People v. Loza CA2/3 ( 2022 )

Filed 4/8/22 P. v. Loza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B310731
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA068327)
v.
GILBERT RAYMOND LOZA et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Lee W. Tsao, Judge. Affirmed.
Richard B. Lennon and David Andreasen, under
appointment by the Court of Appeal, for Defendant and Appellant
Gilbert Raymond Loza.
Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant Jaime Jauregui.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel Chang and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
Gilbert Raymond Loza and Jaime Jauregui (defendants)
appeal from orders of the superior court denying their petitions to
vacate their felony-murder convictions after an evidentiary
hearing. Defendants argue that the record does not support the
superior court’s finding that they were major participants in the
crime and acted with reckless indifference to human life. We
disagree with defendants’ arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
A. The crimes committed in 2001
On June 20, 2001, Loza and Jauregui were together with
two other individuals, Claudia Valencia and Primitivo Macias, at
Macias’s home. At Valencia’s suggestion, this group decided to
rob an auto parts store. When they left Macias’s home, Loza took
a black revolver, Jauregui took a silver revolver, and Macias took
an “Uzi-type” gun. Valencia drove the men to the auto parts
store, removing the license plates before driving there.
At the auto parts store, the three men (Loza, Jauregui, and
Macias) took their guns and went to the store’s front door, which
was locked. After trying to unlock the door, they returned to the
car.
Valencia then drove them to a liquor store which was about
three and a half miles away and parked in front. Loza, Jauregui,
and Macias went into the liquor store, each carrying his gun.
Within five minutes, Valencia heard a gunshot. Loza, Jauregui,
and Macias then ran out of the store and got into the car.
Jauregui had taken a case of beer from the liquor store. The
1 We previously granted Loza and Jauregui’s request to
take judicial notice of the record in their direct appeal, including
our unpublished opinion. (Evid. Code, §§ 451-453.)
2
three men were still carrying their guns when they emerged from
the store.
Inside the store, the cash register had been tipped over and
the store clerk, Saiyad Haque, had been shot. Haque died from
gunshot wounds to his head and abdomen. Defendants assert,
and the People do not contest, that Macias—not Loza or
Jauregui—was the shooter.
After the group left the liquor store, Jauregui suggested
they rob a beauty salon. On the way to the beauty salon, Loza
bought three bandannas to use as masks. Valencia then drove
the group to a hair salon which was a few minutes away. The
men covered their faces with the bandannas, took their guns, and
went into the salon. They ordered everyone to lie down on the
floor and demanded money and valuables. Seven people in the
salon were robbed of various items.
When they came out of the building, Jauregui was carrying
a black purse. Valencia drove the group to a friend’s house where
they divided the money.
About 40 minutes elapsed from the attempted robbery at
the auto parts store to the robberies at the salon (a period of time
that included the shooting of Haque at the liquor store).
Nine days later, on the evening of June 29, 2001, Loza and
Jauregui, wearing bandannas, approached Victor Sanchez. Loza
pointed a gun at Sanchez’s head and shoved Sanchez to the hood
of a car as Jauregui took Sanchez’s wallet. Although the wallet
was subsequently returned to Sanchez, $180 was missing.
Two days after that, on July 1, 2001, Loza and another
masked man approached two cousins in a parked car. Loza and
this other man, who had his hand under his sweater as if holding
a gun, took the cousins’ car and a necklace.
3
B. Loza and Jauregui’s convictions in 2003
The People tried Loza and Jauregui on a theory of felony
murder. The jury convicted both Loza and Jauregui of one count
of first degree murder. (Pen. Code,2 § 187, subd. (a).) The jury
also convicted Loza and Jauregui of numerous other counts
relating to the commission of the robberies and carjacking. On
July 18, 2003, the trial court sentenced Loza to 38 years to life in
prison and sentenced Jauregui to 35 years to life in prison. This
court affirmed the judgment. (People v. Jauregui and Loza (July
23, 2004, B168925) [nonpub. opn].)
C. Loza and Jauregui’s petitions for resentencing
On January 4, 2019, Loza filed a petition for resentencing
under section 1170.95. On January 17, 2019, Jauregui filed his
petition for resentencing under the same statute. Both Loza and
Jauregui asserted that they were found guilty of first degree
murder under a theory of felony murder, they were not the actual
killer, and they did not meet the current legal requirements for
felony murder. The superior court found that Loza and Jauregui
made a prima facie case, appointed counsel, and set an
evidentiary hearing.
At the evidentiary hearing, the superior court took judicial
notice of the court file of the underlying conviction, which
included the Court of Appeal decision, the information, the jury
instructions, and the sentencing transcript. No party sought to
introduce additional evidence.
After hearing argument from counsel for the parties, the
superior court denied Loza and Jauregui’s petitions. The court
2 All
further undesignated statutory references are to the
Penal Code.
4
explained its view of the evidence and found that Loza and
Jauregui aided and abetted robbery, that they intended to aid
and abet Macias in committing the robbery, that Macias killed
Haque while committing the robbery, that defendants were major
participants in the robbery, and that when defendants
participated in the robbery, they acted with reckless indifference
to human life. Defendants timely appealed.
DISCUSSION
I. The law of murder and Senate Bill No. 1437
Murder is “the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) Malice may be express
or implied. (§ 188.) Although malice is an element of murder,
when Loza and Jauregui were convicted, the law allowed
defendants who did not act with malice to be liable for murder
under certain circumstances.
Loza and Jauregui were convicted under the felony-murder
doctrine in accordance with section 189. Under prior California
law, every accomplice to an enumerated felony could be convicted
of first degree murder if a death occurred during the commission
of that felony—regardless of whether the accused killed or
intended to kill. (See People v. Dillon (1983) 34 Cal.3d 441, 462–
472.)
The Legislature enacted Senate Bill No. 1437 to “amend
the felony murder rule . . . 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);
see People v. Lewis (2021) 11 Cal.5th 952, 959.) It accomplished
this by amending section 189 “ ‘to restrict the scope of first degree
5
felony murder.’ ” (People v. Eynon (2021) 68 Cal.App.5th 967,
973.)
“Amended section 189 limits the first degree felony-murder
rule by imposing new requirements for its application. The
statute provides that, unless the victim is a peace officer killed in
the line of duty, a defendant cannot be liable for first degree
felony murder unless the defendant was the actual killer, acted
with intent to kill, or was a major participant in the underlying
felony and acted with reckless indifference to human life.”
(People v. Eynon, supra, 68 Cal.App.5th at p. 974.)
II. Section 1170.95
In addition to changing the law of murder prospectively,
Senate Bill No. 1437 gave people who had been convicted under
the now-invalid theory of felony murder the opportunity to
petition for resentencing under newly-enacted section 1170.95.
(Stats. 2018, ch. 1015, § 4.) Section 1170.95, subdivision (a)
describes who may petition for resentencing under the statute.
Subdivision (b) explains what information the petition must
contain, where the petitioner must file it, who the petitioner must
serve, and what the court should do if it is incomplete.
Subdivision (c) describes the process the court uses to determine
whether the petitioner is entitled to an evidentiary hearing.
(People v. Lewis, supra, 11 Cal.5th at p. 962.)
As is relevant here, the statute provides the following with
respect to the evidentiary hearing: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The admission of evidence in the
6
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, and matters judicially
noticed.” (§ 1170.95, subd. (d)(3).)
III. The substantial evidence standard of review applies
to this appeal
We review for substantial evidence the superior court’s
determinations at the section 1170.95, subdivision (d)(3)
evidentiary hearing. (People v. Clements (2022) 75 Cal.App.5th
276, 298; People v. Garrison (2021) 73 Cal.App.5th 735, 747.) At
the evidentiary hearing, the superior court acts as finder of fact
to determine whether the prosecution has proved beyond a
reasonable doubt that a defendant is guilty of murder consistent
with current law. (§ 1170.95, subd. (d)(3).) Here, for example,
the People had the burden to prove to the superior court beyond a
reasonable doubt that Loza and Jauregui were major participants
in the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e)(3).)
We review a trial judge’s fact findings for substantial
evidence. (People v. Gregerson (2011) 202 Cal.App.4th 306, 320.)
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.’ ” (People v.
San Nicolas (2004) 34 Cal.4th 614, 657–658.) Our job on review
is different from the superior court’s job in deciding the petition.
While the superior court judge must review all the relevant
evidence, evaluate and resolve contradictions, and make
7
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. (See
ibid.)
We are aware of no appellate court that has applied a
standard other than substantial evidence in reviewing a denial of
a section 1170.95 petition after an evidentiary hearing.
Moreover, defendants do not appear to disagree with the
proposition that the substantial evidence standard generally
applies. Defendants argue, however, that where (as permitted by
statute) all parties and the superior court rely on the evidence
from the prior conviction, and neither party calls new witnesses,
the standard on review should be de novo on the theory that the
appellate court, like the superior court, can review the same
record and make its own determinations. We do not agree.
Defendants rely on People v. Vivar (2021) 11 Cal.5th 510,
which held at pages 525 to 526 that the standard of review for a
denial of a motion under section 1473.7 was not the deferential
abuse of discretion standard, but rather an independent review of
the record. Vivar’s analysis and the statutory scheme it was
applying were far afield from the situation presented here.
Section 1473.7, subdivision (a)(1), allows a motion to vacate a
conviction on the grounds that there was prejudicial error
damaging the moving party’s ability to understand the actual or
potential adverse immigration consequences of a criminal
conviction. In Vivar, the court adopted a less deferential
standard of review primarily because it considered the questions
at issue there “predominantly questions of law” which should be
reviewed independently. (Vivar, at p. 524.) The court in Vivar
8
noted that nothing in section 1473.7 gave rise to any “reason to
deviate from the template.” (Vivar, at p. 525.) While our
Supreme Court did mention the “cold record” that the trial court
reviews in connection with a section 1473.7 motion as further
support for its decision (Vivar, at pp. 526–527), that was not the
primary reason for its holding.
Defendants’ reliance on People v. Duff (2014) 58 Cal.4th
527 is also unavailing. Duff, at page 551, held that, in the
context of a Miranda3 rights violation, the appellate court defers
to the trial court when it decides disputed facts and inferences,
but independently determines from the undisputed facts, such as
a videotaped confession, whether the challenged statement was
illegally obtained. This holding about how to determine whether
a confession was illegally obtained, which is not solely a factual
question, does not create a general rule of review where a trial
court decides disputed factual issues on a written record.
Nowhere in either case cited by defendants did the
Supreme Court announce a new rule that evidentiary hearings in
which the parties stipulate to proceeding on a written record
receive a less deferential standard of review. Such a rule would
allow the parties to manipulate the standard of review (and
obtain a second chance for de novo determination) by choosing
not to introduce new evidence. Indeed, the recent case of People
v. Clements, supra, 75 Cal.App.5th at page 298, applied a
substantial evidence standard of review even though the parties,
like the parties here, agreed not to introduce live testimony at the
evidentiary hearing.
3 Miranda v. Arizona (1966) 384 U.S. 436.
9
Here, the superior court acted as a trier of fact. It decided
contested factual issues. Defendants and the People had the
opportunity to put on live testimony but chose not to. The
superior court was required to, and did, make factual findings.
Those findings on a disputed factual issue are subject to the
traditional substantial evidence standard of review.
IV. Substantial evidence supports the superior court’s
findings
In People v. Banks (2015) 61 Cal.4th 788 (Banks), the court
described a number of factors that may be considered to
determine whether a defendant is a major participant in the
felony who acts with reckless indifference to life. Banks, at pages
804 to 807, applied these factors in the context of determining
that the getaway driver in that case was not a major participant
in the crime.
The factors discussed by Banks, supra, 61 Cal.4th at
page 803 include: “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 inactions play a particular role
in the death? What did the defendant do after lethal force was
used?” (Fn. omitted.)
In People v. Clark (2016) 63 Cal.4th 522 (Clark), our
Supreme Court turned more specifically to factors that are
relevant to a finding of reckless disregard for human life. Clark,
like Banks, discussed various factors: “Did the defendant use or
know that a gun would be used during the felony? How many
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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 (2020) 9 Cal.5th
667, 677 [listing factors set forth in Clark, at pp. 618–623].) The
Clark factors overlap significantly with the factors in Banks.
A. Loza and Jauregui were major participants in
the robbery
Here, Loza and Jauregui had far more involvement in the
robbery than the getaway driver in Banks. From the start, Loza
and Jauregui were part of the planning of the robbery at Macias’s
house. They agreed with Valencia’s suggestion to rob an auto
parts store. Loza and Jauregui left Macias’s house armed. Their
confederate Macias was openly carrying an “Uzi-type of a gun,” a
particularly violent assault weapon.
Loza and Jauregui were present for all parts of the robbery.
After being unable to rob the auto parts store because its doors
were locked, Loza and Jauregui accompanied Macias to the liquor
store. While Valencia parked in front of the liquor store and
remained in the car, Loza and Jauregui went inside the store
with their guns, accompanying Macias, who they knew was also
armed with a gun. After Haque was shot, Loza and Jauregui
came out of the store with Macias and Valencia drove them away.
Jauregui carried a case of beer from the store.
Loza and Jauregui continued from the liquor store to
another establishment, a beauty salon. It was Jauregui’s idea to
11
rob the salon. Loza purchased bandannas that would be used as
a disguise. At the beauty salon, the three armed men, including
Loza and Jauregui, masked and brandishing their weapons,
ordered the patrons onto the floor and robbed them. Afterwards
the four of them divided the money from the crime.
In short, Loza and Jauregui were involved in every aspect
of the felony: from the planning to their presence at the robbery
that led to Haque’s death, to their subsequent continuation of
their robbery spree, to their division of the monies. (See, e.g., In
re Parrish (2020) 58 Cal.App.5th 539, 543 [defendant who
participated in each stage of robbery was major participant].)
Substantial evidence supports the superior court’s finding that
they were major participants in the crime.
B. Loza and Jauregui acted with reckless
indifference to human life
A finding that Loza and Jauregui were major participants
in the crime is not sufficient to find that Loza and Jauregui acted
with reckless indifference for human life. The cases recognize,
however, that there is an interrelationship and overlap between
the two inquiries. (Clark, supra, 63 Cal.4th at pp. 614–615;
People v. Medina (2016) 245 Cal.App.4th 778, 788.) “[F]actors
demonstrating petitioner’s role as a major participant are highly
relevant to the analysis of whether he acted with reckless
indifference.” (In re Loza (2017) 10 Cal.App.5th 38, 52.)
“Generally, the greater the defendant’s participation in the felony
murder, the more likely he or she acted with reckless indifference
to human life.” (People v. Garcia (2020) 46 Cal.App.5th 123, 147.)
Loza and Jauregui argue that the record does not support a
finding that they acted with reckless indifference to human life.
12
Accordingly, we consider the circumstances of the crime,
including the Banks and Clark factors.
There was significant evidence that Loza and Jauregui
were involved in planning the crime. They were there at the
inception, planning to rob the auto parts store along with
Valencia and Macias. When that was not possible, Loza and
Jauregui were present when the parties determined to go to the
liquor store instead. Valencia drove them “to pull another
robbery because that one was failed.” After the shooting at the
liquor store, Jauregui chose the next target and Loza supplied
the others with bandannas as masks. They shared equally in the
cash obtained from their robberies.
We next consider the factor, “What role did the defendant
have in supplying or using lethal weapons?” (Banks, supra,
61 Cal.4th at p. 803; see In re Scoggins, supra, 9 Cal.5th at p. 677
[describing Clark factor].) Not only did Loza and Jauregui know
their confederate was using an Uzi-type gun, but they were
themselves armed during the robbery that led to Haque’s death.
Their personal use of guns in a robbery at a commercial
establishment supports a finding of reckless indifference to
human life.
Next, what awareness did defendants have “of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants?” (Banks, supra,
61 Cal.4th at p. 803.) Defendants correctly argue that the record
does not contain evidence they knew of Macias’s past conduct or
proclivity for violence. However, both defendants had knowledge
of the dangers posed by the nature of the crime and the weapons
used. They entered a store with Macias carrying an Uzi-type
weapon, i.e., a submachine gun. Valencia identified Macias’s gun
13
as an assault weapon. Moreover, Loza and Jauregui were aware
of the nature of the crime: an armed robbery in broad daylight in
a commercial liquor store at which people were likely to be
present. This was not a time of day that would lessen the risk of
death. (See Clark, supra, 63 Cal.4th at pp. 621–622 [robbery
after hours when no one is present minimizes risk of harm to
human life].)
An important factor relates to defendants’ presence at the
scene of Haque’s murder. “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 inactions play a
particular role in the death?” (Banks, supra, 61 Cal.4th at
p. 803.) Defendants’ presence at the crime scene—while wielding
guns during the shooting of Haque—weighs in favor of a finding
that they acted with reckless indifference to human life.
“Presence at the scene of the murder is a particularly important
aspect of the reckless indifference inquiry.” (People v. Garcia,
supra, 46 Cal.App.5th at p. 148.) As one appellate court noted:
“we are not aware of a single case that concludes a defendant who
personally committed a robbery, used a gun, and was present for
the shooting did not meet” the standards for special
circumstances, including reckless indifference. (People v. Law
(2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020,
S262490.) Similarly, neither Loza nor Jauregui have cited us to
any case where a defendant who personally committed a robbery,
was himself armed with a gun, and was present at the scene of
the shooting was able to obtain the benefit of resentencing under
section 1170.95.
Presence at the crime provides defendants with
opportunities to restrain their cohorts and render aid to wounded
14
victims. (Clark, supra, 63 Cal.4th at p. 619.) Here, Loza and
Jauregui did nothing to aid Haque after he was shot. Instead,
they ran out of the store, leaving him alone, and proceeded to
commit other crimes.
Defendants do not dispute that they were inside the store
at the time of the shooting and ran away after Haque was shot.
Defendants argue, however, that the store might have been too
big to allow them to intervene. This argument is speculative.
This was a neighborhood liquor store with only Haque inside.
The superior court also saw photographs of the inside of the
store. The superior court reasonably found that defendants failed
to aid the victim based on defendants’ presence in the store and
their fleeing after the shooting.
Courts often consider the duration of the crime in
determining whether a defendant exhibited reckless indifference
to human life. (In re Miller (2017) 14 Cal.App.5th 960, 975.)
“Where a victim is held at gunpoint, kidnapped, or otherwise
restrained in the presence of perpetrators for prolonged periods,
‘there is a greater window of opportunity for violence’ [citation],
possibly culminating in murder.” (Clark, supra, 63 Cal.4th at
p. 620.) Here, Macias, Loza and Jauregui were in the store for
only up to five minutes before the shooting, which is not an
extended period and does not by itself militate in favor of a
finding of reckless indifference. However, those five minutes
involved the three armed men alone in a store with their victim,
a situation that provided time enough for escalating violence.
This is not a case where an initial interaction, in which no one
had guns drawn, turned suddenly violent, as is sometimes the
case in crimes of brief duration. (See, e.g., In re Scoggins, supra,
9 Cal.5th at pp. 672, 681 [incident involving shooter suddenly
15
pulling out gun lasted no more than five minutes].) Here, the
entire five minutes involved the opportunity for violence, which
neither Loza nor Jauregui prevented.
Finally: “What did the defendant do after lethal force was
used?” (Banks, supra, 61 Cal.4th at p. 803.) Here, Loza and
Jauregui not only fled and failed to summon aid for Haque but
continued actively pursuing other crimes with Macias, now
known to them to be a killer. Jauregui grabbed beer from the
liquor store at the time he could have been helping the victim.4
Just after the shooting, Jauregui suggested robbing a salon and
Loza got the bandannas to allow them to do so. At the same time
as Haque was lying shot in the liquor store, Loza and Jauregui
were brandishing their guns at beauty salon patrons and
ordering them down on the floor.5 This conduct exhibits a
reckless indifference to human life by Loza and Jauregui.
Jauregui also argues that his age at the time of the crime,
24 years old, tends to negate reckless indifference. He cites In re
Moore (2021) 68 Cal.App.5th 434, in which the defendant was 16
years old. Moore involved different facts and a much younger
defendant. Under the circumstances at issue here, Jauregui’s
age—24 years old—did not negate his reckless indifference to
human life.
4 Jauregui argues that the evidence is unclear and the
person grabbing the beer could have been Loza. There was direct
evidence that the person with the beer was Jauregui, and the
superior court was entitled to credit that evidence.
5Loza and Jauregui also continued their violent crimes
over the next few weeks.
16
Loza and Jauregui’s conduct provided a firm basis for the
superior court to find that defendants acted with reckless
indifference to human life. Substantial evidence supports the
court’s orders denying defendants’ petitions.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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