Opinion
D080565
07-28-2023
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN NATHANIEL CORTEZ, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. SCS189535, Enrique E. Camarena, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
McCONNELL, P.J.
I
INTRODUCTION
In 2006, a jury convicted Adrian Nathaniel Cortez of first degree murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit assault with a deadly weapon (§ 182, subd. (a)(1)) after a fellow member of the Varrio Chula Vista (VCV) gang shot and killed Arturo Manzo, a member of a rival gang. In a prior habeas corpus proceeding, our court vacated Cortez's first degree murder conviction pursuant to People v. Chiu (2014) 59 Cal.4th 155 (Chiu), and remanded the matter to allow the People to accept a reduction of the conviction to second degree murder or retry Cortez on a still-permissible theory of first degree murder. (In re Cortez (July 14, 2017, D071551) [nonpub. opn.].) The People agreed to reduce the conviction to second degree murder, and Cortez was sentenced to an indeterminate term of 56 years to life in state prison.
All further undesignated statutory references are to the Penal Code.
In 2019, Cortez filed a petition for resentencing, arguing his murder conviction must be vacated because he could no longer be convicted of second degree murder under the State's current murder laws as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court held an evidentiary hearing and denied the petition. The court found Cortez was ineligible for relief because the evidence showed he was guilty beyond a reasonable doubt of second degree murder as a direct aider and abettor under an implied malice theory of liability.
On appeal, Cortez contends the appellate record does not contain substantial evidence to support the trial court's finding. We disagree. Therefore, we affirm the trial court's denial of relief.
II
BACKGROUND
The summary of facts is taken from the factual background section of our prior opinion adjudicating Cortez's direct appeal (People v. Cortez (Oct. 2, 2008, D049716, D050592) [nonpub. opn.]), and the reporter's transcript from Cortez's murder trial. The appellate record did not contain the trial records from the murder trial, but we take judicial notice of these records on our own motion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In 2004, after recently becoming the leader of the VCV gang, Cortez began stirring up trouble with a rival gang called Otay. In particular, Cortez and Benjamin Moreno, a fellow VCV gang member, shot at Otay gang members. In response, an Otay gang member shot-but did not kill- Moreno.
Soon after, a group of VCV members gathered for a meeting during which Cortez asked whether anyone would retaliate against Otay for Moreno's shooting. At trial, there was conflicting testimony as to what exactly Cortez asked his companions at the meeting. Raymond Pacheco, a VCV gang member, testified that Cortez said, "I want to know if anyone wants to put in work to shoot the guys from Otay." According to Pacheco, the term "put in work" can mean anything from killing someone to recruiting new members. Pacheco testified that he understood Cortez's request to mean "he wanted something to happen to somebody from Otay" because of Moreno's shooting. William Parra, another VCV gang member, testified that Cortez said something like, "[Moreno] got shot, and who is going to handle it?" Parra understood the request to mean Cortez wanted someone to retaliate against Otay.
VCV gang members Jahaziel Fausto and Jacob Sowder volunteered to retaliate, and Parra agreed to drive them. After the meeting, Cortez handed 17-year-old Fausto a gun without further discussion. Thereafter, Parra, Fausto, Sowder, and Pacheco drove into Otay territory looking for Otay gang members. They saw several people in a park, Parra parked the car, and Fausto exited the vehicle and approached the group. Fausto asked the group where its members were from, a reference to the group's gang membership. Manzo, a 16-year-old Otay gang member, responded he was from "Otay." Fausto shot Manzo with the gun Cortez had given him, and Manzo fell to the ground. Fausto continued to fire shots at Manzo while he was down. Manzo died at the scene as a result of the gunshot wounds. After the shooting, Fausto ran back to Parra's car and said, "The guy was from Otay. I got him." Parra drove Fausto, Sowder, and Pacheco back to their meeting place where Cortez was hanging out.
Cortez and Fausto were arrested and charged with conspiracy to commit assault with a deadly weapon (§§ 245, subd. (a)(1), 182, subd. (a)(1); count 1) and murder (§ 187, subd. (a); count 2) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The charging document alleged a principal in the murder personally used and discharged a firearm, proximately causing death. (§ 12022.53, subds. (b), (c), (d), (e)(1).) It also alleged Cortez suffered a prior conviction, which constituted a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12) and a prison prior (§§ 667.5, subd. (b), 668).
At trial, the jury was instructed on three theories by which it could find Cortez guilty of murder: (1) as a member of a conspiracy under the natural and probable consequences doctrine; (2) as an aider and abettor under the natural and probable consequences doctrine; or (3) as a direct aider and abettor. The jury found Cortez and Fausto guilty of both counts and found true all enhancement allegations attached to the counts. Cortez admitted the prior conviction allegations and was sentenced to an indeterminate term of 76 years to life in state prison.
B. Prior Appellate Proceedings
On direct appeal, this court affirmed Cortez's convictions but remanded the matter for resentencing purposes. (People v. Cortez (Oct. 2, 2008, D049716, D050592) [nonpub. opn.]; People v. Cortez (Apr. 14, 2010, D055056) [nonpub opn].) After multiple resentencing proceedings, the trial court sentenced Cortez to a term of 76 years to life in prison, a sentence we affirmed in People v. Cortez (Mar. 21, 2011, D058166) [nonpub. opn].
In 2017, Cortez filed a petition for writ of habeas corpus with our court claiming instructional error for his first degree murder conviction in light of Chiu, supra, 59 Cal.4th 155. In short, Chiu held that an aider and abettor may not be held liable for first degree premeditated murder under a natural and probable consequences theory. (Id. at pp. 158-159, 166.) This court granted the habeas corpus petition and remanded the matter with directions that the People agree either: (1) to reduce his conviction to a second degree murder conviction; or (2) to retry Cortez for first degree murder under a still-permissible theory of first degree murder. (Cortez, supra, D071551.) The People accepted the reduction of the conviction to second degree murder, and the trial court sentenced Cortez to 56 years to life in prison.
C. Resentencing Proceedings
In 2019, after the enactment of Senate Bill No. 1437, Cortez filed a petition to vacate his second degree murder conviction pursuant to section 1172.6. Initially, the trial court summarily denied the resentencing petition without issuing an order to show cause. However, on appeal, our court reversed the summary denial order and remanded the matter to the trial court with directions to issue an order to show cause and conduct further proceedings as required by the resentencing statute. (People v. Cortez (May 21, 2021, D077895) [nonpub. opn.].)
Senate Bill No. 1437 enacted section 1170.95, which was renumbered section 1172.6 without substantive change in the text. (Stats. 2022, ch. 58, § 10 [effective June 30, 2022].) We will refer to this statutory provision as section 1172.6 for the purposes of this opinion.
In June 2021, the trial court issued an order to show cause why the relief requested should not be granted. In response, the People argued there was ample evidence to find Cortez guilty as an aider and abettor to second degree implied malice murder. In reply, Cortez argued he was not liable for aiding and abetting implied malice murder because he neither shared the actual killer's intent to kill nor acted with conscious disregard for human life.
In May 2022, the trial court held an evidentiary hearing to determine whether Cortez still could be convicted of second degree murder under the amended murder statutes, sections 188 and 189. At the evidentiary hearing, the parties relied solely on the trial court records from the murder trial and did not present any new evidence.
The appellate record does not contain a reporter's transcript of the evidentiary hearing. But the trial court's written order describes the evidence that was introduced at the hearing.
Thereafter, the trial court issued a written order denying the resentencing petition. The court found that Cortez, though not the actual killer, "aided, facilitated, promoted, encouraged, and instigated the commission of the life endangering act, ... personally harbored the intention to aid ... the shooting of another, knew the act was dangerous to human life and acted in conscious disregard for human life." Therefore, the court found the prosecution proved beyond a reasonable doubt that Cortez was guilty of aiding and abetting implied malice murder.
III
DISCUSSION
Cortez appeals the denial of his resentencing petition and argues the evidence did not support the trial court's finding that he is guilty of aiding and abetting second degree implied malice murder. For reasons we will explain, we disagree.
A. Legal Principles
In 2018, the Legislature enacted Senate Bill No. 1437 to "more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) "Senate Bill [No.] 1437 significantly changed the scope of murder liability for defendants who did not actually kill or intend to kill anyone" by amending the murder statutes, sections 188 and 189, and adding a post-conviction resentencing procedure under section 1172.6. (People v. Wilson (2023) 14 Cal.5th 839, 868 (Wilson).)
Section 188 defines express and implied malice for the purposes of the offense of murder. Senate Bill No. 1437 modified section 188 to provide that, except in the case of first degree felony murder, all principals to a murder must act with malice aforethought, which "shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Specifically, "[n]ew section 188, subdivision (a)(3) precludes a conviction for 'second degree murder under a theory that the defendant aided and abetted a crime, the natural and probable consequences of which was murder.'" (People v. Vizcarra (2022) 84 Cal.App.5th 377, 387 (Vizcarra).)
Section 189 defines the degrees of murder. (§ 189, subds. (a), (b).) Senate Bill No. 1437 amended section 189 to limit felony-murder liability to any defendant who: (1) was the actual killer; (2) with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e)(1)-(3); Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also established a "procedural mechanism for those convicted of murder under prior law to seek retroactive relief" under the current murder laws. (Wilson, supra, 14 Cal.5th at p. 869.) The process begins with filing a petition under section 1172.6, declaring that "[t]he petitioner could not presently be convicted of murder ... because of [the] changes [made] to [s]ection 188 or 189" by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).) If a prima facie showing of eligibility for relief is met, "the court must issue an order to show cause (§ 1172.6, subd. (c)) and hold an evidentiary hearing at which the prosecution bears the burden 'to prove, beyond a reasonable doubt, that the petitioner is guilty of murder ...' under the law as amended by Senate Bill [No.] 1437 (§ 1172.6, subd. (d)(3)). In addition to evidence admitted in the petitioner's [murder] trial, both '[t]he prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Wilson, at p. 869.)
Following these legislative changes, aiding and abetting second degree implied malice murder remains a valid theory of liability. (People v. Gentile (2020) 10 Cal.5th 830, 850.)" '[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea.'" (People v. Reyes (2023) 14 Cal.5th 981, 990-991 (Reyes)) Under this theory of liability, the aider and abettor must by words or conduct aid the commission of a life-endangering act, have personal" 'knowlege that the perpetrator intended to commit [an act that is dangerous to human life], inten[d] to aid the perpetrator in the commission of the act, ... and act[] in conscious disregard for human life.'" (Id. at p. 991, italics omitted.)
We review the trial court's denial of a section 1172.6 petition for substantial evidence. (Reyes, supra, 14 Cal.5th at p. 988.) Under this standard, we"' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." '" (People v. Ghobrial (2018) 5 Cal.5th 250, 277.) We" '" 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" '" (People v. Clark (2011) 52 Cal.4th 856, 943.)" 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'" (Ibid.)" '" '" '" 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" '" '" '" (Ghobrial, at p. 278.)
B. Application
Cortez argues there was insufficient evidence to establish that he directly aided and abetted implied malice murder. We do not agree.
First, the appellate record supports the trial court's finding that Cortez "by words or conduct, aid[ed] the commission of the life-endangering act," the requisite actus reus for aiding and abetting implied malice murder. (Reyes, supra, 14 Cal.5th at p. 981, italics omitted.) As Parra testified at the murder trial, Cortez-the leader of the VCV gang-"had say-so over the little homies" in his gang to "tell them what to do ...." According to Pacheco, Cortez exercised this authority by affirmatively soliciting his "little homies" to "put in work to shoot the guys from Otay" in retaliation for the Otay gang's shooting of Moreno. Then, as Parra and Pacheco both testified at trial, Cortez handed a gun to Fausto, one of his gang member volunteers. Cortez's solicitation of gang members under his control to "put in work" for the shooting of Moreno, as well as his subsequent act of supplying the murder weapon to the actual killer, inarguably aided and abetted the commission of the shooting that followed. (See Vizcarra, supra, 84 Cal.App.5th at p. 392 [substantial evidence supported an implied malice murder conviction under an aider and abettor theory where the evidence showed the defendant instigated a deadly fight and solicited support to help him in the fight]; People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502 [sufficient evidence supported a finding of aiding and abetting implied malice murder because the evidence established that the defendant initiated a fight, solicited a known gang member, and arranged the subsequent armed fight that resulted in the victim's death].)
Second, substantial evidence in the appellate record establishes the trial court's finding that Cortez personally harbored the requisite mens rea: the" 'knowlege that [Fausto] intended to commit [an act that is dangerous to human life], intent to aid [Fausto] in the commission of the act, ... [and] conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th 981 at p. 991, italics omitted.) Given that a defendant is unlikely to provide direct evidence of his mental state," 'implied malice may be proven by circumstantial evidence.' [Citation.] 'The very nature of implied malice ... invites consideration of the circumstances preceding the fatal act.'" (Valenzuela,, supra, 73 Cal.App.5th at p. 502.)
Substantial evidence supported a reasonable finding that Cortez knew Fausto intended to shoot an Otay gang member and, furthermore, that he intended to aid Fausto in the commission of the shooting. At trial, Pacheco testified that the rivalry between the Otay gang and the VCV gang had "died down" before Cortez assumed leadership of the gang. However, as Pacheco and Parra both testified, Cortez ramped up the gang rivalry by shooting at Otay gang members, who in turn retaliated by shooting Moreno. According to Pacheco, Cortez then held a meeting during which he asked for volunteers "to put in work to shoot the guys from Otay." As Pacheco explained, the term "put in work" can mean "killing somebody." At trial, Fausto similarly testified that "put in work" can mean "shooting rival gang members." After Fausto and others volunteered to "put in work," Pacheco and Parra witnessed Cortez hand Fausto a gun-strong circumstantial evidence that Cortez knew Fausto would shoot an Otay gang member and that he intended Fausto to commit a shooting when he asked Fausto to "put in work" for the gang.
Collectively, the evidence that Cortez reignited an increasingly dangerous and aggressive gang rivalry marked by retaliatory shootings, solicited his subordinate gang members "to put in work to shoot the guys from Otay," and supplied one of his volunteers with the firearm later used in the shooting constituted powerful circumstantial evidence that Cortez harbored the necessary mens rea for aiding and abetting second degree implied malice murder. (Italics added.) Indeed, the trial court drew reasonable, well-supported inferences from this evidence when it found Cortez knew Fausto intended to shoot an Otay gang member, intended to assist Fausto in the commission of the life-threatening shooting, and, in doing so, displayed conscious disregard for human life.
IV
DISPOSITION
The order is affirmed.
WE CONCUR: IRION, J., RUBIN, J.