Opinion
B323553
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. MARIO CARLOS LOPEZ, 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, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA134725, Lisa B. Lench, Judge.
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, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
COLLINS, ACTING P.J.
Appellant Mario Carlos Lopez challenges the denial of his petition for resentencing under former Penal Code section 1170.95. He contends the court erred by failing to expressly consider the impact of his youthful age on whether he acted with reckless indifference during the offense. While acknowledging that his petition was decided well after People v. Harris (2021) 60 Cal.App.5th 939 (Harris) and In re Moore (2021) 68 Cal.app.5th 434 (Moore) held that youth is a relevant consideration, appellant argues remand is required because the trial court did not have the benefit of People v. Jones (2022) 86 Cal.App.5th 1076, 1088 fn. 7, 1091 (Jones), which clarified that "a defendant's youthful age must be considered." We affirm.
All undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.
BACKGROUND
I. Conviction
The relevant facts underlying appellant's conviction are not disputed. In his opening brief, appellant "incorporates by reference the summary of the evidence contained in this Court's prior opinion on direct appeal," People v. Lopez (Oct. 29, 1998, No. B114837) [nonpub. opn.]. We reproduce that summary here, while noting that the trial court properly relied on the record from appellant's trial, which we have also judicially noticed and reviewed. (See § 1172.6, subd. (d)(3).)
"The key witness to the underlying events was Miguel Medina, who testified as follows: On the evening of April 28, 1996, Miguel and his brother, Jorge, decided to attend the Arena nightclub in Los Angeles. At some time between 9:00 and 9:30 p.m., they parked their pickup truck in a parking lot several blocks from the nightclub. Both Miguel and Jorge were dressed like cowboys or vaqueros, and they wore gold chains and other gold jewelry. Although Jorge had been drinking beer, Miguel had not had any alcoholic drinks.
"After a couple of minutes, Miguel, the driver, and Jorge exited the truck and locked their doors. Appellant then approached Miguel from behind a parked van and pointed a .22 caliber rifle at Miguel's stomach. Miguel did not know appellant. Appellant stood approximately three feet from Miguel, fired the rifle once into the ground, and said, "'Give me the feria, homes,'" and then pointed the rifle again at Miguel. Miguel understood appellant's statement to be a demand for money, and he patted his pocket to indicate that he did not have any money.
"A second man then emerged from behind the parked van, grabbed Jorge by the neck, and held a handgun to Jorge's chest. After several moments, the second man shot Jorge, inflicting a fatal wound. Miguel, who had been looking at appellant, heard the shot and pushed aside appellant's rifle. Appellant fell backwards and grabbed the gold chains on Miguel's neck. As Miguel and appellant struggled, appellant dropped his rifle. The second man ran up to Miguel and shot him in the leg. Appellant and the second man then fled, and Miguel heard two more gunshots. Shortly thereafter, a security guard nearby saw a small black four door car drive away at high speed with its headlights off. Miguel soon discovered that he was missing two gold chains.
"Aside from Miguel's testimony, the prosecution also presented the following evidence: On July 3, 1996, Miguel selected appellant's photograph from a lineup of six photographs. On August 9, 1996, a black Nissan Sentra registered to appellant was found abandoned after it had been involved in an accident in Los Angeles. On August 17, 1996, appellant was arrested in a bar after he had tried to flee from the police. Marks on a live .22 caliber bullet found in appellant's Nissan Sentra indicated that at some point the bullet had been loaded in the rifle that had been fired at the crime scene. Appellant's fingerprint was found on the passenger side of Miguel's pickup truck." (People v. Lopez (Oct. 29, 1998, No. B114837) [nonpub. opn.].)
The prosecutor argued that appellant was liable for Jorge's murder under the felony murder theory. Appellant's counsel argued that appellant was misidentified as a participant in the crime. The jury ultimately found appellant guilty of the first degree murder of Jorge (§ 187, subd. (a)) and the assault of Miguel with a firearm (§ 245, subd. (a)(2)). The jury also found true a robbery-murder special circumstance allegation (§ 190.2, subd. (a)(17)) and further found that appellant personally used a rifle (§ 12022.5, subd. (a)) and that a principal was armed with a handgun (§ 12022, subd. (a)(1)).
The trial court sentenced appellant to life without the possibility of parole on the murder count, plus four years for the personal use enhancement on that count. It sentenced appellant to a consecutive term of two years, four months for the assault and related enhancement. His sentence on the assault conviction and related enhancement was later modified, nunc pro tunc, to a total of seven years. A different panel of this court affirmed appellant's conviction on direct appeal. (People v. Lopez (Oct. 29, 1998, No. B114837) [nonpub. opn.].)
II. Section 1172.6 Petition
On January 7, 2021, appellant filed a petition for resentencing under section 1172.6. On June 1, 2021, the prosecution filed a response arguing that appellant was ineligible for relief because he was a major participant in the robbery and acted with reckless indifference to human life. Appellant's appointed counsel filed a reply on August 17, 2021, arguing that the court should issue an order to show cause because appellant established a prima facie case for relief. The court issued an order to show cause on August 17, 2021.
On June 23, 2022, the prosecution filed an "evidentiary hearing brief," in which it requested judicial notice of and attached the clerk's and reporter's transcripts from appellant's trial and the appellate opinion resolving his direct appeal. The prosecution again argued that the trial record proved beyond a reasonable doubt that appellant was a major participant in the robbery under People v. Banks (2015) 61 Cal.4th 788 (Banks) and acted with reckless indifference under People v. Clark (2016) 63 Cal.4th 522 (Clark). Appellant did not make any additional filings.
The court held an evidentiary hearing on July 19, 2022. It granted the request for judicial notice, which appellant did not oppose; neither side introduced any new or additional evidence. (See § 1172.6, subd. (d)(3).) The prosecutor summarized the facts of the case and contended that appellant was a major participant who acted with reckless indifference under Banks and Clark.
Appellant's counsel conceded that appellant was a major participant, but "strenuously disagree[d]" that appellant acted with reckless indifference. He emphasized that appellant fired a single "warning shot" into the ground and dropped his weapon while physically fighting with Miguel. Appellant's counsel also argued that the record was silent about some Clark factors, including any plan appellant and his co-participant may have had and appellant's knowledge "about the crime partner's proclivity to do anything." Appellant's counsel additionally urged the court to consider that appellant was only 20 years old at the time of the crime: "youth is a factor the court can consider when sentencing the defendant. And the reason the United States Supreme Court has ruled that is because we commonly recognize young people are more prone to make rash decisions because they have youthful brains that are not fully developed."
The court inquired about the purpose of the warning shot. Appellant's counsel responded, "To let the two robbery victims know 'I am armed and I want money.'" The court added, "'And I am willing to use a gun."" It continued, "To me 'warning' means there is something that's gonna come afterwards if my demands aren't met." Appellant's counsel responded by reiterating that appellant's age may have been a factor: "A 20-year-old might rashly discharge a gun saying 'I'm the boss. I want cash.' When he did have the opportunity to tussle and bring the rifle into the tussle he didn't do so. He dropped the rifle and grabbed the guy, referring to Miguel Medina."
In rebuttal, the prosecutor argued that appellant fired his weapon close to the victims with knowledge that his armed companion was nearby. She further asserted that Miguel could have been killed by "[t]he mere ricochet" of the warning shot, and that the death of one or both of the victims was "clearly foreseeable." The prosecutor also asserted that appellant did not voluntarily put down his gun during the fight with Miguel, did not render aid to either victim, and provided the getaway vehicle, in which he fled with the killer. She did not comment on appellant's age.
After stating that it was relying on facts from the reporter's transcript, the court made the following findings and ruling:
"There does not seem to be much factual dispute in this matter. What there is a dispute about is whether those facts give rise to a finding beyond a reasonable doubt that the defendant was a major participant who acted with reckless indifference to human life, and it appears that the defense is conceding the major participant element of this. There is overwhelming evidence that Mr. Lopez was a major participant in this activity of robbing Miguel and Jorge.
"He was the first person to appear. He was armed with a firearm. He was the first person to demand money. He was the first person to shoot. He was the person who grabbed at Miguel's jewelry and fought with Miguel. He provided the escape vehicle and disabled Miguel enough so that he, the co-perpetrator, could shoot and wound him.
"To me there is no doubt he was a major participant and I find he was, beyond a reasonable doubt.
"As to whether Mr. Lopez acted with reckless indifference to human life I believe there is more significance to the firing of the warning shot than the defense believes there was. It shows he was willing to fire a shot along with demanding money and leading to an inference, you're correct [appellant's counsel], that if the demands weren't met there would be more violence ensuing.
"He pointed a firearm at Miguel. He fired it into the ground then he pointed it back at Miguel, again indicating a willingness to use violence against Miguel were his demands not met. His actions potentially conveyed to the co-perpetrator an approval to fire the firearm and after Miguel and Jorge were disabled he fled the scene rather than helping either of them.
"Additional shots were fired as they ran. It is not clear who fired those additional shots, but I believe taken as a whole, Mr. Lopez's conduct displays beyond a reasonable doubt that he acted with reckless indifference to human life. And based upon that I am denying the petition.
"I am using the standard of proof beyond a reasonable doubt as required." Appellant timely appealed.
DISCUSSION
Under current law, a person can only be convicted of murder if he or she acts with malice aforethought, and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) These relatively recent requirements have significantly narrowed the felony murder theory under which appellant was convicted. Now, a participant in the perpetration or attempted perpetration of certain felonies during which a death occurs can be guilty of murder only if (1) he or she was the actual killer; (2) with the intent to kill, he or she "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree"; or (3) he or she "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(3).)
To sustain appellant's murder conviction in light of his facially satisfactory section 1172.6 petition, the prosecution had the burden of proving beyond a reasonable doubt that appellant met one of these three criteria. (§ 1172.6, subd. (d)(3).) It elected to argue that he was a major participant in the robbery and acted with reckless indifference to human life. Because appellant conceded that he was a major participant, the key query was whether he acted with reckless indifference to human life.
"Reckless indifference to human life is 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (In re Scoggins (2020) 9 Cal.5th 667, 676 (Scoggins).) It "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not desire that death as the outcome of his actions." (Clark, supra, 63 Cal.4th at p. 617.) Reckless indifference to human life has both subjective and objective components. (Ibid.; see also Scoggins, supra, 9 Cal.5th at p. 677.) "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.'" (Scoggins, supra, 9 Cal.5th at p. 677.) "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."'" (Ibid.) A defendant must knowingly create a grave risk of death to act with reckless indifference to human life; mere awareness of the foreseeable risk of death inherent in any violent felony is not enough. (Ibid.)
Whether a defendant acted with reckless indifference to human life depends on the totality of the circumstances. (Scoggins, supra, 9 Cal.5th at p. 677.) Relevant factors originally enumerated in Clark, supra, 63 Cal.4th at pp. 618-623 include, "Did the defendant use or know that a gun would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (Scoggins, supra, at p. 677.) None of these considerations is necessary, nor is any necessarily sufficient, to establish reckless indifference. (Ibid.) Ultimately, the determination of whether a defendant acted with reckless indifference to human life is "a fact-intensive, individualized inquiry." (Id. at p. 683.)
As early as February 2021, appellate courts recognized that the defendant's age at the time of the crime was a relevant part of that individualized inquiry. In Harris, supra, 60 Cal.App.5th at p. 960, Division Seven of this court observed "the science relating to adolescent brain development" made it "far from clear" that defendant Harris, who was a youth at the time of the crime, "was actually aware" of dangers posed by the crime. Similarly, in August 2021, Division Three of the First District held that "a defendant's youth at the time of the offense should be a factor in determining whether that defendant acted with reckless indifference to human life." (Moore, supra, 68 Cal.App.5th at p. 439.) Citing precedent from the United States Supreme Court, Moore emphasized that a youthful defendant's mental and emotional development-or lack thereof-should be considered in assessing his or her culpability, and that the "'hallmark features' of youth" such as immaturity, impetuosity, and inability to appreciate risks and consequences "are arguably more germane to a juvenile's mental state than to his or her conduct." (Id. at pp. 453-454.) In particular, a youthful defendant may lack the experience, perspective, and judgment to fully appreciate the risk of death posed by his or her activities. (Id. at p. 454.) Division Seven of the Second District reiterated these points in November 2021. (See People v. Ramirez (2021) 71 Cal.App.5th 970, 987991.)
The relevance of youth was thus well established by the time of the July 19, 2022 evidentiary hearing on appellant's section 1172.6 petition. Indeed, appellant's counsel twice called the court's attention to appellant's youthful age at the time of the crime, arguing that it rendered him more likely to "make rash decisions" or "rashly discharge a gun." The court did not specifically mention appellant's age in its oral ruling, however. Appellant contends this was error and requires remand so the court may "properly consider[] appellant's youth." We disagree.
Although appellant was 20 years old and thus above the age of minority when the crime was committed, multiple statutes define "youth" for various purposes as under 26 years of age. (See §§ 1016.7, subd. (b) [youth as a mitigating factor in plea negotiations], 3051, subd. (a)(1) [youth offender parole hearings], 4801, subd. (c) [parole board must consider the "diminished culpability" of an individual who committed his or her controlling offense when he or she "was 25 years of age or younger"].)
"[W]e presume the trial court followed the law in exercising its duties and duly considered the evidence presented to it." (Jones, supra, 86 Cal.App.5th at p. 1092.) This presumption derives from the "fundamental principle of appellate procedure," that "a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) "In the usual case, the fact that a court did not specifically mention certain evidence does not mean that the court 'ignored' that evidence." (Jones, supra, 86 Cal.App.5th at p. 1092.)
Appellant argues that this is not a usual case because the court did not have the benefit of Jones, supra, 86 Cal.App.5th 1076, which was decided in December 2022. In Jones, the court stated that "a defendant's youthful age must be considered." (Jones, supra, 86 Cal.App.5th at p. 1088, fn. 7; see also id. at p. 1091 ["the totality of the circumstances necessarily includes the defendant's youthful age"].) Although Jones specifically cited Moore and Harris in support of these statements (see id. at pp. 1088, fn. 7, 1091), appellant contends Jones advanced the law further than either of those cases by mandating rather than recommending consideration of youth and therefore warrants remand "in the interests of justice."
Jones itself illustrates why that argument is not persuasive. In Jones, a defendant who, like appellant, was 20 years old at the time of his crimes, sought resentencing under section 1172.6. "Jones's resentencing petition was filed in December 2020. Harris was issued on February 16, 2021. The resentencing hearing took place on March 10, 2021, and the court denied the motion on March 29, 2021, just a few weeks after Harris, without any remonstrance by defense counsel. Moore- the case holding squarely that a defendant's youth is one relevant factor-was not issued until months later in August 2021.
Although defense counsel at the resentencing hearing had mentioned Jones's age and characterized him as immature, the court was not specifically directed to the sentencing report or to Harris. Although counsel had cited Miller [v. Alabama (2012) 567 U.S. 460] and Graham [v. Florida (2010) 560 U.S. 48], those cases were decided in the context of sentencing juveniles to life without possibility of parole." (Jones, supra, 86 Cal.App.5th at p. 1092.) The appellate court concluded that it was "unlikely in this particular instance that the trial court could have known to consider Jones's age and maturity level, particularly to the extent now required by cases issued after Jones's hearing." (Ibid.) It therefore concluded, "in the interest of justice," that "it is best for the trial court to have a meaningful opportunity to consider Jones's youth as part of the totality of the circumstances germane to determining whether he was a major participant who acted with reckless indifference to human life." (Id. at p. 1093.) The court expressed no opinion on how the trial court should rule. (Ibid.)
The court in People v. Pittman (2023) 96 Cal.App.5th 400, 416-418 reached the same conclusion. There, the evidentiary hearing on the defendant's section 1172.6 petition took place before even Harris was decided; the trial court denied the petition on December 28, 2020. (People v. Pittman, supra, 96 Cal.App,5th at p. 412.)
Unlike Jones, where the evidentiary hearing was held less than a month after Harris and before any other case law on the matter, the hearing in this case occurred well after Harris, Moore, and Ramirez established that youth should be considered as part of the reckless indifference inquiry. The trial court certainly should have known to consider appellant's age and maturity level, particularly after appellant's counsel raised the issue twice. Indeed, we presume it did. (Jones, supra, 86 Cal.App.5th at p. 1092.) Appellant's speculation to the contrary does not defeat that presumption.
We are no more persuaded by the fact that Jones, unlike Harris, Moore, and Ramirez before it, involved a defendant who was youthful but not a juvenile. A defendant's age and maturity level are relevant to the totality of the circumstances in any event, and we presume the trial court was well aware of the statutes and case law recognizing that "youth" extends beyond the age of majority.
Appellant also asserts that equity favors remand here, as "respondent cites no harm to the People in a simple remand to the superior court for reconsideration in light of the recent developments in the law in this area," whereas "appellant is potentially serving an improper sentence." We reject this contention as unsupported by any authority. Moreover, it implies that appellant's youth is outcome determinative, but "[t]he fact of youth cannot overwhelm all other factors." (People v. Mitchell (2022) 81 Cal.App.5th 575, 595.)
Appellant does not otherwise challenge the court's ruling by, for instance, arguing that it was unsupported by substantial evidence. (See, e.g., People v. Clements (2022) 75 Cal.App.5th 276, 298 [factual findings made in the context of section 1172.6 petitions are reviewed for substantial evidence].) We accordingly end our discussion here. (See People v. Chadd (1981) 28 Cal.3d 739, 746 ["We will not, of course, adjudicate hypothetical claims or render purely advisory opinions."].)
DISPOSITION
The order is affirmed.
We concur: MORI, J., ZUKIN, J.