Opinion
B327469
12-28-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES RUSSELL CERNOGG, JR., Defendant and Appellant.
Edward H. Schulman, 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, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. TA085192 Sean D. Coen, Judge. Affirmed.
Edward H. Schulman, 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, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
James Russell Cernogg petitioned for resentencing under Penal Code section 1172.6, which limited accomplice liability for murder. After an evidentiary hearing under that section, the trial court found that Cernogg directly aided and abetted second degree murder with intent to kill. Cernogg appeals from the order denying his petition, contending there was insufficient evidence to support that finding. We disagree and accordingly affirm the order.
All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
I. Evidence underlying Cernogg's murder conviction
We have taken judicial notice of records of the prior appeals, including the record in Cernogg's direct appeal, People v. Cernogg (Dec. 9, 2009, B210684) [nonpub. opn.] (Cernogg I). (Evid. Code, §§ 451, 452, 459.)
The crime occurred in territory claimed by Elm Street Piru or Elm Lane Piru, a Compton gang.
On the evening of May 11, 2006, 12-year old Camilo H., 15-year old Michael Pimental (Pimental), and Michael M. (Michael) were hanging out with friends. At some point, Camilo and Pimental left and went to the area of Rosecrans and Poinsettia Avenues where Camilo began to spray paint-tag-his moniker, Dust, on a wall. According to a gang expert, tagging in a gang's territory is disrespectful to that gang and might lead to a retaliatory, violent confrontation. Previously, Camilo had tagged his moniker in the Elm Street Piru gang's territory, but someone had drawn a line through the moniker and written "Elm" above it. Crossing out someone's name or moniker is "basically" "canceling that person out."
While Camilo was tagging, Cernogg, an associate of the Elm Street Piru gang, was riding his bicycle in the area and asked the youths why they were writing on the wall. Camilo said," 'My bad.'" Cernogg told the boys to come with him, and they complied. Cernogg called or "chirped" someone and said," 'I got them right [here.]'" The person on the phone told Cernogg to hold the boys there. Cernogg told Camilo," 'I'm going to kill you and your mom.' "
Chirping refers to direct connect. Pushing a button on a direct connect phone instantly connects with another phone, similar to a walkie talkie.
Meanwhile, Michael was on his way to a store when he saw Cernogg approach Camilo and Pimental on a bike. Pimental asked Michael to go with them, but Cernogg asked Michael if he wanted" 'some problems, too'" and told Michael that he" 'might as well go back'" and" '[y]ou better go back.'" Michael testified at trial that Cernogg pulled up his shirt to reveal a black gun and said," 'I'm going to teach these little fools a lesson not to write in my hood again.' " Cernogg was acting "in a mean way." Michael was scared because the man had a weapon and "it wasn't looking good." Michael left.
Michael could not identify Cernogg as the man on the bicycle at trial.
Camilo testified that he did not hear Cernogg say this to Michael or see Cernogg with a gun.
When detectives later questioned Michael, he did not tell them that Cernogg displayed a gun.
Within minutes, Jeffrey Martin, an Elm Street Piru gang member, arrived. He held a gun, covered with a rag. Without saying a word, Martin pointed the gun at Pimental, who pleaded," 'No, don't shoot.'" From a distance of no more than three feet, Martin shot Pimental in the head, killing him. Cernogg ran, leaving his bicycle at the scene. Martin walked away in the same direction.
At Cernogg's trial for Pimental's murder, the People proceeded under and the jury was instructed on two theories of guilt: that Cernogg directly aided and abetted the murder, and that the murder was the natural and probable consequence of the target crime, felony false imprisonment. The jury convicted Cernogg of first degree murder (§ 187, subd. (a)) and found gang and principal firearm enhancements true (§§ 186.22, subd. (b), 12022.53, subds. (b), (c), (d), &(e)(1)). The trial court sentenced Cernogg to 25 years to life in prison for the murder, plus 25 years to life for the firearm enhancement.
II. The direct appeal
This Division affirmed Cernogg's judgment of conviction on direct appeal. (Cernogg I, supra, B210684.) Cernogg I concluded that the evidence was sufficient to show that Cernogg was guilty of murder either as a direct aider and abettor or under the natural and probable consequences doctrine. But after our Supreme Court concluded, in People v. Chiu (2014) 59 Cal.4th 155, that an aider and abettor cannot be guilty of first degree premeditated murder under the natural and probable consequences doctrine, we recalled the remittitur, reinstated the appeal, and concluded that the trial court had erred by instructing the jury on the natural and probable consequences doctrine. (People v. Cernogg (Sept. 3, 2015, B210684) [nonpub. opn.] (Cernogg II).)
On remand, the trial court reduced Cernogg's conviction to second degree murder and resentenced him to 15 years to life for the murder plus 25 years to life for the firearm enhancement.
III. Cernogg's petition for resentencing
In 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), Cernogg petitioned to vacate his second degree murder conviction. The trial court denied the petition. This Division reversed the order, finding that a court ruling on a section 1172.6 petition after an evidentiary hearing must act as an independent trier of fact and determine whether the evidence establishes beyond a reasonable doubt that the petitioner is guilty of murder under a still-valid theory. (People v. Cernogg (Mar. 12, 2021, B303218) [nonpub. opn.] (Cernogg III).) Because we could not discern whether the trial court applied the correct standard, we reversed and remanded for a new evidentiary hearing.
The People and Cernogg appealed, and our Supreme Court granted both petitions and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775. (People v. Cernogg (May 13, 2022, B303218) [nonpub. opn.] (Cernogg IV).) On reconsideration, we again reversed.
On remand, the trial court held a new evidentiary hearing. Cernogg did not testify or present new evidence at the hearing, electing to rely on the trial record, as did the People. In ruling, the trial court said it understood its role as an independent fact finder. As such, it focused on Camilo's and Michael's testimony. Noting that it was not the court that had presided over the criminal trial, the trial court nonetheless found Michael credible as to whether Cernogg had a gun. The trial court also found "telling" Cernogg's statement that he was going to kill Camilo and his mom. The trial court said, "I don't know how I would not be able to find beyond a reasonable doubt that Mr. Cernogg aided and abetted with intent to kill this murder." Accordingly, the trial court denied the petition for resentencing.
DISCUSSION
I. Overview of Senate Bill 1437 and standards of review
To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill 1437 limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 984, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that "to be convicted of murder, a principal in a crime shall act with malice aforethought" and malice "shall not be imputed to a person based solely on his or her participation in a crime"). As amended by Senate Bill No. 775, effective January 1, 2022, these ameliorative changes to the law now expressly apply to attempted murder and voluntary manslaughter.
Senate Bill 1437 also created a procedure, codified in section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under the current law. (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing at which the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under the law as amended by Senate Bill 1437. (Ibid.; § 1172.6, subds. (b)(3), (c), &(d)(1).) At the section 1172.6, subdivision (d)(3) evidentiary hearing, the parties may offer new or additional evidence. The trial court sits as an independent factfinder to determine beyond a reasonable doubt whether the defendant is guilty of murder under a valid theory. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
On appeal, we review the trial court's findings for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review we"' "examine 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 that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
Although Cernogg acknowledges the standard of review, he suggests we should apply a watered down version of it because the trial court did not preside over his criminal trial and made its findings, including credibility findings, on a "cold record." He suggests we should therefore be circumspect about giving deference to the trial court's credibility findings. However, he cites no authority for the notion that the trial court's credibility findings are not entitled to the usual deference. Instead, courts have rejected a similar argument that independent review should apply. (See, e.g., People v. Clements, supra, 75 Cal.App.5th at p. 301; People v. Njoku (2023) 95 Cal.App.5th 27, 43.)
People v. Vivar (2021) 11 Cal.5th 510, which Cernogg cites, does not support his argument. Vivar concerned section 1437.7, under which courts may vacate a conviction if a defendant shows a prejudicial error affecting the defendant's ability to meaningfully understand the immigration consequences of a plea. Vivar, at page 524, emphasized that while the inquiry whether counsel's immigration advice was inadequate and prejudicial involved mixed questions, the inquiry was predominately one of law. As such, independent review on appeal was proper. The court further noted that its decision applied only to section 1437.7, and nothing it said otherwise "disturbs a familiar postulate" that review under the substantial evidence standard requires appellate deference to the trial court's factual findings regardless of whether they are based on oral testimony or declarations. (Vivar, at p. 528, fn. 7.) Therefore, Cernogg's reliance on Vivar to show that the substantial evidence standard of review is inapplicable is unpersuasive.
II. Substantial evidence
Cernogg contends that there was insufficient evidence to support the trial court's finding he directly aided and abetted second degree murder with intent to kill. We disagree.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) "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))." (People v. Gentile, supra, 10 Cal.5th at p. 844.) "The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not." (People v. Soto (2018) 4 Cal.5th 968, 976.) Second degree murder therefore is an unlawful killing with malice aforethought but without the willfulness, premeditation, and deliberation required for first degree murder.
The guilt of an aider and abettor to a crime, including murder, is "based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "A person aids and abets the commission of a crime when [the person], (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Factors relevant to determining aider and abettor liability include the defendant's presence at the crime scene, companionship, and conduct before and after the offense. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
As the trial court here found, there was more than sufficient evidence Cernogg knew of and shared Martin's intent to kill. Both men were linked to the Elm Street Piru gang: Martin was a known member and Cernogg was a suspected associate. On catching Camilo and Pimental tagging in the gang's territory, Cernogg chirped Martin, who instructed Cernogg to hold the boys. Cernogg followed that order. By delivering the boys to Martin, Cernogg aided the crime. Cernogg also clearly stated his intent to Camilo:" 'I'm going to kill you and your mom.'" Cernogg's additional statement to Michael-that Michael had better leave unless he too wanted problems-further evidenced Cernogg's murderous intent. To underscore his intent, Cernogg lifted his shirt to reveal a gun and told Michael he was going to teach" 'these little fools a lesson not to write in my hood again.' "
The gang evidence further supported the conclusion that Cernogg and Martin acted with shared intent to kill Pimental. Camilo had previously tagged his moniker Dust in Elm Street Piru's territory, and the gang had noticed this because someone had crossed out the moniker. Inferentially, Cernogg and Martin were patrolling the area, perhaps even looking for taggers, because they had direct connect phones that allowed them to quickly communicate with each other, and they knew each other's location, as Cernogg did not have to tell Martin where to find him. Moreover, Cernogg told Martin that he had them" 'right here,'" and Martin clearly understood what Cernogg meant.
Cernogg responds by engaging in an improper reweighing of the evidence. He suggests that Michael was merely speculating he had a gun, because, first, Michael testified on cross-examination that from his point of view, "nobody would lift up their shirt for no reason. And if somebody pull up their shirt it's because they may have something." Second, Michael failed to tell detectives that Cernogg had a gun. Even so, Michael testified he saw Cernogg with a black gun, and the trial court, as the independent trier of fact, was entitled to and did believe that testimony. In any event, Cernogg places too much emphasis on whether he had a gun. While Cernogg's possession of a gun might buttress or evidence his intent to kill, it is not essential to it, especially in light of the other evidence, in particular Cernogg's repeated statements of his intent to kill. (See generally People v. Canizales (2019) 7 Cal.5th 591, 602 [intent to kill can be inferred from defendant's statements, actions, and circumstances around crime].)
Next, Cernogg argues that his reaction to the shooting- fleeing on foot and leaving his bike-shows that the murder surprised and shocked him and that he thought Martin was merely going to issue a stern warning. While the evidence could support that interpretation of events, it reasonably supports others. The trier of fact, for example, could believe that the speed and manner in which Martin quickly executed Pimental surprised Cernogg; but he was not surprised by the fact of the murder itself. Or Cernogg could have been surprised that Martin killed Pimental instead of Camilo, the actual tagger.
We therefore conclude that substantial evidence supports the trial court's conclusion that Cernogg directly aided and abetted second degree murder with intent to kill.
III. Jury trial
Cernogg next contends he is entitled to a new jury trial and, further, that the trial court should have evaluated his petition using the analysis applied when a trial court instructs on two theories of guilt, one correct and the other incorrect (see generally People v. Aledemat (2019) 8 Cal.5th 1). We need not reach the merits of these arguments and instead reject them for the following two reasons.
First, Cernogg raised, and we rejected, these contentions in Cernogg IV, supra, B303218. The law of the case doctrine prevents Cernogg from raising the contentions again. That doctrine prevents" 'parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.'" (People v. Boyer (2006) 38 Cal.4th 412, 441.) This procedural doctrine will not be applied where it would result in an unjust decision, for example, where there has been a" 'manifest misapplication of existing principles resulting in substantial injustice'" or where an intervening decision issued between the first and second appellate decisions has altered or clarified the decision. (People v. Gray (2005) 37 Cal.4th 168, 197.) The unjust decision exception does not apply where, as here, the appellant merely disagrees with the prior appellate determination. (Ibid.)
Second, that no injustice would result is underscored by Courts of Appeal uniformly rejecting similar contentions and holding that "section 1172.6 is an act of lenity in which the petitioner has no Sixth Amendment right to a jury trial." (People v. Schell (2022) 84 Cal.App.5th 437, 444; accord, People v. Silva (2021) 72 Cal.App.5th 505, 520; People v. Farfan (2021) 71 Cal.App.5th 942, 948; People v. James (2021) 63 Cal.App.5th 604, 608-609; People v. Howard (2020) 50 Cal.App.5th 727, 740; People v. Sanchez (2020) 48 Cal.App.5th 914, 920-921 [rejecting equal protection challenge]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.)
DISPOSITION
The order denying James Cernogg's Penal Code section 1172.6 petition is affirmed.
We concur: LAVIN, J. EGERTON, J.