People v. Solano CA2/2 ( 2021 )

Filed 6/10/21 P. v. Solano CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303993
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA042134)
v.
GABRIELA MARTHA
SOLANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Gabriela Martha Solano (defendant) appeals the trial
court’s denial of her petition for relief under Penal Code section
1170.95.1 Although, as the People concede, the trial court erred
in striking down section 1170.95 as unconstitutional, we
nevertheless affirm because the jury’s special circumstance
finding renders defendant ineligible for section 1170.95 relief as a
matter of law. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crimes
On a Tuesday night in late September 1998, defendant and
four others—her boyfriend (Armando Perez), her roommate
(Brenda Moreno), and two of her boyfriend’s friends (Dennis
Barroso and Brian Scott)—drove around the San Gabriel Valley
committing a rash of violent crimes.
Defendant was the driver, and was behind the wheel of her
own SUV.
Before starting the crime spree, defendant drove the others
to a store to buy knitted black gloves and then made two further
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s convictions. (People v. Barroso et
al. (Apr. 24, 2001, B135322).)
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stops so that the others could pick up several shotguns and
handguns.
The group started with a carjacking in Diamond Bar.
Around 10:15 p.m., defendant followed a woman in an Infiniti
until defendant’s boyfriend and his two friends hopped out and,
with shotguns and handguns on display, forced the Infiniti driver
out of her car. They demanded her purse, her watch and her
necklace, and drove off in her car.
Then the group attempted a second carjacking in
Rosemead. Once again, defendant followed the intended victim
into his driveway. When defendant’s boyfriend and his friend
Barroso jumped out of her SUV and pointed their shotguns at the
driver of the other car, he honked his horn and put his car in
reverse. Although defendant repositioned her SUV to block his
escape, he managed to drive away—but not before Barroso shot
at the car (and missed).
Then the group finished off their spree with robbery and
murder. Around 2:00 a.m., defendant drove up next to several
pedestrians returning from a convenience store—namely, Gilbert
Rivas (Rivas), Rivas’s fiancée, Rivas’s teenage brother and the
fiancée’s teenage son. Defendant’s boyfriend and Barroso leaned
out of the open windows of defendant’s SUV with their shotguns
on display and issued a gang challenge. The pedestrians said
that they “don’t bang,” and defendant’s boyfriend proclaimed his
allegiance to the “Valinda Flats” gang. Defendant’s boyfriend,
both of his friends, and defendant’s roommate then jumped out of
the car with firearms at the ready. Rivas’s brother handed over
cash, some cigarettes and his new black Nikes. Defendant’s
roommate asked the fiancée to hand over her rings. When the
fiancée balked, explaining that the rings had little monetary
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value but great sentimental value, defendant’s roommate
punched the fiancée in the face. Rivas told the roommate that
she did not need to hurt his fiancée nor disrespect them. That is
when Barroso shot Rivas in the stomach, and defendant’s
boyfriend shot him twice more in the back and head. Rivas died
from the gunshot wounds.
B. Prosecution, conviction and appeal
In the operative amended information, the People charged
defendant with (1) the murder of Rivas (§ 187, subd. (a)), (2) the
second degree robbery of Rivas’s brother (§ 211), (3-5) the
attempted robberies of Rivas, Rivas’s fiancée, and the fiancée’s
son (§§ 211, 664), (6) the carjacking of the Infiniti driver (§ 215,
subd. (a)), and (7) the second degree robbery of the Infiniti driver
(§ 211). As to the murder, the People alleged the special
circumstance that the “murder . . . was committed . . . while the
. . . defendant[s] . . . were engaged in the commission of . . .
robbery and attempted robbery” pursuant to section 190.2, subd.
(a)(17). As to the counts involving Rivas and his group, the
People further alleged that a principal used and discharged a
firearm resulting in great bodily injury or death (§§ 12022.5,
subd. (a), 12022.53, subds. (d) & (e)(1)), and that the crimes were
“committed for the benefit of, at the direction of, and in
association with a criminal street gang” (§ 186.22, subd. (b)(1)).
The matter proceeded to a jury trial. The jury was
instructed that they could convict defendant of Rivas’s murder as
a direct aider and abettor or on a felony-murder theory. With
respect to the special circumstance allegation, the jury was
instructed that the allegation could be found true only if the jury
found, beyond a reasonable doubt, that (1) defendant was the
“actual killer,” (2) defendant “aided, abetted, or assisted . . . in
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the commission of the murder in the first degree” “with the intent
to kill,” or (3) defendant “aided, abetted, or assisted” the
“commission or attempted commission of the crime of robbery”
“as a major participant” and “with reckless indifference to human
life.” In closing arguments, the prosecutor argued that defendant
was liable for murder under the felony-murder theory, and that
the special circumstance was true because she was a major
participant in the robberies and attempted robberies who acted
with reckless indifference to human life.
The jury found defendant guilty of all charges and found
true the special circumstance, the firearm allegations, and the
gang allegation.
The trial court imposed a prison sentence of life without the
possibility of parole (LWOP) plus 42 years and 4 months.
Specifically, the court imposed a sentence of LWOP for the
special circumstance murder plus a consecutive 25 years to life
for the firearm allegation. The court then imposed a consecutive
sentence of four years and four months for the robbery of Rivas’s
brother; two consecutive sentences of four years for two of the
attempted robbery counts; and a consecutive sentence of five
years for the carjacking. The court either stayed the remaining
sentences or ran them concurrently.
Defendant appealed, and we affirmed her convictions and
sentence. In response to her argument that the trial court erred
in admitting the evidence of the uncharged attempted carjacking
and use of firearms in Rosemead, we reasoned that this evidence
was relevant to establish that defendant and the others
“harbored the intent to kill[] or acted with reckless indifference to
human life” and to disprove defendant’s proffered defense that
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she did not know the others intended or rob or kill and did not
see them bring guns into her car.
In 2018, the Governor commuted defendant’s sentence to 20
years to life.
II. Procedural Background
On March 13, 2019, defendant filed a petition seeking
resentencing under section 1170.95 for her murder conviction.
The court issued an order summarily denying relief on the
ground that section 1170.95 was unconstitutional because it
impermissibly amended Proposition 7 and Proposition 115 as well
as violated Marsy’s Law and the separation of powers.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying her section 1170.95 petition. As the People concede and
as we agree, the trial court erred in declaring section 1170.95 to
be unconstitutional on any of the grounds it specified. (People v.
Lopez (2020) 51 Cal.App.5th 589, 600-603 [section 1170.95 does
not improperly amend Proposition 7 or Proposition 115]; People v.
Johns (2020) 50 Cal.App.5th 46, 66-69 [section 1170.95 does not
violate Marsy’s Law or the separation of powers].) However, the
People urge an alternate ground for affirmance—namely, that
defendant is ineligible for relief under section 1170.95 as a
matter of law by virtue of the jury’s special circumstance finding.
We may consider this alternative argument (People v. Smithey
(1999) 20 Cal.4th 936, 972), and we do so independently because
it turns on questions of statutory construction and the
application of law to undisputed facts. (Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018; People v.
Blackburn (2015) 61 Cal.4th 1113, 1123.)
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I. Effect of Jury’s Special Circumstance Finding
Section 1170.95 authorizes a defendant “convicted of felony
murder or murder under a natural and probable consequences
theory” to vacate her murder conviction if, as a threshold matter,
she makes a “prima facie showing” of entitlement to relief.
(§ 1170.95, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, she “could not be convicted of first or
second degree murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction based on a theory of vicarious liability if the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .” (§ 189, subd.
(e)(3).)
Applying these statutes, we conclude that defendant has
not made a prima facie showing of her entitlement to relief under
section 1170.95. That is because the jury in this case, by virtue of
finding the special circumstance allegation to be true, necessarily
found that defendant was a major participant in the underlying
felony and acted with reckless indifference to human life. This
prior finding renders defendant “not eligible for relief under
section 1170.95 as a matter of law.” (People v. Jones (2020) 56
Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854;
People v. Allison (2020) 55 Cal.App.5th 449, 457; People v. Gomez
(2020) 52 Cal.App.5th 1, 14-17, review granted Oct. 14, 2020,
S264033; People v. Galvan (2020) 52 Cal.App.5th 1134, 1141-
1143, review granted Oct. 14, 2020, S264284; but see People v.
Torres (2020) 46 Cal.App.5th 1168, 1179-1180, review granted
June 24, 2020, S262011; People v. Smith (2020) 49 Cal.App.5th
85, 93-94, review granted July 22, 2020, S262835; People v. York
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(2020) 54 Cal.App.5th 250, 258-263, review granted Nov. 18,
2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939, 956-
958, review granted Apr. 28, 2021, S267802; People v. Secrease
(2021) 63 Cal.App.5th 231, 236, 247 (Secrease).)
Defendant resists this conclusion with what boil down to
two arguments.
First, she argues that the jury’s prior finding is no longer
valid because (1) our Supreme Court altered the manner in which
appellate courts are to review this particular special
circumstance finding for substantial evidence in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark), and (2) the jury’s finding in this case could
not withstand Banks’s and Clark’s more probing substantial
evidence review. Although, as noted above, the Courts of Appeal
are divided as to whether Banks and Clark undermine the effect
of a jury’s prior special circumstance finding, our division in
People v. Nunez (2020) 57 Cal.App.5th 78, review granted
January 13, 2021, S265918 (Nunez), has sided with those cases
holding that the prior jury finding remains valid—and thus
remains a basis for denying relief under section 1170.95—unless
and until the defendant successfully overturns the finding in a
habeas petition. (Id. at pp. 93-97.) Because defendant has not
yet done so, the jury’s prior special circumstance finding
precludes relief under section 1170.95. Defendant urges us to
follow the cases disagreeing with Nunez, but we find those cases
unpersuasive for the reasons spelled out in Nunez.
Second, defendant repeatedly argues that she never got out
of her SUV when the others confronted, harassed and ultimately
shot Rivas and his companions. However, defendant’s specific
whereabouts during that incident are not dispositive of her role
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during that incident or her awareness of the potential for violence
that bears on whether she acted with reckless indifference to the
value of human life. This fact does not in any event negate the
jury’s special circumstance finding.
II. Continued Validity of the Jury’s Special Verdict
Finding
Even if we were to hedge our bets and not follow Nunez in
light of the deep split of authority on the question pending before
our Supreme Court, our task would be to undertake for ourselves
the task that Nunez entrusts to a trial court considering a
subsequent habeas corpus petition—that is, evaluating whether
the jury’s special circumstance finding is supported by
substantial evidence through the prism of Banks and Clark.
(Secrease, supra, 63 Cal.App.5th at p. 255 [so holding].) In
assessing whether substantial evidence supports a finding, we
view the record in the light most favorable to that finding. (People
v. Albillar (2010) 51 Cal.4th 47, 60.) That evaluation leads to the
conclusion that the jury’s finding must stand, and that relief
under section 1170.95 is accordingly unavailable to defendant as
a matter of law. Because the finding that renders defendant
ineligible for relief—like the special circumstance itself—requires
proof beyond a reasonable doubt that defendant (1) “was a major
participant in the underlying felony” and (2) “acted with reckless
indifference to human life,” we separately evaluate the continued
viability of each element through the Banks and Clark prism.
A. Major participant
Under Banks and Clark, a “major participant” in a robbery
is someone whose “personal involvement” is “substantial”; such a
participant “need not be the ringleader,” but her involvement
must be “greater than the actions of an ordinary aider and
9
abettor.” (Banks, supra, 61 Cal.4th at pp. 801-802; People v.
Williams (2015) 61 Cal.4th 1244, 1281.) Courts are to examine
the totality of the circumstances when evaluating the extent of
participation, including several factors our Supreme Court
identified in Banks as relevant but not dispositive on the issue:
(1) the defendant/aider and abettor’s role in planning the robbery;
(2) her role in supplying or using lethal weapons; (3) her
awareness of the “particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants”; (4) her presence at the scene of the killing and thus
whether she was “in a position to facilitate or prevent the actual
murder”; and (5) her actions after the use of lethal force. (Banks,
at p. 803; Clark, at p. 611.)
Substantial evidence supports the finding that defendant
was a major participant, even when applying the heightened
standard set forth in Banks and Clark. Although the facts do not
disclose defendant’s role in planning the carjacking, robberies,
attempted robberies, or murder, and although she did not supply
or use any firearm during the three incidents underlying this
case, she did drive to various locations so that her compatriots
could pick up firearms and, in the Rosemead attempted
carjacking, she used her SUV—which itself can be a lethal
weapon—to block the intended victim’s attempts to drive away
when defendant’s boyfriend and his friend had their shotguns
aimed at him. Defendant was present at the scene of the killing.
Defendant was also aware of the particular dangers posed by her
compatriots: The incident that resulted in the murder, robbery
and attempted robberies was the last incident of the night; by
that time, defendant had watched as her boyfriend and his
friends had openly brandished firearms to threaten the
10
carjacking victim and attempted carjacking victim, and had
opened fire on the attempted carjacking victim. Yet she willingly
drove them to the third and final incident and, after that
incident, did nothing to help the murder victim.
Defendant offers two arguments against this conclusion.
First, she argues that she never got out of the car, such that she
was the quintessential “getaway driver” who is far removed from
the culpability of the actual perpetrators. We disagree. Although
she never got out of her car, she played an integral role in all of
the predicate crimes: Without her wheels, the crimes could not
have happened. More to the point, she drove her boyfriend and
his friends to get their guns, drove them from one location to
another to commit crimes, and she even drove her SUV in a
manner that facilitated those crimes—she tried to block the
attempted carjacking victim from escaping and drove alongside
the pedestrians that her boyfriend and his friend threatened
while hanging out of her SUV. Second, defendant argues that she
testified that she was afraid of her boyfriend on the night she
participated in the crime spree and did not know he would be
using guns. This argument ignores the standard of review, which
requires us to defer to the jury’s evaluation of her credibility. By
convicting her, the jury necessarily found defendant was not
credible, and we may not gainsay that credibility finding under
substantial evidence review. (People v. Brown (2014) 59 Cal.4th
86, 106.)
B. Reckless indifference to human life
A defendant acts with reckless indifference to human life
when she “‘“knowingly engag[es] in criminal activities known to
carry a grave risk of death.”’” (Banks, supra, 61 Cal.4th at
p. 801, quoting People v. Estrada (1995) 11 Cal.4th 568, 577,
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quoting Tison v. Arizona (1987) 481 U.S. 137, 157-158.) This
standard “has a subjective and an objective” component. (In re
Scoggins (2020) 9 Cal.5th 667, 677 (Scoggins).) To satisfy the
subjective component, ‘“[t]he defendant must be aware of and
willingly involved in the violent manner in which the [underlying
felony] is committed,’ and . . . must consciously disregard ‘the
significant risk of death his or her actions create.’” (Scoggins, at
p. 677, quoting Banks, at p. 801.) The key is whether the
defendant evinces “a willingness to kill (or to assist another in
killing) to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(Clark, supra, 63 Cal.4th at p. 617.) To satisfy the objective
component, the risk of death “‘“must be of such a nature and
degree that, considering the nature and purpose of the
[defendant’s] conduct and the circumstances known to him[], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the [defendant’s]
situation.”’” (Scoggins, at p. 677, quoting Clark, at p. 617.)
Our Supreme Court has identified a number of
considerations bearing on whether a defendant has acted with
reckless indifference to human life. “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, 61 Cal.4th at p. 803); what matters is
the totality of the considerations (Scoggins, supra, 9 Cal.5th at
p. 677). The considerations are: (1) “Did the defendant use or
know that a gun would be used during the [underlying] felony,”
and, relatedly, “[h]ow many weapons were ultimately used?”; (2)
“Was the defendant physically present at the crime,” such that
she had “the opportunity to restrain the crime or aid the victim?”;
(3) “What was the duration of the interaction between the
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perpetrators of the [underlying] felony and the victims?”;
(4) “What was the defendant’s knowledge of . . . her confederate’s
propensity for violence or likelihood of using lethal force?”; and
(5) “What efforts did the defendant make to minimize the risks of
violence during the felony?” (Id., citing Clark, supra, 63 Cal.4th
at pp. 618-623.)
Substantial evidence supports the finding that defendant
acted with reckless indifference to human life, even when
applying the heightened standard set forth in Banks and Clark.
Although defendant’s awareness that her boyfriend and his
friends would be “armed” or that a gun would be used is not
enough, “without more,” to establish an awareness of a grave risk
of death (Banks, supra, 61 Cal.4th at p. 809, fn. 8), here there
was more: Defendant not only knew that guns would be used,
but she drove her compatriots to various locations so that they
could get those guns, and she knew of her compatriot’s propensity
for violence and their likelihood to use lethal force as the crime
spree wore on: Even if defendant had been surprised by the
brandishing of guns at the initial carjacking, or had been
surprised by the firing of the guns at the later attempted
carjacking, she was certainly aware of the likelihood that her
compatriots would brandish and fire their weapons by the time of
the third incident that resulted in a killing. Yet defendant not
only continued to drive them to the third incident but also drove
her SUV in a manner that allowed them to hang out of its
windows and threaten the third set of victims. As noted above,
defendant was physically present the whole time over what took
several hours, and thus had ample time to restrain her
compatriots. And as noted above, she made no efforts to
minimize the risk of violence during any of the incidents.
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Defendant’s response to this second element of the special
circumstance is the same as her response to the first element,
and lacks merit for the same reasons.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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