Opinion
B320788
04-26-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ZEPPELLIN CASTRO, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. LA054207, Joseph A. Brandolino, Judge. Affirmed.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Daniel C. Chang, Deputy Attorneys General, Plaintiff and Respondent.
ROTHSCHILD, P.J.
In 2009, a jury convicted defendant and appellant Daniel Zeppellin Castro (Castro)-a member of the Tokers 13 gang- of first degree murder after he directed fellow Toker 13, David Martinez (Martinez), to shoot Juan Alonzo (Alonzo), a member of the rival Lennox 13 gang. The trial court sentenced Castro to 120 years to life in prison. Castro now asks us to reverse the trial court's order denying his petition for resentencing filed pursuant to Penal Code section 1172.6 (formerly section 1170.95). That section permits a defendant "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 resentencing. (§ 1172.6, subd. (a).)
Martinez is not a party to this appeal.
Unless otherwise specified, all statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10), without changing the statute's content. We hereafter cite to section 1172.6 for ease of reference.
Castro concedes that the jury did not convict him pursuant to the felony murder rule or the natural and probable consequences doctrine. He urges, however, that testimony from the prosecution's gang expert improperly invited the jury to impute to him the intent of "gang members in general," and to convict him on that basis. Castro argues further that a purported ambiguity in the aiding and abetting jury instructions permitted the jury to convict him based on Martinez's intent to kill Alonzo, even if the jury determined that Castro did not harbor the requisite malice aforethought for murder.
We disagree with both contentions and affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal. On November 14, 2022, we granted Castro's request that we take judicial notice of the record in the direct appeal of his conviction. (See People v. Castro et al. (Oct. 5, 2011, B218795) [nonpub. opn.] (Castro et al.).) Where appropriate, our factual and procedural summary draws on that record.
In November 2007, the district attorney charged Castro and Martinez with the murder of Alonzo and the attempted murders of Elva Diaz (Diaz) and Karen Coreas (Coreas), in connection with a November 28, 2006 incident in the heart of Lennox 13 gang territory. The charging document also asserted various gang and firearm allegations.
At the defendants' joint trial, the prosecution argued that Castro and Martinez confronted Alonzo and his companions outside an apartment complex. Castro asked Alonzo, "Where are you from?" When Alonzo replied, "Lennox," Castro-an "OG," or "old [Tokers 13] gang member"-directed Martinez, the more junior Toker 13, to "take it out and handle it." Martinez then drew a gun and fired five shots at Alonzo, fatally wounding him. Castro and Martinez fled.
As Diaz and Coreas attempted to aid Alonzo at the scene, Castro and Martinez returned to the location of the shooting in a blue Mustang. Castro pointed a gun out of the car's window, aiming first at Coreas and then at Diaz. Although the gun "clicked" as Castro squeezed the trigger, no bullets discharged, and Diaz and Coreas both survived the incident.
In support of its theory of the crimes, the prosecution introduced the expert testimony of Thomas Appleby, a patrol officer assigned to the gang enforcement detail of the Los Angeles Police Department's Van Nuys Division. He opined that, in the gang context, the question, "Where are you from?" is a "challenge" that typically leads to an "act of violence." He testified further that while such violence might consist of a homicide, in some instances it involves only a "fisticuff fight[ ]."
Finally, during closing argument, the prosecution emphasized that both Castro and Martinez possessed the express intent to kill Alonzo: "Implied malice is, you know, playing with dynamite in a mall[.] . . . [¶] . . . [T]hat is not what we are talking about here. We are talking about express malice. We are talking about that decision to kill."
The trial court instructed the jury on general aiding and abetting principles and direct aiding and abetting, using CALCRIM Nos. 400 and 401, respectively. In addition, the court instructed the jury on murder, including the requirements for a finding of first degree murder, through CALCRIM Nos. 500, 520, and 521. On April 8, 2009, the jury convicted both Castro and Martinez of the first degree murder of Alonzo. The jury also convicted both defendants of the attempted murders of Diaz and Coreas, and found true the gang and firearm allegations. The trial court sentenced Castro to 120 years to life in prison, and, on October 5, 2011, this court affirmed the defendants' convictions. (See Castro et al., supra, B218795.)
On November 5, 2020, Castro filed a petition for resentencing under section 1172.6, based solely on his murder conviction. The trial court appointed counsel for Castro. After reviewing the parties' briefing and conducting a hearing, the court denied the petition based on Castro's failure to establish a prima facie case for relief. Castro timely appealed.
Castro does not challenge his conviction for attempted murder.
DISCUSSION
A. Law Governing Section 1172.6 Petitions
Senate Bill No. 1437 "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1(f), p. 6674.) It accomplished this by amending section 188, subdivision (a)(3), to require that all principals to murder act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2, p. 6675.)
Effective January 1, 2022, Senate Bill No. 775 amended section 1172.6, expanding the scope of its relief to defendants convicted of murder based on any "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); People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).)
Defendants who fall within section 1172.6's parameters may seek the relief contemplated by the statute by "fil[ing] a resentencing petition . . . alleging they could not currently be convicted of murder because of the changes in the law required by Senate Bill No. 1437." (People v. Hurtado (2023) 89 Cal.App.5th 887, 891.) "If [a] petitioner ma[kes] a prima facie showing for relief, the trial court [is] required to issue an order to show cause for an evidentiary hearing." (Ibid., citing § 1172.6, subd. (c).) In assessing eligibility at the prima facie stage, the court"' "takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Lewis, supra, 11 Cal.5th at p. 971.) The court may deny the petition, however, if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Id. at pp. 970-972.)
Where, as here, a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (See People v. Drayton (2020) 47 Cal.App.5th 965, 981, overruled in part on another ground in Lewis, supra, 11 Cal.5th at pp. 962-970.)
B. Castro Is Ineligible for Section 1172.6 Relief as a Matter of Law
Castro is ineligible for section 1172.6 relief as a matter of law because the record of conviction establishes that the jury did not convict him of murder pursuant to the felony murder rule, the natural and probable consequences doctrine, or any other theory involving imputed malice. (See § 1172.6, subd. (a); Lewis, supra, 11 Cal.5th at pp. 957, 959.)
At trial, the prosecutor argued that Castro committed first degree murder by initiating the confrontation with Alonzo and then instructing Martinez to shoot him. And the prosecutor emphasized during closing argument that Castro and Martinez both acted with the intent to kill Alonzo.
The trial court did not instruct the jury on the felony murder rule or the natural and probable consequences doctrine. Instead, the court instructed that "[t]o prove that a defendant is guilty of [murder], the [prosecution] must prove that: [¶] . . . [¶] . . . When the defendant acted, he had a state of mind called malice aforethought." The instructions explained further that "[t]here are two kinds of malice aforethought, express malice and implied malice," and that "[t]he defendant acted with express malice if he unlawfully intended to kill."
In addition, with respect to the degrees of murder, the court instructed the jury: "If you decide that a defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] . . . [¶] All other murders are of the second degree."
Finally, the court instructed that, to convict a defendant under an aiding and abetting theory, the jury must conclude that the defendant "knew that the perpetrator intended to commit the crime," and that the defendant "intended to aid and abet the perpetrator in committing the crime."
Thus, in convicting Castro and Martinez of first degree murder, the jury necessarily concluded that both defendants acted with malice aforethought-a conclusion that renders Castro ineligible for section 1172.6 relief. (See People v. Cortes (2022) 75 Cal.App.5th 198, 205 [the appellate court "presume[d] a jury underst[ood] and follow[ed] the court's instructions"]; People v. Estrada (2022) 77 Cal.App.5th 941, 943 (Estrada) [petitioner convicted of first degree murder under direct aiding and abetting theory ineligible for section 1172.6 relief as a matter of law].)
Neither of Castro's arguments in opposition convinces us otherwise. Citing no supporting authority, Castro first argues that "the malice aforethought for murder was [improperly] imputed to [him] by virtue of Officer Appleby's testimony as to what gang members in general intend"- including that the question, "Where are you from?" in the context of rival gang interactions constitutes a "challenge" that typically precedes a violent act. Appleby, however, merely opined on the specialized meaning of particular terminology and phrases in the gang context. His testimony did not invite the jury to impute the intent of other gang members to Castro. To the contrary, the prosecution introduced Appleby's testimony to aid the jury in interpreting the meaning of Castro's own statements and, by extension, in assessing Castro's own intent.
Castro concedes that his argument "has not been addressed in any published case and admittedly is novel."
Notwithstanding the Attorney General's contention that Castro forfeited this point by failing to raise it below, we exercise our discretion to consider the argument. (See, e.g., People v. Denard (2015) 242 Cal.App.4th 1012, 1020 & 1030, fn. 10.)
Castro's second argument is similarly unpersuasive. He concedes that the jury "[did] not convict[ ] [him] of murder under either the felony murder rule or the natural and probable consequences doctrine." He nonetheless urges, relying primarily on People v. Langi (2022) 73 Cal.App.5th 972 (Langi), that "it is a distinct possibility that the jury found [him] guilty of murder because he knew Martinez intended to commit an assault but not a murder." In support of this argument, Castro points out that Appleby testified that the "Where are you from?" inquiry sometimes precedes a fist fight, rather than a homicide, and argues that the aiding and abetting instructions provided to the jury here suffer from the same ambiguity the First Appellate District identified in the Langi instructions.
Langi, however, is distinguishable. In Langi, a jury convicted the defendant of second degree murder, as one of four men who had beaten the victim to death. (Langi, supra, 73 Cal.App.5th at p. 975.) The appellate court reversed the trial court's summary denial of Langi's section 1172.6 petition, explaining that (1) the record did not conclusively establish that Langi had thrown the fatal punch, and (2) the combination of the CALJIC Nos. 3.01 and 8.31 pattern instructions provided to the jury created an ambiguity that permitted the jurors to convict Langi based solely on an impermissible theory of imputed malice.
The Langi court explained, in relevant part: "The aiding-and-abetting instruction stated that a person aids and abets a crime if he or she acts 'with knowledge of the unlawful purpose of the perpetrator, and . . . with the intent or purpose of committing or encouraging or facilitating the commission of the crime.' (CALJIC No. 3.01, italics added.) However, . . . the second degree murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death. Thus, while the perpetrator must have deliberately performed the fatal act 'with knowledge of the danger to, and with conscious disregard for, human life' (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator's purpose need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent." (Langi, supra, 73 Cal.App.5th at pp. 982-983.)
Here, in contrast, the jury convicted Martinez of first degree murder, meaning it necessarily determined that he acted with express malice aforethought. To the extent the jurors convicted Castro of murder as Martinez's aider and abettor, rather than as an actual perpetrator, CALCRIM No. 401 permitted them to do so only if they concluded that Castro "knew that [Martinez] intended to commit the crime"-i.e., murder- and "intended to aid and abet the perpetrator in committing the crime." The instruction provided further: "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." And "[a]bsent some circumstance negating malice[,] one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice." (See McCoy, supra, 25 Cal.4th at p. 1123.) The jury thus necessarily concluded that Castro acted with the requisite malice for murder.
"[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.... In [a] shooting case, one person might lure the victim into a trap while another fires the gun[.] . . . In [such a] case, both participants would be direct perpetrators as well as aiders and abettors of the other." (People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy), italics omitted.)
Castro urges that, in light of Appleby's testimony, the jury might have understood CALCRIM No. 401's reference to "the crime" as a reference to an "assault . . . or criminal threat[ ] rather than murder." But the plain language of CALCRIM No. 401 defeats Castro's argument. The instruction provides, in relevant part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] . . . The perpetrator committed the crime." (Italics added.) The italicized language-in particular, the use of the determiner "that" before the second instance of "crime"- makes clear that "a crime," "that crime," and "the crime" in the instruction all refer to the same crime (here, murder). Nor are we persuaded that CALCRIM No. 400's instruction that principals in a crime are "equally guilty" created the possibility that the jury here imputed Martinez's mental state to Castro. In People v. Johnson (2016) 62 Cal.4th 600, our Supreme Court explained that, by "instruct[ing] the jury with CALCRIM No. 401, which sets out the requirements for establishing aider and abettor liability," the trial court "cleared up any ambiguity arguably presented by CALCRIM former No. 400's reference to principals being 'equally guilty.'" (Johnson, supra, 62 Cal.4th at pp. 640-641.) Contrary to Castro's contention, nothing in Johnson suggests its reasoning on this point is limited to cases involving a single defendant, and the Court of Appeal decisions on which Castro relies for this proposition predate Johnson.
Accordingly, we conclude that the record of conviction establishes that the jury did not convict Castro pursuant to an impermissible theory of imputed malice. He therefore is ineligible for section 1172.6 relief as a matter of law.
DISPOSITION
We affirm the May 10, 2022 order denying Castro's section 1172.6 petition.
We concur: BENDIX, J., WEINGART, J.