Opinion
B322620
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. MARVIN CORBIN, Defendant and Appellant.
Nancy Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED.
APPEAL from an order of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge No. BA261767.
Nancy Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
LEE, J. [*]
Defendant Marvin Corbin (Corbin) appeals from the trial court's denial of his Penal Code section 1172.6 (former § 1170.95) resentencing petition after an evidentiary hearing. The court found beyond a reasonable doubt that defendant was a direct aider and abettor with intent to kill, and alternatively, a major participant who acted with reckless indifference to human life. We conclude that there is insufficient evidence to support these findings. Accordingly, we reverse and remand to the trial court with directions to vacate Corbin's murder conviction and conduct further proceedings consistent with this opinion.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
These facts are taken from the opinion and the record in Corbin's direct appeal, including the trial transcripts. (People v. Corbin (September 8, 2011, B226019 [nonpub. opn.].)
The victim in this case, Earnie Hendricks (Hendricks), was a drug dealer who sold marijuana out of his Toyota Camry, which was parked in a carport below the apartment he shared with his girlfriend (the girlfriend). Hendricks also kept in the car firearms belonging to Jason Russell (Russell), who lived in the front house of the apartment building. Corbin frequently spent time with Hendricks at his apartment and also bought marijuana from him. There was no "bad blood" between Hendricks and Corbin. There was bad blood between Hendricks and Russell, however, because Hendricks had called Russell "a bitch and said he acted like a bitch."
The girlfriend arrived home on the evening of March 3, 2004, and saw Corbin outside the apartment building with Russell, Justin Smith (Smith), and an unknown male. Later that night, at about 9:05 p.m., while the girlfriend was cooking, Corbin knocked on the door asking for "Earnie" or "E." The girlfriend told Hendricks that someone was at the door for him. Hendricks came to the door and jovially greeted Corbin calling him "Marvelous Marv," and the two left the apartment to head downstairs. Less than a minute later, the girlfriend heard the chirping sound of Hendricks's car alarm being turned off. Immediately after that, she heard about five gunshots.
The girlfriend went out on the porch but could not see into the carport. She went back inside to retrieve her phone and keys. When she heard a car start, she ran back to the porch, where she saw Hendricks's Camry pull out of the parking space, hit a wall, and drive off. She could not see the occupants of the car. She estimated that two to three minutes had passed from the time of the knock at the door to the time when Hendricks's car was taken.
The girlfriend then ran downstairs and found Hendricks lying near the back wall of the carport, shot. She pulled him by the feet into an area of the carport where there was better light. A neighbor called 911 and attempted to perform CPR. Hendricks was shot five times; one of the shots was to his head at close range and was fatal. Multiple spent casings were found near the back area of the carport.
Shortly after finding Hendricks, the girlfriend got in her car and drove off to look for the Camry. Within approximately five minutes, she found the Camry near 36th Street and Norton Avenue parked next to a green Cavalier that she often saw parked at the front house where Russell lived. The girlfriend saw Russell in the driver's seat of the green Cavalier and Smith in the passenger's seat. As she was driving home, she saw a police unit at a light and directed them to where the Camry and the Cavalier were located.
Meanwhile, at about 9:10 p.m., two officers saw an unlicensed Camry speeding. The officers pulled up to the car, which contained two men, and gave the driver a verbal warning. Both officers later identified Corbin as the driver. At approximately 9:14 p.m., the same officers heard a radio call regarding a shooting and a backup request at a nearby location.
The officers then drove to the location where backup had been requested and observed another police unit that had stopped a green Cavalier. Parked nearby was the Camry with its door open and no one inside. Smith and Russell were taken into custody. The officers found marijuana and a ripped latex glove. They also found marijuana in three baggies matching those used by Hendricks for sale about 20 feet from the car and two latex gloves with blood on them in some nearby bushes. A revolver and a shotgun unrelated to Hendricks's shooting were found in the trunk of the Camry. The latex gloves were DNA tested later; only Hendricks's DNA was found on them.
Corbin, who was 21 years old at the time, told police that he was friends with Russell and knew of Hendricks and his girlfriend as a couple who lived behind Russell. Corbin was aware that Hendricks sold marijuana, but described having only one social interaction with him. Corbin denied being present when Hendricks was killed, but had been at the apartment building on the day of the murder with Russell, Smith, and another man. Corbin told police he left around 6:00 p.m. to spend the night at his aunt's house, where he remained until the next morning. He denied ever being inside Hendricks's car or knocking on his door the night of the murder. Corbin also said that he had heard at his barbershop that Hendricks had died from three gunshots to the head.
The Amended Information filed April 15, 2009 states his birthdate as June 30, 1982.
II. Jury Verdict, Sentencing, and Appeal
The operative amended information charged Corbin, as the only defendant, with murder (§ 187, subd. (a)), grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)(1)). As to the murder count, it was alleged that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), and that Corbin personally used a firearm (Pen. Code, § 12022.53, subd. (b)), personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury and death to Hendricks (Pen. Code, § 12022.53, subd. (d)).
The jury convicted Corbin of first degree murder and grand theft of an automobile. The jury received instructions for malice murder and felony murder in the commission of a robbery, but did not indicate which theory supported Corbin's murder conviction. The jury rejected all three allegations related to personal use or discharge of a firearm, but found true that a principal was armed with a firearm. Corbin was sentenced to 29 years to life in state prison.
On direct appeal, this court stayed the three-year sentence for grand theft of an automobile, but otherwise affirmed the judgment. (People v. Corbin (September 8, 2011, B226019 [nonpub. opn.].)
III. Petition for Resentencing
In August 2020, Corbin filed a section 1172.6 (former § 1170.95) resentencing petition on his own behalf. After the trial court appointed counsel for Corbin, the People filed a response to his petition, the court issued an order to show cause, and Corbin filed a reply. After receiving the trial transcript, the People filed another brief to oppose Corbin's petition. The trial court convened the hearing in May 2022. The parties submitted on the appellate record, the trial transcript, and their arguments.
On June 8, 2022, in a written order, the trial court found Corbin ineligible for resentencing because he was a direct aider and abettor "to a willful, premedi[t]ated, and deliberate malice murder." The trial court acknowledged that there was no information as to who shot Hendricks, how many weapons were used, who supplied the weapon, the identity of the passenger, and whether Corbin knew of the shooter's likelihood of killing. It nonetheless concluded the evidence of Corbin "luring" Hendricks out of his apartment, the ensuing "ambush" of gunshots, and the fact that Corbin "fled the scene" all showed "beyond a reasonable doubt that [Corbin] was a direct aider and abettor." After evaluating the factors set forth in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, the trial court also concluded beyond a reasonable doubt that Corbin was a major participant who acted with reckless indifference to human life.
Corbin filed this timely appeal.
DISCUSSION
Corbin argues substantial evidence does not support the trial court's finding beyond a reasonable doubt that defendant was a direct aider and abettor with the intent to kill or that he was a major participant who acted with reckless indifference to human life. We agree.
Effective January 1, 2019, Senate Bill 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) amended the felony murder rule and natural and probable consequences doctrine as it relates to murder "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill 1437 also added what is now section 1172.6, which provides procedures "for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Id. at p. 957.)
The procedure for seeking relief is encompassed within section 1172.6. (Lewis, supra, 11 Cal.5th at p. 959.) To obtain relief, a petitioner must file a facially sufficient petition. (§ 1172.6, subd. (a)(1).) The prosecutor must then file a response to the petition, and the petitioner may file a reply. (Id., subd. (c).) The trial court shall then "hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Ibid.) If the court determines that a prima facie showing was made, the court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced." (Id., subd. (d)(1).) "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 . . . under California law as amended by the changes ...." (Id., subd. (d)(3).) At the evidentiary hearing, the trial court sits as an independent fact finder. (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).)
II. Standard of Review
We review a trial court's denial of a section 1172.6 petition after an evidentiary hearing for substantial evidence. (Vargas, supra, 84 Cal.App.5th at p. 951.) In so doing, we review the entire record to determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "The record must disclose substantial evidence to support the verdict - i.e., evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid.)
We review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Evidentiary conflicts may not be resolved by reweighing the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1227.) The same standard applies where the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
III. Substantial Evidence Does Not Support That Corbin Directly Aided and Abetted with the Intent to Kill
Section 1172.6 eliminated several forms of accomplice liability for murder, but accomplices may still be convicted of murder as direct aiders and abettors. (People v. Reyes (2023) 14 Cal.5th 981, 990; see also People v. Offley (2020) 48 Cal.App.5th 588, 595-596.) To convict a defendant as a direct aider and abettor, the trier of fact must find that he or she acted with malice, either express or implied. (Vargas, supra, 84 Cal.App.5th at p. 953; People v. Gentile (2020) 10 Cal.5th 830, 843-843.)" 'The primary difference between express malice and implied malice is that the former requires an intent to kill but that latter does not.'" (Vargas, at p. 953, citing People v. Soto (2018) 4 Cal.5th 968, 976.)
Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's mens rea. (People v. Powell (2021) 63 Cal.App.5th 689, 712-713.) "[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus - a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea -knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus - conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225; Vargas, supra, 84 Cal.App.5th at pp. 953-954.) A defendant must share the actual killer's intent to kill the victim. (People v. Beeman (1984) 35 Cal.3d 547, 560.)
Whether a defendant aided and abetted a charged crime is judged under the totality of the circumstances. (People v. Morga (1969) 273 Cal.App.2d 200, 207.) "Factors to be considered by the trier of fact in determining 'whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.'" (People v. Garcia (2008) 168 Cal.App.4th 261, 273; Vargas, supra, 84 Cal.App.5th at p. 955.) Nevertheless, "[m]ere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime ...." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530 (Nguyen).)
Likewise, a conviction may not be based solely on defendant's knowledge of what the perpetrator plans to do. (People v. Horton (1995) 11 Cal.4th 1068, 1115 ["knowledge that a crime might be committed by defendant in the future did not amount to aiding and abetting the commission of that prospective crime"].) The prosecution must also prove that the aider and abettor "does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of" the target offense. (CALCRIM No. 401.) "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
There is no substantial evidence to show intent to kill. There had been no animosity between Corbin and Hendricks leading up to the shooting. Indeed, when Corbin came to Hendricks's apartment, Hendricks joked with him and addressed Corbin familiarly as "Marvelous Marv." In the two to three minutes that ensued, however, the two men walked down to Hendricks's car, Hendricks was shot multiple times, and Corbin and an unknown passenger sped off in Hendricks's car. There was not a single witness to the actual killing. Although the record shows Corbin was with Russell and two other men earlier in the evening, the evidence concerning the shooting and its surrounding circumstances is too scant to support a finding that Corbin aided and abetted with the intent to kill.
The trial court found that "this was a well-planned crime and [Corbin] played a pivotal role in its execution" by "luring" or using their "relationship . . . [and] trust . . . to place Hendricks in a vulnerable position" which led to murder. Such a finding is not supported by the record, but even if it were, the trial court's reasoning traces the natural and probable consequence theory of first degree murder eliminated by Senate Bill 1437 (Lewis, supra, 11 Cal.5th at p. 957). There may be substantial evidence to support this finding if robbery was the target offense, but not if it was murder. The record also leaves open the possibility that Corbin simply intended to purchase marijuana, while his companion harbored the intent to shoot and kill that Corbin did not share. There is no information as to whether the robbery was even planned or whether the robbery and the shooting were the consequences of a blundered drug buy. The trial court's characterization of Corbin's conduct as "luring" is speculative and not supported by solid evidence in the record, which provides no basis for inferring the shooting was "a well-planned crime" or that Corbin "played a pivotal role" therein.
There is also no information as to any words spoken or actions taken by Corbin during the shooting. As a result, we have no evidence of whether he took any steps to attempt to prevent the shooting or whether he even had the opportunity to do so. Nor is there evidence of the nature of his relationship with the shooter or what occurred immediately before the flight from the scene. Although Corbin was present at the scene of the shooting, "[m]ere presence at the scene of the crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime ...." (Nguyen, supra, 21 Cal.App.4th at pp. 529-530.) The evidence in this case is simply lacking for the trial court to determine, beyond a reasonable doubt, that Corbin possessed the mens rea and actus reus as a direct aider and abettor with the intent to kill.
IV. Substantial Evidence Does Not Support that Corbin Acted with Reckless Indifference to Human Life
A defendant who was neither an actual killer nor acted with the intent to kill may be liable for murder if she or he "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) The California Supreme Court provided guidance on the meaning of major participant in Banks, supra, 61 Cal.4th 788 and reckless indifference to human life in Clark, supra, 63 Cal.4th 522. Because we conclude the People have not met their burden to prove Corbin acted with reckless indifference to human life, we do not address the major participant component.
According to Clark, reckless indifference to human life "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Clark, supra, 63 Cal.4th at p. 617.) The Court in Clark set forth pertinent "case-specific factors that [it] and other state appellate courts have considered in upholding a determination of reckless indifference to human life ...." (Id. at pp. 617-618.) These include (1) defendant's use or awareness of the presence of a weapon; (2) defendant's physical presence at the crime scene and opportunity to restrain the killer or aid victims; (3) the duration of the crime; (4) defendant's knowledge of any threat the killer might represent; and (5) defendant's efforts to minimize the risk of violence. (Id. at pp. 618-623.) Youth may be an important consideration on whether defendant acted with reckless indifference to human life. (People v. Keel (2022) 84 Cal.App.5th 546, 558-559 (Keel).) No one factor is necessary and no one factor is necessarily sufficient. (Clark, supra, at p. 618.)
" 'Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, "[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed," and he or she must consciously disregard "the significant risk of death his or her actions create." [Citations.] As to the objective element," '[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.'" [Citation.] "Awareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient" to establish reckless indifference to human life; "only knowingly creating a 'grave risk of death'" satisfies the statutory requirement. [Citation.] Notably, "the fact a participant [or planner of] an armed robbery could anticipate lethal force might be used" is not sufficient to establish reckless indifference to human life.'" (Keel, supra, 84 Cal.App.5th at pp. 557-558, citing In re Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) Nor would using a gun while committing a robbery, standing alone, be sufficient. (See Clark, supra, 63 Cal.4th at p. 617.)
A. Use or awareness of the presence of a gun and knowledge of shooter's likelihood of killing.
In evaluating the first and fourth Clark factors, we agree with the trial court that there is no evidence to support either of these factors. We agree with the court's observation that: "It is unknown how many weapons were used and who used them .... It is unknown who pulled the trigger of the gun that killed Hendricks. [Corbin] was seen minutes after the murder driving the victim's stolen car with someone in the passenger seat. Nothing was presented at trial as to the identity of that person." Accordingly, there simply is no evidence that Corbin was armed, supplied the gun, was aware of the presence of a gun, or had any knowledge of the shooter's likelihood of killing. Even if there were evidence he knew the shooter was armed for the robbery, that on its own is insufficient to prove the requisite mental state. (Clark, supra, 63 Cal.4th at pp. 613, 618.)
B. Physical presence at the scene and opportunity to restrain the killer or aid the victim
The second Clark factor provides some support. "Proximity to the murder and the events leading up to it may be particularly significant where. . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state ....[Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, the defendant is arguably more at fault for the resulting murders.'" (Clark, supra, 63 Cal.4th at p. 619.)
Defendant's presence at the scene ostensibly allowed him to observe the killer's actions with potential opportunity to restrain the killer. But given the sequence of events described by the girlfriend, the shooting occurred almost immediately after Corbin and Hendricks entered the carport, making it unlikely that Corbin had a meaningful opportunity to restrain the killer or intervene before Hendricks was shot. (See Scoggins, supra, 9 Cal.5th at p. 679 [defendant was less culpable because he lacked control over his confederates' actions, "given how quickly the shooting occurred"]; In re Moore (2021) 68 Cal.App.5th 434, 452 (Moore) ["The short duration of the robbery and the sudden and unprovoked nature of the shooting" reinforced the conclusion that defendant could not restrain his confederate's actions].)
For similar reasons, Corbin's failure to aid the victim in this case has minimal impact. As the trial court found, Corbin fled the scene in Hendricks's car which stored the drugs immediately after the shooting, so it is reasonable to infer that he did nothing to aid Hendricks and continued with the robbery. It is also reasonable to infer that Corbin panicked as he hit a wall in the process of fleeing in Hendricks's car notwithstanding his inability to drive. We agree with the trial court's finding on this point. But its significance is diminished when considered together with the rapid pace of the incident. (See Keel, supra, 84 Cal.App.5th at p. 560 [impact of defendant's presence and opportunity to restrain confederates or aid victims on reckless indifference is neutral because decision to rob and shoot unfolded quickly].)
C. Duration of the crime
As for the third factor, duration of the crime, the Court in Clark explained, "[w]here a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life." (Clark, supra, 63 Cal.4th at p. 620.) Thus, "[c]ourts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant." (Ibid.)
Only two to three minutes passed between Corbin's knock at Hendricks's door and Corbin speeding off in Hendricks's car. This short duration is a factor that weighs in Corbin's favor. Further, there is no evidence of any interaction, prolonged or otherwise, between Corbin, the shooter, and Hendricks that culminated in murder. Nor is there any evidence that Hendricks was physically restrained for any amount of time.
D. Efforts to minimize risk of violence
Courts look at a defendant's efforts to minimize the risk of violence, both in the planning stage and execution stages of the given felony. (See e.g., In re Harper (2022) 76 Cal.App.5th 450, 465-466.) There is no evidence regarding Corbin's role in planning a robbery or murder, or even knowing that a weapon would be used. Accordingly, nothing in the record suggests he had the opportunity to minimize the risk of violence during any planning stage. Nor does it show one way or another whether Corbin engaged in efforts to minimize the risk of violence as the events unfolded. The quick procession of events suggests he did not have an opportunity to exert such efforts.
E. Hendricks's youth
Youth may also be a relevant consideration in determining whether a defendant acted with reckless indifference to human life." '[T]he" 'hallmark features'" of youth include" 'immaturity, impetuosity, and failure to appreciate risks and consequences.'" [Citations.]" '[T]he background and mental and emotional development of a youthful defendant [must] be duly considered' in assessing his culpability." [Citation.] "[T]hey 'are more vulnerable or susceptible to . . . outside pressures' than adults ...." '" (Keel, supra, 84 Cal.App.5th at p. 562, citing People v. Ramirez (2021) 71 Cal.App.5th 970, 991 (Ramirez).) Such consideration may be relevant even for those in their early twenties in age. (See, e.g., People v. Jones (2022) 86 Cal.App.5th, 1076, 1091-1093 [reversing denial of resentencing petition and remanding for consideration of youth for 20-year-old defendant].)
Corbin, who was 21 years old at the time of the offense, argues for the first time on appeal that his age weighs against a finding of reckless indifference. He does not point to any information in the record other than his age, e.g., his background and mental and emotional development, for this court to assess the impact of his youth. In any event, our conclusion in this case does not turn on this issue.
The trial court's finding that Corbin did anything more than lure the victim down to where his weed was stored so that he could be robbed is not supported by anything but speculation. There is no evidence Corbin even knew his compatriot was armed. The record supports that Corbin expected an unarmed robbery as much as it supports his expectation of an armed one.
DISPOSITION
The order denying Corbin's petition for resentencing is reversed. The matter is remanded with directions to grant the petition, vacate Corbin's murder conviction, and proceed as required by section 1172.6, subdivisions (d) and (e).
WE CONCUR: MOOR, Acting P. J. KIM, J.
[*]Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.