People v. Delgado CA2/7 ( 2022 )

Filed 12/5/22 P. v. Delgado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B314239
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA009835)
v.
JAIME DELGADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed.
David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Susan
Sullivan Pithey, Assistant Attorneys General, Daniel C. Chang
and Charles S. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
In 1992 a jury convicted Jaime Delgado of the first degree
murder of Mark Meraz and two counts of assault with a firearm
on Richard Meraz1 and Joe Lopez. The jury also found true as to
each count that Delgado personally used a firearm in the
commission of the offense (Pen. Code § 12022.5, subd. (a))2 and
the offenses were committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(2)). Delgado appealed, and we affirmed.
(People v. Delgado (Sep. 21, 1994, B073625) [nonpub. opn.]
(Delgado I).)
In 2019 Delgado, representing himself, filed a petition for
resentencing seeking to vacate his murder conviction and be
resentenced pursuant to former section 1170.95 (now
section 1172.6).3 The trial court appointed counsel to represent
Delgado, and in 2021 it held an evidentiary hearing pursuant to
section 1172.6, subdivision (d)(3), at which the court heard live
testimony and considered the transcripts from the jury trial. At
the hearing a witness who had identified Delgado at trial as the
driver of the Jeep that transported the two shooters to the Meraz
family house just before the murder changed his testimony,
saying he had lied at trial. The court found the witness not
credible and denied Delgado’s petition, finding beyond a
reasonable doubt that Delgado was a direct aider and abettor in a
planned attack on the Meraz family “with the intent to kill.”
1 We refer to the Meraz family members by their first names
to avoid confusion.
2 Further statutory references are to the Penal Code.
3 Effective June 30, 2022, section 1170.95 was renumbered
as section 1172.6 with no change in the text. (Stats. 2022, ch. 58,
§ 10.)
2
Delgado’s sole contention on appeal is that the superior
court never found he personally harbored an intent to kill, and
therefore the superior court should have resentenced him to
second degree murder. However, Delgado never argued in the
superior court that he should have been resentenced for second
degree murder (instead arguing he was innocent). Further,
section 1172.6 does not provide relief for a defendant who is still
guilty of murder under amendments to sections 188 and 189 but
should have been convicted of a lesser degree of murder.
Moreover, substantial evidence supports the court’s finding
Delgado had an intent to kill. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
At about 1:00 p.m. on October 2, 1991, a black Jeep with
five to six occupants drove by the Meraz house in Artesia,
California, where Richard lived with his mother (Bertha), his
father, and his two brothers, Mark and Gilbert. Richard testified
he had contact with Delgado before that day, and Delgado was
the driver. The Jeep had an open top with a roll bar. Richard
and his mother were in the living room of the house facing the
street when the Jeep stopped in front of the house. As the Jeep
passed by, Richard heard one of the occupants ask, “‘Is this the
house?’” One of the occupants stood up in the back of the Jeep
and grabbed the roll bar.
At about 9:00 that night Richard, Mark, and Richard’s
friends Joe Lopez and Anthony Mitchell were standing on the
lawn in front of the Meraz home when the same Jeep drove by
the house. Richard, Mark, and the two friends were standing
behind Bertha’s car, which was parked on the front lawn.
3
Richard did not recognize the driver that night, but Lopez
identified Delgado as the driver. Lopez had previously seen
Delgado’s brother Benjamin drive the Jeep.
The Jeep drove about three houses past the Meraz house,
then backed up and turned into the alley. After it pulled into the
alley, two men jumped out and walked toward the street. Lopez
observed the men were “‘coming straight for us,’” and Richard
told his friends to go inside the house. Mark and Mitchell went
into the house; Lopez went around the side of the house to
awaken Richard’s father.
Richard observed the two men stop in front of a house
across from the Meraz house. The men pointed their guns toward
the Meraz house and fired approximately 30 rounds. Other
rounds were fired from the alley toward the Meraz house. Lopez
testified that when he heard the gunfire, he ran outside and saw
a man in the center of the street firing a handgun. The two men
started to run toward the alley, and Richard fired eight rounds
from his semi-automatic gun while standing behind Bertha’s car.
One of the gunmen fell to his knees, then limped away with the
other shooter toward the alley where the Jeep had driven. The
two men then turned into the alley.
Bertha heard the gunshots, and she and her husband ran
toward the living room, where she found Mark on the floor. She
looked out the window and saw at least eight flashes from a gun.
Mark later died of a gunshot wound to the chest.
On the night of the shooting, Los Angeles County Sheriff’s
Department firearms expert J.W. Whitmarsh recovered 12
expended cartridge casings from both sides of a fence in the alley.
He opined the casings were from one .30 caliber firearm.
Whitmarsh recovered 13 expended cartridge casings from the
4
front yard of the house across the street from the Meraz house
and the sidewalk in front of and around the house, at least nine
of which he opined were from a single 9 millimeter firearm.
Whitmarsh also recovered 12 expended cartridge casings from
the driveway of another house across the street from the Miraz
house, which he opined were fired from a second 9 millimeter
gun. Whitmarsh also recovered bullets and bullet fragments
from areas in and around the Meraz house. Four of the bullets
and bullet fragments were 9 millimeter caliber, the same caliber
as the bullet recovered from Mark’s body. Whitmarsh opined the
four bullets could all have been fired from the same 9 millimeter
gun.
Later that night or early the next morning Lopez identified
a Jeep that was found by the police as the one Delgado was
driving. A fingerprint lifted from the driver’s side rear view
mirror matched one from Delgado’s left thumb. Other prints in
the car matched those of codefendant Sergio Martinez and Jose
Alvarado. Codefendant Isabel Rios was seen that night at a local
hospital with a gunshot wound to his left shoulder. Richard
subsequently identified Rios as one of the shooters.
On October 7 Richard identified the driver of the Jeep on
the afternoon of the shooting as Delgado, who went by the gang
moniker “Apache.” The same day Lopez identified Delgado from
a six-pack photographic lineup as the driver of the Jeep the night
of the shooting. Lopez later identified one of the shooters as
Martinez.
5
Delgado’s girlfriend, Veronica Renteria,4 testified for the
defense. Veronica lived with her parents and her sister. On the
night of the shooting Veronica went to counseling and returned to
her home around 9:30 p.m. Delgado was there when she
returned, along with her family. When she arrived home, there
were a lot of police officers on the street and a helicopter in the
air. She stayed in her home with Delgado until about 11:30 that
night. On cross-examination Veronica acknowledged she,
Delgado, and her family went outside and watched the police
activity. She saw the police tow Delgado’s car away, but Delgado
did not say anything to the police. Veronica admitted she had
seen Delgado previously drive the Jeep. Veronica’s sister
Elizabeth similarly testified that on the night of the shooting
Delgado was at the family’s home, arriving sometime between
7:30 and 8:00 p.m. According to Elizabeth, Delgado came to see
Veronica and planned to wait for her. Veronica came home
around 10:00 p.m.
The jury convicted Delgado of the first degree murder of
Mark and two counts of assault with a firearm on Richard and
Lopez. The trial court sentenced Delgado to an aggregate term of
25 years to life plus five years in state prison. Delgado appealed,
and we affirmed. (Delgado I, supra, B073625.)
B. Delgado’s Petition for Resentencing and the Trial Court’s
Ruling
On March 12, 2019 Delgado, representing himself, filed a
form petition for resentencing seeking to vacate his murder
4 We refer to the Renteria sisters by their first names to
avoid confusion.
6
conviction and be resentenced in accordance with recent
statutory changes relating to accomplice liability for murder. In
his petition, Delgado declared he was convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine and could not now be convicted of murder because of
changes made to sections 188 and 189. He also stated he was
convicted of felony murder, he was not the actual killer, he did
not intend to kill, and he was not a major participant in the
felony and did not act with reckless indifference to human life
during the course of the offense. Delgado requested the court
appoint him counsel.
Delgado attached to his petition a 2012 declaration from
Richard, in which Richard stated he was a friend of Delgado’s
from school, being in jail, and “the [s]treets.” Richard averred his
testimony at trial that Delgado drove the Jeep that stopped in
front of Richard’s house on the afternoon of the shooting was
false. Delgado was not in the Jeep, but Richard claimed he was
because he blamed Delgado for failing to convince the Chivas
gang members5 not to shoot at the Meraz house. Richard added
that Lopez threatened him after the shooting, stating that he
would harm Richard if he challenged Lopez’s identification of
Delgado as the driver.
The superior court appointed counsel to represent Delgado.
The People opposed the petition on the basis the facts set forth in
our opinion in Delgado I showed Delgado was a direct aider and
abettor who acted with the intent to assist his fellow gang
5 The Meraz house was in the territory of the Artesia gang;
Chivas was a clique of the gang. Mark was a member of the
Hawaiian Gardens gang, which was the archrival of the Chivas
gang. Delgado and Rios were members of the Chivas gang.
7
members in killing Mark. In addition, Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), which added
former section 1170.95, was unconstitutional.
Delgado’s attorney filed a reply brief in which he argued
Delgado made a prima facie showing of eligibility in that the jury
was instructed on felony murder and the natural and probable
consequences doctrine, and it may have convicted him of murder
based on one of those theories. The reply also relied on Richard’s
2012 declaration in which he stated Delgado was not the driver of
the Jeep. In addition, the reply attached a 2015 declaration from
Rios, who stated he committed the murder of Mark; Delgado had
no knowledge of the murder; and Delgado “was not at all present
or a part of the murder of Mark Meraz.” The reply also attached
a transcript from Rios’s May 22, 2018 parole hearing, in which
Rios stated he fired at the Meraz house along with Martinez and
Herman Nigel.
On October 23, 2020 the superior court found Delgado
made a prima facie showing of eligibility for relief under former
section 1170.95 and set the matter for an evidentiary hearing. At
a December 21, 2020 hearing the prosecutor requested defense
counsel be barred from calling witnesses to testify Delgado was
not the person driving the Jeep and was not involved in the
shooting. The prosecutor argued a defendant may present
additional evidence to show he was not convicted of murder
under a theory that is still valid under amendments to
sections 188 and 189, not whether the defendant was wrongfully
convicted. Delgado’s attorney responded that once Delgado made
a prima facie showing, he could present evidence on identity to
show Delgado was not the person who was involved in the
murder notwithstanding the jury’s true finding that Delgado
8
personally used a firearm in the commission of the murder and
assaults. The court held Delgado could present evidence of
identity, explaining, “I believe that based on what [the] People’s
burden of proof is and that new evidence is allowed to see
whether the conviction is still valid, that evidence in this
case . . . as to identification is permissible, and the court will
allow it.”
The court held an evidentiary hearing on January 29, 2021.
Richard testified that when he identified Delgado from a six-pack
photographic lineup, he was identifying him as “just being the
owner of the [Jeep].” Richard repeated his testimony that on the
night of the shooting a Jeep came toward his house, stopped,
backed up, then turned into the alley and stopped again. Two
men jumped out of the Jeep and walked toward the Meraz house,
on the opposite side of the street. One of the men pulled out a
9 millimeter handgun. Richard stated that when the Jeep first
arrived that night it stopped two houses from the Meraz house,
directly under a street light. When asked whether he saw
Delgado in the vehicle, Richard responded, “Not exactly. I seen
the person that resembled him . . . .” He added that the person
who resembled Delgado was sitting in the driver’s seat. Richard
denied he ever told the police that Delgado was in the Jeep the
night of the shooting. At the hearing he initially denied that
Lopez had ever threatened him, but after reviewing his prior
declaration, Richard acknowledged he had signed the declaration
and the statement was true.
On cross-examination, after reviewing the transcript of his
testimony at trial, Richard admitted he had testified Delgado was
driving the Jeep on the afternoon of the shooting. When asked
whether he was “100 percent sure” the Jeep he saw in the
9
afternoon was Delgado’s vehicle, he responded, “Yes, sir.” He
acknowledged he had written in his declaration that he had lied
when he identified Delgado as the driver of the Jeep in the
afternoon. Richard also admitted that when he saw the same
black Jeep that night, he was “100 percent confident that it was
[Delgado’s] black Jeep.”
Elizabeth testified, as she did at trial, that Delgado was at
her home at the time of the murder. Delgado had been there for
“a couple hours before.” At the time Elizabeth testified at trial,
Delgado was dating Veronica.
Rios admitted he participated in Mark’s murder but stated
Delgado did not drive him to the Meraz house and was not
involved in the murder. Rios acknowledged he stated at his
parole hearing that Delgado was present at the time of the
murder, but this was a lie. Rios also admitted he lied at trial
when he testified in his own defense that he was not present at
the time of the murder, he was not injured as a result of the
murder, and he was not in a gang.
Dr. Iris Blandon-Gitlin provided expert testimony on the
factors that affect a person’s memory and eyewitness testimony.
The prosecutor argued Delgado’s Jeep was identified as the
vehicle used in the crime; Delgado was identified as driving his
Jeep by the Meraz house the afternoon of the murder; and he was
also identified as driving the Jeep at the time of the shooting. He
urged the court not to give any weight to Rios’s testimony
because he was convicted, then paroled, so he could not suffer any
harm from his testimony and had an incentive to help Delgado.
In addition, he lied at trial and before the parole board. The
prosecutor also pointed to the trial testimony in which Veronica
stated she and Delgado went outside her home and watched
10
Delgado’s Jeep be towed away from the scene but did not do
anything in response. He asserted an innocent person would
have told the police not to tow his car.
Delgado’s attorney argued the only physical evidence
showing Delgado was involved in the murder was his fingerprint
in the Jeep. In addition, Elizabeth was an alibi witness and
repeated her testimony at the hearing even though Delgado was
no longer dating her sister. Further, Richard was not able at
trial or the hearing to identify Delgado as the driver of the Jeep
on the night of the shooting. The only identification of the driver
in the evening was by Lopez, who was not close to the Jeep. And
there was post-shooting information that could have influenced
Lopez’s testimony. Therefore, there was insufficient evidence to
prove beyond a reasonable doubt Delgado was the driver of the
Jeep on the night of the murder.
The superior court noted it had considered the trial
testimony, the testimony from the evidentiary hearing, and Rios’s
statement to the parole board. It observed Richard had been
consistent in saying Delgado was the driver of the Jeep in the
afternoon and describing how the shooting occurred that night.
Further, Richard’s testimony at the hearing was not different
from his earlier testimony. The court explained, “It’s clear this
was a planned attack on a rival gang. It was cased before.
Mr. Meraz saw Jaime Delgado drive that car. And Mr.
Meraz . . . you know, could have easily said, ‘I saw Jaime driving
it at night.’ He was very honest.”
The court found Elizabeth’s testimony not credible that
Delgado sat at Veronica’s home for hours even though Veronica
was not there, and he did nothing in response to his Jeep being
towed away. As to Rios, the court explained he was “a murderer”
11
and he lied to the police and his family and friends about his
involvement, and to the parole board. It was only after he was
paroled when he had nothing to lose that he provided exonerating
evidence. The court “discredit[ed] anything Mr. Rios has to say.”
The court observed the expert provided helpful testimony about
people’s memory, but she could not state whether Lopez was
providing an accurate identification. The court added, “I have
not heard anything that casts Mr. Lopez’s testimony and I.D. of
Mr. Delgado in any doubt more so than was already in place at
the time of trial.”
The superior court concluded, “So for those reasons, I find
that relief is not to be granted and I will not grant relief. I find
beyond a reasonable doubt that [Delgado] was a direct
perpetrator, and aider and abettor in a planned attack with
multiple weapons against the Meraz family and Meraz house
resulting in death in that they went out there to commit with the
intent to kill. You don’t case the place, plan it even earlier on,
and then come back with multiple weapons if not to . . . shoot up
a house knowing that people are outside . . . . It wasn’t just to
shoot up a house. It was to shoot people inside and outside the
house so they did so with the intent to kill. So for those reasons
the petition is denied.”
Delgado timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6 (Former
Section 1170.95)
Senate Bill No. 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
12
murder and significantly limited the scope of the felony-murder
rule. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v.
Gentile (2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile); see
People v. Strong (2022) 13 Cal.5th 698, 703, & fn 1.) The
legislation also provided a procedure (now codified in
section 1172.6) for an individual convicted of felony murder or
murder under a natural and probable consequences theory 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 under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, at p. 959; Gentile, at p. 847.)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1172.6,
subdivision (b)(3). Further, upon the filing of a facially sufficient
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1172.6,
subd. (c).) Where a petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, 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. (§ 1172.6, subd. (d)(1).) At that hearing
the court may consider evidence “previously admitted at any
prior hearing or trial that is admissible under current law,”
including witness testimony. (§ 1172.6, subd. (d)(3).) The
13
petitioner and the prosecutor may also offer new or additional
evidence. (Ibid.; see Gentile, supra, 10 Cal.5th at pp. 853-854.)
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. . . . 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.” (§ 1172.6, subd. (d)(3).)
On appeal from an order denying a petition under
section 1172.6, we review the trial court’s factual findings for
substantial evidence. (People v. Richardson (2022)
79 Cal.App.5th 1085, 1090; People v. Clements (2022)
75 Cal.App.5th 276, 298.) We ““‘examine the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.’” [Citation.] Our job on review is different
from the trial judge’s job in deciding the petition. While the trial
judge must review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all
under the reasonable doubt standard, our job is to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond
a reasonable doubt.” (Clements, at p. 298.)
14
B. Delgado Forfeited His Argument the Superior Court Should
Have Reduced His Conviction to Second Degree Murder,
and in Any Event Substantial Evidence Supports the
Superior Court’s Finding Delgado Was a Direct Aider and
Abettor Who Acted with the Intent To Kill
Delgado’s sole contention on appeal is that the superior
court failed to make a finding that Delgado personally harbored
an intent to kill, and therefore he should be resentenced for
second degree murder. We agree with the People that Delgado
forfeited this argument by failing to raise it at the evidentiary
hearing. Further, even had he not forfeited the claim, it lacks
merit.
Delgado’s only argument at the evidentiary hearing was
that he was not the person who was driving the Jeep on the night
of the shooting, nor was he in any way involved in the murder.
The superior court rejected this argument, finding Rios’s
testimony to the contrary at the evidentiary hearing was not
credible, nor was Elizabeth’s alibi testimony believable. Delgado
has abandoned this argument on appeal and instead asserts the
superior court never found Delgado had an intent to kill
necessary for a conviction of first degree murder. Delgado has
therefore forfeited this argument. (People v. Seumanu (2015)
61 Cal.4th 1293, 1318 [failure to raise argument in trial court
results in forfeiture on appeal]; In re S.B. (2004) 32 Cal.4th 1287,
1293 [“a reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court”].)6
6 Delgado argues in his reply brief that he did not forfeit this
argument because a claim of insufficiency of the evidence is never
15
Even if Delgado had not forfeited this argument, he
misconstrues the relief available under section 1172.6.
Section1172.6, subdivision (a), makes clear that it applies to “[a]
person convicted of felony murder or murder under the natural
and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime . . . .” The superior court found the
prosecution proved beyond a reasonable doubt that Delgado was
a direct aider and abettor in a planned attack against the Miraz
family, not that Delgado was guilty of murder under a felony
murder theory or the natural and probable consequences
doctrine. Delgado does not argue otherwise, instead focusing on
the degree of the offense. However, section 1172.6,
subdivision (a), does not authorize the reduction of a conviction
for first degree murder to one for second degree murder where
the petitioner could still be convicted of murder under
amendments to section 188 and 189, instead providing that a
petitioner may request “to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts.” And section 1172.6,
subdivision (e), provides “[t]he petitioner’s conviction shall be
redesignated as the target offense or underlying felony for
resentencing purposes if the petitioner is entitled to relief
pursuant to this section, murder or attempted murder was
forfeited, citing People v. Rodriguez (2004) 122 Cal.App.4th 121,
129. However, Delgado’s argument on appeal (other than a
heading on page 8 of his opening brief), is not that substantial
evidence did not support the court’s findings, but that the
superior court “did not articulate a finding Mr. Delgado had an
express intent to kill . . . .”
16
charged generically, and the target offense was not charged.”
Here there is no target offense or underlying felony at issue.
Section 1172.6, subdivision (a)(3), underscores that the
relief Delgado requests is not available for a section 1172.6
petition by specifying that a petitioner is only eligible for relief if,
among other conditions, “[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to
Section 188 or 189 made effective January 1, 2019.” Delgado
does not contend he could not be convicted of murder under
current sections 188 and 189, instead limiting his argument to
the degree of the offense. (See Gentile, supra, 10 Cal.5th at
p. 848 [“Senate Bill 1437 does not eliminate direct aiding and
abetting liability for murder because a direct aider and abettor to
murder must possess malice aforethought”].) Even if, as argued
by Delgado in his reply brief, a reduction of Delgado’s murder
sentence from first degree to second degree murder were a “just
result” (which the evidence does not support), that does not mean
the statute provides for this type of relief. It does not.7
Further, contrary to Delgado’s contention, the superior
court found Delgado was an aider and abettor in a planned attack
who acted with the intent to kill (first degree murder),8
7 To the extent Delgado contends he was wrongfully
convicted of first degree murder, this argument would be more
properly raised, if at all, in a petition for writ of habeas corpus.
8 “[U]nder direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another if the
accomplice aids the commission of that offense with ‘knowledge of
the direct perpetrator’s unlawful intent and [with] an intent to
assist in achieving those unlawful ends.’” (Gentile, supra,
10 Cal.5th at p. 843.) An “‘aider and abettor’s mental state must
17
explaining Delgado was an “aider and abettor in a planned attack
with multiple weapons against the Meraz family and Meraz
house resulting in death in that they went out there . . . with the
intent to kill.” The court elaborated that Delgado and others
“case[d] the place,” planned the attack earlier, and then returned
with multiple weapons to “shoot up a house knowing that people
are outside” and “did so with the intent to kill.” Substantial
evidence supports these findings. Richard testified at trial that
on the afternoon of the shooting Delgado drove the Jeep with four
or five passengers by the Meraz home, as one of the passengers
inquired whether this was “‘the house.’” Although Richard
recanted in his 2012 declaration, he confirmed at the evidentiary
be at least that required of the direct perpetrator,’ and when the
crime is murder, the ‘aider and abettor must know and share the
murderous intent of the actual perpetrator.’” (People v. Maciel
(2013) 57 Cal.4th 482, 518.) First or second degree murder
requires proof of malice aforethought, which can be express
(intent to kill) or implied (“proof that the actual perpetrator
“‘knows that his conduct endangers the life of another
and . . . acts with conscious disregard for life’”). (Gentile, at
p. 844.) “Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow
creature.” (§ 188, subd. (a)(1.) “For implied malice, the intent
requirement is satisfied by proof that the actual perpetrator
‘“knows that his conduct endangers the life of another
and . . . acts with conscious disregard for life.”’ [Citation.]
Therefore, 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, at
p. 850.)
18
hearing that the Jeep was Delgado’s and the driver on the night
of the shooting “resembled” Delgado. And Richard admitted he
had testified previously at trial Delgado was driving the Jeep on
the afternoon of the shooting. Further, at trial Lopez identified
Delgado as the driver of the Jeep that night, which again drove
past the Meraz home with a group of men. The Jeep turned into
an alley about three houses past the Meraz home, stopped, and
two men exited the vehicle and walked toward the Meraz house.
The two men and a third (never identified) shooter in the alley
fired their weapons on the Meraz house, killing Mark. Although
Rios testified at the evidentiary hearing that Delgado was not the
driver of the Jeep that night or in any way involved in the
murder, the superior court did not find Rios’s testimony credible
in light of Rios’s earlier denials that he was involved in the
murder and the fact Rios only admitted his culpability and
sought to exonerate Delgado after Rios was paroled and no longer
faced additional consequences from the murder. We defer to the
superior court’s credibility findings. (People v. Brown (2014)
59 Cal.4th 86, 106; People v. Maury (2003) 30 Cal.4th 342, 403.)
DISPOSITION
The postjudgment order denying Delgado’s petition for
resentencing is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
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