Opinion
D072635
12-08-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ATENCIO SIORDIA, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1300713) APPEAL from a judgment of the Superior Court of Riverside, Stephen J. Gallon, Judge. Affirmed. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Francisco Atencio Siordia of first degree murder (Pen. Code, § 187, subd. (a)) and found true the special circumstance that the murder was committed during the commission of an attempted robbery (§§ 190.2, subd. (a)(17)(A), 211). The trial court sentenced Siordia, who was a juvenile at the time of the crime, to an indeterminate term of 25 years to life imprisonment. (§ 190.5, subd. (b).)
Further statutory references are to the Penal Code unless otherwise specified.
Siordia appeals. He contends (1) the court prejudicially erred by providing ambiguous instructions to the jury regarding the requirement that their verdict be unanimous; (2) the evidence does not support the jury's special circumstance finding that the murder was committed during the commission of an attempted robbery; and (3) a recent initiative regarding juvenile criminal procedure, Proposition 57, applies retroactively and requires reversal. We disagree with these contentions and therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
Seventeen-year-old Siordia lived with his girlfriend and their infant son in his girlfriend's family home in Hemet, California. Siordia's girlfriend's brother, 15-year-old Joseph Venegas, lived there as well. Siordia and Venegas were close friends. Venegas had a cousin, Francisco Zavala Jr., who did not live with them. Zavala was in prison for robbery and had recently been released.
On January 14, 2013, Venegas skipped classes at Hemet High School, where he was a student, and stayed home. Siordia was at home as well. In the afternoon, Zavala came by, and he and Siordia suggested to Venegas that they go rob someone. Venegas agreed, and they set out on foot to find someone to rob. Zavala brought a five-and-a-half inch boning knife, Siordia had brass knuckles, and Venegas carried a five-inch fixed-blade "cowboy" knife.
The group first went to the parking lot of a Big Lots store, but they decided it was too risky to rob anyone because of the security cameras there. They kept walking. A few blocks away, they saw a teenager walking with a cell phone in his hands. The teenager, 16-year-old Eric Sargent, was a student with Venegas at Hemet High School. (Venegas denied knowing Sargent, although a witness said that Venegas had bullied Sargent repeatedly at school.)
Zavala said, "Let's get him," and the group walked up to Sargent. Zavala asked Sargent for his phone, but he claimed not to have one. Zavala punched him, and after the first punch Venegas and Siordia joined in and began hitting Sargent as well. Sargent tried to run away, but the group chased him. Zavala caught hold of Sargent's shoulder and stabbed him several times. Siordia and Venegas were close by, about an arm's length from Sargent.
Several people driving by witnessed the stabbing and rushed to aid Sargent. Zavala, Siordia, and Venegas fled and hid behind an abandoned couch. Zavala changed his shirt to avoid identification. He also wiped off and discarded the knife, now bent, that he had used to stab Sargent. Siordia and Venegas dropped or discarded their weapons as well. Siordia called a cousin, told him they had been involved in a fight, and asked him to pick them up. The cousin arrived and drove them to Venegas's house. Zavala took a shower, changed clothes, and left.
The passing drivers stopped and performed first aid on Sargent. They saw stab wounds on his chest and back. Although they tried to comfort him, Sargent said they should let him die. Emergency personnel arrived, and Sargent was transported by helicopter to a hospital.
As Sargent was being prepared for surgery, a Riverside County deputy sheriff asked him about the stabbing. Sargent told the deputy that three Hispanic men approached him, asked to use his cell phone, and then started punching and kicking him. Sargent said he had never seen them before. He said he tried to run, but one of the men stabbed him several times. Sargent saw blood and fell to the ground.
Sargent died during surgery. An autopsy revealed multiple stab wounds, three of which were potentially fatal: a wound on the left side of Sargent's chest that penetrated his aorta; a wound on the right side of his chest that cut through a large vein leading to his heart; and another wound to the right side of his chest that went through his lower lung, his diaphragm, and into his liver. Sargent had more than a dozen other injuries, including bruising on his scalp and some abrasions. The coroner concluded that Sargent's death was caused by the stab wounds and ensuing blood loss.
Investigators recovered Zavala's shirt, his knife, and Siordia's brass knuckles from the field where the group had fled. They later matched the knife to a set at Zavala's house. DNA evidence recovered from the knife matched Sargent's DNA profile. Zavala, Siordia, and Venegas were arrested.
Zavala and Siordia were jointly tried before two separate juries. Zavala was also convicted of first degree murder with a robbery-murder special circumstance. (§§ 187, subd. (a), 190.2, subd. (a)(17)(A).) He was sentenced to death, and his appeal is currently pending before the California Supreme Court. (People v. Zavala (S231195, app. pending).) Venegas agreed to testify against them at trial. He pleaded guilty to voluntary manslaughter and robbery in exchange for a sentence of 11 years in prison and dismissal of the remaining charges against him.
At trial, Siordia testified in his own defense. Although he admitted knowing that Zavala had been in prison for robbery, he said he was unaware of any plan to rob someone. Siordia said he believed the group was going to pick up some marijuana from his brother. He denied carrying brass knuckles or hitting Sargent. He said he told Zavala and Venegas to leave Sargent alone because Sargent was just a teenager. He claimed to have been standing across the street from Zavala and Sargent when the beating and stabbing occurred.
DISCUSSION
I
Siordia argues that the court's jury instructions did not adequately convey the requirement that the jury unanimously agree on first degree murder in order to convict him of that crime. Siordia claims this error led to two separate but related problems: first, the jury could have convicted him of first degree murder without unanimously agreeing whether Sargent's murder was first or second degree; and second, the jury could have convicted him of aiding and abetting first degree premeditated murder based on the natural and probable consequences doctrine, in contravention of People v. Chiu (2014) 59 Cal.4th 155 (Chiu).
For reasons we will explain, we conclude that even if the court erred, any such error was harmless beyond a reasonable doubt. The jury's special circumstance finding, that Sargent's murder was committed during the commission of an attempted robbery, shows the jury unanimously made the findings necessary for first degree felony murder. It forecloses the possibility that some jurors believed Siordia was guilty only of second degree murder or of first degree premediated murder based only on the natural and probable consequences doctrine.
The court provided instructions on two theories of first degree murder (premeditation and first degree felony murder) and two theories of second degree murder (malice aforethought and second degree felony murder). The court also instructed the jury on the natural and probable consequences doctrine, which the court intended to apply only to second degree murder.
The instructions, which were complex, referred in some instances to "first degree murder," in some instances to "second degree murder," and in some instances simply to "murder." For example, to explain the potential theories of first degree murder, the court instructed the jury using a version of CALCRIM No. 521, which stated in relevant part as follows: "The defendant has been prosecuted for first-degree murder under two theories: [¶] The murder was willful, deliberate, and premeditated; [¶] And two. Felony murder. [¶] Each theory of first-degree murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of first-degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not have to agree on the same theory." Similarly, to explain the potential theories of second degree murder, the court instructed the jury using a version of CALCRIM No. 548, which stated as follows: "The defendant has been prosecuted for murder under two theories: Malice aforethought and felony murder. [¶] Each theory of murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of murder unless all of you agree that the People have proved the defendant committed murder under at least one of these theories. You do not all have—need to agree on the same theory." The court used a version of CALCRIM No. 403 to instruct the jury on the natural and probable consequences doctrine, which the court said applied to "murder" without qualification.
As Siordia points out, courts have held that the version of CALCRIM No. 548 used by the court may be confusing under certain circumstances because the jury could misinterpret the phrase "theory of murder" to refer to degrees of murder. (See, e.g., People v. Johnson (2016) 243 Cal.App.4th 1247, 1279-1281 (Johnson); People v. Sanchez (2013) 221 Cal.App.4th 1012, 1019 (Sanchez).) In Sanchez, the jury was presented with a single theory of first degree murder and a single theory of second degree murder. (Sanchez, at p. 1019.) Under these circumstances, instructing the jury that they need not agree on a theory of murder was error because the theories of murder supported different degrees of murder. (Ibid.) In Johnson, this reasoning was extended to the situation where the jury was presented with two closely related theories of first degree felony murder (based on attempted kidnapping and attempted murder), as well as one theory of second degree murder, and the jury was expressly instructed using CALCRIM No. 520 that " '[i]f you find the defendant guilty of murder, it is murder of the second degree.' " (Johnson, supra, at p. 1280.)
CALCRIM No. 548 has been revised to clarify that the jury must unanimously agree on the degree of murder. It now reads, in part, "You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. 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]." The bracketed portion is intended to avoid the ambiguity Siordia identifies here.
The Attorney General disagrees that CALCRIM No. 548 was confusing in light of the instructions here, which told the jury that it had to agree unanimously on the degree of murder. For example, in another portion of CALCRIM No. 521, the court instructed the jury that "[t]he People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first-degree murder, and the murder is second-degree murder." The court also instructed the jury with a version of CALCRIM No. 640, which stated in part, "One. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first-degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms for that count. [¶] If all of you cannot agree whether the defendant is guilty of first-degree murder, inform me that you cannot reach an agreement, and do not complete or sign any verdict forms for that count."
The Attorney General criticizes Johnson's reasoning as flawed, including its skepticism that CALCRIM No. 520 resolved any ambiguity created by CALCRIM No. 548. The version of CALCRIM No. 520 provided by the court here read in part as follows: "If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree, as defined in CALCRIM instructions 521 and/or 540B."
We need not resolve these disputes or consider the Attorney General's criticism of Johnson because we conclude any instructional error was harmless. The standard in this context is harmlessness beyond a reasonable doubt. (See Johnson, supra, 243 Cal.App.4th at p. 1281; Sanchez, supra, 221 Cal.App.4th at pp. 1026-1027.) "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground. [Citations.] Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on [a] legally valid theory . . . ." (Chiu, supra, 59 Cal.4th at p. 167.) In other words, "[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary" to sustain a valid theory, the error is harmless. (People v. Chun (2009) 45 Cal.4th 1172, 1205.)
Here, the jury found true the special circumstance that Sargent's murder was committed while Siordia was engaged in an attempted robbery. (§ 190.2, subd. (a)(17)(A).) The jury was specifically instructed using CALCRIM No. 700 that this finding must be unanimous. Our Supreme Court has repeatedly held in analogous contexts that such a finding establishes beyond a reasonable doubt that the jury's verdict rests on the theory of first degree felony murder. (See, e.g., People v. Jones (2013) 57 Cal.4th 899, 966-967 (Jones); People v. Castaneda (2011) 51 Cal.4th 1292, 1328; People v. Moore (2011) 51 Cal.4th 386, 412; People v. Elliot (2005) 37 Cal.4th 453, 476; People v. Horning (2004) 34 Cal.4th 871, 906.) Because the jury's finding shows that its verdict rested on a valid theory of first degree felony murder, and it made the findings necessary to sustain that theory, any error in CALCRIM No. 548 was harmless beyond a reasonable doubt. (See Chiu, supra, 59 Cal.4th at p. 167; People v. Chun, supra, 45 Cal.4th at p. 1205.)
Indeed, given the jury's finding on the special circumstance, a lesser verdict of second degree murder was not legally available here. (See People v. Moore, supra, 51 Cal.4th at p. 412 ["Having found defendant killed [the victim] in the commission of robbery and burglary, the jury must also have found him guilty of first degree murder on those same felony-murder theories. The lesser offenses of second degree murder and manslaughter were not legally available verdicts if defendant killed [the victim] in the commission of burglary and robbery, as the jury unanimously determined he had."].) We can therefore conclude beyond a reasonable doubt that no juror believed Siordia was guilty only of second degree murder but erroneously agreed to a first degree murder verdict based on CALCRIM No. 548.
Similarly, given the jury's finding on the special circumstance, we may conclude beyond a reasonable doubt that it did not solely rely on an impermissible application of the natural and probable consequences doctrine (if it did so at all). As the Supreme Court explained, in an analogous context where instructions on premeditation were erroneously provided, " 'Those findings make it clear that whatever the jurors thought about premeditation, they agreed upon all of the elements necessary for a verdict of first degree murder based on a felony-murder theory.' [Citation.] Here . . . 'we can conclude that, at the very least, the jury reached its verdict of first degree murder . . . under one legally proper theory.' " (Jones, supra, 57 Cal.4th at pp. 966-967, italics omitted.) Here, for the same reason, whatever the jurors thought about the natural and probable consequences doctrine, they made the findings necessary for first degree felony murder as well. Any instructional error was therefore harmless beyond a reasonable doubt. (See ibid.; see also People v. Horning, supra, 34 Cal.4th at p. 906 ["If the jury had had any doubt that this was a felony murder, it did not have to acquit but could have simply convicted defendant of first degree murder without special circumstances. Instead, it found that defendant killed the victim in the perpetration of robbery and burglary, which means it necessarily found the killing was first degree felony murder."].)
Siordia claims the jury's special circumstance finding does not show the jury relied on a theory of first degree felony murder because the jury could have found that Siordia aided and abetted a first degree premeditated murder. But, as stated above, whatever the jury thought about premeditation, its special circumstance finding showed it made the findings necessary for first degree felony murder as well. (See Jones, supra, 57 Cal.4th at pp. 966-967.) Any error was therefore harmless. (Ibid.) The juror question and readback requests referenced by Siordia do not lessen the effect of this finding.
II
Siordia contends the evidence was insufficient to support the jury's robbery-murder special circumstance finding. "The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' [Citations.] The standard is the same under the state and federal due process clauses. [Citation.] We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (People v. Clark (2016) 63 Cal.4th 522, 610 (Clark).)
Where, as here, the defendant is not the actual killer and did not act with intent to kill, the jury may find the special circumstance true only where the defendant acts "with reckless indifference to human life and as a major participant" in the underlying felony. (§ 190.2, subd. (d).) "The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) The requirements of the statute are the same regardless of which penalty is ultimately imposed, whether it be death, life imprisonment without parole, or some other term of imprisonment. (Id. at p. 804.)
"The ultimate question pertaining to being a major participant is 'whether the defendant's participation "in criminal activities known to carry a grave risk of death" [citation] was sufficiently significant to be considered "major." ' " (Clark, supra, 63 Cal.4th at p. 611.) Our Supreme Court has identified the following nonexclusive list of factors that inform our analysis of this question: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Banks, supra, 61 Cal.4th at p. 803, fn. omitted; see Clark, at p. 611.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question . . . ." (Banks, at p. 803.)
Viewed in the light most favorable to the jury's finding, the evidence showed that Siordia was a major participant in the attempted robbery that led to Sargent's death. Siordia agreed in advance to a plan to rob someone and encouraged Venegas to take part. Siordia knew that a member of their group, Zavala, had already been in prison for robbery, so the plan was not simply idle speculation. Siordia armed himself with a pair of brass knuckles and therefore prepared to take part personally in any violence that would result. The group, including Siordia, searched for a victim over an extended period of time and deliberated where their chances of success would be best. Although Siordia may have shown some hesitation when Zavala identified Sargent as their victim, he joined Zavala and Venegas in surrounding Sargent and beating him after he refused to give Zavala his phone. Siordia chased Sargent as he tried to flee and stood an arm's length away from Zavala as he stabbed Sargent multiple times. Siordia did nothing to prevent the stabbing and or discourage Zavala, and he fled as soon as passersby arrived. He did not aid Sargent, distance himself from Zavala, or otherwise seek to mitigate the effects of the stabbing. Instead, having watched the stabbing, Siordia facilitated the group's getaway by calling his cousin and asking him to drive them home.
Siordia emphasizes, among other things, that the robbery was not his idea, that he did not carry a knife and did not know the others did, and that he did not do anything to "prompt" Zavala to use lethal force. While these facts somewhat lessen Siordia's culpability, we disagree that the jury's special circumstance finding was unreasonable for this reason. Siordia need not have participated in Sargent's killing; he need only have been a major participant in the underlying attempted robbery for this element of the special circumstance to be satisfied. Here, Siordia was physically present for the entire series of events leading to Sargent's murder and subsequent flight; he assaulted Sargent and chased him when he fled; he did nothing to prevent Sargent's murder and instead, through his presence an arm's length away, may have emboldened Zavala; he helped Zavala escape; and he did nothing to aid Sargent. He was one of three participants in these events, and the jury could reasonably find that his participation was major within the meaning of the statute. (See People v. Smith (2005) 135 Cal.App.4th 914, 928 ["The jury could have found beyond a reasonable doubt that [defendant's] contributions were 'notable and conspicuous' because he was one of only three perpetrators, and served as the only lookout to an attempted robbery occurring in an occupied motel complex."]; see also People v. Medina (2016) 245 Cal.App.4th 778, 792 (Medina).)
Siordia cites a number of authorities from other jurisdictions where jury findings of major participation were affirmed under more egregious circumstances. (See Flamer v. Chaffinch (D.Del. 1993) 827 F.Supp. 1079; State v. Henry (Ariz. 1993) 863 P.2d 861; Doleman v. State (Nev. 1991) 812 P.2d 1287; Van Poyck v. State (Fla. 1990) 564 So.2d 1066; State v. Robinson (Ariz. 1990) 796 P.2d 853; State v. Kills on Top (Mont. 1990) 793 P.2d 1273; Diaz v. State (Fla. 1987) 513 So.2d 1045.) These authorities are unhelpful because they do not establish whether other factual scenarios, not considered by those courts, would be sufficient to find major participation as well.
The evidence also supports the jury's finding on the element of reckless indifference to human life. These elements often overlap: " 'For example, we do not doubt that there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. Moreover, even in cases where the fact the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding.' " (Clark, supra, 63 Cal.4th at p. 615, quoting Tison v. Arizona (1986) 481 U.S. 137, 158, fn. 12 (Tison).)
In Clark, our Supreme Court comprehensively analyzed the element of reckless indifference to human life. It began with a definition of recklessness: "The Model Penal Code generally defines acting recklessly as follows: 'A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.' " (Clark, supra, 63 Cal.4th at p. 617, quoting Model Pen. Code, § 2.02, subd. (2)(c).)
"This definition encompasses both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.' " (Clark, supra, 63 Cal.4th at p. 617.)
"[U]nder the Model Penal Code definition, although the presence of some degree of defendant's subjective awareness of taking a risk is required, it is the jury's objective determination that ultimately determines recklessness. Therefore, it would be possible for the defendant to have engaged in apparent efforts to minimize the risk of violence but still be determined by the jury to have been reckless, given all the circumstances known to defendant surrounding the crime. Therefore we conclude that a defendant's good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life . . . ." (Clark, supra, 63 Cal.4th at p. 622.)
Our Supreme Court provided a nonexclusive list of factors that inform our consideration of this element: (1) the defendant's knowledge of weapons, and use and number of weapons; (2) the defendant's physical presence at the crime and opportunities to restrain the crime or aid the victim; (3) the duration of the underlying felony; (4) the defendant's knowledge of his or her cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of the violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-622; see In re Loza (2017) 10 Cal.App.5th 38, 52.) Again, " '[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' " (Clark, at p. 618.)
While the evidence did not show that Siordia knew that Zavala and Venegas carried knives, or that they were likely to kill someone during the robbery, the jury could nonetheless reasonably conclude that Siordia acted with reckless indifference to human life. He carried brass knuckles, which showed that he subjectively contemplated violence might occur during the robbery. When Sargent resisted, Siordia participated in the group assault against him. When Sargent ran, Siordia pursued him. And when Sargent was stabbed, Siordia stood by and did nothing to restrain Zavala or aid Sargent. "Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state . . . . [Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.' " (Clark, supra, 63 Cal.4th at p. 619.) Indeed, instead of restraining Zavala, Siordia enabled his escape. (See Medina, supra, 245 Cal.App.4th at p. 792 ["He helped [his cohort] escape and had no concern for the shooting victim."]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 ["[The defendant] fled together with his accomplices and the robbery loot, leaving the victim to die."].) From these facts, the jury could reasonably find that Siordia acted with reckless indifference to human life during the attempted robbery.
Siordia focuses on our Supreme Court's earlier articulation of the mental state required for reckless indifference: "Reckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 807.) This articulation has been overtaken by our Supreme Court's more nuanced discussion in Clark, which describes the subjective portion of this element as the defendant's conscious disregard for a substantial and unjustifiable risk of death. (See Clark, supra, 63 Cal.4th at p. 617.) In any event, the evidence of Siordia's actions before, during, and after Sargent's stabbing described above supports his subjective awareness that his participation in Sargent's attempted robbery involved a grave risk of death, in addition to a conscious disregard for a substantial and unjustifiable risk of death. Contrary to Siordia's claim, the jury could have reasonably made this finding even though he was only 17 years old at the time. (See Medina, supra, 245 Cal.App.4th at p. 793.)
Citing another portion of Banks, Siordia interprets the standard to require evidence from which the jury could have found that he subjectively appreciated that his actions were likely to result in the taking of innocent life. (See Banks, supra, 61 Cal.4th at p. 802.) Siordia is mistaken. This portion of Banks focused on the particular circumstances of the defendants in Tison, supra, 481 U.S. 137, and concluded that such subjective appreciation is sufficient, but it is not necessary. "The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. There is an 'apparent consensus that substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty' (Tison, [supra, 481 U.S.] at p. 154); accordingly, the death penalty may be applied to those who, like the Tisons, 'subjectively appreciated that their acts were likely to result in the taking of innocent life' (id. at p. 152)." (Banks, at pp. 801-802.) The Supreme Court expressly refused to "view the egregious actions of the Tison brothers as a constitutional minimum level of culpability for death eligibility." (Id. at p. 811.) Siordia has not shown that the evidence did not support the jury's special circumstance finding.
III
In a supplemental brief, Siordia argues that a recently enacted initiative on juvenile criminal procedure, Proposition 57, applies retroactively to him. Siordia points to provisions of Proposition 57 that eliminated the ability of the prosecution in certain circumstances to file criminal proceedings against juveniles directly in adult criminal court. The prosecution must instead file the case in juvenile court and seek an order transferring the case to adult criminal court. Because the prosecution directly filed these proceedings against Siordia in adult criminal court, he claims that Proposition 57 requires reversal of the judgment and remand for a transfer hearing in juvenile court.
This and a number of related Proposition 57 issues are currently raised in cases pending before our Supreme Court. (See People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017, S241647 (Mendoza) [Issue presented: "Are the provisions of Proposition 57 that eliminated the direct filing of certain juvenile cases in adult court applicable to cases not yet final on appeal?"]; see also People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, review granted May 17, 2017, S241231; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323 (Cervantes).) A different panel of this court recently examined Proposition 57 and concluded it was not retroactive. (People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, review granted September 13, 2017, S243072 (Walker).) For reasons we will explain, and pending further guidance from our Supreme Court, we agree with that conclusion.
"Beginning in March 2000 and continuing until the adoption of [Proposition] 57 . . . the district attorney was authorized, as a matter of executive discretion, to file a criminal action against a juvenile in certain defined circumstances, rather than filing the case in juvenile court, a practice known as 'direct filing' or 'discretionary direct filing.' " (Cervantes, supra, 9 Cal.App.5th at p. 596, review granted; see former Welf. & Inst. Code, § 707, subd. (d).) "Proposition 57 amended the Welfare and Institutions Code to mandate that any allegation of criminal conduct against any person under 18 years of age be commenced in juvenile court, regardless of the age of the juvenile or the severity of the offense. [Citation.] As amended by Proposition 57, Welfare and Institutions Code section 707, subdivision (a)(1) now specifies that the sole mechanism by which a minor can be prosecuted in adult court is through a motion by a prosecutor to transfer the case from juvenile court to adult court." (Mendoza, supra, 10 Cal.App.5th at p. 343, review granted.)
Proposition 57 was adopted by the voters after Siordia's conviction and while this appeal was pending. Siordia contends that under these circumstances Proposition 57 should apply retroactively to him. This is a legal issue that we consider de novo. (Mendoza, supra, 10 Cal.App.5th at p. 344, review granted.)
Siordia relies on three main arguments: (1) under Proposition 57, the adult criminal court acted in excess of its jurisdiction by proceeding against Siordia, effectively creating a defense to his prosecution; (2) Proposition 57 constitutes a reduction in punishment that must be applied retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada); and (3) the text and ballot materials relating to Proposition 57 show the electorate intended it to apply retroactively. We do not find these arguments persuasive.
First, Proposition 57 did not create a defense to the criminal charges against Siordia. (See Walker, supra, 12 Cal.App.5th at p. 703, fn. 19, review granted.) Instead, it altered the procedural rules governing juvenile cases. Even after Proposition 57, the adult criminal court retains subject matter jurisdiction over proceedings involving juveniles like Siordia. (Cervantes, supra, 9 Cal.App.5th at p. 598, review granted ["We conclude, for crimes that qualify the juvenile offender for transfer to adult court, subject matter jurisdiction is concurrent between the criminal division and the juvenile division."].) And, even taken on its own terms, Siordia's reasoning is circular. Siordia claims that the adult criminal court acted in excess of its jurisdiction under Proposition 57, but to reach that result we must assume Proposition 57 applies retroactively. We do not assume such a result.
Second, Proposition 57 is not a reduction in punishment and therefore does not require retroactive application under Estrada. As Walker explained, "Most fundamentally, Estrada does not apply because 'Proposition 57 does not mitigate the penalty for a particular crime.' " (Walker, supra, 12 Cal.App.5th at p. 703.) "While Proposition 57 will have a substantive impact on time in custody in some cases—sometimes a big impact—the transfer procedure required under Welfare and Institutions Code section 707 does not resemble the clear-cut reduction in penalty involved in Estrada. Although it is now the juvenile court, rather than the district attorney, that makes the decision whether a juvenile felon will be tried as an adult, we may presume that many cases filed in juvenile court will still end up in adult court (with adult penalties) under Proposition 57, after the fitness hearing is held. . . . More like the voir dire procedure in Tapia [v. Superior Court (1991) 53 Cal.3d 282], which affected who performed a particular function in the judicial process, Proposition 57 may or may not in some attenuated way affect punishment, but it is not a direct reduction in penalty as required for retroactivity under Estrada." (Cervantes, supra, 9 Cal.App.5th at pp. 601-602, review granted; see Walker, at pp. 703-704, review granted; Mendoza, supra, 10 Cal.App.5th at pp. 348-349, review granted.)
People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298, which reached a contrary conclusion, is unpersuasive for the reasons stated in Walker, supra, 12 Cal.App.5th at pages 704-705, review granted.
Third, the electorate did not intend Proposition 57 to apply retroactively. In Walker, this court comprehensively analyzed the text and ballot materials related to Proposition 57, including the materials Siordia cites here. (See Walker, supra, 12 Cal.App.5th at pp. 699-701, review granted.) We need not repeat that analysis. For the reasons stated in Walker, we conclude " 'the voters did not make their intent clear regarding retroactive application in the text of Proposition 57 nor can we clearly discern their intent from the voter information guide.' [Citation.] Accordingly, we must apply Proposition 57 prospectively, unless an exception to the presumption in favor of prospective application applies.' " (Walker, supra, at pp. 700-701, review granted; see Mendoza, supra, 10 Cal.App.5th at pp. 344-345, review granted.) As discussed immediately above, Siordia has not shown any such exception applies. Proposition 57 therefore does not apply retroactively to his criminal proceeding.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.