People v. Ventura CA2/8

Filed 6/8/23 P. v. Ventura CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318722
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA209530
v.
JESSE VENTURA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed.
Vanessa Place, 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, Charles S. Lee and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Jesse Ventura appeals an order denying his petition for
resentencing pursuant to Penal Code section 1172.6. In 2001, a
jury found Ventura guilty of second degree murder of Joel
Gonzalez. The resentencing case was at the evidentiary hearing
stage, during which the prosecution needed to prove, beyond a
reasonable doubt, Ventura was guilty under currently-valid law.
(See id., subd. (d).) The court found beyond a reasonable doubt
that Ventura was guilty under currently-valid law, and
substantial evidence supports this finding, so we affirm. All
references are to the Penal Code unless otherwise specified.
I
We grant the prosecution’s request for judicial notice of the
appellate record from Ventura’s direct appeal (B155942) and his
first resentencing appeal (B297443). (See Evid. Code, §§ 459,
452.) We use these records to recount the facts of Ventura’s case.
Eyewitness Irma Gonzalez testified at Ventura’s trial. On
September 27, 2000, she and her brother Joel Gonzalez were
walking home from school. A blue car with three occupants
approached them at about five miles per hour. Irma Gonzalez
recognized the driver, Ventura, from seeing him many times at
high school. The occupants stared at the siblings and passed
them. Joel Gonzalez told Irma Gonzalez he did not know them.
The siblings continued walking for about 10 minutes. The
blue car parked behind a truck that blocked the siblings’ view.
“[O]ut of nowhere” the three occupants, including Ventura,
approached and blocked the siblings’ path. The person who had
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been in the front passenger seat wore a red bandana across his
face, held a gun in his hand, and walked toward Joel Gonzalez.
Ventura was about eight feet from the gunman.
The gunman repeatedly asked Joel Gonzalez about his
gang affiliation and Joel Gonzalez repeatedly denied being in a
gang. The gunman pointed the gun at Joel Gonzalez and lifted
Joel Gonzalez’s shirt to look for gang tattoos, but found none.
The gunman looked at Ventura and motioned his head left
to right and then up and down. Ventura had his hand on his chin
and nodded his head up and down several times. The third
occupant looked down. The gunman pointed the gun at Irma
Gonzalez and told her to move. She complied. The gunman then
shot Joel Gonzalez one time. Joel Gonzalez fell to the ground.
The gunman shot him several more times.
The three occupants ran to the car. Ventura returned to
the driver’s seat. He drove away quickly.
Detectives interviewed Ventura, who gave several different
accounts. The jury at Ventura’s trial had transcripts of these
interviews and the detective who interviewed Ventura testified.
First, Ventura denied knowing anything about the
shooting.
Second, he admitted giving a ride to two people he did not
know well. While he was driving, the person in the front
passenger’s seat said, “There goes an enemy.” Ventura parked
the car. The two people ran out, but Ventura remained in the
car. Ventura heard one shot, the two people ran back to the car,
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and he “took off.” He dropped them off where he had picked them
up. He did not find out about the shooting until later that day.
Third, Ventura gave a similar account to the second
account with additional information. Ventura said his friend
called him at home. He and the friend “always joked, we always
were friends.” Ventura later said he had only known this friend
for two months. Ventura thought the friend was from the gang
“MS.” Ventura picked up the friend and another person. They
were driving around when they saw “this fool who is a rival
gangster.” The friend and the other person had seen the rival
before when the rival was “gangbanging.” Ventura told
detectives, “I know he was a rival gangster.” Ventura parked, got
out of the car with the other two, but returned to the car before
the shooting. Ventura saw the shooting, then “[w]e took off,” and
Ventura dropped the friend at the friend’s house.
The court instructed the jury on first and second degree
murder. Under these instructions, the jury could convict Ventura
of second degree murder under any one of three theories: (1) he
“intended unlawfully to kill a human being but the evidence is
insufficient to prove deliberation and premeditation,” (2) he aided
and abetted an assault with a deadly weapon and the murder
was a natural and probable consequences of the assault, or (3) he
aided and abetted the exhibition of a firearm and the murder was
a natural and probable consequences of exhibiting the firearm.
The jury found Ventura guilty of second-degree murder
(§ 187, subd. (a)) and found true allegations a principal was
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armed (§ 12022, subd. (a)(1)) and a principal fired a gun, causing
death (§ 12022.53, subd. (d) & (e)). The jury found a gang
enhancement allegation not true. (§ 186.22, subd. (b)(1).)
The trial court sentenced Ventura to state prison for 16
years to life. In 2002, this court affirmed Ventura’s convictions.
(People v. Ventura (Dec. 23, 2002, B155942) [nonpub. opn.].)
On January 8, 2019, Ventura filed a petition for
resentencing. The court denied the petition because it found the
preliminary hearing transcript from Ventura’s trial showed he
actively participated in the murder. The court also found the
resentencing law unconstitutional. We reversed the court’s
denial order and remanded for further proceedings. (People v.
Ventura (Oct. 30, 2020, B297443) [nonpub. opn.].)
On remand, the court issued an order to show cause. The
prosecution and Ventura filed briefs. The court denied the
petition. It noted the beyond a reasonable doubt burden of proof
and said it reviewed the record, including the trial transcripts
and clerk’s transcripts from the jury trial. The court found
Ventura was a major participant who acted with reckless
indifference to human life and had a specific intent to kill.
The court explained:
“The defendant and his fellow gang members
for no reason whatsoever follow them in a car as if
stalking them. A statement is heard coming from the
car, ‘There’s an enemy.’
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“The defendant and his gang drive ahead of the
siblings and block their path with their car as they
all exit the car and confront and further block the
path to not permit escape, then, in gang terms, hit
them up.
“The siblings deny gang relations. The
defendant and his friends inspect the boy and see no
tattoos or gang markings. . . . He had none.
“The gang members ask each other whether the
boy should be shot or not. They all agree with
gestures that clearly indicate their consent to kill.
The defendant, as all the others, gave his consent.
They command the sister to move away from the
brother. And the sister testifies, ‘[h]e shot my
brother one time. And my brother closed his eyes,
[and my brother] dropped his head, and my brother
fell to the floor.[’ (Quotation from the trial
transcript).] And then they shot him six more times.
They got in the car and left.[]
“The facts being relitigated shock the
conscience of this Court. There is a severe, to this
Court, depraved lack of humanity, morals, and
sociological norms. It so utterly and clearly
demonstrates that the defendant had, in this Court’s
opinion, a dark, cold-hearted evil, a brutal, empty
callousness to him. And for what? For each
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participant, including the defendant, to show their
gang prowess, their might, and their control.
“It was a complete gang case shooting, of which
we have unfortunately seen thousands in the history
of this county and state and will no doubt see
thousands more.
“But in this case, the record is replete with
facts that detail that the defendant acted with
reckless indifference to human life and was a major
participant in the murder. . . .”
The court went on to cite several facts: the “stalking” of the
siblings in the car; the statement about the “enemy”; the blocking
of the siblings’ path; the questioning about gang affiliation;
Ventura’s consent to the murder; the shooter’s several shots; and
the fleeing together in Ventura’s car.
II
There is substantial evidence Ventura was ineligible for
relief because he was guilty of second degree murder under an
implied malice aiding and abetting theory.
We review the trial court’s findings for substantial
evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298;
People v. Vivar (2021) 11 Cal.5th 510, 528, fn. 7 [Vivar did not
disturb the familiar substantial evidence standard of review for
trial court factual findings].)
Section 1172.6 sets out a procedure for those convicted of
felony murder or murder under the natural and probable
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consequences theory to petition the sentencing court to vacate
their conviction.
The final step is an evidentiary hearing, during which the
prosecution must prove, beyond a reasonable doubt, the
petitioner is guilty under currently-valid law. (§ 1172.6, subd.
(d).) At this hearing, the court may consider evidence from any
earlier hearing or trial if that evidence is admissible under
current law. (Ibid.) If the prosecution does not sustain its
burden of proof, the court must vacate the conviction and
resentence the petitioner on any remaining charges. (Ibid.)
One currently-valid theory of murder is aiding and abetting
with implied malice.
A person who aids and abets a crime is culpable as a
principal in that crime. (People v. Gentile (2020) 10 Cal.5th 830,
843 (Gentile).) An aider and abettor’s guilt is based on the direct
perpetrator’s acts and the aider and abettor’s own acts and own
mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
Proof of aiding and abetting liability requires proof of (1) the
direct perpetrator’s actus reus; (2) the aider and abettor’s mens
rea, which is knowledge of the direct perpetrator’s unlawful
intent and an intent to assist in achieving the unlawful ends; and
(3) the aider and abettor’s actus reus, which is conduct that in
fact assists the crime. (People v. Perez (2005) 35 Cal.4th 1219,
1225.)
Aiders and abettors who do not expressly intend to aid a
killing can be convicted of second degree murder if they know
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their conduct endangers the life of another and they act with
conscious disregard for life. (Gentile, supra, 10 Cal.5th at p. 850;
People v. Langi (2022) 73 Cal.App.5th 972, 979.)
Section 1172.6 bars convictions for second degree murder
under the natural and probable consequences theory, but it does
not alter the law for direct aiders and abettors. (People v. Offley
(2020) 48 Cal.App.5th 588, 595–596.)
The currently-valid implied malice theory of murder
applies to this case and substantial evidence supports the court’s
determination Ventura was ineligible for resentencing.
The direct perpetrator, the shooter, had the requisite actus
reus: he shot Joel Gonzalez several times.
Ventura knew of the shooter’s unlawful intent and
intended to assist the shooting. When Ventura pulled his car
over in front of the siblings, he knew the shooter as a friend,
knew the shooter was a gang member, and knew the shooter
identified Joel Gonzalez as a rival and an enemy. This creates a
reasonable inference Ventura knew the shooter’s intent and
Ventura intended to assist in the shooting. The shooter had the
gun trained on Joel Gonzalez before he looked to Ventura. At
eight feet away, the most reasonable inference is that Ventura
knew the shooter was armed with a gun and knew he was asking
for Ventura’s approval to shoot. Ventura’s responsive nods
demonstrate he approved and intended the shooting. We can
infer Ventura knew the nods endangered Joel Gonzalez’s life, and
Ventura had conscious disregard for his life. Ventura’s nimble
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escape after the shooting manifested completion of an intended
task, not shock or horror.
Ventura’s acts assisted the shooting. He drove slowly by
the siblings, parked in a discreet position along their path, and
helped block them. He nodded to approve the shooting. He
ferried the group away afterwards.
The jury’s not true finding for the gang allegation did not
preclude a finding of implied malice. The jury found it was not
true the murder “was committed for the benefit of, at the
direction of, and in association with a criminal street gang with
the specific intent to promote, further and assist in criminal
conduct by gang members, within the meaning of [] Section
186.22(b)(1).”
It is unclear what this not true finding proves. Ventura
says it “necessarily precluded any finding at resentencing that
appellant committed a gang murder or relying on that factor to
establish the requisite mens rea for malice murder.” But what
does “gang murder” and “that factor” mean? The gang allegation
has multiple parts: benefit, association, or direction; the
existence of a criminal street gang; and specific intent to assist
criminal gang conduct. The jury may have found one, two, or all
of these parts lacking. The finding therefore did not prohibit the
resentencing court from mentioning gangs altogether. Nor did it
disallow discussions and findings about concerted group action.
The jury’s finding here may have reflected merely that it
believed there was no intent to promote criminal gang conduct.
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The resentencing court largely relied on facts that did not
necessarily conflict with a lack of intent to promote criminal gang
conduct, such as Ventura’s actions as the driver and his nod to
approve the shooting. The evidence the shooter called Joel
Gonzalez an “enemy” before Ventura pulled over came from
Ventura’s own statements to police. The jury could have believed
the shooter made that statement and still could have found the
gang enhancement not true.
The resentencing court did call the case a “complete gang
case shooting” and said Ventura’s motive was to show “gang
prowess.” These findings arguably conflict with the jury’s not
true finding. We assume without deciding the court erred by
relying on these particular findings. (See People v. Cooper (2022)
77 Cal.App.5th 393, 416–417 [where jury acquitted defendant of
felon in possession of a firearm charge, trial court erred by
denying section 1172.6 relief based on its inconsistent finding
defendant possessed and fired gun].) This was harmless under
any standard because, as we have explained, the resentencing
court largely relied on facts that did not necessarily conflict with
the gang finding. Furthermore, the resentencing court discussed
gangs when it opined about a potential gang motive in the case,
but motive is not a necessary element of second degree murder.
To the extent the court improperly relied on facts that conflicted
with the gang finding, this was harmless.
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DISPOSITION
The order denying Ventura’s petition for resentencing is
affirmed.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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