People v. Sanchez CA2/7 ( 2022 )

Filed 2/15/22 P. v. Sanchez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312061
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA070524-01)
v.
JACINTO PEREZ SANCHEZ,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Debra Cole-Hall, Judge. Affirmed.
Richard D. Miggins, 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, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Jacinto Perez Sanchez, convicted in 2004 with Aviu Garcia
of first degree murder with a felony-murder special-circumstance
finding, appeals the denial of his petition for resentencing
pursuant to Penal Code section 1170.951 after the superior court
found, beyond a reasonable doubt, that Sanchez could still be
convicted of felony murder under amended section 189,
subdivision (e)(3), as a major participant in the underlying
attempted robbery who had acted with reckless indifference to
human life. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Drug Deal, Attempted Robbery and Shooting
Sanchez, Garcia and Janet Cota were charged in an
information with murder (§ 187, subd. (a)), attempted robbery
(§§ 211, 664) and assault with a firearm (§ 245, subd. (a)(2)) with
a special-circumstance allegation the murder had occurred during
the commission of the attempted robbery (§ 190.2, subd. (a)(17)).
The information additionally alleged all three defendants had
personally used a handgun when committing felony murder and
attempted robbery (§ 12022.53, subd. (b)) and Sanchez had
personally and intentionally discharged a handgun proximately
causing Adrian Briones’s death (§ 12022.53, subds. (c) & (d)). It
was further alleged that Garcia had used a handgun (§ 12022.5,
subd. (a)) and personally inflicted great bodily injury on a second
victim, Roberto Farias. Cota pleaded guilty to attempted robbery
1 Statutory references are to this code.
2
and admitted a firearm enhancement in a negotiated agreement
and testified at Sanchez and Garcia’s trial.
The prosecutor’s theory of the case, as outlined in the
information and described in his opening statement, was that
Sanchez fired the shot that killed Briones. By closing argument,
however, the prosecutor argued the evidence showed Garcia was
the shooter. Our opinion affirming the judgments of conviction,
reviewed by the superior court when considering Sanchez’s
petition, described the evidence presented at the men’s joint trial.
(People v. Sanchez (July 18, 2005, B173340) [nonpub. opn.].)
Cota needed to make money while her husband was in jail.
Cota’s husband put her in touch with Farias, whom her husband
had met while incarcerated. Farias said Briones, Farias’s
nephew, would pay a finder’s fee for bringing him drug buyers.
Farias and Cota set up a drug deal with Sanchez and Garcia, who
agreed to purchase between 100 to 150 pounds of marijuana for
$300 to $330 per pound.
The day of the deal Sanchez and Garcia met Cota at a gas
station, and the three drove to Farias’s home. Farias, who
thought Cota was coming alone, spoke to Briones on the phone
and told him to come quickly because the buyers were there. At
Briones’s urging, Farias asked to see the money. Sanchez and
Garcia showed him a bag in the back of the car that appeared to
contain money wrapped in plastic. Sanchez said there was close
to $50,000 in the bag.
Before Briones arrived, Cota noticed a gun in the
waistband of Sanchez’s pants. She asked Sanchez to give it to
her so the deal could go forward. Sanchez gave Cota the gun,
which she put in her pocket. Although Briones was reluctant to
go through with the deal because Cota had not come alone, he
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changed his mind when Sanchez showed him the bag of money
and asked to see “the merchandise.” Briones invited Sanchez to
go with him to the trailer behind Farias’s duplex where the
marijuana was stored.
Sanchez accompanied Briones to the trailer, bringing the
bag of money with him. They started weighing packages of
marijuana. Garcia backed the car into the driveway and down
near the trailer. Briones handed Garcia several packages, and
Garcia loaded them into the trunk of the car. By this time,
Farias and Cota had walked down the driveway and were
standing near Garcia. Briones told Garcia to stop loading any
more packages into the car until he counted the money. Sanchez
placed the money bag on the table. Briones picked up some bills
and started counting.
According to Farias, who was standing outside the trailer
door, Sanchez pulled out a gun, pointed it at Briones and said,
“You’re fucked. I’m taking everything.” Briones dropped the
money and reached for the gun. He grabbed Sanchez’s arm, and
the two men struggled. Briones had his back to the trailer door
during the struggle. Farias saw Garcia run by him, raise his gun
and point it at Briones. Farias tried to grab Garcia’s hands.
Farias felt an impact on his hand and went down to the ground.
He later realized he had been shot. Once on the ground Farias
shielded his face with his hands. He was shot two more times,
once in the arm and once in the stomach. He did not know who
shot Briones.
Cota’s narrative differed from Farias’s. She testified she
had been back near the trailer when the men were loading
packages into the trunk. She, Garcia and Farias then walked to
the front yard of Farias’s home. When they heard a shot, they
4
ran back to the trailer.2 Farias, who arrived first, got up on the
step and looked inside the trailer. He then turned around and
jumped on top of Garcia. Garcia, who was holding a gun, fired a
shot. (Cota said she only heard a total of two shots.) Sanchez ran
out of the trailer; and he, Garcia and Cota ran to the car.
Cota did not see a gun in Sanchez’s hand as he left the
trailer, but she saw him holding a gun when they were in the car.
(Cota still had the gun Sanchez had given her earlier. Garcia and
Sanchez told her to take that gun home with her.) Sanchez said
everything had gone badly and he had left the money behind.
Briones died as a result of a gunshot wound. According to a
deputy medical examiner, Briones was shot in the back from a
distance of more than two or three feet. The bullet traveled
through his body at an upward angle. A supervisor from the
firearms identification section of the sheriff’s department
testified three .38 caliber shell casings found at the scene were
fired from the same gun.3
The jury convicted Sanchez and Garcia of first degree
murder, attempted robbery and assault with a firearm, found
true the felony-murder special-circumstance allegation and, as to
Garcia, also found true the firearm-use and great bodily injury
enhancements with respect to the aggravated assault charge.
The jury found not true the allegations Sanchez had personally
and intentionally discharged a firearm during the attempted
robbery and felony murder. The court sentenced both men to life
2 Faustino Farias, Roberto Farias’s brother, testified he saw
Cota back by the trailer before any shots were fired.
3 Two of the shell casings were found outside the trailer and
one inside it.
5
without parole for murder plus determinate terms for the
additional charges and enhancements.
We affirmed the judgments on appeal, rejecting Garcia’s
arguments there was insufficient evidence to support his
convictions and Sanchez’s claims of instructional error relating to
Cota’s testimony as an accomplice and his argument the trial
court had abused its discretion in denying his motion for
acquittal as to the section 12022.53, subdivisions (c) and (d),
enhancement allegations that he had personally and
intentionally discharged a firearm proximately causing the death
of Briones. (People v. Sanchez, supra, B173340.)
2. Sanchez’s Petition for Resentencing
On March 12, 2019 Sanchez, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Sanchez checked boxes on the printed form petition
to establish his eligibility for resentencing relief, including the
boxes stating he had been convicted under a felony-murder
theory and could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). The superior court appointed
counsel to represent Sanchez.4
Following briefing by the People and Sanchez’s appointed
counsel, the superior court found Sanchez had made a prima facie
showing of his entitlement to relief and issued an order to show
cause, setting the matter for an evidentiary hearing. On
4 Judge Robert J. Higa presided at Garcia and Sanchez’s
2004 trial. Judge Higa retired prior to the filing of Sanchez’s
petition. The matter was assigned to Judge Debra Cole-Hall.
6
April 19, 2021, after considering the trial record and this court’s
opinion affirming Sanchez’s felony-murder conviction on appeal
and hearing argument from counsel, the court denied the
petition, finding beyond a reasonable doubt Sanchez had been a
major participant in the commission of the attempted murder
and had acted with reckless indifference to human life and,
therefore, could still be found guilty of murder on a valid theory
of felony murder.
Sanchez filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).)5 It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
5 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
ameliorative provisions of Senate Bill 1437 now also apply to
attempted murder and voluntary manslaughter.
7
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),6 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
6 Prior to enactment of Senate Bill No. 775 the requirement
to appoint counsel was set forth in subdivision (c) of
section 1170.95.
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credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)7 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
We review the superior court’s factual findings following the
evidentiary hearing for substantial evidence. (People v. Ramirez
(2021) 71 Cal.App.5th 970, 985; People v. Hernandez (2021)
60 Cal.App.5th 94, 113.)
2. Section 189, Subdivision (e)(3), and the Narrowed
Felony-murder Rule
At the time of Sanchez and Garcia’s trial section 189
permitted a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including robbery,
that resulted in a homicide. (See People v. Chun (2009)
45 Cal.4th 1172, 1184.) As amended by Senate Bill 1437,
7 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3), now clarifies, “A finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”
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section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder except
under the revised felony-murder rule as set forth in section 189,
subdivision (e), which requires proof of specific facts relating to
the defendant’s individual culpability: The defendant was the
actual killer (§ 189, subd. (e)(1)); although not the actual killer,
the defendant, with the intent to kill, assisted in the commission
of the murder (§ 189, subd. (e)(2)); or the defendant was a major
participant in an underlying felony listed in section 189,
subdivision (a), and acted with reckless indifference to human
life, “as described in subdivision (d) of Section 190.2,” the felony-
murder special-circumstance provision (§ 189, subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,
subdivision (e)(3), were identified by the Supreme Court in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), and reiterated most recently in In re
Scoggins (2020) 9 Cal.5th 667 (Scoggins). As to whether the
defendant was a major participant in one of the specified felonies,
the Banks Court listed the following factors: “What role did the
defendant have in planning the criminal enterprise that led to
one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
10
and did his or her own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was
used?” (Banks, at p. 803, fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
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death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
3. Substantial Evidence Supports the Trial Court’s Finding
That Sanchez Is Ineligible for Resentencing Relief Under
Section 1170.95
There can be no question substantial evidence supports the
superior court’s finding that Sanchez was a major participant in
the attempted robbery. Although Cota arranged the drug
transaction, it is a reasonable inference that the men, both
carrying loaded firearms, came to Farias’s home with the
intention of robbing the drug dealers. Sanchez then initiated the
robbery as Briones was counting the money Sanchez had given
him, pointing his gun at Briones (after giving one gun to Cota
immediately before their encounter with Farias) and
provocatively declaring, “You’re fucked. I’m taking everything.”
Although the proof Sanchez acted with reckless indifference
to human life during the attempted robbery was not as
overwhelming, that finding, too, is supported by substantial
evidence. (See People v. Dalton (2019) 7 Cal.5th 166, 244 [When
considering a challenge to the sufficiency of the evidence to
support a conviction, the reviewing court determines “‘“whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence”’”]; see also Clark, supra,
63 Cal.4th at p. 626 [“‘[w]here the circumstances reasonably
justify the trier of fact’s findings, a reviewing court’s conclusion
12
the circumstances might also reasonably be reconciled with a
contrary finding does not warrant the judgment’s reversal’”].)
Even though the evidence indicated it was Garcia, not
Sanchez, who fired the fatal shot (as reflected by the jury’s
finding not true as to Sanchez the section 12022.53,
subdivisions (c) and (d), firearm use enhancements), Sanchez was
armed and physically present at the scene of what he necessarily
knew was a crime with a high risk of escalating violence—the
robbery of drug dealers during a drug deal involving a large
quantity of marijuana, a large amount of money and at least
three loaded guns. As discussed, after Sanchez announced the
robbery and Briones attempted to disarm Sanchez, Garcia came
to Sanchez’s aid, first shooting Farias and then Briones. There
was no evidence Sanchez did anything to restrain Garcia or
lessen his lethal reaction to the robbery gone bad. Moreover,
after Garcia shot Briones, rather than attempt to assist Briones
or call for help, Sanchez fled with Garcia and Cota—all factors
suggesting Sanchez acted with reckless indifference to human
life. (See Scoggins, supra, 9 Cal.5th at p. 677; Clark, supra,
63 Cal.4th at pp. 618-622; see generally People v. Law (2020)
48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490
[“[W]e are not aware of a single case that concludes a defendant
who personally committed a robbery, used a gun, and was
present for the shooting did not meet the standard in
section 190.2, subdivision (d). The defendants who have been
able to get their special circumstance findings vacated under
Banks and Clark are those who were not wielding guns
themselves and also not present for the shooting (either because
they were acting as getaway drivers or because they were
involved in the planning of the crime only”].)
13
It is the superior court, not the reviewing court, that must
be persuaded beyond a reasonable doubt the petitioner can still
be convicted of murder after Senate Bill 1437’s amendments to
sections 188 and 189. The evidence in the record here
reasonably justified the superior court’s conclusion. That it also
might have supported a finding that Sanchez, although actively
involved in the attempted robbery, did not act with reckless
indifference to human life does not warrant reversal of the order
denying his petition for resentencing. (See People v. Ramirez,
supra, 71 Cal.App.5th at p. 985; see also People v. Zamudio (2008)
43 Cal.4th 327, 357-358.)
DISPOSITION
The postjudgment order denying Sanchez’s petition for
resentencing under section 1170.95 is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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