People v. Zepeda-Onofre CA1/2 ( 2022 )

Filed 8/12/22 P. v. Zepeda-Onofre CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162223
v.
AUGUSTIN ZEPEDA-ONOFRE, (Sonoma County Super. Ct.
No. SCR6095252)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A162241
v.
(Sonoma County Super Ct.
SIDONIO CRUZ-SANTOS,
No. SCR6095251)
Defendant and Appellant.
On October 15, 2011, Gabino Santiago Lopez 1 and his roommate,
Conrado Valentin Cruz, joined Ramon Lopez Velasco, Augustin Zepeda-
Onofre, and Sidonio Cruz-Santos in a marijuana garden outside of
Healdsburg, California to celebrate the end of the work week by eating,
drinking beer, and snorting cocaine. Augustin and Sidonio were armed with
We follow the parties’ convention of referring to the six people who
1
were present in the marijuana garden on the day of the murder by their first
names. We mean no disrespect by this informality.
1
handguns. Several hours later, Gabino was dead from gunshot wounds
inflicted by one of the men present at the celebration, using one or more
firearms that were never recovered. Sidonio and Augustin (collectively,
defendants) were charged with Gabino’s murder.
Defendants’ trial took place in 2013. The trial court instructed the jury
on three separate theories of murder: (1) that defendants were direct
perpetrators of first degree or second degree murder; (2) that defendants
directly aided and abetted the murder; and (3) that the murder was a natural
and probable consequence of the defendants’ illegal cultivation of marijuana,
assault with a firearm, or brandishing a firearm. The jury convicted
defendants of second degree murder, cultivation of marijuana, and three
counts of assault with a firearm. The jury found that the defendants were
armed at the time of the murder, but rejected special allegations that the
defendants intentionally discharged their firearms, or discharged their
firearms in a manner causing great bodily injury or death (§§ 12022.53,
subd. (c),(d)), suggesting that the jury did not believe that either defendant
was the actual perpetrator. This court affirmed the defendants’ convictions.
(People v. Cruz-Santos and Zepeda-Onofre (Nov. 18, 2015, A139860) [nonpub.
opn.].)
In 2019, defendants filed petitions for resentencing under former Penal
Code2 section 1170.95.3 Section 1170.95 “was enacted as part of Senate Bill
2 All undesignated statutory references are to the Penal Code.
3 While the appeal was pending, the Legislature amended section
1170.95 twice. Effective January 1, 2022, section 1170.95 was amended to
clarify the procedures the Legislature intended trial courts to follow when
considering petitions for resentencing. (Sen. Bill No. 775 (2020–2021 Reg.
Sess.).) The amended provisions apply retroactively to all appeals that were
2
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which altered liability for
murder under the theories of felony murder and natural and probable
consequences. Under section 1170.95, eligible defendants may petition to
have their murder convictions vacated and be resentenced.” (People v. Cooper
(2022) 77 Cal.App.5th 393, 398 (Cooper).) “Senate Bill 1437 ‘amend[ed] the
felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, 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).)” (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
In their petitions for resentencing, defendants alleged that they had
been convicted of second degree murder under the natural and probable
consequences doctrine and were entitled to have their convictions vacated
because they were “not the actual killer[s].” The trial court found that the
petitions presented a prima facie case for relief.4 It appointed counsel to
not final as of January 1, 2022. (People v. Porter (2022) 73 Cal.App.5th 644,
652.)
Section 1170.95 was renumbered section 1172.6 effective June 30,
2022. (Stats. 2022, ch. 58, § 10.) Section 1172.6 authorizes defendants who
have been convicted of murder, attempted murder or manslaughter under the
felony murder or natural and probable consequences doctrine to petition for
resentencing. Because defendants’ petitions for resentencing were filed in
2019 under former section 1170.95, and because the statutory amendments
do not affect the outcome of this appeal, we refer to section 1170.95 in this
opinion despite the fact that the statute has been renumbered.
4 The jury likely convicted defendants of murder based on the natural
and probable consequences doctrine. (People v. Cruz Santos and Zepeda
Onofre, supra, A139860.) In her closing argument, the prosecutor stated that
if the jury was not convinced that one or both of the defendants had fired the
3
represent the defendants, issued an order to show cause to the People, and
set an evidentiary hearing.
At the hearing, the parties did not submit any “new or additional
evidence” as authorized by section 1170.95, subdivision (d)(3). Instead, in
reliance on the trial transcripts5 and our appellate opinion, the prosecutor
argued that there were two legal theories upon which the convictions could be
sustained: first, that one or both defendants were direct perpetrators of
Gabino’s murder; or second, that defendants directly aided and abetted the
murder. The court rejected the prosecutor’s first theory, finding that the
evidence did not support a finding that either of the defendants shot Gabino.
The court found that the prosecutor had proven beyond a reasonable doubt
that defendants directly aided and abetted the murder, and on this basis (but
without further explanation) denied the petitions. These consolidated
appeals followed.
The decision that defendants were direct aiders and abettors required
the trial court to find that a third party perpetrator, who harbored express or
implied malice, lethally shot Gabino; and that each defendant, while aware of
and sharing the perpetrator’s intent, or while acting in conscious disregard
for human life, aided the perpetrator in the commission of the murder.
(Gentile, supra, 10 Cal.5th at p. 843.) Because our exhaustive review of the
shots that killed Gabino, they could nevertheless find defendants guilty of
second degree murder on the theory that the shooting was a natural and
probable consequence of defendants conspiring to illegally cultivate
marijuana. The jury convicted defendants of second degree murder despite
finding that neither had discharged his weapon in connection with the
murder.
5 We granted Sidonio’s unopposed request to take judicial notice of the
trial court record in the initial appeal (A139860). Our factual summary is
drawn from the trial court record in case No. A139860.
4
trial court record has failed to reveal evidence that supports these mandatory
elements of direct aider and abettor liability, we reverse.
Factual and Procedural Background
I. 2013 Jury Trial
On October 11, 2011, Ramon asked Conrado to help him find extra
work. Conrado introduced Ramon to Sidonio, who hired Ramon to work as a
laborer in a marijuana garden located on Chemise Road outside of
Healdsburg. Ramon worked alongside Augustin for four days, cultivating
marijuana plants, building sheds, and transporting dried marijuana from
another marijuana garden to the Chemise Road site.
Sidonio and Augustin “were armed with both handguns and long guns”
at the work site. At Sidonio’s direction, Augustin obtained a handgun for
Ramon and showed him how to load it. Sidonio told Ramon “to carry that
gun with me in case of an emergency. If something were to happen during
the nighttime because . . . there are wild animals and there are people whose
objective is to steal the harvest.”
On Saturday, October 15, 2011, Sidonio, Augustin, and Ramon worked
at the Chemise Road site building a shed and trimming marijuana plants. As
usual, Sidonio and Augustin were armed.
Ramon’s brother-in-law, Gabino,6 Conrado, and a man named Angel
arrived later that afternoon “to celebrate Ramon’s last day working on
Chemise Road.” Everyone but Ramon started drinking beer. Later that
afternoon, Ramon drove Sidonio’s gray Jetta to Healdsburg to drop off Angel
and pick up food. When he returned, Ramon saw Sidonio, Augustin, and
Conrado snorting cocaine. Around 7:00 p.m., Sidonio became irritated when
6Conrado and his wife shared a home with Gabino and his wife.
Gabino was married to Ramon’s sister.
5
he heard people riding an all-terrain vehicle nearby; he ordered Augustin “to
shoot the gun” “to frighten those assholes . . . so that they would leave” “and
stay way [sic] from the place.” Augustin obeyed, firing a single shot into the
air.
At some point, Conrado and Gabino began arguing. Conrado accused
Gabino of telling his wife that he used cocaine. Ramon intervened; the
argument ceased after a couple of minutes, then resumed. Conrado
continued to complain about Gabino informing on him, and the two men
eventually began to grab at each other’s clothing. Things became so heated
that Sidonio drew his gun and told Conrado to leave: “If you have problems
in your house then go fix them in your house. But don’t come here and give
me problems. Because the devil is touching me and I can be capable of
anything.”
Ramon urged Conrado to leave. When Conrado started to walk the
wrong way, Sidonio blocked him with his gun in his hand, “telling him that
was the wrong way to take.” Ramon—who described himself as “the only
person . . . there in his five senses”—led Conrado and Gabino out of the
marijuana garden and towards the driveway off the property. Conrado and
Gabino were so “drunk they [had] a difficult time walking properly.” Sidonio
and Augustin, who were “not totally” intoxicated, followed.
When Ramon, Conrado, and Gabino reached the driveway, Conrado
told Ramon “that he was very drunk . . . that he wasn’t able to drive. He gave
me his keys in order to go get his truck from where it had been . . . parked.”
As Ramon began walking towards the shop to retrieve Conrado’s black pick -
up truck, he heard Sidonio and Augustin “walking towards the driveway
where we were standing.” About two minutes later, Ramon heard three or
four gunshots; he “got scared,” but continued to walk towards the shop.
6
Ramon explained what happened next: “When I came back with the
truck . . . I was able to see that . . . Sidonio had Conrado on the ground with
the gun to his head.” “I stopped the truck as fast as I could, and I ran
towards where Sidonio was, grabbing Conrado.” “When I was getting closer
to them, I could listen to what he was saying, not to say anything of what
Conrado had seen, because he was capable of finding him or his family and
kill[ing] them.” Ramon pushed Sidonio off Conrado. Sidonio then “put the
gun twice, one in the head and on my chest.” Ramon asked Sidonio “where
Gabino was.” Sidonio replied “Gabino had gone to hell.” When Ramon asked
why, Sidonio answered: “Just because I want to.” Spotting “a lot of blood” on
the driveway, Ramon asked again “where Gabino was,” and Sidonio told
Augustin to “show [him] where Gabino was.”
Augustin appeared with a gun in his hand—“the same gun that they
[sic] were carrying that same day.” “With his right hand he was holding the
gun, and with his left hand he was indicating where he wanted me to walk
to.” After walking a short distance, Augustin told Ramon to “look down.” “It
was Gabino’s body.” “A little time after that Sidonio with weapon in hand
ordered Conrado that he help me get the body out of there.” Sidonio actually
said: “Get that garbage out of there . . . to tear him apart or to bury him, but
he didn’t want to know anything of what had happened. And if I said
something or if I whispered something, that he was going to find me here or
in Mexico and my family to do the same to me.” When Ramon asked again
“why he had done it,” Sidonio repeated: “Just because he wanted it.”
While Sidonio and Augustin “were pointing at me with the gun,”
Ramon and Conrado managed to get Gabino’s body into the bed of Conrado’s
pick-up truck. Conrado refused to get into the truck with Ramon and walked
over to Sidonio and Augustin. “When I realized that [Conrado] didn’t want to
7
get in the truck I ran towards the driver’s seat . . . to get out of there as
fast . . . as I could.” Ramon drove for about an hour, dumped Gabino’s body
by the road, and then notified Healdsburg police.
Ramon initially told officers at the Healdsburg Police Department that
he thought his brother-in-law Gabino had been killed, and that Conrado
might also be dead. Officers immediately went to Conrado’s home, where
they found him unhurt but “very nervous.” Conrado voluntarily went with
the officers to a police station to answer questions.
Ramon led other officers to the Chemise Road property, where he
pointed out the marijuana garden and the bloodstains on the driveway.
About 5:00 a.m., the officers encountered Augustin driving a white pick-up
truck down the driveway. Augustin had blood on his pants leg, and a wet
substance on his boot that was later determined to be blood. Although it was
still dark, and although he was out of sight in the back of a police vehicle,
Ramon was described as “terrified” while he identified Augustin.
At 6:50 a.m., Sidonio’s gray Jetta drove down the driveway and stopped
near the officers. A man Ramon did not recognize got out. Bulmaro Perez
Hernandez testified that he had located Sidonio sleeping in a Jeep Liberty
near the shop at 6:30 a.m. and obtained his permission to drive the Jetta.
Blood splatter marks were visible on the vehicle’s trunk, as well as “smear
marks where it looked like somebody had wiped it up.” Law enforcement
apprehended Sidonio a few minutes later, still asleep in the Jeep Liberty
near the shop. When officers brought Sidonio to the driveway, Ramon was
“trying to . . . duck down and make himself not visible when Sidonio was
around.”
Ramon’s trial testimony differed in several material respects from the
initial statements he gave to law enforcement. For example, Ramon testified
8
at trial that the only people who handled firearms in the marijuana garden
on October 15 were Sidonio and Augustin. He denied hearing Conrado ask
anyone about a gun that night. However, during his initial interview with
Deputy Hanshew on October 16, 2011, Ramon said that Conrado approached
Sidonio about buying a gun “for a problem he was having with pigs on
another property that he worked.” Additionally, Ramon initially told Deputy
Hanshew in October 2011 that when he drove Conrado’s truck back to the
driveway after hearing shots fired, Sidonio and Conrado were arguing about
who was “better” or tougher. It was not until six months later, during a
follow-up interview on February 8, 2012, that Ramon told Hanshew that
Sidonio had Conrado on the ground and was threatening him with a gun.
Finally, Ramon initially told law enforcement that Augustin and another
man had followed him when he left Chemise Road to dispose of Gabino’s
body, and that Augustin had directed him where to dump the body. Ramon
later admitted that he had lied about Augustin following him.
Ramon testified about the plea deal he had negotiated with the People
prior to testifying. In exchange for his promise to “[c]ooperate, help or tell the
truth in this case,” the murder charge was dismissed and Ramon was allowed
to plead guilty to a misdemeanor accessory after the fact to cultivation of
marijuana with credit for time served. Ramon also believed that the Sonoma
County District Attorney’s Office would assist him and his family with
immigration issues pursuant to the plea deal.
The prosecutor presented evidence regarding the crime scene
investigation. Deputies found three bags of dried marijuana and
considerable amounts of dried or drying marijuana on the Chemise Road
property. They found a .243 caliber lever action rifle hidden underneath
leaves, and various types of ammunition in the marijuana garden. A
9
prosecution expert, Detective Brandon Van Camp, testified that the
cultivation on Chemise Road was an illegal, non-medicinal, commercial
operation, designed to evade aerial detection. Van Camp testified that, in his
experience, firearms were commonly associated with illegal marijuana
operations: “Well, definitely of all the outdoor marijuana grows that I have
been in and certainly most of the training that I’ve been to, there are
definitely firearms . . . involved with outdoor marijuana gardens.” There are
“multiple reasons” for the connection: “One is to protect and defend the
garden from intruders. Two is to protect it from wildlife” such as deer and
rats.
Law enforcement found “dry blood in the bed portion of [Conrado’s]
pickup truck, and . . . also saw drag marks which looked like whatever was in
the back of the truck was dragged toward the tailgate end . . . of the pickup
truck.” The blood observed on Sidonio’s Jetta was determined to be Gabino’s.
The blood on Augustin’s jeans and boot was consistent with two contributors,
Augustin and Gabino.
A crime scene investigator found two .22 caliber bullets in the center
console of Conrado’s pick-up truck. Bulmaro testified that he removed four or
five bullets from the center console of Sidonio’s Jetta and put them in his
pocket before being stopped by law enforcement. Law enforcement did not
locate any firearms or ammunition in any of the vehicles associated with the
crime scene: Sidonio’s Jetta, the Jeep Liberty where Sidonio was found
sleeping, or Augustin’s white pick-up truck.
Deputies swabbed the defendants’ hands for gunshot residue (GSR).
No evidence was introduced at trial as to whether the defendants had GSR on
10
their hands.7 The criminalist found 5 GSR particles in a sample taken from
Augustin’s sweatshirt, but concluded that “they could have come from some
other environmental source.” Deputies did not test Conrado’s clothes for
blood or GSR because law enforcement considered Conrado a witness, not a
suspect.
The forensic pathologist testified that Gabino was shot twice—once in
the face and once in the chest—and that either shot would have been fatal.
She could not determine the caliber of the bullets that killed Gabino, but did
not think they came from a rifle. No fingerprints were recovered from the
rifle or ammunition found at the scene.
As we have explained, the jury was instructed that the defendants
could be found guilty of murder if any of the following were proven true
beyond a reasonable doubt: (1) that defendants were direct perpetrators of
first degree or second degree murder, (2) that the defendants directly aided
and abetted second degree murder, or (3) the murder was a natural and
probable consequence of the defendants’ target crimes or defendants’
participation in an uncharged conspiracy to illegally cultivate marijuana.
The jury rejected charges of first degree murder and convicted both
defendants of second degree murder. The jury found that defendants were
armed in connection with the murder (§§ 12022.53, subd. (b) & 12022,
subd. (a)(1)). Defendants were acquitted of intentionally discharging their
firearms (§ 12022.53, subd. (c)) and discharging their firearms in a manner
that caused death or great bodily injury. (§ 12022.53, subd. (d).)
7The swabs used to take GSR samples from the defendants’ hands
were “the old method of collection” and therefore “were not samples that [the
criminalist from the Department of Justice] could currently analyze.”
11
The jury also convicted defendants of cultivation of marijuana while
armed (Health & Saf. Code, § 11358, Pen. Code, § 12022, subd. (a)(1)), and
three counts each of assault with a firearm on victims Ramon, Conrado and
Gabino (§§ 245, subd. (a)(2), 12022.5, subd. (a)(1). In addition, Sidonio was
found guilty of furnishing a firearm to enable the cultivation of marijuana
(§ 12022.4), and dissuading a witness (§ 136.1, subd. (c)) while armed with a
firearm (§ 12022.4).
II. Hearing on Petitions For Resentencing
The prosecutor offered the trial transcripts, the jury instructions and
verdict forms, and this court’s 2015 opinion at the resentencing hearing to
sustain its burden of proving beyond a reasonable doubt “that the
petitioner[s] [are] guilty of murder . . . under California law as amended by
the changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (d)(3).) She argued that “there is no doubt, no reasonable
doubt, that each defendant is guilty either as a direct perpetrator of this
killing or as a direct aider and abettor.” “No one else was armed at the time
of the killing, indeed throughout the hours preceding the killing. The actual
killer, meaning the shooter, is either Sidonio or Augustin or both.”
Counsel for Sidonio argued that the defendants’ murder convictions
must be vacated because “[t]he court does not know what happened in the
immediate moments preceding the murder. The court does not know who
shot. The court does not know who is the actual killer.” Defense counsel
emphasized that the court must find “[m]alice . . . with respect to the act of
killing. There is no evidence whatsoever of express malice as to [Sidonio]
forming express malice in desiring to kill Gabino.” “Implied malice requires a
pact wherein [Sidonio] would know his act was likely to cause death and . . .
showed conscious disregard for life.” Counsel for Augustin joined in these
12
arguments. He characterized the prosecutor’s inferences as “tenuous,” noting
that inferences drawn from circumstantial evidence must be proven beyond a
reasonable doubt.
On March 21, 2021, the trial court8 orally announced its decision to
deny the petitions for resentencing. The decision demonstrates that the court
understood its duty as an independent trier of fact to consider the evidence
presented and determine if the prosecution had proven the defendants’ guilt
beyond a reasonable doubt based on a then-viable theory of murder.
(§ 1170.95, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 297
(Clements).)
“In evaluating the evidence, I am not going to recite all the facts in this
case yet again. It is argued throughout this hearing and the record is crystal
clear as to the facts. The prosecution has argued there are still two viable
theories for murder. Number one, the defendants are both direct aiders and
abettors. And number two, the defendant was an actual killer. I do not
believe the evidence supports beyond a reasonable doubt that the defendants
were the actual killers. To be clear for the record, I do believe there is
substantial evidence, but that’s not the burden I’m using; however, I do
believe the prosecution has met their burden beyond a reasonable doubt both
defendants are direct aiders and abettors and, therefore, the petition is
denied. That’s my ruling.”
8 Section 1170.95, subdivision (b)(1), expresses a preference that the
petition be heard by “the judge that originally sentenced the petitioner.”
However, “[i]f the judge that originally sentenced the petitioner is not
available to resentence the petitioner, the presiding judge shall designate
another judge to rule on the petition.” In this case, the judge who heard
defendants’ petitions for resentencing was not the judge who had presided
over defendants’ 2013 jury trial.
13
DISCUSSION
I. General Legal Principles
A. Conduct of Hearing on Petition for Resentencing
“Senate Bill 1437 transformed the law of accomplice liability for
murder by ‘ “amend[ing] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder . . . .’ ” [Citation.]” (People v.
Langi (2022) 73 Cal.App.5th 972, 978.) “At the hearing stage, ‘the burden of
proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.’ ([§ 1170.95, subd. (d)(3)].)”
(People v. Lewis (2021) 11 Cal.5th 952, 960; see also Clements, supra, 75
Cal.App.5th at p. 297.)
“Of course, in a section 1170.95 petition, the trial judge isn’t charged
with holding a whole new trial on all of the elements of murder. Instead, the
parties will focus on evidence made relevant by the amendments to the
substantive definition of murder.” (Clements, supra, 75 Cal.App.5th at
p. 298.) “[T]he court may consider evidence previously admitted at any prior
hearing or the trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in any prior
appellate opinion.” 9 (§ 1170.95, subd. (d)(3).)
9 “[T]he Legislature has decided trial judges should not rely on the
factual summaries contained in prior appellate decisions when a section
1170.95 petition reaches the stage of a full-fledged evidentiary hearing.”
(Clements, supra, 75 Cal.App.5th at p. 292.) Here, although the trial court
took judicial notice of our prior opinion, defendants have not identified any
impropriety, nor have they argued that the trial court’s ruling was
improperly based on the opinion rather than evidence drawn from the trial
transcripts. (See, e.g., Clements, at pp. 292–293.)
14
B. Standard of Review Upon Denial of Petition For Resentencing
“[I]n determining whether a trial court correctly denied a section
1170.95 petition after an evidentiary hearing, ‘ “ ‘we review the factual
findings for substantial evidence and the application of those facts to the
statute de novo.’ ” ’ ” (Cooper, supra, 77 Cal.App.5th at p. 412.) “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, supra, 75 Cal.App.5th at p. 298.)
“Nevertheless, we do not defer to the trial court’s decision entirely.
[Citation.] ‘Substantial evidence is a deferential standard but it is not
toothless.’ [Citation.] ‘We may not uphold a finding based on inherently
improbable evidence or evidence that is irrelevant to the issues before us.’
[Citations.]” (Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, 222.)
“ ‘ “ ‘Furthermore, ‘[w]hile substantial evidence may consist of inferences,
such inferences must be a ‘product of logic and reason’ and ‘must rest on the
evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “The ultimate
test is whether it is reasonable for a trier of fact to make the ruling in
15
question in light of the whole record.” [Citation.]’ [Citation.]” ’ ” (In re J.A.
(2020) 47 Cal.App.5th 1036, 1046.)
C. Elements of Aiding and Abetting Second Degree Murder
“[S]econd degree murder . . . is ‘the unlawful killing of a human being
with malice aforethought but without the additional elements, such as
willfulness, premeditation, and deliberation, that would support a conviction
of first degree murder.’ [Citation.] Malice may be either express (as when a
defendant manifests a deliberate intention to take away the life of a fellow
creature) or implied. [Citation.] ‘Malice is implied when the killing is
proximately caused by “ ‘an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’ ” [Citation.]’ ” (People v. Cravens (2012) 53
Cal.4th 500, 507; see CALCRIM No. 520.)
“A person who aids and abets the commission of a crime is culpable as a
principal in that crime.” (Gentile, supra, 10 Cal.5th at p. 843.) An aider and
abettor’s guilt “is based on a combination of the direct perpetrator’s acts and
the aider and abettor’s own acts and own mental state.” (People v. McCoy
(2001) 25 Cal.4th 1111, 1117; People v. Powell (2021) 63 Cal.App.5th 689, 712–
713.) “Thus, proof of aider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by
the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the
direct perpetrator’s unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the
aider and abettor that in fact assists the achievement of the crime.” (People
v. Perez (2005) 35 Cal.4th 1219, 1225; McCoy, at p. 1117.) “It is settled that if
a defendant’s liability for an offense is predicated upon the theory that he or
16
she aided and abetted the perpetrator, the defendant’s intent to encourage or
facilitate the actions of the perpetrator ‘must be formed prior to or during
“commission” of that offense.’ [Citation].” (People v. Montoya (1994) 7 Cal.4th
1027, 1039.) “[I]n general, neither presence at the scene of a crime nor
knowledge of, but failure to prevent it, is sufficient to establish aiding and
abetting its commission.” (People v. Durham (1969) 70 Cal.2d 171, 181.)
Whether a defendant is a direct aider and abettor is a question of fact, and all
reasonable inferences must be resolved in favor of the judgment. (People v.
Campbell (1994) 25 Cal.App.4th 402, 409.)
“[A]n aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person knows that his or
her conduct endangers the life of another and acts with conscious disregard
for life.” (Gentile, supra, 10 Cal.5th at p. 850.) Unlike the natural and
probable consequences doctrine, the implied malice theory of murder
“requires that the prosecution demonstrate the defendant in fact acted with
malice.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106.) “Current law thus
provides that the actual killer, or a direct aider and abettor of the killing who
knew that his (or her) conduct endangered the life of another and acted with
conscious disregard for life, may be guilty of second degree murder.” (People
v. Langi, supra, 73 Cal.App.5th at p. 979; People v. Powell, supra, 63
Cal.App.5th at pp. 712–714.)
Pursuant to Senate Bill 1437, the amendment of section 188,
subd. (a)(3) “bars a conviction for second degree murder under the natural
and probable consequences theory” (Gentile, supra, 10 Cal.5th at p. 838), but
the statute “did not . . . alter the law regarding the criminal liability of direct
aiders and abettors of murder.” (People v. Offley (2020) 48 Cal.App.5th 588,
595.)
17
II. No Procedural Error at Hearing
Defendants make a single claim of procedural impropriety regarding
the conduct of the hearing on their petitions for resentencing. They contend
that the trial court “erred in failing to give a statement of reasons regarding
what facts it believed established aiding and abetting, regarding whether it
found malice, and regarding what facts, if any, established malice; in failing
to do so, it denied [defendants] the opportunity for a fair appeal.”
We reject defendants’ claim of error for three reasons. First, the plain
language of section 1170.95 does not require a trial court to prepare an oral
or written statement of reasons when ruling on the merits of a petition for
resentencing. Second, neither defendant objected when the trial court orally
announced its decision on the petitions and the issue is thus waived. (People
v. Scott (1994) 9 Cal.4th 331, 348, 351.) Third, the trial court’s oral ruling here
is sufficient to permit appellate review.
Although a statement of reasons is not mandated when denying a
petition for resentencing, we observe that “[e]xplicit judicial findings ‘serve
several worthy purposes: They help assure a realistic review by providing a
method of evaluating a judge’s decision or order; they guard against careless
decision making by encouraging the trial judge to express the grounds for his
decision; and they preserve public confidence in the fairness of the judicial
process.’ ” (In re Humphrey (2018) 19 Cal.App.5th 1006, 1038.) This is
particularly true in section 1170.95 hearings, which, as in this case, often
require a trial judge to “make factual determinations on a cold record.”
(Clements, supra, 75 Cal.App.5th at p. 297.)
We now turn to an examination of the trial court’s decision that the
defendants directly aided and abetted Gabino’s murder.
18
III. The Lack of Substantial Evidence to Support the Direct
Aider and Abettor Theory Requires Reversal
A. First Element: Identifying the Perpetrator
The prosecutor argued at the hearing on defendants’ petitions for
resentencing that “[t]he actual killer, meaning the shooter, is either Sidonio
or Augustin or both.” On appeal, the Attorney General acknowledges that
the prosecution theory was “that each defendant directly aided and abetted
the other in murdering Gabino.” Citing Cooper, counsel for Sidonio and
Augustin assert that the prosecution theory is inconsistent with the jury’s
finding that neither defendant was the shooter. On the basis of the record
presented at the resentencing hearing, we agree with defendants.
Cooper involved a defendant and two codefendants who participated in
a kidnapping that resulted in the death of the victim. (Cooper, supra, 77
Cal.App.5th at p. 397.) An autopsy revealed that the victim died of a gunshot
wound to the head (id. at p. 400), however, it was unclear which defendant
had fired the fatal shot. “The jury convicted [Cooper] of one count of first-
degree murder and one count of kidnapping and found true that a principal
was armed with a firearm during both offenses. But Cooper—who was
stipulated to be a convicted felon—was acquitted of a charge of being a felon
in possession of a firearm.” (Id. at p. 399, fn. omitted.) The trial court denied
Cooper’s section 1170.95 petition for resentencing, “finding beyond a
reasonable doubt that Cooper was a major participant in the kidnapping who
acted with reckless indifference to human life. In reaching this conclusion,
the court made numerous statements to the effect that Cooper possessed and
fired a gun on the day in question.” (Cooper, at p. 408.) The appellate court
reversed, holding “that a trial court cannot deny relief in a section 1170.95
proceeding based on findings that are inconsistent with a previous acquittal
when no evidence other than that introduced at trial is presented.” (Id. at
19
p. 398.) Based on the jury’s finding that Cooper had not been in possession of
a firearm at the time of the kidnapping, the appellate court found that “any
evidence he possessed or used a gun should not have played a role in the
[trial] court’s analysis.” (Id. at p. 412.)
Cooper was decided while this appeal was pending, and the parties
submitted supplemental briefs regarding its application to this case. Defense
counsel asserted that “the trial court should have been barred from making a
finding” that either defendant aided and abetted the other because both
defendants were acquitted of personal discharge of a firearm causing death
under section 12022.53, subdivision (d). The Attorney General wrote that “it
was unnecessary for the resentencing court to find that either defendant fired
the fatal shot[s], and it did not do so.” The parties appear to agree that
because the jury’s verdict eliminated Sidonio and Augustin as shooters, and
no new evidence was presented at the hearing, Cooper required the trial court
to base its decision on a theory which did not involve either defendant
discharging a firearm. Accordingly, we review the record for evidence that
the defendants directly aided and abetted a third party perpetrator who fired
the fatal shot[s].
Defendants argued at trial and at the resentencing hearing that
Conrado was the most likely perpetrator of Gabino’s murder. At trial, the
prosecution resisted defendants’ attempts to point to Conrado as the shooter,
successfully excluding evidence of Conrado’s false statements to the police, as
well as evidence that Conrado was unavailable at trial because he had fled to
Mexico. (People v. Cruz Santos and Zepeda Onofre, supra, A139860.) On
appeal, the Attorney General does not directly address the theory that
Conrado shot Gabino, other than to say that the jury necessarily must have
rejected this theory.
20
Because the evidence excludes the defendants as shooters, and because
neither party asserts that Ramon—who testified that he was not present
when Gabino was shot—was the perpetrator, we assume for the purpose of
our analysis that Conrado was the direct perpetrator of the murder. 10 The
evidence supports an inference that Conrado, Sidonio, and Augustin were
present when Gabino was killed. Augustin had Gabino’s blood on his pants
and his boot. Sidonio threatened to harm Conrado if he spoke about “what he
had seen,” which supports an inference that Sidonio and Conrado were
present and either witnessed or participated in the murder. Sidonio and
Augustin were armed, which supports an inference that Conrado had access
to a firearm at the time of the murder.
B. Second Element: Intent
“Murder, whether in the first or second degree, requires malice
aforethought. (§ 187.) Malice can be express or implied. It is express when
there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone
kills with ‘no considerable provocation . . . or when the circumstances
attending the killing show an abandoned and malignant heart’ (§ 188,
subd. (a)(2)). When a person directly perpetrates a killing, it is the
10 In declining to admit defense evidence of third party culpability, the
judge who presided over the jury trial stated: “The court . . . has seen nothing
in the record, not any statement, whether admissible or otherwise, that
places a gun in Conrado’s hand. There’s no direct or circumstantial evidence
that Conrado was the shooter.” (People v. Cruz Santos and Zepeda Onofre,
supra, A139860.) But the judge presiding over the section 1170.95 petition
hearing, sitting as a trier of fact, was entitled to draw different conclusions
than those drawn by the trial judge. (See Clements, supra, 75 Cal.App.5th at
p. 297: “[I]t’s unusual to ask the trial judge to sit as the fact finder and (in
some cases) make factual determinations on a cold record, as the judge did in
this case. While that is not the ideal position for a fact finder, it is possible to
review a trial transcript and reach an opinion about what actually
happened.”)
21
perpetrator who must possess such malice. [Citations.] Similarly, when a
person directly aids and abets a murder, the aider and abettor must possess
malice aforethought.” (Gentile, supra, 10 Cal.5th at p. 844.) An aider and
abettor who does not expressly intend to aid a killing can be convicted of
second degree murder if he acts with implied malice, that is, engages in
conduct which he knows endangers the life of another and acts with conscious
disregard for life. (Gentile, at p. 850.)
The record reveals no evidence to support the theory that Conrado,
Sidonio, or Augustin acted with implied malice. “[T]he state of mind of a
person who acts with conscious disregard for life is, ‘I know that my conduct
is dangerous to others, but I don’t care if someone is hurt or killed.’ ” (People
v. Olivas (1985) 172 Cal.App.3d 984, 988.) No evidence was presented at trial
to explain the actions that Conrado, Sidonio, or Augustin took in connection
with Gabino’s murder. The prosecutor had the opportunity to present
additional evidence at the section 1170.95 hearing, but chose not to augment
the trial court record. The absence of evidence demonstrating that Conrado
or the defendants deliberately performed acts that they knew endangered
Gabino’s life, with conscious disregard for life, necessarily requires us to
reject the theory that defendants acted with implied malice.
We turn next to the question of whether the record supports a finding
of express malice, that is, evidence that Conrado harbored a deliberate intent
to kill Gabino, and that Sidonio and Augustin, aware of Conrado’s criminal
purpose, intended to commit or to encourage or facilitate the commission of
the murder. (People v. Beeman (1984) 35 Cal.3d 547, 560.)
The evidence of Conrado’s intent comes primarily from the
prosecution’s primary trial witness, Ramon, who testified that Conrado was
frustrated that Gabino had disclosed Conrado’s cocaine use to his wife.
22
Conrado got increasingly angry with Gabino as the evening wore on, leading
Ramon to believe that a fistfight might break out. Ramon’s testimony that
Conrado initiated the argument with Gabino, knowing that Gabino had
witnessed him using cocaine that very evening, permits a reasonable
inference that Conrado may have been worried about the consequences if
Gabino “snitched” on him again. It is unreasonably speculative, however, to
infer from this evidence that Conrado intended to kill Gabino.
“[A]n aider and abettor will ‘share’ the perpetrator’s specific intent
when he or she knows the full extent of the perpetrator’s criminal purpose
and gives aid or encouragement with the intent or purpose of facilitating the
perpetrator’s commission of the crime.” (People v. Beeman, supra, 35 Cal.3d
at p. 560.) Here the record does not contain evidence which supports an
inference that Conrado wanted to kill Gabino. We can locate no evidence
which establishes that the defendants were aware that Conrado wanted to
kill Gabino and intended to assist him. At trial and at the resentencing
hearing, the prosecutor relied on the abundant evidence of Sidonio’s animus
towards Gabino to prove malice aforethought. However, Sidonio’s callous
statements fall short of proving that Sidonio and Augustin knew and shared
“the murderous intent of the actual perpetrator.” (People v. McCoy, supra,
25 Cal.4th at p. 1118.) Absent evidence of Conrado’s intent to kill, and the
defendants’ knowledge of Conrado’s intent, the trial court’s decision that
defendants were direct aiders and abettors of Gabino’s murder cannot stand.
C. Third Element: Conduct That Encouraged or Facilitated
the Murder
In considering the third element, conduct by the aider and abettor that
assisted, encouraged, or facilitated the commission of the crime, we are again
faced with a lack of evidence in the record as to how the murder occurred.
The prosecution has not identified any evidence that describes what acts, if
23
any, the defendants engaged in to assist, encourage, or facilitate Conrado’s
murder of Gabino. No witness saw the shooting, the murder weapon was
never located, and the caliber of ammunition used to kill Gabino was never
determined. While it is tempting to speculate about scenarios that could
explain how the firearms Sidonio or Augustin were carrying could have been
used to kill Gabino, speculation does not constitute substantial evidence to
support convictions for second degree murder.
DISPOSITION
The trial court’s postjudgment order denying the defendants’ petitions
for resentencing is reversed. The matter is remanded for further proceedings
consistent with this opinion.
24
_________________________
Mayfield, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Miller, J.
People v. Zepeda-Onofre and Cruz-Santos (A162223, A162241)
* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
25