People v. Torres CA2/2 ( 2024 )

Filed 5/28/24 P. v. Torres CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B322436
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA037099)
v.
RAFAEL TORRES,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Eleanor J. Hunter, Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jonathan J. Kline and Herbert S.
Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Rafael Torres appeals the denial of his petition for
resentencing under Penal Code1 section 1172.6 (former
§ 1170.952) following an evidentiary hearing. Appellant
contends: (1) the superior court violated appellant’s due process
rights to a fair trial by engaging in a lengthy, adversarial and
accusatory cross-examination of appellant during the evidentiary
hearing, thereby crossing the line from neutral arbiter to
advocate for the People; and (2) the evidence is legally
insufficient to support the superior court’s finding that appellant
acted with reckless indifference to human life as a major
participant in the burglary. We reject appellant’s contentions
and affirm the denial of his section 1172.6 petition.
FACTUAL AND PROCEDURAL BACKGROUND3
A. The burglary of the Rhew home and Maria Figueroa’s
murder
Maria Figueroa worked as a live-in housekeeper for the
Rhew family. Around 1:00 in the morning on April 9, 1991, Mr.
and Mrs. Rhew were awakened by a sound coming from Maria’s
bedroom. Mr. Rhew opened his bedroom door and called out to
Maria. He heard her say, “ ‘No, no,’ ” in a terrified voice, and
then heard three gunshots. Moments later Mrs. Rhew told her
husband she saw someone running away from their house.
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 The following factual summary is based on the trial
transcript, which was admitted at the section 1172.6 evidentiary
hearing as court exhibit 1.
2
Mr. Rhew called 911, and police arrived to find Maria lying on
her stomach in the hallway. She had suffered two fatal gunshot
wounds: One bullet penetrated her chest, passed through her
lung, and lodged in her spine; the other bullet struck her back
and appeared to have been fired from close range. There were
two bullet casings on the floor near Maria’s body and another on
the floor in her bedroom. A bullet was embedded in the bedroom
door. All three bullets were determined to have been fired from a
.25-caliber semiautomatic pistol.
Mr. Rhew discovered that his audio system, a stereo
cabinet, and a large television were missing from his living room.
Police found the television and stereo equipment under a
cardboard box in the backyard of a neighboring house and set up
a surveillance post to monitor the area. Around noon on April 9,
1991, officers observed appellant peer over a wall and look in the
direction of the hidden property. Appellant returned around 8:00
that evening. He jumped over the wall, walked directly to the
cardboard box, and began removing the items that had been piled
on top of the box. The officers approached appellant, yelling,
“ ‘Police, stop,’ ” and “ ‘Police officer[s], don’t move.’ ” Appellant
looked at the officers, who were wearing Los Angeles Police
Department windbreakers, and immediately fled. Police set up a
perimeter, and eventually appellant was apprehended and taken
into custody.
As he ran away from the officers, appellant dropped a pair
of canvas gloves. Both gloves tested positive for gunshot residue,
and human blood on the left glove was identified as type
“O”⎯Maria’s blood type. (Appellant’s blood is type “B.”)
In an interview with police, appellant claimed he was at
home all night after 9:00 p.m. on April 8, 1991. The next
3
morning he went to check on some property he was told “had
been stolen by three or four Black dudes.” He explained that he
had returned that night because he was just watching the
property for his friends. He ran away when people with
flashlights burst out and began shouting, but he claimed he did
not know they were police officers.
About an hour into the interview, appellant asked to call
his mother. A detective dialed the number he gave her, handed
him the receiver, and stood by while appellant spoke to someone
on the phone. During the call, another detective overheard
appellant say in Spanish, “ ‘take it out.’ ”
While appellant was being interviewed, his apartment was
under police surveillance. At some point, appellant’s mother, a
sister, and Irving Davila were seen leaving the apartment.
Shortly thereafter, police observed another sister leave the
apartment and walk up the stairwell that led to the roof before
returning to the apartment. Police followed the woman’s path to
the roof, where they found the murder weapon hidden under a
mound of gravel. Appellant continued to deny any knowledge of
a weapon. But after the interview had ended, appellant asked to
speak with police again. This time, appellant said that two of his
friends⎯“Wicked” and “Lamont”⎯had broken into a house about
a block away from appellant’s apartment and needed help
removing the stolen property from the house. Appellant had
helped them remove the property, acted as a lookout, and helped
them hide the stereo equipment under a box. According to
appellant, after they had hidden the stolen property, Wicked and
Lamont decided to go back to the house and line up the residents
to rob them of their jewelry. About 10 minutes later, Wicked
came running back to appellant’s apartment and handed him a
4
small .25-caliber pistol, which he told appellant was “hot.” Davila
instructed appellant to hide the gun, and appellant obliged,
burying it in a bag under some gravel on the roof of his building.
Based on information appellant provided during the
interview, police interviewed Marcus “Wicked” Perryman, his
brother Lamont Perryman, and their mother. Police found no
evidence to support appellant’s claim that either Marcus or
Lamont was in any way involved in the Rhew burglary or Maria’s
murder.
B. The attempted murder of Chang Lee
In December 1989, appellant threatened Chang Lee with
an 18-inch metal pipe and demanded Lee’s money in the parking
garage of Lee’s apartment building. The next day, Lee’s
neighbors caught and restrained appellant in front of the
apartment building. While waiting for police to arrive, appellant
told Lee he was going to kill him. Appellant was charged in
juvenile court with the robbery, and at the adjudication Lee
identified him as the perpetrator. The juvenile court sustained
the petition against appellant. After Lee had testified, appellant
again threatened to kill him.
A year later, on December 4, 1990, Lee heard his car alarm
and went to the parking garage to investigate. As Lee was
inspecting his car he turned to see appellant pointing a gun at
him from behind a low brick wall. Appellant shot Lee in the neck
and arm. Lee identified appellant as the shooter in a
photographic lineup and also at trial.
No expended shell casings from the shooting were found in
the parking garage immediately after the shooting, but a
renewed investigation in March 1992 resulted in the recovery of
two .32-caliber shell casings from the other side of the brick wall.
5
It was later determined that these casings had come from a
.32-caliber Colt semiautomatic pistol.
C. The robbery of Toni Delliquadri
On February 6, 1991, around 8:30 p.m., Toni Delliquadri
pulled her car into the garage at her home. As she opened her
car door, she heard a voice behind her say, “ ‘Don’t fucking
move.’ ” The person instructed her to get out of the car and give
him her purse; if she screamed he would “ ‘blow [her] fucking
brains out.’ ” When Delliquadri handed over the purse, she saw
appellant at the entrance to the garage pointing a gun at her.
With the gun trained on Delliquadri, appellant took the purse,
walked backward down the driveway, and ran away. Delliquadri
identified appellant in a photographic lineup and in court as the
man who had robbed her.
When police searched appellant’s apartment on April 10,
1991, following Maria’s murder, they found Delliquadri’s wallet
hidden behind the sink in the bathroom.
D. The vehicle stop in Beverly Hills
In the early evening of February 9, 1991, two months after
the attempted murder of Lee and three days after the Delliquadri
robbery, Beverly Hills Police Officer Sean Dexter was on patrol
when he observed a Cadillac driving toward him roll through a
stop sign. The officer saw two people in the Cadillac as it drove
past his patrol car. As Officer Dexter was making a U-turn to
conduct a traffic stop, he heard a gunshot from the direction of
the Cadillac. Officer Dexter detained Davila, who was driving,
and appellant, the passenger in the front seat. The officer then
traced the route of the Cadillac and found two handguns and an
expended .380-caliber shell casing near the sidewalk. One was a
loaded .32-caliber Colt semiautomatic pistol, and the other was
6
an Excam .380-caliber semiautomatic pistol. The location of the
guns suggested both had been thrown from the passenger side of
the Cadillac, and the Excam appeared to have discharged on
impact with the ground.
The .32-caliber Colt was later determined to be the firearm
used in the Lee shooting.
E. Appellant’s conviction
Appellant was convicted by jury in 1994 of the first degree
murder of Maria Figueroa (§ 187, subd. (a); count 1), the first
degree residential burglary of the Rhew home (§ 459; count 2),
the second degree robbery of Delliquadri (§ 211; count 3), and the
attempted willful, deliberate and premeditated murder of Lee
(§§ 664/187, subd. (a); count 4). The jury found that the murder
occurred during the commission of a burglary (§ 190.2, subd.
(a)(17)), appellant personally used a firearm during both the
robbery and attempted murder (§ 12022.5), and appellant
intentionally inflicted great bodily injury during the attempted
murder (§ 12022.7). However, the jury found not true the
allegations that appellant personally used a firearm in the
burglary and murder. The trial court sentenced appellant to
state prison for a term of life without the possibility of parole for
the murder, plus 11 years 4 months on counts 2 and 3, plus 7
years to life for the attempted murder.
This Court affirmed the judgment in appellant’s direct
appeal.
F. The section 1172.6 evidentiary hearing and the
superior court’s findings
Appellant filed his petition for resentencing in 2019. At the
evidentiary hearing, appellant testified and the superior court
examined him at length. The court found that appellant had lied
7
throughout his testimony. The superior court concluded that
appellant was a major participant in the burglary who acted with
reckless indifference to human life. In support of the finding, the
court cited its consideration of the trial transcripts, including
appellant’s testimony at the hearing on his suppression motion,
the jury instructions given, the verdict forms, and the
preliminary hearing transcript, as well as its credibility finding.
On that basis, the superior court denied appellant’s section
1172.6 petition for resentencing.
DISCUSSION
I. The Superior Court’s Examination of Appellant
During the Evidentiary Hearing Did Not
Violate Due Process
A. Relevant background
At the evidentiary hearing appellant testified that he had
nothing to do with planning the burglary of the Rhew residence,
but only participated shortly after 11:00 that night by helping to
remove property from the home Davila had already burglarized.
Appellant claimed he heard no voices or gunfire while he was
inside the residence with Davila. He also denied carrying a
firearm that night, but he knew Davila had a loaded gun with
him. Appellant testified he was unaware of Davila hurting
anyone during the burglary or ever using a firearm in the
commission of any crime, and he did not know where Davila had
obtained his gun. Appellant admitted that after removing a
television and stereo equipment from the house, he helped Davila
hide it, but claimed that was the extent of his involvement with
the crime.
On cross-examination, appellant acknowledged the murder
weapon had been found on his roof, but he denied calling his
8
mother or asking anyone to dispose of the gun. Appellant also
disputed that the glove that he dropped had blood and gun
residue on it. He maintained he never went to Maria’s room, and
had no contact or interaction with her at any time that night.
Appellant further denied that he robbed Lee or threatened to kill
him, and asserted that he was falsely accused and convicted of
that robbery. He also denied shooting Lee in the throat.
The superior court then undertook an extensive
examination of appellant during which he admitted lying to the
police, and repeatedly contradicted or disputed evidence
presented at trial. Appellant told the court that “Wicked” was
actually Davila, but he admitted that in trying to “defend[ ]
Irving [Davila],” he had made up Lamont’s involvement and
“creat[ed] stories” about Lamont planning the burglary, going
into the house, stealing the property, and then returning to the
house to commit a robbery. Appellant categorically denied
speaking to anyone on the phone while he was at the police
station, directly contradicting the testimony of two detectives at
trial.
Contrary to the expert testimony at trial, appellant
asserted there was no evidence of any blood on the gloves that
was consistent with the victim’s blood. And although he
admitted there might have been gunshot residue on the gloves,
he also claimed that the gloves belonged to both him and Davila.
As for the firearm evidence, appellant denied that he had
thrown any gun from the Cadillac on February 9, 1991, in the
Beverly Hills incident. He also disputed the testimony of the
prosecution’s expert that the .32-caliber Colt that was thrown
from the car was the same gun used to shoot Lee,
9
asserting⎯contrary to the evidence at trial⎯that no casings were
ever recovered from that shooting.
Appellant also flatly denied robbing Delliquadri at
gunpoint, insisting that Davila was the perpetrator of that crime.
The superior court’s examination of appellant frequently
took on an adversarial tone. The court repeatedly demanded
“yes” or “no” responses, disdainfully expressed disbelief at
appellant’s answers to the court’s questions, and posed
adversarial “were they lying?” questions to challenge appellant to
dispute the evidence at trial or admit he was lying. Finally,
although it acknowledged the jury’s finding that he did not
personally use a firearm, the court nevertheless pressed
appellant to admit that it was he who had murdered Maria.
B. The section 1172.6 evidentiary hearing procedure
Effective January 1, 2019, Senate Bill No. 1437 was
enacted by the Legislature “ ‘to amend 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).) In addition to substantively amending
sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437
added section [1172.6], which provides a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th
952, 959.) Specifically with regard to felony-murder liability,
Senate Bill No. 1437 amended section 189, subdivision (e) to add
the requirement that a defendant who was not the actual killer or
a direct aider and abettor with the intent to kill must have been a
10
major participant in the underlying felony who acted with
reckless indifference to human life. (People v. Strong (2022) 13
Cal.5th 698, 707–708.)
Once a defendant convicted of murder under the old law
has filed a facially sufficient resentencing petition under section
1172.6, the superior court must determine whether the petitioner
has made a prima facie showing of eligibility for relief, and, if so,
issue an order to show cause. (§ 1172.6, subd. (c); People v.
Wilson (2023) 14 Cal.5th 839, 869 (Wilson); People v. Nieber
(2022) 82 Cal.App.5th 458, 469–470.)
The superior court then conducts an evidentiary hearing to
determine whether the petitioner is entitled to relief. (§ 1172.6,
subd. (d)(1).) At that hearing, the superior court sits as the trier
of fact, and the burden of proof rests with the prosecution “ ‘to
prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder’ under the law as amended by
Senate Bill [No.] 1437 (§ 1172.6, subd. (d)(3)).” (Wilson, supra, 14
Cal.5th at p. 869.) “[T]he 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.” (§ 1172.6, subd. (d)(3).) “In
addition to evidence admitted in the petitioner’s prior trial, both
‘[t]he prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.’ ([§ 1172.6,
subd. (d)(3)].) ‘If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.’
(Ibid.)” (Wilson, at p. 869; People v. Hill (2024) 100 Cal.App.5th
1055, 1065–1066 (Hill).)
11
C. The superior court’s aggressive examination of
appellant did not constitute misconduct in the context of
the section 1172.6 evidentiary hearing
Appellant contends that the superior court committed
misconduct and thereby violated his due process rights to a fair
hearing before a fair tribunal by aggressively examining
appellant in a manner that crossed the line from neutral arbiter
to an advocate for the prosecution.4 While we do not endorse the
form the court’s examination took, in the context of an
evidentiary hearing on a petition for relief under section 1172.6,
we find that the court’s examination of appellant did not rise to
the level of judicial misconduct, nor did it deprive appellant of a
fair determination of his eligibility for relief.
4 Respondent contends the claim is forfeited because
appellant did not object to the court’s examination or otherwise
raise an issue of judicial misconduct below. “As a general rule,
judicial misconduct claims are not preserved for appellate review
if no objections were made on those grounds at trial. [Citations.]
However, a defendant’s failure to object does not preclude review
. . . when objecting would be futile.” (People v. Sturm (2006) 37
Cal.4th 1218, 1237.) Here, where the court’s aggressive
examination of appellant filled 31 pages of the reporter’s
transcript compared to the eight pages of direct and cross-
examination by the parties, it appears that any objection by
defense counsel during the court’s examination would have been
futile. (See People v. Sta Ana (2021) 73 Cal.App.5th 44, 55 (Sta
Ana) [“it would be unreasonable under the circumstances here to
require counsel to challenge the court’s own questions as
explicitly or implicitly biased”]; see also People v. Smith (2003) 31
Cal.4th 1207, 1215 [“an appellate court is generally not
prohibited from reaching questions that have not been preserved
for review by a party”].)
12
A trial court has broad authority to “call witnesses and
interrogate them the same as if they had been produced by a
party to the action, and the parties may object to the questions
asked and the evidence adduced the same as if such witnesses
were called and examined by an adverse party.” (Evid. Code,
§ 775; People v. Carlucci (1979) 23 Cal.3d 249, 255 (Carlucci); Sta
Ana, supra, 73 Cal.App.5th at p. 55 [“Inherent in a court’s
authority under Evidence Code section 775 to call witnesses in an
action is the authority to question witnesses called by the
parties”].) Moreover, a trial judge’s authority to question
witnesses extends to cases in which either the court or a jury sits
as the finder of fact. (Carlucci, at p. 255.)
While a trial court has both the discretion and the duty to
ask questions of witnesses, its authority to examine witnesses is
not without limits. (People v. Cook (2006) 39 Cal.4th 566, 597.)
“The court’s questioning must be ‘ “temperate, nonargumentative,
and scrupulously fair,” ’ ” and the court may not “assume the role
of either the prosecution or of the defense.” (Ibid.; see also People
v. Harris (2005) 37 Cal.4th 310, 350 (Harris) [“ ‘The constraints
on the trial judge’s questioning of witnesses in the presence of a
jury are akin to the limitations on the court’s role as
commentator. . . . “The trial court may not . . . usurp the jury’s
ultimate factfinding power” ’ ”]; People v. Williams (2021) 60
Cal.App.5th 191, 203 [“a trial court must avoid asking questions
of a witness in a manner that ‘align[s] . . . with the prosecutor in
the minds of the jury’ ”].)
However, an evidentiary hearing under Penal Code section
1172.6. is not a trial. Rather, this was a proceeding to determine
appellant’s eligibility for resentencing under an ameliorative
state sentencing law. (People v. Vance (2023) 94 Cal.App.5th 706,
13
716 (Vance); People v. Mitchell (2022) 81 Cal.App.5th 575, 589
(Mitchell).) The superior court acted as an independent fact
finder. (People v. Garrison (2021) 73 Cal.App.5th 735, 745
(Garrison).) There was no jury, nor was appellant entitled to one.
(People v. Duran (2022) 84 Cal.App.5th 920, 931 (Duran); People
v. James (2021) 63 Cal.App.5th 604, 611.)
Thus, although section 1172.6, subdivision (d)(3) permits
the parties to present additional evidence including witness
testimony, the usual limitations on the superior court’s
examination of witnesses before a jury or in a criminal
prosecution in which the defendant is presumed innocent until
proven guilty simply do not apply to the evidentiary hearing.
(See, e.g., Vance, supra, 94 Cal.App.5th at p. 716 [“most of the
federal constitutional protections that attend a criminal
conviction do not apply”]; People v. Njoku (2023) 95 Cal.App.5th
27, 44–45 [appellant did “not possess many of the constitutional
rights afforded to a criminal defendant at trial”]; Duran, supra,
84 Cal.App.5th at p. 931 [“the panoply of rights that attach at
trial do not apply during a section 1172.6 evidentiary hearing”];
Mitchell, supra, 81 Cal.App.5th at p. 588 [“Many constitutional
protections that characterize burdensome criminal prosecutions
thus do not apply in this ameliorative process”]; People v. Myles
(2021) 69 Cal.App.5th 688, 706 [“Because a sentence modification
under section [1172.6] is an act of lenity and not a criminal trial,
the wrongful admission of evidence does not implicate
defendant’s constitutional rights under the Fifth Amendment”].)
The determination of appellant’s eligibility for relief under
section 1172.6 required the superior court to decide whether
appellant was a major participant in the burglary who acted with
reckless indifference to human life. Appellant was the only
14
witness to testify at the evidentiary hearing, and he disavowed
any knowledge of a shooting or that anyone had been hurt during
the burglary. No witness at trial identified the shooter or
testified about the circumstances that led to the murder. Thus,
appellant’s credibility was critical to the court’s task of
determining his eligibility for relief. And as the independent
trier of fact in this proceeding, the court was not required to
uncritically accept appellant’s testimony. (See Liteky v. United
States (1994) 510 U.S. 540, 551 [“ ‘Impartiality is not gullibility.
Disinterestedness does not mean child-like innocence. If the
judge did not form judgments of the actors in those court-house
dramas called trials, he could never render decisions’ ”].)
Indeed, the court was obligated to test appellant’s claims
and assess his credibility in order to carry out its responsibilities
under section 1172.6. (People v. Williams (2007) 156 Cal.App.4th
949, 956 [as the trier of fact, it is the court’s duty to determine
the credibility of witnesses]; see Carlucci, supra, 23 Cal.3d at
p. 255 [“it is not merely the right but the duty of a trial judge to
see that the evidence is fully developed before the trier of fact and
to assure that ambiguities and conflicts in the evidence are
resolved insofar as possible”].) Nor was it improper for the court
as the fact finder to comment on appellant’s lack of credibility.
(See Keating v. Superior Court of San Francisco (1955) 45 Cal.2d
440, 444 [“It is the duty of a judge when acting as the trier of the
facts to pass upon the credibility of witnesses, and if he believes
that a party has testified falsely, and chooses to say so rather
than remain silent, he is not disqualified from proceeding to
render judgment”].)
In short, the superior court’s aggressive examination of
appellant did not rise to the level of judicial misconduct in the
15
context of the evidentiary hearing to determine appellant’s
eligibility for relief under section 1172.6.
D. Any error was harmless
Even if the superior court’s examination of appellant
appeared to cross the line from neutral arbiter to advocate for the
prosecution, appellant fails to show actual bias or prejudice.
Reversal is therefore not warranted.
“ ‘[T]he Due Process Clause clearly requires a “fair trial in a
fair tribunal,” [citation], before a judge with no actual bias
against the defendant or interest in the outcome of his particular
case.’ ” (Harris, supra, 37 Cal.4th at p. 346; Sta Ana, supra, 73
Cal.App.5th at p. 55.) Appellant asserts that where, as here,
there is no jury to stand as a buffer between the appearance of
judicial misconduct and a guilty verdict, no showing of prejudice
is necessary, and reversal is required.5 We disagree.
Appellant’s argument that prejudicial error analysis is
irrelevant here incorrectly assumes that even the appearance of
judicial misconduct in any proceeding constitutes structural
error. To be sure, structural defects requiring automatic reversal
of a criminal conviction may include “trial before a judge who is
not impartial.” (In re James F. (2008) 42 Cal.4th 901, 914.) But
as our Supreme Court has explained, “while a showing of actual
5 Appellant cites Catchpole v. Brannon (1995) 36
Cal.App.4th 237, 247, and Hernandez v. Paicius (2003) 109
Cal.App.4th 452, 461, for the proposition that the appearance of
bias alone may violate due process mandating reversal. However,
our Supreme Court has expressly disapproved the language in
these cases that suggests the mere appearance of bias may
establish a due process violation. (People v. Freeman (2010) 47
Cal.4th 993, 1006, fn. 4 (Freeman).)
16
bias is not required for judicial disqualification under the due
process clause, neither is the mere appearance of bias sufficient.
Instead, based on an objective assessment of the circumstances in
the particular case, there must exist ‘ “the probability of actual
bias on the part of the judge or decisionmaker [that] is too high to
be constitutionally tolerable.” ’ ” (Freeman, supra, 47 Cal.4th at
p. 996, quoting Caperton v. A. T. Massey Coal Co. (2009) 556 U.S.
868, 877.)
The doctrine of structural error also does not apply in this
case because, as discussed above, a section 1172.6 evidentiary
hearing does not constitute a criminal trial. (Vance, supra, 94
Cal.App.5th at p. 716; Garrison, supra, 73 Cal.App.5th at p. 746.)
Appellant has already been convicted of murder, and the
proceeding from which he appeals was a hearing to determine his
eligibility for ameliorative relief under state law. For that
reason, the harmless error analysis under People v. Watson
(1956) 46 Cal.2d 818, 836, applies. (People v. Williams, supra, 60
Cal.App.5th at p. 206 [Watson standard applies to determine
whether judicial misconduct was prejudicial], citing Harris,
supra, 37 Cal.4th at p. 351; People v. Oliver (2023) 90 Cal.App.5th
466, 489, fn. 8 [Watson harmless error analysis applied to trial
court error in resolving § 1172.6 petition].)
Under that standard, it is not reasonably probable the
outcome of the evidentiary hearing would have been different in
the absence of the court’s examination of appellant.
The superior court’s findings at the evidentiary hearing
reflect that the court based its ruling on a thorough assessment
of the facts and evidence contained in the trial record rather than
any bias against appellant. The court detailed at length the
evidence it found in support of its conclusion that appellant was a
17
major participant in the burglary who acted with reckless
indifference to human life. That evidence included appellant’s
admissions of his involvement in the burglary, the sophisticated
nature of the crime and the planning required to pull it off,
appellant’s knowledge that Davila had a loaded gun when they
entered the Rhew residence, appellant’s awareness of the dangers
posed by the nature of the crime based on his commission of
attempted murder and other violent offenses involving weapons,
appellant’s failure to prevent the shooting or render aid to Maria
before fleeing the scene, his possession of gloves that were
stained with gunshot residue and blood consistent with the
victim’s blood type, appellant’s flight from the police, and his
attempt to hide the murder weapon.
The court also found that even before appellant took the
stand, his constantly changing stories, denials and admissions to
the police had irreparably damaged his credibility. Even in his
brief testimony on direct and cross-examination at the
evidentiary hearing, appellant contradicted the evidence at trial:
He denied robbing, threatening or shooting Lee, he denied
making a phone call during his interview with police, and he
denied that the glove he dropped had blood and gunshot residue
on it. The court’s examination aside, based upon appellant’s self-
serving testimony in direct conflict with the evidence, the court
reasonably could and did find appellant completely lacking in
credibility.
18
II. Substantial Evidence Supports the Superior
Court’s Finding that Appellant Acted With
Reckless Indifference to Human Life as a Major
Participant in the Burglary
Appellant does not dispute that he was a major participant
in the burglary, but asserts there is no substantial evidence that
he acted with reckless indifference to human life within the
meaning of the Supreme Court’s decisions in People v. Banks
(2015) 61 Cal.4th 788 (Banks), People v. Clark (2016) 63 Cal.4th
522 (Clark), and In re Scoggins (2020) 9 Cal.5th 667 (Scoggins).
We disagree.
“On appeal from the denial of a section 1172.6 petition after
an evidentiary hearing, we review the superior court’s factual
findings for substantial evidence and the court’s application of
the law to those facts de novo. (People v. Wilson (2023) 90
Cal.App.5th 903, 916.) In conducting our review, we consider the
whole record in the light most favorable to the superior court’s
findings (People v. Rivera (2019) 7 Cal.5th 306, 323), and we
presume ‘ “ ‘every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence.’ ” ’ (Id. at
p. 331.)” (Hill, supra, 100 Cal.App.5th at p. 1066.) Our task is to
determine “ ‘whether substantial evidence, defined as reasonable
and credible evidence of solid value, has been disclosed,
permitting the trier of fact to find guilt beyond a reasonable
doubt.’ (People v. Vargas (2020) 9 Cal.5th 793, 820.)” (Hill, at
p. 1066.)
“ ‘Substantial evidence includes circumstantial evidence
and any reasonable inferences drawn from that evidence.’ ”
(People v. Brooks (2017) 3 Cal.5th 1, 57.) Reviewing the whole
record, we must “ ‘ “determine whether any rational trier of fact
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could have found the essential elements of the crime . . . beyond a
reasonable doubt.” ’ ” (Hill, supra, 100 Cal.App.5th at p. 1066.)
“Whether the prosecutor relied upon direct or circumstantial
evidence, if the trier of fact’s determination is supported, reversal
is not warranted, even where ‘ “ ‘the circumstances might also
reasonably be reconciled with a contrary finding.’ ” ’ ” (Ibid.)
In Banks, our Supreme Court identified several factors to
be considered when a court must determine whether a defendant
was a major participant “ ‘in criminal activities known to carry a
grave risk of death.’ ” (Banks, supra, 61 Cal.4th at p. 803.) A
year after Banks, the high court handed down another list of
factors to consider in determining whether a defendant acted
with reckless disregard for human life. (Clark, supra, 63 Cal.4th
at pp. 618–623.) Our Supreme Court has described the mental
state of reckless indifference to human life as “ ‘knowingly
engaging in criminal activities known to carry a grave risk of
death.’ ” (Scoggins, supra, 9 Cal.5th at p. 676, quoting Tison v.
Ariz. (1987) 481 U.S. 137, 157.) This mental state “ ‘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.’ ” (Scoggins, at pp. 676–
677, quoting Clark, supra, 63 Cal.4th at p. 617.)
The Court explained that “[r]eckless indifference to human
life has a subjective and an objective element. (Clark, supra, 63
Cal.4th at p. 617.) As to the subjective element, ‘[t]he defendant
must be aware of and willingly involved in the violent manner in
which the particular offense is committed,’ and he or she must
consciously disregard ‘the significant risk of death his or her
actions create.’ (Banks, supra, 61 Cal.4th at p. 801; see Clark, at
p. 617.) As to the objective element, ‘ “[t]he risk [of death] must
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be of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to
him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in
the actor’s situation.” ’ (Clark, at p. 617, quoting Model Pen.
Code, § 2.02, subd. (2)(c).)” (Scoggins, supra, 9 Cal.5th at p. 677.)
The relevant factors to consider in determining reckless
indifference to human life (which overlap significantly with the
major participant factors identified in Banks) include: “(1) The
defendant’s use of, or awareness of the presence of a weapon or
weapons; (2) The defendant’s physical presence at the crime, and
the opportunities to limit it and/or to aid the victim(s); (3) The
duration of the felony and restraint of the victim(s); (4) The
defendant’s awareness that an associate is likely to kill; and
(5) The defendant’s efforts to minimize the risk of violence during
the course of the felony.” (Hill, supra, 100 Cal.App.5th at
pp. 1074–1075; Clark, supra, 63 Cal.4th at pp. 618–623.) In both
Banks and Clark, our Supreme Court emphasized that “ ‘[n]o one
of these considerations is necessary, nor is any one of them
necessarily sufficient.’ ” (Clark, at p. 618, quoting Banks, supra,61 Cal.4th at p. 803; Scoggins, supra, 9 Cal.5th at p. 677.)
Analyzing the totality of the circumstances (Scoggins,
supra, 9 Cal.5th at p. 677), and applying the Clark factors to the
case at bar, we conclude that substantial evidence supports the
superior court’s finding that appellant acted with reckless
indifference to human life as a major participant in the burglary.
Appellant’s use of or awareness of the presence of a weapon.
Appellant admitted knowing that Davila was armed with a
loaded gun when they entered the victims’ home, because
“[Davila] had always kept a firearm.” Although there was no
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evidence appellant himself was carrying a gun that night, the
evidence at trial revealed that not only did he frequently carry a
gun, but he also used one in committing other violent crimes,
including attempted murder.
Appellant’s physical presence at the crime, and opportunities to
limit its scope, minimize the risk of violence, and/or aid the
victim.
The superior court determined that appellant was a major
participant in the burglary, and appellant does not challenge this
conclusion. In support of the finding, the court reasonably
inferred from appellant’s changing accounts that his description
of the involvement of the fictional “Lamont” was actually a
reference to his own role in the crime. And as the court
explained, the direct and circumstantial evidence supporting the
major participant finding also establishes the major indifference
finding: Appellant was physically present during the burglary
and actively involved in the removal and hiding of the stolen
property. He knew there was at least one loaded gun used in the
crime. And by his own account, the two perpetrators⎯one
completely fictitious⎯returned to the house with the intent to
rob the victims, and one of them executed Maria. After Maria
was shot, appellant did nothing to help her, but instead ran away
and told his family to get rid of the murder weapon, or, as he
claimed, he hid the murder weapon himself.
The duration of the crime.
This was no quick smash and grab burglary, but a carefully
planned operation carried out in silence so as not to wake the
occupants of the home. But the crime did not end there.
According to appellant, after the stolen property was hidden
22
away, the perpetrators returned to the house to line up the
residents and rob them. They then murdered Maria.
The subjective component of reckless indifference to human
life is a mental state which is rarely subject to proof by direct
evidence. In assessing the sufficiency of the evidence supporting
the superior court’s conclusion that appellant acted with reckless
indifference to human life, we accept, as we must, the logical
inferences the court as trier of fact drew from the circumstantial
evidence presented at appellant’s trial. (People v. Combs (2004)
34 Cal.4th 821, 849 [“An appellate court must accept logical
inferences that the [trier of fact] might have drawn from the
evidence even if the [reviewing] court would have concluded
otherwise”].) We therefore conclude that substantial evidence
supports the superior court’s finding that appellant acted with
reckless indifference to human life as a major participant in the
burglary that resulted in the death of a victim.
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DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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