People v. Devine CA2/7 ( 2023 )


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  • Filed 12/7/23 P. v. Devine CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    THE PEOPLE,                                                    B323387
    Plaintiff and Respondent,                            (Los Angeles County
    Super. Ct. No. MA017820)
    v.
    DAVID DEVINE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of
    Los Angeles County, Charlaine F. Olmedo, Judge. Reversed with
    directions.
    Loyola Law School, Juvenile Innocence & Fair Sentencing
    Clinic, Christopher Hawthorne for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Senior
    Assistant Attorney General, Scott A. Taryle, Supervising Deputy
    Attorney General, and Chung L. Mar, Deputy Attorney General,
    for Plaintiff and Respondent.
    INTRODUCTION
    David Devine, who pleaded no contest in 2001 to first
    degree murder, appeals from the superior court’s order following
    an evidentiary hearing denying his petition for resentencing
    under Penal Code section 1172.6.1 Devine argues the superior
    court erred in ruling he could still be convicted of murder as an
    aider and abettor even if he did not intend to kill. Devine also
    argues the court erred in finding he was guilty of felony murder
    without making findings on whether he acted with reckless
    indifference to human life. We agree with Devine on both points.
    Therefore, we reverse the order denying Devine’s petition and
    direct the superior court to conduct a new evidentiary hearing
    under section 1172.6, subdivision (d).
    FACTUAL AND PROCEDURAL BACKGROUND
    A.    Devine Pleads No Contest to One Count of Murder
    In 1998, when Devine was 16 years old, he befriended Mark
    Popp, who shared an apartment with his older brother, James
    Popp. Devine occasionally “hung out” with Mark in the
    apartment and played video games. After spending time with
    Mark one evening in April 1998, Devine left the apartment at
    10:00 p.m. James came home from work between 10:45 and
    11:00 p.m., and Mark left about five minutes later.
    Later that night Devine was drinking with Fidel Castro,
    who was 22 years old, in a parking lot near Castro’s car. Castro
    had recently been released from prison. Devine and Castro did
    1    Statutory references are to the Penal Code.
    2
    not know each other well, but Devine was familiar with Castro’s
    gang because Devine sold items he had stolen to members of the
    gang.2 Devine told Castro that Mark sold marijuana. Castro
    said, “Why don’t we go over there, buy some drinks and, you
    know, drink with him, smoke with him or whatnot.” Devine
    agreed. Castro said, “When we get him nice and, you know,
    drunk, we’ll take their stuff while they’re drunk and not even
    looking.”3
    Devine had a pocketknife with him that belonged to a
    member of Castro’s gang. He had been carrying it for two weeks.
    Devine “probably” told Castro he would take the knife with him
    and use it.
    Devine took Castro to the Popps’ apartment and knocked
    on the door. When James opened the door, Devine and Castro
    walked in. James asked, “What are you doing in my house?”
    James said he was going to call the police and picked up a
    cordless phone,4 but Castro grabbed it and removed the batteries.
    2     Devine later told sheriff’s deputies that he did not know
    Castro’s name, but that he knew him as “Wacko” and that they
    had “been kicking it for a little bit.” In his parole hearing, Castro
    said that, at the time of the crime, he was “fresh out of jail” and
    did not know Devine before that night.
    3     Devine initially told sheriff’s deputies it was Castro who
    suggested going to Mark’s apartment and stealing from him.
    Later in the interview, Devine said that the idea “came from both
    of our mouths” and that he did not remember who said it first.
    4    A cordless telephone is “a two-way, low power
    communication system consisting of two parts, a ‘base’ unit which
    connects to the public switched telephone network and a handset
    3
    Devine asked James where Mark was and when he was coming
    back.
    Castro went into the kitchen and returned with a knife.
    Castro held James against a wall, pointed the knife at him, and
    told him to shut up. James asked, “Are you going to kill me?”
    Castro began to choke James. Castro told Devine to “go ahead
    and get it,” and Devine went to the entertainment center and
    tried to remove the video game console.5 As Castro struggled
    with James, Castro called to Devine, “help me, help me,” and
    Devine ran over and hit James two or three times and kicked him
    once. Devine returned to the game console as Castro and James
    struggled on the floor.
    While Devine was trying to remove the game console, he
    saw Castro stabbing James. Devine saw blood and “started
    getting shaky.” Castro left to wash his hands. Mark returned to
    the apartment, and Devine heard the front door begin to open,
    which made him drop the game console. Castro pushed the door
    closed and said, “It’s time to go.” When Mark was able to open
    the door, he saw Castro trying to run away and Devine crouching
    and trying to remove the video game console. Mark asked
    or ‘remote’ unit, that are connected by a radio link and authorized
    by the Federal Communications Commission to operate in the
    frequency bandwidths reserved for cordless telephones.” (§ 632.7,
    subd. (c)(2); see Smith v. LoanMe, Inc. (2021) 
    11 Cal.5th 183
    , 192,
    fn. 3.)
    5     “Video game consoles are consumer devices designed for,
    and whose primary use is, to play video games.” (Federal Trade
    Commission v. Microsoft Corp. (2023) ___ F.Supp.4th ___, ___
    (N.D. Cal., July 10, 2023, No. 23-CV-02880-JSC) [
    2023 WL 4443412
    , p. 2].)
    4
    Devine, “What the fuck is going on?” and Devine “put up his
    hands like [he] didn’t know.” Mark saw James lying in a pool of
    blood 12-15 feet from the entertainment center and saw Castro
    with a red rag on one of his hands.
    Castro and Devine fled through the door. Devine ran and
    hid in Castro’s car. A friend of Castro’s saw Devine in the car,
    told Devine to get into his car, and drove Devine to meet Castro’s
    brother and friends, who wanted to know what had happened.
    Castro’s friends told Devine to tell police he acted in self-defense.
    The person who loaned Devine the pocketknife told him to “get
    rid of that right now.” Devine returned the knife to its owner,
    who threw it away. Castro’s brother and friends drove Devine to
    the bus station, where he was arrested.
    James died from multiple sharp force injuries.
    Investigators discovered a large steak knife covered in blood and
    wrapped in a towel on the dining room table of the apartment.
    The People charged Devine with one count of murder
    (§ 187, subd. (a)), one count of first degree residential burglary
    (§ 459), and one count of attempted first degree residential
    robbery (§§ 211, 664). The People alleged as a special
    circumstance that the murder was committed while Devine was
    committing or attempting to commit residential burglary and
    attempted residential robbery, within the meaning of
    section 190.2, subdivision (a)(17).
    Devine pleaded no contest to first degree murder. The trial
    court dismissed the remaining counts and allegations and
    sentenced Devine to a prison term of 25 years to life.
    5
    B.      The Superior Court Denies Devine’s Petition Under
    Section 1172.6
    In February 2019 Devine filed a petition for resentencing
    under former section 1170.95, now section 1172.6. The People
    conceded Devine was not ineligible as a matter of law, and the
    superior court issued an order to show cause. At the evidentiary
    hearing, the court stated it had reviewed the preliminary hearing
    transcript. The court admitted the preliminary hearing
    transcript, the transcript of the deputies’ interview with Devine,
    several minute orders, and the transcript of Devine’s 2021 parole
    board hearing. The court also admitted, at Devine’s request, an
    excerpt from the transcript of Castro’s 2022 parole board hearing.
    The prosecutor argued Devine could still be convicted of
    murder as a principal who directly aided and abetted the murder
    and under the felony-murder rule as a major participant in a
    residential robbery who acted with reckless indifference to
    human life. Counsel for Devine argued there was insufficient
    evidence to prove beyond a reasonable doubt that Devine aided
    and abetted the murder or that he was a major participant in a
    robbery who acted with reckless indifference to human life.
    The superior court denied Devine’s petition. The court
    found Devine could still be convicted of first degree murder
    because the People proved beyond a reasonable doubt he was
    “a direct aider and abettor” and because, “aside from aiding and
    abetting, if the court is incorrect on that, the Banks factors for a
    major participant are met in this case.” Devine timely appealed.
    6
    DISCUSSION
    A.    Section 1172.6
    Effective 2019, the Legislature substantially modified the
    law governing accomplice liability for murder, eliminating the
    natural and probable consequences doctrine as a basis for finding
    a defendant guilty of murder (People v. Reyes (2023) 
    14 Cal.5th 981
    , 986; People v. Gentile (2020) 
    10 Cal.5th 830
    , 842-843) and
    significantly narrowing the felony-murder exception to the malice
    requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see
    People v. Strong (2022) 
    13 Cal.5th 698
    , 707-708; People v. Lewis
    (2021) 
    11 Cal.5th 952
    , 957). Section 188, subdivision (a)(3), now
    prohibits imputing malice based solely on an individual’s
    participation in a crime and requires proof of malice to convict a
    principal of murder, except under the revised felony-murder rule
    in section 189, subdivision (e). The latter provision requires the
    People to prove specific facts relating to the defendant’s
    culpability: The defendant was the actual killer (§ 189,
    subd. (e)(1)); the defendant, though not the actual killer, with the
    intent to kill assisted in the commission of the murder (§ 189,
    subd. (e)(2)); or the defendant was a major participant in a felony
    listed in section 189, subdivision (a), and acted with reckless
    indifference to human life, “as described in subdivision (d) of
    Section 190.2,” the felony-murder special-circumstance provision.
    (§ 189, subd. (e)(3); see Strong, at p. 708; Gentile, at p. 842.)
    Section 1172.6 authorizes an individual convicted of felony
    murder or murder based on the natural and probable
    consequences doctrine to petition the superior court to vacate the
    conviction and be resentenced on any remaining counts, if he or
    she could not now be convicted of murder because of the changes
    7
    the Legislature made effective 2019 to the definitions of the
    crime. (See People v. Strong, supra, 13 Cal.5th at p. 708; People
    v. Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile, supra,
    10 Cal.5th at p. 843.) If a section 1172.6 petition contains all the
    required information, the court must appoint counsel to represent
    the petitioner, if requested. (Lewis, at pp. 962-963; see § 1172.6,
    subd. (b)(1)(A), (3).) The prosecutor must then file a response to
    the petition, the petitioner may file a reply, and the court must
    hold a hearing to determine whether the petitioner has made a
    prima facie showing he or she is entitled to relief. (§ 1172.6,
    subd. (c).)
    Where, as here, the petitioner has made the requisite
    prima facie showing he or she is entitled to relief under
    section 1172.6, the court must issue an order to show cause and
    hold an evidentiary hearing to determine whether to vacate the
    murder conviction and resentence the petitioner on any
    remaining counts. (§ 1172.6, subd. (d)(1).) At that hearing the
    court may consider evidence “previously admitted at any prior
    hearing or trial that is admissible under current law,” including
    witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and
    the prosecutor may also offer new or additional evidence. (Ibid.;
    see People v. Gentile, supra, 10 Cal.5th at pp. 853-854.)
    On appeal from an order denying a petition under
    section 1172.6, we review the superior court’s factual findings for
    substantial evidence. (People v. Guiffreda (2023) 
    87 Cal.App.5th 112
    , 125; People v. Richardson (2022) 
    79 Cal.App.5th 1085
    , 1090.)
    “In reviewing the trial court’s findings for substantial evidence,
    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
    8
    solid value that would support a rational trier of fact in finding
    [the necessary fact] beyond a reasonable doubt. . . . While the
    trial judge must review all the relevant evidence, evaluate and
    resolve contradictions, and make determinations as to credibility,
    all under the reasonable doubt standard, our job is to determine
    whether there is any substantial evidence, contradicted or
    uncontradicted, to support a rational fact finder’s findings beyond
    a reasonable doubt.” (People v. Pittman (2023) 
    96 Cal.App.5th 400
    , 414, internal quotation marks omitted; see Guiffreda, at
    p. 125; People v. Clements (2022) 
    75 Cal.App.5th 276
    , 298.)
    “‘“Substantial evidence includes circumstantial evidence and any
    reasonable inferences drawn from that evidence.”’” (People v.
    Navarro (2021) 
    12 Cal.5th 285
    , 339; see People v. Brooks (2017)
    
    3 Cal.5th 1
    , 57; People v. Nieber (2022) 
    82 Cal.App.5th 458
    , 476.)
    “But where there is an issue as to whether the trial court
    misunderstood the elements of the applicable offense, the case
    presents a question of law which we review independently.”
    (People v. Reyes, supra, 14 Cal.5th at p. 988.)
    B.    The Superior Court Erred in Finding Devine Directly
    Aided and Abetted Murder
    Devine argues the superior court misapplied the law in
    finding Devine aided and abetted the murder without finding he
    intended to kill. Devine is correct.
    1.    Applicable Law
    “A person who aids and abets the commission of a crime is
    culpable as a principal in that crime.” (People v. Gentile, supra,
    10 Cal.5th at p. 843; see People v. Powell (2021) 
    63 Cal.App.5th 689
    , 712.) “‘[U]nder direct aiding and abetting principles, an
    accomplice is guilty of an offense perpetrated by another [e.g.,
    9
    murder] if the accomplice aids the commission of that offense
    with “knowledge of the direct perpetrator’s unlawful intent and
    [with] an intent to assist in achieving those unlawful ends.”’”
    (People v. Curiel (Nov. 27, 2023, S272238) ___ Cal.5th ___, ___
    [
    2023 WL 8178140
    , p. 15]; Gentile, at p. 843.) Thus, a direct
    aider and abettor’s guilt is “‘based on a combination of the direct
    perpetrator’s acts and the aider and abettor’s own acts and own
    mental state.’” (Powell, at p. 710; see People v. McCoy (2001)
    
    25 Cal.4th 1111
    , 1117.) “‘[P]roof of aider and abettor liability
    requires proof in three distinct areas: (a) the direct perpetrator’s
    actus reus—a crime committed by the direct perpetrator, (b) the
    aider and abettor’s mens rea—knowledge of the direct
    perpetrator’s unlawful intent and an intent to assist in achieving
    those unlawful ends, and (c) the aider and abettor’s actus reus—
    conduct by the aider and abettor that in fact assists the
    achievement of the crime.’” (People v. Vargas (2022)
    
    84 Cal.App.5th 943
    , 953-954; see Curiel, at p. ___ [p. 18].)
    2.     The Superior Court Did Not Find Devine Acted
    with the Intent To Kill
    Focusing on the actus reus element, the superior court
    found Devine engaged in several acts that assisted Castro in
    killing James. The court found Devine was involved “in the
    planning details of the home invasion robbery,” was “at the
    location with his own weapon,” and helped Castro “physically
    overcome” James by punching him “in the face and the eye.” On
    the mens rea element, the court found Devine’s statement to
    10
    sheriff’s deputies showed “intent . . . to directly aid and abet.”6
    That was insufficient. To find Devine directly aided and abetted
    murder with express malice, the court had to find that Devine
    knew Castro intended to kill James and that Devine shared that
    intent. (See People v. Maciel (2013) 
    57 Cal.4th 482
    , 518 [an
    “‘aider and abettor’s mental state must be at least that required
    of the direct perpetrator,’ and when the crime is murder, the
    ‘aider and abettor must know and share the murderous intent of
    the actual perpetrator’”]; People v. Offley (2020) 
    48 Cal.App.5th 588
    , 596 [same]; see also People v. Gentile, supra, 10 Cal.5th at
    p. 848 [a “direct aider and abettor to murder must possess malice
    aforethought”].) Because the superior court did not find Devine
    intended to kill, the court erred in finding he directly aided and
    abetted James’s murder.
    3.    The Superior Court Did Not Find Devine Aided
    and Abetted Implied Malice Murder
    The People do not challenge Devine’s contention the
    superior court did not find he intended to kill. Instead, the
    People argue the court properly denied Devine’s petition because
    under current law he can be guilty of second degree murder for
    directly aiding and abetting implied malice murder, which does
    not require the intent to kill.
    Murder is the unlawful killing of a human being with
    malice aforethought. (§ 187, subd. (a).) Malice “may be express
    6      Although the court did not specify what portion of Devine’s
    interview it was referring to, the court may have had in mind
    Devine’s statement he “probably” told Castro something to the
    effect that he was going to take the pocketknife with him and use
    it.
    11
    or implied.” (§ 188, subd. (a).) “It is express when there is a
    manifest intent to kill.” (People v. Gentile, supra, 10 Cal.5th at
    p. 844; see § 189, subd. (a)(1).) “Murder is committed with
    implied malice when ‘the killing is proximately caused by
    “‘an act, the natural consequences of which are dangerous to life,
    which act was deliberately performed by a person who knows
    that his conduct endangers the life of another and who acts with
    conscious disregard for life.’”’” (People v. Reyes, supra, 14 Cal.5th
    at p. 988; see People v. Pittman, supra, 96 Cal.App.5th at p. 414.)
    “In short, implied malice requires a defendant’s awareness of
    engaging in conduct that endangers the life of another—no more,
    and no less.” (People v. Knoller (2007) 
    41 Cal.4th 139
    , 143;
    accord, People v. Cravens (2012) 
    53 Cal.4th 500
    , 507; People v.
    Palomar (2020) 
    44 Cal.App.5th 969
    , 974.)
    Aiding and abetting implied malice murder remains a valid
    theory of liability for second degree murder, even after the
    Legislature eliminated natural and probable consequences
    liability for murder. (See People v. Reyes, supra, 14 Cal.5th at
    p. 990; People v. Gentile, supra, 10 Cal.5th at p. 850; People v.
    Glukhoy (2022) 
    77 Cal.App.5th 576
    , 588.) “‘[T]o be liable for an
    implied malice murder, the direct aider and abettor must, by
    words or conduct, aid the commission of the life-endangering act,
    not the result of that act. The mens rea, which must be
    personally harbored by the direct aider and abettor, is knowledge
    that the perpetrator intended to commit the act, intent to aid the
    perpetrator in the commission of the act, knowledge that the act
    is dangerous to human life, and acting in conscious disregard for
    human life.’” (Reyes, at p. 991; see People v. Curiel, supra, ___
    Cal.5th at p. ___ [p. 15]; People v. Pittman, supra, 96 Cal.App.5th
    at p. 415.) An “‘aider and abettor who does not expressly intend
    12
    to aid a killing can still be convicted of second degree murder if
    the person knows that his or her conduct endangers the life of
    another and acts with conscious disregard for life.’” (Reyes, at
    p. 990; see Gentile, at p. 850.) “The requisite intent is a
    subjective one—the defendant must have ‘“actually appreciated
    the risk involved.”’” (People v. Superior Court (Valenzuela) (2021)
    
    73 Cal.App.5th 485
    , 501; see, e.g., People v. Guillen (2014)
    
    227 Cal.App.4th 934
    , 991 [the defendant’s conduct and
    statements demonstrated he was subjectively aware his conduct
    was dangerous to the victim’s life].)
    The problem with the People’s argument is that, at the
    evidentiary hearing, the prosecutor never argued Devine was
    guilty of second degree murder for aiding and abetting implied
    malice murder. Nor did the superior court find Devine guilty
    under that theory. To find Devine guilty of aiding and abetting
    implied malice murder, the superior court would have had to find
    that Devine knew Castro intended to attack James, that Devine
    intended to aid Castro in attacking James, that Devine knew the
    attack was dangerous to human life, and that Devine acted in
    conscious disregard for human life. (See People v. Reyes, supra,
    14 Cal.5th at p. 991; People v. Pittman, supra, 96 Cal.App.5th at
    p. 414.) The People argue Devine’s statement to Castro that he
    was prepared to use the pocketknife “reflected a willingness to
    use lethal violence, which in turn demonstrated a conscious
    disregard for life.”7 But that is an argument properly directed to
    7     Devine correctly points out that, although at the
    evidentiary hearing the People relied heavily on the statement
    about the pocketknife as evidence Devine acted with malice and
    reckless indifference to human life (which the People continue to
    13
    the superior court and should have been made at the evidentiary
    hearing. Because neither the parties nor the court addressed
    Devine’s potential liability under an implied malice theory, we
    cannot say the court made an implied finding Devine acted in
    conscious disregard for human life.
    The cases on which the People rely are distinguishable
    because in those cases the superior court at the evidentiary
    hearing found the defendant guilty of aiding and abetting implied
    malice murder. For example, in People v. Didyavong (2023)
    
    90 Cal.App.5th 85
    , a jury convicted the defendant of first degree
    murder. (Id. at p. 92.) At the evidentiary hearing on the
    defendant’s petition under section 1172.6, the prosecutor argued
    the defendant could be guilty as an aider and abettor of either
    first degree murder or second degree implied malice murder.
    (Id. at p. 93.) The superior court in Didyavong ruled “the People
    proved beyond a reasonable doubt that [the defendant] was guilty
    of murder as an aider and abettor under an implied malice
    theory.” (Ibid.) In People v. Vizcarra (2022) 
    84 Cal.App.5th 377
    ,
    argue on appeal), Devine’s statement was not an unqualified
    admission he intended to stab someone. Sheriff’s deputies asked
    Devine several times about the pocketknife. Devine said that he
    did not show the pocketknife to Castro and that he did not take it
    out of his pocket until after he fled the Popps’ apartment. The
    fourth time the deputies returned to the topic of the pocketknife,
    they asked Devine, “Did you ever tell [Castro] that this—you
    were going to use this knife—take it with you and use it. This is
    what you were going to take with you? Something to that effect?”
    Devine answered, “I probably did.” Moreover, as Devine argues,
    it is not clear he understood “using” the knife meant anything
    more than “carry[ing] something for protection,” which is how the
    deputies had previously referred to the knife.
    14
    a jury found the defendant guilty of second degree murder. At
    the evidentiary hearing on the defendant’s petition under
    section 1172.6, the superior court found the defendant “directly
    aided and abetted an implied malice murder.” (Id. at p. 382; see
    People v. Vargas, supra, 84 Cal.App.5th at p. 954 [superior court
    did not err in denying a section 1172.6 petition after finding the
    defendant, who had been convicted of second degree murder,
    acted with implied malice in aiding and abetting the murder].)
    In contrast, the superior court here did not find the People proved
    beyond a reasonable doubt (or at all) the elements of aiding and
    abetting implied malice murder, and thus the court could not
    have denied Devine’s petition on that theory. (See § 1172.6,
    subd. (d)(3) [at the evidentiary hearing “the burden of proof shall
    be on the prosecution to prove, beyond a reasonable doubt, that
    the petitioner is guilty of murder”]; People v. Strong, supra,
    13 Cal.5th at p. 709.)
    C.    The Superior Court’s Findings Were Insufficient
    To Convict Devine of Felony Murder Under Current
    Law
    1.    Factors for Determining Whether a Defendant
    Was a Major Participant and Acted with
    Reckless Indifference to Human Life
    As discussed, section 189, subdivision (e)(3), provides that a
    participant in one of the felonies listed in section 189,
    subdivision (a) (which include robbery, burglary, and their
    attempts), may be liable for murder if the prosecution proves he
    or she “was a major participant in the underlying felony and
    acted with reckless indifference to human life,” within the
    15
    meaning of section 190.2, subdivision (d). (See People v. Strong,
    supra, 13 Cal.5th at p. 708; People v. Gentile, supra, 10 Cal.5th at
    pp. 842-843.) The Supreme Court in People v. Banks (2015)
    
    61 Cal.4th 788
     (Banks) and People v. Clark (2016) 
    63 Cal.4th 522
    (Clark) “clarified the meaning of the special circumstances
    statute.” (In re Scoggins (2020) 
    9 Cal.5th 667
    , 676; see People v.
    Ramirez (2021) 
    71 Cal.App.5th 970
    , 987.)
    Among the factors that “may play a role in determining
    whether a defendant’s culpability is sufficient” for a finding he or
    she was a major participant under section 190.2, subdivision (d),
    are: “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, supra, 61 Cal.4th at p. 803,
    fn. omitted; see People v. Mitchell (2022) 
    81 Cal.App.5th 575
    , 591;
    People v. Ramirez, supra, 71 Cal.App.5th at p. 986, fn. 10.)
    “Reckless indifference to human life has a subjective and
    an objective element. [Citation.] 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.’ [Citations.] As to the objective
    element, ‘“[t]he risk [of death] must be of such a nature and
    degree that, considering the nature and purpose of the actor’s
    16
    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.”’” (In re Scoggins, supra, 9 Cal.5th at p. 677; see People
    v. Keel (2022) 
    84 Cal.App.5th 546
    , 557.) “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 constitutional minimum.” (Banks, 
    supra,
     61 Cal.4th
    at p. 808.)
    To determine whether a defendant acted with reckless
    indifference to human life under section 190.2, subdivision (d),
    courts consider, among other factors, the following: “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; see Clark, 
    supra,
     63 Cal.4th
    at pp. 618-623.) In addition, “a defendant’s youth at the time of
    the offense should be a factor in determining whether that
    defendant acted with reckless indifference to human life.” (In re
    Moore (2021) 
    68 Cal.App.5th 434
    , 439; see People v. Mitchell,
    supra, 81 Cal.App.5th at p. 595 [“[y]outh can distort risk
    calculations”]; People v. Ramirez, supra, 71 Cal.App.5th at p. 990
    [a defendant’s youth “greatly diminishes any inference he acted
    with reckless disregard for human life”].)
    17
    2.        The Superior Court Failed To Make Findings
    on Whether Devine Acted with Reckless
    Indifference to Human Life
    At the evidentiary hearing the prosecutor argued that,
    under the Banks factors, Devine was a major participant in the
    robbery. The prosecutor argued that Devine planned a “home
    invasion”; that he went to the Popps’ apartment with Castro, “a
    violent gang member”; that he brought a pocketknife; and that he
    saw Castro choking James. The prosecutor further argued that
    Devine helped subdue James by punching and kicking him, that
    Devine did nothing to help James, and that, after Castro stabbed
    James, Devine fled and got rid of the pocketknife. Counsel for
    Devine argued Devine was not a major participant because
    Devine and Castro spontaneously came up with the idea to rob
    the Popps, Devine played no role in supplying the murder
    weapon, and Devine did not know Castro was violent. Counsel
    further argued that, once Devine realized Castro was using lethal
    force, he ran away without helping Castro.
    The prosecutor also argued Devine exhibited reckless
    indifference to human life under the Clark factors. The
    prosecutor argued that Devine brought a pocketknife and said he
    was ready to use it, that Devine saw Castro get a knife from the
    kitchen, and that Devine was present when Castro stabbed
    James. The prosecutor further argued that the attack was not a
    quick drive-by shooting, but was “protracted” and lasted between
    10 and 30 minutes, which gave Devine “time to reflect.” Finally,
    the prosecutor argued Devine did nothing to minimize the
    violence, even though he knew Castro was a gang member and
    likely to kill, they were planning to steal drugs, and they knew
    18
    someone was home. Counsel for Devine did not directly address
    the Clark factors, but argued Devine’s youth affected his “ability
    to gauge consequences in terms of reckless indifference and his
    ability to determine outcome and consequences.”
    The court focused on whether under Banks Devine was a
    major participant in the robbery. During the hearing, the court
    asked counsel for Devine to address the Banks factors for major
    participation. And when ruling on the petition, the court
    discussed the evidence regarding each of the Banks factors. The
    court stated that Devine was involved in planning the details of
    the robbery, that he brought a weapon (“albeit it was not one that
    was used”) to the scene, that Devine was actively involved in
    taking the video game system, and that he hit James. The court
    also found Devine’s statement to sheriff’s deputies showed “he
    acted as a major participant.” The court added that Devine was
    “present” and “continued his conduct” during the entire stabbing,
    which was “more personal” and “takes longer than a shooting.”
    The court concluded “the Banks factors for a major participant
    are met in this case.”
    In contrast to its careful analysis of the factors supporting
    its finding Devine was a major participant in the underlying
    felony, the court made no finding Devine acted with reckless
    indifference to human life. Although the “major participant” and
    “reckless indifference” requirements overlap to some extent, they
    are separate, and the People must prove both beyond a
    reasonable doubt. (Clark, supra, 63 Cal.4th at p. 615; see Banks,
    
    supra,
     61 Cal.4th at p. 810, fn. 9 [a major participant in an armed
    robbery that results in a death does not necessarily exhibit
    reckless indifference to human life].) In the absence of such a
    19
    finding, the superior court erred in finding Devine guilty of felony
    murder under current law.
    The People argue that the court did not have to “expressly”
    find Devine acted with reckless indifference to human life and
    that during the evidentiary hearing both sides “heavily
    addressed” the reckless indifference requirement and the Banks
    and Clark factors. It is true the parties (and the court) addressed
    the Banks factors for determining whether Devine was a major
    participant in the robbery. But that is not true for the Clark
    factors for determining whether Devine acted with reckless
    indifference to human life. Although the prosecutor discussed the
    Clark factors, counsel for Devine did not, other than to mention
    Devine’s youth. More important, the court did not mention the
    reckless indifference requirement or analyze Devine’s conduct in
    light of the Clark factors. Thus, we cannot conclude the superior
    court impliedly found Devine acted with reckless indifference to
    human life. Nor, given the evidence to the contrary, can we
    presume the superior court knew and applied “the correct
    statutory and case law.” (People v. Ramirez (2021) 
    10 Cal.5th 983
    , 1042.)
    D.   The Superior Court’s Errors Were Not Harmless
    The People argue any error was harmless because
    “compelling evidence demonstrated that [Devine] acted with
    conscious disregard for life under an implied malice theory, and
    that he acted with reckless indifference to life under a felony
    murder theory.” In evaluating whether error in ruling on a
    petition under section 1172.6 is harmless, the reviewing court
    considers whether under the standard in People v. Watson (1956)
    
    46 Cal.2d 818
    , 836 (Watson) it is reasonably probable the superior
    20
    court would have granted Devine’s petition in the absence of
    error.8 “‘A “reasonable probability” “does not mean more likely
    than not, but merely a reasonable chance, more than an abstract
    possibility.”’” (People v. Pittman, supra, 96 Cal.App.5th at p. 418;
    see People v. Hardy (2021) 
    65 Cal.App.5th 312
    , 329.)
    1.   Implied Malice Murder
    Was it reasonably probable the superior court would have
    granted Devine’s petition had it considered and made express
    findings on whether Devine acted with implied malice in aiding
    and abetting murder? Yes.
    To be sure, there was evidence to support an inference
    Devine acted with implied malice. Devine saw Castro get the
    knife from the kitchen and point it at James. When Castro asked
    Devine to help subdue James, Devine complied with force.
    Devine told sheriff’s deputies that he heard James ask Castro
    whether he was going to kill him (i.e., James) and that he
    thought Castro was going to choke James to death. Devine also
    told sheriff’s deputies he “probably” told Castro he was going to
    bring and use the pocketknife. This evidence could support
    findings that Devine knew Castro’s actions endangered James’s
    8      Although Devine contends we should apply the federal
    harmless error standard in Chapman v. California (1967)
    
    386 U.S. 18
    , 24, it is the state law standard in Watson that
    applies. (See People v. Oliver (2023) 
    90 Cal.App.5th 466
    , 489,
    fn. 8 [Watson harmless error standard applies to the superior
    court’s failure to consider evidence in deciding whether the
    defendant was a major participant who acted with reckless
    indifference to human life]; People v. Myles (2021) 
    69 Cal.App.5th 688
    , 706 [Watson harmless error standard applies to evidentiary
    errors at an evidentiary hearing under section 1172.6].)
    21
    life, that Devine intended to aid Castro in a dangerous attack,
    and that Devine acted in conscious disregard for human life.
    But there was also evidence to support an inference Devine
    did not act with implied malice. Devine and Castro planned to
    commit an unarmed robbery. Devine told investigators Castro
    suggested to him, “Let’s drink with them and smoke weed with
    them, and then when they get all faded, and, uh, we’ll just take
    their stuff when they’re not even looking.” Castro went to the
    Popps’ apartment without a weapon, and though Devine had a
    pocketknife with him, he never took it out. Nor was there
    evidence Devine knew the unarmed Castro, whom Devine did not
    know very well, was likely to be violent. Although Devine knew
    Castro was a gang member, there was no evidence Devine knew
    Castro had a reputation for violence. From this evidence it is
    reasonably probable the superior court could have found that
    Devine did not know Castro intended to attack James with a
    knife and that Devine did not intend to aid a dangerous attack.
    The whole idea was to steal things from the apartment when the
    Popps were drunk, high, or inattentive (or all three).
    Devine’s youth at the time of the crime was also relevant to
    whether he acted with implied malice. (See People v. Pittman,
    supra, 96 Cal.App.5th at pp. 417-418 [remanding for the superior
    court “to consider how, if at all,” the 21-year-old defendant’s
    “youth impacted his ability to form the requisite mental state for
    second degree murder”].) Devine was 16 years old at the time of
    the crime. Devine’s mother told the probation officer that Devine
    had severe attention deficit hyperactive disorder and dyslexia
    and that he was “mentally five years behind his chronological
    age” (which would have given him a mental age of about 11). The
    22
    probation officer who interviewed Devine described him as “mild-
    mannered” and “rather slow-witted.”
    The “‘hallmark features’” of youth include “‘immaturity,
    impetuosity, and failure to appreciate risks and consequences.’”
    (People v. Gutierrez (2014) 
    58 Cal.4th 1354
    , 1377; accord, People
    v. Keel, supra, 84 Cal.App.5th at p. 562.) “The cases discussing
    the role of youth in relation to criminal culpability ‘stress two
    areas’: youthful offenders’ ‘relative impulsivity’ and ‘their
    vulnerability to peer pressure.’” (People v. Pittman, supra,
    96 Cal.App.5th at p. 418; see People v. Oliver, supra,
    90 Cal.App.5th at p. 489.) There was evidence Devine may have
    been influenced by all of these hallmark features of youth. He
    may not have subjectively appreciated the risk involved in the
    plan to steal from the Popps or the risk, once Castro picked up
    the kitchen knife, Castro would use it, not only to intimidate
    James, but to kill him. (See People v. Superior Court
    (Valenzuela), supra, 73 Cal.App.5th at p. 501 [to act with implied
    malice, the defendant must have subjectively appreciated the risk
    involved].) In addition, Devine acted impulsively when he and
    Castro spontaneously decided to go to the Popps’ apartment to
    steal marijuana and a video game console from Mark. Once in
    the Popps’ apartment, Devine’s actions reflected his immaturity:
    He focused on stealing the video game console, not on attacking
    James. As for vulnerability to peer pressure, there was evidence
    Devine, who had stolen things from unoccupied cars but had no
    record of violence, was influenced by the 22-year-old Castro, a
    gang member who had recently been released from jail, to go to
    the Popps’ apartment to steal from Mark. It is also reasonable to
    infer that Devine’s vulnerability to peer pressure influenced his
    decision to join in the attack on James when Castro asked him to.
    23
    Thus, it is reasonably probable the superior court, had it
    considered the evidence on the issue of implied malice, would
    have found Devine did not subjectively appreciate that his
    conduct endangered James’s life or that Devine acted in conscious
    disregard for human life.
    2.     Reckless Indifference
    Was it reasonably probable the superior court would have
    granted Devine’s petition had it made express findings on
    whether, under the felony-murder rule, Devine acted with
    reckless indifference to human life? Again, yes.
    As discussed, under Clark the superior court should have
    considered whether Devine knew weapons would be used in the
    crime, as well as their actual use and number; Devine’s proximity
    to the crime and opportunity to stop the killing or aid James; the
    duration of the crime; whether Devine knew of Castro’s
    propensity to kill; and Devine’s efforts to minimize the possibility
    of violence during the crime. (Clark, 
    supra,
     63 Cal.4th at pp. 618-
    623; see In re Scoggins, supra, 9 Cal.5th at p. 677.) There was
    some evidence Devine acted with reckless indifference to human
    life. While Castro was stabbing James, Devine was only 12 to 15
    feet away, trying to disconnect the video game console from the
    entertainment center. Rather than trying to stop Castro or aid
    James, Devine assaulted James when Castro asked for help. It is
    not clear Devine could have convinced Castro to stop attacking
    James, but there is no evidence he tried. As for the duration of
    the crime, it was not like a robbery where a confederate suddenly
    pulls out a gun and shoots the victim; Castro inflicted multiple
    knife wounds on James. The attack unfolded slowly enough for
    Devine to observe Castro holding James at knifepoint and
    24
    stabbing him, which meant Devine had at least a brief
    opportunity to intervene.
    But there was also evidence Devine did not act with
    reckless indifference to human life. As discussed, the plan was to
    get Mark and James drunk and steal from them without using
    any force. There was only one weapon, the kitchen knife, and
    Castro, not Devine, used it. There was no evidence Devine knew
    Castro was violent or would use a knife during the robbery, nor
    was there evidence Devine encouraged Castro to get the knife
    from the kitchen. In addition, a “juvenile’s immaturity and
    failure to appreciate the risks and consequences of his or her
    actions bear directly on the question whether the juvenile is
    subjectively ‘“aware of and willingly involved in the violent
    manner in which the particular offense is committed”’ and has
    ‘consciously disregard[ed] “the significant risk of death his or her
    actions create.”’” (People v. Ramirez, supra, 71 Cal.App.5th at
    p. 991; see People v. Jones (2022) 
    86 Cal.App.5th 1076
    , 1088, fn. 7
    [“In addition to the Banks and Clark factors, a defendant’s
    youthful age must be considered.”].) As discussed, Devine’s youth
    may have affected his ability to appreciate the risk involved in
    the plan to steal from the Popps and the risk Castro would use
    the knife to kill James. (See Ramirez, at p. 991 [15-year-old
    defendant’s age may have affected “his calculation of the risk of
    death posed by using the firearm in the carjacking, as well as his
    willingness to abandon the crime”]; In re Moore, supra,
    68 Cal.App.5th at p. 453 [even if the evidence supported
    “a finding of reckless indifference for an adult, it is not sufficient
    to establish that [the defendant], who was 16 at the time of the
    shooting, had the requisite mental state”]; People v. Harris (2021)
    
    60 Cal.App.5th 939
    , 960 [it was “far from clear” the 17-year-old
    25
    defendant “was actually aware ‘of particular dangers posed by
    the nature of the crime, weapons used, or past experience or
    conduct of the other participants’”].)
    Thus, it is reasonably probable that, had the superior court
    considered and weighed the evidence in light of the Clark factors,
    the court would have found Devine did not act with reckless
    indifference to human life. Therefore, we cannot conclude the
    court’s error was harmless.
    DISPOSITION
    The order denying Devine’s petition under section 1172.6 is
    reversed. The superior court is directed to conduct a new
    evidentiary hearing and make findings on, among other things,
    whether Devine had the mens rea required for aiding and
    abetting murder and whether the People met their burden to
    show beyond a reasonable doubt that Devine is still guilty of
    felony murder under section 189, subdivision (e)(3).
    SEGAL, Acting P. J.
    We concur:
    FEUER, J.
    MARTINEZ, J.
    26
    

Document Info

Docket Number: B323387

Filed Date: 12/7/2023

Precedential Status: Non-Precedential

Modified Date: 12/7/2023