People v. Stefin CA2/7

Filed 3/9/23 P. v. Stefin CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315497
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA227886)
v.
TAVARES STEFIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed.
Jonathan E. Demson, 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, and Charles S. Lee and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Convicted in 2005 on two counts of second degree murder,
Tavares Stefin appeals from the superior court’s order following
an evidentiary hearing denying his 2019 petition for resentencing
under Penal Code former section 1170.95 (now section 1172.6).1
Stefin contends substantial evidence did not support the court’s
finding he could still be convicted under current law on the two
murder counts as a direct aider and abettor of implied malice
murder. We conclude substantial evidence supported the finding
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
A. A Jury Convicts Stefin on Two Counts of Second
Degree Murder, and We Affirm
One evening in February 2002, members of the Every
Woman’s Fantasy (or EWF) criminal street gang—including
1 Statutory references are to the Penal Code.
2 While “the factual summary in an appellate opinion is not
evidence that may be considered at an evidentiary hearing to
determine a petitioner’s eligibility for resentencing” under section
1172.6 (People v. Flores (2022) 76 Cal.App.5th 974, 988), we rely
in part on the factual summary in our opinion in Stefin’s direct
appeal (People v. Bolden et al. (Sept. 10, 2007, B186192)
[nonpub. opn.] 2007 WL 2586460) to summarize background facts
here. Neither party suggests the factual summary in that
opinion was inaccurate or contends the superior court
impermissibly relied on it in denying Stefin’s petition for
resentencing. We also rely on the record in Stefin’s direct appeal,
which included the trial transcript.
2
19-year-old Johnathan Bolden and 17-year-old Stefin—gathered
at a townhouse with companions. Stefin was socializing with a
group in a bedroom, Bolden with a group in a hallway, when
Bolden got into an argument with a 14-year-old girl named
Desiree Collins. During the argument Bolden brandished a
nine-millimeter pistol he had been carrying that evening at his
waist. Collins mocked him and dared him to shoot her. Bolden
shot her in the head, killing her. At the direction of Bolden,
whom the group considered a “big homie” and “shot caller,” Stefin
and others cleaned up the blood in the hallway while Bolden
disposed of the girl’s body. (People v. Bolden et al. (Sept. 10,
2007, B186192) [nonpub. opn.], 2007 WL 2586460 (Bolden).)
Bolden, other EWF members, and some associates had
planned to rob a Caribbean restaurant the following morning.
They were informed they would find a large quantity of
marijuana and $500,000 in cash inside the restaurant. The
original plan did not call for Stefin to participate, but after
Bolden killed Collins, some of those who were supposed to
participate were afraid of Bolden and dropped out. Stefin
therefore agreed to participate, though he admitted to Bolden’s
girlfriend that he did not want to go. Asked later why he did not
follow her advice not to participate, Stefin answered, “I always go
with them, always.” (Bolden, supra, B186192.)
So, the morning after Bolden killed Collins, he drove Stefin
and another EFW member, Eddie Williams, to the restaurant to
conduct the robbery. All three were armed: Stefin with a
.22-caliber rifle, Bolden with the same nine-millimeter pistol he
used to shoot Collins, and Williams with a .25-caliber handgun.
Outside the restaurant the group encountered Carl Scott, a
handyman who did odd jobs at the restaurant, sitting in his car.
3
Bolden ordered Scott out of the car at gunpoint. Bolden told
Scott to knock on a side door of the restaurant and tell the people
inside to open the door. Williams stood nearby, gun in hand, to
ensure Scott complied. When the door opened, Bolden, Stefin,
and Williams rushed inside behind Scott. (Bolden, supra,
B186192.)
Inside the restaurant were two cooks, Rodney Tomlin and
Emard Peart. When Bolden and the others ran in through the
door, Tomlin jumped out a nearby window and hid in an area
beneath the restaurant’s kitchen. Bolden pointed his gun at
Peart and said, “Don’t move. Get on your knees.” Peart and
Scott complied. Peart asked what Bolden wanted. Bolden told
him he wanted marijuana and money. Peart said no one at the
restaurant had anything to do with growing or selling marijuana.
Bolden pointed his gun, told Peart to shut up, and demanded his
wallet. Peart refused to give up his wallet, but gave Bolden $46
in cash, which Bolden pocketed. (Bolden, supra, B186192.)
Bolden went to a storeroom at the back of the restaurant,
where he began to knock cups, plates, and other supplies from
the shelves in a search for marijuana and cash. Williams stood in
the doorway, brandishing his gun. Meanwhile, armed with his
rifle, Stefin led Peart to the cash register at the front of the
restaurant. Neither Stefin nor Peart could open the register.
Stefin followed Peart to the kitchen, so that Peart could attend to
the chicken he was frying. (Bolden, supra, B186192.)
Suddenly, Scott ran into the storeroom and struck Bolden
in the neck with a meat cleaver. As blood gushed from Bolden’s
neck, Scott turned and attacked Williams. Bolden fired multiple
shots, striking both Scott and Williams. When Stefin reached the
storeroom, he found Scott dead and Williams badly wounded.
4
Stefin took Williams to the hospital, where Williams was
pronounced dead. Bolden survived, as did Peart, who escaped
from the restaurant during the melee.
In May 2005, in connection with the deaths of Scott and
Williams, a jury, instructed on felony murder and the natural
and probable consequences doctrine as bases for murder liability,
convicted Stefin on two counts of second degree murder. (§ 187,
subd. (a).) The jury also convicted him of second degree robbery
of Peart (§ 211) and second degree burglary of the restaurant
(§ 459) and found true various criminal street gang and firearm
allegations. On each murder count, the trial court sentenced
Stefin to a prison term of 15 years to life, plus 25 years to life for
the related enhancements, and ordered the sentences on the two
convictions to run concurrently. The court stayed under section
654 execution of the sentences it imposed for the remaining
convictions. On Stefin’s appeal from the judgment, we affirmed
his convictions. (Bolden, supra, B186192.)
B. The Superior Court Twice Denies Stefin’s Petition for
Resentencing
In April 2019 Stefin petitioned for resentencing under
newly enacted former section 1170.95. The superior court
summarily denied the petition on the ground Senate Bill
No. 1437, which created former section 1170.95, was
unconstitutional. We reversed. (People v. Stefin (July 22, 2020,
B302765) [nonpub. opn.], 2020 WL 4199631 at p. 2.)
On remand, the superior court issued an order to show
cause and held an evidentiary hearing on Stefin’s petition. The
parties relied on the record of conviction, including the trial
transcripts, and did not present new evidence. The court
5
determined that whether Stefin could still be convicted of murder
under a felony murder theory was not an issue because the jury—
instructed that finding Stefin guilty of murder on a felony murder
theory required finding him guilty of murder in the first degree—
found Stefin not guilty of murder in the first degree. The People
argued Stefin could still be convicted of murder under a theory of
aiding and abetting an implied malice murder.
The superior court agreed with the People. The court cited
the Supreme Court’s holding in People v. Gentile (2020)
10 Cal.5th 830 (Gentile) that, “notwithstanding Senate Bill 1437’s
elimination of natural and probable consequences liability for
second degree murder, 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.” (Gentile, at p. 850.) The superior court found that,
under this theory of murder liability, the People “still to this day
can prove” Stefin guilty beyond a reasonable doubt on both
second degree murder counts. The court denied Stefin’s petition,
and Stefin timely appealed.
DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (Gentile, supra, 10 Cal.5th at
pp. 842-843) and significantly narrowing the felony-murder
exception to the malice requirement for murder (§§ 188,
6
subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th
698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957).3
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder, except
under the revised felony-murder rule in section 189,
subdivision (e). The latter provision requires the People to prove
specific facts relating to the defendant’s culpability: The
defendant was the actual killer (§ 189, subd. (e)(1)); the
defendant, though not the actual killer, with the intent to kill
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
the defendant was a major participant in a felony listed in section
189, subdivision (a), and acted with reckless indifference to
human life, “as described in subdivision (d) of Section 190.2,” the
felony-murder special-circumstance provision. (§ 189,
subd. (e)(3); see Strong, at p. 708; Gentile, at p. 842.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the superior court to vacate the
conviction and be resentenced on any remaining counts if he or
she could not now be convicted of murder because of the changes
the Legislature made effective 2019 to the definitions of the
crime. (See People v. Strong, supra, 13 Cal.5th at p. 708; People
v. Lewis, supra, 11 Cal.5th at p. 957; Gentile, supra, 10 Cal.5th at
p. 843.) If a section 1172.6 petition contains all the required
information, the court must appoint counsel to represent the
petitioner if requested. (Lewis, at pp. 962-963; see § 1172.6, subd.
3 The Legislature later renumbered former section 1170.95 to
section 1172.6 without changing the text of the statute. (See
People v. Strong, supra, 13 Cal.5th at p. 708, fn. 2.)
7
(b)(1)(A), (3).) The prosecutor must then file a response to the
petition, the petitioner may file a reply, and the court must hold a
hearing to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief. (§ 1172.6, subd. (c).)
Where, as here, the petitioner makes the requisite prima
facie showing he or she is entitled to relief under section 1172.6,
the court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1172.6, subd. (d)(1).) At that hearing 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).) The petitioner and the
prosecutor may also offer new or additional evidence. (Ibid.; see
People v. Gentile, supra, 10 Cal.5th at pp. 853-854.)
On appeal from an order denying a petition under section
1172.6, we review the trial court’s factual findings for substantial
evidence. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 125;
People v. Richardson (2022) 79 Cal.App.5th 1085, 1090.) We
““‘examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the defendant guilty] beyond a reasonable doubt.’” [Citation.]
Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
8
rational fact finder’s findings beyond a reasonable doubt.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298; see
Guiffreda, at p. 125.) “‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’” (People v. Brooks (2017) 3 Cal.5th 1, 57; see
People v. Nieber (2022) 82 Cal.App.5th 458, 476.)
B. The Superior Court Did Not Err in Denying Stefin’s
Petition
Stefin contends substantial evidence did not support the
superior court’s finding he “is guilty of implied malice murder.”
Specifically, Stefin argues “he cannot be held liable for the
killings of the two victims because the actus reus required for
murder is missing.”
1. Aiding and Abetting an Implied Malice Murder
“Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (§ 187, subd. (a).) Malice “may
be express or implied.” (§ 188, subd. (a).) A person has acted
with implied malice “if he (1) intentionally committed an act;
(2) the natural and probable consequences of the act were
dangerous to human life; (3) at the time he acted, he knew his act
was dangerous to human life; and (4) he deliberately acted with
conscious disregard for human life.” (People v. Navarette (2016)
4 Cal.App.5th 829, 843-844; accord, People v. Glukhoy (2022)
77 Cal.App.5th 576, 587-588 (Glukhoy).) “In short, implied
malice requires a defendant’s awareness of engaging in conduct
that endangers the life of another—no more, and no less.”
(People v. Knoller (2007) 41 Cal.4th 139, 143; accord, People v.
9
Cravens (2012) 53 Cal.4th 500, 507; People v. Palomar (2020)
44 Cal.App.5th 969, 974.)
In addition, under principles of direct aiding and abetting,
“an accomplice is guilty of an offense perpetrated by another if
the accomplice aids the commission of that offense with
‘knowledge of the direct perpetrator’s unlawful intent and [with]
an intent to assist in achieving those unlawful ends.’” (Gentile,
supra, 10 Cal.5th at p. 843; cf. id. at p. 844 [“Unlike direct aiding
and abetting liability, culpability under the natural and probable
consequences theory does not require an accomplice to share the
direct perpetrator’s intent.”].) An accomplice thus may be guilty
of second degree murder for directly aiding and abetting
another’s commission of an implied malice murder. (Glukhoy,
supra, 77 Cal.App.5th at p. 588; accord, People v. Langi (2022)
73 Cal.App.5th 972, 979; People v. Superior Court (Valenzuela)
(2021) 73 Cal.App.5th 485, 499 (Valenzuela); People v. Powell
(2021) 63 Cal.App.5th 689, 711-714; see Gentile, at p. 850.) This
theory of murder liability remains valid notwithstanding the
Legislature’s changes to the definition of the crime of murder.
(Gentile, at p. 850; see Valenzuela, at p. 499 [statutory changes
prohibiting aiding and abetting liability under a natural and
probable consequences theory do not preclude a conviction for
directly aiding and abetting implied malice murder because
“direct aiding and abetting of an implied malice murder is based
on ‘the aider and abettor’s own mens rea’”].)
“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
10
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.” (People v. Powell, supra,
63 Cal.App.5th at p. 713; accord, Glukhoy, supra, 77 Cal.App.5th
at p. 588; see ibid. [by “‘life endangering act’ we mean an act for
which the natural and probable consequences are dangerous to
human life and proximately caused death”].)
2. Substantial Evidence Supported the Superior
Court’s Finding Stefin Directly Aided and
Abetted Implied Malice Murder
Stefin does not dispute that substantial evidence supported
the finding Bolden acted with implied malice in killing Scott and
Williams.4 And, indeed, from the way Bolden threatened others
with his gun at the restaurant, repeatedly giving orders at
gunpoint, the superior court could reasonably infer he was aware
his using a loaded nine-millimeter pistol to carry out a robbery
endangered other people’s lives. (See Valenzuela, supra,
73 Cal.App.5th at p. 502 [implied malice “can exist even if the act
results in an accidental death,” and “like all other elements of a
crime, implied malice may be proven by circumstantial
evidence”].)
Did Stefin aid and abet those implied malice killings?
Substantial evidence supported the court’s finding he did. As for
4 A separate jury found Bolden guilty of first degree murder
for killing Scott and Williams. (Bolden, supra, B186192.)
11
the actus reus requirement, Stefin aided in Bolden’s commission
of the life endangering act (i.e., carrying out a robbery with a
nine-millimeter pistol) by, at a minimum, helping overcome and
subdue the occupants of the restaurant and then helping keep
them subdued by his armed presence. The superior court could
also reasonably infer Stefin had the requisite mens rea. The
robbery was planned; Stefin agreed to participate; and from at
least the moment Bolden ordered Scott out of his car at gunpoint,
it was apparent Bolden intended to use his pistol to carry out the
robbery—facts suggesting that Stefin knew Bolden intended to
carry out a robbery using the pistol and that Stefin intended to
aid him in it. Especially given Stefin knew Bolden was
impetuous enough to shoot a young girl to death after a brief
confrontation the night before, the superior court could also
reasonably infer Stefin knew Bolden’s use of a loaded pistol to
carry out a robbery was dangerous to human life. That Stefin
nevertheless continued to assist Bolden in that act demonstrated
Stefin’s conscious disregard for human life.
Stefin argues that, under the provocative act doctrine, more
was required to convict him for the murders of Scott and
Williams. Courts developed the provocative act murder doctrine
to address murder liability in circumstances in which neither the
defendant nor his accomplice, but a third party—such as a
robbery victim or a responding police officer—committed the
killing.5 (See People v. Cervantes (2001) 26 Cal.4th 860, 867-869;
5 It “was originally conceived as a form of implied malice
murder, derived as an offshoot of the felony-murder rule.”
(People v. Cervantes (2001) 26 Cal.4th 860, 867; see People v.
Washington (1965) 62 Cal.2d 777, 783 [“for a defendant to be
guilty of murder under the felony-murder rule the act of killing
12
Pizano v. Superior Court (1978) 21 Cal.3d 128, 134-139; People v.
Gilbert (1965) 63 Cal.2d 690, 704-705; People v. Washington
(1965) 62 Cal.2d 777, 781-782.) “Reduced to its essence,” the
doctrine provides that, “‘when the perpetrator of a crime—with a
conscious disregard for life—intentionally commits an act that is
likely to result in death and the crime victim [or other third
party] kills in reasonable response to that act, the perpetrator is
guilty of murder.’”6 (People v. Mejia (2012) 211 Cal.App.4th 586,
602-603; see Cervantes, at p. 868; but see Pizano, at p. 138 [“the
reasonable response test is clearly inappropriate” in human-
shield cases, where the proper test is whether the act committed
with conscious disregard for life proximately caused the killing].)
“If the underlying crime which provokes the killing does not
require an intent to kill, the provocative conduct must be an act
beyond that necessary simply to commit the crime.” (Mejia, at
p. 604; accord, People v. Briscoe (2001) 92 Cal.App.4th 568, 583;
see In re Joe R. (1980) 27 Cal.3d 496, 503, 516 [reversing a
murder finding under the provocative act doctrine because the
must be committed by the defendant or by his accomplice acting
in furtherance of their common design.”].)
6 The provocative act doctrine “has traditionally been
invoked in cases in which the perpetrator of the underlying crime
instigates a gun battle, either by firing first or by otherwise
engaging in severe, life-threatening, and usually gun-wielding
conduct, and the police, or a victim of the underlying crime,
responds with privileged lethal force by shooting back and killing
the perpetrator’s accomplice or an innocent bystander.” (People v.
Cervantes, supra, 26 Cal.4th at p. 867; see People v. Mejia (2011)
211 Cal.App.4th 586, 602-603.)
13
evidence showed “no life-threatening acts on his part other than
those implicit in the crime of armed robbery”].)
Stefin acknowledges the provocative act murder doctrine
does not apply here because the killer was his accomplice, not a
third party. “But,” he argues, “the theoretical underpinnings of
that doctrine nevertheless provide guidance as to the
requirements for liability as an accomplice to implied malice
murder during a robbery, not limited to situations in which the
actual killer is a third party.” Borrowing from the liability
requirements of the provocative act murder doctrine, he then
suggests he cannot be liable for implied malice murder here
because “there was no evidence that [he] did anything more than
participate in the robbery.” This argument, though creative, does
not persuade.
First, Stefin has not cited a single case applying the
liability requirements of the provocative act doctrine when the
defendant or his accomplice committed the killing. Second, to
support his suggestion that provocative act murder principles
provide guidance for assessing murder liability in cases other
than those in which the actual killer is a third party, Stefin
quotes the Supreme Court’s statement in People v. Pizano, supra,
21 Cal.3d at page 136 that the doctrine’s principles “‘are not
limited to cases in which the person actually committing the
homicide is either a victim of the felony or a police officer.’” The
context of that statement, however, reveals the Supreme Court’s
point was that provocative act murder principles may extend to
cases in which the killer is not a victim or a police officer but
some other third party, such as, in that case, a neighbor who
acted to prevent a robbery. (See Pizano, at pp. 132, 136.)
14
Nothing in Pizano suggests the doctrine or its principles apply in
cases where the defendant or an accomplice is the killer.
Third, even if we were to apply the provocative act doctrine
principle Stefin invokes and to require evidence he engaged in
provocative conduct beyond that of merely participating in an
armed robbery (see In re Joe R., supra, 27 Cal.3d at p. 504 [“mere
participation in an armed robbery is not sufficient to invoke
murder liability . . . when the victim resists and kills”]), there
was such evidence here. Personally armed with a rifle, Stefin
helped two other armed accomplices—one of whom he knew was
capable of shooting someone to death for little more than arguing
with him—overcome the occupants of the restaurant, order them
to their knees at gunpoint, and hold them captive while
ransacking the restaurant for an elusive cache of money and
marijuana. Stefin engaged in “severe, life-threatening, and . . .
gun-wielding conduct” that was more provocative of a gun (and
meat cleaver) battle than what is implicitly necessary to commit
an armed robbery. (People v. Cervantes, supra, 26 Cal.4th at
p. 867; accord, People v. Mejia, supra, 211 Cal.App.4th at
pp. 602-603; see Taylor v. Superior Court (1970) 3 Cal.3d 578, 583
[armed robbers’ “coercive conduct” toward their victim and
demeanor suggesting emotional instability and a propensity for
gratuitous violence “was sufficiently provocative of lethal
resistance to support a finding of implied malice” under the
provocative act doctrine], overruled on another ground in People
v. Antick (1975) 15 Cal.3d 79, 91, fn. 12; see also Joe R., at p. 505
[describing the holding in Taylor].)
15
DISPOSITION
The order denying Stefin’s petition under section 1172.6 is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
16