Opinion
F083248
01-18-2023
The PEOPLE, Plaintiff and Respondent, v. Ruben SILVA, Jr., Defendant and Appellant.
Solomon Wollack, Pleasant Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with exception of the Factual Background and part III. of the Discussion.
Solomon Wollack, Pleasant Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
DETJEN, J. INTRODUCTION
Petitioner Ruben Silva, Jr., petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for second degree murder. The superior court held an evidentiary hearing ( § 1172.6, subd. (d)(1) ) and denied the petition after finding petitioner was guilty of murder under an implied malice theory.
Undesignated statutory references are to the Penal Code. Former section 1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
On appeal, petitioner argues the order denying the petition must be reversed because Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) eliminated implied malice as a valid theory of murder liability for aiders and abettors and, in any event, substantial evidence did not support a finding petitioner acted with implied malice. We affirm.
See footnote *, ante .
PROCEDURAL HISTORY
I. Underlying Conviction
Petitioner was charged with murder ( § 187, subd. (a) ; count 1) and active participation in a street gang ( § 186.22, subd. (a) ; count 2). As to count 1, the information alleged a gang enhancement ( § 186.22, subd. (b) ) and an enhancement for personal use of a knife ( § 12022, subd. (b)(1) ). During the settling of jury instructions during trial, the prosecutor conceded the evidence was insufficient to support a charge of first degree murder, and that only second degree murder could be charged. Additionally, on motion by the People, the court struck the knife use enhancement.
The jury convicted petitioner of second degree murder with a gang enhancement, and active participation in a street gang. Petitioner was sentenced on count 1 to a term of 15 years to life, and on count 2 to a consecutive two-year term. On appeal, we ordered the sentence on count 2 stayed pursuant to section 654, but otherwise affirmed. ( People v. Silva (Jan. 31, 2014, F064330) 2014 WL 350590 [nonpub. opn.].)
II. The Petition for Resentencing
On January 4, 2019, petitioner filed a petition for writ of habeas corpus, seeking resentencing on his murder conviction pursuant to section 1172.6. Although the court initially appointed counsel to represent petitioner, petitioner subsequently retained counsel to represent him on the petition. The People opposed the petition on the grounds Senate Bill No. 1437 was unconstitutional and, in any event, petitioner was ineligible for resentencing as "a direct perpetrator" of the murder or an aider and abettor who acted with malice. In support, the People submitted the record on appeal and this court's opinion from petitioner's direct appeal, as well as the probation report from his initial sentencing. After further briefing, the superior court determined petitioner had made a prima facie showing of resentencing eligibility and was entitled to an evidentiary hearing.
Prior to the hearing, the superior court filed a tentative statement of decision. Petitioner filed a response to the statement of decision. The matter was heard on July 30, 2021. The court denied the petition on the record and also issued a statement of decision explaining its reasoning. The court found the trial evidence failed to prove, beyond a reasonable doubt, that petitioner was the actual killer or acted with express malice. However, the court found the evidence proved beyond a reasonable doubt that petitioner was guilty of murder as an aider and abettor who acted with implied malice. Accordingly, the court determined petitioner was not entitled to resentencing.
The court also found the evidence established petitioner was a major participant in the attack and acted with reckless indifference to human life, standards that would be applicable under a felony murder, rather than implied malice, theory. The court also determined the evidence proved, beyond a reasonable doubt, that petitioner aided and abetted in the crime of assault with a deadly weapon and that he did so for the benefit of or in association with a criminal street gang. The court likewise determined the evidence proved, beyond a reasonable doubt, that petitioner was an active member of a criminal street gang as alleged in count 2. It is unclear why the court made findings on these matters, which were not at issue in the section 1172.6 proceedings. However, as petitioner concedes, the court's ultimate ruling was based on its determination that petitioner acted with implied malice.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "to amend the felony murder rule and the natural and probable consequences doctrine ... to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f) ; accord, People v. Strong (2022) 13 Cal.5th 698, 707-708, 296 Cal.Rptr.3d 686, 514 P.3d 265 ( Strong ).) The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. ( § 188, subd. (a)(3) ; accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).) The bill amended the felony-murder rule by providing that a participant in a qualifying felony is liable for murder only if the victim was a peace officer in the performance of his or her duties, or the defendant was the actual killer, aided and abetted the actual killer in the commission of first degree murder with the intent to kill, or was a major participant in the felony and acted with reckless indifference to human life. ( § 189, subds. (e), (f) ; accord, Strong , at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265 .)
Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to seek vacatur of the conviction and resentencing. ( § 1172.6, subd. (a) ; accord, Gentile, supra , 10 Cal.5th at p. 853, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. ( § 1172.6, subds. (a) - (c) ; accord, Strong, supra , 13 Cal.5th at p. 708, 296 Cal.Rptr.3d 686, 514 P.3d 265.) If the trial court determines the petitioner has made such a showing, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts." ( Gentile, supra , 10 Cal.5th at p. 853, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; accord, § 1172.6, subds. (c), (d)(1).)
At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder ... under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." ( § 1172.6, subd. (d)(3).) Significantly, "[a] finding that there is substantial evidence to support a conviction for murder ... is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid. ) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," as well as the "procedural history of the case recited in any prior appellate opinion." ( § 1172.6, subd. (d)(3).)
We review the trial court's findings following the evidentiary hearing for substantial evidence, and the application of those facts to the statute de novo. ( People v. Cooper (2022) 77 Cal.App.5th 393, 412, 292 Cal.Rptr.3d 513.)
II. An Aider and Abettor to Murder Need Not Act with Express Malice
Petitioner argues Senate Bill No. 1437 eliminated implied malice as a valid theory of murder for aiders and abettors. He therefore argues an aider and abettor to murder must act with express malice. We adopt the reasoning of every court to have addressed this issue and conclude that implied malice remains a valid theory of liability for aiders and abettors to murder. (E.g., People v. Vargas (2022) 84 Cal.App.5th 943, 953-955, 300 Cal.Rptr.3d 777 ( Vargas ); People v. Vizcarra (2022) 84 Cal.App.5th 377, 388-392, 300 Cal.Rptr.3d 371 ( Vizcarra ); People v. Langi (2022) 73 Cal.App.5th 972, 982-983, 288 Cal.Rptr.3d 809 ( Langi ); People v. Powell (2021) 63 Cal.App.5th 689, 710-714, 278 Cal.Rptr.3d 150 ( Powell ).)
"Murder, whether in the first or second degree, requires malice aforethought." ( Gentile, supra , 10 Cal.5th at p. 844, 272 Cal.Rptr.3d 814, 477 P.3d 539.) "Malice can be express or implied. It is express when there is a manifest intent to kill ( § 188, subd. (a)(1) ); it is implied if someone kills with ‘no considerable provocation ... or when the circumstances attending the killing show an abandoned and malignant heart’ ( § 188, subd. (a)(2) )." (Ibid. ) More specifically, "second degree murder based on implied malice has been committed when a person does ‘ " ‘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’ "....’ [Citation.] Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life." ( People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)
"When a person directly perpetrates a killing, it is the perpetrator who must possess ... malice. [Citations.] Similarly, when a person directly aids and abets a murder, the aider and abettor must possess malice aforethought." ( Gentile, supra , 10 Cal.5th at p. 844, 272 Cal.Rptr.3d 814, 477 P.3d 539.) "Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime." ( Id. at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Thus, "[g]uilt as an aider and abettor is guilt ‘based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.’ " ( Powell, supra , 63 Cal.App.5th at p. 710, 278 Cal.Rptr.3d 150.)
As our sister court has explained, "[i]n 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." ( Powell, supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150, italics & fns. omitted; accord, Vargas, supra , 84 Cal.App.5th at p. 954, 300 Cal.Rptr.3d 777.)
Petitioner argues that, in eliminating the natural and probable consequences doctrine, Senate Bill No. 1437 eliminated aider and abettor liability for "unintended" murders and made the crime of aiding and abetting murder "structurally identical" to crimes like attempted murder and conspiracy to commit murder, which both require specific intent to kill. However, our high court has continued to recognize "[t]hat one may intentionally aid a perpetrator in doing an act when he or she knows the act naturally and probably will cause death and consciously disregards this probable result." ( Powell, supra , 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150, citing Gentile, supra , 10 Cal.5th 830, 272 Cal.Rptr.3d 814, 477 P.3d 539.) In Gentile , the high court explained that a direct aiding and abetting theory of murder "requires that ‘the aider and abettor ... know and share the murderous intent of the actual perpetrator.’ [Citation.] For implied malice, the intent requirement is satisfied by proof that the actual perpetrator ‘ "knows that his conduct endangers the life of another and ... acts with conscious disregard for life." ’ [Citation.] Therefore, notwithstanding Senate Bill [No.] 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." ( Gentile , at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539.) We agree with Powell that "[t]his language clearly suggests an aider and abettor can be liable for implied malice murder as a theory independent of the natural and probable consequences doctrine." ( Powell , at p. 713, 278 Cal.Rptr.3d 150.)
Accordingly, we reject petitioner's contention that an aider and abettor to murder must act with express malice. III. Substantial Evidence Supports Denial of the Petition
See footnote *, ante .
DISPOSITION
The order is affirmed.
WE CONCUR:
POOCHIGIAN, Acting P. J.
PEÑA, J.