People v. Arriola CA4/1 ( 2024 )

Filed 10/15/24 P. v. Arriola CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080780
Plaintiff and Respondent,
v. (Super. Ct. No. SCN388950)
EDUARDO ARRIOLA, ORDER MODIFYING OPINION
AND DENYING REHEARING
Defendant and Appellant.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on September 17, 2024, be
modified as follows:
1. On page 7, after the second sentence of the first full paragraph
(ending, “and was uncooperative”), add as footnote 3 the following footnote,
which will require the renumbering of all subsequent footnotes:
During her closing argument, Arriola’s counsel described
similar interactions with Arriola. When the prosecution
objected, the trial court stated it considered defense
counsel’s statements as argument, not evidence, and
Arriola did not challenge that ruling. We therefore do not
consider defense counsel’s statements as evidence even
though they could have been considered “as tantamount to
sworn testimony.” (People v. Laudermilk (1967) 67 Cal.2d
272, 286.) Even if these statements were deemed evidence,
it would not change the outcome under our substantial
evidence review.
2. On page 8, delete the first full paragraph of subsection “b.
Discussion” (beginning, “Arriola claims the trial court . . . .”) , and replace
with the following paragraphs:
Arriola claims the trial court erred because it failed to
state its findings on the record as required by California
Rules of Court, rule 4.130. He also asserts Dr. Badre’s
opinion held little evidentiary value when weighed against
Arriola’s medical records, Dr. DeFrancesco’s testimony, and
Ms. Marquez’s statements. According to Arriola, this
evidence established that he could not assist in his defense
and was, therefore, incompetent.
When competency is determined at a bench trial, “the
court’s findings must be made in writing or placed orally in
the record.” (Cal. Rules of Court, rule 4.130(e)(4)(B).)
Here, the trial court discussed the evidence it considered,
recited the applicable law, noted the dispute was focused on
whether Arriola’s mental illness precluded him from
assisting in his defense, found that Arriola failed to carry
his burden on that issue, and explicitly stated Arriola was
competent to stand trial. We find this a sufficient
statement of the court’s findings. (See, e.g., People v.
Marks (1988) 45 Cal.3d 1335, 1343 [stating “that no ‘magic
words’ are required” for competency finding, the court
should at a minimum expressly state its determination,
and it would be helpful if the court identified the evidence
considered and its reasoning].)
3. On page 11, after the second sentence of the first full paragraph
(ending, “disagreed with his findings”), insert the sentence: Acknowledging
Arriola had the burden of proof, defense counsel stated she had no evidence to
present and that she “underst[ood] that the Court has the authority to
reinstate criminal proceedings.”
2
4. On page 11, replace the fifth sentence of the second full
paragraph (beginning, “He did not file any . . . .”), with: He did not file any
briefing for either hearing, at the third hearing he made no argument, and at
the fourth hearing his counsel merely stated she disagreed with Dr. Carroll’s
findings without specifying any flaws in his conclusions and acknowledging
that Arriola had not met his burden.
There is no change in judgment.
The petition for rehearing is denied.
DATO, Acting P. J.
Copies to: All parties
3
Filed 9/17/24 P. v. Arriola CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080780
Plaintiff and Respondent,
v. (Super. Ct. No. SCN388950)
EDUARDO ARRIOLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kelly C. Mok, Judge. Affirmed in part and remanded in part.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Kathryn A. Kirschbaum and Collette C. Cavalier, Deputy Attorneys General,
for Plaintiff and Respondent.
I. INTRODUCTION
Eduardo Arriola appeals his first degree murder conviction, claiming he
lacked competence to stand trial due to his schizophrenia diagnosis. Arriola
also argues substantial evidence does not support the jury’s true finding on
the lying-in-wait special circumstance. Finally, Arriola asserts the trial court
abused its discretion when it declined to dismiss the firearm enhancement
attached to his conviction because his life without parole sentence prevents
him from endangering the public. We find substantial evidence supported
the trial court’s competency determinations and the jury’s finding on the
lying-in-wait special circumstance. However, the trial court applied the
wrong standard when declining to dismiss the firearm enhancement. We
therefore affirm the conviction, vacate the sentence, and remand for
resentencing.
II. FACTUAL AND PROCEDURAL BACKGROUND
Arriola and the victim, Devon Rideout, lived in neighboring
apartments. Rideout resided on the ground floor, and Arriola occupied the
unit above hers, along with his brother and mother. Indeed, the stairs
outside of Rideout’s front door led up to the apartment where Arriola lived.
From Rideout’s apartment door and the stairs to Arriola’s apartment, a
walkway led out between two small patches of lawn to the sidewalk.
Arriola’s balcony and bedroom window overlooked this small yard/entry point
into the complex and Rideout’s apartment.
Every day, at about 4:00 p.m., Rideout walked her dog around the
apartment development after returning home from work. She followed that
routine on July 20, 2018, the day Arriola shot and killed her just outside her
2
apartment. An autopsy revealed that Rideout suffered five gunshot wounds,
some of which had stippling.1
Apparently, Arriola left his apartment that afternoon, possibly at
3:00 p.m., telling his visiting sister that he was going to the grocery store.
His sister did not see him again until after the shooting, at which point
Arriola did not have any groceries.
At about the same time as the shooting, UPS driver Jeremy Mitchell
arrived at the complex to deliver packages. Going to his first delivery,
Mr. Mitchell walked past Rideout’s apartment but did not see anyone at her
front door nor in that area. He then saw Rideout walking past him as she
headed toward her apartment. Approximately five to seven seconds later,
Mr. Mitchell heard two gunshots, followed by a scream and then two more
gunshots. Prior to the shooting, Rideout was the only person Mr. Mitchell
saw at the apartment complex.
Following the shooting, Arriola called 911 “to report a trespasser,”
stating, “[t]here has been used [sic] legal force.” Police officers soon arrived.
Arriola admitted to them that he shot Rideout, claiming he “used lethal force
because she was trespassing.”
Inside Arriola’s apartment investigating officers discovered a copy of
“California Firearms Laws Summary 2016” in Arriola’s bedroom. The
document explains various gun laws, including those regarding self-defense
and ejecting a trespasser. The officers also found the following list of words
written on a plastic radiator reservoir under the hood of Arriola’s car: “Pi,
1 Stippling is an injury caused by a firearm’s discharge at close range,
generally 9 to 12 inches away. The injury presents as small skin abrasions,
which are caused by partially burned or unburned gun powder fragments
striking skin near a projectile entrance wound.
3
Onesimus, Imran, Quran, Recitations, Westlake, Rideout, Bee, R.I.P.” From
his time in the Marines, Arriola knew a fellow Marine by the name of Jessica
Westlake, as well as one whose nickname was Bee. Rideout was also in the
Navy, and her job duties included providing medical services to multiple
Marine corps units. Officers arrested Arriola.
After the People charged Arriola with Rideout’s murder, the court
suspended proceedings against him four times to determine if he was
competent to stand trial. Each time, consistent with the findings of court-
appointed psychiatrists, the trial court found Arriola competent.
On May 19, 2022, a jury found Arriola guilty of first degree murder
(Pen. Code,2 §§ 187, subd. (a), 189, subd. (a)). It also found true that Arriola
committed the offense by means of lying in wait (§ 190.2, subd. (a)(15)), and
that he personally used a firearm (§ 12022.53, subd. (d)).
At sentencing, Arriola sought dismissal or reduction of the firearm
enhancement under section 1385, arguing it would otherwise add a sentence
of 25 years to life to the life without parole first degree murder penalty in this
case. The trial court found that potential mitigating circumstance
inapplicable because the underlying crime already carried a sentence of over
20 years. After independently noting that Arriola’s mental illness was
another potential mitigating circumstance, the court nonetheless declined to
dismiss the enhancement because doing so would endanger public safety.
The court then sentenced Arriola to life without the possibility of parole for
the murder and lying-in-wait special circumstance, plus 25 years to life for
the firearm enhancement. Arriola timely appealed.
2 All subsequent statutory references are to the Penal Code.
4
III. DISCUSSION
Arriola challenges each of the trial court’s four competency
determinations, claiming they lacked substantial evidence to support them.
He also contends substantial evidence did not support the jury’s true finding
on the lying-in-wait special circumstance. Finally, Arriola argues the trial
court abused its discretion when it refused to dismiss the firearm
enhancement. Finding no error in the trial court’s competency
determinations or the jury’s special circumstance finding, we affirm the
conviction. However, the trial court abused its discretion when considering
whether to dismiss the firearm enhancement. We therefore vacate Arriola’s
sentence and remand for resentencing.
A. Competency to Stand Trial
“A criminal defendant cannot be tried while mentally incompetent.”
(Rodriguez v. Superior Court (2023) 15 Cal.5th 472, 486.) Mental
incompetency exits when, “as a result of a mental health disorder or
developmental disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner.” (§ 1367, subd. (a).) At a trial to determine competency, the
defendant is presumed competent, and the defendant must prove
incompetence by a preponderance of the evidence. (§ 1369, subd. (f).)
We will uphold a competency determination when it is supported by
substantial evidence— that is, evidence that is “ ‘ “reasonable, credible, and
of solid value.” ’ ” (People v. Turner (2004) 34 Cal.4th 406, 425.) “ ‘[W]e give
due deference to the trier of fact, and therefore view the record in the light
most favorable to the verdict.’ ” (People v. Mendoza (2016) 62 Cal.4th
856, 871.) “[I]t is not our function to substitute our judgment for that of the
[trier of fact] or to reweigh the evidence.” (Id. at 883.) As long as there is
5
substantial evidence supporting the determination, we will uphold it even
though substantial evidence to the contrary also exists. (People v. Helzer
(2024) 15 Cal.5th 622, 646.)
1. First Competency Determination
On September 13, 2019, the trial court suspended proceedings against
Arriola for the first time. This led to a competency evaluation by court-
appointed psychiatrist Dr. Nicholas Badre on October 24, 2019. Dr. Badre
determined Arriola was competent to stand trial. At a January 6, 2020
hearing, counsel for Arriola submitted on Dr. Badre’s report without
argument The trial court found Arriola competent and reinstated the
proceedings.
On appeal, Arriola argues substantial evidence did not support this
first competency finding because Dr. Badre’s report was conclusory and
inconsistent. The People claim Arriola forfeited any challenge to Dr. Badre’s
report because he submitted on it without argument. In response, Arriola
maintains sufficiency of the evidence claims are never forfeited. We agree
with the People.
“[D]efendants may not attack the validity of expert reports to which
they submit with arguments they did not present to the trial court.” (People
v. Kirvin (2014) 231 Cal.App.4th 1507, 1514 (Kirvin).) Additionally, the
general rule that the sufficiency of the evidence is never forfeited does not
apply because “[u]nlike the adjudication of criminal guilt, which presumes a
defendant’s innocence and places the burden of proof on the state,” in a
competency proceeding, the “defendant is presumed competent” and “he
assumes the burden of proof.” (People v. Blacksher (2011) 52 Cal.4th
769, 797.) Accordingly, because Arriola submitted on Dr. Badre’s report
without any argument, Arriola forfeited his objections on appeal.
6
2. Second Competency Determination
a. Background
On October 8, 2020, the court suspended proceedings for a second time,
resulting in a bench trial occurring on March 2 and 3, 2021. Clinical forensic
psychologist Dr. David DeFrancesco testified on behalf of Arriola. He opined
that despite knowing the nature and purpose of the criminal proceedings, as
well as his status in the proceedings, Arriola was not competent to stand trial
because he was unable to rationally assist with his defense due to his
schizophrenia. Unable to personally diagnose Arriola due to his refusal to be
interviewed, Dr. DeFrancesco’s opinion was based solely on Arriola’s records
from the military, the Department of Veterans Affairs, and his time in
custody after the murder. Those records showed that while in the Marines in
2014, Arriola was held for psychiatric treatment due to bizarre behavior and
hyper-religiosity; after his release from treatment he went on a unauthorized
absence for over a year; in 2016 a military court found him incompetent to
stand trial in court martial proceedings; diagnosed him with schizophrenia,
the Marines then discharged Arriola from the military; and since being in
custody for the current charges he has resisted medication and continued to
exhibit schizophrenia. The court received into evidence Arriola’s military and
Department of Veterans Affairs records.
Defense investigator Allison Marquez also testified at the hearing. She
stated that though she met with Arriola numerous times, she could not
discuss with him the case or how to proceed because Arriola exhibited
scattered thinking, made irrational statements, and was uncooperative.
The People then called Dr. Badre to testify. He described both his
initial evaluation of Arriola as well as a second that occurred on October 26,
2020. He explained that Arriola was uncooperative in these meetings, and
7
the doctor believed Arriola showed deceit by refusing to answer even simple
and absurd questions, like whether Rideout was killed by a piano. Although
schizophrenics may present as being guarded and nonresponsive, Dr. Badre
believed that Arriola’s failure to cooperate did not reflect mental illness.
Rather, even though Arriola chose not to answer easy questions he still
possessed the clarity of mind to say he wanted to go to a mental hospital
instead of prison. The doctor also based his opinion on Arriola’s ability to
change his answers when it suited him. For example, Arriola initially denied
knowing the colors of the American flag, but then correctly provided them
after Dr. Badre said Arriola’s answer sounded suspicious.
Dr. Badre also reviewed Arriola’s records from the military, the
Department of Veterans Affairs, and his time in custody. Dr. Badre
distinguished his evaluations from those that led to the incompetency
determinations in 2016. In those, Arriola credibly answered many questions
correctly and reported delusions. In contrast, during Dr. Badre’s more recent
examinations, Arriola did not report any delusions, and his failure to
cooperate appeared volitional. Ultimately, Dr. Badre concluded that Arriola
was competent to stand trial.
After the matter was submitted to the trial court for ruling, it
summarized the evidence it considered. The trial court reviewed the
applicable law as stated in a standard jury instruction on competency
(CALCRIM No. 3451), finding sufficient evidence that Arriola understood the
proceedings and his role in them. The court also found that Arriola failed to
carry his burden to overcome the competency presumption because the
evidence did not show it more likely than not that Arriola’s mental disorder
precluded him from assisting in the defense. The court therefore found
Arriola competent to stand trial and reinstated criminal proceedings.
8
b. Discussion
Arriola claims the trial court erred because it failed to state its findings
on the record as required by California Rules of Court, rule 4.130. He also
asserts Dr. Badre’s opinion held little evidentiary value when weighed
against Arriola’s medical records, Dr. DeFrancesco’s testimony, and
Ms. Marquez’s statements. According to Arriola, this evidence established
that he could not assist in his defense and was, therefore, incompetent. We
find this a sufficient statement of the court’s findings. (See, e.g., People v.
Marks (1988) 45 Cal.3d 1335, 1343 [stating “that no ‘magic words’ are
required” for competency finding, the court should at a minimum expressly
state its determination, and it would be helpful if the court identified the
evidence considered and its reasoning].)
Turning to his challenges to the evidence, Arriola’s reliance on the
information favorable to him is misplaced. Dr. Badre found Arriola
competent, and “ ‘the testimony of a single witness, including the testimony
of an expert, may be sufficient to constitute substantial evidence.’ ” (People v.
Wright (2016) 4 Cal.App.5th 537, 545.) “It is ‘not the role of this court to
redetermine the credibility of experts or to reweigh the relative strength of
their conclusions.’ ” (Kirvin, supra, 231 Cal.App.4th at p. 1514.) We focus on
Arriola’s challenges to determine if Dr. Badre’s opinion meets the threshold
for substantial evidence. To prevail, Arriola must show that Dr. Badre based
his findings on “ ‘factors that are “speculative, remote or conjectural,” or on
“assumptions . . . not supported by the record.” ’ ” (Wright, at p. 545.)
Arriola disputes Dr. Badre’s opinion because people with schizophrenia
can appear guarded and nonresponsive while Dr. Badre relied on that
behavior to find deceit. However, both Dr. Badre and Dr. DeFrancesco
testified though such behavior could be a symptom of schizophrenia,
9
every person is different, and it could also be evidence of malingering.
Dr. DeFrancesco also testified that malingering is best determined by
observation. Dr. Badre reached his opinion after interviewing Arriola, during
which Arriola selectively answered both simple and absurd questions while
never mentioning any delusions. This contrasted with Arriola’s prior
evaluations where he put in more effort into interacting with the examining
mental health professional, disclosing more challenges including his
delusions.
Arriola claims that Dr. Badre ignored Arriola’s delusional comments
and that delusions are not a prerequisite for mental illness. The only
delusional comment identified by Arriola is that he did not know if Rideout
was killed by a piano, a response Dr. Badre found deceitful. Additionally,
Dr. Badre never testified that delusions were required for a finding of
incompetence. He merely used the absence of any reported delusions as one
component of his analysis.
Finally, Arriola argues Dr. Badre exhibited bias because he prepared a
script for the prosecutor and improperly conducted a second evaluation. As a
general rule, our role as an appellate court does not permit us to reweigh
evidence or reassess a witness’s credibility. (Kirvin, supra, 231 Cal.App.4th
at p. 1514.) In any event, Arriola fails to demonstrate that the issues he
identifies would preclude a reasonable fact finder from finding that he was
competent to stand trial.
In sum, Arriola fails to show that Dr. Badre’s opinion was speculative
or not supported by the record. Dr. Badre’s opinion is therefore substantial
evidence in support of the trial court’s ruling, and that ruling was adequately
stated on the record. We therefore affirm the trial court’s second competency
determination.
10
3. Third and Fourth Competency Determinations
After proceedings were suspended a third time to assess Arriola’s
competency, court-appointed psychiatrist Dr. David Naimark authored a
report finding Arriola competent. At an October 8, 2021 hearing, Arriola’s
counsel did not make arguments or present evidence, instead stipulating to
Dr. Naimark’s report. Consequently, the trial court reinstated criminal
proceeding after finding Arriola competent to stand trial.
At the fourth competency hearing, conducted on April 8, 2022, the only
evidence before the court was a report from court-appointed psychiatrist
Dr. Matthew Carroll, who found Arriola competent to stand trial. Arriola’s
counsel stipulated to Dr. Carroll’s qualifications and the admission of his
report, but stated she disagreed with his findings. The trial court found
Arriola competent to stand trial.
On appeal, Arriola claims substantial evidence did not support the
third and fourth competency determinations. Arriola challenges
Dr. Naimark’s opinion for being conclusory, not specifying the records
reviewed, not examining Arriola, and that Arriola’s records showed he was
incompetent. Arriola makes similar claims regarding Dr. Carroll’s opinion,
arguing his report was conclusory and the evaluation was limited. However,
Arriola did not raise these claims in the trial court. He did not file any
briefing for either hearing, at the third hearing he made no argument, and at
the fourth hearing his counsel merely stated she disagreed with Dr. Carroll’s
findings but without specifying any flaws in his conclusions. We find,
therefore, Arriola forfeited these arguments on appeal. (Kirvin, supra,
231 Cal.App.4th at p. 1514.)
11
B. Lying-in-wait Special Circumstance
Arriola argues the jury needed to speculate in order to find the lying-in-
wait special circumstance true. Arriola asserts jurors heard no evidence
about his location prior to the shooting, so he could have been waiting for
Rideout, or encountered her as he returned to his apartment. Arriola also
contends the evidence shows Rideout saw him before he fired because she had
entry wounds in the front and back of her body, indicating she saw him and
attempted to run. He therefore claims there was no basis for the jury to infer
that before he approached Rideout, he concealed his presence or intent to
shoot her, or that he intended to kill by surprise.
The lying-in-wait special circumstance requires proof of “ ‘ “ ‘ “an
intentional murder, committed under circumstances which include (1) a
concealment of purpose, (2) a substantial period of watching and waiting for
an opportune time to act, and (3) . . . a surprise attack on an unsuspecting
victim from a position of advantage.” ’ ” ’ ” (People v. Woodruff (2018)
5 Cal.5th 697, 774.)
“The required concealment need not be physical. It suffices if the
defendant’s purpose and intent are concealed by his actions or conduct, and
the concealment of purpose puts the defendant in a position of advantage,
from which the fact finder may infer that lying in wait was part of the
defendant’s plan to take the victim by surprise.” (People v. Ceja (1993)
4 Cal.4th 1134, 1140.) “As for the watching and waiting element, the purpose
of this requirement ‘is to distinguish those cases in which a defendant acts
insidiously from those in which he acts out of rash impulse. [Citation.] This
period need not continue for any particular length “ ‘of time provided that its
duration is such as to show a state of mind equivalent to premeditation or
deliberation.’ ” ’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1073.)
12
We review the lying-in-wait special circumstance finding using the
sufficiency of the evidence standard previously discussed. (People v. Mataele
(2022) 13 Cal.5th 372, 420–421.) As is pertinent here, “ ‘ “ ‘Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt.’ ” ’ ” (People v.
Cook (2021) 59 Cal.App.5th 586, 590.) “ ‘ “Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.” ’ ” (Ibid.)
Arriola compares his case to People v. Nelson (2016) 1 Cal.5th 513(Nelson).3 In Nelson the defendant “rode his bicycle to the area near the
Target parking lot, where he had reason to believe the victims would be
waiting to go to work. He concealed his bicycle and came up behind his
victims on foot to take them by surprise. He shot the two victims in quick
succession. After ensuring his victims were dead by shooting a second time,
he retrieved his bicycle and left.” (Nelson, at p. 551.) The California
Supreme Court noted two potential scenarios within these facts, one in which
the defendant waited for a time when the victims would be vulnerable to a
surprise attack, and one in which he merely attacked them from behind
without any distinct period of watching and waiting. (Ibid.) Because there
3 We observe that the murder in Nelson occurred in 1993, and our
Supreme Court’s reasoning in that case relied on the 1993 version of the
lying-in-wait law. Proposition 18 made a significant change to the lying-in-
wait special circumstance, but that modification does not affect our analysis.
(See Stats. 1998, ch. 629, § 2, p. 4163, enacted as Prop. 18, approved by
voters, Primary Elec. (Mar. 7, 2000) eff. Mar 8, 2000.)
13
was no evidence that the defendant arrived before the victims or waited in
ambush for their arrival, there was no factual basis to infer the surprise
attack scenario over the other, so insufficient evidence supported instructing
the jury on lying-in-wait. (Id. at pp. 549, 551.)
The People distinguish Nelson, arguing that Arriola left his apartment
at 3:00 p.m., armed himself, and approached Rideout as she walked to her
front door while others were out of sight.4 They also rely on People v.
Harrison (1963) 59 Cal.2d 622 (Harrison) and People v. Rosoto (1962)
58 Cal.2d 304 (Rosoto), abrogated on another ground in People v. Green
(1980) 27 Cal.3d 1.
In Harrison, the California Supreme Court held, “From the evidence
that defendant had armed himself with a butcher knife, that he was not
observed on the street prior to the attack, and that he attacked [the victim]
immediately upon her emergence from the apartment house, the jury could
reasonably conclude that he was waiting for her with the intention of killing
or inflicting injury upon her, and that the killing was accomplished by the
means of his watching and waiting in concealment.” (Harrison, supra,
59 Cal.2d at p. 631.)
Similarly, in Rosoto, a witness testified that as the victim started up
the sidewalk to the front porch of his house, a man ran up from the side of the
house and opened fire. (Rosoto, supra, 58 Cal.2d at p. 355.) Our Supreme
Court determined that the “jury could reasonably have inferred the killer was
in hiding and was waiting for the [victim], since no one saw him before the
4 The People also argue that Nelson is inapplicable because it addressed
the element of watching and waiting, while Arriola only challenged the
surprise attack element. However, we find under the circumstances that by
comparing his case to Nelson, Arriola also challenged the existence of
watchful waiting.
14
murder, and his approach to [the victim] coincided with the latter’s approach
to the front porch.” (Ibid.)
Turning to the facts of this case, we know Arriola was not in his
apartment during the hour leading up to the shooting. He purportedly went
to the grocery store, but he did not return with any groceries. The evidence
also shows that Arriola was not seen in the area of the murder when
Mr. Mitchell walked by shortly before. That area was outside Rideout’s front
door and at the foot of the stairs leading to Arriola’s apartment. Finally, the
facts suggest that the attacker surprised Rideout: She did not scream until
after two shots were fired, and she did not even drop the dog biscuit later
found in her hand.
We compare these circumstances to those found in Nelson, Harrison,
and Rosoto. As in Nelson, here two potential scenarios exist. First, evidence
could support finding a chance encounter between Rideout and Arriola
because Arriola’s location in the hour before the murder is unknown, and the
stairs leading to his apartment are just outside Rideout’s door, meaning
Rideout and Arriola could accidentally encounter each other. However, a
second interpretation of the evidence supports Arriola ambushed Rideout.
Both Rideout’s apparent surprise, and the location of the shooting,
demonstrate that an armed Arriola murdered Rideout as she approached her
front door.
From these facts a jury could infer waiting and concealment as in
Harrison and Rosoto. And unlike in Nelson, there was a factual basis for the
jury to infer the surprise attack scenario over one not involving lying in wait.
Arriola’s purported trip to the grocery store was contradicted by both his lack
of groceries and his decision to arm himself. Additionally, the evidence
indicated Arriola planned to kill Rideout under the guise of self-defense. Not
15
only was her name found in Arriola’s car written on a list that ended in
“R.I.P.,” but Arriola also studied how one legally ejects a trespasser from
property. Further, Arriola immediately reported to 911 operators and
responding officers that he used legal, lethal force on a trespasser. To employ
such a plan, Arriola would have watched and waited for an opportune time to
act, and then consistent with that plan, murdered Rideout during her routine
dog walk. These circumstances reasonably justify the jury’s determination
that the encounter between Arriola and Rideout was not a coincidence, but
rather the result of a planned surprise attack.
As for Arriola’s reliance on the location of Rideout’s entry wounds, we
find that claim unpersuasive. The medical examiner testified that one of the
five shots entered the left side of Rideout’s face and went through her vocal
cords, indicating this shot occurred after she screamed. As for the four other
shots, one entered slightly to the rear and left side of the head, one entered
between the back and side of the right arm, one entered through the
abdomen, and one went through the right scapula and second rib. However,
the examiner was not able to determine the order in which these four shots
occurred. As such, while the shot that entered through Rideout’s face was
likely one of the later ones, there is no evidence indicating the order of the
remaining rounds, so the positioning of Rideout during the shooting is
unclear.
Based on the foregoing, sufficient evidence supported the jury’s true
finding on the lying-in-wait special circumstance.
C. Firearm Enhancement
Arriola objects to the court’s refusal to dismiss the firearm
enhancement, pursuant to section 1385, subdivision (c)(2). He claims his
mental illness weighed greatly in favor of dismissal, and in finding danger to
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the public, the trial court failed to consider that he would spend the rest of
his life in prison even if the enhancement was dismissed. We agree.
Certain mitigating circumstances, including when an offense is
connected to mental illness, weigh greatly in favor of dismissing an
enhancement, unless doing so “would endanger public safety.” (§ 1385,
subd. (c)(2) & (c)(2)(D).) “ ‘Endanger public safety’ means there is a likelihood
that the dismissal of the enhancement would result in physical injury or
other serious danger to others.” (Id., subd. (c)(2).) In making this forward-
looking determination, “a crucial part of the inquiry is how the dismissal of
the enhancement will impact the length of the defendant’s sentence.” (People
v. Gonzalez (2024) 103 Cal.App.5th 215, 228.) We review the trial court’s
ruling on this issue for abuse of discretion, which is established if the trial
court applied an incorrect legal standard. (Id. at p. 225.)
While acknowledging Arriola’s mental illness, the trial court declined to
dismiss the firearm enhancement, stating, “[t]his was a horrific and planned
crime that involved great violence. And the court finds that there is an
unreasonable risk that he will commit a new [super] strike if he is released
and finds that the dismissal would endanger public safety.” However, the
trial court did not appear to consider Arriola’s future dangerousness if it
dismissed the firearm enhancement given that Arriola would never be
released due to his life without parole sentence for the special circumstance.
(See People v. Gonzalez, supra 103 Cal.App.5th at pp. 230–231 [court must
consider future as well as current dangerousness to others].) Consequently,
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the trial court applied the wrong legal standard and abused its discretion.5
We therefore vacate Arriola’s sentence.
IV. DISPOSITION
Arriola’s conviction is affirmed, but his sentence is vacated. This
matter is remanded to the trial court to conduct a resentencing hearing.
In considering dismissal of the firearm enhancement, the trial court
shall, among other factors it considers, also include how it assesses Arriola’s
current and future dangerousness, and the “likelihood that the dismissal of
the enhancement would result in physical injury or other serious danger to
others” in the light of his life without parole sentence. (§ 1385, subd. (c)(2).)
RUBIN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
5 This is a rapidly evolving area of law. Indeed, on August 15, 2024,
our Supreme Court decided People v. Walker (Aug. 15, 2024, S278309)
___ Cal.5th ___ [2024 Cal. LEXIS 4426] [discussing whether giving factors in
§ 1385, subd. (c)(2) great weight meant there was a rebuttable presumption
for dismissing an enhancement.] Gonzalez was also decided in 2024, two
years after the trial court made its sentencing determination in this matter.
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