People v. Dominguez CA3 ( 2024 )

Filed 10/25/24 P. v. Dominguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C099734
Plaintiff and Respondent, (Super. Ct. No. 09F05226)
v.
GABRIEL RICARDO DOMINGUEZ,
Defendant and Appellant.
Defendant Gabriel Ricardo Dominguez appeals from an order denying his petition
for resentencing under Penal Code section 1172.61 (formerly § 1170.95). Following an
evidentiary hearing, the trial court found defendant guilty of implied malice murder
because he actively and intentionally aided and abetted an armed group assault on a
defenseless victim.
1 Undesignated section references are to the Penal Code. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 to section 1172.6 without substantive
change. (Stats. 2022, ch. 58, § 10.)
1
On appeal, defendant contends the trial court misunderstood what was required to
find him guilty of aiding and abetting an implied malice murder. Had the court applied
the correct legal standard, defendant argues, there would have been insufficient evidence
to find him guilty of implied malice murder. In the alternative, defendant argues this
matter should be remanded for a new evidentiary hearing because the trial court failed to
adequately consider how youth impacted his ability to form the requisite mental state for
implied malice murder. Finally, defendant raises multiple claims of ineffective assistance
of counsel, which he contends were individually or cumulatively prejudicial. We affirm.
BACKGROUND FACTS AND PROCEDURE
Defendant’s brother, Leonardo Chavez (Chavez), a gang member, got into a fight
at a liquor store with three men, at least one of whom was believed to be a member of a
rival gang. After receiving a call from Chavez’s girlfriend, a group of people drove to the
liquor store and joined the fight. Defendant followed shortly thereafter on foot. The
arriving group attacked the men who “jumped” Chavez and, after singling one out,
viciously beat and stabbed him multiple times. Near the end of the fight, witnesses saw
defendant deliver five or six quick blows to the back of the victim’s head and neck. The
victim later died from multiple stab wounds.
Defendant was charged with first degree murder for his role in the killing. At
defendant’s trial, numerous witnesses appeared and testified. We describe the pertinent
testimony below, focusing on the evidence most germane to the issues raised on appeal.
A. Witness Testimony
1. The Victim’s Friends
On May 1, 2009, Brian Logan (Logan), Nathaniel Renteria (Renteria), and Samuel
Sanchez (the victim), went to a liquor store to rent a U-Haul truck. Logan was wearing a
red and black shirt and red and black shoes, and the victim Sanchez was wearing a red
jersey. Renteria is or was affiliated with the Northern California (Norteños), a Hispanic
street gang associated with the color red.
2
Chavez, a Southern California (Sureño) gang member, went inside the liquor store
and exchanged words with Renteria. Then the men went outside and began fighting.
Outnumbered three to one, Chavez told his girlfriend to “call the homies.” Minutes later,
a white sport utility vehicle (SUV) pulled up, and “five or six [persons], maybe more,”
jumped out of the SUV and “started charging at everybody.”
One of the men who exited the SUV had a small knife and another had a crowbar
or pry bar.2 During the fight, Logan was stabbed with a pocketknife and Renteria was
stabbed with a “chisel” (or pry bar). As people were running around, Renteria heard
people shouting, “[Y]ou buster, we’re gonna kill you.”3
At some point during the fight, Renteria saw a man with a chisel swinging it
“[f]ull throttle” and striking the victim in the back. Renteria ran up to the man with the
chisel and hit him in the face. The man dropped the chisel and someone else picked it up.
Renteria then went to look for Logan. The next time Renteria saw the victim, there were
five or six men on top of him. The men were kicking, stomping, and stabbing him.
Renteria testified that he could see “knives” as a “couple people” were “stabbing at [the
victim].” Renteria also saw the victim being hit with a chisel.
At trial, Logan did not recall seeing the victim stabbed. However, Logan recalled
telling the police that he had seen a tall, skinny man with “longer hair” and a
“mustache”—i.e., not defendant—stabbing or making a “stabbing motion” at the victim.
After the fight, Logan and Renteria helped the victim to their car and drove him to
the hospital. The victim was covered in blood, with “gashes,” “hits,” and “blood
drizzling everywhere.”
2 Renteria told police detectives that the man holding the knife was a male Hispanic,
about five feet, six inches tall, with black combed-back hair. Defendant, who had a
shaved head, did not match that description.
3 “Buster” is a derogatory term Sureño gang members use to offend Norteño gang
members, suggesting to Renteria that the men in the group were part of a gang.
3
2. Neutral Witnesses4
Mike P. was standing outside a restaurant with his friends, Frank S. and Chris H.,
when he noticed a group of people fighting across the street. Shortly thereafter, a white
SUV pulled into the parking lot and three or four people jumped out of the vehicle and
joined the fight. One of those individuals was holding a crowbar. Mike P. testified that
he did not see any knives, chisels, or other weapons in the hands of the individuals as
they got out of the SUV.5
After the SUV arrived, Mike P. estimated there were ten or more individuals
involved in the fight. Mike P. believed it was a gang fight based on the colors (red and
blue/white T-shirts) that some of the individuals were wearing. The people who jumped
out of the SUV joined the “blue” side, which outnumbered the people on the “red” side.
Mike P. described the fighting as people running around, getting chased, and throwing
punches. He did not see the person with the crowbar use it during the fight.
As the fighting continued, a Hispanic male dressed in a white T-shirt and blue
jeans—later identified as defendant —approached on foot, arriving from the same
direction as the SUV. Defendant yelled something at Mike P., who happened to be
dressed in red. Mike P. did not respond and retreated toward the restaurant.
When Mike P. looked back at the fight, he saw the victim on the ground
surrounded by five or six people, including defendant. The victim was in the fetal
position with his hands covering his head, and the people around him were kicking,
punching, and stomping him. As the attackers started to back off, defendant delivered
five or six quick, hammer-style blows to the back of the victim’s head and neck. Mike P.
4 To protect their privacy, we refer to the witnesses by first name and last initial or
initials. (Cal. Rules of Court, rule 8.90 (b)(10).)
5 Mike P. did not recall telling detectives that the people in the group were running
around with knives but did recall telling them they had crowbars.
4
testified that the blows did not appear forceful, and he could not see anything in
defendant’s hands. After defendant’s blows to the victim, everyone scattered, and the
victim got up and went toward the liquor store. Mike P. and his friends left the scene.
Between the date of the incident and his police interview, Mike P. learned the
victim had been stabbed and killed. Mike P. told detectives that defendant “could have
been” the one who did the stabbing.
Frank S.’s and Chris H.’s testimony was similar to Mike P.’s. They testified that
the fight was imbalanced and, as it progressed, the victim ended up on the ground with
about five or six people hitting and kicking him. Chris H. testified that he did not see any
knives or other weapons in the hands of the attackers except that he may have seen one
man with a crowbar. Frank S. testified that one person in the SUV group had a crowbar
but he did not see it used. Frank S. did not see anyone with knives. However, he told
detectives that “they could have had knives by the way they were swinging. . . . [T]hey
weren’t normal punches . . . [He] could see ‘em flailing–flailing their arms . . . .” At
some point, as the large group backed off and walked away, Frank S. saw a male
approach the victim and deliver seven or eight fast blows to the victim’s upper back.
N.M. was working as a cashier at the liquor store when he saw two or three men
“jump” Chavez. During the ensuing fight, a white SUV pulled up in front of the store
and two or three males jumped out to help Chavez. One of the men was carrying a
“metal bar” or something similar and hit the victim with it during the fight. N.M.
identified defendant as a person involved in the fight.
3. Defendant’s Friends and Family
Chavez, the defendant’s older brother, testified that his girlfriend drove him to the
liquor store. When he went inside, a man (Renteria) whom Chavez believed to be
5
associated with the Norteños gave him dirty looks and they exchanged words.6 They
then went outside and began to fight. Chavez was outnumbered, so he told his girlfriend
to call his brother. Shortly thereafter, “a lot” of people showed up, although Chavez
claimed he did not know or recognize anyone except for his brother, Francisco
Dominguez,7 who was holding a crowbar. Chavez claimed that he never saw defendant
at the fight.
Francisco testified that on the day of the incident, he was at an apartment with
some friends when Chavez and his girlfriend left for the liquor store. A few minutes
later, he received a call that Chavez was “getting jumped.” Francisco immediately drove
to the liquor store. Francisco claimed to have “no idea” how many people were in his
SUV.
Francisco testified that when he arrived at the fight, he initially got out of the SUV
empty handed but went back and got a crowbar when he heard someone talking about a
gun. Francisco claimed that he tried to break up the fight and did not “swing” the
crowbar; he only used it defensively. Francisco claimed that he never saw defendant at
the fight.
B. Forensic Evidence
The forensic pathologist who performed the victim’s autopsy testified that the
victim died from stab wounds. The pathologist found 11 stab wounds to the victim’s
neck, back, shoulders, and torso, all of which were inflicted with the same or similar
instrument, a skinny double-edged blade or a very thin single-edged blade. The victim
6 Renteria may have said, “What’s up, ene?” which could be perceived as a
challenge to a Sureño gang member.
7 Given the shared surname with the defendant, we will refer to this witness by his
first name to avoid any confusion. No disrespect is intended.
6
also suffered blunt force injuries consistent with being kicked, hit, and punched, but these
were not cited as a cause of death.
C. Gang Evidence
Sacramento Police Department Gang Detective Don Schumacher testified Sureños
and Norteños are rival Hispanic street gangs. Detective Schumacher validated the victim
as a Norteño and validated defendant and his brothers as Sureños. Detective Schumacher
testified that “[r]espect is probably one of the most important themes for a gang
member[,]” and that “[i]n the gang world, reputation or your respect typically equates to
how much people fear you, how afraid they are of you.” He further testified that one of
the ways gang members garner respect is by committing violent crimes. If a gang
member takes the life of a rival, it is “a reputation booster” for both the gang and the
person who commits the violent act. Thus, in a fight with rival gang members, they will
do “whatever it takes to win, to come out of the altercation having been the victor.” He
also testified that, with gangs, things can escalate extremely quickly, from a verbal
challenge to a physical fight to a stabbing or gunfight.
D. Defendant’s Police Interview
Defendant was interviewed by detectives after his arrest. A recording of
defendant’s interview was played for the jury. Defendant told detectives that he was in
the bathroom when everyone left, and by the time he arrived at the fight, everyone was
already leaving so he “just went back.”
Defendant believed the fight was gang-related and he admitted that he saw
Francisco trying to scare people off with some type of metal bar. Defendant also
admitted that, when he saw Chavez getting hit by someone, he ran “up over there and
socked the fool a couple of times.” But defendant claimed that he then got scared by a
7
man with a machete and ran away.8 Defendant claimed not to know anyone at the fight
other than his brothers and one other person named “Alberto.” Defendant said “Alberto”
was the one driving the white SUV and was “actually the innocent one there.”
E. Defense Evidence
The defense offered an experimental psychology professor as an expert witness on
memory and perception. He testified about general difficulties regarding the accuracy of
recall and memory.
F. Verdict and Sentencing
Defendant was charged with first degree murder.9 The information alleged that
defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)) and that defendant personally used a deadly and dangerous weapon (to wit, a
knife) (§ 12022, subd. (b)(1)).
At trial, “[t]he jury was instructed as to the murder on theories of both deliberation
and premeditation and aiding and abetting battery or assault with murder as the natural
and probable consequence. [¶] In closing argument, the People offered both theories to
the jury. The defense argued the prosecution offered the aiding and abetting theory
because it could not prove defendant was the actual killer. The defense argued that all
defendant did was go to the fight, see someone punch his brother, punch the man who
punched his brother, and leave. ‘He’s not aiding and abetting anybody else, he is
punching a guy.’ The defense focused on the varying descriptions of the stabber.”
(People v. Dominguez (June 27, 2012, C065762) [nonpub. opn.] (Dominguez).)
8 Renteria testified that a homeless/unhoused man with a machete had tried to stop
the fighting.
9 Defendant was also charged and found guilty of an unrelated concealed firearm
offense, which is not relevant to this appeal.
8
In June 2010, the jury found defendant guilty of first degree murder. (Dominguez,
supra, C065762.) The jury deadlocked on the gang enhancement and the enhancement
for personal use of a knife. (Ibid.) The trial court declared a mistrial on the
enhancements and dismissed them in the interest of justice. (Ibid.) The trial court
sentenced defendant to 25 years to life in state prison. (Ibid.) We affirmed the conviction
and sentence on direct appeal. (Ibid.)
G. Petition for Resentencing
In 2019, defendant filed a petition for resentencing under former section 1170.95
(now § 1172.6). (People v. Dominguez (Feb. 18, 2022, C093175) [nonpub. opn.].)
Following an evidentiary hearing, the trial court denied the petition. (Ibid.) Defendant
appealed, contending that the trial court applied the wrong standard of proof. (Ibid.) We
agreed, reversed the judgment, and remanded for a new hearing at which the People
would bear the burden of “proving defendant ineligible for relief beyond a reasonable
doubt.” (Ibid.)
On remand, the parties filed multiple briefs. The People’s opening brief included
as an exhibit a media disc containing three volumes of reporter’s transcripts, one volume
of clerk’s transcript, and an augmented clerk’s transcript from defendant’s trial. After an
evidentiary hearing, at which no new evidence was presented, the trial court denied the
petition, finding “beyond a reasonable doubt that defendant is guilty of implied malice
murder under a direct aiding and abetting theory.” Defendant filed a timely notice of
appeal.
DISCUSSION
I
Aiding and Abetting Implied Malice Murder
Defendant contends the trial court erroneously denied his resentencing petition
because it applied an incorrect legal standard to find him guilty under a theory of directly
aiding and abetting implied malice murder. We disagree.
9
A. Senate Bill No. 1437
“Under prior California law, a defendant who aided and abetted a crime, the
natural and probable consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder. [Citation.] This was true irrespective of
whether the defendant harbored malice aforethought. Liability was imposed ‘ “for the
criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion.” ’ ”
(In re R.G. (2019) 35 Cal.App.5th 141, 144.)
With the enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437), the Legislature eliminated the natural and probable consequences theory of
liability as a basis for a murder conviction. (Stats. 2018, ch. 1015, § 2; People v. Reyes
(2023) 14 Cal.5th 981, 984 (Reyes).) Now, to be convicted of murder, a principal must
act with malice aforethought. (In re R.G., supra, 35 Cal.App.5th at p. 144.) Malice can
no longer “ ‘be imputed to a person based solely on his or her participation in a crime.’ ”
(Ibid.)
Senate Bill 1437 also added section 1172.6, creating a procedure for persons
convicted under the former law, who could not be convicted under the law as amended, to
retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 952, 957.) To obtain relief,
the defendant must file a petition containing a declaration that shows all the requirements
for eligibility are met, including that the petitioner could not presently be convicted of
murder or attempted murder because of the changes made effective by Senate Bill 1437.
(People v. Wilson (2023) 14 Cal.5th 839, 869; § 1172.6, subd. (a)(3).) If the petitioner
makes a prima facie showing, the court must issue an order to show cause and hold an
evidentiary hearing at which the prosecution bears the burden to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder under the
law as amended by Senate Bill 1437. (Wilson, supra, 14 Cal.5th at p. 869; § 1172.6,
subds. (c) & (d).) “If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to the conviction, shall be
10
vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1172.6,
subd. (d)(3).)
B. Aiding and Abetting Implied Malice Murder
Murder is “the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) Malice may be express or implied. (§ 188.) The primary difference
between express and implied malice is that “the former requires an intent to kill but the
latter does not.” (People v. Soto (2018) 4 Cal.5th 968, 976.) “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.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.)
To find a defendant guilty of implied malice murder, the People must prove not
only that the defendant committed an act that proximately caused the death of another
person, but also that the defendant acted with implied malice. (CALCRIM No. 520;
Zemek v. Superior Court of Riverside County (2020) 44 Cal.App.5th 535, 552.) Implied
malice has both a physical (objective) component and a mental (subjective) component.
(People v. Carr (2023) 90 Cal.App.5th 136, 141; People v. Johns (2020) 50 Cal.App.5th
46, 57; People v. Knoller (2007) 41 Cal.4th 139, 153.) The physical component requires
the performance of an act, the natural and probable consequences of which are dangerous
to human life.10 (Johns, supra, 50 Cal.App.5th at p. 57.) The mental component requires
that the defendant know his/her conduct endangers human life and act with conscious
disregard for life. (Ibid.)
Notwithstanding the legislative changes effectuated by Senate Bill 1437, aiding
and abetting implied malice murder remains a viable theory of murder liability. (Reyes,
10 A natural and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. (CALCRIM No. 520.)
11
supra, 14 Cal.5th at p. 990.) In Reyes, the California Supreme Court confirmed the
elements of aiding and abetting an implied malice murder: “ ‘[D]irect aiding and abetting
is based on the combined actus reus of the participants and the aider and abettor’s own
mens rea. [Citation.] In the context of implied malice, the actus reus required of the
perpetrator is the commission of a life-endangering act. For the direct aider and abettor,
the actus reus includes whatever acts constitute aiding the commission of the life-
endangering act. Thus, to 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.’ ” (Id. at pp. 990-991.)
C. Standard of Review
Ordinarily, we review the trial court’s factual findings for substantial evidence.
(People v. Vargas (2022) 84 Cal.App.5th 943, 951.) But where, as here, 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. (Reyes, supra,
14 Cal.5th at p. 988.)
D. Analysis
In denying defendant’s resentencing petition, the trial court defined the relevant
life-endangering act as “several individuals, some of whom are armed, pummeling a
victim who is in the fetal position and alone.” Defendant contends this was in error
because the evidence at trial established that the cause of death was the stab wounds to
the victim’s neck and torso. Defendant contends the trial court should have defined the
life-endangering act as the fatal stabbings, and inquired whether defendant knew the
participants in the fight possessed knives and intended to stab the victim. Applying that
12
standard, defendant contends there was no substantial evidence to support his conviction
for murder.
The People respond that “ ‘[T]here may be multiple proximate causes of a
homicide, even where there is only one known actual or direct cause of death.’ (People v.
Sanchez (2001) 26 Cal.4th 834, 846.)” Thus, while the stabbings may have been the
direct cause of death, the People contend the trial court correctly identified the armed
group assault as an additional life-endangering act and proximate cause of death.
We agree with the People. As discussed, to be liable for an implied malice murder,
the aider and abettor must, by words or conduct, aid in the commission of a perpetrator’s
life-endangering act. (Reyes, supra, 14 Cal.5th at p. 991.) As we stated in People v.
Powell (2021) 63 Cal.App.5th 689, 713, footnote 27, a life-endangering act is an act “that
proximately causes death.” (Reyes, at p. 991 [citing Powell with approval]; People v.
Glukhoy (2022) 77 Cal.App.5th 576, 588, 600.)
A proximate cause of death is “ ‘ “an act or omission that sets in motion a chain of
events that produces as a direct, natural and probable consequence of the act or omission
the death of [the decedent] and without which the death would not occur.” ’ ” (People v.
Carney (2023) 14 Cal.5th 1130, 1138; Zemek v. Superior Court of Riverside County,
supra, 44 Cal.App.5th at p. 552.) To be considered a proximate cause of the victim’s
death, the perpetrator’s life-endangering act must have been “ ‘ “a substantial factor
contributing to the result, rather than insignificant or merely theoretical.” ’ ” (Reyes,
supra, 14 Cal.5th at p. 988.) Acts that merely create a dangerous situation in which death
is possible do not satisfy this causation requirement. (Id. at p. 989.) The physical
component of implied malice requires that the natural and probable consequences of the
act be “dangerous to life,” i.e., entail a significant risk of death. (People v. Knoller,
supra, 41 Cal.4th at p. 157; People v. Superior Court of San Diego County (Valenzuela)
(2021) 73 Cal.App.5th 485, 501 (Valenzuela); People v. Clem (2000) 78 Cal.App.4th 346,
349.)
13
In Reyes, the court held that the defendant’s act of chasing a car into a rival gang’s
territory with fellow gang members, one of whom was armed with a handgun, was not a
life-endangering act. (Reyes, supra, 14 Cal.5th at pp. 988-989.) Although it “may have
been likely” that the act would result in a gang confrontation, with the possibility that
someone would get hurt or killed, the act did not “give rise to a high degree of
probability” that death would result. (Id. at p. 989.) It therefore did not satisfy the actus
reus element of implied malice murder. (Id. at p. 990.)
But the facts here are materially different than Reyes. The perpetrators did not
merely bring a dangerous weapon to a potential gang confrontation; they engaged in a
violent group beating of a defenseless victim in retaliation for a perceived rival gang
member’s attack on defendant’s brother. And it was not a simple fistfight. Some of the
perpetrators were visibly armed with weapons, “ranging from crowbars and club-like
sticks to chisels and knives,” and at least one witness saw members of the attacking group
stab the victim. There also was testimony that the confrontation was gang-related and
that one of the ways gang members garner respect is by committing violent crimes.
Under the circumstances, it was reasonable for the trial court to conclude that the violent
beating of the victim by a group of individuals, some of whom were visibly armed with
dangerous weapons, was a life-endangering act that proximately caused the victim’s
death.
We draw support for our conclusion from cases finding that violent assaults
involving the use of dangerous weapons were life-endangering acts. (People v. Schell
(2022) 84 Cal.App.5th 437, 443 [violent attack involving the use of dangerous weapons];
People v. Didyavong (2023) 90 Cal.App.5th 85, 99, review granted June 28, 2023,
S279622, review dismissed Oct. 18, 2023 [same]; People v. Brothers (2015)
236 Cal.App.4th 24, 34-35 [deadly assault with a dangerous weapon]; Valenzuela, supra,
73 Cal.App.5th at p. 501 [armed melee]; People v. Ayala (2010) 181 Cal.App.4th 1440,
1450 [reasonable to conclude that an attack by six gang members wielding a baseball bat
14
upon rival gang members could escalate into a fatal confrontation]; see also People v.
McNally (2015) 236 Cal.App.4th 1419, 1425 [brandishing a loaded firearm]; People v.
Guillen (2014) 227 Cal.App.4th 934, 944, 985-986 [group assault of a child molester];
People v. Palomar (2020) 44 Cal.App.5th 969, 976-977 [violent punch to an impaired
and vulnerable victim].)
We do not agree that the trial court’s approach was a backdoor means to apply the
natural and probable consequences doctrine. As the Fourth Appellate District explained
in Valenzuela, supra, 73 Cal.App.5th at page 503, “[e]ven if the requisite act were the
same, the required mental state is significantly different.” To impose liability on an aider
and abettor for implied malice murder, the prosecution was required to prove that the
aider and abettor was subjectively aware that the perpetrator’s act involved a significant
risk of death and that defendant acted in conscious disregard thereof. (Ibid.)
In light of our determination that the trial court did not misunderstand or misapply
the law, we need not address defendant’s claim that there would not be substantial
evidence to support a conviction if the only life-endangering act was the stabbing.
II
Consideration of Defendant’s Youth
Relying on People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman), defendant
alternatively argues that this matter should be remanded for a new evidentiary hearing so
the trial court can consider how defendant’s youth impacted his ability to form the
requisite mental state for implied malice murder.
We agree with the People that defendant forfeited this issue by failing to raise it
below. (Sander v. Superior Court of San Francisco City and County (2018)
26 Cal.App.5th 651, 670; People v. Saunders (1993) 5 Cal.4th 580, 590.) Although
Pittman was decided four days after the trial court denied defendant’s petition, we are not
convinced this excuses defendant’s failure to raise the issue at his 2023 evidentiary
hearing. Since 2021, appellate courts have concluded “nearly uniformly” that youth is a
15
relevant factor in determining whether a defendant acted with reckless indifference to
human life under a felony-murder theory. (Pittman, supra, 96 Cal.App.5th at pp. 416-
417.) Because the mental state required for implied malice murder—conscious disregard
for human life—is so strikingly similar, (see People v. Clark (2016) 63 Cal.4th 522, 617),
we are persuaded that defendant had a sufficient basis to raise the issue as part of his
resentencing petition. (Pittman, at p. 416 [finding no forfeiture because the petition was
denied in 2020 when “the relevant appellate cases” were decided in 2021 through 2023];
see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [finding no forfeiture because
a court decision was foreseeable].)
In any event, the record shows that the trial court considered defendant’s youth in
its consideration of mens rea: “[T]he [c]ourt finds that defendant, who is 18 years old at
the time of the incident . . . would know that a group of individuals, some of whom are
armed, beating one person mercilessly, would be dangerous to human life. The [c]ourt
has not received, nor is aware of, information that would cause it to question whether
defendant’s age or facilities would impair his ability to appreciate the danger the victim
faced once the beating began.” We presume from this finding that the court was aware of
the cases concluding that youth is a relevant factor bearing on the mental state in section
1172.6 petitions. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Defendant has not
rebutted this presumption or made any showing that remand would be anything more
than an idle act. Accordingly, even if defendant had not forfeited the issue, we would
deny his request for a remand.
III
Ineffective Assistance of Counsel
Defendant also argues that reversal is required due to the cumulative effect of
repeated occurrences of ineffective assistance of counsel. We conclude that either there
was no error or that any purported errors were individually and collectively harmless.
16
A. Legal Principles
To prevail on a claim of ineffective assistance of counsel,11 defendant must prove:
(1) trial counsel’s performance was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms; and (2) the deficient performance
was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant. (People v. Johnson (2015)
60 Cal.4th 966, 979-980.) If the defendant fails to make a sufficient showing on either
component, the claim must fail. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.)
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. (People v. Nguyen (2015) 61 Cal.4th 1015, 1051.)
“ ‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’ ”
(Ibid.)
B. Analysis
Defendant complains that counsel was deficient because he, (1) demonstrated
fundamental misconceptions about the applicable standard of proof and what evidence
may be considered, (2) argued irrelevant theories of guilt, (3) failed to highlight the
evidence favorable to defendant’s position, (4) failed to raise the issue of defendant’s
youth when discussing the mental state required for implied malice murder, (5) did not
grasp how People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) was relevant to the gang
expert’s testimony, (6) did not keep abreast of the law and present relevant caselaw in a
timely and effective manner, and (7) filed a confusing notice of appeal that reflects a
misunderstanding of what the trial court found. We shall consider these claims
11 The People concede, and we will assume, that, in light of the statutory right to
counsel (§ 1172.6, subd. (d)(3)), defendant has a right to effective assistance of counsel.
17
individually and then consider whether the effect of the purported errors (if any) were
cumulatively prejudicial.
1. Standard of Proof
Defendant’s chief complaint is that counsel’s briefing reflected a fundamental
misconception about the standard of proof. Instead of recognizing that the prosecution
bore the burden of proof beyond a reasonable doubt, defense counsel cited the substantial
evidence standard of review. Defendant claims counsel then compounded this error by
failing to highlight evidence favorable to defendant, asking the trial court to conduct an
independent review of the record, arguing irrelevant theories of guilt, and demonstrating
confusion about what evidence could be considered by the court.
We agree with defendant that counsel initially appeared to be confused about the
relevant standard of proof. However, this was not prejudicial. As defendant
acknowledges, the prosecution pointed out counsel’s (apparent) confusion and clarified
the applicable standard. In the end, defense counsel argued there was not sufficient proof
beyond a reasonable doubt that defendant aided and abetted implied malice murder. And
the trial court clearly applied the correct burden of proof to the prosecution’s theory of
guilt.
The same is true regarding any confusion about whether the trial court could
consider (non-hearsay) evidence from the preliminary hearing. Defense counsel
ultimately acknowledged the evidence could be considered and argued about its weight,
value, and effect on the prosecution’s burden of proof.
Regarding the recitation of facts, both the defense and prosecution briefs gave a
detailed summary of the relevant testimony, and the trial court expressly stated that it
considered the trial transcripts and the (non-hearsay) evidence from the preliminary
hearing. In fact, the trial court stated that it “read the trial transcript several times.”
Thus, even though we agree defense counsel could have done a better job of presenting
the facts in a light more favorable to defendant, we are not persuaded that counsel’s
18
performance was deficient (People v. Ledesma (2006) 39 Cal.4th 641, 748 [mere
circumstance that a different, or better, argument could have been made is not a sufficient
basis for finding deficient performance]), or that defendant was prejudiced. The trial
court’s ruling demonstrates it had an appropriate command of the facts.
2. Defendant’s Youth
Defendant also complains that even though defense counsel cited cases discussing
the impact of youth on the mental state required for murder, counsel did not directly raise
this issue in the briefing or at oral argument. However, even if counsel should have
raised the issue of defendant’s youth, defendant has not shown prejudice. As we
discussed ante, the court expressly considered defendant’s youth and found it did not
mitigate his mens rea. Defendant has failed to show it is reasonably probable he would
have obtained a better result had counsel separately raised the issue.
3. Inadequate Grasp of Sanchez
Defendant further argues that his counsel’s performance was deficient because he
demonstrated an inadequate grasp of how Sanchez, supra, 63 Cal.4th 665,12 was relevant
to the gang expert’s testimony. But even if we assume counsel’s performance was
deficient, defendant has failed to show how he was prejudiced. Defendant has not shown
that any portion of the gang expert’s testimony was inadmissible under Sanchez because
it was based on case-specific hearsay. Nor has he shown that the trial court relied on any
inadmissible case-specific hearsay in its ruling.
4. Failure to Keep Abreast of Law
Defendant additionally faults his former counsel because: (1) counsel was not
aware that People v. Gonzalez (2023) 87 Cal.App.5th 869, 880-881, held that a first
12 Sanchez held that an expert may not relate as true case-specific hearsay as the
basis for his or her opinion unless the facts are independently proven by competent
evidence or covered by a hearsay exception. (Sanchez, supra, 63 Cal.4th at pp. 684-686.)
19
degree murder conviction cannot be reduced to second degree murder under section
1172.6; (2) counsel advocated for the application of CALCRIM No. 401 even though
courts had found that instruction ill-suited for the crime of aiding and abetting an implied
malice murder (People v. Maldonado (2023) 87 Cal.App.5th 1257, 1265; People v.
Powell, supra, 63 Cal.App.5th at p. 714); and (3) counsel filed “ ‘notices’ ” of “recent”
court of appeal decisions that were published before briefing, instead of discussing the
cases in the briefs. Again, even if we assume this was deficient performance, defendant
has not demonstrated any prejudice and we find none. The trial court was made aware of
Gonzalez and did not reduce the conviction to second degree murder. The court
understood the elements of aiding and abetting an implied malice murder. And the court
is presumed to have considered the additional authority cited in counsel’s notices.
(People v. Stowell, supra, 31 Cal.4th at p. 1114 [trial court is presumed to have been
aware of and followed the applicable law].)
5. Notice of Appeal
Finally, defendant complains that defense counsel was deficient for incorrectly
stating in the notice of appeal that the jury had found defendant “to be the one who did
the stabbing.” But this misstatement occurred after the trial court denied the resentencing
petition and clearly could not have prejudiced defendant.
6. Cumulative Effect
Defendant contends that even if defense counsel’s errors were not individually
prejudicial, they were cumulatively so. We disagree. Although we have found or
assumed several errors, we find them to be both individually and cumulatively harmless.
We see no reasonable probability that a result more favorable to the defendant would
have been reached in the absence of these errors. (People v. Kocontes (2022)
86 Cal.App.5th 787, 891.)
20
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
\s\ ,
Krause, J.
We concur:
\s\ ,
Robie, Acting P. J.
\s\ ,
Feinberg, J.
21