People v. Trujillo CA2/3

Filed 9/6/23 P. v. Trujillo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317664
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA071027
v.
FERNANDO TRUJILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Emry J. Allen, 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, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2008, defendant and appellant Fernando Trujillo was
convicted of second degree murder. Trujillo now appeals from an
order denying his petition for resentencing under Penal Code
section 1170.95.1 The trial court concluded Trujillo was not
eligible for resentencing because he was a direct aider and
abettor who acted with implied malice in the murder of Miguel
Amezcua.2 Trujillo argues that the court’s findings are not
supported by substantial evidence. We disagree and affirm the
denial of Trujillo’s petition for resentencing.
FACTS AND PROCEDURAL BACKGROUND
1. The Offense3
The murder took place on July 21, 2006, in the midst of a
backyard party at a home in Wilmington. A disc jockey was
playing music and people were dancing, drinking beer, and
socializing. The party was attended by approximately 50 people.
1 All further undesignated statutory references are to the Penal Code.
Effective June 30, 2022, former section 1170.95 was renumbered to
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) We
refer to the law formerly codified at section 1170.95 as section 1172.6
for the remainder of this opinion.
2 We reference herein both Miguel Amezcua and his brother, Luis
Amezcua. To avoid confusion, we use the brothers’ first names. We
may also refer to Miguel as the victim. No disrespect is intended.
3 We take our statement of facts from evidence admitted at the 2008
trial, specifically the trial testimony of the victim’s brother who
witnessed the murder, other witnesses who attended the party that
preceded the murder, and the medical examiner who conducted the
victim’s autopsy. (§ 1172.6, subd. (d)(3).)
2
At least 10 members of the Eastside Wilmas gang, including
Michael Robles and Trujillo, were present and socializing
together. Miguel and his brother Luis were also at the party.
At some point around 11:30 p.m., a conflict arose.
Approximately eight gang members, including Trujillo, began
attacking two friends of Miguel’s but they got away and went
inside the home. After the disc jockey heard about the scuffle, he
stopped the music, announced that the party was over, and
directed everyone to leave the backyard using a gate toward the
front of the residence, near the garage. Several minutes passed as
the partygoers left the backyard.
Meanwhile, Luis, who had been inside the home briefly,
exited the front door of the home and saw Miguel arguing with
one of the gang members in front of the garage. After Miguel
made a sharp movement toward that gang member,
approximately six other gang members, including Trujillo, began
beating Miguel. Luis approached but was attacked by someone
else.
As Miguel attempted to cross the front yard toward his car,
the gang members, including Trujillo, persisted in their beating.
Miguel was unable to defend himself. A single shot was fired,
followed by a pause. The gang members continued to kick and
punch Miguel, even as he fell to the ground, face down and
unmoving. After a minute or two, the gang members stopped and
stepped back. Robles fired at least two shots at Miguel, who was
still on the ground, including one shot to the back of his head at
close range. Miguel died at the scene.
The coroner’s examination revealed that Miguel sustained
extensive blunt force trauma to his head, torso, and extremities,
and two gunshot wounds. He had no bruising on his hands.
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2. Conviction, Sentence, and Direct Appeal4
Robles and Trujillo were charged with murder committed
for the benefit of a criminal street gang. (§§ 187, 186.22,
subd. (b)(1)(C).) Both defendants were also charged with multiple
sentencing enhancements relating to Robles’s use of a firearm.
(§ 12022.53, subds. (b)–(e).)
In 2008, Robles and Trujillo were tried together before a
jury. As pertinent here, the jury was instructed on murder with
express or implied malice, degrees of murder, aiding and
abetting, natural and probable consequences, simple assault, and
simple battery.5 During her closing argument, the prosecutor
argued that Trujillo could be found guilty of murder as a direct
aider and abettor or under the natural and probable
consequences theory. The jury convicted Robles of first degree
murder and convicted Trujillo of second degree murder. As to
both defendants, the jury found the gang and firearm allegations
true. The court sentenced Robles to a prison term of 50 years to
life and sentenced Trujillo to a prison term of 40 years to life.
We affirmed both convictions on direct appeal in People v.
Trujillo et al. (Oct. 6, 2009, B207534) [nonpub. opn.].6
4 Procedural facts are taken in part from People v. Trujillo et al., supra,
B207534 [nonpub. opn.]. (§ 1172.6, subd. (d)(3).)
5 Simple assault and simple battery were the target offenses related to
the natural and probable consequences theory.
6 We also affirmed the court’s denial of Robles’s motion for new trial in
People v. Trujillo (May 4, 2012, B234294) [nonpub. opn.].
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3. Petition for Resentencing, Ruling, and Appeal
In January 2019, Trujillo filed a petition for resentencing
under former section 1170.95. The trial court appointed counsel
for Trujillo, ruled that he established a prima facie case of
eligibility for relief, and issued an order to show cause.
After briefing by both parties, the trial court held an
evidentiary hearing. The prosecution did not offer new evidence.
Accordingly, the court relied on the petition, opposition, and
supplemental briefs, as well as the court record including
exhibits, transcripts, and minute orders. The trial court found the
evidence proved beyond a reasonable doubt that Trujillo acted as
a direct aider and abettor in the murder and acted with implied
malice. Specifically, the court made the following finding:
“Petitioner Fernando Trujillo with other gang members actively
and directly participated in a multi-staged assault upon Miguel
Amezcua that resulted in Amezcua’s death. Petitioner could have
left after the first assault in the backyard. He and fellow gang
members chose instead to assault the victim in front of the house.
Petitioner did not walk away after the first or second blow to
Amezcua. He continued the assault until its purpose, the death of
Amezcua, was achieved.”
The court denied Trujillo’s petition for resentencing.
Trujillo timely appeals.
DISCUSSION
1. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437) eliminated the natural and probable consequences doctrine
as a basis for finding a defendant guilty of murder and limited
the scope of the felony murder rule. (People v. Reyes (2023) 14
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Cal.5th 981, 984 (Reyes); People v. Strong (2022) 13 Cal.5th 698,
707–708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile).) The bill amended section 188 by adding the
requirement that, except as stated in section 189, subdivision (e),
“in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).)
Senate Bill 1437 also created a procedure, now codified at
section 1172.6, for a person convicted of murder under the former
law to be resentenced if he or she could no longer be convicted of
murder under amended section 188. (Lewis, supra, 11 Cal.5th at
p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant begins
by filing a petition containing a declaration that, among other
things, he or she could not presently be convicted of murder
under the current law. (Strong, supra, 13 Cal.5th at p. 708.) If the
court receives a petition that establishes a prima facie case for
relief, it must appoint counsel for the petitioner, if requested. The
trial court also must issue an order to show cause and hold an
evidentiary hearing. (Ibid.; § 1172.6, subds. (b)(3), (c), & (d)(1).)
At the evidentiary hearing, it is the prosecution’s burden to prove
beyond a reasonable doubt that the petitioner is ineligible for
resentencing. (§ 1172.6, subd. (d)(3); Strong, at pp. 708–709;
People v. Vargas (2022) 84 Cal.App.5th 943, 951.) If the trial
court finds beyond a reasonable doubt that the petitioner is guilty
of murder notwithstanding the amendments to sections 188 and
189, the petitioner is ineligible for relief under section 1172.6.
(Strong, at pp. 708–709; Vargas, at p. 951.)
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2. Standard of Review
We review the trial court’s findings for substantial
evidence. (Reyes, supra, 14 Cal.5th at p. 988.) Under this
standard, we review 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—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (Ibid.) We do not
resolve credibility issues or evidentiary conflicts. (People v. Owens
(2022) 78 Cal.App.5th 1015, 1022.) Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.)
Before we may set aside a trial court’s order, it must be clear that
“ ‘ “upon no hypothesis whatever is there sufficient evidence to
support [it].” ’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
3. Substantial evidence supports the court’s finding that
Trujillo is ineligible for relief under section 1172.6.
The court found Trujillo ineligible for relief under section
1172.6 because the prosecution proved beyond a reasonable doubt
that he was a direct aider and abettor of the murder who acted
with implied malice. Substantial evidence supports the court’s
finding.
3.1. Legal Principles
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) “It is express when there is a manifest
intent to kill (§ 188, subd. (a)(1)); it is implied if someone kills
with ‘no considerable provocation … or when the circumstances
attending the killing show an abandoned and malignant heart.’
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(§ 188, subd. (a)(2)).” (Gentile, supra, 10 Cal.5th at p. 844.) “The
primary difference between express malice and implied malice is
that the former requires an intent to kill but the latter does not.”
(People v. Soto (2018) 4 Cal.5th 968, 976.)
As noted, Senate Bill 1437 limited the circumstances in
which a defendant such as Trujillo, who did not commit the
murder, can nonetheless be convicted of murder. Direct aiding
and abetting is one such circumstance and it remains a viable
theory of conviction. Our Supreme Court has recognized 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.’ ” (Reyes, supra, 14 Cal.5th at
p. 990, citing Gentile, supra, 10 Cal.5th at p. 850.)
The court recently clarified the direct aiding and abetting
theory of implied malice murder:
“ ‘[D]irect aiding and abetting is based on the combined
actus reus of the participants and the aider and abettor’s own
mens rea. ([People v. McCoy (2001) 25 Cal.4th 1111, 1122.]) In the
context of implied malice, the actus reus required of the
perpetrator is the commission of a life endangering act. For the
direct aider and abettor, the actus reus includes whatever acts
constitute aiding the commission of the life-endangering act.
Thus, to be liable for an implied malice murder, the direct aider
and abettor must, by words or conduct, aid the commission of the
life-endangering act, not the result of that act. The mens rea,
which must be personally harbored by the direct aider and
abettor, is knowledge that the perpetrator intended to commit
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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 [(2021)] 63
Cal.App.5th [689,] 712–713, fn. omitted; and see id. at p. 713,
fn. 27 [‘The relevant act is the act that proximately causes
death.’].)
“Powell further explained: ‘The reason why there is a
dearth of decisional law on aiding and abetting implied malice
murder may be the heretofore availability of the natural and
probable consequences doctrine for second degree murder, which
was easier to prove. … [T]he natural and probable consequences
doctrine did not require that the aider and abettor intend to aid
the perpetrator in committing a life-endangering act … . What
was natural and probable was judged by an objective standard
and it was enough that murder was a reasonably foreseeable
consequence of the crime aided and abetted.’ ([People v.] Powell,
supra, 63 Cal.App.5th at p. 711, fn. 26.)” (Reyes, supra, 14 Cal.5th
at pp. 990–991.)
3.2. Analysis
Viewing the evidence in the light most favorable to the trial
court’s order, the record contains substantial evidence that
Trujillo acted with implied malice when he aided and abetted the
killing of Miguel Amezcua.
As to the actus reus, Trujillo’s conduct plainly aided the
murder. Trujillo participated in the severe beating of the victim
prior to the shooting. That beating rendered the victim unable to
fight back and, eventually, the victim was face down on the
ground and immobile. This provided Robles the opportunity to
shoot the victim at close range without any resistance.
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As to Trujillo’s mens rea, the evidence supports a
reasonable inference that Trujillo knew Robles intended to shoot
the victim and intended to aid him in doing so. Specifically, while
the beating was underway, one shot was fired. Although no
witness testified Robles fired that shot, he was the only person
seen to be armed. It is therefore reasonable to infer that Robles
fired that shot. Undoubtedly, the first shot, followed by a pause,
put the other gang members on notice that Robles was armed and
intended to use his gun. The obvious target was, of course, the
victim of the beating. The fact that the beating continued after
the first shot also strongly suggests that the participants,
including Trujillo, were aware that the beating would subdue the
victim so that Robles could shoot him easily at close range and
without any concern for his own safety. Certainly, Trujillo knew
that firing a gun at a person is dangerous to human life. As a
long-time gang member who lost a friend in a gang-related
shooting, and as a victim of a gang-related shooting himself,
Trujillo was aware of the consequences of gun violence.
Finally, the circumstances demonstrate that Trujillo acted
with a conscious disregard for human life. According to
eyewitnesses, the beating was severe and continued for several
minutes. The victim could not fight back, nor could he escape.
The victim’s brother was prevented from coming to his aid by
another gang member. And the beating continued after Robles
fired his gun the first time and even after the victim fell to the
ground and appeared to be unconscious.
In short, this substantial evidence supports the court’s
finding beyond a reasonable doubt that Trujillo aided and abetted
the murder with implied malice. (See, e.g., People v. Schell (2022)
84 Cal.App.5th 437, 442–443 [finding evidence sufficient to
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support implied malice second degree murder where defendant
was one of at least eight gang members who participated in
assault, defendant knew he was aiding in the attack, he knew
others were using dangerous weapons in the attack, and he
intended to stop the victim from escaping].)
In his first two arguments, Trujillo contends that the court
could not reasonably have found that he committed a willful,
deliberate, and premeditated murder, i.e., murder in the first
degree. But because the jury convicted Trujillo of second degree
murder rather than murder in the first degree, this argument is
misdirected. Trujillo also asserts that the facts do not support a
finding that he acted with express malice. We need not address
this contention, however, as we have concluded that substantial
evidence supports the court’s finding that Trujillo acted with
implied malice and such a finding is sufficient to support his
conviction.
Next, Trujillo argues that a necessary element of implied
malice is “a conscious disregard for human life” and that neither
the jury nor the trial court made that specific finding. We agree
with Trujillo that a conscious disregard for human life is a
necessary element of implied malice. (Reyes, supra, 14 Cal.5th at
pp. 991–992.) We also agree that the jury’s verdict of second
degree murder does not indicate, one way or the other, whether
the jury relied on the natural and probable consequences theory
(which did not require the jury to find that he acted with implied
malice) or the aiding and abetting theory (which did require a
finding of implied malice.) But in the context of a petition for
resentencing under section 1172.6, the question for the court,
sitting as a trier of fact, is whether the prosecution can prove the
defendant’s guilt under a now-viable theory of conviction.
11
(§ 1172.6, subd. (d)(3).) In other words, the court considers that
question anew and is typically not concerned with the jury’s
theory of conviction which is, in any event, unknown in this case
because the jury was not asked to consider a special allegation or
finding on that point. (Cf. People v. Henley (2022) 85 Cal.App.5th
1003, 1020–1021 [noting trial court considering a petition for
resentencing may not make a factual finding that directly
contradicts a jury’s finding on a special allegation].)
Finally, Trujillo appears to contend that the court’s finding
of implied malice is defective because the court used the phrase
“reckless indifference to human life” rather than “conscious
disregard for human life.” Specifically, he claims “[t]he finding
that [Trujillo] exhibited a ‘reckless indifference to human life’
does not address the immediacy of the threat or [Trujillo’s]
awareness of it.” Oddly, however, Trujillo does not discuss the
evidence nor does he explain why the evidence does not support a
finding that he acted with a conscious disregard for human life.
He simply parses the court’s order and leaves it at that. This
approach does not address the question before us, i.e., whether
substantial evidence supports the court’s finding that Trujillo
acted with implied malice. We reject this argument without
further discussion. (See Meda v. Autozone, Inc. (2022) 81
Cal.App.5th 366, 383 [noting matters not properly raised or that
lack adequate legal discussion will be deemed forfeited].) In any
event, as we have already explained, substantial evidence
supports the court’s finding that Trujillo acted with implied
malice.
In sum, the court did not err in denying Trujillo’s petition
for resentencing under section 1172.6.
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DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
HEIDEL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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