Opinion
E079265
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROBERT GENTILE, JR., Defendant and Appellant.
Eric R. Larson, 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, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1401840 Bernard Schwartz, Judge. Reversed.
Eric R. Larson, 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, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Introduction
Defendant Joseph Gentile was convicted of murder in connection with the beating death of Guillermo Saavedra. The prosecution's star witness was defendant's ex-wife, who was granted immunity in return for her testimony. On direct appeal, we reversed the conviction for instructional error pursuant to the Supreme Court decision in People v. Chiu (2014) 59 Cal.4th 155, because the jury was instructed it could convict defendant under a natural probable consequences theory and remanded the matter for the People to decide whether to accept a reduction to second degree murder, or to retry defendant for first degree murder under theories other than natural and probable consequences. (People v. Gentile (Feb. 27, 2017, E064822) [nonpub. opn.] (Gentile I).) We did not reach Gentile's other claims.
On remand, the People accepted the reduction to second degree murder and defendant was resentenced to an indeterminate term of 15 years to life. Defendant appealed following this judgment, raising the issues we had left undecided in the first appeal, affirming the judgment as modified by reducing court facilities assessments. In the meantime, Senate Bill No. 1437 was signed into law, which, effective January 1, 2019, amended the Penal Code to modify accomplice liability for murder and the felonymurder rule. (Stats. 2018, ch. 1015.) He also sought leave to file a supplemental brief arguing that Senate Bill No. 1437 applied retroactively to his conviction and that it eliminated second degree murder liability under a natural and probable consequences theory. We rejected Gentile's arguments and affirmed his second degree murder conviction. (People v. Gentile (Nov. 15, 2018, E069088) [nonpub. opn.] (Gentile II).)
The Supreme Court granted defendant's petition for review and transferred the case to this court to reconsider Gentile's second degree murder conviction in light of Senate Bill No. 1437. (People v. Gentile, S253197, Supreme Ct. Mins., Mar. 13, 2019.) On reconsideration, we again affirmed Gentile's second degree murder conviction. (People v. Gentile (May 30, 2019, E069088), review granted and opn. ordered nonpub. Sept. 11, 2019, S256698 (Gentile III).)
The Supreme Court again granted review, reversing our decision on December 17, 2020. (People v. Gentile (2020) 10 Cal.5th 830, (Gentile IV).) The Supreme Court held that Senate Bill No. 1437 bars a conviction for second degree murder under the natural and probable consequences theory and that the procedure set forth in Penal Code section 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of Senate Bill No. 1437 do not apply to nonfinal judgments on direct appeal. (Gentile IV, supra, at p. 839) Pursuant to the Supreme Court's directions, we vacated our decision, and, after additional briefing by the parties, we affirmed the second degree murder conviction without prejudice to any petition for relief defendant may file pursuant to Penal Code section 1170.95. (People v. Gentile (Mar. 1, 2021, E069088) [nonpub. opn.] (Gentile V.).)
This appeal is from the superior court judgment denying defendant's Penal Code section 1170.95 (renumbered to Penal Code section 1172.6) following an evidentiary hearing. We reverse and remand for additional findings.
Background
We recite the facts of the crime as set forth in the Supreme Court's decision in Gentile IV, supra, 10 Cal.5th 830, with supplemental information respecting later proceedings.
A. Evidence Adduced at the Original Trial.
In June 2014, Guillermo Saavedra was found beaten to death inside La Casita restaurant in Indio where he lived and worked as the caretaker. Near his body was a broken chair, a broken beer bottle, a wooden stick, and a broken golf club with Saavedra's blood on it, as well as bloody shoe and sock prints. Also found in the restaurant were cigarette butts containing DNA from defendant Joseph Gentile, Jr., his ex-wife Saundra Roberts, and Saavedra.
Around 1:00 a.m. the day before Saavedra's body was found, surveillance footage captured Gentile wandering around the nearby Royal Plaza Inn. Several minutes later, another camera outside a laundromat next to the Royal Plaza Inn showed Gentile with Roberts and Roberts's boyfriend Stephen Gardner. When a detective retraced Gentile's steps from the surveillance footage, he found a bloody sock containing Saavedra's DNA as well as DNA consistent with Gentile's profile.
Gentile was charged with one count of first degree premeditated murder (Pen. Code, § 187, subd. (a)) with sentencing enhancements for personal use of a deadly weapon (Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and for one prior conviction (Pen. Code, § 667.5, subd. (b)).
At trial, the prosecution and Gentile presented dueling accounts of the events surrounding Saavedra's death. Saundra Roberts was the primary witness for the prosecution. She testified that on the day Saavedra was killed, Roberts, Gentile, and Saavedra met at La Casita restaurant. The three talked and drank alcohol there into the evening. At one point, Gentile and Saavedra got into an argument, but they remained friendly and there was no violence. After several hours, Roberts felt drunk and left to go sleep at a homeless encampment about one block away. When Roberts woke up around 1:00 a.m. or 1:30 a.m. that night, she went to a nearby convenience store and saw Gentile across the street in the parking lot of the Royal Plaza Inn. Roberts approached Gentile and saw that his shirt was wet. Roberts recalled Gentile saying that he had gotten into a fight with a man, that he "hurt him pretty bad," and that he "might have killed" him. Roberts called Gardner and asked him to bring a spare set of clothes, which he did. When Gardner arrived and realized that the clothes were for Gentile, he became angry and left. Roberts said she then left and did not see Gentile again.
Gentile provided a different account to the police. He said that when he arrived at the restaurant to meet Roberts, there was a man there he had never met. Roberts told Gentile that she was staying at the restaurant with the man. At some point, Roberts also told Gentile that the man had "been raping" her. Gentile then punched the man several times but did not use any weapon. Roberts then said the man would never rape her again, and she began hitting him with what Gentile thought was a sledgehammer. Gentile took the weapon away from Roberts, but she retrieved it and resumed hitting the man. Gentile took the weapon away from Roberts a second time, threw it to the ground, and left the premises. Gentile denied ever striking the man with a weapon.
Gentile's friend Charlotte Sullivan testified that Gentile was scheduled to visit her in Imperial Beach during the Fourth of July weekend in 2014. In late June, around the time that Saavedra was killed, Gentile called to ask if he could come out earlier than planned. When she agreed, Gentile came out later that same day. When he arrived, Gentile's hands were swollen, but he did not initially mention anything about being in or witnessing a fight. Eventually, Gentile told Sullivan that he had gotten into a fight with another man. He said that he was drunk, and that Roberts had told him the other man had raped her. Gentile said he punched the other man a few times, but eventually the man apologized, and Gentile stopped hitting him. At that point, Gentile said, Roberts had picked up a club and started hitting the man with it.
Gentile was arrested at Sullivan's residence on June 28, 2014. Sullivan testified that a day after the arrest, Roberts called her and said that the man who was killed had raped her, and that Gentile got upset about it. Roberts also said that Gentile and the man got into a fight and that she left before anything else happened. Further, according to Sullivan, Roberts said that she later went back to the restaurant, "bleached everything," and cleaned up the mess.
The trial court instructed the jury on three separate theories of first degree murder: (1) that Gentile was the direct perpetrator of the murder; (2) that he directly aided and abetted Roberts in the commission of murder; and (3) that he aided and abetted Roberts in the commission of felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the natural and probable consequence of which was death. During deliberations, the jury asked the court, "Are fists considered a deadly weapon?" The court responded, "No." The jury then convicted Gentile of first degree murder and found not true that he personally used a deadly weapon. The prosecution dismissed the prison prior, and the court sentenced Gentile to 25 years to life in prison. (Gentile IV, supra, 10 Cal.5th at pp. 839-841.)
This description in the Supreme Court's opinion inaccurately refers to the instructions as pertaining to "three separate theories of first degree murder," whereas the instructions themselves do not address degree; they simply refer to theories of murder. The instruction explained that defendant could be guilty of murder if he directly committed the assault with a deadly weapon while the coparticipant committed the murder, where a reasonable person in the defendant's position would have known that the commission of Penal Code section 187 was a natural and probable consequence of the commission of the Penal Code section 245, subdivision (a)(1). (CALCRIM Nos. 402, 403.)
B. Post-Trial Proceedings.
On direct appeal, we reversed that conviction because the court had instructed the jury on the natural and probable consequences doctrine, in violation of the holding in People v. Chiu, supra, 59 Cal.4th 155. On remand, the People opted to accept a reduction of the conviction to second degree murder, and defendant was sentenced to 15 years to life, following defendant's first appeal.
Following a series of appeals and petitions for review, leading to the Supreme Court decision in Gentile IV, supra, 10 Cal.5th 830, defendant filed a petition pursuant to Penal Code section 1172.6 in the superior court on January 21, 2021, alleging he was convicted under the natural and probable consequences theory, and was granted an evidentiary hearing. An evidentiary hearing as conducted over several hearing dates at which defendant and his ex-wife, Saundra Roberts, both testified.
C. Evidence Adduced at the Penal Code section 1172.6, subdivision (d) Evidentiary Hearing.
Prior to hearing new evidence, but after the court had reviewed certain portions of the trial transcripts (a large part), as well as the defendant's petition, the People's response thereto, as well as the People's order to show cause brief and the defendant's reply, the trial court concluded there was nothing in the record to support the conclusion that the jury convicted defendant on the theory he aided and abetted the murder. Defense counsel took issue with this statement arguing that in the first appeal, the People had conceded there was no basis on which to conclude that Gentile had directly aided and abetted the murder, yet now the People had adopted a new theory. The trial court observed it was not bound by the statements of counsel; instead, it would rely on the facts of the case, as an independent factfinder. The defendant requested, and the court granted a continuance to conduct additional investigation relating to witnesses, and to secure the attendance of witnesses to testify at the hearing.
When proceedings resumed, Saundra Roberts was called to testify. Roberts had a poor memory of the events that occurred in 2014 because she was on drugs. However, she recalled the occasion in which she, the victim, and defendant were together at the restaurant that the victim was watching. Although she did not recall, she admitted it was possible she told defendant that the victim had raped her. Defendant and the victim argued, so Roberts left on her bicycle because she did not like confrontation. She did not recall defendant punching the victim three times in response to the information that she had been raped. She denied picking up an object and striking the victim. She went to the camp where she was staying. She denied going back to the restaurant and arguing with the victim. She did not recall telling anyone at the liquor store that she had seen the victim. She denied going back to the restaurant and finding the victim dead. She did not recall seeing defendant pick up anything with which to strike the victim. She did not recall going to Stephen Gardner's residence after the incident.
On cross-examination, Roberts recalled that she was living in poor circumstances in 2014 and that the victim had opened the restaurant for her. She also recalled that Stephen Gardner abused her and made her life miserable. The restaurant was her "safe place."
Her memory of interviews by law enforcement officers after the murder was also poor, and because of her drug use at that time, she could not say she was truthful in her statements to police during the investigation. She agreed she made alcoholic drinks for defendant and the victim and that they sent her to the liquor store a few times for beer. She had no memory of any altercation beyond a verbal argument that occurred between defendant and the victim. She did not recall seeing the defendant at a laundromat or at a hotel, or seeing him at all, later on the morning after she had left the restaurant to return to her camp. She did not recall ever hitting the victim.
After Roberts testified, the People informed the court it would not proffer new evidence, but, instead, relied on the record of conviction and the testimony adduced at the hearing. The defendant informed the court he wished to testify, against the advice of his attorney.
Defendant testified that on Friday, June 20th, Roberts came by the shop where he worked and begged him for help because her boyfriend was beating her up. She wanted to move her stuff from Gardner's storage unit and move her property to an abandoned restaurant. Defendant asked a co-worker to help her because defendant's hands were crippled. Defendant's hands had been seriously injured approximately a year before the murder, leaving him unable to push or pull anything heavy. As a result of the injuries, defendant does not drive.
Defendant also testified that Roberts came to the shop where he worked on Saturday morning.
Defendant and Saundra discussed getting together after defendant got off work, which made defendant hopeful she intended to get clean and sober. Defendant informed Roberts that he had made plans to take a few weeks off for vacation to go down to Imperial Beach, in San Diego County, to visit their mutual friend Charlotte Sullivan. He intended to take Roberts to Sullivan's residence and pay Sullivan to keep an eye on Roberts.
Later on Friday, defendant obtained a ride from his friend Ed Cordero to meet Roberts and was dropped off at a liquor store. Before leaving, defendant and Ed drank half a pint of alcohol. Roberts told defendant that she wanted him to meet her friend Bill, the victim, who was taking her in, and they walked in the direction of the La Casita restaurant. When they arrived at the restaurant, the door was locked but a car was parked outside. They banged on the door until a man and a woman exited and left in the car.
Inside the restaurant it was hot and smelled as if they had been smoking "dope." Defendant saw evidence of a drug transaction involving what he suspected to be methamphetamine. He observed a giant bag of methamphetamine, a scale, and plastic baggies on a table. Defendant, who had just been introduced to the victim, suggested going outside. They went to a grassy area outside where the victim suggested that Roberts go get them some beer. Defendant gave her money to purchase the beer, which they drank in the grassy area in front of the restaurant.
The police reports do not indicate the presence of any drugs or sales paraphernalia inside the restaurant.
At some point while Roberts was gone, the victim offered defendant a hit of methamphetamine from his pipe, blowing smoke in the defendant's face, but defendant knocked the pipe from his hand, and the two engaged in a "little tussle." The victim tried to hit defendant, but defendant "made sure he didn't hit [defendant] anymore," by slapping the victim "a couple of times." After that, the victim apologized and laughed, and when he calmed down they talked. Defendant denied punching the victim because he was unable to do so.
When Roberts returned with the beer, the victim said something to her. Then the victim started talking "real mad" to Roberts. They shared a pipe, so defendant decided he had had enough and wanted to leave. Roberts and the victim talked and argued some more, and then Roberts grabbed a stick (or more likely a branch) and started "whacking" the victim. Defendant laughed, but Roberts accused the victim of raping her and asserted he would never do so again. The victim laughed and said she was a drug addict and a whore. However, the victim apparently also told defendant that the contraband was present because the victim intended to make a fortune selling drugs and that Roberts was helping him. Defendant decided to leave. He denied smoking a cigarette inside the La Casita restaurant or drinking anything inside the restaurant; he had only the can of Coors that Roberts purchased with the money he gave her.
Defendant next walked to a taco place approximately two blocks from the La Casita restaurant where he sat on the patio and smoked a cigarette. At this point in his testimony, defendant was asked about being interviewed by investigators after his arrest in Imperial Beach. Defendant recalled telling them he went to the restaurant with Roberts, that Roberts had told him the victim had raped her, and that in response he had hit the victim a couple of times. However, he denied they asked him about the "scene [he] had just painted" for the court and had no explanation for omitting the part about the methamphetamine. He also acknowledged he made the statement that he punched the victim two or three times in the face, but indicated he only said that after the investigators said that men do not slap and maintained he was unable to make a fist. He indicated that the blows with his hand or fist occurred outside the restaurant, and that he was never inside the restaurant for more than a minute.
Defendant also indicated it was the investigators who suggested the victim looked like he had been hit with a sledgehammer, but that he only responded by saying, "What?" He went on to say the investigators told him the victim was beaten with wooden chairs and golf clubs. Defendant's only reaction to their statements was to say, "Golf club? What - - what golf clubs? . . . There was chairs in the restaurant, but I don't know you're talking about, golf club."
At his trial, a tape of his statement was admitted into evidence and played for the jury. In the statement, defendant says, "And you guys saying it's a golf club. I thought it was a sledgehammer. And I took it away from her. I pulled it away and threw it on the ground." Seemingly, it was defendant's perception that a sledgehammer was used. He went on to tell the detectives that he hit Saavedra with fists. "Maybe three or four good ones." He denied hitting Saavedra with the golf club or any object.
Defendant denied drinking anything other than a beer and indicated he did not drink it inside the restaurant. Defendant left the restaurant a few minutes after Roberts began striking the victim with the stick. Defendant's hands were not injured from slapping the victim. At about 8:00 p.m., he left the restaurant and went to a Del Taco where he smoked a cigarette on the patio. A short time later, Roberts came by. They agreed to talk later, and defendant told her that when she was ready to get sober, he would help. Roberts left to either return to her camp or to go back to the restaurant. That was the last time defendant saw Roberts until Sunday morning. He never saw the victim again, either, and did not drink alcohol with the victim inside the La Casita restaurant.
Defendant then proceeded to another Mexican restaurant for dinner and stayed there till closing time, approximately 12:30 a.m. or 1:30 a.m. Defendant left with two girls with whom he had been flirting at the restaurant, and went to their house, where he stayed until around 8:00 a.m. the next morning (Saturday), and then got a ride from them.
Defendant denied going back to the La Casita restaurant later Friday night, or on Saturday or Sunday. He went to the Royal Plaza hotel at approximately 2:00 a.m. on Sunday morning, but was unable to get a room, so he left with his bags. When he got to the street, he saw Roberts, who waived him over. He was wearing shorts, a Hawaiian shirt, and flip-flops. Roberts was near a laundromat next to the hotel, and claimed she was hiding from her boyfriend Steve, who was tracking her through her cell phone. Then Steve drove up. Steve got some clothing out of the van: tie-dye shorts, some ladies shorts, and one bloody sock, and threw the items on the ground. Then Steve called defendant some names and drove off.
"Bloody, I guess, according to the DA or whatever." Defendant later described it as dirty, and brown, but because the trial testimony referred to the police locating a single bloody sock, he made the association that it was bloody. At trial, during closing argument, the prosecutor drew the jury's attention to the video of defendant leaving the Royal Plaza Hotel at 1:03 a.m., wearing what appeared to be shoes and socks, but that at 1:30, he was not.
Defendant handed the items to Roberts and told her to pack her stuff, handing her one of the duffle bags he had with him. He instructed her to contact Charlotte when she was ready to sober up. Then defendant took his backpack and left, heading for San Diego after contacting his friend Ed.
Defendant attributed the condition of his hands to the type of work he did, explaining they get cut and bruised every day.
This contradicted his earlier testimony that due to the crippled condition of his hands he did supervisory work only.
On cross-examination, defendant explained that after getting off work on Friday, June 20th, he got a ride home with one of his roommates (who were also his co-workers) where he cleaned up, and then got a ride from Ed Cordero to meet Roberts. Defendant denied that he was going to meet up with Roberts to have sex with her, as Ed had testified at trial. He indicated he had not seen Roberts for 16 months.
This statement was contradicted by the trial record, where the manager of the Royal Plaza Hotel testified defendant and Roberts frequently rented a room there recently, and on a regular basis.
Defendant also denied smoking a cigarette inside the La Casita restaurant when he briefly entered it with Roberts. When confronted with exhibits depicting the interior of the restaurant, with an ashtray in which cigarettes were found, defendant did not recall putting out a cigarette inside the restaurant although he had lit a cigarette outside upon arrival. However, one of the cigarettes found in the ashtray inside the restaurant had defendant's DNA on it.
Defendant admitted that in his initial interview with police following his arrest, defendant stated he started hitting the victim, more than a couple of times but only with his hands, after Roberts told him the victim had been raping her. He also admitted saying he might have kicked the victim as well. He denied telling the police that after Roberts made the statement about the rape, she stated the victim would never rape her again and started hitting the victim with a sledgehammer or golf club.
When asked about his statement to police that he took the sledgehammer away from Roberts and threw it on the ground, defendant testified he took the stick away from her. He denied ever saying Roberts used a sledgehammer and denied ever seeing a golf club or hitting the victim with a golf club. He did not know anything about a sledgehammer or golf club until shortly before the informal interview with police after his arrest in Imperial Beach when the officers described how the victim appeared to have been beaten with such implements. He also denied giving his cell phone to Roberts. He did admit telling the officers he had not killed anyone since Vietnam and that he had covered for someone else, but indicated he was drunk when they interviewed him.
Apparently, defendant lied about serving in Vietnam. He was drafted, but never served in the armed forces.
After having an opportunity to review the transcript of his statement to officers, defendant admitted telling them he did not kill the victim, he covered for someone else, and that he was tired of taking the rap for Roberts, as well as saying that he was over it, so he hit him a couple of times. He also admitted telling the officers he went to Susan Champion's house after the event at the La Casita, that he walked down Jackson and that he packed up some clothes and got a ride to the beach from Ed. However, he denied that he actually went to Susan's house after the event, because the distance was too far to walk.
After some back-and-forth about whether the encounter with the victim occurred on Friday night (as defendant maintained) or on Saturday, defendant insisted the victim was happy and stoned when defendant left on Friday evening and denied killing the victim.
On redirect, defendant acknowledged smoking a cigarette but maintained he did so outside; he had no recollection how the cigarette with his DNA came to be inside the restaurant. His counsel showed him a photo of a trash can in which there were two Budweiser cans and one photo showing a Bud Ice bottle, but defendant denied purchasing any Bud Ice. He also denied picking up, using, or breaking any bottle of beer, when showed a photo of a broken Bud Ice bottle with red matter on it. Other than the beer defendant, Roberts and the victim were drinking, defendant said there was no hard alcohol.
Defendant also indicated that the bloody shoe prints found at the scene of the murder were not from his shoes. He denied handling the chairs inside the restaurant on which blood had been smeared. He denied that the cell phone found outside the restaurant was the phone he had given to Roberts or his own phone.
Defendant admitted he lied to police when he told them he went to his residence immediately after leaving the restaurant where Roberts and the victim were, but instead went to the Del Taco restaurant. He did not return to his residence until Saturday, when the two girls dropped him off. It was not till Sunday that he had his bags and encountered Roberts. Although he denied going to the hotel when asked by the prosecutor, defendant indicated he misunderstood the question; he acknowledged going to the Royal Plaza hotel on Saturday to see about getting a room, but there were no rooms available. He acknowledged he did try to check in on Sunday morning. It was at that time he had the two bags with him.
Due to the arthritis in his hands, defendant could not have struck the victim with enough force to cause a fractured scapula, which the pathologist had indicated was normally associated with high speed impact. He indicated he is unable to form a fist because all the tendons of his hand were severed. The defendant provided a demonstration of his current ability to close his fist (which he admitted was worse than it would have been in 2014), but the result was not described for the record.
After arguments of counsel, the court indicated it had, by that time, reviewed the entire transcript of the original trial, along with all the pleadings filed in connection with the petition for relief under then Penal Code section 1170.95. The court observed differences between the statements given to the police shortly after his arrest and his testimony in the hearing on the order to show cause. By contrast, Roberts' testimony at the order to show cause hearing was consistent with her trial testimony, although there were discrepancies between her trial testimony and the statements she gave to police.
The court found as follows: Defendant met up with Ms. Roberts and met for the first time the victim in the case, Mr. Saavedra, who lived and worked at the restaurant as a security guard and caretaker. At that time, Roberts was either somewhat homeless, may have been living with a boyfriend or was in between boyfriends, and was planning to stay at the restaurant with the victim, who she had occasionally stayed with before when she was not at one of the homeless shelters.
The court determined that defendant did go to the restaurant, evidenced first by his statements to law enforcement, admitting he was there; second, his testimony in the order to show cause hearing that he was there; third, his DNA was on a cigarette that is found inside of the restaurant in an ashtray; and fourth, Roberts' testimony that defendant was there.
At some point during their meeting, after defendant sent Roberts go buy some beer, there was a dispute or an argument that occurred between the defendant and the victim, and because of that argument, there was some physical altercation that occurred.
Th court went on to acknowledge there was a dispute as to what happened, and proceeded to summarize its findings: Defendant told law enforcement in an interview that the argument was as a result of Roberts having told defendant that the victim had raped her, as a result of which, defendant struck the victim two to three times with his fists, causing the victim to fall to the ground, inside of the restaurant.
The court went on to explain that Roberts testified at the OSC hearing, as she had testified at trial and in her pretrial statements to police, that she left the residence before any blow was struck by defendant. The statement to law enforcement was consistent with the physical evidence to the extent there were no traces of Roberts either at or after the time that the victim was killed.
The court also acknowledged that while there is no DNA or fingerprint evidence on any of the items that were either broken or found at the scene that might have been used to beat the victim, the evidence of the sock, bearing DNA of the victim and the profile of the defendant in the blood was found to be the most striking to the court. If the defendant had not been present at the time the physical beating occurred, then the victim would have been alive, so it would be unlikely that a sock could have had both his DNA profile and that of the victim's, because there would be no blood to step in if defendant was not there.
Another important piece of evidence to the court was the photograph admitted during defendant's trial depicting Budweiser beer cans found in a trash can inside the restaurant, whereas defendant testified the consumption of the beer occurred outside. This physical evidence was inconsistent with defendant's testimony.
Other significant evidence related to Roberts' testimony (both at the OSC hearing and in the first trial) that she made cocktails for defendant and the victim, which was corroborated by the photograph of the physical evidence, showing the ashtray with the cigarette butt and the alcoholic drinks on the table inside the restaurant.
The court noted that video evidence from a laundromat that was next to the Royal Plaza Inn showed the defendant was there. Gardner, contacted by Roberts on defendant's behalf, brought clothing, including a shirt, shorts, socks to that area, so defendant was able to make a change in clothing. The court concluded from the physical evidence that defendant was inside the restaurant and present when the murder occurred.
The court also pointed to the consistent evidence that defendant's hands were red and swollen, that he was described as wet (by both Roberts and Gardner), and that he made admissions to Roberts that he had gotten into a really bad fight and may have killed the victim, as well as other statements by defendant that he engaged in fisticuffs with the victim, who did not fight back, and how, when defendant struck the victim, the latter fell to the ground.
The court found defendant was either the direct perpetrator or an aider and abettor based on his statements to police. The court also observed that based on the instructions to the jury, in order to convict the defendant of first degree murder, the jury had to find premeditation and deliberation by defendant.
There were no instructions on felony murder as a basis for finding first degree murder in the original trial. The only theory offered to support first degree murder was murder which was premeditated and deliberate. However, the jury had been instructed on the two types of malice aforethought and that it could find defendant acted with implied malice if it found he had committed an aggravated assault on the victim, during the course of which a coparticipant committed murder, as a natural and probable consequence of which the victim died. In this respect, the jury had been instructed that if defendant had committed an act, the natural and probable consequences of which the death occurred, defendant was guilty of second degree murder.
It further determined the defendant was not convicted of murder under the felonymurder doctrine due to the lack of instructions on that theory, and the fact that the only instruction that referred to the natural and probable consequences doctrine was CALCRIM No. 520, where the instruction explained implied malice.
As for the fact the jury rejected a finding that defendant personally used a deadly weapon, the court found that was not determinative because defendant struck the first blows which incapacitated the victim, who died of a heart attack following defendant's assault. The court therefore concluded defendant could still be convicted of murder beyond a reasonable doubt and that it was either a first-degree intentional murder, second-degree implied malice murder, or a second-degree implied malice murder as a direct aider and abettor.
Based on the findings made by the court as an independent fact finder, the court denied defendant's petition for resentencing. Defendant appealed.
Discussion
Defendant argues the lower court's denial of his petition for resentencing should be reversed due to multiple errors. We begin by summarizing the rules governing review of a court's order denying a petition for resentencing following an evidentiary hearing, after which we will address each claim separately.
1. General Principles Governing Review of a Trial Court's Ruling on a Petition for Resentencing.
When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition "to determine whether the petitioner has made a prima facie case for relief." (Pen. Code, § 1172.6, subd. (c); see People v. Lewis (2021) 11 Cal.5th 952.) If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. (See Pen. Code, § 1172.6, subd. (c); Lewis, supra, at pp. 970-972.) If, however, the defendant has made a prima facie showing of entitlement to relief, "the court shall issue an order to show cause." (Pen. Code, § 1172.6, subd. (c).)
Penal Code section 1172.6, subdivision (d)(3) sets forth the burden of proof and the evidentiary rules to be followed by the court if the court grants an order to show cause and holds an evidentiary hearing: "At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. 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." (Pen. Code, § 1172.6, subd. (d)(3); People v. Henley (2022) 85 Cal.App.5th 1003, 1013.)
We review for substantial evidence a trial court's factual findings at an evidentiary hearing pursuant to Penal Code section 1172.6, subdivision (d)(3). (People v. Henley, supra, 85 Cal.App.5th at p. 1017; People v. Mitchell (2022) 81 Cal.App.5th 575, 591 (Mitchell); People v. Ramirez (2021) 71 Cal.App.5th 970, 985.) In conducting this review, "we presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence, whether direct or circumstantial." (Mitchell, at p. 591; accord, People v. Brooks (2017) 3 Cal.5th 1, 57.)
Upon issuance of the order to show cause under Penal Code section 1172.6, subdivision (c), the superior court must hold an evidentiary hearing to determine whether to vacate the murder conviction and to recall the sentence, unless the parties waive the hearing, or, "[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner's conviction and resentence the petitioner." (Pen. Code, § 1172.6, subd. (d)(2); see id., subds. (d)(1) &(3); People v. Ramirez (2019) 41 Cal.App.5th 923, 929.) "If a hearing is held, the prosecution has the burden to prove beyond a reasonable doubt, that petitioner is ineligible for resentencing." (People v. Ramirez, supra, 41 Cal.App.5th at p. 929.) "If the prosecution fails to sustain its burden of proof the trial court is required to vacate the prior conviction and resentence the petitioner on the remaining charges." (People v. Clayton (2021) 66 Cal.App.5th 145, 153.)
2. The Court Did Not Erroneously Disregard the Jury Finding That Defendant Did Not Use a Deadly or Dangerous Weapon in Concluding Defendant May Have Been the Actual Murderer.
Defendant argues the trial court improperly disregarded the jury's finding as "not true" that defendant used a deadly or dangerous weapon, made in defendant's original trial, to conclude defendant may have been the direct perpetrator of the murder. We disagree.
Unlike a retrial, an evidentiary hearing pursuant to Penal Code section 1172.6 is not a criminal prosecution, so many constitutional protections do not apply. (Mitchell, supra, 81 Cal.App.5th at p. 588, citing People v James (2021) 63 Cal.App.5th 604, 610.) There is no right to a trial by jury, no protection against double jeopardy, or selfincrimination. (Mitchell, supra, at p. 589; People v. Hernandez (2021) 60 Cal.App.5th 94, 111; People v Myles (2021) 69 Cal.App.5th 688, 704-706.)
We recognize that some recent cases have held that not true findings on weaponuse allegations are binding (see People v. Cooper (2022) 77 Cal.App.5th 393, 412), but these rulings do not quite square with the general rule cited above and do not consider the effect of new evidence introduced at the hearing. Our Supreme Court has not yet addressed this conundrum. We recognize that Penal Code section 1172.6 expressly states that finding that the defendant was not a major participant and did not act with reckless indifference to human life is binding and entitles a defendant to automatic resentencing. (Pen. Code, § 1172.6, subd. (d)(2).) Applying the maxim inclusion unius est exclusion alterius (the inclusion of one is the exclusion of another), any other finding is not binding, particularly where new evidence is presented at the evidentiary hearing. "'We are not authorized to add exceptions where the Legislature has spoken clearly to prescribe a rule and narrowly limit the exceptions thereto.'" (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829, citing Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1514; see also Markley v. Superior Court (1992) 5 Cal.App.4th 738, 745-746.)
In any event, the trial court decidedly did not disregard the jury's not-true finding on the allegation defendant use a golf club, beer bottle, or wooden chair and made no references or findings on the issue of whether defendant used a weapon. Instead, the record reveals the court's finding that defendant was the actual killer or direct aiderabettor was not based on a theory that he wielded any type of weapon.
Thus, at the conclusion of the evidentiary hearing, the trial court found that defendant was either the actual perpetrator or the direct aider-abettor in the killing. The court made no finding as to whether defendant used a weapon of any description. In fact, the court stated, "whether or not he actually wielded any of those weapons or not is not determinative. What's determinative is, the defendant struck the first blows. And, in striking the first blows, he disabled the victim causing the victim not to be able to defend himself." The fact that, during deliberations, the jury inquired whether fists constituted deadly weapons does not mean the jury determined he did not kill the victim.
The trial court did not erroneously consider the weapon enhancement in denying defendant's petition.
3. The Court Correctly Concluded the Defendant Was Not Convicted of Murder Under the Natural and Probable Consequences Doctrine.
Pointing to arguments made in the People's briefs submitted at the hearing, defendant argues the trial court erroneously concluded defendant was not convicted of murder under the natural and probable consequences doctrine. While it is true the court found defendant was either the actual perpetrator or a direct aider-abettor, that conclusion was drawn from the People's briefing, but was the court's independent review of the transcripts from the original trial and the testimony it heard in court at the evidentiary hearing.
Additionally, defendant's argument is erroneously grounded on the assertion that our reversal in the original direct appeal constituted a factual determination that was binding on the parties and court below under principles of res judicata, collateral estoppel or claim preclusion. We disagree.
A. Background
Our original opinion in the direct appeal simply resolved the question of whether the instructions on the natural and probable consequences doctrine constituted reversible error following the Supreme Court's holding in People v. Chiu, supra, 59 Cal.4th 155 . We did not reach any other arguments or issues. In terms of law of the case, res judicata, collateral estoppel or claim preclusion, that was the only issue that was litigated. We did not actually determine, as a matter of law, that defendant's guilt could only be established under the natural and probable consequences doctrine, and we did not decide whether there was substantial evidence to support such a theory; we only decided that the instruction was given in error.
In none of the successive proceedings has the issue been raised whether defendant was guilty under the natural and probable consequences doctrine. There was no retrial after our reversal in which the improper instruction might have been requested. Law of the case has no application to the evidentiary hearing on a resentencing petition.
In his petition for resentencing, defendant sought a determination from the trial court that he was erroneously convicted under the natural and probable consequences doctrine in seeking resentencing. However, after a full evidentiary hearing on that questions the trial court disagreed that he was convicted under that theory. The evidence introduced by defendant did not tend to show he was convicted as an aider-abettor under the natural and probable consequences doctrine; he testified he was not there and did nothing to hurt the victim. He should not be surprised then, to discover that his conviction was not grounded on aiding and abetting a felony murder.
In this appeal, we are not called upon to determine the theory under which defendant has been convicted of murder. We are limited to reviewing the judgment denying defendant's petition for resentencing.
B. The trial court was not precluded from finding defendant was not convicted on the natural and probable consequences theory, where, presented with new evidence, such a finding was foreclosed.
Defendant argues the trial court was required to rely on the natural and probable consequences theory, and that People were precluded by principles of issue preclusion from arguing that defendant was either the actual killer or the direct aider and abettor of the murder because that issue was litigated and we had decided that defendant "may have been convicted on the alternative natural and probable consequences theory upon which they were instructed." We disagree.
"[T]he doctrine of collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.' [Citations.] When applicable in criminal cases, the doctrine 'is a component of the double jeopardy clause of the Fifth Amendment' and article I, section 15, of the California Constitution, which both 'provide that no person may be tried more than once for the same offense.' [Citations.] Thus, in the criminal context, '[c]ollateral estoppel is traditionally applied to successive prosecutions, and there is some question whether [the doctrine] applies to further proceedings in the same litigation.' [Citation.]" (People v. Cooper, supra, 77 Cal.App.5th at pp. 412-413.)
However, "'double jeopardy principles are not at stake'" in a Penal Code section 1170.95 or 1172.6 proceeding. (People v. Cooper, supra, 77 Cal.App.5th at p. 413, citing People v. Myles (2021) 69 Cal.App.5th 688, 704; see also, People v. Hernandez (2021) 60 Cal.App.5th 94, 111.) The evidentiary hearing contemplated by statutory scheme promulgated by Senate Bill No. 1437 is not a successive prosecution; in fact, it is not a prosecution at all, although the onus is on the People to prove that defendant's conviction is still valid under the statutory amendments. Nevertheless, some cases treat prior findings on weapon enhancements as binding (see People v. Cooper, supra, 77 Cal.App.5th at p. 398 ), so it is not clear whether collateral estoppel or issue preclusion principles apply in Penal Code section 1172.6 proceedings, absent guidance from the Supreme Court.
The Cooper case qualified its holding by stating "We hold that a trial court cannot deny relief in a section 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented." (People v. Cooper, supra, 77 Cal.App.5th at p. 398.) Arguably, this means the holding does not apply in a case like this one where additional evidence was presented.
"Claim preclusion applies only when 'a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit'." (Samara v. Matar (2018) 5 Cal.5th 322, 327, citing DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Issue preclusion, by contrast, prevents "relitigation of previously decided issues," rather than causes of action as a whole. (DKN Holdings, supra, at p. 824.) It applies only "(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." (DKN Holdings, supra, at p. 825.)
Courts have understood the "'necessarily decided'" prong to "require[] only that the issue not have been 'entirely unnecessary' to the judgment in the initial proceeding" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342)-leaving room for a decision based on two grounds to be preclusive as to both.
"The doctrine of 'law of the case' deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127, citing Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; see also, Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.)
The fallacy of defendant's argument is that our statement in Gentile I regarding the probability that defendant had been erroneously convicted as an aider-abettor under the natural and probable consequences doctrine was not "law of the case." Our actual holding, which is law of the case, was that the instruction on the natural and probable consequences was error, based on the People's concession and the Supreme Court's holding in People v. Chiu. The instruction was given in the context of the instructions on implied malice, respecting the alternative theory that defendant committed an aggravated assault while aiding and abetting Roberts murder of the victim. We were not presented with a claim requiring us to determine under which theory defendant was convicted in the first appeal, so any statements made by us to explain our rationale is mere dicta.
The rule of law we established in the first appeal was that erroneous instructions on the natural and probable consequences doctrine were reversible error. Defendant was not retried so there was no occasion for the erroneous instructions to be given in derogation of the law of the case based on our ruling, and the new evidence presented by defendant altered the landscape of the case by introducing another theory based on defendant's testimony which contradicted his own prior statements and the physical evidence.
In the original appeal it was unnecessary for us to decide on which alternative theory defendant was convicted as we reversed only due to the conceded instructional error. We did not decide what defendant's role was in the murder. Nor did the Supreme Court decide that defendant was necessarily an aider-abettor to a felony murder who was convicted under the natural and probable consequences doctrine. Therefore, issue preclusion does not apply here.
Further, for defendant to argue the People were precluded from "trying to relitigate this issue anew" while defendant himself relitigated the issue, is hypocritical. Given that defendant's new evidence at the evidentiary hearing contrived a new theory of innocence, the People were entitled - even obligated under Penal Code section 1172.6 - to prove the conviction was proper after the recent amendments to the statutes. But what the People presented anew were the same theories argued to the jury at defendant's trial, demonstrating how the new evidence did not create a reasonable doubt of defendant's guilt for purposes of resentencing.
The trial court had the duty to make an independent factual determination of whether the People have proved beyond a reasonable doubt that defendant's conviction is still valid following the legislative amendments to Penal Code sections 188 and 189. At that hearing, the defendant did not argue that defendant could only be convicted under the natural and probable consequences doctrine. Indeed, such a theory finds no support in defendant's new testimony where he presented an entirely new theory to attenuate his involvement in the crime by arguing he was not even present inside the restaurant where the beating occurred (despite the overwhelming physical evidence to the contrary), thereby throwing Roberts under the bus.
Finally, after the trial court reviewed the record from the original trial, including the instructions, it observed the jury was instructed that it could only find defendant guilty of first degree murder if it found defendant had express malice, that is, an intent to kill, and that he premeditated and deliberated the killing. It therefore found the instructions for first degree murder did not invoke the felony murder or the natural and probable consequences theory. Because the jury was not instructed on felony murder principles respecting first degree murder, the jury's verdict of guilty of that crime was not based on the natural and probable consequences doctrine, notwithstanding the erroneous instructions.
The trial court properly concluded defendant was not actually convicted of first degree murder under the erroneous instructions, and it was not required to rely on the natural and probable consequences theory where the new evidence presented by defendant and the court's independent review of the trial transcripts rendered that theory moot.
4. The Superior Court Did Not Err in Finding, Beyond a Reasonable Doubt, that Defendant was Either the Actual Killer or Direct Aider-Abettor Based on the Evidence Adduced at the Hearing.
Defendant argues it was error for the trial court to find defendant was either the actual killer or a direct aider and abettor. We disagree.
Defendant reasons that "this Court already determined it was probable one or more of appellant's jurors convicted him on the alternative natural and probable consequences theory they were provided. (See Gentile IV, supra, 10 Cal.5th at pp. 859-860; People v. Gentile I, supra, E064822, slip opn. p. 14.)" However, we did not hold that defendant was convicted on the alternative theory, because that issue was not presented to us on appeal. That statement was dicta. Nevertheless, the trial court was required to consider all the evidence presented at the evidentiary hearing and make its own independent factual findings based on the materials before it.
On appeal from a denial of a resentencing petition, we review the trial court's determination at the evidentiary hearing for substantial evidence. (People v. Nieber (2022) 82 Cal.App.5th 458, 476.) Under this standard, "'we review 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-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.) "'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 57.)
The trial court made its independent finding, based on the evidence presented at the hearing, along with the record of the original trial, and entered judgment that defendant was guilty of murder as either the direct killer or as a direct aider-abettor based on evidence defendant himself presented at the evidentiary hearing, which was contradicted by the physical evidence introduced at his trial and his own pretrial statements to Roberts, Sullivan, and the investigators.
Based on defendant's pretrial statements to Roberts (that he had gotten into a really bad fight with the victim and might have killed him), as well as the evidence of the sock, bearing both defendant's and the victim's DNA (but not Roberts'), the bloody footprints and the cigarette butts found inside the restaurant, the court disbelieved defendant's testimony that he was not present at the time of the killing. If, as he testified, he had left the restaurant before the victim was beaten, his sock could not have been stained with the victim's blood. If, as defendant testified, he did not go inside the restaurant, the cigarette butt with his DNA would not have been found in an ashtray inside the restaurant.
Defendant's testimonial attempt to distance himself from the interior of the restaurant was also undermined by the consistent evidence of Roberts' testimony about making alcoholic beverages for defendant and the victim (corroborated by evidence that the contents of the victim's stomach included olives), the evidence of the beer containers and glassware found inside the restaurant, the cigarette butts with defendant's DNA found in an ashtray inside the restaurant, and the trial transcripts of defendants unscripted and unsolicited statements in the presence of jurors describing how the victim's drug dealing was "what started the - - fight", demonstrating beyond a reasonable doubt he was inside the restaurant and present at the time of the beating.
The court's finding that defendant was either the actual perpetrator or a direct aider and abettor was based on defendant's statement indicating that "he was physically engaged in fisticuffs with the victim who did not fight back. He struck him, causing him to fall to the ground, and then Mr. Gentile's statement to law enforcement, it was Ms. Roberts who utilized the weapons that caused his death. So he would either be a direct perpetrator or an aider and abettor in the crime given his own statements to law enforcement." These findings do not implicate the felony murder doctrine or that pertaining to the natural and probable consequences doctrine.
Defendant also suggests that he is entitled to reversal based on the Supreme Court's statement in Gentile IV, supra, 10 Cal.5th at pages 859-860 that, "Going forward, the parties agree that Gentile has made 'a prima facie showing that he . . . is entitled to relief (Pen. Code, § [1172.6], subd. (c)) in light of the Attorney General's concessions and the Court of Appeal's determination in Gentile I that it is "probable" the jury relied on a natural and probable consequences theory in finding him guilty of murder.'" This reference can only apply to the prima facie finding on a resentencing petition and does not require reversal of the trial court's findings following a full evidentiary hearing. Instead, it was a statement that defendant had established a prima facie case within the meaning of Penal Code section 1172.6, subdivision (c). The finding that defendant has established a prima facie basis for relief does not mean he is entitled to resentencing; it only means he is entitled to an evidentiary hearing upon which the trial court relies in deciding if resentencing is required. If the parties' agreement that a defendant has made a prima showing requires automatic resentencing, the statutory requirement of issuing an order to show cause and conducting an evidentiary hearing would be superfluous.
Here, the People's theory as presented to the jury at his original trial was that defendant was the killer and that Roberts was his accomplice after the fact. "And he was either the primary doer or, hey, this is the person that he said did it because they meet up afterwards. He doesn't get to say she did it, say I leave, and it's only her. Because his statement, if you take it, leads to murder."
Additionally, the prosecutor argued, "So the beating caused stress on the heart which lead to the heart attack that this man died from.... The beating led to the heart attack." The People reasserted that position in the post-conviction proceedings, pointing out how inconsistencies between defendant's testimony at the hearing substantially contradicted his pretrial statements to the police, as well as his statements to other witnesses, and the physical evidence.
Alternatively, at trial the People argued that if the jury believed Roberts killed the victim (as the defense maintained), that defendant directly aided and abetted her by beating the victim with his fists. Thus, it is apparent that defendant was never tried on a theory of felony murder. Defendant's argument that the trial court erred in finding he was a direct aider and abettor are based on a misinterpretation of the evidence and the instructions, as well as the jury verdicts.
The legislative changes to Penal Code section 189 relate to felony murder liability of an aider and abettor, and do not affect the liability of a person who, with malice aforethought, aids and abets a murder committed by another. Such a person is still guilty of first degree murder after the legislative amendments to Penal Code sections 188 and 189.
The court did not err in determining that the defendant had not been convicted under the natural and probable consequences doctrine where defendant was never prosecuted under the felony murder doctrine as an aider-abettor, and where there was ample support in the evidence presented to the court at the evidentiary hearing.
5. The Matter Must Be Remanded For Clarification of the Trial Court's Findings Pursuant to Penal Code section 1172.6 .
Defendant argues that the trial court erred by applying what amounted to a sufficiency of the evidence standard of review at the evidentiary hearing by finding that defendant could still be convicted of murder under current law, rather than making its own determination based upon the proof beyond a reasonable doubt standard whether defendant was guilty of murder under current law. The trial court made specific findings regarding the defendant's participation in the crime. There is no error in that respect. But the court's ultimate conclusion was that defendant "could" still be convicted of murder under current law.
At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Penal Code sections 188 or 189 made effective January 1, 2019. (Pen. Code, § 1172.6, subd. (d)(3).) .
Senate Bill No. 1437 amended Penal Code section 188 to provide that malice can no longer be imputed, thereby eliminating the natural and probable consequences theory of murder liability. Respecting murder liability under the felony-murder doctrine, Penal Code section 189 was amended to provide, as amended, liability for murder is limited to persons (1) who are the actual killer, (2) who aided and abetted the actual killer in the murder (that is, who acted with the intent to kill), or (3) who were a major participant in the underlying felony that resulted in the killing, but only if they also acted with reckless indifference to human life. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50 Cal.App.5th 46, 58-59.)
The changes imported the requirements of determining that to be guilty of felony murder as an aider-abettor, a defendant must have been a major participant and acted with reckless indifference to human life. (Pen. Code, § 189, subd. (e); see also, People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522.)
But Penal Code section 189 does not require such findings where the defendant is the actual killer, or where the defendant is a direct aider-abettor acting with intent to kill: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree ...." (Pen. Code, § 189, subd. (e).)
Penal Code section 1172.6 requires the trial court to make independent factual findings, and, given the People's burden of proof, we assume it is required to find beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to sections 188 or 189 made effective January 1, 2019. But the statute does not explain what specific findings it is required to make. At the hearing in the present case, neither the prosecutor nor defense counsel argued whether defendant was a major participant and acted with reckless indifference. Additionally, the defendant did not argue at the hearing that he was convicted of felony murder under the natural and probable consequences doctrine. Such an argument would undermine defendant's testimony that he was not present when Roberts beat the victim.
The People's position reasserted the theory of murder presented in the original trial and reaffirmed by the new evidence, and the trial court's conclusions determined defendant was either the actual killer, or a direct aider and abettor. Under these findings, it does not appear necessary for the trial court to consider whether the defendant was a major participant and acted with reckless indifference to human life. But the trial court's conclusion at the evidentiary hearing was that defendant "could still be convicted" of murder, not that the People proved beyond a reasonable doubt his conviction is valid after the legislative amendments.
Nowhere does the statute mandate that the trial court must make express determinations that the defendant was a major participant who acted with reckless indifference, except in situations in which the defendant was convicted of felony murder as an aider-abettor whose guilt was determined under the natural and probable consequences doctrine. Penal Code section 189, subdivision (e)(1) and (2) expressly authorize murder convictions under the felony murder rule where the defendant is the actual killer, or a direct aider and abettor, without reference to the supplemental findings that he was a major participant acting with reckless indifference to human life. (Pen. Code, § 189, subd. (e)(3).) Logically, a defendant who is the actual killer or a direct aider-abettor has, in fact, acted as a major participant and with reckless indifference to human life. But the theory of defendant's guilt for murder in this case has been subjected to several misinterpretations over the course of the various proceedings, so we will not imply a finding.
Despite the lack of legislative mandate that a trial court specifically make findings under Banks and Clark, many decisions refer to findings made after an evidentiary hearing in terms of the adequacy of proof defendant was a major participant and acted with reckless indifference to human life, although these cases involve defendants convicted under the felony-murder doctrine. (See People v. Nieber, supra, 82 Cal.App.5th at pp. 476-479.)
Here, the trial court made an independent factual finding beyond a reasonable doubt that defendant was either the actual killer or a direct aider-abettor in the killing and that he did not aid and abet a felony that resulted in a death caused by another principal. There is substantial evidence to support that finding where defendant testified he was not in the restaurant when the victim was beaten, so he could not have aided or abetted a target felony that led to the killing.
But the trial court used problematic language in saying, "rul[ing] as an independent fact-finder, Mr. Gentile could still be convicted of murder beyond a reasonable doubt and that it was either a first-degree, intentional murder, second-degree implied malice murder, or a second-degree implied malice murder as a direct aider and abettor." (Italics added.) The statement "that it was either first-degree, intentional murder, second-degree implied malice murder, or a second degree implied malice murder as a direct aider and abettor", satisfies us that the court properly discharged its duty to make independent factual findings.
However, the trial court's use of the phrase "could still be convicted" is what gives the impression the court erroneously employed a substantial evidence review as argued by defendant in this appeal, instead of making an independent factual finding that defendant is guilty of murder on a currently valid theory.
We conclude there is substantial evidence to support the trial court's independent factual findings that defendant was either the actual killer or a direct aider-abettor of the killing by Roberts, and that defendant's conviction of first degree murder was based on the jury's determination he killed the victim with premeditation and deliberation. However, in light of the court's statements, some questions remain. One, did the trial court make an independent factual finding that the defendant is guilty as the actual killer or direct aider-abettor (as opposed to finding that the defendant could still be convicted under current law)? Two, if the court did make an independent finding beyond a reasonable doubt that defendant is guilty as the actual killer or direct aider-abettor, should the trial court also be required to make Banks/Clark findings? Three, did the court find beyond a reasonable doubt that the People met their burden of proof that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Penal Code sections 188 or 189 made effective January 1, 2019?
The prudent course is to remand the case to the superior court to clarify its independent factual findings as to whether the People satisfied their burden of proving defendant's conviction of murder is still valid under California law as amended by the changes to Penal Code sections 188 or 189, and by expressly stating whether it independently found defendant is guilty (a) as the actual killer, or (b) as the direct aiderabettor in the killing, acting with intent to kill, or (c) under the felony-murder doctrine, and, if so, whether defendant was a major participant and acted with reckless indifference to human life.
6. The Cumulative Error Doctrine Is Moot.
Defendant claims that even if any one of the alleged errors would not be prejudicial on its own, the cumulative effect of the combined errors requires reversal. This issue is now moot because we are remanding the case to the trial court to clarify its independent factual findings.
Disposition
We reverse and remand the case to the superior court solely to clarify its independent factual findings, by expressly stating whether the People proved defendant's conviction is still valid after the amendments to Penal Code sections 188 and 189, whether it independently found defendant guilty (a) as the actual killer, or (b) as the direct aider-abettor in the killing acting with intent to kill, or (c) whether defendant was convicted under the felony-murder doctrine, and, if so, whether defendant was a major participant and acted with reckless indifference to human life.
We concur: McKINSTER J., CODRINGTON J.