People v. Quintero CA2/2 ( 2022 )

Filed 12/21/22 P. v. Quintero 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B312868
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA060104)
v.
FRANK EDDIE QUINTERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Steven A. Brody, 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, Assistant
Attorney General, Amanda V. Lopez and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Frank Eddie Quintero (defendant)
appeals from the order denying his petition for vacatur of his
murder conviction and resentencing, pursuant to Penal Code
former section 1170.95, now section 1172.6.1 The order followed
an evidentiary hearing pursuant to section 1172.6, subdivision (d)
and found the prosecution had met its burden to show beyond a
reasonable doubt that defendant was not entitled to resentencing.
Defendant contends that we review the issue de novo or that the
order should be reversed on the ground that it is not supported by
substantial evidence. We find no merit to either contention and
thus affirm the order.
BACKGROUND
In 2003 defendant and three codefendants, Vincent
Francisco Lopez, Raymond Salvador Ramirez, and Juan Lucas
Soto (collectively, defendants), were convicted of first degree
murder committed during the commission of a robbery, as well as
two counts of second degree robbery, and one count each of
assault with a deadly weapon and conspiracy to commit robbery.
The jury found true the robbery-murder special circumstance
alleged under section 190.2, subdivision (a)(17). The jury
necessarily found that defendant had acted as a major
participant with reckless indifference to human life. (§ 190.2,
subd. (d).) Defendant was sentenced to life in prison without the
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no significant change in text.
(Stats. 2022, ch. 58, § 10.) We will refer to the section by its new
numbering only.
All further statutory references are to the Penal Code,
unless otherwise indicated.
2
possibility of parole, and the sentences imposed as to the
remaining counts were stayed. This court affirmed the judgment
on direct appeal. (See People v. Lopez (Oct. 6, 2004, B170919)
[nonpub. opn.].)
Relevant trial evidence
August 20, 2002, before the robbery
Bobby Bionghi, who had lived in the City of La Puente for
over two years, was aware of the gangs in his neighborhood,
including the gang he belonged to, the Barrio Puente gang. He
also knew Soto, Lopez, and defendant as members of the
Cadbrook gang and Ramirez as a member of the Dial Street gang,
all cliques of La Puente gang that got along with one another.
On August 20, 2002, the defendants unexpectedly visited
Bionghi. They arrived in a car belonging to Lorraine Calvillo,
whom he had met once or twice. The car pulled up next to
Bionghi in his driveway. Soto exited the car first and approached
Bionghi and Lopez, who was there. Defendant and Ramirez then
got out, while Calvillo remained in the car. While Bionghi and
Soto talked about a robbery that was planned, Soto asked
Bionghi if he would be interested in being the getaway driver.
Bionghi declined as he was on parole and trying to discharge.
Bionghi and Soto were about two to three feet away from the
other three men, and Soto spoke in a “common loud tone of voice.”
Soto then opened the car’s hood, snapped open an air filter, and
pulled out a nickel plated .357 six-shot revolver. Bionghi had a
clear view of two other weapons, both black and smaller than the
revolver, in the space. One looked like a .32- or .25-caliber
semiautomatic, and the other appeared to be a .380-caliber
semiautomatic.
3
After Soto had taken out the gun and they finished talking,
but were still standing in the same place, Lopez then spoke
briefly with Bionghi about a store in El Monte on a busy street
corner and mentioned “the tax income quote [sic] fund raising
type of business” around the corner from Bionghi’s residence.
Lopez said there was a fundraising box that would be easy to get
to, making it a quick job since they knew where to find the
money. Soto then returned the revolver to the air filter
compartment, closed the hood of the car and they left. About an
hour later, Bionghi heard sirens and a helicopter.
Calvillo testified about the events before the meeting with
Bionghi and those leading up to the robbery defendants
committed. With Soto driving, she and Soto went to defendant’s
home in La Puente. There, Soto spoke with defendant in the
front yard while Calvillo remained in the car, unable to hear
them. Ramirez then arrived, and he, Soto and defendant got into
Calvillo’s car. Soto drove to Bionghi’s house where they picked
up Lopez. When they left Bionghi, Soto drove a short distance
and stopped. Calvillo did not know where they were going, and
she did not ask him.
Regarding their conversation during this short drive,
Calvillo “just remember[s] them saying something about some
liquor store and them saying—I’m not sure if it was even a store.
I don’t remember. I don’t remember what. But I just remember
them saying something and [defendant] was saying, no, that he
didn’t want to go, and [she asked], [‘]Okay, what are you guys
talking about?[’] And they were like, [‘]No, don’t worry about it.[’]
And then when he stopped somewhere and asked him, what,
what was he doing, and he said he was going to just check
something out.” Calvillo explained that Soto said something
4
about knowing “that tax place” with a “clear box of money” and
that “they were just going to go inside just to check it out and
they would be right out.”
Soto then parked in a residential area, the defendants all
got out and Calvillo remained in the front passenger seat,
worried about what Soto had said about a box of money. Calvillo
thought of leaving, and about five minutes after they had gone,
she turned the car around and started to drive away.
The robbery, murder and assault
Camilo Castro testified regarding the robbery that took
place on August 20, 2002, in the bookkeeping and income tax
business he operated with his sister Carmen Castro.2 In addition
to his tax service, Camilo did charity work, and there was a large
box in the office that clients used to donate money. The collection
box was in the front of the lobby near the front door. That day,
Camilo was in his office, at the rear of the building, with Maria
Lagos and her teenage brother Luis. Camilo’s sister Carmen was
in her office, in the front of the building immediately to the right
after entry through the front door. The donation box was in the
lobby, next to the door to Carmen’s office.
Camilo heard two or more gunshots in quick succession
coming from the front of the business about 3:30 p.m. He did not
hear his sister’s voice. Almost immediately after the gunshots, a
man holding a gun appeared at Camilo’s office door and ordered
him, Maria and Luis to get under the desk. The gunman then
tried to break the phone on Camilo’s desk and asked for cell
phones. Camilo pointed to his desk, and when Maria said hers
2 After first mention whenever two people named in this
opinion share a last name, we will use their first names to avoid
confusion. No disrespect is intended.
5
was in her purse, he took her keys, phone and wallet. The
gunman then ordered them to stay where they were and left the
office. While the gunman was there, Camilo heard a commotion
from the front of the lobby. He heard banging noises, which he
later learned was the sound of a fax machine being dropped on
top of the donation box. He heard no voices.
Not long after the noise stopped, Camilo called out and
receiving no reply, he went to check on Carmen. The robbers
were gone, and he found Carmen dead at her desk. Camilo went
out and saw his neighbor Charles Visitor on the phone with the
police.
Maria testified she was in the back office when she heard
the front door open, a slam, and a noise like a surprised sort of
scream from Carmen. Maria moved her head to see the door and
saw three men. One was walking toward the back office with a
gun. She could not tell where the two men behind him went.
Luis testified that he was in the back office with Camilo
and his sister Maria when he heard three gunshots followed by a
slight scream and another gunshot. Luis was also able to see a
man in the front of the business holding a chrome-colored
handgun pointed toward Carmen’s office.
Visitor ran the business adjacent to Camilo, whom he had
known for 19 years. He testified that at 3:30 p.m. on August 20,
2002, he was working and heard four loud bangs in rapid
succession that sounded like gunshots. He went out his front
door to look around. Everything looked normal, so he walked
back toward his office past Camilo’s lobby door. As he passed, he
heard a sound like furniture falling or being tossed around.
Thinking Camilo was moving something and needed help, he
opened the front door. As he entered the lobby, he saw a man he
6
later identified as defendant, standing near Carmen’s office to the
right about four feet into the lobby. Their eyes met. Visitor then
saw two other men squatting on the floor picking up scattered
money. Fearing a robbery was in progress, Visitor backed up to
leave, but was grabbed by the wrist by defendant, who tried to
pull him back in. Visitor kept pulling away, they struggled, and
Visitor was able to pull defendant outside the building. There,
defendant pinned Visitor against the window, saying, “Get back
inside, get back inside.” Visitor replied, “No, no.” As they
continued to struggle defendant tried to get something out of his
unzipped sweat jacket. Visitor could not be certain, but he
thought the object had a square handle and was a firearm,
specifically a “millimeter type weapon,” not a revolver. When
defendant got the object in his hand, he struck Visitor in the left
shoulder, grazing his cheek.
Defendant then ran away and a second man, whom Visitor
identified as Soto, came out of the building. Soto hit Visitor’s
head with something after Visitor defensively leaned forward.
Soto then ran in the same direction as had defendant. A third
man then came out of the building and ran past Visitor in the
same direction. Visitor was unable to identify the third man.
Visitor ran to a vehicle parked nearby and asked its occupant to
call the police.
Postrobbery
As Calvillo had turned the car around and was starting to
drive away, defendants came running and jumped into the car.
Calvillo testified that as she drove to her house, the defendants
all talked about what they had just done, and they all had money
in their pockets. Soto said he had shot a woman because she
screamed and yelled for her brother, after Soto had told her,
7
“Shut up, shut up.” Calvillo testified that “they” were asking
Soto, “Why did you shoot her?” He replied, “I hit her and she still
wouldn’t shut up.” While she drove, Calvillo saw that Soto had a
long silver gun and Lopez had a black gun. They all said there
would be no fingerprints because they wore latex gloves, which
they threw out the car window onto the freeway. Lopez also had
a purse, which he said he took from a woman, including her
license and credit cards, which he tossed out of the car as well.
Petition for resentencing
Effective January 1, 2019, the Legislature amended the
laws pertaining to felony murder and murder under the natural
and probable consequences doctrine, “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The
Legislature also added section 1172.6, which provides a
procedure for persons convicted of murder to seek retroactive
relief if they could not be convicted under sections 188 and 189 as
amended effective January 1, 2019. (People v. Lewis (2021) 11
Cal.5th 952, 957.) In January 2019 defendant filed a petition to
vacate his murder conviction and for resentencing under the
statute.
As relevant here defendant’s petition set forth the three
conditions to eligibility for resentencing: (1) he was charged with
murder under a theory of felony murder; (2) he was convicted of
murder; and (3) he could not presently be convicted of murder
because of changes to section 189, effective January 1, 2019. (See
§ 1172.6, subd. (a).) The trial court summarily denied the
petition, and defendant appealed. We found that defendant had
8
satisfied the initial prima facie showing required for relief,
reversed the order, and remanded the matter to the trial court for
further proceedings. (See People v. Quintero (May 20, 2020,
B299193) [nonpub. opn.].)
On remand, the trial court entertained briefing from both
sides and held an evidentiary hearing pursuant to section 1172.6,
subdivision (d) for the prosecutor to prove beyond a reasonable
doubt that defendant remained guilty of felony murder under
section 189, as amended effective January 1, 2019. (See § 1172.6,
subd. (d).) The court reviewed the information, the abstract of
judgment, the preliminary hearing and trial transcripts, jury
instructions, and the Court of Appeal decisions. After hearing
the argument of counsel, the trial court analyzed the evidence
using guidelines set forth in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
and found beyond a reasonable doubt that defendant was a major
participant and acted with reckless disregard for human life in
the robbery during which the murder was committed.
Concluding that defendant thus remained guilty of murder under
the amended statues, the court denied the petition.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Banks and Clark
We do not disagree with defendant’s contention that a
jury’s true finding of the special circumstance here (§ 190.2, subd.
(a)(17)) does not preclude relief under section 1172.6 as a matter
of law. (See People v. Strong (2022) 13 Cal.5th 698, 710, 716-717
(Strong).) Here, the trial court did not base its decision on the
9
jury’s special circumstance finding, nor does defendant claim that
it did.
Prior to 2019, at the time of defendant’s trial, when an
accomplice killed another during an inherently dangerous felony
such as robbery, an aider and abettor of the robbery could be
convicted of murder without a showing of intent to kill or implied
malice. (Strong, supra, 13 Cal.5th at pp. 704, 707.) Effective
2019, the Legislature amended section 189, subdivision (e) to
limit felony murder liability to actual killers, aiders and abettors
with the intent to kill, or major participants in the underlying
felony who acted with reckless indifference to human life as
described in section 190.2, the statute defining the felony-murder
special circumstance. (Strong, at pp. 707-708.)
In Strong, the California Supreme Court held that its
decisions in Banks “substantially clarified the law surrounding
major participant findings,” and that Clark “then substantially
clarified the relevant considerations for determining whether a
defendant has acted with reckless indifference to human life.”
(Strong, supra, 13 Cal.5th at p. 721.) Thus, the court concluded
that “[s]ection 1172.6 offers resentencing for petitioners who have
not been determined beyond a reasonable doubt to have the
degree of culpability now required for a murder . . .”; and a jury’s
true finding that a defendant was a major participant in an
underlying dangerous felony who acted with reckless indifference
to human life, if made prior to Banks and Clark, will not compel a
finding that the required degree of guilt has been determined
beyond a reasonable doubt. (Strong, supra, at pp. 720-721.)
The reckless indifference requirement was first articulated
in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida
10
(1982) 458 U.S. 782 in relation to the imposition of the death
penalty.
In Banks and Clark, when the California Supreme Court
clarified the definitions of major participant and reckless
indifference to human life, the court suggested relevant
considerations for the trier of fact in making that determination.
“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 circumstances (In re Scoggins
(2020) 9 Cal.5th 667, 677 (Scoggins)).
The factors used to determine whether the defendant was a
major participant include the role played by the defendant in
planning the underlying crime; the role defendant had in
supplying or using a lethal weapon; the awareness of the
defendant of the particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants; the defendant’s presence at the scene of the killing;
and the defendant’s action after lethal force was used. (Clark,
supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th at p. 803;
see Scoggins, supra, 9 Cal.5th at p. 677.)
With regard to reckless indifference to human life Banks
explained it as engaging in a felony known to carry a grave risk
of death while “‘“subjectively aware that his or her participation
in the felony involved a grave risk of death.”’” (Banks, supra, 61
Cal.4th at pp. 801, 807.) Thus, “felony murderers . . . , who
simply had awareness their confederates were armed and armed
robberies carried a risk of death, lack the requisite reckless
indifference to human life” (id. at p. 809) because “only knowingly
creating a ‘grave risk of death’ satisfies the constitutional
minimum” (id. at p. 808) articulated by the United States
11
Supreme Court in Tison v. Arizona, supra, 481 U.S. at page 158
and Enmund v. Florida, supra, 458 U.S. at page 798.
In Scoggins, our Supreme Court gleaned factors from
Banks and Clark to guide the determination whether the
defendant was subjectively aware that his participation involved
a grave risk of death.
II. Standard of review
Defendant contends that our review should be de novo. We
disagree and review the trial court’s determination at the
evidentiary hearing pursuant to section 1172.6, subdivision (d)
for substantial evidence. (People v. Garrison (2021) 73
Cal.App.5th 735, 747; see People v. Ramirez (2021) 71
Cal.App.5th 970, 985.)
Defendant argues that the review should be de novo
because the facts presented at the evidentiary hearing were
undisputed and the trial court made no findings of fact. To
support these contentions, defendant quotes the court: “There
doesn’t seem to be any disputed factual questions as to matters
outside the trial record”; and “I’m not resolving any disputed
fact.” Defendant seemingly concludes that this appeal involves
the application of law to undisputed facts, and thus a de novo
standard of review should be applied to determine whether the
prosecution met its burden to prove that defendant would still be
guilty of murder under the amended statutes. However,
defendant’s quotes are taken from the court’s ruling on his
petition for habeas corpus, which was heard the same day, and in
which the defense sought to have the robbery-murder special
circumstance stricken on the ground that it was not supported by
12
substantial evidence.3 Defendant has raised no issue here
pertaining to his petition for writ of habeas corpus. The trial
court’s comments are thus irrelevant.
We also disagree with defendant’s assertion that the trial
court did not engage in factfinding. As defendant was not the
actual killer and no evidence suggested that he shared Soto’s
intent to kill Carmen, the mental state required to convict him of
felony murder under section 189 as amended was “reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e)(3).) “‘Evidence of a defendant’s
state of mind is almost inevitably circumstantial . . . .’” (People v.
Nguyen (2015) 61 Cal.4th 1015, 1055.) State of mind is thus “a
question of fact based upon reasonable inferences.” (People v.
Hewlett (1951) 108 Cal.App.2d 358, 377.) Here, by resolving
disputed inferences drawn from the facts, the trial court indeed
engaged in factfinding, to which we apply a substantial evidence
standard of review.
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.”
3 The court had already ruled with regard to the section
1172.6 petition that the record of conviction showed beyond a
reasonable doubt that defendant had been a major participant in
the robbery and acted with reckless disregard for human life.
13
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the [trier of fact] might have
drawn from the circumstantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 396.) “[B]ecause ‘we must begin with the
presumption that the evidence . . . was sufficient,’ it is defendant,
as the appellant, who ‘bears the burden of convincing us
otherwise.’” (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1430.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conclusion of the trier of fact].’” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
III. Finding of major participant and supporting
evidence
The trial court was guided by CALJIC No. 8.21, which
defines and explains the required elements of first degree felony
murder under current section 189 and includes factors suggested
by Banks and Clark for determining the major participant and
reckless disregard requirements under that statute.
Defendant argues that a review of the factors show that
although his participation in the robbery was greater than the
participation of the getaway driver in Banks, it was not
significantly greater.4 In addition, the evidence did not show that
the driver had a role in planning the robbery, or, although he and
4 In Banks, the getaway driver was absent from the scene,
sitting and waiting in a car three blocks from the murder scene,
with no evidence that he saw or heard the shooting or that he
could have, that he had any immediate role in instigating the
murder, or that he could have prevented it. (Banks, supra, 61
Cal.4th at p. 805.)
14
his cohorts were gang members, that they had ever committed
any other violent crime. (Banks, supra, 61 Cal.4th at p. 805.)
“[He] was, in short, no more than a getaway driver.” (Id. at
p. 806.)
Defendant was not a mere getaway driver and cannot be
compared to one, following review of the relevant findings and
evidence relating to whether defendant was a major participant
in the robbery. (See Scoggins, supra, 9 Cal.5th at p. 677; Clark,
supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th at p. 803.)
A. Planning
The court found that circumstantial evidence of defendant’s
part in the planning of the robbery consisted in part of his
disagreement with targeting a liquor store, but his agreement to
go to the tax office, and the use of latex gloves by all defendants.
In addition, all three robbers immediately spread out to a specific
area, indicating preplanned roles. The court also noted that after
shots were fired, defendant’s focus was on the cash box,
suggesting this was his preplanned job.
As the People point out, the record shows additional
circumstantial evidence from which a reasonable inference
supports the idea that defendant had participated in planning
the robbery: his conversation with Soto in defendant’s front yard,
the arrival of Ramirez, and then meeting up with Lopez at
Bionghi’s house, where defendant and his accomplices stood
within hearing distance while Soto showed Bionghi three guns
and attempted to enlist him as the getaway driver.
Defendant has not shown that the court’s inferences were
unreasonable. Instead, he contends that there was no evidence of
his role in planning the robbery because he said to his
codefendants that he wanted no part in the robbery and that he
15
objected to going along. Defendant misinterprets the testimony
and the court’s finding. The trial court’s finding was as follows:
“The defendant disagreed with the robbery of the tax office.
Certainly went along with the—disagreed with the liquor store
and agreed with the tax office.” We construe the court’s first
sentence as a mistake which the court corrected in the second
sentence, as Calvillo testified as follows: “I just remember them
saying something about some liquor store and them saying . . . I
don’t remember what. But I just remember them saying
something and [defendant] was saying, no, that he didn’t want to
go . . . .” Calvillo then asked, ‘Okay, what are you guys talking
about?’ And they were like, ‘No, don’t worry about it . . .” and
then Soto drove to the tax office.
A reasonable interpretation of the testimony and the
court’s finding is that defendant objected to the liquor store but
not to the tax office.5
B. Supplying, using or awareness of lethal
weapons
The court did not find that defendant had a role in
supplying the firearms, but inferred he was aware lethal weapons
would be used from testimony of Maria and Luis that two of the
robbers were seen with guns drawn as they entered the business.
5 Defendant also contends that although he was aware of the
plan there was no evidence that he conceived or helped create the
plan. In arguing this contention defendant cites evidence that
Soto sought out Bionghi as the getaway driver and Lopez
explained the plan to the others on the way to the tax office.
Defendant then infers that Soto and perhaps Lopez were the
masterminds of the crime and concludes that this factor weighs
in his favor. We may not reweigh the evidence. (See People v.
Maxwell (1979) 94 Cal.App.3d 562, 576.)
16
The court also inferred that defendant had a gun or other weapon
in his pocket, as Visitor testified to having felt the outline of a
gun in defendant’s pocket that was heavy, had a square handle,
was not a revolver but a “millimeter type” gun, which was then
used to strike Visitor. We note that Visitor also testified that he
thought defendant took a handgun out of his pocket because he
caught a glimpse of the object as it came toward him, which
appeared to be a weapon. Thus, the court could reasonably infer
that defendant was aware that three weapons were used in the
robbery, the two other robbers entered with guns drawn and
defendant used a third object as a weapon.
Defendant appears to suggest that the more reasonable
inference from Visitor’s testimony is that it was not a gun in
defendant’s pocket because, although Visitor thought it was a
gun, he said he “couldn’t tell exactly what it was.” However, that
“‘the circumstances might also reasonably be reconciled with a
contrary finding does not warrant reversal of the judgment.’” (In
re V.V. (2011) 51 Cal.4th 1020, 1026.) And as we find the court’s
inferences to be logical and supported by circumstantial evidence,
we accept them, as we must. (See People v. Maury, supra, 30
Cal.4th at p. 396.)
C. Presence at the scene and action after lethal
force
The trial court found defendant was at the scene either in
the same room as the shooter or in the next room; noted that
Maria had seen defendant and Soto standing in the same room;
as well as evidence of the robbers’ immediate spreading out to a
different area, indicating a planned action. The court found that
after lethal force was used, defendant continued to collect the
money, and attacked Visitor. From this the court inferred that
17
defendant intended to prevent Visitor from escaping or calling
911. The court added that “defendant left with the money, no
help, no report, no nothing.”
Defendant concedes it is reasonable to infer that gunshots
were heard. He also concedes that he was busy with the charity
box. Thus, raising a reasonable inference that defendant was too
focused on the money to render aid as the trial court found.
When viewing the evidence in a light most favorable to his
position and drawing contrary inferences, defendant argues that
the evidence shows that he was not present in Carmen’s office
and not in a position to prevent the unforeseen shooting, as he
was occupied with breaking into the donation box. Defendant
assumes that Carmen’s office and the charity box were a certain
distance from the front door, that defendant was already busy
with the box when Soto shot Carmen, and that he could not see or
have prevented any of the violence perpetrated upon her,
whether by beating or shooting. He has not, however, cited to the
record for evidence of his assumptions.
Substantial evidence does support a reasonable inference
that defendant was in Carmen’s office when Soto beat and shot
her or was at least very close to Soto at one or both of those
times. Camilo testified that Carmen’s office was located toward
the front of the building, to the right and just four feet in from
the front door entry, and the charity box was next to the door of
her office. Maria testified that she looked into the lobby as soon
as she heard the front door slam and a scream from Carmen, saw
all three men who had entered, with Lopez in front coming
toward her and the other two standing behind him. Luis testified
that he was focused on counting tickets, looked up after he heard
gunshots, saw a man in the front of the business holding a
18
chrome-colored handgun pointed toward Carmen’s office, and saw
Lopez entering the back office pointing a gun. Soto told the
others that he hit Carmen first and then shot her when she
would not “shut up,” and he had a long silver-colored gun. Thus,
in the time it took for Lopez to walk from the lobby just after the
robbers entered the back office door, Soto had beaten Carmen,
had fired several shots in her direction, and he either shot her
from the lobby or he had quickly backed out of her office after
firing. If defendant was busy with the cash box, he was most
likely very close to Soto much of this time.6
It is defendant’s burden to support his points with an
adequate record and to affirmatively demonstrate error. (See
People v. Whalen (2013) 56 Cal.4th 1, 84, disapproved on another
point in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)
Error is never presumed from a silent record. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.)
Defendant concludes that “on balance” it cannot be said
that substantial evidence supports a finding beyond a reasonable
6 The distance between the lobby, Carmen’s office door, and
the charity box would have been clear to the trial court as
People’s exhibit 8 included a floor plan of the business and a
photograph of the charity box in its normal position in the lobby.
Using the floor plan, Camilo explained where the entrance door,
lobby, cash box and the back office were in relation to Carmen’s
office. The trial exhibits, which were not in the appellate record
in appeal No. B170919, were not mentioned in the footnote of
defendant’s opening brief requesting judicial notice of the
reporter’s and clerk’s transcripts in that appeal.
In addition, defendant’s footnote request for judicial notice
fails to comply with California Rules of Court, rules 8.224 and
8.320.
19
doubt that defendant was a major participant under a Banks
analysis. We disagree and again note that the weight to be given
to evidence is the province of the trier of fact (People v. Maxwell,
supra, 94 Cal.App.3d at p. 576); the trial court was not required
to find all suggested factors (see Banks, supra, 61 Cal.4th at
p. 803). Furthermore, our task is to determine whether
substantial evidence supports the trier of fact’s finding, not
whether substantial evidence supports a contrary finding, as
defendant has argued here. (See People v. Saterfield (1967) 65
Cal.2d 752, 759.) We conclude that it does.
IV. Reckless indifference
“Reckless indifference to human life has a subjective and
an objective element. (Clark, supra, 63 Cal.4th at p. 617.) As to
the subjective element, ‘[t]he defendant must be aware of and
willingly involved in the violent manner in which the particular
offense is committed,’ and he or she must consciously disregard
‘the significant risk of death his or her actions create.’ (Banks,
supra, 61 Cal.4th at p. 801; see Clark, at p. 617.) As to the
objective element, ‘“[t]he risk [of death] must be of such a nature
and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.”’
(Clark, at p. 617, [citation].) ‘Awareness of no more than the
foreseeable risk of death inherent in any [violent felony] is
insufficient’ to establish reckless indifference to human life; ‘only
knowingly creating a “grave risk of death”’ satisfies the statutory
requirement. (Banks, at p. 808.) Notably, ‘the fact a participant
[or planner of] an armed robbery could anticipate lethal force
might be used’ is not sufficient to establish reckless indifference
20
to human life. (Ibid.; see Clark, at p. 623.)” (Scoggins, supra, 9
Cal.5th at p. 677.)
The trial court’s findings and evidence overlap with most of
the factors articulated by the California Supreme Court following
Banks and Clark as demonstrating subjective awareness that
participation in the underlying felony involved a grave risk of
death. (See Scoggins, supra, 9 Cal.5th at p. 677, citing Clark,
supra, 63 Cal.4th at pp. 618-623.) Those findings include:
defendant used a weapon when he hit Visitor; he knew that three
weapons, including at least two firearms would be used by the
three robbers present, increasing the likelihood of lethal force;
three weapons were ultimately used in the robbery; defendant
was physically present at the crime and had the opportunity to
mitigate the risk of violence and aid the victim; defendant was
focused on the money and made no effort to minimize the risks of
violence during the robbery or to render aid to Carmen;
defendant increased the violence by attacking Visitor, striking
him with a hard blunt weapon, and attempting to force Visitor
back into the building where his two armed accomplices
remained, one of whom defendant knew had shot Carmen.
The only two of the factors enumerated in Scoggins that are
not shown by the trial evidence are a lengthy duration of the
interaction between the robbers and their victims and
defendant’s knowledge of his accomplices’ propensity for
violence.7 (See Scoggins, supra, 9 Cal.5th at p. 677.) However,
7 Defendant takes issue with the trial court’s finding that
because the defendants were all gang members and the record
was “replete” with discussions of taking out witnesses,
circumstantial evidence showed a willingness to use force or
violence. We agree with defendant that gang membership alone
21
defendant certainly knew his own propensity for violence, and he
displayed a callous disregard for human life when, standing just
outside Carmen’s office, he attempted to pull Visitor back inside,
knowing his cohorts were inside and armed, and that one had
shot Carmen. Defendant also displayed a disregard for human
life with his attack on Visitor with a hard blunt object and then
leaving the scene “with the money, no help, no report, no
nothing,” as described by the trial court.
Considering the totality of the circumstances, we conclude
that substantial evidence supports the trial court’s finding that
defendant was a major participant in the robbery and acted with
reckless disregard for human life, such that a rational trier of fact
could find beyond a reasonable doubt that defendant remains
guilty of felony murder under section 189 as amended effective
January 1, 2019.
does not show a propensity for violence, as there must also be
evidence that defendant or his accomplices had previously
engaged in violent crime. (See Banks, supra, 61 Cal.4th at
pp. 810-811.) It did not do so here.
Defendant also asserts that any discussion of taking out a
witness took place after the crime and thus could not show
propensity prior to the crime. The court was apparently referring
to recorded discussions between defendant and Soto while
sharing a jail cell after their arrest. In essence, Soto asked
defendant to tell his cousin to contact “Gooney” because a witness
needed “to be tooken care of,” and Soto knew “Gooney could take
somebody out . . . .” Defendant gave mostly noncommittal
responses such as “Yeah.” We agree that the conversation did not
show defendant’s propensity for violence, although it may have
suggested Soto’s prior experience with Gooney in that regard.
22
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
23