Opinion
D082201
08-09-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL PARRA, JR., Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard, and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County No. ICR20445, Dean Benjamini, Judge. Affirmed
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard, and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
KELETY, J.
INTRODUCTION
In 1999, a jury convicted Victor Manuel Parra, Jr., of conspiracy to commit assault (Pen. Code, §§ 182 &240) and second degree murder (§ 187) for his role in the shooting death of Octavio Santana. The jury found not true a special circumstance that Parra, Jr., committed the murder while lying-inwait. In 2019, Parra, Jr., petitioned to vacate his murder conviction under former section 1170.95 (now section 1172.6), based on changes to the felony murder rule and natural and probable consequences doctrine (Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019)). After an evidentiary hearing, the superior court found, beyond a reasonable doubt, that Parra, Jr., remained liable for second degree murder under the new law. Specifically, the court found the evidence established Parra, Jr., acted with "actual malice and with intent to kill."
All undesignated statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the statute by its current number only.
On appeal, Parra, Jr., contends the jury's rejection of the lying-in-wait special circumstance necessarily precluded a finding that he acted with the intent to kill at the section 1172.6 evidentiary hearing. He further argues substantial evidence does not support the superior court's order denying his petition because the prosecution failed to prove that he acted as an aider and abettor, with the intent to kill, or with implied malice. Finally, he argues the superior court prejudicially erred in refusing to consider evidence of selfdefense. We perceive no error in the evidence considered by the superior court and conclude there was substantial evidence to support the denial of Parra, Jr.'s petition. Thus, we affirm the order denying his section 1172.6 petition for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The 1999 Conviction and Direct Appeal
In 1995, Parra, Jr., and co-defendants Victor Manuel Parra, Sr., (Parra Jr.'s father) and Jon Cox, were charged with murder (§ 187), conspiracy to commit murder (§§ 182 &187), conspiracy to commit assault (§§ 182 &245, subd. (a)(1)) and conspiracy to commit assault with a firearm (§§ 182 &245, subd. (a)(2)). The information alleged that a principal in the offense was armed with an assault weapon (§ 12022, subd. (a)(2)) and that Parra, Jr., possessed or transported an assault weapon during the commission of the offense (former § 12280, subd. (b)). The information further alleged that Parra, Jr., and Parra, Sr., intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15), personally discharged a firearm at an occupied vehicle causing great bodily injury (former § 12022.5, subd. (b)(1)) and personally used and discharged an assault weapon (former §§ 12022.5, subds. (b)(1)-(b)(2)).
The case proceeded by jury trial in 1999. The jury found Parra, Jr., guilty of second degree murder and conspiracy to commit assault. The jury also found true an allegation that Parra, Jr., knowingly possessed or transported an assault weapon, and that a principal of the murder was armed with an assault weapon. They found not true allegations that Parra, Jr., personally used an assault weapon and personally discharged a firearm at an occupied motor vehicle, as well as an allegation that he intentionally killed Santana while lying in wait. The trial court sentenced Parra, Jr., to indeterminate term of 15 years to life in state prison, plus a consecutive six-year term.
We discuss the relevant trial evidence, which was considered by the superior court, in the sections below.
In a separate trial, Parra, Sr., was convicted of first degree murder, and Cox was convicted of being an accessory to murder and conspiracy to commit assault. (See People v. Parra (Aug. 27, 2001, E026354) [nonpub. opn.].)
On direct appeal, Parra, Jr., "argue[d that]a host of errors, including attorney misconduct and instructional mistakes, infected the trial proceedings, requiring reversal." The Court of Appeal affirmed the judgment but remanded the matter to the trial court to correct an error in the abstract of judgment. In its discussion, the Court of Appeal concluded that the evidence "compelled the conclusion that, at the very least, [Parra, Jr.] participated in the unlawful intentional killing of Octavio Santana without premeditation."
II.
Section 1172.6 Proceedings
A. Parra, Jr.'s Petition
In January 2019, Parra, Jr., filed a petition for resentencing under section 1172.6. Parra, Jr., asserted he was convicted of second degree murder under the natural and probable consequences doctrine and that he could not now be convicted of murder following amendments to sections 188 and 189. He declared that the victim of the murder was not a peace officer in the performance of their duties and that he: (1) was not the actual killer; (2) did not intend to kill, aid, abet, command, induce, solicit, request, or assist the actual killer in the commission of the murder; and (3) was not a major participant acting with reckless indifference to human life during the commission of a felony. The superior court issued an order to show cause why relief should not be granted and scheduled an evidentiary hearing.
B. The Evidentiary Hearing
An evidentiary hearing took place on June 17, 2022. At the hearing, Parra, Jr., argued the petition should be granted because: (1) the prosecution did not prove that Parra, Jr., aided and abetted Santana's murder with malice; (2) the record contained substantial evidence of self-defense; and (3) the jury's rejection of the lying in wait special circumstances allegation reflected insufficient evidence of Parra, Jr.'s intent to kill. Although Parra, Jr., was personally present at the evidentiary hearing, he did not present testimony or any other affirmative evidence.
The prosecution argued Parra, Jr., remained liable for murder because the evidence established he aided and abetted Santana's murder with either express or implied malice. To support its argument, the prosecution submitted approximately 3,248 pages of the reporter's transcript from Parra, Jr.'s jury trial, as well as transcripts of witness interviews that were admitted into evidence during the jury trial. The superior court reviewed the "entirety" of this record prior to rendering its decision. We have reviewed the evidence relied upon by the superior court and summarize the facts adduced from the jury trial transcripts as follows.
The trial court was permitted to rely on evidence, including witness testimony, that was admitted at Parra, Jr.'s jury trial. (§ 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.")
On September 10, 1994, Parra, Jr., called and informed his friend, Patricio Salinas, that Octavio Santana shot a firearm into his home earlier that day. He told Salinas he was nearly hit by one of the bullets and that he was really mad about the incident. During this conversation, Parra, Jr., said he was going to "hit him up" or "go after" Santana because of the shooting.
Salinas was deemed an unavailable witness at Parra, Jr.'s jury trial, and his testimony from the preliminary hearing was read into evidence at the trial. The prosecution also introduced into evidence his audiotaped and videotaped statements.
Parra, Jr.'s father, Parra, Sr., learned the identity of the individual who shot into his son's home. Parra, Sr., called and told his friend, Jon Cox, that Parra, Jr.'s "trailer had been shot at . . . and] that [Parra, Jr.] was real F'in hopped up about it, and . . . that 'we' . . . had to go do something about it." Parra, Sr., told Cox he knew where the shooter lived and that he intended to go to his residence.
Parra, Sr., Cox, and Parra, Jr., then drove in two cars to Indio, California, where they believed Santana lived. Parra Sr. was armed with a nine-millimeter pistol and Cox was armed with a .45-caliber gun. The men failed to encounter Santana and then left Indio to return to Cox's place of employment so he could arrive to his work shift on time.
Parra, Jr., called Salinas two days later and told him" 'you are going to kill somebody. You are going to shoot somebody.'" Later that night, Parra, Jr., and Parra, Sr., followed Santana as Santana drove his "little truck."Parra, Sr., directed Parra, Jr., who was driving Parra, Sr.'s Jeep Cherokee, to "follow him." As they approached Santana's vehicle, Parra, Sr., told Parra, Jr., to change lanes in order to pass Santana, and Parra, Sr., then fired a 'Tech-9" firearm into Santana's car, killing him.
In a recorded statement to police, Parra, Sr. described the timeframe of the events on the night of the shooting. The recording was admitted into evidence at Parra, Jr.'s jury trial and included as an exhibit with the section 1172.6 petition.
After the shooting, Parra, Jr., called Salinas and told him, "don't worry about it. We got rid of him." Parra, Sr., gave the gun used in Santana's murder to Cox and told him "I have to throw it away because I used it to kill someone." After Parra, Sr., was arrested, he admitted to police that he shot Santana and that he decided to kill him the Saturday before the shooting. He also told officers that he believed Santana may have had a gun during the shooting.
C. The Superior Court's Denial of the Section 1172.6 Petition
After reviewing the trial transcripts, the superior court found the prosecution established, beyond a reasonable doubt, that Parra, Jr., was "guilty of second-degree murder rising out of [Santana's] death; however not as a result of natural and probable consequences." Rather, the court found the evidence demonstrated he acted with "actual malice with intent to kill."
In rendering its decision, the court discussed Parra, Jr.'s claim of selfdefense. The court explained that it did not believe it was permitted to consider self-defense in the section 1172.6 proceeding because it was a defense that could have been, but was not, raised during the trial. The court distinguished Parra, Jr.'s case from a case in which a defense could not have been raised during the original jury trial, but for which there was now new evidence to support the defense at the section 1172.6 hearing. Regardless, the court found that there was insufficient evidence of self-defense such that the prosecution failed to prove Parra, Jr., was guilty beyond a reasonable doubt.
DISCUSSION
I.
General Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 was enacted to "amend the felony murder rule and the 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) To effectuate this purpose, "Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony murder rule, Senate Bill 1437 added section 189, subdivision (e): 'A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person 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.'" (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile), superseded by statute on other grounds in People v. Glukhoy (2022) 77 Cal.App.5th 576, 584.)
"Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): 'Except [for felony-murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.'" (Gentile, supra, 10 Cal.5th at pp 842-843.)
"Third, Senate Bill 1437 added section [1172.6] to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above." (Gentile, supra, 10 Cal.5th at p. 843.)
The section 1172.6 petition process "begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3))." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) "When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.]" (Ibid.) If the petitioner "has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.' (§ 1172.6, subd. (c).)" (Ibid.)
Once an order to show cause has issued, the court must hold an evidentiary hearing to determine whether to vacate the murder conviction. (§ 1172.6, subd. (d)(1); see also Strong, supra, 13 Cal.5th at p. 709.) At the evidentiary hearing, the burden is "on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder" under California law as amended by the changes to sections 188 and 189 by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) "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).)
II.
Standard of Review
At an evidentiary hearing under section 1172.6, subdivision (d)(3), "the superior court acts as an independent fact finder and determines whether the People have met their burden in proving the defendant guilty of murder" under the amendments to the Penal Code made by Senate Bill 1473. (People v. Henley (2022) 85 Cal.App.5th 1003, 1016.) "A trial court's factual findings at a section 1172.6, subdivision (d)(3), hearing are reviewed for substantial evidence. [Citations.] Under this standard, the record is reviewed '"' "in the light most favorable to the judgment" '"' and a reviewing court decides '"' "whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." '"' [Citation.]' "[W]e look to whether the prosecution has introduced sufficient evidence of '"' "reasonable, credible, and of solid value to support a finding beyond a reasonable doubt" '"' that petitioner was guilty. [Citation.]'" (Id. at p. 1017.) In assessing the sufficiency of the evidence," '[c]onflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'" (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
III.
Analysis
A. The Jury's Finding That the Lying-in-Wait Special Circumstance Was Not True Did Not Preclude a Finding of Parra, Jr.'s Intent to Kill
Parra, Jr., contends the jury's rejection of the lying-in-wait special circumstance allegation precluded the prosecution from arguing he harbored the intent to kill at the section 1172.6 hearing under the doctrine of collateral estoppel. This is because, according to Parra, Jr., in finding the special circumstance not true, the jury necessarily found that he did not intentionally kill Santana. Thus, he argues an "automatic resentencing" was required under section 1172.6, subdivision (d)(2), without the need for an evidentiary hearing. As we discuss, Parra, Jr.'s argument on appeal conflates several legal principles related to murder. We conclude the jury's rejection of the lying-in-wait special circumstance did not necessarily include a finding that Parra, Jr., did not harbor the intent to kill.
We apply a de novo standard of review to issues involving statutory interpretation (People ex rel. Lockyer v. Shamrock Foods, Co. (2000) 24 Cal.4th 415, 432) and to the question of the application of collateral estoppel (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507).
At the time of Parra, Jr.'s offense, a lying-in-wait special circumstance applied when "[t]he defendant intentionally killed the victim while lying in wait." (§ 190.2, subd. (a)(15); see also People v. Nieves (2021) 11 Cal.5th 404, 465 (Nieves).) It required proof of several elements, including"' "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage." '" (Nieves, at p. 465.) A lying-in-wait special circumstance was not proved" '" '[i]f there [was] a clear interruption separating the period of lying in wait from the period during which the killing [took] place, so that there [was] neither an immediate killing nor a continuous flow of the uninterrupted lethal events ....'" '" (Ibid.)
"[I]n March 2000, the voters passed Proposition 18, which changed the definition of the lying-in-wait special circumstance from a killing while lying in wait to a killing by means of lying in wait, mirroring the language of the first degree murder statute. (See Stats. 1998, ch. 629, § 2, p. 4163, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000.)" (People v. Johnson (2016) 62 Cal.4th 600, 634.)
Consistent with the elements of the lying-in-wait special circumstance discussed in Nieves, supra, 11 Cal.5th 404 the court in Parra, Jr.'s jury trial instructed the jury:" 'To find that the special circumstance referred to in these instructions as murder while lying-in-wait is true, each of the following facts must be proved: (1) the defendant intentionally killed the victim, and; (2) the murder was committed while defendant was lying-in-wait. 'The term "lying-in wait" within the meaning of the law of special circumstances is defined as waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise even though the victim is aware of the murderer's presence.... ¶ If there is a clear interruption separating the period of lying-in-wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved.... [W]hen a defendant intentionally murders another person, under circumstances which include, (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, the special circumstances of murder while lying-in-wait has been established."
Parra, Jr., acknowledges in his opening brief on appeal that the lying-in-wait special circumstance jury instruction provided by the trial court required the jury to find the following elements: "(1) the defendant intentionally killed the victim; and (2) the murder was committed while defendant was lying in wait." (Italics added.) He also recognizes that the term "while lying in wait" required proof of additional elements, including that the defendant waited and watched the victim for an opportune time to act. But he then seemingly ignores multiple elements within the lying-inwait special circumstance by arguing that the jury's not-true finding must mean that the first element-intent to kill-was not proven. He does not address the equally plausible conclusion that the jury found he harbored the intent to kill but did not commit the intentional murder while he was lying in wait. In so arguing, Parra, Jr., erroneously conflates the concept of lying-inwait with the intent to kill.
Although a true finding on a lying-in-wait special circumstance "[is] the functional equivalent of proof of premeditation, deliberation, and intent to kill" (People v. Wright (2015) 242 Cal.App.4th 1461, 1496), a not-true finding does not suggest the inverse because the jury could simply have found another element not proven. (See People v. Thomas (2023) 14 Cal.5th 327, 377 [every essential element of a special circumstance must be proven beyond a reasonable doubt.].) Indeed, case law is replete with examples in which a defendant's conviction for an intentional murder was affirmed, but the lying-in-wait special circumstance was reversed because of insufficient evidence to support some other element aside from the intent to kill. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1183-1185, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216 [affirming murder conviction because there was sufficient evidence the defendant shared the codefendant's "torturous intent," but reversing the lying-in-wait special circumstance because a series of nonlethal events intervened between period of watchful waiting and killing]; People v. Lewis (2008) 43 Cal.4th 415, 508, 515, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920 [affirming first degree murder convictions and sentence of death, but reversing the lying-in-wait special circumstance because of insufficient evidence that the defendant "watched and waited for an opportune time to kill the victims."].) Accordingly, contrary to Parra, Jr.'s argument, the jury's rejection of the special circumstance allegation was not synonymous with a finding that he did not act with the intent to kill.
Parra, Jr., goes on to argue that because the jury rejected the lying-inwait special circumstance allegation, and therefore purportedly found he did not act with the intent to kill, section 1172.6, subdivision (d)(2), mandates that he be automatically resentenced. This is not so. Section 1172.6, subdivision (d)(2), requires the superior court to vacate a murder conviction, "[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony." A lying-in-wait allegation does not require a finding that the defendant acted with reckless indifference or as a major participant in an underlying felony. (§ 190.2, subd. (a)(15); Nieves, supra, 11 Cal.5th at p. 465 [discussing the elements of a lying-in-wait special circumstance].) We note that the jury in Parra, Jr.'s trial was not instructed on a theory of felony murder that would have required it to determine whether he was a major participant acting with reckless disregard. (See People v. Guiffreda (2023) 87 Cal.App.5th 112, 123 ["Under the amended felony-murder rule, a defendant who was not the actual killer and did not act with the intent to kill can only be liable for murder if she was a major participant in the underlying felony and acted with reckless indifference to human life." (Italics added)].) There is no evidence in the record to suggest any "prior finding" related to the concept of a major participant or reckless indifference, nor does Parra, Jr., cite to any such evidence in his briefing. Section 1172.6, subdivision (d)(2), is therefore plainly inapplicable to Parra, Jr.'s case. (See People v. Flint (2022) 75 Cal.App.5th 607, 614 [acquittal on felony-murder special circumstance allegation is a "prior finding" under section 1172.6, subdivision (d)(2)]; People v. Harrison (2021) 73 Cal.App.5th 429, 439-442 [same]; People v. Clayton (2021) 66 Cal.App.5th 145,154-158 [same].)
In sum, we conclude the jury's not-true finding of the lying-in-wait special circumstance did not necessarily include a finding that Parra, Jr., did not harbor the intent to kill such that the issue was subject to collateral estoppel. (See Strong, supra, 13 Cal.5th at p. 716 [to invoke collateral estoppel, the issue "must have been necessarily decided in the former proceeding"].) Nor did the not-true finding constitute a "prior finding" that Parra, Jr., did not act as a major participant with reckless indifference to human life such that section 1172.6, subdivision (d)(2), mandated vacatur and resentencing. Having so concluded, we turn to whether substantial evidence supports the superior court's order denying Parra, Jr.'s petition for resentencing.
B. Substantial Evidence Supports the Superior Court's Finding that Parra, Jr., Acted with Malice Aforethought
Parra, Jr., contends insufficient evidence supports the trial court's order denying his petition for resentencing because the evidence did not demonstrate he aided and abetted Santana's murder, or that he acted with express or implied malice. He further argues the superior court should have, but did not, consider evidence of self-defense, and this purported error was prejudicial under the standards articulated in Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818.
The Attorney General disagrees with Parra, Jr.'s contention that the superior court altogether failed to consider evidence of self-defense, arguing instead that the court's rejection of his self-defense claim was factually supported by the record. The Attorney General further contends substantial evidence demonstrates Parra, Jr., acted as a direct aider and abettor in Santana's murder, or alternatively that he aided and abetted an implied malice murder.
The Attorney General additionally argues the evidence demonstrates Parra, Jr., was a major participant acting with reckless indifference to human life during the commission of the assault against Santana. However, there is no evidence in the record that the Parra, Jr., was convicted under a felony-murder theory, nor did the superior court rely on such a theory when denying his section 1172.6 petition. Considering "the felony murder principle that prohibits murder convictions premised solely on a lesser included offense of the murder itself, such as felony assault" (Gentile, supra, 10 Cal.5th at p. 844) we question whether he could have been convicted of felony-murder under the circumstances of this case. (See also People v. Bejarano (2007) 149 Cal.App.4th 975, 981 [discharging a firearm at a vehicle may not form the basis for a second degree felony murder conviction].) Regardless, because we conclude the superior court's order was supported by substantial evidence that Parra, Jr., acted with malice when he aided and abetted Santana's murder, we decline to consider this theory.
We conclude substantial evidence supports the trial court's finding that Parra, Jr., acted with "actual malice [and] with intent to kill" because: (1) the evidence supports a conclusion that Parra, Jr., aided and abetted Santana's murder; and (2) the evidence supports a conclusion Parra, Jr., acted with implied malice. We address these grounds in turn, and in the final section address Parra, Jr.'s claim of self-defense.
i. Aiding and Abetting
Second degree murder "is 'the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 507.) For the purpose of defining murder, malice may be express or implied. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103.) Express malice exists "when there is a manifest intent to kill." (Gentile, supra, 10 Cal.5th at p. 844.)
An individual may be convicted of murder "either as a perpetrator or as an aider and abettor." (In re Loza (2018) 27 Cal.App.5th 797, 801; see also § 31.) Changes to the scope of criminal liability for murder under Senate Bill 1437 did not" 'alter the law regarding the criminal liability of direct aiders and abettors of murder .... One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law.' [Citations.]" (People v. Vargas (2022) 84 Cal.App.5th 943, 953.)" '[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.' [Citation.]" (Id. at pp. 953-954.)
Here, the evidence compels a conclusion that Parra, Sr., harbored the manifest intent to kill Santana when Parra, Sr., shot and killed him with an assault weapon. Two days prior to the shooting, Parra, Sr., searched for Santana while armed with a firearm. He continued his search for Santana two days later, again armed with a firearm. When he finally encountered Santana, he directed Parra, Jr., to maneuver his vehicle alongside Santana's truck and he opened fire. Parra, Sr., expressly admitted to police that he committed the killing and that he formed the intent to kill days prior to the shooting.
Further, the evidence supports a logical inference that Parra, Jr., was aware of and shared his father's intent to kill Santana in retaliation for the prior shooting into Parra, Jr.'s trailer. (People v. Mccoy (2001) 25 Cal.4th 1111, 1118 [a direct aider and abettor must "know and share the murderous intent of the actual perpetrator."].) In a phone call between Parra, Jr., and Salinas, Parra, Jr., stated that Santana shot a firearm into his home and that he wanted to retaliate. Parra, Jr., joined his father, who was armed with a firearm, in search of Santana two days prior to the shooting. On the date of the shooting, Parra, Jr., called and told Salinas "you are going to kill somebody. You are going to shoot somebody." This evidence provides ample support for the superior court's finding that Parra, Jr., acted with the intent to kill on the night of the shooting. And Parra, Jr.'s actions-following Santana and maneuvering the vehicle in a manner that allowed Parra, Sr., to shoot Santana-undoubtedly assisted Parra, Sr., in killing Santana.
Although Parra, Jr., discusses facts that suggest he was unaware Parra, Sr., was armed or intended to kill Santana, we must affirm the superior court's order if supported by substantial evidence even if "there is also substantial evidence to support a contrary conclusion." (People v. Riley (2015) 240 Cal.App.4th 1152, 1165-1166.) Drawing all inferences in favor of the superior court's order, as we must, we conclude the record contains substantial evidence that Parra, Jr., directly aided and abetted Santana's murder, and therefore the court's finding that he acted with malice and the intent to kill is sufficiently supported. (See People v. Salazar (2016) 63 Cal.4th 214, 242 [Under the applicable substantial evidence standard, we review the evidence in light of the entire record and must draw any logical inferences that could be drawn from the evidence, including circumstantial evidence, in favor of the court's order; see also People v. Robinson (2010) 47 Cal.4th 1104, 1126 [We must "uphold any express or implied factual findings of the court that are supported by substantial evidence."].)
ii. Implied Malice
Although we have already concluded the superior court's order was supported by substantial evidence that Parra, Jr., directly aided and abetted the commission of Santana's murder, we also address his contention that the evidence does not demonstrate he acted with implied malice. As we discuss, we conclude substantial evidence in the record supports a finding that Parra, Jr., acted with implied malice during the commission of Santana's murder, and he therefore remains liable for second degree murder under an implied malice theory.
" 'Malice is implied when the killing is 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.'" [Citation.] In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another ....' [Citation.]" (Cravens, supra, 53 Cal.4th at p. 507.) An implied malice murder may be committed as a direct perpetrator or as an aider and abettor. (People v. Powell (2021) 63 Cal.App.5th 689, 712-713 (Powell).) An aider and abettor who does not expressly intend to aid a killing, but instead acts with implied malice may 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." (Gentile, supra, 10 Cal.5th at p. 850.)
Explaining aiding and abetting liability within the context of an implied malice murder, our sister court in Powell, held, "[f]or the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act." (Powell, supra, 63 Cal.App.5th at p. 713.) "The mens rea, which must be personally harbored by the direct aider and abettor, is 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 acting in conscious disregard for human life." (Ibid.)
Parra, Jr., urges us to reject Powell, because he contends its holding "simply repackaged [natural and probable consequence] murder as aiding and abetting implied malice murder." He also asks us to conclude that the language from our high court in Gentile, which the Powell court relied upon in affirming culpability as an aider and abettor of an implied malice murder, was dicta. We decline to do so. Courts have repeatedly rejected similar arguments in other cases involving implied malice murder and have relied on Powell's definition of implied malice in the context of aiding and abetting. (See, e.g., People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 503 ["As both Gentile and Powell make clear, to commit implied malice murder as an aider and abettor one must personally harbor implied malice. This means the defendant' "knows that his conduct endangers the life of another and . . . acts with conscious disregard for life . . ."' "]; see also People v. Glukhoy (2022) 77 Cal.App.5th 576, 590; People v. Vargas (2022) 84 Cal.App.5th 943, 953-954.)
Here, the evidence supports an inference that Parra, Jr., knew Parra, Sr., intended to shoot at Santana from their vehicle; intended to aid him in the commission of the shooting; knew that the shooting into Santana's car was dangerous to human life; and acted in conscious disregard for that life. At various times prior to the shooting, Parra, Jr., and Parra, Sr., expressed a desire to retaliate against Santana. Parra, Jr., accompanied Parra Sr., to search for Santana days before the shooting, and Parra, Sr., was armed with a firearm during this search. Parra, Jr., expressly aided Parra, Sr., in shooting Santana by driving their vehicle alongside Santana's truck at Parra, Sr.'s direction, thereby allowing Parra, Sr., to shoot into the truck and kill Santana. By assisting Parra, Sr., in shooting Santana with an assault weapon, Parra, Jr., consciously disregarded Santana's life and the evidence suggests his full awareness that the conduct was life-endangering. Accordingly, aside from an abundance of evidence that Parra, Jr., harbored an express intent to kill Santana, the record also supports a finding that he intended to aid Parra, Sr., in the life endangering act of shooting a firearm at Santana. The superior court's finding that Parra, Jr., acted with malice was therefore supported by substantial evidence that he personally harbored implied malice during the shooting.
iii. Self-Defense
Parra, Jr., argues the prosecution could not prove he was guilty of second degree murder at the section 1172.6 hearing because the record established he acted either in self-defense or in imperfect self-defense. He alleges that the superior court erroneously failed to "meaningfully consider self-defense," and that this error infected the court's decision. Parra, Jr., contends that had the court properly considered evidence of self-defense, there is a reasonable probability he would have obtained a favorable result.
As a preliminary matter, the record does not support Parra, Jr.'s argument that the superior court altogether failed to consider his self-defense argument. In rendering its decision, the superior court questioned whether Parra, Jr., was entitled to raise an affirmative defense at the evidentiary hearing. However, the superior court ultimately made a finding that, assuming such a defense could legally be raised, the evidence did not "rise to a level where the People have not disproved that beyond a reasonable doubt." Thus, the record demonstrates that the superior court did, in fact, make a finding regarding the effect of the purported self-defense evidence on whether the prosecution proved the murder beyond a reasonable doubt.
Turning to the merits of Parra, Jr.'s self-defense claim, we assume without deciding that evidence of perfect or imperfect self-defense was admissible at the section 1172.6 evidentiary hearing considering that the prosecution was required to prove the defendant's guilt beyond a reasonable doubt, and that self-defense is a complete defense to murder. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; In re Christian S. (1994) 7 Cal.4th 768, 783 [imperfect self-defense allows a defendant to be convicted of manslaughter, rather than murder because they are "deemed to have acted without malice and cannot be convicted or murder."].) "Under the doctrine of self-defense, 'a homicide is justifiable and noncriminal where the actor possessed both an actual and reasonable belief in the need to defend.' [Citation.] Under the doctrine of imperfect self-defense, '[a]n unlawful killing involving either an intent to kill or a conscious disregard for life constitutes voluntary manslaughter, rather than murder, when the defendant acts upon an actual but unreasonable belief in the need for self-defense. [Citation.]" (People v. Morales (2021) 69 Cal.App.5th 978, 988.)
Parra, Jr., argues that the following "facts would have supported a viable claim of self-defense": (1) Parra, Sr.'s statements to police that he believed Santana had a gun prior to the shooting; and (2) evidence that Santana shot into Parra, Jr.'s home days prior to the murder. In weighing the sufficiency of the evidence, the superior court was entitled to reject Parra, Sr.'s statements that Santana displayed a gun immediately prior to the shooting and credit other evidence, particularly in light of the many contradictory statements Parra, Sr., provided regarding his involvement in the shooting. (See Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257 ["absent an express credibility finding, we must infer the trial court resolved questions of credibility in a manner that supports its findings and order"].) Further, Parra, Jr.'s statements to Salinas days before the murder that he was mad at Santana and wanted to "go after him" support an inference he wanted to confront Santana for the purpose of retaliation rather than because he was in fear for his safety. Thus, the superior court had a sufficient basis to conclude that both Parra, Sr., and Parra, Jr., intended to kill Santana and were not acting in self-defense or imperfect self-defense during the shooting.
Accordingly, we conclude the superior court's order denying Parra, Jr.'s petition for resentencing was supported by substantial evidence that he committed second degree murder as an aider and abettor of either express or implied malice murder. We therefore affirm the order.
DISPOSITION
The order denying the petition is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. RUBIN, J.