People v. Reyes ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRES QUINONEZ REYES,
Defendant and Appellant.
S270723
Fourth Appellate District, Division Three
G059251
Orange County Superior Court
04CF2780
June 29, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
PEOPLE v. REYES
S270723
Opinion of the Court by Liu, J.
Defendant Andres Quinonez Reyes was convicted of
second degree murder following a homicide committed by a
fellow member of Santa Ana’s F-Troop gang. Reyes was one of
several members or affiliates of F-Troop who were present when
the killing occurred, although the evidence showed he was not
the shooter. The prosecutor’s principal arguments at trial were
that Reyes had intended to aid either an assault or disturbing
the peace, or that he had conspired to commit one of those
offenses. Under the then-applicable natural and probable
consequences theory, Reyes could be found guilty of second
degree murder if the jury determined that he aided and abetted
one of those target crimes and that murder was a natural and
probable consequence of the offense.
The Legislature subsequently eliminated the natural and
probable consequences theory of liability as a basis for a murder
conviction in Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill No. 1437) (Stats. 2018, ch. 1015, § 2). Reyes
petitioned for resentencing under Penal Code former section
1170.95, which has since been renumbered as Penal Code
section 1172.6 (Stats. 2022, ch. 58, § 10). (All statutory
references are to the Penal Code.) He argued that the evidence
against him did not support a conviction under any valid theory
of murder in light of the limitations imposed by Senate Bill
No. 1437. The trial court denied his petition, finding that he
was guilty beyond a reasonable doubt of implied malice murder,
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
an alternative theory that remained available after Senate Bill
No. 1437. The Court of Appeal affirmed. (People v. Reyes (Aug.
4, 2021, G059251) [nonpub. opn.].) Because the trial court erred
in denying Reyes’s petition, we reverse the Court of Appeal’s
judgment with instructions to remand the case to the trial court
for further proceedings on Reyes’s resentencing petition.
I.
In August 2004, when Reyes was 15 years old, he was in a
park with a group of older boys and young men between the ages
of 16 and 21. All of them, including Reyes, were members of F-
Troop or an affiliated gang. One of the young men, Francisco
Lopez, showed the group a revolver he was carrying. A few
hours later, after meeting with two other members of F-Troop,
some of them, including Reyes, proceeded on their bicycles to an
area on the edge of territory belonging to a rival gang.
A witness testified that a member of the group of bicycle
riders called out for a passing car to stop, saying, “Hey, Homey,
stop. We want to talk to you.” The car sped up, and the group
chased after it, with riders in front yelling to those in back to
“keep up” and those in back yelling for the riders in front to slow
down. The group came together and stopped at an intersection,
and the car made a U-turn and drove past them. Moments later,
there was a gunshot, and the riders fled in different directions.
The evidence showed that a single gunshot had struck the driver
Pedro Rosario in the head, killing him. The prosecutor argued
that Lopez was the shooter. There does not appear to be any
direct evidence that Reyes knew the gun was loaded before
Lopez shot Rosario.
Reyes was in possession of the murder weapon
approximately 40 minutes later when, together with three other
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
bicycle riders, he confronted Felix Nieves. Nieves, who did not
belong to a gang, was walking in F-Troop territory near where
Rosario had been shot. Reyes asked Nieves what “barrio” he
belonged to; Nieves denied any gang affiliation and said he did
not want any problems. Reyes said he was from “the Troop” and
challenged Nieves to a fight. When Nieves saw Reyes reach to
pull something from his waistband, he fled. Reyes and his
companions caught Nieves about two blocks away, and the
group assaulted him. At one point, Reyes stood behind Nieves
and held a gun to the back of his neck. Nieves managed to hit
Reyes and grab the weapon. Reyes and the others fled.
Two days later, when Reyes was arrested, he admitted he
was at the scene of the shooting, saying, “I didn’t shoot, but
because I was there with my homies, I’m going to get charged
with murder too.” Reyes was charged with murder. Conceding
that Reyes was not the shooter, the prosecutor proceeded on two
theories of derivative liability. First, the prosecutor argued that
Reyes aided and abetted the crime of disturbing the peace or
that he conspired with Lopez to commit either disturbing the
peace or assault, and that murder was a natural and probable
consequence of one of those target offenses. Alternatively, the
prosecutor argued that Reyes directly aided and abetted the
murder by “backing up fellow gang members” during the killing.
This theory relied on the testimony of David Rondou, a Santa
Ana Police Department detective who testified for the
prosecution as a gang expert. Detective Rondou testified that
when gang members accompany a fellow gang member who
commits a murder, “[t]hey’re there for backup.” He explained
that among street gangs, having backup means “taking other
members of that gang or entrusted members of that gang with
you to commit some sort of crime in case you need help. They’re
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
there to support whatever you’re doing. And if you need
something, whether it be fighting, getting the gun and shooting,
whatever need be for the incident you’re involved in, those guys
that are there for backup are there to support whatever you’re
doing.”
There was no evidence that Reyes had expressly agreed to
serve as backup while Lopez committed the murder. The
prosecutor argued that there was no need to show an express
agreement because the jury could “infer from the surrounding
facts” that Reyes was acting as backup. The prosecutor pointed
to Reyes’s “presence” at the time of the shooting and earlier in
the park when Lopez showed the gun to the others; his
“companionship” with Lopez, i.e., “[t]he fact that they’re
homies”; his “flight from the scene” after the killing; and the fact
that Reyes subsequently possessed the murder weapon and used
it during a separate assault later that day.
Reyes was convicted of second degree murder and street
terrorism, as well as enhancements for committing the murder
for the benefit of a gang and for vicariously discharging a
firearm resulting in death. He was sentenced to 40 years to life
in prison for the murder and firearm enhancement, with the
gang enhancement stayed and a two-year sentence for the street
terrorism charge imposed concurrently.
Twelve years after Reyes was sentenced, the Legislature
enacted Senate Bill No. 1437 “ ‘to more equitably sentence
offenders in accordance with their involvement in homicides.’ ”
(People v. Gentile (2020) 10 Cal.5th 830, 839 (Gentile).) As
relevant here, the bill amended section 188 to provide that,
except in cases of felony murder, “in order to be convicted of
murder, a principal in a crime shall act with malice
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
aforethought.” (§ 188, subd. (a)(3), as amended by Stats. 2018,
ch. 1015, § 2.) This change “bars a conviction for first or second
degree murder under a natural and probable consequences
theory.” (Gentile, at p. 846.)
Reyes petitioned the trial court for resentencing under
former section 1170.95 (now § 1172.6), arguing that he was
convicted of murder under the now-invalid natural and probable
consequences theory. (For clarity, we refer simply to § 1172.6.)
The court appointed counsel for Reyes and held a hearing, at
which Reyes argued that the evidence did not support a murder
conviction under any valid theory because it did not show that
he committed “an act that actually . . . help[ed], encourage[d],
[or] facilitate[d] Francisco [Lopez] in the shooting.” The court
denied the petition, finding that Reyes was guilty beyond a
reasonable doubt of second degree murder. The court was
“guided by the principles that are in [CALCRIM No. 520],
specifically implied malice.” It found that “the act in this case
is the defendant, along with several other gang members, one of
which [was] armed, traveled to rival gang territory,” that the
natural and probable consequence of their doing so was
dangerous to human life, that Reyes was aware the act was
dangerous to human life, and that he deliberately acted with
conscious disregard for that danger. Reyes appealed, arguing in
part that “there was no evidence of any acts taken by appellant
to aid or assist in or facilitate the commission of the murder.”
After extensively quoting the trial court’s findings, the Court of
Appeal held that the evidence was sufficient to establish Reyes’s
guilt of second degree murder and affirmed. We granted review.
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
II.
As noted, in denying Reyes’s resentencing petition, the
trial court said it was “guided by the principles” of implied
malice murder in CALCRIM No. 520. Applying the four
elements set out in CALCRIM No. 520, the court found that (1)
Reyes intentionally committed the act of traveling “along with
several other gang members, one of which [was] armed, . . . to
rival gang territory”; (2) “[t]he natural and probable
consequences of the act were dangerous to human life”; (3) Reyes
knew his act of traveling to rival gang territory was dangerous
to human life; and (4) he acted deliberately and with conscious
disregard of that danger.
The trial court did not mention direct aiding and abetting,
and its findings can be read to indicate that it upheld Reyes’s
murder conviction on the theory that he was a direct perpetrator
who harbored implied malice. At oral argument, the Attorney
General said there is “no doubt” this reading is correct. But the
prosecutor relied only on aiding and abetting theories to prove
Reyes’s liability for murder, and the trial court, prior to the
resentencing hearing, asked the parties to review People v. Soto
(2020) 51 Cal.App.5th 1043, a resentencing matter that involved
aider and abettor liability for an implied malice murder, and
then questioned the parties about that case at the hearing. In
this context, the trial court’s findings arguably could be read to
uphold Reyes’s murder conviction on the theory that he directly
aided and abetted implied malice murder. Given the lack of
clarity on this point, and out of an abundance of caution, we
address the trial court’s consideration of Reyes’s resentencing
petition under both direct perpetrator and direct aiding and
abetting theories. In so doing, we express no view on whether a
court may deny a section 1172.6 resentencing petition based on
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
a theory of murder not argued by the prosecution at trial. Nor
do we have occasion, given the parties’ contentions and the
procedural posture of this matter, to consider the overall scope
of section 1172.6 resentencing proceedings. (See People v. Curiel
(Nov. 4, 2021, G058604) [nonpub. opn.], review granted Jan. 26,
2022, S272238.)
Ordinarily, a trial court’s denial of a section 1172.6
petition is reviewed for substantial evidence. (See, e.g., People
v. Vargas (2022) 84 Cal.App.5th 943, 951.) Under this standard,
we review the record “ ‘ “in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and
of solid value — such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” ’ ” (People v.
Ghobrial (2018) 5 Cal.5th 250, 277, italics omitted.) But where
there is an issue as to whether the trial court misunderstood the
elements of the applicable offense, the case presents a question
of law which we review independently. (See Crocker National
Bank v. City and County of San Francisco (1989) 49 Cal.3d 881,
888 [“Questions of law relate to the selection of a rule; their
resolution is reviewed independently.”].) As we explain,
assuming without deciding that the trial court permissibly
upheld Reyes’s murder conviction on a theory that was not
presented at trial, its conclusion that Reyes’s conviction was
sustainable on a direct perpetrator theory was not supported by
substantial evidence. And to the extent the trial court purported
to uphold Reyes’s murder conviction on a direct aiding and
abetting theory, the court misapprehended what is required as
a matter of law to prove aiding and abetting implied malice
murder.
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
A.
We first address simple implied malice murder. Murder
is committed with implied malice 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.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143 (Knoller).)
“ ‘To be considered the proximate cause of the victim’s death, the
defendant’s act must have been a substantial factor contributing
to the result, rather than insignificant or merely theoretical.’ ”
(People v. Jennings (2010) 50 Cal.4th 616, 643 (Jennings).)
On this record, it cannot be said that Reyes committed an
act that “proximately caused” Rosario’s death. (Knoller, supra,41 Cal.4th at p. 152.) The prosecutor proceeded on the theory
that Lopez shot Rosario, and no evidence was presented that
Reyes’s conduct was a “substantial factor” that contributed to
the shooting. (Jennings, supra, 50 Cal.4th at p. 643.) The
evidence established that Reyes proceeded to an area on the
edge of territory belonging to a rival gang and, alongside the
other bikers, chased after Rosario’s car. But acts that merely
create a dangerous situation in which death is possible
depending on how circumstances unfold do not, without more,
satisfy this causation requirement. There was no evidence that
Reyes’s acts precipitated or provoked the shooting. And there is
no reason to believe that the killing of Rosario would not have
occurred if Reyes had not accompanied his fellow gang members
on the ride or participated in the chase. (See People v. Cervantes
(2001) 26 Cal.4th 860, 866 [“In homicide cases, a ‘cause of the
death of [the decedent] is an act . . . that sets in motion a chain
of events that produces as a direct, natural and probable
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
consequence of the act . . . the death . . . and without which the
death would not occur.’ ”].) Reyes’s acts of bicycling into rival
territory and chasing after Rosario’s car with Lopez and other
fellow gang members were too attenuated in the chain of events
to have proximately caused the killing; any causal link between
Reyes’s conduct and Rosario’s death is tenuous at best.
Accordingly, we find no substantial evidence to support the trial
court’s denial of Reyes’s resentencing petition based on his
liability for second degree murder on a direct perpetrator theory.
Although lack of proximate causation suffices to establish
that the trial court erred in denying Reyes’s resentencing
petition on a direct perpetrator theory, we also take issue with
the trial court’s conclusion that “[t]he natural and probable
consequences” of Reyes’s act of traveling to rival gang territory
with several other gang members, one of whom was armed,
“were dangerous to human life.” To suffice for implied malice
murder, the defendant’s act must not merely be dangerous to
life in some vague or speculative sense; it must “ ‘involve[] a high
degree of probability that it will result in death.’ ” (Knoller,
supra, 41 Cal.4th at p. 152; see ibid. [under the objective
component of implied malice, “ ‘ “dangerous to life” ’ ” means the
same thing as a “ ‘high degree of probability that’ ” the act in
question “ ‘will result in death’ ”]; People v. Cravens (2012) 53
Cal.4th 500, 513 (conc. opn. of Liu, J.) [“Although an act that
will certainly lead to death is not required, the probability of
death from the act must be more than remote or merely
possible.”].)
As noted, the prosecutor conceded that Reyes was not the
shooter; the evidence established that Reyes and his fellow gang
members, one of whom was armed, bicycled to an area on the
edge of territory belonging to a rival gang. It may have been
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
likely that this act would result in some sort of gang
confrontation, and it is possible that someone would get hurt or
killed. But the act does not by itself give rise to a high degree of
probability that death will result. In issuing its ruling, the trial
court mentioned Detective Rondou’s testimony suggesting that
Reyes was providing “backup” to the shooter, as well as Reyes’s
use of the same gun in the subsequent attack on Nieves. But
this evidence is insufficient to support a conclusion that Reyes
committed an act that carried a “ ‘high degree of probability’ ” of
death. (Knoller, supra, 41 Cal.4th at p. 152.) Even if the gang
expert’s testimony and the attack on Nieves might shed light on
Reyes’s role and mental state in the sequence of events, those
pieces of evidence do not speak to whether Reyes’s act itself —
in the trial court’s words, “the act in this case is the defendant,
along with several other gang members, one of which [was]
armed, traveled to rival gang territory” — was dangerous to life
such that it satisfied the actus reus element of implied malice
murder.
B.
To the extent the trial court purported to sustain Reyes’s
conviction on a theory of directly aiding and abetting implied
malice murder, the trial court’s findings rested on an error of
law. As noted, the prosecutor relied on two theories of aiding
and abetting to establish Reyes’s liability for murder. After
conceding that Reyes was not the shooter, the prosecutor
informed the jury that it could find Reyes guilty of second degree
murder under a theory of direct aiding and abetting or under a
natural and probable consequences theory. Because Senate Bill
No. 1437 eliminated the latter theory (see Gentile, supra, 10
Cal.5th at p. 839), we examine whether the trial court properly
understood the elements of direct aiding and abetting.
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
At the outset, we note that Reyes does not contest the
validity of a direct aiding and abetting theory of second degree
murder, but the Office of the State Public Defender as amicus
curiae does. Case law has recognized and applied this theory,
and we see no basis to abrogate it. In Gentile, we observed that
“notwithstanding Senate Bill 1437’s elimination of natural and
probable consequences liability for second degree murder, 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.” (Gentile, supra, 10
Cal.5th at p. 850.) Since our decision in Gentile, the Courts of
Appeal have held that a defendant may directly aid and abet an
implied malice murder. (See People v. Glukhoy (2022) 77
Cal.App.5th 576, 588–591, review granted July 27, 2022,
S274792; People v. Superior Court (Valenzuela) (2021) 73
Cal.App.5th 485, 499; People v. Powell (2021) 63 Cal.App.5th
689, 710–714 (Powell); see also People v. Langi (2022) 73
Cal.App.5th 972, 979–983.)
The Court of Appeal in Powell explained the elements as
follows: “[D]irect aiding and abetting is based on the combined
actus reus of the participants and the aider and abettor’s own
mens rea. ([People v. McCoy (2001) 25 Cal.4th 1111, 1122.]) In
the context of implied malice, the actus reus required of the
perpetrator is the commission of a life endangering act. For 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. The mens
rea, which must be personally harbored by the direct aider and
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
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.” (Powell, supra, 63
Cal.App.5th at pp. 712–713, fn. omitted; see id. at p. 713, fn. 27
[“The relevant act is the act that proximately causes death.”],
citing People v. Cravens, supra, 53 Cal.4th at p. 507, and
Knoller, supra, 41 Cal.4th at p. 143.)
Powell further explained: “The reason why there is a
dearth of decisional law on aiding and abetting implied malice
murder may be the heretofore availability of the natural and
probable consequences doctrine for second degree murder,
which was easier to prove. . . . [T]he natural and probable
consequences doctrine did not require that the aider and abettor
intend to aid the perpetrator in committing a life-endangering
act . . . . What was natural and probable was judged by an
objective standard and it was enough that murder was a
reasonably foreseeable consequence of the crime aided and
abetted.” (Powell, supra, 63 Cal.App.5th at p. 711, fn. 26.)
In denying Reyes’s resentencing petition, the trial court
said it was “guided by the principles” of implied malice murder
in CALCRIM No. 520. That instruction alone, however, does not
encompass the elements of aiding and abetting implied malice
murder as set out in Powell. By relying exclusively on the legal
principles outlined in CALCRIM No. 520, the trial court did not
appear to recognize that implied malice murder requires, among
other elements, proof of the aider and abettor’s knowledge and
intent with regard to the direct perpetrator’s life endangering
act. (See Powell, supra, 63 Cal.App.5th at pp. 712–713.)
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PEOPLE v. REYES
Opinion of the Court by Liu, J.
The trial court’s factual findings illustrate the nature of
its error. The court found that “the defendant, along with
several other gang members, one of which [was] armed, traveled
to rival gang territory” and then considered whether that act
was done with the mental state required for implied malice. In
particular, after finding the natural and probable consequence
of the act to be “dangerous to human life,” the trial court asked
whether Reyes “at the time he acted, . . . knew that the act was
dangerous to human life,” and whether “he deliberately acted
with conscious disregard for human life.” But implied malice
murder requires attention to the aider and abettor’s mental
state concerning the life endangering act committed by the
direct perpetrator, such as shooting at the victim. (See Powell,
supra, 63 Cal.App.5th at p. 713, fn. 27 [“The relevant act is the
act that proximately causes death.”].) Here, assuming the life-
endangering act was the shooting, the trial court should have
asked whether Reyes knew that Lopez intended to shoot at the
victim, intended to aid him in the shooting, knew that the
shooting was dangerous to life, and acted in conscious disregard
for life. (See id. at pp. 712–713.) Because the court did not do
so, its decision was based on an error of law insofar as the court
sustained Reyes’s murder conviction on a direct aiding and
abetting theory.
CONCLUSION
In sum, the trial court erred in sustaining Reyes’s second
degree murder conviction, whether it relied on a direct
perpetrator theory or on a direct aiding and abetting theory. We
find no substantial evidence to support a finding that Reyes was
the direct perpetrator of Rosario’s murder. And to the extent
the trial court denied Reyes’s petition under a direct aiding and
abetting theory, the court committed reversible error by
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Opinion of the Court by Liu, J.
misunderstanding the legal requirements of direct aiding and
abetting implied malice murder. We agree with the Attorney
General that remand is appropriate under these circumstances;
given the nature of this error, it is “uncertain whether the trial
court would have reached the same result using correct legal
standards.” (Knoller, supra, 41 Cal.4th at p. 158.) Accordingly,
we reverse the judgment of the Court of Appeal with directions
to remand the matter to the trial court for further proceedings
consistent with this opinion. We express no view on the merits
of Reyes’s resentencing petition under a proper application of
the elements of implied malice murder on a direct aiding and
abetting theory.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
14
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Reyes
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 8/4/21 – 4th Dist.,
Div. 3
Rehearing Granted
__________________________________________________________
Opinion No. S270723
Date Filed: June 29, 2023
__________________________________________________________
Court: Superior
County: Orange
Judge: Richard M. King
__________________________________________________________
Counsel:
Gerald J. Miller, under appointment by the Court of Appeal, and
Richard A. Levy, under appointment by the Supreme Court, for
Defendant and Appellant.
Mary K. McComb, State Public Defender, Samuel Weiscovitz and
Jennifer Hansen, Deputy State Public Defenders, for Office of the
State Public Defender as Amicus Curiae on behalf of Defendant and
Appellant.
Christopher Hawthorne and Marisa Harris for Juvenile Innocence &
Fair Sentencing Clinic as Amicus Curiae on behalf of Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland and Charles C.
Ragland, Assistant Attorneys General, Eric A. Swenson, Meredith
White, Jennifer B. Truong and Junichi P. Semitsu, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Richard A. Levy
Attorney at Law
3868 West Carson Street, Suite 205
Torrance, CA 90503-6706
(310) 944-3311
Junichi P. Semitsu
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9103