People v. Cisneros CA2/2 ( 2024 )

Filed 10/23/24 P. v. Cisneros CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B325640
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA077024)
v.
ORDER MODIFYING
JESUS ORTEGA CISNEROS, OPINION AND DENYING
PETITION FOR REHEARING
Defendant and Appellant.
NO CHANGE IN JUDGMENT
THE COURT:
The opinion herein, filed on September 25, 2024, is
modified as follows:
On page 24, footnote 9 is deleted and replaced as follows:
9 Defendant complains the trial court never
addressed the evidence of the underlying felony,
robbery, and concludes he was not a major
participant in the robbery because there was “no
evidence” defendant had anything to do with taking
Trejo’s property. The jury found defendant guilty of
the second degree robbery of Trejo beyond a
reasonable doubt. We again note that from all the
circumstantial evidence arising from the night in
question, we have found substantial evidence
supports the conclusion defendant was an aider and
abettor in the murder of Trejo. We find no need to
further discuss whether defendant was a major
participant in the robbery of Trejo who acted with
reckless indifference to human life. (See People v.
Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
The modification does not affect the judgment.
Appellant’s petition for rehearing is denied.
ASHMANN GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 9/25/24 P. v. Cisneros CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B325640
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA077024)
v.
JESUS ORTEGA CISNEROS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Tracy J. Dressner, 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, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jesus Ortega Cisneros
(defendant) appeals from the order denying his petition for
resentencing, pursuant to Penal Code former section 1170.95,
since renumbered section 1172.6.1 The trial court denied the
petition following an evidentiary hearing pursuant to section
1172.6, subdivision (d) upon finding the prosecution had met its
burden to show beyond a reasonable doubt that defendant was
not entitled to resentencing. Defendant contends the order was
not supported by substantial evidence and should be reversed.
We find no merit to that contention and affirm the order.
BACKGROUND2
The 2004 conviction
In 2004, defendant and codefendants Eric Fernandez,
Alberto Hernandez, Armando Salmon, and Rubin Servin
(collectively codefendants) were convicted of the first degree
murder of Miguel Trejo (§ 187, subd. (a)), the torture of Trejo
(§ 206), and second degree robbery of Trejo (§ 211). In addition
defendant and codefendants were convicted of the following
crimes against Alfonso Gomez: first degree robbery (§ 211), first
degree burglary (§ 459), and dissuading a witness (§ 136.1, subd.
(b)(1)).
In addition to finding defendant guilty of murder, the jury
found true the special circumstance allegations that the murder
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
2 Our summary of the procedural history is taken from
People v. Cisneros (June 29, 2006, B179596) (nonpub. opn.),
which affirmed the judgment against defendant and the
codefendants on direct appeal but corrected sentences.
2
was committed during the commission of a robbery (§ 190.2,
subd. (a)(17)) and that the murder was intentional and involved
the infliction of torture (§ 190.2, subd. (a)(18)). The jury also
found a principal was armed with a handgun during the
commission of the crimes (§ 12022, subd. (a)(1)). As corrected on
direct appeal, defendant’s aggregate sentence was life in prison
without the possibility of parole, plus 11 years. (People v.
Cisneros, supra, B179596.)
Relevant 2004 trial evidence
At the time of his murder, Trejo was living in Alhambra
with Gomez, a relative of his brother Saul Trejo’s wife.3 Saul
testified the brothers spoke by phone frequently every day. The
last time they spoke was about 10:00 p.m., Saturday, June 7,
2003. Trejo told his brother that he intended to go to South Gate
on Sunday morning to pick up the security guard uniform Saul
needed for work. Trejo said he planned to go with “Chavo,” who
Saul knew and identified in court as codefendant Hernandez.
Saul also identified defendant in court as the man he had often
seen driving a white Lexus.
Gerald Altamirano, a friend of defendant’s, testified to
events of June 7 and early morning hours of June 8, 2003.
Altamirano knew Hernandez by the name Chavo and as
defendant’s friend. Altamirano also knew Salmon and had
previously been to Servin’s house. Altamirano first met Jose
Arevalo and Fernandez on June 7, 2003.
Altamirano testified defendant had been driving a beige
Lexus for a few months before and during June. Altamirano also
3 We will refer to Miguel Trejo as Trejo and his brother Saul
Trejo as Saul to avoid confusion. No disrespect is intended.
3
drove the Lexus sometimes. On the evening of June 7,
Altamirano was with defendant when defendant received a phone
call to pick up Hernandez and Trejo, whom Altamirano had seen
several times previously with Hernandez and Salmon. Initially
they seemed friendly. They arrived at Servin’s house about
11:00 p.m., and Hernandez ordered them all out of the car.
Servin opened the gate, and they went into the backyard where
there was a shed and three men unknown to Altamirano. Servin
closed the gate behind them, and then Trejo and Hernandez went
into the shed along with defendant and the three unknown men,
who seemed to go into the shed voluntarily. Altamirano
remained standing next to a tree in the backyard.
From where he stood at the tree, Altamirano heard sounds
coming from inside the shed of someone being punched and
knocked to the floor, then he heard more punches, screaming and
moaning, and duct tape being pulled from the roll. He heard
Hernandez calling the victim bad words and asking in Spanish
where the marijuana that had been stolen from him could be
found. Altamirano recognized Trejo’s voice replying in Spanish
that he did not know what Hernandez was talking about.
Altamirano then heard a gunshot from inside the shed, and
Salmon ran out of the shed, approached Altamirano, handed him
a black gun, and said, “Hold it.” When Altamirano asked
whether there was something wrong with it, Salmon nodded and
said he had just shot it. Altamirano put the gun in the engine
compartment of a car that was in the backyard, and Salmon
returned to the shed. In the meantime Fernandez, Arevalo and
defendant were going in and out of the shed, but Hernandez
remained inside. Once when defendant came out of the shed, he
told Altamirano that they were “giving it to him,” meaning Trejo,
4
and defendant asked Altamirano whether he wanted to hit Trejo.
Defendant said Trejo was a “jacker” who had stolen drugs.
Arevalo approached Altamirano more than once, including one
time when Fernandez was with him. Arevalo seemed excited,
happy, shaking his hands up and down at chest level and rubbing
his open palms together.
Altamirano and others drank beer as he waited outside for
about 45 minutes to an hour while Trejo was being beaten in the
shed. After about a half-hour Trejo began giving information the
drugs were at his uncle’s house in Alhambra. Altamirano,
defendant, Hernandez and Salmon then went to South Gate to
pick up a van and the van’s owner. When they returned to
Servin’s house, Hernandez went into the shed, and Altamirano
heard Trejo giving directions. Hernandez came out and said,
“Let’s go.”
Altamirano, Hernandez, Fernandez, Salmon, defendant
and the van’s owner went together to an apartment complex near
a church in Alhambra. Upon arrival, everyone but Salmon and
Altamirano got out and went to an upstairs apartment in the
back. Hernandez and one of the others had guns. They returned
about 20 minutes later, angry. They drove around, stopping at a
gas station and then a 7-Eleven store while Hernandez spoke to
Servin several times on his cell phone speaker. Hernandez told
Servin Trejo was lying about the address as no one opened the
door. Altamirano could hear Servin questioning Trejo, who,
sounding hurt, told him it was the truth; that his uncle was
there; and that he or Servin could call to confirm.
The group returned to the apartment complex, and
Altamirano again stayed in the van. Salmon came back before
the others, stood outside the van for several minutes, looked
5
around, and then returned upstairs when a police car drove by.
They then all returned to the van with luggage that smelled of
marijuana. Hernandez said they had taken money and tied up
the person inside and put a plastic bag over his head. He said
they forgot to get the pills Trejo said were in the truck under the
apartment with the keys. They stopped at a 7-Eleven store, put
the guns in the back part of the van, then went to Salmon’s
apartment in South Gate where he and Hernandez left the bags
of marijuana. Hernandez called Servin and asked, “Is he still
alive?” Hernandez looked angry when told Trejo was alive and
said he was going to finish him off.
At Servin’s house Altamirano remained in the van while
the others went into the backyard and out of sight. Servin
returned and backed up the van to the shed. The van owner then
said he had to leave and drove the van away. Hernandez backed
his Toyota into the yard close to the shed’s door. Altamirano
could see Arevalo and everyone else in the yard except Salmon.
Servin had begun cleaning the car with a rag and then opened
the trunk. Hernandez and Servin went into the shed, then
Servin ran to his house. Hernandez called Altamirano from the
door of the shed to come and help him. Altamirano went to the
shed door and saw Trejo, who looked dead. Trejo was upside
down, hands bound behind his back, with green paint on him.
His head and body were covered with blood that was also all over
the floor of the shed. Fernandez, shirtless and wearing yellow
dishwashing gloves, kicked Trejo in the head. Hernandez
observed in Spanish that this is what happens to “jackers.”
Altamirano refused to help with the body, and Hernandez said
something like “don’t be a . . . coward.”
6
As Hernandez rolled Trejo in a blanket, Altamirano left. A
minute or two later Hernandez and Fernandez brought the body
out wrapped in blanket and took it to the back of the Toyota.
Servin was then near the car, and defendant was near the tree
with Altamirano. When a sheriff’s car pulled up, they dropped
the body, and Hernandez exclaimed in Spanish something about
being in trouble. Everybody started running. Altamirano saw
Hernandez and defendant jump a fence, and Servin run along the
side of his house to the street. He also saw Miguel Valdez with
two other people come through the front of the house minutes
before the sheriff’s car arrived.
Altamirano identified Valdez as the person arrested with
him outside Servin’s house, who he had not known before June 7,
2003.4 Valdez testified Arevalo was his second cousin and a
friend, Fernandez was a friend, and Servin an acquaintance.
Valdez spent the day of June 7, 2003, with Fernandez and
another friend, Lucio Reyes, before they went to Servin’s house
later that evening. About 10:30 p.m. he saw a group of five or six
people arrive in a Lexus, park and enter the backyard through
the gate. Valdez heard one or two gunshots and a person
screaming, “Kill me for once and for all.” After 10 minutes they
left when Fernandez told them to take the car and leave.
Valdez returned to Servin’s house about 3:30 a.m. to get a
different car and some drugs. Fernandez gave them marijuana
and crack. When Servin came out talking on his phone, Valdez
asked for marijuana. Servin then led Valdez to the shed where
Trejo lay on the floor while Arevalo gave him water. Tied with a
cable or hose around his neck with his hands behind his back,
4 Valdez was given immunity in exchange for his testimony.
7
Trejo was covered in blood with a black plastic bag over his face
and part of his chest. The room smelled of the paint, which was
on the floor and Trejo’s shoes. Servin, still on the phone, asked
Trejo where to find the pills. Trejo replied they were in the van.
Alone with the victim, Valdez asked Trejo why he was there. He
replied, “For being an idiot,” and asked Valdez to help him.
Afraid he or Arevalo would get into trouble, Valdez declined.
Servin returned and gave Valdez marijuana. After smoking it,
they both left the shed. Valdez and Reyes then left Servin’s
property but returned between 6:30 or 7:00 a.m. in time for
Valdez to see an Astro van leaving the yard.
When Valdez and Reyes returned, the Toyota had been
moved, the trunk was open, and Fernandez, Hernandez, and
defendant were gathered around it. Altamirano was in the yard,
Servin was near the front gate, and Arevalo was sleeping in the
garage. Valdez saw the blanket on the ground, and Fernandez
told them they should leave. Valdez woke Arevalo in the garage
to leave. As Valdez waited outside he saw everyone running.
Arevalo said the police were there, so they went to the side of the
house where they were caught and arrested.
Gomez testified Trejo was staying at his Alhambra home in
June 2003. Gomez was in bed in his apartment when a man
came in his bedroom pointing a gun at his head, saying, “Don’t
move, mother-fucker,” and told Gomez to turn his face to the
wall. Gomez complied but was able to identify the gunman in
court as Fernandez. A folded blanket was thrown over his head,
but when Gomez said he could not breath a second man, who
Gomez identified as Salmon, took it off. Salmon also had a gun
that he pointed at Gomez’s head, clicked it once by pulling the
trigger, but it did not fire. Then Salmon threw a plastic bag over
8
his head and handcuffed him, tied his feet with the phone cord,
and asked where the pills were. Gomez did not know anything
about pills. Gomez heard other male voices in the apartment
speaking Spanish. After about 45 minutes to an hour, Salmon
said, “You call the police, we come back and kill you.” They then
left, and Gomez managed to get himself loose. During his
interview with Detective John Corina four days after the robbery,
Gomez said he thought there were two other male Hispanics
inside the apartment, but he did not see them.
Servin’s longtime next-door neighbor testified that her
bedroom was about five or six feet away from Servin’s shed. On
the night of June 7, 2003, she went to sleep around 11:00 p.m.
and was awakened later by a man’s voice saying, “Give me water,
I’m burning,” in Spanish. He also said, “Help,” “Forgive me, my
god, for what I’ve done,” and “[U]ndo the handcuff.” She also
heard the man give an address in Alhambra. His voice was
muffled, and he spoke with difficulty. Other men’s voices from
inside the shed spoke clearly. She heard, “Bring him water,” “Are
you going to give him water?,” and “Yes.”
Montano went back to sleep and woke up again at 5:00 or
6:00 a.m. After leaving for a short time, she returned and saw a
white car with the trunk open, with someone cleaning it. Kicking
sounds were coming from the shed along with a complaining
sound, like “mm, mm.” She saw several men near the car, which
was close to the shed. She called the police.
Ten or 15 minutes later, there was a lot of noise near the
fence and a young man came to Montano’s door. When asked
what he wanted, he answered, “the police.” She said she wanted
nothing to do with the police, and if this was a problem with the
9
cholos he should go. She closed the door. Though she was not
certain, she testified she thought the young man was defendant.
Veronica Gutierrez testified Salmon was her former
boyfriend and in June 2003 lived with her in her apartment.
Hernandez was a friend, and he and his wife stayed with them a
few days during the first week of June 2003. Hernandez and
Salmon had gone out together several times in the day and
evening of June 7, 2003, and early morning hours of June 8. On
June 8, around 2:30 a.m., Hernandez returned wearing different
clothing—his shorts and her eight-year-old son’s sweater. Before
they left again, Gutierrez retrieved from them the key to her
Ford SUV. They returned once again at approximately 3:00 or
4:00 a.m. in an Astro van with three other men. Salmon and
Hernandez had a suitcase they carried into the garage. When the
van left, only Salmon stayed behind.
Salmon, Gutierrez and her children then went to a motel
where they stayed for a couple days before moving from motel to
motel for about a week. Later, Gutierrez found a security
uniform and bloody clothes in a laundry bag. When she asked
Salmon about them, he took them away. Gutierrez also found
some paperwork and a cell phone in her SUV. Salmon told her
they belonged to Trejo, and he gave them away to some kids.
Salmon told Gutierrez on June 7 and 8 he had searched Trejo,
took $300 from his wallet, and had shot him.
Medical examiner Darryl Garber, MD, performed the
autopsy on Trejo’s body. He found extensive facial swelling, as
well as bruises, contusions and lacerations on his face,
extremities and torso. A gunshot wound from a bullet that
passed through the lower right leg, fracturing the tibia was
observed. Abrasions or scratches found on his neck were
10
consistent with a ligature type strangulation. Trejo suffered
what appeared to be nine separate blows to the head from a blunt
instrument with a relatively sharp edge, large enough and heavy
enough to cause a straight linear cut that penetrated the full
thickness of the scalp. Numerous blows resulted in additional
facial swelling and bruises on the right side of Trejo’s chin. On
his forehead, right eyebrow and right upper cheek there were
four or five linear or elongated lacerations that were almost
parallel, going through the full thickness of his skin, and in some
cases reaching the bone. Trejo was intoxicated at the time of his
death, having ingested methamphetamine and cocaine. There
was acetone in his blood and urine, which is consistent with paint
thinner, most likely inhaled.
The cause of death was ligature strangulation, which
occluded the blood supply to the head. Dr. Garber testified it
could take several minutes of sustained compression to occlude
the airway and several more minutes after a victim lost
consciousness for death to occur. Dr. Garber was unable to
identify the exact time of death, but from the facts taken from the
coroner's investigation report, he opined with some degree of
acceptance within the medical community the time of death was
probably between midnight on June 7 and 8:00 a.m. on June 8.5
Petition for resentencing
Defendant’s trial was in 2004, when the law allowed an
accomplice to a killing during an inherently dangerous felony, an
5 Servin’s neighbor heard kicking noises and a complaining
sound, coming from the shed between 6:00 and 6:30 a.m. on
June 8. The police responded after her 6:00 a.m. call, suggesting
Trejo probably was strangled just before he was brought outside
wrapped in a blanket.
11
aider and abettor of robbery, to be convicted of murder without a
showing of intent to kill or implied malice. (People v. Strong
(2022) 13 Cal.5th 698, 704, 707-708 (Strong).) Effective
January 1, 2019, the Legislature amended the laws pertaining to
felony murder and murder under the natural and probable
consequences doctrine, “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).) Section 1172.6
provides a procedure for those convicted of murder or attempted
murder to seek retroactive relief if they could not now be
convicted under section 188 or 189. (§ 1172.6, subd. (a); People v.
Lewis (2021) 11 Cal.5th 952, 957.)
In September 2019, defendant filed his petition for vacatur
of his murder conviction and for resentencing under section
1172.6. The trial court appointed counsel for defendant. The
prosecutor filed a response and defendant filed a reply along with
the complete record on appeal in People v. Cisneros, supra,
B179596. The trial court issued an order to show cause pursuant
to section 1172.6, subdivision (c) and set a date for an evidentiary
hearing.
The evidentiary hearing was held on September 7, 2022.
The trial court stated it had read all writings the parties had put
before the court. Neither the prosecutor nor defense counsel
submitted any additional evidence. Following argument the
court found the prosecution had met its burden to show beyond a
reasonable doubt that defendant is guilty of murder under two
remaining viable theories of murder: as a direct aider and abettor
and as a major participant in the murder who acted with reckless
12
indifference to human life. The trial court then denied the
petition.
Defendant filed a timely notice of appeal from the order of
denial.
DISCUSSION
Defendant contends substantial evidence does not support
the trial court’s finding he was a major participant in an
underlying felony who acted with reckless indifference to human
life or that he aided and abetted the murder with intent to kill.
I. Standard of review
At the section 1172.6, subdivision (d)(3) evidentiary
hearing, “the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, . . . that the petitioner is ineligible for
resentencing.” (See id., subd. (c).) The trial court sits as an
independent fact finder (People v. Vargas (2022) 84 Cal.App.5th
943, 951) and must “‘review all the relevant evidence, evaluate
and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard.’” (People v.
Oliver (2023) 90 Cal.App.5th 466, 480, quoting People v. Clements
(2022) 75 Cal.App.5th 276, 298). On appeal from the denial of a
petition after hearing, our task is to determine whether any
rational trier of fact could have made the same determination
beyond a reasonable doubt. (People v. Vargas, supra, at p. 951.)
We apply the substantial evidence standard of review (see
People v. Sifuentes (2022) 83 Cal.App.5th 217, 233-234), which
“we must view the evidence in the light most favorable to the
People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence” (People v. Jones (1990) 51 Cal.3d 294, 314). We defer to
13
the trial court’s resolution of conflicts and credibility
determinations. (People v. Clements, supra, 75 Cal.App.5th at
p. 298.) “The same standard applies when the conviction rests
primarily on circumstantial evidence.” (People v. Kraft (2000) 23
Cal.4th 978, 1053.) “An appellate court must accept logical
inferences that the [trier of fact] might have drawn from the
circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
396.) “The standard is deferential, but the evidence in support of
the judgment must be reasonable, credible, and of solid value; ‘a
mere possibility’ or ‘[s]peculation is not substantial evidence
[citation].” (People v. Brooks (2017) 3 Cal.5th 1, 120.) “[B]ecause
‘we must begin with the presumption that the evidence . . . was
sufficient,’ it is defendant, as the appellant, who ‘bears the
burden of convincing us otherwise.’” (People v. Hamlin (2009)
170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence
ground “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
support [the conclusion of the trier of fact].’” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
II. Aiding and abetting
Following the change in law, felony murder remains a valid
theory “if, ‘with the intent to kill,’ [the defendant] aids or abets
‘the actual killer in the commission of murder in the first degree’
([§ 189,] subd. (e)(2)); or, if he was a ‘major participant in the
underlying felony’ and ‘acted with reckless indifference to human
life’ (id., subd. (e)(3)).” (People v. Wilson (2023) 14 Cal.5th 839,
873.) First degree felony murder is murder perpetrated by means
of enumerated felonies (for example, torture or robbery). (See
§ 189, subd. (a).)
14
Direct aiding and abetting also remains a valid theory of
murder. (See In re Lopez (2023) 14 Cal.5th 562, 587.) “[F]or a
defendant to be liable for first degree murder as a direct aider
and abettor, ‘the prosecution must show that the defendant aided
or encouraged the commission of the murder with knowledge of
the unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its
commission.’” (Ibid.) Moreover, “‘[a]n aider and abettor who
knowingly and intentionally assists a confederate to kill someone
could be found to have acted willfully, deliberately, and with
premeditation, having formed his own culpable intent. Such an
aider and abettor, then, acts with the mens rea required for first
degree murder.’” (Id. at p. 588.)
III. Intent to kill
The People assert the trial court could have found
defendant was ineligible for resentencing as a matter of law, and
because the jury found the murder to be in the first degree and
the torture-murder special circumstance true, we can affirm.
Pointing out the jury was instructed that in order to find the
torture-murder special circumstance true for an aider and
abettor, the jury was required to find defendant harbored an
intent to kill. The People conclude that the jury found beyond a
reasonable doubt defendant harbored an intent to kill.
Defendant counters that the instructions given did not require
the jury to find defendant harbored an intent to kill, but only that
the actual perpetrator intended to kill.
The jury was given CALJIC No. 8.81.18, as follows:
“To find that the special circumstance referred to in these
instructions as murder involving infliction of torture is true, each
of the following facts must be proved: [¶] 1. The murder was
15
intentional; and [¶] 2. A defendant intended to inflict extreme,
cruel physical pain and suffering upon a living human being for
the purpose of revenge, extortion, persuasion or for any sadistic
purpose; and [¶] Awareness of pain is not a necessary element of
torture.”
The People argue the jury necessarily found defendant
harbored an intent to kill, as instructed in the following relevant
language of CALJIC No. 8.80.1:
“If you find that a defendant was not the actual killer of a
human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true as to that
defendant unless you are satisfied beyond a reasonable doubt
that such defendant with the intent to kill aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
in the commission of the murder in the first degree, or with
reckless indifference to human life and as a major participant,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted in the commission of the crime of robbery
which resulted in the death of a human being, namely Miguel
Trejo.”
The instruction contained no requirement an aider and
abettor acted with express malice, so long as he acted with
reckless indifference to human life and as a major participant.
We thus cannot agree the special circumstance finding
establishes as a matter of law that defendant harbored an intent
to kill. Nor does it establish as a matter of law that defendant
acted with reckless indifference to human life and as a major
participant, because, since defendant’s conviction, the California
Supreme Court has “substantially clarified the law surrounding
16
major participant findings,” as well as “the relevant
considerations for determining whether a defendant has acted
with reckless indifference to human life.” (Strong, supra, 13
Cal.5th at p. 721; see id. at p. 720.)
We first turn to the evidence of intent to kill. To be guilty
of murder, “‘the aider and abettor must know and share the
murderous intent of the actual perpetrator.’” (In re Lopez, supra,
14 Cal.5th at p. 585, italics added, quoting People v. McCoy
(2001) 25 Cal.4th 1111, 1118.) “‘[I]t is well settled that intent to
kill or express malice . . . may . . . be inferred from the
defendant’s acts and the circumstances of the crime.’” (People v.
Avila (2009) 46 Cal.4th 680, 701.) “‘There is rarely direct
evidence of a defendant’s intent. Such intent must usually be
derived from all the circumstances of the attempt, including the
defendant’s actions.’” (People v. Smith (2005) 37 Cal.4th 733,
741.)
After receiving a phone call on June 7, 2003, defendant,
Altamirano, Hernandez and Trejo traveled to Servin’s house,
arriving about 11:00 p.m. Trejo, Hernandez and defendant
immediately went into the shed moments before Altamirano
heard sounds of punching, screaming, moaning, and duct tape
being pulled from the roll, then a gunshot coming from the shed.
After Altamirano was arrested defendant asked Altamirano to lie
and tell police defendant had been forced to go into the shed.
Attempting to hide one’s involvement in a crime by false and
misleading statements gives rise to an inference of consciousness
of guilt. (People v. Griffin (1988) 46 Cal.3d 1011, 1027.) Other
such evidence was supplied by defendant’s flight to the neighbor’s
house, apparently seeking refuge, when police arrived. Evidence
of flight following the commission of a crime is relevant to show
17
consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th
1005, 1054–1055.)
When analyzing the issue of reckless indifference by a
major participant, the trial court reasonably inferred from the
evidence defendant helped in the “delivery” of Trejo to the shed,
knowing what was intended to happen there. Defendant
contends his act of picking up Hernandez after Hernandez called
him shows no more than they were friends, and friends
sometimes give rides to each other. Our task is to determine
whether substantial evidence supports the trial court’s finding of
intent to kill, not whether substantial evidence supports a
contrary finding, as defendant suggests. (See People v. Saterfield
(1967) 65 Cal.2d 752, 759.) We must accept the logical inferences
drawn or which could have been drawn by the trier of fact. (See
People v. Maury (2003) 30 Cal.4th 342, 396.) Given that the
beating of Trejo began shortly after his arrival and the shooting
followed soon thereafter, it is clear defendant was not just being
friendly but was aware that the purpose of helping Hernandez
bring Trejo to the shed was to beat him.
Defendant suggests since no evidence shows he was present
in the shed during the strangulation, there is no way of finding
intent to kill. He cites no authority for that assertion. We find
no authority that suggests an aider and abettor cannot be found
to have shared the perpetrator’s intent to kill unless he was
actually present at the time of the final act causing death.
Defendant also contends proof of intent to kill is lacking
because there was no evidence defendant ever personally
participated in the beating of Trejo and no evidence he
participated in the events in Gomez’s apartment. However, the
evidence does show defendant was in the shed during the initial
18
beating and gunshot and that he continued to go in and out
during the night. On one occasion when defendant came out of
the shed he told Altamirano they were “giving it to him” and
invited Altamirano to hit Trejo, who defendant described as a
“jacker” who had stolen drugs. The trier of fact could reasonably
infer from defendant’s invitation to Altamirano to participate,
coming right after defendant emerged from the shed, that he
knew Trejo was being beaten and why, and had already
participated in beating Trejo while sharing his codefendants’
motive for doing so.
Defendant was convicted of torture under section 206:
“Every person who, with the intent to cause cruel or extreme pain
and suffering for the purpose of revenge, extortion, persuasion, or
for any sadistic purpose, inflicts great bodily injury as defined in
Section 12022.7 upon the person of another, is guilty of torture.”6
At trial the jury was instructed with CALJIC No. 3.01, as follows:
“A person aids and abets the commission of a crime when he or
she: [¶] (1) With knowledge of the unlawful purpose of the
perpetrator, and [¶] (2) With the intent or purpose of
committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice aids, promotes, encourages or
instigates the commission of the crime.”
Defendant facilitated the torture of Trejo by participating
in the delivery of him to the scene, participating in his beating,
returning to the shed several times while the torture continued,
and inviting Altamirano to participate. While defendant stood
by, Trejo’s torturers punched and shot him with a bullet that
6 “‘[G]reat bodily injury’ means a significant or substantial
physical injury.” (§ 12022.7, subd. (f).)
19
went through his shin bone. Defendant continued to periodically
go into the shed as Trejo obviously suffered and bled from his
wounds. The torture of Trejo began about 11:00 p.m. on June 7
after defendant helped deliver him to the shed and continued
through the night until after 6:00 a.m., when Montano heard
kicking and complaining sounds.
A logical conclusion from this evidence is defendant knew
the force used by the perpetrators would likely kill Trejo. He
knew of at least one firearm. Defendant certainly knew during
the drive to Servin’s home after the second trip to Gomez’s
apartment that Hernandez intended to kill Trejo, when
Hernandez called Servin and asked, “Is he still alive?”
Hernandez’s angry look and comment he was going to finish him
off made that point clearly. Once at Servin’s house, defendant
and the others got out of the van near defendant’s parked Lexus
and went into the backyard. Even if defendant did not go into
the shed, he knew Hernandez intended to kill Trejo, and
defendant made no effort to leave or try to leave the scene.
From all the circumstances of the night of June 7 to the
morning of June 8, we conclude substantial evidence supports a
finding defendant knew of and shared the actual killer’s intent to
kill Trejo. We find the trial court’s conclusion defendant was
guilty of murder as a direct aider and abettor beyond a
reasonable doubt to be amply supported by the evidence.
IV. Major participant and reckless indifference
The trial court also found the same evidence showed
defendant was guilty of felony murder as a major participant who
acted with reckless indifference human life.
The trial court analyzed the evidence under the factors set
forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
20
v. Clark (2016) 63 Cal.4th 522 (Clark), in which the California
Supreme Court “substantially clarified the law surrounding
major participant findings,” and “then substantially clarified the
relevant considerations for determining whether a defendant has
acted with reckless indifference to human life” (Strong, supra, 13
Cal.5th at p. 721; see id. at p. 720).7 “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient” (Banks, supra, at p. 803); what matters is the totality
of the considerations (In re Scoggins (2020) 9 Cal.5th 667, 677
(Scoggins)).
Assuming we had not found substantial evidence to support
the trial court’s finding defendant shared a codefendant’s intent
to kill, it remains that most of the evidence discussed above in
relation to express malice applies to several of the factors
suggested in Banks and Clark necessary to determine whether
defendant was a major participant. Those factors include
defendant’s role in planning the crime that led to the victim’s
death, defendant’s awareness of the particular dangers posed by
the nature of the crime and the weapons used, defendant’s
presence at the scene of the killing, whether he had the
opportunity to prevent the murder, and what defendant’s action
was after lethal force was used. (Clark, supra, 63 Cal.4th at
p. 611; Banks, supra, 61 Cal.4th at p. 803; see Scoggins, supra, 9
Cal.5th at p. 677.)
As Banks explained, reckless indifference to human life
means engaging in a felony known to carry a grave risk of death
7 The reckless indifference requirement was first articulated
in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida
(1982) 458 U.S. 782 in relation to the imposition of the death
penalty.
21
while “‘“subjectively aware that his or her participation in the
felony involved a grave risk of death.”’” (Banks, supra, 61 Cal.4th
at pp. 801, 807.) The factors indicating subjective awareness
significantly overlap with the major participant factors. (Clark,
supra, 63 Cal.4th at p. 615.) Thus, in addition to the major
participant considerations mentioned above, factors include the
long duration of the interaction between the perpetrators of the
felony and the victim and any efforts defendant made to
minimize the risks of violence during the crime. (See Scoggins,
supra, 9 Cal.5th at p. 677, citing Clark, supra, 63 Cal.4th at
pp. 618-623.)
As to planning, defendant, as directed, helped deliver Trejo
to the shed around 11:00 p.m., and later asked Altamirano to
falsely report defendant was forced into the shed. Evidence of
punching noises and screaming, followed by a gunshot was
presented. This supports a reasonable inference defendant was
aware a violent crime was planned when he brought Trejo to the
scene and was thus aware of the dangers posed by the crime.
Defendant knew hours before Trejo died that a gun had been
used in the attack. Defendant’s car was parked outside Servin’s
house, but instead of using it to summon help for Trejo or
otherwise attempt to minimize the risk of violence, defendant did
nothing other than to invite Altamirano to participate in the
beating. Throughout the night defendant made no effort to
prevent further life-endangering conduct and continued to
facilitate his codefendants’ crimes. The sounds of kicking and a
complaining sound described as “mm, mm” heard by Servin’s
neighbor after 6:00 a.m. suggests Trejo was still alive and being
strangled at the time. Defendant was then standing outside the
shed, close enough to restrain the killing, as it would likely have
22
taken Trejo several minutes to lose consciousness and another
several minutes to die. Defendant was certainly aware of the
danger to Trejo posed by defendant’s cohorts over a period of
approximately seven hours, and yet he made no effort to
minimize that danger.
Quoting Scoggins, supra, 9 Cal.5th at page 677, defendant
argues evidence of some factors, as well as absence of evidence of
other factors, favored a finding that his actions did not involve
the “‘“gross deviation from the standard of conduct that a law-
abiding person would observe in the [defendant]’s situation”’”
required for a finding of reckless indifference. Defendant notes
the court found no evidence that defendant had or used a gun.
He asserts there was no evidence he knew Salmon had a gun
when Trejo was shot in the leg or that defendant had anything to
do with any murder weapon. Defendant also claims there is
insufficient evidence to show he was present while Trejo was
strangled to death.
Defendant observes other people involved have explained
they did not help Trejo because they were afraid of retribution.8
He now suggests he could do nothing, as well. Apparently he
suggests, because he was under no obligation to risk his life to try
to save someone else’s life, the fact he did nothing to attempt to
minimize the violence or the risk to Trejo’s life should not be
considered. In other words, drawing his own favorable inferences
from some evidence and from the absence of evidence, defendant
concludes this seven-hour ordeal was “Hernandez’s personal
8 Defendant is apparently referring to Altamirano and
Valdez.
23
vendetta against Trejo with [defendant] being caught in the
wrong place at the wrong time with little recourse.”
“Reckless indifference to human life is ‘implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death.’ (Tison, supra, 481 U.S. at p. 157.) Examples
include ‘the person who tortures another not caring whether the
victim lives or dies, or the robber who shoots someone in the
course of the robbery, utterly indifferent to the fact that the
desire to rob may have the unintended consequence of killing the
victim as well as taking the victim’s property.’ (Ibid.) Reckless
indifference ‘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.’ (Clark, supra, 63 Cal.4th at p. 617.)” (Scoggins, supra, 9
Cal.5th at pp. 676-677, italics added.) Defendant was in and out
of the shed and aware of the gunshot wound and beatings the
jury found to be torture. Defendant was an active participant for
seven hours in the criminal activities which involved the torture,
robbery and finally the murder of Trejo.9 There is sufficient
evidence that defendant’s actions involved a “‘“gross deviation
from the standard of conduct that a law-abiding person would
9 Defendant complains the trial court never addressed the
evidence of the underlying felony, robbery. He concludes he was
not a major participant in the robbery because there was “no
evidence” defendant had anything to do with taking Trejo’s
property. The jury found defendant guilty of the second degree
robbery of Trejo beyond a reasonable doubt. As defendant has
not included a separate argument challenging the jury’s robbery
verdict, his claim is not sufficiently developed to be cognizable on
appeal. Therefore it will not be addressed. (See People v. Turner
(1994) 8 Cal.4th 137, 214, fn. 19.)
24
observe in the [defendant]’s situation.”’” (Scoggins, supra, 9
Cal.5th at p. 677.)
We find sufficient evidence supports the trial court’s
alternative finding that defendant was a major participant in the
underlying crimes and that he acted with reckless disregard for
human life, and could thus still be convicted of murder today.
(See People v. Wilson, supra, 14 Cal.5th at pp. 873-875.)
DISPOSITION
The order denying the section1172.6 petition is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
25