We reversed that conviction for instructionаl error pursuant to the Supreme Court decision in
On remand, the People accepted the reduction tо second degree murder and defendant was resentenced to an indeterminate term of 15 years to life. Defendant appealed again, raising the issues we had left undecided in the first appeal, affirming the judgment as modified by reducing court facilities assessments. ( People v. Gentile
The California Supreme Court granted review and transferred the case back to us with directions to vacate our decision filed on November 15, 2018 in dеfendant's second appeal, and to reconsider the cause in light of Senate Bill No. 1437, and our determination in the defendant's first appeal that it was probable the jury convicted defendant of murder on the theory he aided and abetted Saundra Roberts in a target crime that, as a natural and probable consequence, resulted in her murder of
After reconsidering the matter in light of Senate Bill No. 1437, we again affirm.
BACKGROUND
We take the facts from our previous opinion
Objectively Established Facts
The undisputed facts show that prior to June 21, 2014, Guillermo Saavedrа lived in the back of the La Casita restaurant in Indio, acting as property caretaker and handyman. On June 23, 2014, at 7:30 a.m., the owner of the property and his son happened to drive past the restaurant and noticed the lights were on, which seemed unusual. They entered the restaurant when
When they arrived at the restaurant, the police found the victim's body, along with a broken chair, a golf club, a wooden stick with blood, and a broken bottle near the body. The victim's cell phone was found in the grass just north of the building. Investigators documented three sets of bloody footprints, at least one of which was a shoeprint, and one of which appeared to have been made by a sock or bare foot. Detectives also collected surveillance videos from the Royal Plaza Inn and from the nearby laundromat. The police obtained and executed various search warrants after viewing еvidence on the surveillance tapes of the nearby Royal Plaza hotel and the laundromat. After reviewing those surveillance videos, police officers visited the areas and found a sock on a bush at the property located between the hotel and the laundromat. The sock appeared to have a reddish-brown substance on it.
Also undisputed are certain movements by defendant and his estranged wife, Saundra Roberts, captured on the surveillance videos. At 1:03 a.m. on June 22, 2014, the defendant approached the night entrance of the Royal Plaza Hotel in Indio and pressed the buzzer. Defendant then went to the door of the hotel manager's apartment, seeking to rent a room. He appeared intoxicated, so the manager declined to rent him a room, although defendant and Roberts were regular tenants, renting a room from her two or three times per month.
The hotel manager also managed the coin-operated laundry located near the hotel. Surveillance video from that location showed Roberts talking with her on-again-off-again boyfriend, Stephen Gardner. Gardner had been contacted by Roberts, who asked him to bring a pair of shorts, a shirt and socks to the laundromat. Roberts sounded panicked, so Gardner thought she was in trouble. He took the clothes to the laundromat where he found Roberts with defendant, which made him angry. The defendant appeared to be wet, and his hands were red.
The victim suffered multiple fractures of his ribs, collarbone, and parts of the spinal structure, as well as lung hemorrhage. The injuries would have required significant blunt force. From the naturе of the injuries, the pathologist opined that multiple blunt impact injuries caused the death. The pathologist also noted that the victim had coronary disease that may have led to
In Court and Out of Court Statements
Roberts gave various accounts of the events. At trial, she testified that she called defendant for help moving from Stephen Gardner's residence on Friday, June 21, 2014, so defendant sent a young man with a truck to move her belongings. She was moving her belongings to the restaurant at which Saavedra, her dear friend, worked security and lived. The restaurant was her "safe house" when she was "at odds" with Gardner. Roberts wanted to introduce defendant to Saavedra because Saavedra wanted to meet defendant. Saavedra wanted to meet defendant because they both had backgrounds serving in the Marines. Later, Edward Cordero, one of defendant's house mates, dropped defendant off at the restaurant.
At the restaurant, the three people drank many beers and martinis over the evening. At one point, Roberts went out to purchase more alcohol, and when she returned, the defendant and Saavedra were still in conversation. At some point, the two men raised their voices at each other, but they did not fight. Eventually, Roberts felt both drunk and like a third wheel, so she left the two men and went to her homeless camp to sleep it off. When she left, there had not been any fighting.
In this version, Roberts indicated that she awoke at around 1:00 or 1:30 a.m., and went to a nearby AM/PM store to buy cigarettes; when she came out she saw defendant across the street at the Royal Plaza Inn hotel. She saw him walk through the parking lot and was curious why he had not gone home. Defendant told her he was trying to get a room at the hotel but was unsuccessful. Defendant was dressеd in the same clothes he had worn earlier but his clothes appeared wet.
For this reason, Roberts contacted Gardner and asked him to bring her some clothes at the laundromat. Gardner was unaware that Roberts wanted the clothing for defendant, so he was surprised and angry to see defendant at
Prior to trial, Roberts gave three other and different statements during interviews with police. In the first pretrial statement, Roberts testified she was living at the restaurant where Saavedra worked, although
A few days after giving her first statement to police, Roberts was interviewed again; this time, the officers wanted her to focus on the events of Saturday. Roberts again told the officers defendant had called her that day, and that she spoke to him in the morning; when she met up with him, defendant was drunk, belligerent, and not himself. After ditching defendant following a trip to her storage unit, she met up with him again at the Jack-in-the-Box, where they got into an argument and went their separate ways. However, she went with defendant to the Royal Plaza Inn that Saturday before noon. Then she was dropped off at the La Casita restaurant in a white car. Saavedra had talked to defendant and invited him over, so defendant showed up at the restaurant at about 8:00 p.m., but Saavedra was not there. Roberts and defendant went to the store to purchase beer and got into another argument. Roberts returned to the restaurant without defendant, and Saavedra had returned. Saavedra told her they should go get the defendant if he were drunk, so Roberts went back and told defendant that Saavedra wanted to meet him.
In this second interview, Roberts repeated the information about Saavedra and defendant discussing their military service, Vietnam in particular, when she went out to purchase more alcohol. When she returned, their voices were raised, but they were not physical. Roberts left to go to her camp, and defendant stayed at the restaurant. She awoke at around 1:30 or 2:00 a.m. to
Roberts was interviewed a third time after the defendant's arrest. She told officers she had spoken by telephone with Charolette Sullivan, a long-time friend of defendant's and hers. In this interview, officers were again trying to clarify the events of Saturday, June 21, 2014. In this statement, Roberts told officers she had wanted to keep Saavedra's place a secret from defendant, although at trial she stated she wanted to kеep it secret from Gardner.
Defendant asked his brother for a ride, but his brother declined. According to the brother's statement to police (which the brother refuted at trial), defendant told his
Defendant's longtime friend, Charolette Sullivan lived in Imperial Beach, and had invited defendant to visit over the Fourth of July weekend. However, defendant called to ask if he could come down earlier, and, when Sullivan agreed, defendant arrived that same day. Defendant appeared to be sad, and his hands appeared swollen, but he did not immediately mention being in a fight with anyone. He attributed the swelling to arthritis.
Eventually, defendant disclosed to Sullivan he had gotten into a fight with someone and had hit him, but that when the victim apologized, defendant stopped. However, afterwards, defendant stated that Roberts picked up some kind of club and started swinging at the man. Later, Roberts also called Sullivan, and more or less confirmed the defendant's version. Roberts told Sullivan that Saavedra had raped her and that defendant was upset about it. Roberts said that both defendant and Saavedra got really drunk and were talking about Marines stuff when Roberts mentioned to defendant that Saavedrа had raped her in that same restaurant. Roberts indicated that she left, and when she did, the defendant and Saavedra got into a fight. Roberts indicated she went back later and bleached everything.
Following his arrest, defendant was interviewed. In the interview, defendant described how Cordero had dropped him off at the La Casita restaurant to meet Roberts, where there was a man (the victim) defendant did not know. Roberts had told defendant she was staying at the restaurant in exchange for watching the restaurant. Roberts told defendant that the other man present had been raping her. The man admitting raping Roberts and said he was sorry. Defendant struck the man three or four times in the face, using his hands. Roberts then said that the man would never rape her again and bеgan hitting the victim with a club or what appeared to the defendant to be a sledgehammer. Defendant took the object away from Roberts, but she retrieved it and resumed hitting the victim. Defendant took the weapon away a second time, threw it on the ground, asked her what she was doing, and then left. Defendant denied ever striking the victim with a weapon.
Legal Proceedings
Defendant was charged with one count of premeditated murder ( Pen. Code, § 187, subd. (a) )
On February 27, 2017, in Gentile I , we reversed the conviction for first degree murder based on the California Supreme Court case of People v. Chiu (2014)
Defendant filed his second appeal, raising the issues that had been left undecided in Gentile I . On November 15, 2018, we affirmed the judgment, but modified the sentence to reduce the court facilities assessments that were
On March 13, 2019, the Supreme Court granted review, transferred the matter to this court with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 1437 (eff. Jan. 1, 2019) and our holding in the first appeal that it was probable the jury convicted defendant of murder on the theory that he aided and abetted Saundra Roberts in a target crime that, as a natural and probable consequence, resulted in her murder of the victim.
DISCUSSION
In the first appeal, defendant relied on Chiu, supra ,
In Chiu , the Supreme Court held that a defendant cannot be found guilty of first degree murder under the natural and рrobable consequences theory of accomplice liability. ( Chiu , supra , 59 Cal.4th p. 166,
Based on the reasoning of Chiu , we agreed that reversal was required in
In the meantime, after the decision in Gentile I , and before Gentile II was decided, the Legislature passed Senate Bill No. 1437, amending the provisions of section 189 to add subdivision (e), in response to Chiu. After we filed our opinion in Gentile II , defendant requested by letter that we allow supplemental briefing on the retroactive applicability of Senate Bill No. 1437, which had not yet gone into effect, to his second degree murder conviction. (Sеe In re Estrada (1966)
The amendment to section 189 provides, "(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
In adopting this amendment, the Legislature indicated its purpose: "This bill would require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life." (Stats. 2018, ch. 1015, Sen. Bill No. 1437.) It only intended to prohibit murder convictions where the participant was not the actual killer or a direct aider or abettor of the murderer. (Ibid. )
In his supplemental letter brief, defendant argues that the amendment to section 189, "has now eliminated all murder liability, including second degree murder liability, based on the natural and probable consequences doctrine." We disagree. This argument proposes a construction of section 189, subdivision (e), which is contrary to the plain language of the statute, misconstrues the holding in Chiu , and would lead to absurd results.
As indicated, Chiu made clear that second dеgree murder liability is proportional to the culpability of an aider and abettor under the natural and probable consequences doctrine. ( Chiu , supra ,
Contrary to defendant's interpretation, section 189, subdivision (e) does not eliminate all murder liability for aiders and abettors. To the contrary, the amendment expressly provides for both first and second degree murder convictions under appropriate circumstances. Defendant's construction would therefore conflict not only with the plain language of the statute, but also with the holding of Chiu , which also held that "[a]iders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles." ( Chiu, supra , 59 Cal.4th at pp. 166-167,
At a minimum, after reviewing the record, we conclude that defеndant in this case was a direct or active aider and abettor. He actually delivered serious blows with his fists and feet to the victim at the urging of Roberts, and in one statement expressed fear that he may have killed the victim. His hands were swollen when he arrived in Imperial Beach, consistent with a beating by fists. Even if the jury believed defendant's testimony-that after his own beating of the victim he left the scene when Roberts began beating the victim with a deadly or dangerous weapon-the killing would have been the result of defendant's aggravated assault committed whilе directly aiding or abetting Roberts' assault with a deadly weapon.
In other words, he directly aided and abetted the murder of the victim by beating and now stands properly convicted of second degree murder. We addressed the problematic instruction that allowed the jury to find him guilty of first degree murder under the natural and probable consequences theory in Gentile I . The People thereafter accepted a reduction of degree to second degree murder, obviating any prejudice from the erroneous instruction. The amended provisions of section
The People argue that defendant is not entitled to have the merits of a Senatе Bill No. 1437 claim in this appeal because he must first raise that claim in the trial court by way of a petition pursuant to Penal Code section 1170.95. There is some support for this petition. (See People v. Carter (2019)
However, none of those decisions were the result of a transfer from the California Supreme Court with directions to reconsider the cause in light of Senate Bill No. 1437. For this reason, as well as reasons of judicial economy, we reach the merits and confirm our prior conclusion in this case ( Gentile II , E069088, p. 3, fn. 2 ), that defendant was, at a minimum, an active aider-аbettor who is not entitled to vacation of his murder conviction.
The judgment is affirmed.
We concur:
McKINSTER, J.
CODRINGTON, J.
Notes
In a separate section we address the various statements of the witnesses because the divergent accounts of the offense led to the competing theories of defendant's liability for murder.
Gardner had left one sock in his van when he delivered the clothing.
There is actually some corroboration for this statement, because the hotel manager testified that defendant had contacted her earlier on June 21, 2014, to reserve a room for the night. However, the hotel manager indicated that defendant and Roberts were regular customers.
All further statutory references are to the Penal Code unless otherwise indicated.