Opinion
B317602
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. JESSE PITTS, Defendant and Appellant.
Alan Siraco, 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, Idan Ivri and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. TA016655 John J. Lonergan, Jr., Judge. Affirmed.
Alan Siraco, 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, Idan Ivri and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
COLLINS, J.
Appellant Jesse Pitts challenges the denial of his petition for resentencing under former Penal Code section 1170.95 after an evidentiary hearing. The trial court made alternative findings that appellant aided and abetted murder or was a major participant in the torture of the victim and acted with reckless indifference to human life. Appellant contends these findings must be reversed because the trial court improperly relied on the facts as summarized in a previous appellate opinion and failed to fulfill its statutory role as factfinder. Appellant alternatively contends that neither finding is supported by substantial evidence. We reject these contentions and affirm. The trial court expressly stated that it considered the transcripts from appellant's trial, and substantial evidence supports the findings that appellant acted with implied malice and aided and abetted murder. We do not address the alternative finding regarding felony murder or the parties' supplemental filings related to that issue. Respondent filed a supplemental response, and appellant filed a supplemental reply.
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.
FACTUAL BACKGROUND
We draw the following facts from the reporter's transcript of appellant's trial, which was admitted into evidence at the section 1172.6 evidentiary hearing. In accordance with the applicable substantial evidence standard of review, we view the record in the light most favorable to the order. (See People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).)
I. The Victim
In the early morning hours of January 3, 1992, Los Angeles Police Department (LAPD) officers responding to a call about an assault at an apartment complex found a man later identified as Cornelius Johnson lying facedown in the complex's courtyard. One of the officers, Rudolfo Chong, testified that Johnson had lacerations and blood on his face and "had a big pool of blood by his head. His pants were pulled past his buttocks, and the insides of his pockets were turned out." A water hose was running nearby. Medical personnel responded to the scene and pronounced Johnson dead.
A medical examiner who reviewed the autopsy report testified that Johnson "died as a result of blunt head and facial injuries." Those injuries included a broken nose, bruising and torn skin around the eyes, scraping and contusions to the forehead, lacerations to the lips, a "through-and-through laceration of the scalp," and "contusion hemorrhage of the tongue." Johnson also had "bleeding underneath the covering of the brain and on the left side of the brain," though his teeth "were relatively intact." The medical examiner testified that these injuries were consistent with blows from fists, kicks and stomps with feet, and Johnson's head "being banged against concrete." The medical examiner opined that Johnson's head injuries would have been fatal though he also noted that "one of the mechanisms of death" was the aspiration of blood into Johnson's airway as a result of the nasal bone fracture.
The medical examiner also testified that Johnson suffered "rectal trauma" and swelling of his internal organs consistent with the insertion of a running water hose into his rectum while he was alive. More than a gallon of water was found inside Johnson's abdominal and chest cavities. The medical examiner opined that the insertion of that much pressurized water into Johnson's body alone could have caused his death. However, the medical examiner also testified that the water likely "hastened his demise" by tearing Johnson's mucosa and leading to shock.
II. Apprehension and Interrogation of Appellant
Officer Chong testified that when he initially arrived at the apartment complex, he saw three Black men who were "hunched over, bent over" and "appeared to be doing something" in the front courtyard of the complex. One of the men, later identified as Alfred Wilson, made eye contact with Chong before all three took off running north through the apartment complex.
LAPD officer Ernest Williams and his partner, officer Nolte, had responded to the assault call as backup. When Williams heard on the radio that three suspects ran north, he and Nolte drove a few blocks north of the apartment complex. Williams testified that he saw a Black man walking northbound a few minutes later. The man, later identified as appellant, had mud on his sleeves, pants, and shoes and was "looking over his shoulder." When Williams stopped appellant, he noticed "fresh cuts" and "pretty fresh" blood on appellant's hands and blood on his sock. Appellant "had difficulty breathing" as he was talking to the officers, who arrested him. Wilson and David Conley were also apprehended nearby, separately from appellant. Another codefendant, James Kelly, was also apprehended.
At the police station, LAPD detective Mark Arnesoninstructed officers to take photographs of appellant, Wilson, and Conley. The photographs of appellant's hands showed "open lacerations" on his knuckles and blood on his palm. Appellant also had grass and dirt "transfer" along the sleeves and cuffs of his sweatshirt, and "water indicia marks" on the cuff. Arneson then interrogated appellant, who told Arneson that he had been at the apartment complex with "numerous individuals" when Johnson entered the courtyard. Arneson testified that appellant told him "a massive beating occurred, where everybody participated in beating the victim to the ground." Appellant said he participated in the beating, striking Johnson in the head "two or three" times with his right fist because he "was caught up in the excitement." Appellant admitted that he saw Johnson's nose bleeding, and that his blows to Johnson's head caused the injuries to his own knuckles. Appellant stated that the beating lasted "a couple of minutes." He denied kicking Johnson or seeing anyone with a hose, but said that he beat up Johnson "pretty good."
In connection with motions for new trial filed in mid-1994, appellant and Wilson presented evidence that a punitive damages award had been entered against Arneson in connection with search warrant misconduct in another case. The trial court denied the motion, and a different panel of this court affirmed that ruling on direct appeal. (See People v. Pitts (Jun. 24, 1996, No. B087300) [nonpub. opn.] (Pitts I).) We deny appellant's request that we take judicial notice of a federal guilty plea Arneson entered in 2017. Appellant made no effort to introduce this or any other evidence relating to Arneson during the section 1172.6 proceedings.
III. Eyewitness Testimony
A. David Conley
Conley, who pled guilty to voluntary manslaughter in exchange for testifying at the joint trial of appellant, Wilson, and Kelly, testified that he and appellant went to the apartment complex together. Ten to 15 people were outside in the courtyard, including Wilson and Kelly. Johnson entered the courtyard from the alley, and nine or 10 people started beating him up almost immediately. After some period of time, most of the people left, leaving Conley, Wilson, Kelly, and appellant in the courtyard with Johnson. At that time, Conley saw Kelly "socking" Johnson in the face with a closed fist. Conley testified that appellant was "helping" Kelly, and clarified that meant appellant was also "socking" Johnson with a closed fist, "something like" between five and 10 times. Johnson's face was bleeding.
Wilson was "standing up there, telling them to let him go." Kelly stopped hitting Johnson, but appellant "was still hitting him all by himself." Appellant used only his fists; Conley did not see him kick Johnson. Conley estimated appellant "socked" Johnson "about four or five more times," and continued to do so even as Johnson fell to the ground and attempted to get back up. At that point, Conley, who admitted to kicking and "socking" Johnson during the earlier melee, told appellant, "Raise up off of him before you kill him. That's enough." Appellant stopped striking Johnson, "stepped back a few feet and watched" as Wilson began trying to pull Johnson's pants down.
Johnson, still on the ground, resisted; he pulled his pants back up and said things like, "Let me go. What you doing to me?" Wilson then told Kelly to "stomp him out." Kelly approached Johnson and used his feet to "stomp" Johnson in the face between six and 10 times. Wilson then told Kelly to turn on the hose and kick Johnson so Wilson could get Johnson's pants down. Kelly complied. Wilson then stuck the running hose into Johnson's rectum "about two or three times." Appellant stood "in the dirt" about five feet away from Johnson, "looking" at Wilson and Johnson; Conley was about 10 to 12 feet away. Conley estimated the hose portion of the attack took "a few minutes" and ended when the police arrived on the scene. Conley, Wilson, Kelly, and appellant ran away together before splitting up.
B. Neighborhood Witnesses
Tasha Cornett, who lived in the apartment complex, testified that she saw Wilson and Kelly, whom she knew by nicknames, standing in the courtyard in a group of 15 people when she got home around 11:00 p.m. on January 2, 1992. In the early morning hours of January 3, she was awakened by a noise outside and saw Kelly "socking," kicking, and "stomping" a man who was "staggering" toward the gate and then lying on the ground. She then saw Wilson pull the "knocked out" victim's pants down and insert a water hose into his rectum "several times." Cornett testified that the whole incident lasted about an hour to an hour and a half. After portions of an interview she gave to LAPD detectives Arneson and Burns were played for the jury, Cornett testified that she told the detectives that she saw four men beating the victim equally, but only knew Wilson and Kelly.
Mary Leigh, who lived across the street from the apartment complex, testified that she saw appellant, Wilson, and Kelly at the apartment complex on the night of January 2, 1992, but she denied seeing the incident or telling police she did. Arneson testified that when he spoke with Leigh, she told him that she witnessed the incident. According to Arneson, Leigh said she saw appellant, Wilson, and Kelly beating a man with their fists, feet, and "the end of a hose," knocking him to the ground every time he tried to get up. She said appellant "was kicking and punching" the victim, and that Wilson was the one with the hose.
Jackie Smith, Leigh's niece, testified that she saw "a guy on the ground" with "a water hose up his butt, but there was nobody around." She denied seeing anything happen. LAPD detective Clarence Speer testified that he conducted in-person lineups at which Smith identified appellant and wrote "I'm not saying that's him, but it could be like I'm saying, it may not be him."
PROCEDURAL HISTORY
I. Charges and Conviction
An information filed July 30, 1993 charged appellant, Wilson, and Kelly with the murder (§ 187) and anal penetration (§ 289) of Johnson. The information further alleged that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It also alleged that appellant suffered a prior serious felony conviction (§ 667, subd. (a)).
Appellant, Wilson, and Kelly were tried jointly. The jury was instructed on first and second degree murder, express and implied malice, first degree murder by means of torture, the torture special circumstance, aiding and abetting, and the natural and probable consequences doctrine. The jury was not instructed on felony murder.
The jury found all three codefendants guilty of first degree murder and anal penetration, though it found the torture special circumstance not true. The trial court subsequently found true appellant's prior conviction. The court sentenced appellant to a term of 25 years to life for the murder, a consecutive midterm of six years for the anal penetration, and a consecutive five years for the prior. A different panel of this court affirmed appellant's (and Wilson's and Kelly's) convictions and sentence on direct appeal. (Pitts I, supra.)
II. Section 1172.6 Proceedings A. Petition and Previous Appeal
Appellant filed a section 1172.6 petition on April 8, 2019. The trial court appointed counsel for appellant and received briefing from both the prosecution and appellant's counsel. The court summarily denied appellant's petition on August 5, 2019, and again on March 12, 2020, finding that the jury was instructed on valid theories of murder in addition to the natural and probable consequences doctrine, and that appellant "played a major role" and acted with reckless indifference to human life during the commission of the crimes.
A more nuanced discussion of the circumstances that led to the petition being denied twice and other procedural aspects of the case not relevant here can be found in People v. Pitts (Jan. 25, 2021, No. B306804) [nonpub. opn.] (Pitts II).
Appellant appealed the denials of his petition. The Attorney General conceded that the trial court erred in denying the petition because the record before the trial court did not establish appellant's ineligibility for relief as a matter of law. A different panel of this court agreed and remanded the matter with directions for the trial court to issue an order to show cause and conduct an evidentiary hearing. (Pitts II, supra.)
B. Evidentiary Hearing and Ruling
On remand, the prosecution filed a supplemental opposition to appellant's petition. It argued that appellant could still be found guilty of murder under three theories: he was an actual killer, he committed implied malice murder, or he was a major participant in the torture of Johnson who acted with reckless indifference to human life. The prosecution also filed a disc containing the reporter's transcript from appellant's trial.
Torture in violation of section 206 was added to the section 189 list of predicate felonies for felony murder in 1999. (People v. Pearson (2012) 53 Cal.4th 306, 319.) Appellant was not charged with torture, but was charged with and convicted of anal penetration in violation of section 289, which was added to the felony murder list in 1990. (See People v. Cruz (2020) 46 Cal.App.5th 740, 759.) It is not clear why the prosecution relied on section 206 rather than section 289.
Appellant filed a supplemental response, in which he argued that the prosecution could not present new theories not offered at his original trial. Appellant also filed a declaration in which he stated that he did not intend to kill Johnson. He stated that the fight at the apartment complex had already begun when he arrived; he knew he was getting involved in a fight but had been in "many" fights before and none had been fatal; he stopped fighting when Conley said to; and he did not assist Wilson and Kelly with their stomping of Johnson and use of the hose.
The court held an evidentiary hearing on December 17, 2021. Prior to argument, appellant's counsel advised the court that "new laws are going to be effective January 1st in regards to definitions regarding what we are discussing today." The court responded, "let me make sure the record is very clear on this for any appellate review. What the court is looking at on the current law, I am not projecting out to the future and making any assumptions, but my ruling will be based on the current law and that's how this case will be reviewed. Since the People need to prove up that the defendant had the intention to kill since the murder, part of the theory at the time was it was based on the actual [sic] and probable consequences doctrine. The law indicates that for the intent to kill what the court is looking at is did the defendant aid and abet, counsel, command, induce, solicit, request or assist the actual killer with the intent to kill."
Senate Bill No. 775 (Stats. 2021, ch. 551), which took effect January 1, 2022, amended former section 1170.95 to expand its reach to attempted murder and manslaughter. It also added language precluding murder liability predicated on any theory of imputed malice, and limiting the trial court's consideration of prior appellate opinions at the evidentiary hearing to "the procedural history of the case recited in any prior appellate opinion."
Appellant's counsel then argued that appellant was not an aider and abettor because he stopped participating in the fight after Conley told him to and did not partake in the stomping or hose incidents. The prosecution responded that appellant was an "equal" participant in the "90-minute beat-down" that was severe enough to kill Johnson. The prosecution further argued that the first degree murder verdict and not-true torture special circumstance finding suggested that the jury "believed it was murder that came about by torture" and appellant was a major participant in that. The prosecution added that "the evidence by the trial transcript that addresses any theoretical concern by the new law and the court that is the actual evidence from the trial the court can rely on. I do believe it is enough to find the defendant is still responsible for this horrendous crime."
"Torture as a predicate for first degree felony murder is distinct from first degree murder as a killing 'perpetrated by means of . . . torture' (§ 189)," a theory on which the jury in this case was instructed. (People v. Pearson, supra, 53 Cal.4th at p. 319, fn. 3.) "'The elements of first degree murder by torture are: "(1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.]" [Citation.] The prosecution need not establish that the defendant intended to kill the victim [citation], but must prove a causal relationship between the torturous acts and the death [citation].'" (Ibid.)
The court then stated it was going to deny the petition. It began its remarks by stating that it would "quote the fact pattern from the original appellate decision." The court then summarized the facts of the incident. It noted that appellant "was told to stop and warned that he could kill Johnson, he continued to punch him even when the victim was down," and "at no time left the group that he originally was with or with the other two codefendants. So that's what the court is considering."
The court continued: "Then I take that and pursuant to the law as it is to the natural and probable consequence I look to see if the defendant's actions or the petitioner's now actions were in any way aiding and abetting, counseling, commanding, induced, solicited, requested or assisted the actual killer with the intent to kill. [¶] It is the court's opinion that the defendant and petitioner Pitts did have the intent to kill because the facts show he certainly aided and abetted and he assisted the actual killer throughout this conduct including the beat-down and then as far as the hose with the rectum. He was one of several bystanders that continued to stay there even after many others left when the beating started. If Mr. Pitts doesn't fit the definition of aiding and abetting, then I don't know who would under those facts so that is the court's finding."
The court then addressed the prosecution's "other position, if the appellate court wants to look at that, the court is in agreement that he was a major participant in the torture of the victim, but [the prosecution's] position is on the record. And if an appellate court found that Mr. Pitts did not fit the definition of aiding and abetting and didn't have the intent to kill, then the court would agree with [the prosecution] as far as his conviction on the torture as an aider and abettor."
At the conclusion of the court's remarks, the prosecution stated, "I want to clarify and make sure the record is clear the court also found the facts the court of appeal found true as well as based on the transcripts and documents in the court's review." The court responded, "I did. That was all in consideration. Not only certainly as I quoted from the actual original appellate opinion, that is what my facts are based on. Not on [appellant's counsel]'s motion or not on [the prosecution]'s motion even though I think both sides summarized pretty close to, if not exactly, as the appellate court found. But that's what the court is basing the facts on in my analysis in my decision."
The prosecution responded, "Okay. Just to make sure because the court also said the trial transcript." The court then stated, "I had the trial transcripts but I had the jury instructions and the court is not doing any fact finding on its own. I'm simply taking the facts as they were deemed to be at the time of the trial from any transcripts I reviewed, the jury instructions and the appellate opinion that was dated and filed on June 24, 1996."
Appellant timely appealed.
DISCUSSION
I. Governing Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.) 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. (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).) Under this new framework, a person's culpability for murder must be premised upon his or her own actions and subjective mens rea. (Ibid.) Thus, a person may not be liable for murder under the felony murder rule unless he or she was the actual killer; with the intent to kill, "aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer"; or was a major participant in the underlying felony and acted with reckless indifference to human life. (Ibid., quoting § 189, subd. (e).) Outside the felony murder context, a person must act with malice aforethought to be convicted of murder; "'[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (Id. at p. 449, quoting § 188, subd. (a)(3).)
A person may still be convicted of murder as an aider and abettor. (Reyes, supra, 14 Cal.5th at p. 990.) Indeed, "'an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (Ibid., quoting People v. Gentile (2020) 10 Cal.5th 830, 850.) To be liable for an implied malice murder, a direct aider and abettor must aid the commission of the life-endangering act, with the knowledge that the perpetrator intended to commit the act, the knowledge that the act is dangerous to human life, the intent to aid in its commission, and with conscious disregard for human life. (Id. at p. 991.)
An individual convicted of murder under a now-invalid theory may petition the trial court under section 1172.6 to vacate his or her conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subd. (a).) If the trial court determines the petitioner has made a prima facie showing for relief and issues an order to show cause, the court must hold an evidentiary 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, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1172.6, subd. (d)(1).) At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under current law. (§ 1172.6, subd. (d)(3).) 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 recited in any prior appellate opinion." (Ibid.) Additionally, the prosecutor and petitioner "may also offer new or additional evidence." (Ibid.) The court "reviews the record, hears the testimony, and decides as a factual matter whether the petitioner committed murder under the current law." (People v. Clements (2022) 75 Cal.App.5th 276, 297 (Clements).) "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." (§ 1172.6, subd. (d)(3).)
In reviewing the denial of a section 1172.6 petition after an evidentiary hearing, we review the trial court's factual findings for substantial evidence and the application of those facts to the statute de novo. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) Under the substantial evidence standard, we examine the record in the light most favorable to the judgment to determine whether it contains substantial evidence, contradicted or uncontradicted, from which a rational trier of fact could find the petitioner guilty beyond a reasonable doubt. (Clements, supra, 75 Cal.App.5th at p. 298; see also Reyes, supra, 14 Cal.5th at p. 988.) Ultimately, we review the correctness of the court's decision, not its rationale. (See People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1239; People v. Zapien (1993) 4 Cal.4th 929, 976; People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12; see also US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 909 ["We do not review the rationale for the court's decision. Rather, if there is substantial evidence to support the result under the correct standard, we will affirm."].)
II. Analysis
A. Factfinding and Use of Appellate Opinion
Appellant contends the court erred by failing to fulfill its statutory role as factfinder at the evidentiary hearing. He asserts that "instead of considering admissible evidence, [the trial court] expressly relied on this court's 1996 summary of facts presumably found by the jury, and it did nothing more than review that summary for substantial evidence of guilt." We are not persuaded.
Despite any statements that could be construed to the contrary, the transcript of the evidentiary hearing overall indicates that the trial court understood its obligation to make factual findings based on admissible evidence. The court recognized that "the People need to prove up that the defendant had the intention to kill," that the court "needs to make a decision on whether or not the defendant acted with the intent to kill," and that the court had to consider appellant's actions to make that determination. The prosecution also reminded the court of its obligation, stating, "you, the court, makes its independent review," and emphasizing that "the trial transcript . . . is the actual evidence from the trial which the court can rely on." The court subsequently stated that it was "the court's opinion that the defendant and the petitioner Pitts did have the intent to kill," and cited various facts in the record to support that finding.
Appellant acknowledges these statements, but contends "the clear gist of the court's advice to the parties was that it refused to function as a factfinder." However, "[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Here, this presumption is buttressed by several of the court's statements, including its unequivocal statement that the transcripts and other documents from appellant's trial were "all in consideration." Some of the court's comments may not have been particularly artful, but they do not demonstrate an abdication of its duty to make factual findings.
Moreover, even if the court did rely on facts stated in the appellate opinion, any error was harmless. As a general rule, an error of state law is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Lewis (2021) 11 Cal.5th 952, 973.) Under that standard, an appellant must demonstrate that it is reasonably probable that he or she would have received a more favorable outcome absent the error. (Watson, supra, 46 Cal.2d 836.) Appellant has not made that showing here. Although he correctly asserts that the evidence at trial was "vigorously contested," he has not pointed to any portion of the appellate court opinion that was not supported by substantial evidence contained in the reporter's transcript. Substantial evidence does not mean undisputed or unimpeached evidence. "While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Clements, supra, 75 Cal.App.5th at p. 298, emphasis added.) Like the court in Clements, "[w]e have reviewed the trial transcripts and conclude they support the factual history set out in our prior opinion, and our analysis depends on the trial transcript rather than the partial summary contained in our prior opinion." (Id. at p. 293.) As we explain below, substantial evidence in that transcript supports the court's ruling.
B. Substantial Evidence
Appellant contends that his "conduct during the group beating does not support an inference of an intent to kill, and his conduct during the entire incident does not support an inference he aided and abetted torture" or harbored malice aforethought. He contends that "there is no evidence in the record before this court that Pitts contributed to Johnson's head injuries" and "no evidence Johnson was seriously injured when Pitts stopped" striking him. He also asserts that "prior to Kelly stomping Johnson's head and Wilson's assault with the garden hose, Johnson suffered no life-threatening injury," and that he personally "used no potentially lethal instrumentality or manner of striking Johnson." We disagree.
"This state has long recognized 'that an assault with the fist . . . may be made in such a manner and under such circumstances as to make the killing murder.'" (People v. Cravens (2012) 53 Cal.4th 500, 508, quoting People v. Munn (1884) 65 Cal. 211, 212.) However, to give rise to malice aforethought, "the manner of the assault and circumstances under which it was made" must "render [ ] the natural consequences of defendant's conduct dangerous to life." (Ibid.) Implied malice requires "a defendant's awareness of engaging in conduct that endangers the life of another-no more, and no less." (People v. Knoller (2007) 41 Cal.4th 139, 143, emphasis in original.)
Here, the assault began as a melee in which 10 to 15 people collectively beat a single man. By his own admission to law enforcement, which appellant did not dispute at trial appellant got "caught up in the excitement" and beat Johnson "pretty good," including multiple blows to the head with a closed fist. Appellant further admitted that the blows were sufficiently intense to injure his own hand. There was also ample evidence that appellant was far more involved in the beating than he admitted. Cornett testified that the entire incident lasted upwards of an hour, and that four men were beating Johnson equally during this time. Conley testified that appellant was one of the four men who remained present throughout the full duration of the incident, a fact corroborated by appellant's breathless and bloody apprehension near the crime scene shortly after police arrived. Conley also testified that appellant repeatedly "socked" Johnson after the majority of the crowd left and continued to do so even as Johnson bled from his face and fell to the ground. Appellant admitted he saw Johnson's nose bleeding; the medical examiner testified that the fracture of Johnson's nasal bone caused him to aspirate blood into his airway and served as a "mechanism[ ] of death."
Appellant makes much of the fact that he stopped beating Johnson when Conley cautioned that he might kill him, and that he neither stomped nor sodomized Johnson, the acts he identifies as "the fatal assault." However, appellant ignores evidence showing that he continued to beat Johnson even after Wilson was "standing up there, telling them to let him go." Appellant alone continued to "sock" Johnson sufficiently hard that another assailant, Conley, had to reiterate that Johnson was close to death before appellant ceased beating him. Indeed, the medical examiner testified that Johnson died of "blunt head and facial injuries," including bleeding in his brain, that "were consistent with blows from fists, kicks and stomps with feet, and Johnson's head "being banged against concrete." The hose attack, while also independently fatal, likely "hastened" Johnson's death.
In his reply brief, appellant asserts that Johnson was only "bleeding slightly from relatively superficial injuries" and remained "ambulatory" when appellant stopped beating him. A reasonable factfinder certainly could credit the medical examiner's testimony about the severity of Johnson's injuries over appellant's suggested inferences.
Even if the stomping and sodomy were the only fatal injuries, there was sufficient evidence from which the trial court could find beyond a reasonable doubt that appellant acted with implied malice in aiding and abetting their commission. (See People v. Vargas (2022) 84 Cal.App.5th 943, 955.) "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.) Those factors all cut in favor of an aiding and abetting finding here.
A reasonable factfinder could conclude that even if appellant used only his fists-a finding arguably called into question by the blood on appellant's sock, Leigh's testimony that she saw him kick Johnson, and Cornett's testimony that appellant and the others beat Johnson equally-his repeated "socking" blows to Johnson's head were sufficiently severe to render the natural consequences of his conduct dangerous to life. Appellant's continued beating of Johnson even after he was initially advised to stop also weakened Johnson to the point that he was lying on the ground and vulnerable to Kelly's and Wilson's subsequent brutal conduct, which appellant undertook no effort to prevent or mitigate despite being only five feet away at the time. Appellant instead stood nearby, leaving the scene with Wilson and Kelly when the police arrived and without rendering aid to Johnson.
Appellant's jury was instructed with CALJIC No. 3.03, which at the time provided that "One who has aided and abetted the commission of a crime may end [his] responsibility for the crime by notifying the other party or parties of whom [he] has knowledge of [his] intention to withdraw from the commission of the crime and doing everything in [his] power to prevent its commission."
Substantial evidence supports the finding that appellant acted with implied malice and aided and abetted Johnson's murder. We need not and do not reach the alternative basis for the trial court's ruling.
DISPOSTION
The order is affirmed.
We concur: CURREY, P.J. ZUKIN, J.