People v. ReyesPeople v. Reyes
Defendant Andres Quinonez Reyes was convicted of second degree murder following a homicide committed by a fellow member of Santa Ana’s F-Troop gang. Reyes was one of several members or affiliates of F-Troop who were present when the killing occurred, although the evidence showed he was not the shooter. The prosecutor’s principal arguments at trial were that Reyes had intended to aid either an assault or disturbing the peace, or that he had conspired to commit one of those offenses. Under the then-applicable natural and probable consequences theory, Reyes could be found guilty of second degree murder if the jury determined that he aided and abetted one of those target crimes and that murder was a natural and probable consequence of the offense.
The Legislature subsequently eliminated the natural and probable consequences theory of liability as a basis for a murder conviction in Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015, § 2). Reyes petitioned for resentencing under Penal Code former section 1170.95, which has since been renumbered as
I.
In August 2004, when Reyes was 15 years old, he was in a park with a group of older boys and young men between the ages of 16 and 21. All of them, including Reyes, were members of F-Troop or an affiliated gang. One of the young men, Francisco Lopez, showed the group a revolver he was carrying. A few hours later, after meeting with two other members of F-Troop, some of them, including Reyes, proceeded on their bicycles to an area on the edge of territory belonging to a rival gang.
A witness testified that a member of the group of bicycle riders called out for a passing car to stop, saying, “Hey, Homey, stop. We want to talk to you.” The car sped up, and the group chased after it, with riders in front yelling to those in back to “keep up” and those in back yelling for the riders in front to slow down. The group came together and stopped at an intersection, and the car made a U-turn and drove past them. Moments later, there was a gunshot, and the riders fled in different directions. The evidence showed that a single gunshot had struck the driver Pedro Rosario in the head, killing him. The prosecutor argued that Lopez was the shooter. There does not appear to be any direct evidence that Reyes knew the gun was loaded before Lopez shot Rosario.
Reyes was in possession of the murder weapon approximately 40 minutes later when, together with three other
Two days later, when Reyes was arrested, he admitted he was at the scene of the shooting, saying, “I didn’t shoot, but because I was there with my homies, I’m going to get charged with murder too.” Reyes was charged with murder. Conceding that Reyes was not the shooter, the prosecutor proceeded on two theories of derivative liability. First, the prosecutor argued that Reyes aided and abetted the crime of disturbing the peace or that he conspired with Lopez to commit either disturbing the peace or assault, and that murder was a natural and probable consequence of one of those target offenses. Alternatively, the prosecutor argued that Reyes directly aided and abetted the murder by “backing up fellow gang members” during the killing. This theory relied on the testimony of David Rondou, a Santa Ana Police Department detective who testified for the prosecution as a gang expert. Detective Rondou testified that when gang members accompany a fellow gang member who commits a murder, “[t]hey’re there for backup.” He explained that among street gangs, having backup means “taking other members of that gang or entrusted members of that gang with you to commit some sort of crime in case you need help. They’re
There was no evidence that Reyes had expressly agreed to serve as backup while Lopez committed the murder. The prosecutor argued that there was no need to show an express agreement because the jury could “infer from the surrounding facts” that Reyes was acting as backup. The prosecutor pointed to Reyes’s “presence” at the time of the shooting and earlier in the park when Lopez showed the gun to the others; his “companionship” with Lopez, i.e., “[t]he fact that they’re homies”; his “flight from the scene” after the killing; and the fact that Reyes subsequently possessed the murder weapon and used it during a separate assault later that day.
Reyes was convicted of second degree murder and street terrorism, as well as enhancements for committing the murder for the benefit of a gang and for vicariously discharging a firearm resulting in death. He was sentenced to 40 years to life in prison for the murder and firearm enhancement, with the gang enhancement stayed and a two-year sentence for the street terrorism charge imposed concurrently.
Twelve years after Reyes was sentenced, the Legislature enacted Senate Bill No. 1437 “ ‘to more equitably sentence offenders in accordance with their involvement in homicides.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 839 (Gentile).) As relevant here, the bill amended
Reyes petitioned the trial court for resentencing under former
As noted, in denying Reyes’s resentencing petition, the trial court said it was “guided by the principles” of implied malice murder in CALCRIM No. 520. Applying the four elements set out in CALCRIM No. 520, the court found that (1) Reyes intentionally committed the act of traveling “along with several other gang members, one of which [was] armed, . . . to rival gang territory”; (2) “[t]he natural and probable consequences of the act were dangerous to human life”; (3) Reyes knew his act of traveling to rival gang territory was dangerous to human life; and (4) he acted deliberately and with conscious disregard of that danger.
The trial court did not mention direct aiding and abetting, and its findings can be read to indicate that it upheld Reyes’s murder conviction on the theory that he was a direct perpetrator who harbored implied malice. At oral argument, the Attorney General said there is “no doubt” this reading is correct. But the prosecutor relied only on aiding and abetting theories to prove Reyes’s liability for murder, and the trial court, prior to the resentencing hearing, asked the parties to review People v. Soto (2020) 51 Cal.App.5th 1043, a resentencing matter that involved aider and abettor liability for an implied malice murder, and then questioned the parties about that case at the hearing. In this context, the trial court’s findings arguably could be read to uphold Reyes’s murder conviction on the theory that he directly aided and abetted implied malice murder. Given the lack of clarity on this point, and out of an abundance of caution, we address the trial court’s consideration of Reyes’s resentencing petition under both direct perpetrator and direct aiding and abetting theories. In so doing, we express no view on whether a court may deny a
Ordinarily, a trial court’s denial of a
We first address simple implied malice murder. Murder is committed with implied malice when “the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143 (Knoller).) “ ‘To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 643 (Jennings).)
On this record, it cannot be said that Reyes committed an act that “proximately caused” Rosario’s death. (Knoller, supra, 41 Cal.4th at p. 152.) The prosecutor proceeded on the theory that Lopez shot Rosario, and no evidence was presented that Reyes’s conduct was a “substantial factor” that contributed to the shooting. (Jennings, supra, 50 Cal.4th at p. 643.) The evidence established that Reyes proceeded to an area on the edge of territory belonging to a rival gang and, alongside the other bikers, chased after Rosario’s car. But acts that merely create a dangerous situation in which death is possible depending on how circumstances unfold do not, without more, satisfy this causation requirement. There was no evidence that Reyes’s acts precipitated or provoked the shooting. And there is no reason to believe that the killing of Rosario would not have occurred if Reyes had not accompanied his fellow gang members on the ride or participated in the chase. (See People v. Cervantes (2001) 26 Cal.4th 860, 866 [“In homicide cases, a ‘cause of the death of [the decedent] is an act . . . that sets in motion a chain of events that produces as a direct, natural and probable
Although lack of proximate causation suffices to establish that the trial court erred in denying Reyes’s resentencing petition on a direct perpetrator theory, we also take issue with the trial court’s conclusion that “[t]he natural and probable consequences” of Reyes’s act of traveling to rival gang territory with several other gang members, one of whom was armed, “were dangerous to human life.” To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must “ ‘involve[] a high degree of probability that it will result in death.’ ” (Knoller, supra, 41 Cal.4th at p. 152; see ibid. [under the objective component of implied malice, “ ‘ “dangerous to life” ’ ” means the same thing as a “ ‘high degree of probability that’ ” the act in question “ ‘will result in death’ ”]; People v. Cravens (2012) 53 Cal.4th 500, 513 (conc. opn. of Liu, J.) [“Although an act that will certainly lead to death is not required, the probability of death from the act must be more than remote or merely possible.”].)
As noted, the prosecutor conceded that Reyes was not the shooter; the evidence established that Reyes and his fellow gang members, one of whom was armed, bicycled to an area on the edge of territory belonging to a rival gang. It may have been
B.
To the extent the trial court purported to sustain Reyes’s conviction on a theory of directly aiding and abetting implied malice murder, the trial court’s findings rested on an error of law. As noted, the prosecutor relied on two theories of aiding and abetting to establish Reyes’s liability for murder. After conceding that Reyes was not the shooter, the prosecutor informed the jury that it could find Reyes guilty of second degree murder under a theory of direct aiding and abetting or under a natural and probable consequences theory. Because Senate Bill No. 1437 eliminated the latter theory (see Gentile, supra, 10 Cal.5th at p. 839), we examine whether the trial court properly understood the elements of direct aiding and abetting.
The Court of Appeal in Powell explained the elements as follows: “[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
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.” (Powell, supra, 63 Cal.App.5th at p. 711, fn. 26.)
In denying Reyes’s resentencing petition, the trial court said it was “guided by the principles” of implied malice murder in CALCRIM No. 520. That instruction alone, however, does not encompass the elements of aiding and abetting implied malice murder as set out in Powell. By relying exclusively on the legal principles outlined in CALCRIM No. 520, the trial court did not appear to recognize that implied malice murder requires, among other elements, proof of the aider and abettor’s knowledge and intent with regard to the direct perpetrator’s life endangering act. (See Powell, supra, 63 Cal.App.5th at pp. 712–713.)
CONCLUSION
In sum, the trial court erred in sustaining Reyes’s second degree murder conviction, whether it relied on a direct perpetrator theory or on a direct aiding and abetting theory. We find no substantial evidence to support a finding that Reyes was the direct perpetrator of Rosario’s murder. And to the extent the trial court denied Reyes’s petition under a direct aiding and abetting theory, the court committed reversible error by
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.