People v. Tapia CA2/5

Filed 2/16/22 P. v. Tapia CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B309407
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA025820-02)
v.
ELIAS TAPIA, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James D. Otto, Judge. Remanded, with
directions.
Alan Siraco, 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, Amanda V. Lopez and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
In 1997, defendant and appellant Elias Tapia, Jr. and co-
defendant Juan Valenzuela were convicted of the second degree
murder of Norman LaGrone.1 (Pen. Code, § 187, subd. (a).)2 The
jury was instructed under CALJIC No. 3.02 that it could find
Tapia guilty of murder as a natural and probable consequence of
assault with a deadly weapon. Tapia was sentenced to 15 years
to life in prison, plus a determinate term of 4 years.
Tapia appeals the trial court’s order denying his petition for
vacatur of his murder conviction and resentencing under Senate
Bill No. 1437 and Penal Code section 1170.95, following a hearing
held pursuant to section 1170.95, subdivision (d)(3).
In his opening brief, Tapia contended that the trial court’s
failure to follow the correct procedure and employ the correct
standard of proof at his section 1170.95, subdivision (d)(3)
hearing required reversal.
The People responded that (1) the trial court acted as an
independent fact-finder, as section 1170.95 requires, and (2)
substantial evidence supports the trial court’s finding that Tapia
acted with implied malice beyond a reasonable doubt.
1 Tapia
was also convicted of assault with a deadly weapon
upon Oscar Thomas. (§ 245, subd. (a)(1).)
2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
Alternatively, the People asserted that any alleged error was
harmless.
On October 5, 2021, before the briefing was completed in
this matter, the governor signed Senate Bill No. 775 (Stats. 2021,
ch. 551, §§ 1–2) (Senate Bill 775) which, effective January 1,
2022, amends section 1170.95. On November 10, 2021, Tapia
moved for leave to file supplemental briefing on the effect of the
new legislation, in light of the fact that his case would still be
pending when the amendments to section 1170.95 became
effective. We granted the motion and permitted the People to file
supplemental briefing in response, if deemed necessary. The
parties both filed briefs. They agree that Senate Bill 775 applies
in Tapia’s case and that the trial court acts as a finder of fact who
must determine whether the prosecution has met its burden
beyond a reasonable doubt, but otherwise maintain their
positions as set forth in the original briefing.
We conclude the record is ambiguous as to whether the
trial court: acted as independent factfinder that determined
beyond a reasonable doubt Tapia is guilty of a still valid theory of
murder; or, determined only that there is sufficient record
evidence that would support a jury’s finding of guilt under
current law. Because the trial court must act as an independent
factfinder, we remand for the limited purpose of allowing the trial
court to either clarify that it so acted, or for the trial court to
redetermine the matter under the correct standard.
FACTS AND PROCEDURAL HISTORY
The Murder
3
Our prior unpublished opinion in People v. Tapia (Dec. 23,
1998, B117471 (Tapia)), which is included in the appellate record,
recites the facts as follows:
“At about 1:30 a.m. on August 23, 1995, Kevin Moran and
Norman LaGrone were talking outside a liquor store at the
intersection of Anaheim and St. Louis Streets in Long Beach.
[Codefendant] Valenzuela, Tapia and six to seven other Hispanic
men approached Moran and LaGrone. Tapia was carrying a
baseball bat. Valenzuela said “I don’t like you, motherfucker” to
LaGrone. Valenzuela slapped, and then punched, LaGrone.
Tapia hit Moran with the bat, knocking him to the ground.
Valenzuela took the bat from Tapia and hit LaGrone with it.
LaGrone fell to the ground, and Valenzuela continued to hit him
with the bat, and to kick him while Tapia kicked LaGrone in the
face. Moran ran for help.
“Long Beach Police Officers David Hendricks and Brian
Bell arrived at the scene at about 1:45 a.m. LaGrone was lying
unconscious on the ground. There was blood and vomit on his
face. His head was swollen to the size of a basketball. LaGrone
was taken to St. Mary’s Hospital, where he died on September 25,
1995. Dr. Eugene Carpenter, a medical examiner for the
coroner’s office, performed an autopsy and testified that blunt
force trauma to the head, resulting in a brain fungus, was one of
the causes of death.” (Tapia, supra, at *3–*4.)
Trial
At trial, the jury was instructed regarding implied and
express malice murder, direct aiding and abetting, and murder as
a natural and probable consequence of aiding and abetting an
4
assault. The prosecutor argued all three theories of liability for
murder in closing argument.
The jury found Tapia guilty of second degree murder.
Appeal
On appeal from the judgment after trial, defendants argued
that insufficient evidence supported the jury’s finding that
Valenzuela’s beating of LaGrone caused his death and its finding
that the murder was a natural and probable consequence of
assault with a deadly weapon. (Tapia, supra, B117471 at *2.)
Defendants also argued instructional error, abuse of discretion
regarding the admission of gang evidence, and errors in the
imposition of a parole revocation fine with respect to Tapia.
(Ibid.) The court of appeal ordered that the abstract of judgment
be modified to reflect the correct parole revocation fine, but
otherwise affirmed the judgment. (Ibid.)
Section 1170.95 Petition
On February 19, 2019, Tapia filed a petition for
resentencing under section 1170.95, claiming that he was
convicted of second degree murder under a natural and probable
consequences theory, and requesting counsel. The trial court
appointed counsel and ordered briefing. On May 1, 2019, the
People filed an opposition arguing that Senate Bill 1437 and
section 1170.95 were unconstitutional. On August 26, 2019, the
People filed a supplemental opposition arguing that, even if
section 1170.95 were constitutional, Tapia was not entitled to
relief because the evidence at trial clearly established that he
5
personally murdered LaGrone and could be found guilty under
the amendments effectuated by Senate Bill 1437. On November
1, 2019, Tapia filed a reply arguing that the prosecution relied
heavily on the natural and probable consequences doctrine of
liability at trial and that there was insufficient evidence of intent
to kill. On the same day, he filed a separate reply arguing that
section 1170.95 was constitutional.
At a hearing on the matter, the trial court found that Tapia
had made a prima facie showing that he was entitled to relief.3
Tapia’s counsel argued that the prosecution had not met its
burden of establishing that Tapia could still be convicted of
murder because Tapia’s actions did not cause LaGrone’s death.4
The prosecution disagreed. Evidence had been presented
that Tapia took the first swing with the bat and then the bat was
passed to or taken by Valenzuela. As LaGrone lay on the ground,
Tapia stomped on his face and kicked him in the head while
Valenzuela hit him in the head with the bat. Both defendants
3 Tapia’s counsel assumed by the time of the hearing that
the court had already determined that Tapia had made a prima
facie showing of entitlement to relief because the court appointed
counsel. Counsel was prepared to argue at the hearing that the
prosecution had not met its burden of establishing that Tapia
could still be convicted of murder following the amendments to
sections 188 and 189 beyond a reasonable doubt, as required by
section 1170.95, subdivision (d)(3). Neither party complained
that the trial court had not issued an order to show cause to set
the subdivision (d)(3) hearing, and neither party requested a
continuance.
4 Atthe hearing, the prosecutor conceded that section
1170.95 is constitutional.
6
inflicted blunt force trauma, which was the cause of death.
Kicking LaGrone in the face was evidence of Tapia’s intent to kill.
The blows with the baseball bat, kicking, and stomping were
concurrent causes of death.
Tapia’s counsel responded that causation was at issue at
trial and, as a result, the prosecution relied heavily on the
natural and probable consequences doctrine. Counsel argued
that the natural and probable consequences theory of liability
was the only theory of murder the prosecution presented at trial.
The prosecutor replied that, although Tapia could have
been convicted under a natural and probable consequences theory
of murder at trial, he could still be convicted of murder under the
current laws. A beating of this nature was sufficient evidence of
intent to kill.
The court stated, “[T]he question is: is there sufficient
evidence for him to be convicted without the natural and probable
consequences [theory] beyond a reasonable doubt by a jury.” The
court clarified that there is a distinction between the term
“natural and probable consequences” when used in regard to
causation and “natural and probable consequences” as it relates
to a theory of murder liability. Senate Bill 1437 only eliminates
natural and probable consequences murder as a theory of murder
liability. Although at trial, the jury was instructed with a
natural and probable consequences instruction relating to
murder, the prosecution had also presented “sufficient evidence”
through Tapia’s actions that he possessed the intent to kill. In
discussing the evidence, the trial court commented that Tapia
“hit [LaGrone] in the head once with a baton [i.e., the bat], he
7
then kicked him.”5 The trial court emphasized that the appellate
court determined there was substantial evidence of causation.
The court denied the petition, stating: “. . . I am convinced that
beyond a reasonable doubt a jury could have found the defendant
– would have found the defendant guilty of murder.”
Tapia’s counsel clarified that he believed “[t]he case was
not tried from an intent to kill perspective.” The trial court
agreed, but explained, “[t]hat doesn’t mean there wasn’t evidence
to convince a jury beyond a reasonable doubt that . . . the
defendant would have been convicted of murder. And the
petition is denied.”6
Tapia timely appealed.
DISCUSSION
Senate Bill 775 is currently in effect. By its own terms,
section 1170.95 applies to Tapia’s case. (§ 1170.95, subd. (a)
5We note that, while the evidence supports that Tapia did
make the first strike with the bat, he struck the other victim,
Moran, before Tapia handed the bat to Valenzuela. Valenzuela
used the bat on LaGrone while Tapia kicked and stomped
LaGrone’s face and head.
6 Despite the trial court’s statement to the contrary, the
record demonstrates that Tapia was tried on the theories that he
was a perpetrator and a direct aider and abettor, as well as under
the natural and probable consequences doctrine. The jury was
instructed under all three theories and the prosecutor argued all
three theories to the jury at closing argument.
8
[persons convicted of murder under the natural and probable
consequences doctrine may petition for resentencing].)
Pursuant to amended section 1170.95, an offender must file
a petition in the sentencing court averring that: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or
attempted murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could have
been convicted of murder or attempted murder[;] [¶] [and] (3) The
petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also
§ 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state
“[w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court, if
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3).)
The prosecutor shall file a response within 60 days of the service
of the petition, and the petitioner may file a reply within 30 days
of the response. (§ 1170.95, subd. (c).) When briefing has been
completed, “the court shall hold a hearing to determine whether
the petitioner has made a prima facie case for relief. If the
9
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(Ibid.) Within 60 days of issuance of the order to show cause, the
trial court shall hold a hearing “to determine whether the
petitioner is entitled to relief.” (§ 1170.95, subd. (d)(1) & (3).)
“[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (d)(3).) The trial court acts as the finder of fact
when determining whether the prosecution has met its burden
beyond a reasonable doubt. (See Ibid.; People v. Gentile (2020) 10
Cal.5th 830, 855 [“section 1170.95 requires the superior court to
determine on an individualized basis, after considering any new
or additional evidence offered by the parties, whether the
defendant is entitled to relief”].)
Analysis
Tapia argues that the trial court employed an incorrect
“substantial evidence” standard of proof based on its view of what
a jury could find. He asserts that the court’s failure to follow the
proper statutory procedure is reversible. Alternatively, Tapia
argues that (1) LaGrone’s murder was not overwhelmingly
established by the evidence because causation was contested at
trial, and (2) the judgment was based entirely on the natural and
probable consequences theory of murder liability. The People
contend the trial court followed the proper procedure and acted
as an independent finder of fact, but even if the trial court erred,
the error was harmless.
10
On appellate review, we independently determine whether
the trial court applied the correct standard. (People v. Prunty
(2015) 62 Cal.4th 59, 71; People v. Drayton (2021) 47 Cal.App.5th
965, 981, abrogated on another ground in People v. Lewis (2021)
11 Cal.5th 952, 963.) Here, the trial court’s articulation of the
standard of proof at the hearing was not consistent. Framing the
issue at the outset, the trial court incorrectly referred to its
inquiry in the section 1170.95, subdivision (d)(3) hearing as
evaluating whether “there [is] sufficient evidence for [Tapia] to be
convicted without the natural and probable consequences [theory]
beyond a reasonable doubt by a jury.” Later, when announcing
its ruling, the trial court stated: “. . . I am convinced that beyond
a reasonable doubt a jury could have found the defendant –
would have found the defendant guilty of murder.” The earlier
statement of the standard can be reasonably read to suggest that
the trial court framed its decision as one calling for a review for
substantial evidence, asking only whether the record evidence
could support a jury’s finding of guilt. But the later statement
can be read to suggest that the trial court expressed its own view
of the evidence (i.e., “I am convinced . . . beyond a reasonable
doubt”) that a jury “would” convict Tapia. We are in equipoise as
to the correct reading of the record.
The People contend that, even assuming the trial court
erred by applying the wrong statutory standard, any error is
harmless “because the trial court would have denied [Tapia’s]
petition under an independent factfinder standard in light of the
overwhelming evidence that [he] acted with implied malice.”
Tapia counters that the trial court’s failure to follow the proper
statutory procedure and apply the correct standard of proof
constitutes a miscarriage of justice regardless of whether the
11
evidence against him was overwhelming because “‘the wrong
entity judged the defendant guilty.’ (Rose v. Clark (1986) 478
U.S. 570, 578.)” Given the ambiguity in the trial court’s
statement of the standard it applied, which ambiguity arguably is
compounded by the trial court’s misstatement about Tapia’s use
of the bat (i.e., stating it was used on the murder victim LaGrone,
when it had been used on victim Moran), we decline to resolve the
parties’ differing approaches to prejudice and harmlessness.
Rather, we remand the matter to the trial court either: to clarify
that it acted as an independent factfinder, and to affirm that the
denial of the petition reflects its own view that the evidence
presented at the section 1170.95, subdivision (d)(3) hearing
proved Tapia’s guilt beyond a reasonable doubt; or alternatively,
to rule on the petition as an independent factfinder in the first
instance, based on the evidentiary record that was presented at
the subdivision (d)(3) hearing.
12
DISPOSITION
We remand for the limited purpose of allowing the court
either to clarify that it acted as an independent factfinder in
denying appellant’s section 1170.95 petition, or to redetermine
the matter under the correct standard.
MOOR, J.
We concur:
RUBIN, P.J.
KIM, J.
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