Opinion
B324847
02-28-2024
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL FLORES PACHECO, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. GA076653 Michael D. Carter, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 2011, a jury found Miguel Pacheco guilty of first degree murder with true findings on principal-armed allegations. That conviction was later reduced to second degree murder. In 2022, Pacheco petitioned for resentencing under Penal Code section 1172.6, which limits accomplice liability for murder. After an evidentiary hearing, the trial court denied the petition, finding beyond a reasonable doubt that Pacheco was guilty of second degree implied malice murder. Pacheco appeals, contending there was insufficient evidence he aided and abetted second degree implied malice murder. We reject that contention and affirm the order.
All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
I. Evidence from trial
In June 2008, a group of friends in Pasadena called themselves Pepper Street. The group included Pacheco, Ernesto Hernandez, Albert Guzman, and Fernando Valencia. They would party and fight other groups. In 2007, a friend of Pepper Street's was murdered by, Pepper Street believed, Summit Street, a rival.
On the evening of June 27, 2008, Pacheco drove Valencia, Guzman, Hernandez, and Hilario Canizales to a party in Pasadena. Guzman had a gun that held one bullet at a time. After leaving the party, they drove around until they encountered 16-year-old Anthony Taylor. Pacheco's car pulled up next to Taylor and someone in the car asked Taylor if he was from B.Y.S., a party crew. Taylor said he was from another party crew, Neon Squad. When the people in the car laughed, Taylor asked," 'What?'" This angered the men in the car. Taylor saw that someone in the car was holding a little bat, which the man "flinched" or "swung" at Taylor, who told them to move the car. Instead, the men exited the car and beat Taylor until he was unconscious and had suffered cuts, two black eyes, a swollen forehead, and a fractured nose. Valencia testified that everyone got out of the car and "everybody" punched Taylor. Guzman fired his gun into the air, Valencia said to break up the fight.
After beating Taylor, the group got back into Pacheco's car and drove around, still looking for people they didn't like, such as people from Summit Street (derogatorily referred to as "suckas"). Somebody said," 'We're going to drive around looking for somebody.'" Valencia testified that Guzman still had the gun.
Michael Delatorre ("Hits"), a Summit Street associate, was in front of his house. Someone told Pacheco to do a U-turn, because it was" 'Hits from Summit.'" Pacheco made a U-turn, and as they got closer to Delatorre, Delatorre walked towards the car. Guzman said," 'fuck suckas,'" and shot Delatorre once, killing Delatorre. Delatorre's girlfriend, who witnessed the shooting, testified that he was not holding anything before he was shot.
When detectives interviewed Pacheco, he initially admitted knowing there was a gun in the car and then denied it. He also said they were looking for anybody to fight. He was "buzzed" and heard a gunshot, and "then when I was in the . . . they were just like, 'Go,' so I was like you know, . . . I was stuck."
Valencia, at the behest of law enforcement, surreptitiously recorded a conversation with Guzman after Delatorre was killed. Guzman said he regretted it with all his heart. He said that the next day he asked himself what he had done: "What the fuck . . . he called you a pretty boy . . . why you have to do this stupid shit right here."
A gang expert testified at trial that Pepper Street is a gang whose criminal acts include murder, firearms possession, simple assaults, assaults with a deadly weapon, and tagging. In the expert's opinion, Pacheco, Guzman, and Hernandez were Pepper Street gang members. Pepper Street and Summit Street are rivals.
On cross-examination, the expert said he based his opinion that murder was one of Pepper Street's primary activities on Delatorre's murder.
Guzman testified at trial in his defense. He said they beat up Taylor because Taylor talked "smack" to them. Guzman denied hitting Taylor and said he fired his gun into the air to break up the fight. When they got back into the car, Guzman gave the gun to Valencia, who reloaded it. With Pacheco driving, they continued to look for rivals to fight. They talked about fighting, and Pacheco said," 'Come on. Let's go fight.'" They drove to Figueroa and made a U-turn. Delatorre was standing a few feet from the curb, and Valencia said," 'Fuck Suckas.'" Guzman was only intending to fight, but Delatorre ran toward the car as if he was holding something to his side. Another person was running down the driveway. Afraid for his life, Guzman grabbed the gun and fired it, although he didn't aim. A big rock fell from Delatorre's hand after he was shot. They left because they were scared.
II. Verdict, sentence, and appeal
Pacheco was jointly tried with Guzman and Hernandez. In 2011, a jury found them guilty of first degree murder (§ 187, subd. (a)) and found true gang allegations (§ 186.22, subd. (b)(1), (4)). As to Pacheco and Hernandez, the jury found true principal gun use allegations (§ 12022.53, subds. (b), (c), (d) &(e)(1)). However, the jury found true personal gun use allegations as to Guzman (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced Pacheco to a total term of 50 years to life.
On appeal, this Division reversed Pacheco's murder conviction under People v. Chiu (2014) 59 Cal.4th 155, which held that a first degree murder conviction based on the natural and probable consequences doctrine is invalid. (People v. Guzman (Oct. 23, 2014, B243895) [nonpub. opn.].) On remand, Pacheco's sentence was reduced to second degree murder, and the trial court resentenced him to 40 years to life.
III. Pacheco's petition for resentencing
In 2019, Pacheco petitioned for resentencing under section 1172.6, and the trial court appointed counsel to represent him. The People opposed the petition, but the trial court found that Pacheco had made a prima facie showing of eligibility for relief and held an evidentiary hearing.
At the evidentiary hearing, the parties did not submit new or additional evidence and instead relied on the record of conviction, including the reporter's transcript of trial and Pacheco's and Hernandez's interviews with detectives. The People also submitted supplemental briefing arguing that Pacheco was liable as a direct aider and abettor to second degree murder, either with express or implied malice.
The trial court found beyond a reasonable doubt that Pacheco acted with implied malice. In support of its finding, the trial court found that the acts Pacheco committed were making a U-turn to stop the car alongside rival gang member Delatorre while Guzman shot Delatorre in the back, and then driving from the scene. As to Pacheco's mens rea, he knew, based on the beating of Taylor, that his cohorts were willing and able to commit violent acts against rival gang members. Indeed, Pacheco admitted to law enforcement that they were looking for people to fight. Further, Pacheco knew that Guzman had a gun and was willing to fire it. The trial court summarized, "Knowing that they were hunting for rival gang members, [Pacheco] followed instructions to make a U-turn, pulled the car up alongside Delatorre, a rival gang member, stopped long enough for Guzman to shoot him, and then drove away after the shooting. [Pacheco] clearly intended to aid in the commission of dangerous and violent acts against rival gang members and consciously disregarded the potential danger to human life inherent in those acts. Accordingly, the evidence demonstrates beyond a reasonable doubt that [Pacheco] was a direct aider and abettor who acted with implied malice."
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986 (Reyes); People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill 1437 added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that "to be convicted of murder, a principal in a crime shall act with malice aforethought" and malice "shall not be imputed to a person based solely on his or her participation in a crime"). As amended by Senate Bill No. 775, effective January 1, 2022, these ameliorative changes to the law now expressly apply to attempted murder and voluntary manslaughter.
Senate Bill 1437 also created a procedure, codified in section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under current law. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under current law. (People v. Strong (2022) 13 Cal.5th 698, 708.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing at which the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under the law as amended by Senate Bill 1437. (§ 1172.6, subds. (b)(3), (c), &(d)(1).) At the section 1172.6, subdivision (d)(3) evidentiary hearing, the parties may offer new or additional evidence. The trial court sits as an independent factfinder to determine beyond a reasonable doubt whether the defendant is guilty of murder under a valid theory. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
On appeal, we review the trial court's findings for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues or evidentiary conflicts. (Ibid.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Before we may set aside a trial court's order, it must be clear that"' "upon no hypothesis whatever is there sufficient substantial evidence to support [it]." '" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
II. Implied malice murder
Pacheco contends there was insufficient evidence to support the trial court's finding he directly aided and abetted second degree implied malice murder. As we now explain, we disagree.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) The primary difference between express malice and implied malice is the former requires an intent to kill but the latter does not. (People v. Soto (2018) 4 Cal.5th 968, 976.) Implied malice murder instead requires the killing be proximately caused by an act," '" 'the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Reyes, supra, 14 Cal.5th at p. 988.) Proximate causation requires the act to have been a substantial factor contributing to the death. (Ibid.) And conscious disregard for human life refers to a state of mind in which the person knows the conduct is dangerous to others but does not care if someone is hurt or killed. (People v. Murphy (2022) 80 Cal.App.5th 713, 726.)
Implied malice remains a valid theory of second degree murder liability for an aider and abettor after Senate Bill 1437's enactment. (Reyes, supra, 14 Cal.5th at p. 991; People v. Gentile, supra, 10 Cal.5th at p. 850.)
The guilt of an aider and abettor to a crime, including murder, is "based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "A person aids and abets the commission of a crime when [the person], (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Accordingly, a direct aider and abettor of implied malice murder must, by words or conduct, aid the perpetrator's commission of a life-endangering act with the "knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life," and the aider and abettor must act "in conscious disregard for human life." (People v. Powell (2021) 63 Cal.App.5th 689, 713, italics omitted, cited with approval by Reyes, supra, 14 Cal.5th at p. 991 [implied malice murder requires proof of aider and abettor's "knowledge and intent with regard to the direct perpetrator's life endangering act"].) In other words, under current law, "a direct aider and abettor of the killing who knew that his (or her) conduct endangered the life of another and acted with conscious disregard for life, may be guilty of second degree murder." (People v. Langi (2022) 73 Cal.App.5th 972, 979.)
In Reyes, our California Supreme Court clarified the type of act committed by an aider and abettor that is dangerous to human life for the purposes of implied malice murder. An act that merely creates a dangerous situation in which death is possible, depending on how circumstances unfolded, standing alone will not satisfy the proximate causation requirement of implied malice murder. (Reyes, supra, 14 Cal.5th at p. 989.) Rather, implied malice murder requires a high probability death will result; the danger to life cannot be merely vague or speculative. (Ibid.; People v. Cravens (2012) 53 Cal.4th 500, 513 [probability of death cannot be remote or merely possible].)
In Reyes, supra, 14 Cal.5th at page 985, for example, the defendant Reyes was at a park with fellow gang members, one of whom openly displayed a gun. After someone in Reyes's group called out to a passing car, the group chased the car, and someone (not Reyes) shot at the car, killing its driver. (Ibid.) The court found that Reyes's act of traveling with an armed fellow gang member into rival gang territory could result in a gang confrontation during which it was possible someone could get hurt or killed, but the act did not by itself "give rise to a high degree of probability" death would result. (Id. at p. 989.) Further, there was no evidence Reyes's "acts precipitated or provoked the shooting." (Ibid.) And if the act of shooting was the dangerous act, there had to be evidence Reyes knew the shooter intended to shoot, intended to aid him in shooting, knew shooting was dangerous to life, and acted in conscious disregard of life. (Id. at pp. 991-992.)
Reyes is distinguishable because here there was sufficient evidence Pacheco knew Guzman was going to commit a lifeendangering act against Delatorre, aided and abetted that act by doing a U-turn and pulling the car alongside Delatorre, knew the act was dangerous to human life, and consciously disregarded the risk to human life. In contrast to Reyes, this was not a chance encounter between gang members and a passing car. Rather, Pacheco and his companions were together that night for the express, stated purpose of fighting rivals. Pacheco was looking for people to fight, knowing that Guzman was armed with a gun and that another of his companions had a bat.
Further, as the trial court found, what happened before Guzman shot Delatorre was key to showing that Pacheco knew pulling the car alongside Delatorre was dangerous to human life and consciously disregarded the risk to human life. (See generally People v. Glukhoy (2022) 77 Cal.App.5th 576, 599 [conduct before and after the offense relevant to determine whether defendant aided and abetted a crime]; People v. Thomas (2011) 52 Cal.4th 336, 355 [defendant's actions leading to crime may be relevant to mens rea and intent at time of crime].) That is, Pacheco and his companions had already engaged in a lifeendangering act before encountering Delatorre: they beat Taylor until he was unconscious. Participating in a group, gang-related beating of one person can be a life endangering act. (See, e.g., People v. Schell (2022) 84 Cal.App.5th 437, 442-443 [evidence sufficient to support implied malice second degree murder where defendant was one of about eight gang members who participated in assault, defendant knew he was aiding attack, he knew others were using shovel and bat, and he intended to stop victim from escaping]; People v. Cravens, supra, 53 Cal.4th at pp. 510-511 [violent force of defendant's sucker punch to victim's head was predictably dangerous to human life].)
Further, Guzman's use of the gun during the assault on Taylor put Pacheco on notice that Guzman was willing to use it. Pacheco also knew the gun might be used again because it held one bullet at a time, and someone reloaded it in the car, after the assault on Taylor.
After the group, including Pacheco, beat Taylor into unconsciousness, they continued to drive around, looking for more rivals. When they saw Delatorre, a recognized rival, Pacheco pulled the car alongside him. Pacheco's acts of looking for rivals to fight with an armed companion and of pulling the car alongside Delatorre gave rise to a high probability death would result. Having already engaged in a life-endangering act against Taylor, Pacheco hardly could have doubted that another lifeendangering act would occur when he pulled the car alongside Delatorre.
Pacheco, however, argues that this evidence merely shows his intent to "fight," implying that fighting is unlikely to be dangerous to human life. In context, what happened here went beyond pushing and shoving and ineffectual blows. Here, five men, one armed with a gun and perhaps another with a bat, beat Taylor into unconsciousness. That Taylor did not suffer injuries more serious than a swollen forehead, cuts, black eyes, and a fractured nose does not undermine the violence of the attack and the danger to Taylor's life, especially when the nature of Taylor's injuries suggest the beating focused on his head. We cannot agree that Taylor had to be shot or beaten to the point of death for Pacheco to be on notice that he and his companions were engaging in life-threatening behavior. Pacheco was on particular notice that Guzman was violent based on Guzman's discharge of the gun during the Taylor assault, and the trier of fact was entitled to conclude that firing a gun, even into the air, is a dangerous and violent act. Thus, the prior incident put Pacheco on notice that his companions were violent; yet, he continued with them, looking for a new victim and stopping alongside Delatorre.
We therefore conclude that sufficient evidence supports the trial court's finding that Pacheco aided and abetted second degree implied malice murder.
II. Law of the case
We next reject Pacheco's argument that, under the law of the case doctrine, this Division's "findings" in People v. Guzman, supra, B243895, "constitute a judicial determination that the evidence" at trial "did not prove beyond a reasonable doubt that [Pacheco], while personally acting with implied malice, directly aided and abetted" Guzman to commit murder. We disagree that the law of the case doctrine precluded the trial court from concluding that Pacheco aided and abetted the murder.
Under the law of the case doctrine, when an appellate court"' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal." '" (People v. Stanley (1995) 10 Cal.4th 764, 786.)
Here, the issue in this Division's prior opinion was whether the then-recent decision of People v. Chiu, supra, 59 Cal.4th 155, required reversal of Pacheco's judgment. Chiu, at page 167, held that the natural and probable consequences doctrine does not apply to first degree premeditated murder, and a conviction under that theory must be reversed unless the reviewing court can conclude beyond a reasonable doubt that the jury based its verdict on a legally valid theory. In this case, Pacheco's jury was instructed on the natural and probable consequences doctrine (an invalid theory) and direct aiding and abetting (a valid theory). (People v. Guzman, supra, B243895.) Because this Division could not determine whether Pacheco was convicted under the valid theory, it reversed and remanded the matter to the trial court. In doing so, this Division noted that the evidence could raise different inferences, including that the defendants were looking for people to fight and not to shoot. (Guzman, supra, B243895.) However, at no point did the prior opinion state there was insufficient evidence Pacheco could be guilty of second degree implied malice murder as an aider and abettor. That was not the issue in Guzman. Accordingly, the law of the case doctrine does not apply.
DISPOSITION
The order is affirmed.
We concur: LAVIN, J., EGERTON, J.