People v. Espinoza CA2/3 ( 2022 )

Filed 8/16/22 P. v. Espinoza CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B307621
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. YA013704)
JORGE ANTONIO ESPINOZA et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Nicole C. Bershon, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant Jorge Antonio Espinoza.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant Antonio Silva.
Law Office of Stein and Markus, Andrew M. Stein,
Joseph A. Markus and Brentford Ferreira for Defendant and
Appellant Alfredo Sanchez Espinoza.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
In 1992, Jorge Antonio Espinoza, Alfredo Sanchez
Espinoza,1 and Antonio Silva (collectively, defendants) committed
an armed home-invasion robbery and then fled the police in a car
driven by a coparticipant in the crime. The car ran a stop sign
and crashed into another vehicle, killing two of its occupants and
injuring two others. At the time of the crime, Alfredo was
17 years old and both Jorge and Silva were 19 years old.
Defendants were convicted of two counts of first degree felony
murder for the deaths of the two victims killed in the collision.
In 2019, each defendant filed a petition for resentencing
under Penal Code2 section 1170.95 (now § 1172.6).3 Following an
evidentiary hearing, the superior court denied each petition
based on a finding that defendants were not entitled to relief
under section 1170.95 because they were major participants in
the felony and acted with reckless indifference to human life.
On appeal, each defendant argues the evidence was
insufficient to support the superior court’s finding that he
1 BecauseAlfredo Espinoza and Jorge Espinoza share the
same last name, we refer to them by their first names for clarity.
2 Unless otherwise stated, all further statutory references
are to the Penal Code.
3 Effective June 30, 2022, the Legislature renumbered
Penal Code section 1170.95 to section 1172.6 with no change in
text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and
conformity with the petition, we will continue to refer to the
statute as section 1170.95 throughout the opinion.
2
was ineligible for section 1170.95 relief. Silva also asserts the
superior court erred in refusing to consider youth as a relevant
factor in ruling on the petitions, and in relying on certain
inadmissible evidence in violation of section 1170.95 and
the Sixth Amendment confrontation clause. We affirm.
BACKGROUND
I. The underlying crimes
On the evening of November 7, 1992, defendants committed
an armed robbery at a residence in Hawthorne, California. A
fourth man, Rutilo Aguilera, waited in a car outside the residence
and acted as the getaway driver. The group was also joined by an
unidentified woman.
At the time of the robbery, 16-year-old Norma Barraza
was inside the residence with her young niece and nephew, both
of whom were under the age of 10. Barraza heard a knock on the
front door and a voice asking for Robert. After Barraza
responded that no one named Robert lived there, she stood
behind the door with her hand on the knob waiting for the person
to leave. A shotgun blast suddenly ripped through the doorknob,
injuring Barraza’s hand. The door was then kicked open. Silva,
armed with a 12-gauge sawed-off shotgun, and Alfredo, armed
with a chrome .44 Magnum handgun, both entered the home.
Jorge, armed with a black .40-caliber semiautomatic handgun,
remained at the doorway, acting as a lookout.
Once inside the home, one of the men ordered Barraza’s
niece and nephew to get on the ground. The children complied
and were taken to the living room where they sat on the sofa.
Barraza initially ran into a bedroom to hide, but was found by
the men and taken to the kitchen. Alfredo pointed his gun at
Barraza and the two children. Alfredo also threatened to kill
3
Barraza, and Silva threatened to rape her. Alfredo and Silva
rummaged through the home. They took Barraza’s ring from
a drawer inside a bedroom. After about three minutes, Jorge
saw the police and told his companions, “Let’s go.”
Defendants ran from the residence into the waiting car. A
neighbor who saw the men fleeing the home observed that one of
them held a white bag in his hand. The car, driven by Aguilera,
took off down the street with the police in close pursuit. About a
block and a half from the residence, the car ran a stop sign and
then crashed into another vehicle. That vehicle was occupied by
Indricka Kelsey, her young daughter, her friend Ida Logan, and
Logan’s young daughter Jameshia Perkins. Logan and her
daughter died as a result of injuries sustained in the collision.
Kelsey and her daughter survived the collision, but suffered
serious injuries. The driver of the getaway car, Aguilera, also
died from injuries sustained in the collision.
Immediately following the collision, one to two shots were
fired from the getaway car.4 Defendants and their female
companion then fled the scene on foot. A police officer pursuing
the suspects saw Alfredo with a chrome gun as he ran away.
Alfredo was found hiding a short distance from the scene of the
collision and was arrested at that time. Jorge was arrested a few
days later. Silva and the female suspect ran into a nearby
4 Following Alfredo’s arrest, he tested positive for gunshot
residue on his hands, and the chrome revolver that he carried
during the robbery was found with one expended casing and five
unspent cartridges inside the cylinder. The prosecution’s theory
at trial was that Alfredo fired the gun from inside the getaway
car, possibly to shoot out the window of the crashed car as a
means of escape.
4
laundromat and asked a customer for a change of clothes. After
changing clothes, Silva and the woman returned to the scene of
the collision to see what was happening, and then left.
A chrome revolver and a white bag containing money were
found near the area where Alfredo and Jorge were seen running.
A sawed-off shotgun containing four shells, a loaded .40-caliber
handgun, and a large quantity of heroin were recovered from
inside the getaway car.
In an interview with the police following his arrest, Alfredo
admitted he had participated in the robbery. He identified his
coparticipants by their purported gang monikers, and denied
knowing their true names. According to Alfredo, the group
committed the robbery because “Chuco” said that some people at
the residence owed him money. Chuco and “Spider” searched the
residence, and after Chuco threatened the female victim, she told
them where the money was located. Defendants then fled the
home with a bag of money and were passengers in a car driven by
“Big Boy” when the collision occurred.
In his interview with the police, Silva also admitted he
was involved in the robbery. The detective who interviewed Silva
provided a detailed description of his statements to the police at
Silva’s preliminary hearing. According to Silva, the driver of the
car, Aguilera, asked Silva to help him commit the robbery
because people at the residence had “ripped him off” in a drug
deal.5 Aguilera supplied the guns used in the crime, including a
shotgun that he gave to Silva. Silva described the weapon as a
5 Shortly
after the crime, Jorge told a friend that the group
had committed the robbery to “[j]ack a dope dealer,” but “it didn’t
work out.”
5
terminator-style shotgun. While Aguilera stayed in the car, Silva
fired a shot through the door, and then defendants went inside
the home. They stole drugs and a bag of money and fled in the
car when they saw the police were coming. Aguilera said he was
not going to jail and crashed into another car when he ran a stop
sign. After the crash, Silva heard a shot but did not know who
had fired it. He got out of the car and ran from the scene. Silva
told the police that he felt guilty about what had happened
because he later learned from the news a child had been killed in
the collision. Silva also said that he had asked the driver of the
getaway car to stop once he realized the police were on the scene.
II. Defendants’ convictions and sentences
In 1994, following a joint trial before a jury, Jorge and
Alfredo were each found guilty as charged of two counts of first
degree murder (§ 187, subd. (a)), two counts of assault with a
deadly weapon (§ 245, subd. (a)(1)) two counts of assault with a
firearm (§ 245, subd. (a)(2)), one count of first degree residential
robbery (§ 211), one count of first degree residential burglary
(§ 459), and one count of shooting at an inhabited dwelling
(§ 246). Various firearm enhancement allegations (§§ 12022,
subd. (a)(1), 12022.5, subd. (a)) were found to be true as to each of
them. Jorge and Alfredo were each sentenced to 66 years and
8 months to life in state prison.
In 1996, as part of a plea agreement, Silva pleaded guilty to
two counts of first degree murder (§ 187, subd. (a)) and admitted
two firearm enhancement allegations (§12022, subd. (a)(1)). All
remaining counts and allegations against him were dismissed.
Silva was sentenced to 50 years to life in state prison.
Jorge filed an appeal from his judgment of conviction. In
an unpublished opinion filed on December 24, 1996, this court
6
affirmed the judgment against Jorge. (People v. Espinoza
(Dec. 24, 1996, B086254) [nonpub. opn.].)
III. Defendants’ petitions for resentencing
In 2019, defendants each filed a petition for resentencing
under section 1170.95. Each defendant alleged he was entitled to
relief under the newly enacted statute because he was convicted
of murder pursuant the felony-murder rule or the natural and
probable consequences doctrine, he was not the actual killer, he
did not aid or abet a murder with the intent to kill, and he was
not a major participant in the underlying felony and did not act
with reckless indifference to human life.
In support of his petition, Silva attached a sworn
declaration in which he stated that he “only agreed to the robbery
or burglary, not . . . a murder [he] never fathomed.” He further
stated that once the group left the residence and the police began
chasing them, he “repeatedly told the driver of the vehicle to pull
over and stop so [he] could jump out but the driver refused.”
Silva also supported his petition with his 1996 postplea probation
report, and with the factual background section of this court’s
prior opinion in Jorge’s appeal. The probation report reflected
that Silva told the probation officer that he did not believe the
murder charges were fair because he had asked the driver of the
getaway car to stop, but the driver refused.
The People filed a response to each defendant’s petition.
Among other arguments, the People asserted defendants were
not entitled to relief under section 1170.95 because each of them
was a major participant in the robbery and acted with reckless
indifference to human life. The People supported their responses
with various documents, including this court’s prior opinion in
Jorge’s appeal, defendants’ preliminary hearing transcripts, and
7
defendants’ presentencing probation reports. Defendants filed
replies in which they argued they were not liable for murder
because their actions during the robbery did not play a role in the
car collision that led to the victims’ deaths. In support of his
reply, Alfredo attached the transcripts from his and Jorge’s joint
trial.
On September 2, 2020, the superior court held a combined
evidentiary hearing on the petitions after finding each defendant
had established a prima facie case for relief. At the hearing, the
parties did not offer any new or additional evidence, but rather
relied on the evidence previously submitted with the briefing.
Following extensive argument from counsel, the court denied the
petitions, finding each defendant was a major participant in the
robbery and acted with reckless indifference to human life. In
articulating the basis for its ruling, the court noted that the case
presented “a strange scenario” in which defendants “were all
present for the shooting that didn’t lead to the death[,] but they
were also all present for the action that led to the death.” While
acknowledging that “there isn’t one factor that’s overarching,” the
court cited defendants’ armed participation in the robbery of a
known drug residence, their violent conduct during the robbery
which included shooting through the door and pointing a gun at
young children, their decision to get into a fleeing car once they
became aware the police were coming, their presence in the car
at the time of the deadly collision, and their decision to flee the
scene of the collision rather than render aid to the victims. The
court also noted that, over the course of the robbery and escape,
defendants had multiple opportunities to stop the crime, but
did not do so. While recognizing the “relatively young age” of
defendants at the time of the robbery, the court explained it could
8
not evaluate their culpability “from the mind of a 17-year-old or
18-year-old” in deciding whether they were entitled to section
1170.95 relief.
Following the denial of their petitions, each defendant filed
a timely notice of appeal.
DISCUSSION
On appeal, defendants contend the superior court
committed reversible error in denying their section 1170.95
petitions. Defendants claim the evidence was insufficient to
support the superior court’s findings that each of them was
a major participant in the underlying felony and acted with
reckless indifference to human life, and was thus guilty of felony
murder.6 In a related argument, Silva also asserts the superior
court misapplied the law when it declined to consider his youth
at the time of the offense in determining whether he acted with
reckless indifference to human life. In supplemental briefing
permitted by this court, Silva further argues the superior court
erred in admitting certain evidence against him in violation of
section 1170.95, subdivision (d)(3) and the Sixth Amendment
right of confrontation.
I. Overview of section 1170.95
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) amended murder liability under
6 In Alfredo’s opening brief, he suggests the superior court
may have found that defendants were guilty of murder under a
theory of imputed malice. This is incorrect. The superior court
found that defendants were guilty of felony murder because they
were major participants in the robbery and acted with reckless
indifference to human life. The superior court did not make any
finding as to whether defendants were guilty of malice murder.
9
the felony murder rule and natural and probable consequences
doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v.
Gentile (2020) 10 Cal.5th 830, 842–843.) It amended the felony-
murder rule by adding section 189, subdivision (e), which
provides that a participant in the perpetration or attempted
perpetration of qualifying felonies is liable for felony murder only
if the person: (1) was the actual killer; (2) was not the actual
killer but, with the intent to kill, acted as a direct aider and
abettor in the murder; or (3) the person was a major participant
in the underlying felony and acted with reckless indifference
to human life, as described in section 190.2, subdivision (d).
(Gentile, at p. 842.) It amended the natural and probable
consequences doctrine by adding section 188, subdivision (a)(3),
which states that malice shall not be imputed to a person based
solely on his or her participation in a crime. (Gentile, at pp. 842–
843.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony murder or natural and probable consequences
theory may petition the superior court to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v.
Gentile, supra, 10 Cal.5th at p. 843.) Senate Bill No. 775 (2021–
2022 Reg. Sess.) (Senate Bill 775), which took effect on
January 1, 2022, amended section 1170.95 to allow persons
convicted of attempted murder or manslaughter under a felony
murder or natural and probable consequences theory to seek the
same relief under the statute. (Stats. 2021, ch. 551, § 2.)
As amended by Senate Bill 775, section 1170.95 provides
that a petitioner is eligible for relief if he or she: (1) was charged
10
with murder or attempted murder by means of a charging
document that allowed the prosecution to proceed under the
felony-murder rule, natural and probable consequences doctrine,
or other theory under which malice is imputed to a person based
solely on his or her participation in a crime; (2) was convicted of
murder, attempted murder, or manslaughter; and (3) could no
longer be convicted of murder or attempted murder due to the
changes to sections 188 and 189 effectuated by Senate Bill 1437.
(§ 1170.95, subd. (a).)
If a petitioner makes a prima facie showing of entitlement
to relief, the superior court must issue an order to show cause
(§ 1170.95, subd. (c)), and hold an evidentiary hearing to
determine whether to vacate the murder, attempted murder,
or manslaughter conviction and to resentence the petitioner
(§ 1170.95, subd. (d)(1)). At that hearing, the prosecution has
the burden of proving beyond a reasonable doubt that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to sections 188 and
189. (§ 1170.95, subd. (d)(3).) If the prosecution fails to sustain
its burden of proof, the court must vacate the conviction and any
allegations and enhancements attached to it, and resentence the
petitioner on the remaining counts. (§ 1170.95, subd. (d)(3).)
On appeal from an order denying a section 1170.95 petition
following an evidentiary hearing, we review the superior court’s
factual findings for substantial evidence. (People v. Clements
(2022) 75 Cal.App.5th 276, 298; People v. Garrison (2021)
73 Cal.App.5th 735, 747.) “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
11
rational trier of fact in finding [the defendant guilty] beyond a
reasonable doubt.” ’ ” (Clements, at p. 298.)
II. Substantial evidence supported the superior court’s
findings that defendants were not entitled to relief
under section 1170.95
Defendants contend the superior court erred in finding
that they were not eligible for relief under section 1170.95
because the People failed to prove beyond a reasonable doubt that
they were guilty of felony murder under the newly amended law.
Defendants specifically challenge the sufficiency of the evidence
supporting the superior court’s findings that they were major
participants in the robbery and acted with reckless indifference
to human life. Considering the totality of the record, we conclude
these findings were supported by substantial evidence.
A. Governing law on felony murder
As amended by Senate Bill 1437, section 189,
subdivision (e)(3), provides that a participant in certain felonies,
including robbery, in which a death occurs is liable for murder if
he or she was “a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2,” the felony-murder special
circumstance statute. Section 190.2, subdivision (d), in turn
states that “every person, not the actual killer, who, with reckless
indifference to human life and as a major participant” aids or
abets an enumerated felony that results in death may be
convicted of special circumstance murder and sentenced to death
or imprisonment for life without parole. “The statute, by its text,
imposes an actus reus requirement, major participation in the
enumerated felony, and a mens rea requirement, reckless
12
indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667,
674.)
Roughly 20 years after defendants’ convictions in this case,
the California Supreme Court in People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark)
clarified the meaning of the “major participant” and “reckless
indifference” requirements of section 190.2, subdivision (d). The
Banks court identified a nonexclusive list of factors for
determining whether an aider and abettor was a
major participant in the underlying felony: “What role did the
defendant have in planning the criminal enterprise that led
to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the
defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder,
and did his or her own actions or inaction play a particular role
in the death? What did the defendant do after lethal force was
used?” (Banks, at p. 803, fn. omitted.) With respect to the
reckless indifference element, Banks explained that “[r]eckless
indifference to human life ‘requires the defendant be “subjectively
aware that his or her participation in the felony involved a grave
risk of death.” ’ ” (Id. at p. 807.) “Awareness of no more than
the foreseeable risk of death inherent in any armed crime is
insufficient; only knowingly creating a ‘grave risk of death’
satisfies” the mens rea requirement. (Id. at p. 808.)
The following year, in Clark, supra, 63 Cal.4th at pages 616
to 618, the Supreme Court further elaborated on the mental state
required to demonstrate reckless indifference to human life. As
13
Clark explained, the reckless indifference element of a felony-
murder special circumstance finding “encompasses a willingness
to kill (or to assist another in killing) to achieve a distinct aim,
even if the defendant does not specifically desire that death as
the outcome of his actions.” (Id. at p. 617.) The requisite state of
mind is “ ‘implicit in knowingly engaging in criminal activities
known to carry a grave risk of death.’ ” (Id. at p. 616.) Reckless
indifference to human life thus has both a subjective and
objective component. (Id. at p. 617.) Subjectively, the defendant
must consciously disregard risks known to him or her. (Ibid.)
Objectively, recklessness is determined by “what ‘a law-abiding
person would observe in the actor’s situation,’ ” that is, whether
the defendant’s conduct “ ‘involve[d] a gross deviation from the
standard of conduct that a law-abiding person would observe in
the actor’s situation.’ ” (Ibid.) The fact that a robbery involved a
gun, by itself, is insufficient to support a finding of reckless
indifference to human life. (Id. at p. 617.)
Clark also provided a nonexclusive list of factors to consider
in evaluating whether a defendant acted with reckless
indifference to human life: “Did the defendant use or know that a
gun would be used during the felony? How many weapons were
ultimately used? Was the defendant physically present at the
crime? Did he or she have the opportunity to restrain the crime
or aid the victim? What was the duration of the interaction
between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s
propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence
during the felony?” (In re Scoggins, supra, 9 Cal.5th at p. 677
[summarizing Clark factors].) Like the Banks factors, “ ‘[n]o one
14
of these considerations is necessary, nor is any one of them
necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.)
B. Substantial evidence supported the findings
that defendants were guilty of felony murder
Viewing the record in the light most favorable to the
superior court’s ruling, we conclude the evidence was sufficient to
support its findings that defendants were guilty of felony murder
because they were major participants in the robbery and acted
with reckless indifference to human life. The evidence showed
that defendants were present for the entire sequence of events
that culminated in the victims’ tragic deaths. While it is unclear
to what extent defendants helped formulate the plan for the
robbery, each of them agreed to participate in the robbery of a
known drug residence armed with guns.
Each defendant was carrying a loaded firearm when the
group approached the residence and first attempted to gain entry
through a ruse. Each defendant also was aware that the
residence was occupied once Barraza replied that the person they
were looking for did not live there and refused to open the door.
Seconds later, and without warning, Silva fired the sawed-off
shotgun at the door, leaving a hole underneath the doorknob and
causing a fragment from the shattered door to injure Barraza’s
hand. Silva’s act of firing a shotgun blast through the front door
clearly did not reflect an effort to minimize the risk of violence to
the occupants of the residence, but rather was an escalation of
violence against these young victims.
The evidence further showed that defendants entered the
residence displaying their firearms. Defendants then acted as a
team with each of them in a defined role. While Silva and
Alfredo rummaged through the home searching for items to take,
15
Jorge stood at the doorway of the entrance, holding a loaded
semiautomatic handgun and serving as a lookout. This was
evidence of a preplanned, organized effort. Jorge’s role as the
lookout also supported an inference that the group was planning
to make a hasty escape. As the superior court noted, the purpose
of a lookout is “to get out, get out quickly, [and] flee the police.”
During the course of the robbery, the violence inside the
residence continued to escalate. Alfredo pointed his fully loaded
revolver at Barraza and the two young children who were inside
the home. Both Alfredo and Silva also made threats of violence
against Barraza, with Alfredo threatening to kill Barraza and
Silva threatening to rape her. Defendants fled the residence
together once Jorge alerted his companions that the police were
coming. Based on such evidence, the superior court reasonably
could infer that, at this point in the robbery, each defendant was
aware of and willingly involved in the violent manner in which
the crime was being committed, and knowingly had engaged in
criminal activities that carried a grave risk of death. (People v.
Banks, supra, 61 Cal.4th at pp. 801, 803; Clark, supra, 63 Cal.4th
at p. 616.)
The superior court also reasonably could infer that once
defendants exited the residence with the police in close pursuit,
each of them was faced with a choice. They could surrender to
the police, attempt to flee the scene on foot, or try to escape in
the car driven by Aguilera. Given that the police were rapidly
approaching the scene, defendants could have anticipated that
Aguilera would be driving the getaway car at a high rate of speed
to evade the pursuing officers, thus endangering the lives of the
car’s occupants and other passing motorists. Defendants still
chose the getaway car. None of them sought to minimize the risk
16
of violence posed by a high speed car chase by surrendering or
trying to flee the scene on foot.7 A short distance from the
residence, while being chased by the police, Aguilera ran a stop
sign and crashed into another vehicle, killing two of its occupants
and himself and seriously injuring two others. Each defendant
was present in the getaway car when the fatal crash occurred.
The evidence also demonstrated that, immediately after the
crash, one of defendants, likely Alfredo, fired his weapon from the
car. Defendants then ran from scene of the collision with Alfredo
still carrying his gun and Jorge holding a bag of money taken
from the residence. None of defendants called for assistance or
attempted to render aid to the victims of the crash. While Silva
later returned to the scene of the collision, he did so only briefly
after changing his clothes at a nearby laundromat so that he
would not be recognized. On this record, the totality of
7 Silva argues that he told the detective shortly after his
arrest, and later the probation department, that he had asked
Aguilera to stop the car once he saw the police were there. At the
evidentiary hearing on the section 1170.95 petitions, however,
the superior court did not find Silva’s statement about wanting to
stop the car to be credible, describing it as a “very self-serving
statement” that was not corroborated by the other defendants.
As the fact finder at that hearing, the superior court was required
to “review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility.”
(People v. Clements, supra, 75 Cal.App.5th at p. 298.) While Silva
seeks to challenge the superior court’s credibility determination
about his statement on appeal, “[t]he reviewing court does not
reweigh the evidence or determine credibility anew.” (People v.
Price (2021) 71 Cal.App.5th 1128, 1154, review granted Feb. 9,
2022, S272572.)
17
defendants’ conduct during the robbery and flight supported a
finding that each of them was a major participant in the felony
and exhibited a reckless disregard for human life.
In arguing that the evidence was insufficient to support the
findings that they were guilty of felony murder, defendants focus
on the period of time inside the getaway car rather than inside
the residence. In particular, defendants assert that the deaths
in this case did not occur during the “actual robbery” inside the
home, but rather were the result of the car accident that took
place after the robbery as they were attempting to flee the scene.
Defendants further claim that, at the time of the collision, they
were mere passengers in the car driven by Aguilera, at which
point they had no ability to control Aguilera’s conduct or to
prevent the collision from occurring.
It is well-established, however, that “ ‘ “[t]he crime of
robbery is not confined to the act of taking property from
victims.” ’ ” (People v. Debose (2014) 59 Cal.4th 177, 205.)
Rather, “the commission of a robbery is ongoing ‘ “until the
robber has won his way to a place of temporary safety.” ’
[Citation.] A robber has not reached a place of temporary safety
while an immediate and active pursuit to recover the property is
in progress.” (Ibid.) Additionally, under the doctrine known as
the escape rule, a “ ‘killing committed by a robber during his
or her flight from the scene of the crime, and before reaching a
place of temporary safety, comes within section 189.’ ” (People v.
Wilkins (2013) 56 Cal.4th 333, 341.) Even where the killing is
unintentional, “ ‘[f]elony-murder liability continues throughout
the flight of a perpetrator from the scene of a robbery until the
perpetrator reaches a place of temporary safety because the
robbery and the accidental death, in such a case, are parts of a
18
“continuous transaction.” ’ ” (Id. at p. 345.) Appellate courts
accordingly have upheld felony-murder convictions in cases
where the defendant accidentally killed another motorist in a
vehicle collision that occurred as the defendant was fleeing the
scene and had not yet reached a place of temporary safety. (See,
e.g., People v. Russell (2010) 187 Cal.App.4th 981, 991–992
[shortly after fleeing scene of burglary, defendant was observed
by police and began driving at high rate of speed, causing traffic
collision that killed victim]; People v. Thongvilay (1998)
62 Cal.App.4th 71, 79–80 [while being pursued in his car by
witness to burglary, defendant ran a red light and crashed into
another vehicle, killing victim]; People v. Johnson (1992)
5 Cal.App.4th 552, 561–562 [defendant fled scene of robbery in
stolen car and accidentally struck another motorist, causing her
death].)
Here, there is no dispute that the vehicle collision that
killed the victims occurred moments after defendants had fled
the scene of the robbery and before they had reached a place of
temporary safety. The crime was therefore ongoing when the
fatal crash occurred, and the robbery and the deaths were part of
one continuous transaction. While Aguilera was the person who
actually killed the victims through his reckless driving, under the
felony-murder rule, as amended by Senate Bill 1437, defendants
remained liable for murder if they were major participants in the
robbery and acted with reckless indifference to human life. In
determining defendants’ culpability, the superior court properly
considered their conduct during the entire sequence of events
that resulted in the victims’ deaths. Contrary to defendants’
contention on appeal, the court did not focus solely on their
violent actions inside the residence while discounting their lack
19
of violence inside the getaway car. Rather, the record reflects
that the court examined the totality of each defendant’s conduct,
from the time the group first approached an inhabited residence
armed with loaded guns to the time they chose to flee the scene of
the crash on foot rather than aid the victims. While defendants
may not have been able to prevent the collision from occurring
once they became passengers in the speeding getaway car, the
totality of their conduct during the robbery and flight
demonstrated a conscious disregard for the grave risk of death
that their actions created. Under these circumstances, there was
substantial evidence to support the superior court’s findings that
each defendant was a major participant in a felony resulting in
death, and acted with reckless indifference to human life.
III. Silva has not shown prejudicial error in the alleged
failure to consider defendants’ youth
Silva argues the superior court misapplied the law when
it expressly declined to consider his young age at the time of the
offense in deciding whether he was entitled to relief under
section 1170.95.8 We conclude the alleged error in failing
8 While Jorge expressly joined in the arguments raised by
his coappellants to the extent they may benefit him, Alfredo did
not do so. Ordinarily, a party’s failure to join in a coappellant’s
claim, or to provide particularized argument as to why a claim
accrues to that party’s benefit, forfeits the issue on appeal. (See
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.)
However, because Alfredo was a minor at the time of the offense
and the superior court did not distinguish between defendants in
its comments regarding how their youth factored into its
analysis, we exercise our discretion to treat Silva’s argument as
accruing to the benefit of each defendant, including Alfredo.
20
to consider defendants’ youth was harmless because it is not
reasonably probable that any of defendants would have achieved
a more favorable result in the absence of the purported error.
At the evidentiary hearing, both counsel for Alfredo and
counsel for Silva identified youth as a factor in arguing why their
clients were not culpable for felony murder. Alfredo’s counsel
noted that Alfredo was “a 17-year-old young man” when “he was
involved in a robbery [in] which he did not commit any acts of
aggression or shooting the gun,” the “conduct during the robbery
did not evolve into a death,” and the “death in this case was an
unintended victim . . . as a result of a traffic accident.” Silva’s
counsel pointed out that his client “was 19 when he foolishly
agreed to participate in this robbery,” and that he “never
contemplated a car chase, a deadly crash.” Silva’s counsel also
noted that, during the robbery, Silva used the shotgun “as a tool”
to gain entry into the residence and “didn’t think anybody would
be hurt or killed by him shooting at the lock of the door.”
After considering the Banks and Clark factors and finding
that each defendant was a major participant in the robbery and
acted with reckless indifference to human life, the superior court
stated, “Now . . . I’m not ignoring their relatively young age. I get
that and I’m cognizant of that. But I don’t believe . . . the case
law says I have to look at . . . what would a 17 or 18-year-old do.
Do I evaluate it from the mind of a 17-year-old or 18-year-old? I
don’t think that’s what the case law says. Those considerations
come into play potentially in decisions. Do we charge special
circumstances? They can’t get LWOP, I believe, if they were
juveniles at the time. I think that’s the current state of the
law. . . . [¶] . . . [¶] But then it’s also for the parole board to make
21
those determinations. If there are any Franklin hearings,[9 ]
those issues come into play down the line. But not at this
juncture.”
Since the superior court’s ruling in this case, several
appellate courts have held that a juvenile defendant’s youth at
the time of the offense is relevant to determining whether he or
she was a major participant in the felony and acted with reckless
indifference to human life. (See, e.g., In re Moore (2021)
68 Cal.App.5th 434; People v. Harris (2021) 60 Cal.App.5th 939,
review granted Apr. 28, 2021, S267802; People v. Ramirez (2021)
71 Cal.App.5th 970.) In Moore, for instance, the defendant, who
was 16 years old when he participated in a deadly armed robbery,
challenged the sufficiency of the evidence supporting a robbery-
murder special circumstance finding. (Moore, at p. 439.) In
vacating that finding, the Moore court concluded that “a
defendant’s youth at the time of the offense should be a factor
in determining whether that defendant acted with reckless
9 A person convicted of a controlling offense committed
when he or she was under the age of 26 is entitled to a youth
offender parole hearing during the 15th year of incarceration if
he or she received a determinate sentence; during the 20th year
of incarceration if he or she received a life term of less than
25 years to life; and during the 25th year of incarceration if he or
she received a term of 25 years to life. (§ 3051, subd. (b)(1)–(3).)
Recognizing that assembling information on youth-related
mitigating factors is a task more easily accomplished at the time
of sentencing rather than decades later at a parole hearing, the
Supreme Court in People v. Franklin (2016) 63 Cal.4th 261 held a
defendant must be permitted at the time of sentencing to make a
record of those factors, a proceeding that has since become known
as a Franklin hearing. (See In re Cook (2019) 7 Cal.5th 439, 459.)
22
indifference to human life,” and that the evidence failed to
establish that Moore had acted with the requisite mental state.
(Ibid.) Moore, at page 454, explained, “Moore, as a 16 year old,
lacked ‘ “the experience, perspective, and judgment” ’ to
adequately appreciate the risk of death posed by his criminal
activities. [Citations.] To the extent the Clark
factors . . . support a finding of reckless indifference for an
adult—an issue we do not decide today—those factors
undoubtedly preclude such a finding when viewed from the
lens of Moore’s youth.” (See Harris, at p. 960 [given 17-year-old
defendant’s “youth at the time of the crime . . . [citations], it is far
from clear that [he] was actually aware ‘of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants’ ”]; Ramirez, at
p. 990 [15-year-old defendant’s “youth at the time of the shooting
greatly diminishes any inference he acted with reckless
disregard for human life by participating in the attempted
carjacking knowing [his coparticipant] was armed”].)
Relying on these recent cases, Silva asserts the superior
court misapplied the law when it refused to consider Silva’s age
at the time of the offense in determining whether he had acted
with reckless indifference to human life. As Silva acknowledges,
however, the defendants in Moore, Harris, and Ramirez were all
juveniles at the time of the relevant crime. The United States
Supreme Court precedent on which these decisions relied also
involved juvenile offenders. (See, e.g., J. D. B. v. North Carolina
(2011) 564 U.S. 261, 265 [Miranda10 custody analysis must
include consideration of 13-year-old suspect’s age]; Miller v.
10 Miranda v. Arizona (1966) 384 U.S. 436.
23
Alabama (2012) 567 U.S. 460, 465 [mandatory sentences of life
without parole for 14-year-old defendants convicted of murder
violated Eighth Amendment]; Graham v. Florida (2010) 560 U.S.
48, 52–53 [16-year-old defendant’s sentence of life without parole
for nonhomicide crime violated Eighth Amendment].) While
Alfredo was 17 years old at the time of the robbery in this case,
both Jorge and Silva were 19 years old, and thus, young adults.
Even assuming without deciding that the age of a young
adult offender is also a relevant factor in the major participant
and reckless indifference analysis, any error in failing to consider
the age of each defendant in this case was harmless. To begin
with, the record is not clear whether the superior court actually
refused to give any consideration to defendants’ youth in deciding
whether they were entitled to section 1170.95 relief. While the
court did state that the case law did not allow it to evaluate the
culpability of defendants “from the mind of a 17-year-old or 18-
year-old,” it also noted that it was cognizant of their “relatively
young age” at the time of the offense and was “not ignoring” that
fact. In any event, to the extent that the superior court may have
erred by refusing to consider defendants’ youth, there is no
reasonable probability that any of defendants would have
obtained a more favorable result if the court had taken this one
additional factor into account.11
11 Citing the standard for prejudice articulated in
Chapman v. California (1967) 386 U.S. 18, Silva contends the
alleged failure to consider his age as a relevant factor in ruling on
his section 1170.95 petition requires reversal because the error
was not harmless beyond a reasonable doubt. However, the right
to a postconviction proceeding for resentencing pursuant to
section 1170.95 is purely a creation of state law. We therefore
24
As discussed, there was substantial evidence that each
defendant actively participated in the violent home-invasion
robbery, and was subjectively aware that his participation in
the crime involved a grave risk of death. Each defendant was
physically present during all aspects of the robbery and escape
that culminated in the victims’ deaths. Silva fired a 12-gauge
sawed-off shotgun through the front door of the residence,
rummaged through the home searching for drugs and money, and
threatened to sexually assault Barraza inside the home. Jorge
played an important role as the lookout by standing guard at the
door of the residence with a loaded semiautomatic gun and
alerting his companions once he saw that the police were close to
the scene. Alfredo, the only juvenile in the group, pointed his
loaded gun at the young children inside the home, threatened to
kill Barraza, fired his weapon from the car after the crash
occurred, and ran from the car, still maintaining possession of his
weapon. Defendants then chose to run from the scene of
evaluate the error for prejudice under the harmless error
standard for state law error articulated in People v. Watson
(1956) 46 Cal.2d 818, not the standard for federal constitutional
error set forth in Chapman. (See People v. Lewis, supra,
11 Cal.5th at p. 957 [applying Watson standard to error in failing
to appoint counsel prior to determining whether petitioner stated
prima facie case for relief under section 1170.95]; People v. Myles
(2021) 69 Cal.App.5th 688, 706 [applying Watson standard to
error in admitting certain evidence at section 1170.95 hearing].)
The Watson standard requires us to evaluate whether the
defendant has shown that it is “ ‘reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (Watson, at p. 837; accord,
People v. Gonzalez (2018) 5 Cal.5th 186, 195.)
25
the collision rather than aid the victims. While defendants were
relatively young when they participated in the crime, the
evidence did not show that any of them “lacked ‘ “the experience,
perspective, and judgment” ’ to adequately appreciate the risk
of death posed by his criminal activities.” (People v. Moore,
supra, 68 Cal.App.5th at p. 454.) Rather, even considering
defendants’ youth at the time of the offense as a relevant factor,
the totality of the circumstances supported the superior court’s
findings that each defendant was a major participant in the
robbery and acted with reckless disregard for human life.
IV. Silva has not shown prejudicial error in the alleged
reliance on inadmissible evidence
In supplemental briefing, Silva also contends the superior
court erred in denying his section 1170.95 petition because some
of the evidence on which the court relied in finding him ineligible
for relief is inadmissible under the recent amendments to
section 1170.95. We conclude Silva forfeited his claim of error by
failing to object to the evidence in the superior court, and even if
not forfeited, the claim lacks merit because any alleged error in
the admission of the challenged evidence was harmless in this
case.
In addition to expanding the class of persons eligible for
resentencing, Senate Bill 775 amended section 1170.95 to clarify
the scope of evidence that may be considered at the evidentiary
hearing. (Stats. 2021, ch. 551, § 2.) As amended, section 1170.95,
subdivision (d)(3) now provides, in relevant part: “The admission
of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under
current law, including witness testimony, stipulated evidence,
26
and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate
opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of Section 872
shall be excluded from the hearing as hearsay, unless the
evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens.”
Silva argues that, based on Senate Bill 775’s amendments
to section 1170.95, subdivision (d)(3), the superior court can no
longer rely on hearsay evidence that is not subject to a specific
exception to the hearsay rule. Silva specifically challenges the
admissibility of (1) the hearsay testimony in the transcript of
his preliminary hearing, (2) the hearsay statements in his
probation report, and (3) the entirety of the transcript of his
codefendants’ trial because Silva was not a party to that
proceeding.12 Silva further contends that, under the amended
12 In addition to arguing that this evidence now constitutes
inadmissible hearsay under the amendments to section 1170.95,
Silva asserts that admission of the evidence violated his Sixth
Amendment right of confrontation. However, appellate courts
consistently have held that the “ ‘retroactive relief provided by
section 1170.95 reflects an act of lenity by the Legislature “that
does not implicate defendants’ Sixth Amendment rights.” ’ ”
(People v. Silva (2021) 72 Cal.App.5th 505, 520; see, e.g., People v.
James (2021) 63 Cal.App.5th 604, 610; People v. Perez (2020) 54
Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254;
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156.) Although
Senate Bill 775 amended section 1170.95, subdivision (d)(3) to
clarify the scope of evidence that is admissible at the evidentiary
hearing, it did not provide petitioners with the right to confront
27
statute, only the procedural history portion of this court’s
prior opinion in Jorge’s appeal is admissible.
As a threshold matter, Silva forfeited his claims regarding
the admissibility of the evidence by failing to raise any objection
to such evidence at the hearing before the superior court. A
“challenge to the admission of evidence is not preserved for
appeal unless a specific and timely objection was made below.”
(People v. Anderson (2001) 25 Cal.4th 543, 586; Evid. Code, § 353,
subd. (a).) Here, Silva not only failed to object to any of the
evidence below, but he attached some of the evidence about
which he now complains—the probation report and the factual
summary in this court’s prior opinion—to his section 1170.95
petition. He therefore submitted and relied on the very evidence
he now says should have been excluded. Even if his evidentiary
claims had been preserved, however, Silva cannot show any
prejudicial error in the admission of the challenged evidence.13
We need not decide whether the evidence that Silva
seeks to challenge on appeal is no longer admissible under the
amendments to section 1170.95. Assuming arguendo that the
challenged evidence is inadmissible, any error in considering
such material was harmless because the remainder of the
evidence offered against Silva was sufficient to support the
witnesses at that hearing. Silva’s confrontation clause claim thus
fails.
13 In light of our conclusion that admission of the evidence
was harmless, we find it unnecessary to address Silva’s claim
that, to the extent he forfeited his evidentiary challenge on
appeal, his counsel at the section 1170.95 hearing provided
ineffective assistance by failing to object.
28
superior court’s finding that he was guilty of felony murder.
As Silva concedes, the portions of the preliminary hearing
transcript in which the investigating officer related Silva’s own
statements to the police are admissible as a party admission
under an exception to the hearsay rule. (Evid. Code, § 1220
[statement not made inadmissible by hearsay rule when offered
against declarant in action to which he is party].) The officers
also were permitted to testify as to their own personal
observations because such testimony was not hearsay. (Evid.
Code, § 1200 [hearsay is statement made other than by witness
while testifying at hearing and is offered to prove truth of matter
stated].)
As reflected in the preliminary hearing transcript, Silva
gave a detailed interview to the police in which he admitted his
involvement in the robbery. As described by Silva, Aguilera
conceived of the plan to commit the robbery because he had been
“ripped . . . off” in a drug deal at the residence. Aguilera supplied
the weapons used in the crime and waited in the getaway car,
while defendants went inside the home armed with guns. Silva
admitted that he was armed with a “terminator style shotgun,”
and that he fired a shot through the front door. Silva also
admitted that, upon entering the home, he and his companions
encountered a young woman and children, and that they made
the woman take them to different rooms as they searched for
items to take. Silva recounted that, after taking money and
drugs from the home, the group fled in the getaway car with the
police in close pursuit and that he asked Aguilera to stop the car
once he realized the police were there. Aguilera refused and
crashed into another car when he ran a stop sign. Silva further
recounted that, after fleeing on foot to a nearby laundromat
29
where he changed his clothes, he briefly returned to the scene of
the accident “to see what was happening” and then left.
Based on Silva’s own admissions to the police, the superior
court reasonably could find that Silva was a major participant in
the robbery and acted with reckless indifference to human life.
While Silva did not describe the threats made to Barraza inside
the residence, he admitted that he was present in the residence
and in the car for the entire duration of the incident that resulted
in the victims’ death. Silva further admitted that each of the
defendants was armed with a gun, which supported the inference
that they anticipated the residence could be occupied during the
evening and that they planned to use their weapons against the
occupants to facilitate their crime. Silva also admitted that he
fired a shotgun blast through the front door of the residence to
gain entry, which the superior court reasonably could infer placed
the individuals on the other side of the door at grave risk of
harm. Moreover, Silva admitted that, immediately following the
collision, he chose to run from the scene of the accident rather
than aid the victims. On this record, there is no reasonable
probability that Silva would have obtained a more favorable
result on his section 1170.95 petition even if the superior court
had excluded the challenged evidence. Silva accordingly has
failed to satisfy his appellate burden of showing prejudicial error.
30
DISPOSITION
The orders denying the petitions for resentencing filed by
Jorge Antonio Espinoza, Alfredo Sanchez Espinoza, and Antonio
Silva are affirmed.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
31