girlfriend was shot in the face and later died. (Id. at pp. 1259-1260, 1263.) Immediately after shooting his girlfriend, the defendant told his brother to call the police and gave his girlfriend mouth-to-mouth resuscitation. (Id. at p. 1261.) When the victim told him she could not breathe, the defendant and his brother carried her to the front of the house to get help. (Ibid.) To police detectives and at trial, the defendant gave three different versions of what had happened. (Id. at p. 1259.) In each version he claimed it was an accidental shooting. (Ibid.)
The Court of Appeal concluded the evidence was insufficient to support a conviction for first degree murder. (Boatman, supra, 221 Cal.App.4th at pp. 1257, 1261-1262.) The court explained there was no evidence of planning, the defendant testified he did not intend to shoot his girlfriend, there was little or no evidence of motive, and, although the defendant shot his girlfriend in the face, there was no evidence the shooting was "'execution-style.'" (Id. at pp. 1267-1270.) Evidence of the defendant's behavior after the shooting not only failed to support an inference of a plan to kill the girlfriend, but strongly suggested a lack of a plan to kill. (Id. at p. 1267.)
Here, in contrast to Boatman, there was evidence of planning and motive, the evidence of events leading to Andrew's stabbing and of the manner of the killing support a finding of premeditation and deliberation, and evidence of Penaloza's and Silva-Suarez's behavior after the stabbing strongly suggested a plan to kill. This case is more like Harris than Boatman.
In conclusion, the evidence was sufficient to support a finding that both Silva-Suarez and Penaloza, either as a direct perpetrator or an aider and abettor, are guilty of first degree deliberate and premeditated murder.
C. Substantial Evidence Supports the Convictions Based on a
Theory of Felony Murder.
1. Andrew Was Murdered During the Perpetration of a Robbery.
The evidence was sufficient to uphold the first degree murder convictions under a felony murder theory. Murder committed in the perpetration of certain felonies, including robbery, is first degree murder. (§ 189, subd. (a).) "For felony murder, the required mental state is the specific intent to commit the underlying felony. [Citation.] The killing is considered to be committed in the perpetration of the underlying felony if the acts were part of a continuous transaction. [Citation.] No strict causal or temporal relationship between the murder and underlying felony is required." (People v. Booker (2011) 51 Cal.4th 141, 175.)
We assess the sufficiency of the evidence under the elements of and law governing felony murder at the time of trial.
The evidence at trial was sufficient to establish that Penaloza and Silva-Suarez murdered Andrew during the commission of a robbery. Penaloza and Silva-Suarez went on a crime spree that started with stealing spray paint at a WalMart store, continued with robbing the man on the scooter and the man on the bicycle, and culminated with the robbery and murder of Andrew. The robbery of Andrew started no later than the point when Penaloza and Silva-Suarez first approached Andrew and Silva-Suarez asked him, "Where are you from?" Penaloza and Silva-Suarez argue this was a hit-up, not a robbery, but the two acts are not mutually exclusive. They already had committed two robberies. For both, Penaloza and Silva-Suarez got out of Carillo's car and robbed the victims, who were innocent passersby. This pattern continued when Penaloza and Silva-Suarez got out of Carillo's car and approached Andrew. The jury could reasonably infer that Penaloza and Silva-Suarez, having committed two robberies, intended to commit a third.
The evidence showed that Andrew initially foiled the robbery by resisting. Penaloza engaged in a fistfight with Andrew, who knocked Penaloza to the ground. When Andrew knocked Penaloza to the ground, Penaloza instructed Silva-Suarez to get the knife. Silva-Suarez stabbed Andrew, who tried to escape by climbing over a fence into a parking lot. Penaloza and Silva-Suarez pursued him, kicked him repeatedly, and one of them stabbed him again. Silva-Suarez completed the robbery by rifling through Andrew's pockets. Back in Carillo's car, Silva-Suarez, disappointed with the take, declared, "I killed him for a dollar."
Penaloza and Silva-Suarez argue the evidence was insufficient to uphold the conviction for felony murder because they did not form the intent to rob Andrew until after Silva-Suarez had stabbed him. The jury reasonably could reject that interpretation of the evidence and find instead the requisite intent to rob Andrew was formed by the time at which Penaloza and Silva-Suarez first approached Andrew. 2. Challenges to Carillo's Testimony Fail.
Penaloza argues the evidence was insufficient because the only evidence of a second stabbing and of Silva-Suarez searching Andrew's pockets was the testimony of Carillo. Carillo's testimony was the primary evidence of the robbery of the man on the scooter and of the man on the bicycle and of things said in his car.
Penaloza and Silva-Suarez challenge Carillo's testimony on the grounds it was contradictory and not credible. But as a reviewing court, we do not reassess witness credibility. (People v. D'Arcy, supra, 48 Cal.4th at p. 293.) Resolution of conflicts and inconsistencies in testimony is the exclusive province of the trier of fact unless the testimony is patently false, inherently improbable, or there is some other reason to question its validity. (People v. Gomez (2018) 6 Cal.5th 243, 281.) Carillo's testimony was neither patently false nor inherently improbable, and we see no other reason to question it. The jury was instructed with CALCRIM No. 226: "[d]o not automatically reject testimony just because of inconsistencies or conflicts."
Penaloza and Silva-Suarez also challenge the testimony of Carillo on the ground he was an accomplice whose testimony was uncorroborated. Section 1111, which requires corroboration of accomplice testimony, provides, in relevant part: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (Ibid.)
Section 1111 required the jury to conclude independent evidence linked Penaloza and Silva-Suarez to the crime before relying on Carillo's trial testimony. (People v. Davis (2005) 36 Cal.4th 510, 543.) "The corroborating evidence may be slight and entitled to little consideration when standing alone. However, it must tend to implicate the defendant by relating to an act that is an element of the crime. It need not by itself establish every element, but must, without aid from the accomplice's testimony, tend to connect the defendant with the offense. The trier of fact's determination on the issue of corroboration is binding on review unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime." (People v. Nelson (2011) 51 Cal.4th 198, 218.)
The corroborating evidence here met that standard. Police officers found fresh gang graffiti, including Penaloza's and Silva-Suarez's gang monikers, at and around the crime scene. This evidence corroborated Carillo's testimony that Penaloza and Silva-Suarez vandalized various areas with gang graffiti. WalMart surveillance video confirmed that Penaloza, wearing his "P" baseball hat, went to WalMart with Carillo to steal spray paint.
Penaloza's fingerprints and Silva-Suarez's blood were found in Carillo's car. This evidence corroborated Carillo's testimony that Penaloza and Silva-Suarez had been in Carillo's car during the night of the murder.
Eyewitnesses at the murder scene, though unable to identify Penaloza and Silva-Suarez by name, confirmed Carillo's testimony about what happened. Kevin Gomez and Nicholas Ruiz corroborated Carillo's testimony that Silva-Suarez pointed the knife at Andrew's friends to keep them at bay. The testimony of Randy, Gomez, and Ruiz corroborated Carillo's testimony about pursuing Andrew into the parking lot when he tried to escape. Randy testified that, while Andrew lay unconscious in the parking lot, somebody reached into his pockets, corroborating Carillo's testimony that Silva-Suarez searched Andrew's pockets.
Ruiz testified he saw somebody stab Andrew while he was lying unconscious in the parking lot. Penaloza challenges that testimony on the ground Ruiz testified he saw what looked like a punching movement and did not see a blade pierce Andrew's skin. Testimony that somebody made a stabbing gesture toward a body, particularly when viewed with autopsy evidence that Andrew suffered two stabs wounds, was sufficient for the trier of fact to conclude Carillo's testimony that Silva-Suarez stabbed Andrew a second time was corroborated.
Finally, Penaloza hid from the police and was the subject of an hours-long manhunt. He was found by a police dog in a trash barrel at a mobilehome park. Silva-Suarez expressed his desire to commit crimes in his notebook.
IV.
Relief Under Senate Bill No. 1437 Is Not Available on
Direct Appeal.
After the appeal was fully briefed, we granted Penaloza's motion to file a supplemental brief on the effect of recently enacted Senate Bill No. 1437 on his murder conviction to the extent based on a felony murder theory. In his supplemental brief, Penaloza contends that due to Senate Bill No. 1437 his conviction for first degree murder must be reversed and the matter remanded for a new trial.
The trial court instructed the jury that the elements of felony murder were: (1) The defendant committed or attempted to commit robbery; (2) the defendant intended to commit robbery; and (3) while committing or attempting to commit robbery the defendant caused the death of another person. That was a correct statement of the elements of felony murder when Penaloza and Silva-Suarez were tried, in May 2017. (See former section 189; People v. Cavitt (2004) 33 Cal.4th 187, 197.)
While this appeal was pending, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) Senate Bill No. 1437 was enacted to "'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (Martinez, supra, 31 Cal.App.5th at p. 723, quoting Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 accomplished that purpose by substantively amending sections 188 and 189. Under amended section 188, subdivision (a)(3), "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." Amended section 189 limits first degree murder liability based on a felony murder theory to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).)
Senate Bill No. 1437 also added section 1170.95, which creates a procedure by which persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing. Under subdivision (a) of section 1170.95, "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." A petition may be filed if the following three conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." The petition must be accompanied by, among other things, a declaration by the petitioner that he or she is eligible for relief. (§ 1170.95, subd. (b)(1)(A).)
If the court determines the petitioner has made a prima facie showing of eligibility, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Id., subd. (d)(3).) If the prosecution does not sustain its burden of proof, then the prior conviction, including any enhancements, must be vacated and the petitioner resentenced on the remaining charges. (Ibid.) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
Penaloza argues the amendments to the Penal Code enacted by Senate Bill No. 1437 apply retroactively to his conviction, authorize us to grant him relief on direct appeal, and compel reversal of his conviction for first degree murder. (Silva-Suarez does not make or join in this argument.) The Attorney General agrees Senate Bill No. 1437 is remedial and applies retroactively to Penaloza's first degree murder conviction. The Attorney General argues Penaloza cannot obtain relief by direct appeal but must await resolution of this appeal and then follow the procedures set forth in section 1170.95.
In Martinez, the Court of Appeal extensively analyzed the issues raised by Penaloza and concluded Senate Bill No. 1437 applies retroactively and equally to persons whose sentences are final and those whose sentences are not. (Martinez, supra, 31 Cal.App.5th at pp. 722, 724-727.) The Martinez court concluded relief under Senate Bill No. 1437 is not available by direct appeal; instead, the person seeking relief must file a petition in the sentencing court pursuant to section 1170.95. (Martinez, supra, 31 Cal.App.5th at pp. 727-729.)
The Martinez court explained that section 1170.95 operates in a similar fashion to Propositions 36 and 47 by creating a statutory mechanism by which defendants may obtain relief. (Martinez, supra, 31 Cal.App.5th at pp. 725-727.) In People v. Conley (2016) 63 Cal.4th 646, 661-662, the California Supreme Court held the postconviction statutory mechanism was the exclusive means for obtaining relief for those who had been sentenced before Proposition 36's effective date. In People v. DeHoyos (2018) 4 Cal.5th 594, 600, 603, the California Supreme Court held the statutory provisions for a petition to recall sentence were the exclusive means to obtain retroactive relief under Proposition 47 for persons sentenced before the proposition's effective date.
The Martinez court concluded: "The analytical framework animating the decisions in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, 31 Cal.App.5th at p. 727.)
In People v. Anthony (2019) 32 Cal.App.5th 1102, 1153 (Anthony), the Court of Appeal agreed with and adopted the analysis of Martinez and rejected the argument the defendant was entitled to relief under Senate Bill No. 1437 on direct appeal. The Anthony court also addressed and rejected a constitutional argument similar to one made by Penaloza: "Defendants further argue that to conclude the petition procedure is their exclusive remedy only affords them the right to new factual determinations about their liability by a sentencing court rather than by a jury, in violation of their constitutional right to a jury trial. This argument is unpersuasive because the retroactive relief they are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature's changes constituted an act of lenity that does not implicate defendants' Sixth Amendment rights. (See People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 [a trial court may make determinations of fact based on new evidence regarding a petitioner's eligibility for resentencing under Prop. 36 because retroactive application of the benefits from the proposition are a legislative act of lenity that does not implicate 6th Amend. rights].)" (Anthony, supra, 32 Cal.App.5th at pp. 1156-1157.)
We agree with and adopt the analysis of Martinez and Anthony. We conclude the amendments enacted by Senate Bill No. 1437 apply to Penaloza's first degree murder conviction but Penaloza may not obtain relief by direct appeal: The procedure created by section 1170.95 is the exclusive means by which he may seek relief under Senate Bill No. 1437.
Penaloza also argues in his supplemental brief that his first degree murder conviction must be reversed under Senate Bill No. 1437 and People v. Guiton (1993) 4 Cal.4th 1116, 1129. He argues that, due to the amendments enacted by Senate Bill No. 1437, the trial court incorrectly instructed the jury on the elements of felony murder, with the result that the jury was presented with one legally correct and one legally incorrect theory of guilt. In that situation, Penaloza argues, the unanimity rule does not apply and the murder conviction must be reversed if it cannot be determined that the jury rested its verdict on the legally valid ground. (See In re Martinez (2017) 3 Cal.5th 1216; People v. Chiu, supra, 59 Cal.4th at p. 167.) Penaloza must present this argument by petition under section 1170.95 because it expressly requires a determination whether he "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(3).) In determining whether to grant a petition and vacate the murder conviction, the trial court may, as necessary, address and resolve the issues raised by Penaloza's argument based on People v. Guiton.
We note that if Penaloza fails to make a prima facie showing under section 1170.95, subdivision (c), or the prosecution meets its burden under section 1170.95, subdivision (d)(3) of proving Penaloza is ineligible for resentencing, then the issue arises whether the legally inadequate jury instruction on felony murder given at trial was prejudicial under Chapman v. California (1967) 386 U.S. 18. (See People v. Aledamat (Aug. 26, 2019, S248105) ___ Cal.5th ___.) The trial court should resolve the issue of prejudice in ruling on a petition under section 1170.95. --------
V.
We Remand to Permit the Trial Court to Exercise Its
Discretion Whether to Strike the Five-Year Enhancement
on Silva-Suarez's Sentence.
After the appeal was fully briefed, we granted Silva-Suarez's motion to file a supplemental brief on the effect on the recent amendments to sections 667, subdivision (a) (section 667(a)) and 1385, subdivision (b) (section 1385(b)). In his supplemental brief, Silva-Suarez contends that due to those amendments, the matter must be remanded to permit the trial court to exercise its discretion to strike or dismiss his prior serious felony conviction for sentencing purposes.
Senate Bill No. 1393, which became effective January 1, 2019, amended section 667(a) and section 1385(b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) As a result, trial courts now have discretion to strike the five-year enhancement imposed by section 667(a). (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) "The amendment applies retroactively to all cases not final on its effective date." (Ibid.; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The Attorney General concedes the amendment applies retroactively to this case and requires us to remand for the trial court to exercise its discretion. We agree. When the trial court sentenced Silva-Suarez, it imposed the five-year sentence enhancement as a matter of course and did not indicate whether it would have struck or dismissed the prior serious felony conviction if it had the discretion to do so. We shall remand for the limited purpose of permitting the trial court to exercise it discretion whether to strike the five-year enhancement.
DISPOSITION
The judgment against Penaloza is affirmed in full. As to Silva-Suarez, the matter is remanded to the trial court for the limited purpose of allowing the court to exercise its discretion whether to strike the five-year prior serious felony enhancement, and, if appropriate following exercise of that discretion, to resentence Silva-Suarez and provide a corrected abstract of judgment to the appropriate agencies. The judgment against Silva-Suarez is otherwise and in all other respects affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.