People v. Alcantar CA2/2 ( 2024 )

Filed 10/7/24 P. v. Alcantar 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B329238
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA071988)
v.
CESAR ALCANTAR,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Lee W. Tsao, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Cesar Alcantar appeals the denial of his petition for
resentencing under Penal Code1 section 1172.6 (former § 1170.95)
following an evidentiary hearing. Appellant’s sole contention is
that substantial evidence does not support the superior court’s
finding that appellant is guilty of murder under a theory that
remains valid under current law. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
A. The killing of John Barbosa2
One evening in July 2002, Alcantar and fellow Rivera gang
members Daniel Luna and Cynthia Vargas were in Rivera Park,
located in Rivera gang territory. John Barbosa, his brother
James, and Pedro Brache were also at the park that night.
Alcantar and Vargas approached James, and Alcantar asked
James where he was from. James understood the question as
seeking his gang affiliation, and when he denied being from any
gang, Alcantar punched James in the face. Not wanting any
trouble, James turned and walked away.
Alcantar, Vargas, and Luna went to another area in the
park where they started writing “Rivera” and other gang graffiti
1 Undesignated statutory references are to the Penal Code.
2 The underlying facts are drawn from the trial record in
appellant’s direct appeal from his conviction (People v. Alcantar et
al. (Apr. 20, 2005, B175349) [nonpub. opn.]), which the superior
court considered at the section 1172.6 evidentiary hearing and
which we have judicially noticed. (See § 1172.6, subd. (d)(3) [at
the hearing to determine petitioner’s eligibility for relief, “the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed”].)
2
on a wall. But a few minutes later they approached James again.
Vargas threw a beer can at James, and when it merely glanced
off his head, she yelled, “ ‘damn.’ ”
Alcantar again pressed James about his gang membership.
Unsatisfied with James’s answers, Alcantar swung at James’s
face a second time but missed, and James tried to swing back.
Alcantar hesitated, and then punched James in the face again.
The two men rushed each other. They fell to the ground, and in
moments, the much larger James was on top of Alcantar,
dominating the fight. John attempted to separate James and
Alcantar, and pulled Vargas and Luna away as they punched and
kicked James.
As the fight continued, Vargas yelled to Luna, “ ‘Shoot.
Shoot the motherfucker.’ ” A few seconds later Alcantar yelled,
“ ‘Hurry up and shoot this motherfucker.’ ” Luna, who was
wearing gloves, pulled a handgun out of his pants, and John
stepped between Luna and James, yelling, “ ‘Stop. Stop. No.
No.’ ” Luna pointed the weapon, and fired two or three times.
One bullet struck John in the back. Luna then walked up to
John and fatally shot him in the back of the head.
Alcantar, Vargas, and Luna ran away with James in
pursuit. Vargas and Alcantar got into one vehicle, Luna in
another, and they all drove away. An eyewitness testified that if
John had not stepped between Luna and James, Luna would
have shot James in the back while James was on top of Alcantar.
B. Appellant’s conviction
Alcantar and Vargas were charged and tried together for
John’s murder. (People v. Alcantar et al. (Apr. 20, 2005,
B175349) [nonpub. opn.].) Both were convicted by a jury of first
degree murder (§ 187, subd. (a)) with findings as to each
3
defendant that a principal used a firearm (§ 12022.53, subds. (d),
(e)(1)) and that the offense was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). The trial court
sentenced each defendant to 60 years to life, consisting of 25
years to life for the first degree murder plus consecutive terms of
25 years to life for the firearm enhancement and 10 years to life
for the gang enhancement.
On appeal from the judgment, this court ordered the 10-
year gang enhancement stricken but otherwise affirmed
defendants’ convictions. On remand the superior court modified
Alcantar’s sentence to a term of 50 years to life.3
C. Alcantar’s petition for resentencing under
section 1172.6
In July 2021, Alcantar filed a petition for resentencing
pursuant to section 1172.6. The superior court found a prima
facie case for relief and issued an order to show cause. The
parties submitted briefs, and at the evidentiary hearing the
superior court admitted six volumes of trial transcripts into
3 Following the California Supreme Court’s decision in
People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for
writ of habeas corpus in the superior court on the ground that she
could not be convicted of murder in the first degree under the
natural and probable consequences doctrine. The People agreed
to accept resentencing for second degree murder. The superior
court vacated Vargas’s first degree murder sentence and imposed
a term of 40 years to life, consisting of 15 years to life for second
degree murder plus 25 years to life for the firearm enhancement.
(People v. Vargas (2022) 84 Cal.App.5th 943, 949 (Vargas).)
Alcantar’s petition for writ of habeas corpus based on the
Chiu error is currently pending before this court. (In re Cesar
Alcantar, B335404.)
4
evidence. Alcantar and Megan Williamson, a clinical
psychologist who had interviewed Alcantar, testified. Following
argument by the parties, the superior court denied the petition.
The court concluded the prosecution had proved beyond a
reasonable doubt that Alcantar is guilty of murder as an aider
and abettor with implied malice, a theory which remains valid
under current law.
DISCUSSION
Substantial Evidence Supports the Superior Court’s
Finding that Appellant Is Guilty of Murder Under a
Theory that Remains Valid After the Amendments to
California’s Murder Law
A. The section 1172.6 evidentiary hearing
Appellant testified at the evidentiary hearing. He
explained that at the time of this incident, he was 25 years old
and was struggling with drugs and alcohol. Appellant started
drinking heavily and using methamphetamine and other drugs
when he was 16 years old, around the same time he joined a
gang.
On July 12, 2002, appellant bought a 12-pack of beer after
work and went to a friend’s apartment, where he drank six of the
beers. After two or three hours, appellant and Vargas left
together in Vargas’s car. As they were pulling out of the
driveway, Luna came up and asked for a ride. Appellant had
seen Luna before that day, but did not even know his name.
With Vargas driving, they picked up another friend, bought some
food, and went to the park. Appellant continued drinking the
beer he had bought earlier.
When appellant saw James at the park, he felt threatened
because he thought James “looked like a typical gang member.”
5
Appellant confronted James and demanded to know who he was
and what gang he was from. James responded that he was
“Animal” from Rivera 13. But appellant had never seen James
before and thought he was lying. Feeling insulted, appellant
punched James in the face. James just walked away, and
appellant followed Luna to the back of the park, where Luna
spray painted appellant’s and Vargas’s names on a wall.
Appellant was drunk, and believing he “would be able to
take somebody much bigger than [him]self,” he walked back to
confront James again. Appellant demanded James identify
himself, and when James gave the same answer, appellant
punched him in the face again. James jumped on top of
appellant, taking him to the ground, and started punching
appellant in the head. As appellant was trying to defend himself,
two gunshots rang out. James got off appellant, and appellant
took off running. As he was running away, appellant heard
another gunshot.
Appellant denied knowing that Luna had a gun. He also
denied telling Luna to shoot, and he claimed he did not hear
Vargas say anything about shooting a gun. He himself was not
armed with any weapon, he did not supply a gun to Luna, and he
did not intend that anyone would be shot that day.
Dr. Megan Williamson, a clinical psychologist, conducted a
three-hour in-person interview of appellant and testified at the
evidentiary hearing on appellant’s behalf. Dr. Williamson
explained that the prefrontal cortex⎯the portion of the brain
responsible for reasoning that mediates emotions and rational
thinking⎯does not fully develop until a person is 25 or 26 years
old. Alcohol and drug abuse, particularly methamphetamine,
during the teenage years can have a deleterious effect on the
6
development of the prefrontal cortex, resulting in poor decision-
making and difficulty understanding long-term consequences.
Dr. Williamson opined that a hypothetical 25-year-old man under
the influence of alcohol after drinking a number of beers would be
unable to carefully weigh and consider his actions or long-term
consequences, leading to impulsive and aggressive behavior.
Following the parties’ argument, the superior court stated
its duty as independent fact finder was to “determine if the
People have met their burden of proving beyond a reasonable
doubt that Mr. Alcantar . . . remains guilty under a theory of
murder that is viable after the amendments to the law,” making
him ineligible for relief under section 1172.6. After summarizing
the underlying facts, the court rejected appellant’s testimony that
he did not know Luna was armed, finding it was not credible.
The court reasoned that there was no evidence appellant and
Vargas were ever separated from each other or Luna, and if
Vargas knew Luna was armed (which she clearly did because she
yelled at Luna to shoot), appellant also knew that Luna was
armed. The court also rejected appellant’s testimony that he had
never told anyone to shoot. The court noted that James had
specifically testified that appellant said, “ ‘Shoot the
motherfucker,’ ” and because James and appellant were engaged
in a hand-to-hand fight in that moment, James was in the best
position to know whether appellant had said those words. The
court thus found “beyond a reasonable doubt” that appellant had
told Luna to shoot.
The superior court then proceeded to explain the legal
effect of those words. In its view, appellant’s actions did not
constitute first degree premeditated murder, but did satisfy the
elements for implied malice murder as an aider and abettor. The
7
court concluded, “Even considering [appellant’s] age, his level of
intoxication, and Dr. Williamson’s testimony, I find beyond a
reasonable doubt that all of [the elements for implied malice] are
met; that [appellant] knew by saying, ‘Hurry up, shoot the
motherfucker,’ that he consciously disregarded the risk to human
life by doing so, and it is of no consequence that Mr. Luna shot
John Barbosa instead of James Barbosa.” Having found
appellant guilty beyond a reasonable doubt of murder as an aider
and abettor with implied malice, the court denied appellant’s
section 1172.6 petition.
B. Section 1172.6
Enacted in 2018, Senate Bill No. 1437 (2017–2018 Reg.
Sess.) effectively abolished the natural and probable
consequences doctrine in cases of murder and limited the
application of the felony-murder doctrine. (Stats. 2018, ch. 1015,
§ 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
The legislation also served to eliminate murder convictions
premised on any theory of imputed malice—that is, any theory by
which a person can be convicted of murder for a killing committed
by someone else, such as felony murder or the natural and
probable consequences doctrine—unless the People also prove
that the nonkiller defendant personally acted with the intent to
kill or was a major participant who acted with reckless disregard
to human life. (§§ 188, subd. (a)(3) & 189, subd. (e).) Specifically,
the Legislature amended section 188 to require that when the
felony-murder rule does not apply, a principal in the crime of
murder “shall act with malice aforethought” and “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); People v. Gentile
(2020) 10 Cal.5th 830, 842–843 (Gentile).)
8
Section 1172.6 established a procedure for vacating the
murder convictions of defendants who could no longer be
convicted of murder because of Senate Bill No. 1437’s
amendments to sections 188 and 189. (Lewis, supra, 11 Cal.5th
at pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) After
appointing counsel upon the filing of a properly pleaded petition
for resentencing, the superior court must conduct a prima facie
analysis with briefing to determine the petitioner’s eligibility for
relief, and, if the requisite prima facie showing is made, issue an
order to show cause. (§ 1172.6, subd. (c); People v. Wilson (2023)
14 Cal.5th 839, 869.)
At the evidentiary hearing following issuance of an order to
show cause, the superior court acts as an independent fact finder.
(People v. Hill (2024) 100 Cal.App.5th 1055, 1065; People v.
Garrison (2021) 73 Cal.App.5th 735, 745.) The prosecution bears
the burden of proving beyond a reasonable doubt that the
petitioner is guilty of murder or attempted murder under a
theory of murder that remains valid after Senate Bill No. 1437’s
amendments to the law of murder. (§ 1172.6, subd. (d)(3); People
v. Strong (2022) 13 Cal.5th 698, 709; Garrison, supra, at p. 745.)
The petitioner and the prosecutor may offer new or additional
evidence, and 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);
see Gentile, supra, 10 Cal.5th at pp. 853–854.)
Following an evidentiary hearing, we review the superior
court’s denial of the section 1172.6 petition for substantial
evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).)
Under this familiar standard, we examine the record “ ‘ “ ‘in the
light most favorable to the judgment below to determine whether
9
it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” ’ ” (Ibid.) We resolve whether “ ‘any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] In so doing, [we] ‘presume[ ] in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (People v. Edwards
(2013) 57 Cal.4th 658, 715; Vargas, supra, 84 Cal.App.5th at
p. 951.) Finally, we uphold the superior court’s ruling “ ‘unless it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction.]” ’ ” (People v.
Thomas (2023) 14 Cal.5th 327, 378.)
C. Substantial evidence supports the superior court’s
finding that appellant is guilty of murder as an aider and
abettor with implied malice
Appellant argues the evidence is insufficient as a matter of
law to support the superior court’s finding that appellant could be
convicted of first degree murder as an aider and abettor under
current law. Appellant misstates the superior court’s finding.
The court stated it was not inclined to find appellant’s actions
constituted first degree premeditated murder, and instead found
appellant guilty of second degree murder as an aider and abettor
with implied malice. Second degree implied malice murder
remains a valid theory of murder liability notwithstanding the
changes to the law of murder made by Senate Bill No. 1437
(People v. Schell (2022) 84 Cal.App.5th 437, 442), and the court’s
finding is supported by substantial evidence.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) “Second degree murder is
10
the unlawful killing of a human being with malice aforethought
but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction
of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139,
151.) Malice may be express or implied. (§ 188, subd. (a).) “The
primary difference between express malice 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.) Implied malice murder
instead requires the killing be 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.)
“[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. Perez (2005) 35 Cal.4th 1219, 1225.) “ ‘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.’ ” (Reyes, supra, 14 Cal.5th at p. 991,
quoting People v. Powell (2021) 63 Cal.App.5th 689, 713 (Powell).)
11
As for the requisite intent, our Supreme Court has
explained that “ ‘an aider and abettor who does not expressly
intend 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, supra, 14 Cal.5th at p. 990, quoting Gentile, supra, 10
Cal.5th at p. 850.) The aider and abettor “need only intend the
commission of the perpetrator’s act, the natural and probable
consequences of which are dangerous to human life, intentionally
aid in the commission of that act and do so with conscious
disregard for human life.” (Powell, supra, 63 Cal.App.5th at
p. 714.)
Appellant argues that substantial evidence does not
support the superior court’s findings that appellant knew Luna
had a gun and acted with implied malice in telling Luna to
“ ‘[h]urry up and shoot this motherfucker.’ ” At the heart of
appellant’s argument is his contention that in the absence of any
direct evidence, the superior court relied on appellant’s social
relationship with Vargas and “guilt by association” to find that
appellant knew Luna had a gun. Thus, according to appellant,
the court’s finding was based not on “substantial evidence but on
unwarranted inferences, unsupported suppositions, and outright
speculation.” We disagree.
Appellant correctly asserts that “ ‘[a]n inference is a
deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established
in the action.’ (Evid. Code, § 600, subd. (b).)” (People v. Davis
(2013) 57 Cal.4th 353, 360.) And “ ‘[w]hether a particular
inference can be drawn from the evidence is question of law.’ ”
(People v. Johnson (2019) 32 Cal.App.5th 26, 58.) However, what
12
appellant seems to overlook is that it is not the appellate court
that must assess the credibility of witnesses and draw reasonable
inferences from the evidence; that is the exclusive province of the
finder of fact. (People v. Mumin (2023) 15 Cal.5th 176, 202 [it is
“ ‘the responsibility of the trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts’ ”].) Here, the
superior court properly assessed appellant’s credibility and drew
appropriate inferences from the evidence. Where the evidence
supports the court’s findings, we will not disturb its judgment.
(People v. Rivera (2019) 7 Cal.5th 306, 331 [“ ‘[i]f the
circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding’ ”]; People v. Maury (2003) 30 Cal.4th 342, 403
[“Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends”].)
According to appellant’s testimony at the evidentiary
hearing, appellant and Vargas left their friend’s apartment
together. They were in Vargas’s car, and Vargas was driving. As
they were pulling out of the driveway, they saw Luna, who asked
for a ride. From that moment, when Luna got into the car with
appellant and Vargas, appellant, Luna and Vargas were never
separated until Luna shot John and all three of them ran away.
Based on this testimony, the superior court could⎯and
did⎯reasonably infer that if Vargas knew Luna had a gun,
appellant did too. Such an inference was plainly not based on
13
“guilt by association” or appellant’s social relationship with
Vargas, but on appellant’s own testimony that he and Vargas and
Luna were never separated once Luna joined appellant and
Vargas in Vargas’s car and the three of them went to the park.
Weighing appellant’s credibility, the superior court also
rejected his testimony that he did not tell Luna to shoot.
Although some of the testimony at trial was conflicting on this
point, the court explained that James was in the best position to
hear what appellant said or did not say, and he testified
unequivocally that appellant yelled at Luna, “ ‘Hurry up and
shoot this motherfucker.’ ” In short, drawing reasonable
inferences from the evidence and assessing appellant’s
credibility, the superior court was entitled to reject appellant’s
self-serving testimony and find appellant knew Luna was armed
when he demanded that Luna fire his weapon into the fray.
Appellant’s culpability for John’s murder was no different
than that of his codefendant Vargas. And as in Vargas’s case, we
conclude substantial evidence supports the superior court’s
finding that appellant acted with implied malice to directly aid
and abet the murder. The evidence presented at trial established
that appellant not only instigated the fight that led to the
murder, but he joined Vargas in provoking Luna to shoot and kill
John. All members or associates of the Rivera gang, appellant,
Vargas, and Luna were at a park in territory claimed by the
Rivera gang, drinking beer and spray painting gang graffiti on a
wall. With Vargas and Luna standing by, appellant issued a
gang challenge to James and punched him in the face. When the
three returned, appellant again challenged James about his gang
affiliation, and once more punched him in the face. James
quickly dominated the ensuing fight, and got on top of appellant.
14
As James continued to pummel appellant, first Vargas, and then
appellant yelled at Luna to “ ‘Hurry up. Shoot this
motherfucker.’ ” Luna did as he was directed and shot into the
brawl, striking John in the back and incapacitating him. While
John attempted to stand up, Luna walked over and shot him in
the back of the head. Appellant, Vargas, and Luna
fled⎯appellant and Vargas in one vehicle and Luna in another.
As we found in Vargas, “[e]ven if these circumstances did
not establish express malice on appellant’s part, they certainly
constitute sufficient evidence upon which the trial court could
find, beyond a reasonable doubt, that appellant acted with
implied malice in aiding and abetting the murder. (See People v.
Garcia (2008) 168 Cal.App.4th 261, 273 [‘Factors to be considered
by the trier of fact in determining “whether one is an aider and
abettor include presence at the scene of the crime, failure to take
steps to attempt to prevent the commission of the crime,
companionship, flight, and conduct before and after the
crime” ’].)” (Vargas, supra, 84 Cal.App.5th at p. 955.)
We emphasize, as we did in Vargas, that “the essence of
aiding and abetting a murder under an implied malice theory is
the accomplice’s act of aiding, by words or conduct, the
commission of a life-endangering act with knowledge of the
danger to life that the act poses. (Powell, supra, 63 Cal.App.5th
at p. 714.) Such an aider and abettor need not intend to aid a
killing to be held criminally liable for the result of the
perpetrator’s act. (Gentile, supra, 10 Cal.5th at p. 850; Powell, at
p. 713.)” (Vargas, supra, 84 Cal.App.5th at p. 955.) Appellant
knew that firing a gun at his opponent in a fight could ultimately
result in someone’s death, but he demanded that Luna hurry up
15
and do it anyway. After he got out from under James, he did
nothing to help John, but ran away as fast as he could.
Under these circumstances, we conclude substantial
evidence supports the superior court’s finding that appellant is
guilty of murder as an aider and abettor who acted with implied
malice, a theory that remains valid under current law.
DISPOSITION
The superior court’s order denying Alcantar’s petition for
resentencing under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
16