Opinion
G061635
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS RIVERA, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 96CF0802 Scott A. Steiner, Judge. Reversed and remanded with directions.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Defendant Juan Carlos Rivera appeals from a postjudgment order denying his petition for resentencing made pursuant to Penal Code former section 1170.95 (now Pen. Code, § 1172.6). Rivera and four codefendants-Miguel Tapia, Carlos Diaz, Guadalupe Vertiz, and Jorge Castro-were convicted in 1998 of second degree murder for the stabbing death of Cesar Arroyo. The trial court denied the petition after conducting a hearing under section 1172.6, subdivision (d).
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 38, § 10.) All further statutory references are to the Penal Code.
We conclude the trial court erred by using an incorrect legal standard for determining Rivera's mens rea for aiding and abetting implied malice murder. We reverse with directions to grant the petition, rather than to direct a new evidentiary hearing, because under the correct legal standard, substantial evidence would not support a finding that Rivera had the requisite mental state to be held liable for aiding and abetting the perpetrator in committing implied malice murder.
FACTUAL BACKGROUND
I. The First Incident on the Day of the Murder
On March 14, 1996, at around 9:00 p.m., L.C., A.V., and several other friends left a quinceanera practice at a home on the corner of Wakeham and Oak Streets in Santa Ana. While they stood outside at the corner, a brown-colored car with four occupants approached them and stopped a couple of feet away. Both L.C. and A.V. identified Rivera as the front seat passenger of the car before and at trial.
Rivera and codefendants Tapia, Diaz, and Castro got out of the car at the same time. Rivera yelled "Lopers" and someone else said "Eastside." Rivera and his codefendants threw beer cans at L.C., A.V., and their friends. Rivera approached L.C. and spoke to him. L.C., A.V., and their friends backed away without responding to the taunts.
While Rivera was standing about 30 feet away, L.C. saw an object in Rivera's pocket with a shape resembling a knife. L.C. never saw Rivera remove that object from his pocket and saw no weapons. A.V. did not see Rivera in possession of any weapons. E.V. testified that, later that evening, L.C. told her Rivera had a knife that evening. L.C. denied telling E.V. Rivera had a knife.
At trial, A.V. testified one of the four men (possibly Diaz) came after him with a knife and tried to stab him in the stomach, but A.V. lifted his arm to block the stab and the attacker dropped the knife. A.V. then ran away. L.C. testified he did not see anyone get into a physical fight; he testified "there was no fight."
Rivera and the four codefendants went back to their car and drove off. After buying more beer, they went and picked up defendant Vertiz. After picking up Vertiz, defendants went to buy more beer.
II. The Beating and Murder of Arroyo
At 9:20 p.m. the same night, K.L., her boyfriend Cesar Arroyo, and her sister L.L. were walking northbound on Standard Street in Santa Ana on their way to the grocery store. A brown-colored car approached them from the opposite direction. As the car drove past, its five occupants stared at them. The car made a U-turn and pulled up beside K.L., Arroyo, and L.L. Rivera jumped out of the car and, with a beer can in his hand, asked Arroyo, "'Where you from?'" Arroyo responded, "'I don't claim.'" When Rivera asked him again, Arroyo insisted, "'Really, I don't claim.'" Rivera proclaimed, "'We're from Lopers,'" or "'big, bad Lopers'" and threw the beer can at Arroyo. K.L. interceded, and the beer can hit her on the head.
The other four defendants then jumped out of the car and, along with Rivera, started beating Arroyo. Arroyo, who was five feet five inches in height and weighed 131 pounds, did not fight back. One defendant was punching Aroyo in the stomach with his fist.
After a minute or two of being beaten, Arroyo fell to the ground against the fence. He tried to cover and protect himself while Rivera and his codefendants continued to hit and kick him. They continued to kick and hit Arroyo for five to six minutes as he lay on the ground. Tapia and Vertiz punched K.L. when she tried to pull them off of Arroyo.
K.L. testified that while Arroyo was on the ground the defendants hit and kicked him. L.L. testified four of the five defendants "piled on" Arroyo as he lay on the ground and one defendant stood behind her.
At some point, Tapia stepped away and stood behind L.L. A few seconds later, three of the defendants got back into the car while another stood at the back of car and waited. Arroyo managed to stand up. One defendant, identified as wearing a blue shirt and dark, square pants, went up to Arroyo and pushed him in the chest. Arroyo started walking, then stumbled and fell to the ground.
The defendant who pushed Arroyo ran back to the car. Once all five were inside the car, they drove away.
L.L. went to seek help, and police officers arrived shortly thereafter. Arroyo had been stabbed several times and later died of his wounds.
The police officers took K.L. and L.L. to a liquor store where the officers had pulled over a car matching that of the defendants. Rivera and his four codefendants were inside the car. Rivera sat shirtless in the front passenger seat. A steak knife was found in the car's locked glove compartment. After defendant Castro was arrested, his home was searched and a knife was found underneath a mattress in the garage.
At trial, L.L. identified Rivera and all codefendants as participating in the attack on Arroyo. When asked how many of them struck Arroyo, L.L. testified, "The five of them." Neither K.L. nor L.L. saw any weapons or objects in the defendants' hands other than the beer can used by Rivera.
III. The Pathologist's Testimony
Joseph Halka, a pathologist for the Orange County Sheriff-Coroner, performed an autopsy on Arroyo's body. Halka testified that Arroyo died from exsanguination (he bled to death) caused by a stab wound to the heart and left lung.
Halka found a total of seven stab or slash wounds. Before Arroyo died, emergency surgery had been performed that altered "some of the contours" of the wounds. The wound to the heart was caused by a knife with a "two-edged configuration," meaning it was sharp on both edges or sides. A stab wound to Arroyo's left kidney was potentially fatal and also appeared to have been caused by a "two-edged configuration" knife. The remaining knife wounds, including defensive slash and "punctate" wounds, were nonfatal and could have been caused by either a two-edged knife or a one-edged knife. Arroyo also had bruises and contusions on his body.
IV. Tapia's Police Interview and Testimony
Police investigators interviewed Tapia early on March 15, 1996. Tapia admitted he and his fellow gang members had attacked Arroyo but repeatedly denied having used a weapon. Tapia told the investigators that, before the attack, "'the other guys said, "watch that guy,"'" with reference to Arroyo. Diaz (the driver) stopped the car, everyone got out, and they started fighting Arroyo. When asked why Tapia was fighting Arroyo, Tapia responded, "'But was very-if you see him in the street like that, you're going to figure he's a gang member, and you're going to stop him, and you're going to say hey, you understand me?'" Tapia claimed he did not have any weapons and he did not stab Arroyo.
At trial, Tapia testified he had stabbed Arroyo and lied to police when he was arrested. He testified he had a knife in his pocket which he had obtained from work at a Del Taco, where he used it to cut up boxes. The knife was "straight" (as opposed to being a folding knife), had a three-inch blade and a three-inch handle, and was sharp on both edges. He did not have a sheath or pouch for the knife but on March 14, 1996, he was wearing oversized pants with huge pockets which could accommodate the knife. Tapia testified he had forgotten about the knife when he left work at 4:00 p.m.
Payroll records for the Del Taco showed Tapia last worked there on February 15, 1995. Tapia's father, who was the manager of the Del Taco, testified knives that were sharp on both edges were used at that Del Taco and that he had not seen such a knife at the store in March 1996.
Tapia testified that he and his codefendants did not have any discussion about getting into a fight. Tapia had been drinking earlier that night and was drunk. Tapia claimed that as the five drove past Arroyo he screamed "Little Minnie Locotes" and lifted his hand with five fingers outstretched at a 45-degree angle. The car made a U-turn. All five got out of the car and attacked Arroyo. Tapia took out the knife and stabbed Arroyo. Tapia remembered stabbing Arroyo a few times. Tapia did not remember how it happened because he was drunk and did not recall why he stabbed Arroyo. When he realized he was stabbing Arroyo with a knife, Tapia got scared and ran back to the car. He did not think he had seriously injured Arroyo because Arroyo was still standing and walking.
According to Tapia, he and his codefendants got back into the car and drove off. They returned to the place where they had attacked Arroyo and saw an ambulance there. They next drove to a liquor store to buy more beer. Soon thereafter, they were stopped by police officers and arrested.
At first, Tapia claimed he could not remember what he did with the knife. He then testified that he had tossed the knife out of the driver's side window while on the way to the liquor store. Tapia claimed none of his codefendants knew he had a knife, that he had stabbed Arroyo, or that he had tossed the knife out the window.
Regarding the earlier confrontation with L.C. and A.V.'s group, Tapia claimed he, Rivera, Diaz, Castro, and two brothers whose names he did not know were in the car when someone in the group looked at them and said something, which led Tapia and his codefendants to stop the car. Tapia and his codefendants threw beer cans at the people in L.C. and A.V.'s group. Tapia testified that neither he nor any of his codefendants got close to or chased after anyone. He was not sure whether he or any of his codefendants shouted "Lopers" as "the music was on loud." He denied using the knife during the incident.
PROCEDURAL HISTORY
I. The Charges and Trial
Rivera and all four codefendants were charged by amended information filed in 1997 with the murder of Arroyo (§ 187, subd. (a); count 1). Rivera, Tapia, Diaz, and Castro were charged in count 2 with the attempted murder of L.C. and in count 3 with the attempted murder of A.V. (§§ 664, 187.) It was alleged the attempted murder was committed willfully, deliberately and with premeditation. Rivera was charged in count 5 with conspiring to intimidate a witness (§§ 182, 136.1, subd. (c)(1)) and in count 6 with dissuading a witness (§ 136.1, subd. (c)(1)). It was alleged that counts 1 through 6 were committed for the benefit of, at the direction of and in association with a criminal street gang. (§ 186.22, subd. (b)(1).)
In May 1998, Rivera and the codefendants were tried together by jury. Outside the jury's presence all defendants admitted they were members of the Lopers, the Lopers was a criminal street gang, and any alleged crimes they were convicted of committing had been committed for the benefit of the gang. After the prosecution rested its case-in-chief, the court granted a defense motion pursuant to section 1118.1 acquitting Rivera, Tapia, Diaz, and Castro on count 2 (attempted murder of L.C.) and dismissing the enhancements associated with that count.
The jury was instructed on aiding and abetting, conspiracy, murder, express and implied malice, attempted murder, second degree murder resulting from an unlawful act dangerous to life, and the lesser included offenses of assault with a deadly weapon, simple battery, and simple assault.
The jury convicted all defendants of second-degree murder. Under count 3 (attempted murder of A.V.), the jury acquitted all defendants of attempted murder but found them guilty of the lesser included offense of misdemeanor assault (§ 240). Rivera was also convicted of dissuading a witness as alleged in count 6 but found not guilty of conspiring to dissuade a witness as alleged in count 5. The jury found that Tapia personally used a knife at the time of the commission of the murder.
The trial court sentenced Rivera to a term of 30 years to life for the murder conviction with a consecutive term of 14 years for the other crimes and enhancements.
Rivera and the other defendants appealed. In an unpublished opinion, a panel of this court remanded for reconsideration of presentence custody credits award but otherwise affirmed the judgment and sentence. (People v. Diaz (Mar. 28, 2001, G023892) [nonpub. opn.].)
II. Rivera's Resentencing Petition
In January 2019, Rivera filed a petition to vacate his murder conviction and for resentencing pursuant to section 1172.6. The prosecution opposed the petition on the ground the resentencing statute was unconstitutional. The trial court agreed the resentencing statute was unconstitutional and in August 2019, denied the petition. A panel of this court concluded the resentencing statute was constitutional, reversed the order denying Rivera's resentencing petition, and remanded with directions to conduct proceedings on the merits. (People v. Rivera (Nov. 9, 2020, G058213) [nonpub. opn.].)
On July 25, 2022, the trial court conducted a hearing under section 1172.6, subdivision (d) on Rivera's resentencing petition. At the outset of the hearing, the prosecution conceded that Rivera made a prima facie case for relief. The court heard extensive argument from counsel. During the hearing, the prosecutor confirmed he was proceeding on a theory that Rivera had aided and abetted an implied malice murder.
The trial court commented, "In this case . . . it wasn't two guys having a fist fight. It was five guys wailing on this poor bastard lying on [the] ground for an extended time." The court denied Rivera's resentencing petition and found "it would fall wholly within the concepts of active participant, major participant, rather, who evinced by his conduct a callous wanton disregard for human life."
The court took judicial notice of the fact Rivera was born on February 3, 1975, and therefore was under the age of 25 when the offense was committed.
DISCUSSION
I. Standard of Review
A trial court's denial of a section 1172.6 petition following a hearing under section 1172.6, subdivision (d) is reviewed under the substantial evidence standard. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) We review the record in the light most favorable to the order denying the petition to determine whether the evidence is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) "We defer to the trial court's implicit credibility findings and accept all reasonable inferences from the evidence." (People v. Oliver (2023) 90 Cal.App.5th 466, 482.) Substantial evidence is not just any evidence but must constitute substantial proof. (People v. Bell (2020) 47 Cal.App.5th 153, 179.) We presume the court has made all necessary implied findings in support of the judgment or order. (People v. Flores (2021) 60 Cal.App.5th 978, 988, review granted Apr. 21, 2021, S267522; People v. Francis (2002) 98 Cal.App.4th 873, 878.)
"[W]here there is an issue as to whether the trial court misunderstood the elements of the applicable offense, the case presents a question of law which we review independently." (Reyes, supra, 14 Cal.5th at p. 988.)
II. Resentencing Under Section 1172.6
By legislation effective January 1, 2019, the Legislature amended the felony-murder rule and eliminated the natural and probable consequences theory of liability as a basis for a murder conviction. (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 4; see Reyes, supra, 14 Cal.5th at p. 984.) The latter result was accomplished by amending section 188 to provide that, except in cases of felony murder, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought." (§ 188, subd. (a)(3) as amended by Stats. 2018, ch. 1015, § 2.)
Section 1172.6 lays out a procedure by which convicted murderers who could not be convicted under the law as amended could retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 952, 957.) To obtain relief under section 1172.6, a petitioner must file a petition alleging these three conditions have been met: (1) the petitioner was convicted based on a pleading "that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" (§ 1172.6, subd. (a)(1)); (2) the petitioner was convicted of murder or attempted murder (id., subd. (a)(2)); and (3) the petitioner could not now be convicted of murder or attempted murder as those offenses are presently defined (id., subd. (a)(3)).
If the court determines the petitioner made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced." (§ 1172.6, subd. (d)(1).) "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (d)(3).) At the evidentiary hearing, the resentencing court sits as an independent fact finder. (People v. Vargas (2022) 84 Cal.App.5th 943, 951.)
III. The Trial Court's Decision Was Not Based on the Felony-murder Rule
Rivera argues the trial court erred by applying the felony-murder legal standard in order to deny his resentencing petition. In denying the petition, the trial court stated Rivera's case "would fall wholly within the concepts of active participant, major participant, rather, who evinced by his conduct a callous wanton disregard for human life." The court's comments track section 189, subdivision (e)(3), which describes one of three situations in which liability under the felony-murder rule may still be imposed. Neither Rivera nor any of his codefendants were prosecuted under the felony-murder rule.
Section 189, subdivision (d)(3) states: "The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
In a supplemental letter brief, the Attorney General argues "the record viewed in its entirety indicates that the court was addressing the only theory presented to it-a direct aiding and abettor theory of implied malice murder" and "the parties only presented and discussed a direct aiding and abetting theory of implied malice murder."
We agree with the Attorney General that the trial court was not addressing the felony-murder rule but an aiding and abetting implied malice murder. "'Wanton disregard for human life'" and "'"conscious disregard for human life"'" articulate the same standard for implied malice. (People v. Knoller (2007) 41 Cal.4th 139, 152.) During the hearing on Rivera's resentencing petition, the court asked whether, without considering the gang evidence, "doesn't that sort of strike you as a rather classic implied malice situation?" The trial court drew a distinction between a simple fistfight, which in itself would not evince implied malice, and "five guys wailing on this poor bastard lying on [the] ground for an extended time." The court stated: "[W]hat's not in dispute, though, is that Mr. Rivera participated in a violent group assaulting a guy who got stabbed and died."
We read the trial court's statement that Rivera was an active participant as a finding that he aided and abetted an implied malice murder. Rivera's conduct evinced a callous and wanton disregard for human life as a finding that the requisite mental state could be imputed to him because he was one of five defendants who together attacked and beat up Arroyo.
IV. The Trial Court Erred by Denying Rivera's Petition for Resentencing
A. Aiding and Abetting Implied Malice Murder
Murder is committed with implied malice when "the killing is proximately caused by '"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."'" (People v. Knoller, supra, 41 Cal.4th at p. 143.) "'To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.'" (People v. Jennings (2010) 50 Cal.4th 616, 643.)
A defendant may directly aid and abet an implied malice murder. (Reyes, supra, 14 Cal.5th at p. 990.) "'[N]otwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (Ibid.)
The elements of aiding and abetting an implied malice murder were recently confirmed by the California Supreme Court in Reyes: "'[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th at pp. 990-991.)
In Reyes, the California Supreme Court clarified what mental state is necessary to impose liability for aiding and abetting implied malice murder. In Reyes, the defendant was convicted of second degree murder under the natural and probable consequences theory for his role in a gang-related killing. (Reyes, supra, 14 Cal.5th at p. 984.) The defendant met with a group of gang members in a park, where one gang member showed the group a revolver he was carrying. (Id. at p. 985.) Several hours later, the defendant and several other gang members set off on their bicycles to an area on the edge of territory claimed by a rival gang. (Ibid.) One of the bicycle riders called out for a passing car to stop. (Ibid.) The car sped up instead, and the group chased after it. (Ibid.) While the group was stopped at an intersection, the car they were chasing made a U-turn and drove past them. (Ibid.) There was a gunshot, and the riders fled in different directions. The driver of the car had been struck by a single gunshot. (Ibid.) The defendant was not the shooter. (Id. at p. 989.)
The trial court denied the defendant's section 1172.6 petition on the ground that the act of riding into rival gang territory with several other gang members, one of whom was armed, was dangerous to human life, the defendant was aware that act was dangerous to human life, and the defendant deliberately acted with conscious disregard for that danger. (Reyes, supra, 14 Cal.5th at pp. 986-987.) The Court of Appeal affirmed the trial court's decision. (Id. at p. 987.) The Supreme Court, reversing the Court of Appeal, concluded the defendant's murder conviction could not be sustained under either a direct perpetrator or aiding and abetting implied malice murder theory. (Id. at p. 992.)
Relevant to the matter at hand is the Supreme Court's discussion of aiding and abetting implied malice murder. After reciting the definition and elements of that theory of liability, quoted above, the court stated, "the trial court did not appear to recognize that implied malice murder requires, among other elements, proof the aider and abettor's knowledge and intent with regard to the direct perpetrator's life endangering act." (Reyes, supra, 14 Cal.5th at p. 991.) The trial court erred by finding the life-endangering act was traveling with other gang members, one of whom was armed, into rival gang territory. (Id. at pp. 991-992.) The correct focus, the Supreme Court explained, is on the acts of the direct perpetrator: "[I]mplied malice murder requires attention to the aider and abettor's mental state concerning the life-endangering act committed by the direct perpetrator, such as shooting at the victim." (Id. at p. 992.) "Here, assuming the life-endangering act was the shooting, the trial court should have asked whether [the defendant] knew that [the other gang member] intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life." (Ibid.)
B. Substantial Evidence Does Not Support Denial of Rivera's Resentencing Petition
1. The Life-endangering Act Was the Stabbing of Arroyo
To determine Rivera's liability for aiding and abetting implied malice murder, we first consider what constituted the perpetrator's life-endangering act. During the evidentiary hearing, the trial court made comments suggesting it considered the relevant life-endangering act to be "five guys wailing on this poor bastard lying on [the] ground." Reyes however teaches that "implied malice murder requires attention to the aider and abettor's mental state concerning the life endangering act committed by the direct perpetrator, such as shooting the victim." (Reyes, supra, 14 Cal.5th at p. 992.) The evidence at trial, Halka's testimony in particular, established the cause of Arroyo's death as a stab to the heart from a double-edged knife. The evidence did not support any other cause of death. Arroyo had bruises and contusions on his body from the beating he received, but there is not substantial evidence the beating, absent the knife wounds, was the cause of his death or contributed to it.
The direct perpetrator, therefore, was the person who stabbed Arroyo and the life-endangering act committed by the perpetrator was the stabbing. The gang beating in itself was not the act dangerous to human life for purposes of aiding and abetting implied malice murder. (See Reyes, supra, 14 Cal.5th at p. 991 ["implied malice murder requires, among other elements, proof of the aider and abettor's knowledge and intent with regard to the direct perpetrator's life endangering act"]; People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27 ["The relevant act is the act that proximately causes death"].)
No substantial evidence supports a finding Rivera was the direct perpetrator and the Attorney General does not contend he was. To determine whether Rivera had the requisite mens rea for aiding and abetting implied malice murder, the questions to be answered are whether Rivera: (1) knew the perpetrator intended to stab Arroyo; (2) intended to aid the perpetrator in stabbing Arroyo; (3) knew that stabbing Arroyo was dangerous to human life; and (4) acted in conscious disregard for life. (See Reyes, supra, 14 Cal.5th at p. 991.)
The trial court erred by focusing on Rivera's conduct in participating in the gang attack without reference to the life-endangering conduct of the perpetrator. The trial court imputed malice to Rivera because his conduct evinced a callous and wanton disregard for human life by participating in the gang attack. Under Reyes, the correct focus is on evidence regarding Rivera's knowledge and intent with regard to the direct perpetrator's life-endangering act-i.e., the stabbing that killed Arroyo.
In Reyes, the Supreme Court concluded the trial court had "committed reversible error" by denying the resentencing petition in exclusive reliance on CALCRIM No. 520, which lays out the elements of implied malice murder and does not encompass the elements of aiding and abetting implied malice murder. (Reyes, supra, 14 Cal.5th at pp. 991-992.) From the trial court's findings, it was arguable but unclear whether the court upheld the defendant's murder conviction on the theory he directly aided and abetted implied malice murder. (Id. at p. 987.) For that reason, the Supreme Court agreed with the Attorney General that remand of the matter was "appropriate" as "given the nature of this error, it is 'uncertain whether the trial court would have reached the same result using correct legal standards.'" (Id. at p. 992.)
The trial court here committed reversible error by using the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder. We conclude remand for a new evidentiary hearing is neither appropriate nor necessary because, unlike the situation in Reyes, it is certain the trial court would not have reached the same result using the correct legal standard. Under the correct legal standard, substantial evidence would not support an express or implied finding that Rivera had the requisite mental state to be held liable for aiding and abetting the perpetrator in committing implied malice murder.
2. Substantial Evidence Does Not Support a Finding That Rivera Harbored the Requisite Mens Rea
The evidence at trial would not support a finding that Rivera knew anybody in his group had a knife and intended to stab Arroyo with it. Tapia testified both that he was the stabber and that no other defendant knew about the knife. The jury found Tapia used a knife at the time of the attack on Arroyo. Neither K.L. nor L.L. saw any weapons other than a thrown beer can used in the attack on Arroyo.
The evidence that Rivera might have had a knife was not substantial. Testimony from L.C. that from 30 feet away he saw an object in Rivera's pocket that had shape resembling a knife, and hearsay testimony that L.C. told his girlfriend that Rivera had a knife, was not of such solid value that it could support a finding that Rivera was in possession of a knife during the attack on Arroyo. Several more attenuated inferences, and disbelief of Tapia's testimony, would be necessary to find that Rivera actually used the knife during the attack. Further, imposing liability on Rivera on the basis his possession of a knife meant he knew the attack on Arroyo could escalate into a stabbing comes precariously close to a natural and probable consequences theory of liability.
Nor was there substantial evidence that Rivera knew any of the other defendants was carrying a knife. The Attorney General relies upon evidence that one of the defendants came at A.V. with a knife during the first incident as establishing Rivera knew that someone in his group had a knife. However, the jury acquitted Rivera and the three other defendants of attempted murder, assault with a deadly weapon, and with intent to cause great bodily injury. The jury convicted them instead of misdemeanor assault. The only reasonable deduction from the verdict is the jury did not believe A.V., who was the only person who testified to the knife attack, and found the knife attack on A.V. never happened, which is what defense counsel had strenuously argued. Acquittal on the attempted murder counts also eliminates the theory that Rivera and his codefendants were out on the hunt for a rival gang member to kill, and being unsuccessful the first time, attacked Arroyo to kill him.
A.V.'s testimony about the knife attack therefore cannot be used as support for a finding that Rivera either had or knew somebody within his group had a knife. "'[A] trial court cannot deny relief in a section [1172.6] proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.'" (People v. Arnold (2023) 93 Cal.App.5th 376, 384; see People v. Curiel (2023) 15 Cal.5th 433, 453-454 [jury's findings are given preclusive effect in resentencing proceedings].)
The prosecution did offer a gang expert who testified that in his experience, "when gang members go into rival gang territory and there is a weapon in the vehicle, that most oftentimes all of the members in there know that there is a weapon in there." The expert's testimony cannot, however, serve as the sole evidence of guilt (People v. Nguyen (2015) 61 Cal.4th 1015, 1097 (conc. &dis. opn. of Cuellar, J.)) and, outside the expert's testimony, there was no substantial evidence that Rivera knew any of the other defendants had a knife. Indeed, the prosecution's expert also testified that gang members sometimes act spontaneously and that whether or not a gang member would tell fellow gang members he had a knife "would be dependent completely on the totality of the circumstances." The expert acknowledged that on a prior occasion he had testified he did not know whether or not most gang members would tell anybody if they were carrying a knife.
The lack of solid evidence of Rivera having or knowing about a knife does not mean nobody in the group had a knife. After all, Arroyo died of a stab wound and he did not stab himself. But it does mean knowledge of a knife cannot be imputed to Rivera.
The lack of solid evidence to prove Rivera was the stabber, or knew about the knife and aided the stabber, explains why the prosecutor at trial relied so heavily on the natural and probable consequences theory to seek a murder conviction. In closing, the prosecutor argued there was "no need to prove knowledge of a knife." The prosecutor stressed that point: "We started up with a fight, and ended up with someone who was murdered. That's all that has to be proven. That's why . . . I didn't spend a lot of time in trying to prove to you who the stabber was." Later, the prosecutor repeated that argument: "You don't have to prove that they all did the stabbing. If they all went out to beat up a rival that night, and that's what they did and a death resulted, and that death is a natural and probable consequence, that's it."
The prosecutor's closing argument, of course, is not evidence and does not control our decision or that of the trial court. It is, however, confirmation of the lack of solid evidence Rivera knew one of his codefendants had a knife, the codefendant intended to stab Arroyo with the knife, and Rivera aided the codefendant in stabbing Arroyo.
3. People v. Schell
People v. Schell (2022) 84 Cal.App.5th 437 (Schell), though similar in many respects, demonstrates by distinction why Rivera could not be convicted for aiding and abetting implied malice murder. In Schell, eight gang members attacked and killed a man whom they suspected had called the police to complain the gang had disturbed the peace. (Id. at p. 440.) The victim used a baseball bat to fend off the attackers until one of the attackers grabbed the bat and used it to beat the victim. Another attacker hit the victim in the head with a shovel. The defendant participated in the attack with his hands and fists. (Ibid.) The victim was stabbed with a knife, but the prosecution could not prove the defendant was the stabber. (Ibid.)
The defendant brought a petition for resentencing under section 1172.6. (Schell, supra, 84 Cal.App.5th at p. 441.) At the conclusion of an evidentiary hearing, the trial court found the defendant's participation in the gang assault resulting in death rendered him liable for second degree implied malice murder and denied the petition. (Ibid.) The trial court made clear its ruling "'does not depend on the knife.'" (Ibid.)
The Court of Appeal agreed with the trial court and affirmed. (Schell, supra, 84 Cal.App.5th at p. 440.) The defendant was one of at least eight gang members or associates who had viciously assaulted the victim. (Id. at p. 443.) The trial court could reasonably infer that the defendant knew the victim was being hit in the head by a shovel and bat and intended to aid those acts. (Ibid.) The defendant was at the scene when a cohort wrested the bat from the victim. During the attack, the blows to the victim with the bat and shovel were loud enough to be heard by several neighbors and cries of "'Stop it'" and "'you're killing him'" could also be heard. (Ibid.) The defendant was so deep into the fray that his pants, underwear, and jacket became stained with the victim's blood. (Ibid.) The appellate court concluded: "Appellant's presence at the scene, his participation in the attack on the victim, his companionship with other perpetrators, his conduct before and after the crimes, and his motive of retaliation for disrespect all support the finding that he aided and abetted an implied malice murder. [Citation.] As the People note, '[a]ppellant did not need to specifically know that someone would strike [the victim] with [a shovel and bat] in that particular manner to be liable under an implied malice theory. It suffices that he knew he was aiding in a violent attack, knew dangerous weapons were being used against [the victim], and intended to stop [the victim] from escaping or defending himself by helping the perpetrators surround and hit him.'" (Ibid.)
In Schell, the perpetrator's mental state could be imputed to the defendant, without reference to the knife, because the evidence supported a finding that he knew other gang members were using other dangerous weapons to attack the victim. (Schell, supra, 84 Cal.App.5th at p. 443.) Although the present case, like Schell, is an attack by a group of gang members on a single person, unlike Schell there was no solid evidence that Rivera knew someone in his group had a knife and intended to use it. There was no evidence of anybody seeing a weapon (except for a thrown beer can), having seen a weapon wrested from Arroyo, or hearing noises indicating weapons were being used. There was no evidence to suggest Rivera's clothing, or anybody else's was bloodied in the attack on Arroyo.
DISPOSITION
The order denying Rivera's resentencing petition is reversed and the matter is remanded with directions to grant the petition, vacate Rivera's murder sentence, and resentence him on the remaining counts and enhancements.
I CONCUR: BEDSWORTH, ACTING P. J.
Moore, J., Concurring and Dissenting.
The majority accurately summarizes the California Supreme Court's opinion in People v. Reyes (2023) 14 Cal.5th 981 (Reyes). The majority notes the Court "clarified what mental state is necessary to impose liability for aiding and abetting implied malice murder." (Maj. opn., ante, at p. 13.)
I concur with the result. That is, I agree with the majority that the trial court did not use the correct legal standard and this court should reverse the trial court's postjudgment order, which denied defendant Juan Carlos Rivera's petition for resentencing. (Former Pen. Code, § 1170.95; now § 1172.6.)
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). Further undesignated statutory references are to the Penal Code.
However, I respectfully dissent from the disposition. Just as the Supreme Court concluded in Reyes, I would find it "appropriate" to remand the matter for reconsideration because "it is 'uncertain whether the trial court would have reached the same result using correct legal standards.'" (See Reyes, supra, 14 Cal.5th at p. 992.)
Given the requirements of section 1172.6, the trial court is the exclusive trier of fact at an evidentiary hearing. (§ 1172.6, subd. (d)(3).) It is not this court's role to judge the credibility of witnesses or to reweigh the evidence. And without expressing my views on the merits of Rivera's petition, I cannot agree with the majority's analysis that "substantial evidence would not support an express or implied finding that Rivera had the requisite mental state to be held liable for aiding and abetting the perpetrator in committing implied malice murder." (Maj. opn., ante, at p. 16.)
I will briefly highlight: 1) the substantial evidence standard; 2) the expert testimony; and 3) the evidence regarding the assault of A.V. that occurred about 20 minutes before the murder of Cesar Arroyo.
1. Substantial Evidence
"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 substantial evidence-that is, 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. Lindberg (2008) 45 Cal.4th 1, 27, italics added.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
"The reviewing court presumes in support of the judgment the existence of every fact the [trier of fact] could reasonably deduce from the evidence. [Citations.] Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
Here, the evidence supporting Rivera's liability for aiding and abetting the perpetrator in an implied malice murder is "admittedly not overwhelming, but 'we need not be convinced beyond a reasonable doubt ....The relevant inquiry on appeal is whether "'any rational trier of fact'" could have been so persuaded.'" (See People v. Wharton (1991) 53 Cal.3d 522, 546.)
2. Expert Testimony
A gang expert testified at the jury trial that weapons are very important to gang members. In response to a hypothetical question, the expert opined that if five Lopers gang members were driving in a car and pulled up to three people walking on the street, and one of those people may have claimed a rival gang, the expert would expect one or more of the Lopers gang members to be armed with a weapon. The expert said when Lopers gang members confront rival gang members, "they would want to be armed themselves during that confrontation." The expert testified: "It is my experience that when gang members go into rival gang territory and there is a weapon in the vehicle, that most oftentimes all of the members in there know that there is a weapon ...." The expert explained that "in the event of a violent confrontation, the gang members need to know where their protection is coming from, and if, in fact, they do have protection."
As the majority notes, this testimony was challenged during the trial, and it is certainly not dispositive. However, the finder of fact on remand may (or may not) determine that it strengthens other evidence in the record (e.g., the evidence below) supporting the prosecution's theory that Rivera knew another member of his gang was armed with a knife before the murder of Arroyo. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1055 ["Although 'gang evidence' standing alone cannot prove a defendant is an aider and abettor to a crime' . . ., [the gang expert's] testimony strengthened inferences arising from other evidence specific to defendant's role in the crime"].)
3. Evidence Regarding the Assault
Collateral estoppel "'bars relitigation of issues earlier decided "only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding."'" (People v. Arnold (2023) 93 Cal.App.5th 376, 386, italics added (Arnold).)
As to the assault of A.V., which occurred about 20 minutes before the murder, the majority states, "the jury acquitted Rivera and the three other defendants of attempted murder, assault with a deadly weapon, and with intent to cause great bodily injury. The jury convicted them instead of misdemeanor assault. The only reasonable deduction from the verdict is the jury did not believe A.V., who was the only person who testified to the knife attack, and found the knife attack on A.V. never happened, which is what defense counsel had strenuously argued." (Maj. opn., ante, at p. 17.)
The majority opinion concludes: "A.V.'s testimony about the knife attack therefore cannot be used as support for a finding that Rivera either had or knew somebody within his group had a knife." (Maj. opn., ante, at p. 18.)
However, this is not my understanding of how the doctrine of collateral estoppel (issue preclusion) works. The jury necessarily decided the prosecution did not prove beyond a reasonable doubt that Rivera and his fellow gang members committed the crime of attempted murder (and the lesser included offenses). The jury also necessarily decided that a misdemeanor assault by the gang members was proven beyond a reasonable doubt. But the jury did not necessarily decide that there was not a knife present during the misdemeanor assault because that issue was not actually litigated.
The majority's reliance on Arnold, supra, 93 Cal.App.5th 376, seems somewhat misplaced. In Arnold, the trial court denied defendant's section 1172.6 petition. (Arnold, at p. 381.) After reviewing the jury trial transcripts at an evidentiary hearing, the trial court found defendant was the actual killer and "'it is clear beyond a reasonable doubt that [defendant] stabbed the victim.'" (Id. at p. 382.) But the jury had found not true a sentencing allegation that defendant personally used a weapon during the murder. (Id. at p. 381.) Applying the doctrine of collateral estoppel, the Court of Appeal found: "The issue of whether defendant stabbed the victim was actually litigated at the original trial. As described above, the jury necessarily decided the issue in rendering its not true finding on the knife use allegation." (Id. at p. 387, italics added.) Thus, the appellate court reversed the ruling of the trial court. (Id. at p. 393.)
But unlike the weapon allegation in Arnold, the issue of whether Rivera knew that one of his fellow gang members had a knife prior to the murder of Arroyo was not actually litigated or necessarily decided at the jury trial. Thus, it does not seem to me that the Arnold opinion is entirely on point with the issues in this appeal.
For all the foregoing reasons, I concur in the result, but I dissent from the disposition and disagree with the majority's substantial evidence analysis.