People v. Alcantar Vazque CA2/6

Filed 2/21/23 P. v. Alcantar Vazque CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B302686 (Super. Ct. No. CR44630) Plaintiff and Respondent, (Ventura County)

v. OPINION ON TRANSFER FROM THE SUPREME JOSE ALBERTO ALCANTAR COURT VAZQUEZ,

Defendant and Appellant.

In June 2022 we filed our opinion affirming an order denying appellant’s petition for resentencing pursuant to former Penal Code section 1170.95, now section 1172.6.1 (People v. Vazquez (June 1, 2022, B302686) [nonpub. opn.] (Vazquez II).) In September 2022 the California Supreme Court granted review and transferred the matter back to us “with directions to vacate

All undesignated statutory references are to the Penal 1

Code. Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute as section 1172.6.

[our] decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 [Strong].” We will do so and again deny relief. In 1999 appellant was convicted of first-degree murder (§§ 187, subd. (a), 189). He was not the actual killer, did not intend to kill, and was not at the scene of the homicide. The jury found true special circumstance allegations that the murder had occurred during the commission of a burglary and an attempted kidnapping (§ 190.2, subds. (a)(17)(B) & (G)). The jury was instructed that it could not find the special circumstance allegations true “unless [it is] satisfied beyond a reasonable doubt” that appellant acted “with reckless indifference to human life and as a major participant” in the commission of the underlying crimes. In 2019 appellant filed a petition for resentencing under section 1172.6. The court issued an order to show cause. (Id., subd. (c).) After an evidentiary hearing (id., subd. (d)), the trial court concluded that appellant was ineligible for relief. It viewed the evidence in light of the factors set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The trial court found “beyond a reasonable doubt that [appellant] was both a major participant and [had] acted with reckless indifference to human life.”2 Appellant contends the trial court failed to properly apply the beyond-a-reasonable-doubt standard of proof. The trial court said its task was to “examine[] the evidence to determine if, when viewed in the light most favorable to the verdict, each essential element of the crime was proven beyond a reasonable doubt.”

2As appendix A to this opinion, we attach the trial court’s written ruling dated October 3, 2019.

(Italics added.) The trial court misstated its task. At a section 1172.6 evidentiary hearing, the court should not view the evidence “in the light most favorable to the verdict.” Instead, it should act as an independent factfinder. Nevertheless, we are satisfied that the trial court fulfilled its role as an independent factfinder in determining that the evidence proved appellant’s guilt beyond a reasonable doubt. Even if it had applied a substantial evidence standard, the error would have been harmless. We therefore vacate our decision in Vazquez II and affirm. Facts3 Appellant married Monica Donahoo in June of 1997. They had dated each other when they were teenagers, but had broken up because their parents disapproved of the relationship. In the intervening years, Donahoo had been married to a professional gambler. He died in 1996. She inherited his house, a large sum of money, and his interest in the Players Club card room, a poker parlor. After the professional gambler’s death and before her marriage to appellant, Donahoo became enamored with Felipe Arambula, the murder victim. Arambula was married and had three children. He was a part owner of a Mexican restaurant. Donahoo often visited the restaurant and brought Arambula gifts. Arambula instructed his employees not to tell Donahoo that he was married.

3 The relevant facts are taken from our prior unpublished opinion affirming the judgment on direct appeal. (People v. Vazquez (Apr. 24, 2001, B135076) slip opn. at pp. 2-4 (Vazquez I).) In his opening brief’s factual summary in the present appeal, appellant states, “The facts of the case are taken verbatim from the unpublished opinion.”

In March 1997 Donahoo gave Arambula two cashier’s checks, each in the amount of $25,000. Arambula used the funds to purchase a home for his family. Donahoo also gave him a power of attorney to sell an automobile, which he drove for several months and eventually sold for $10,000. Manuel Vasquez (no relation to appellant) worked at Jiffy Lube and serviced appellant’s car in May 1997. During the summer of 1997, Vasquez asked his friend, Erick Gonzalez, to help him kidnap someone. Vasquez told Gonzalez that he had been hired by a person who worked at or owned a card club, and that the intended victim owed that person a lot of money. Vasquez showed Gonzalez a box containing rope, tape, and handcuffs, and said they were going to take the victim to “Jose’s” house. Appellant’s first name is Jose. Vasquez showed Gonzalez a gun and said “Jose” had given it to him. Gonzalez decided not to participate in the kidnapping. Vasquez asked another friend, Angel Gutierrez, if he would be interested in helping kidnap somebody. Vasquez said the man who had hired him owned a card room. He took Gutierrez to the house where appellant and Donahoo lived, but appellant was not home. Vasquez also took Gutierrez to the restaurant owned by Arambula and told him the owner was the man he planned to kidnap. Gutierrez declined to participate in the kidnapping. Vasquez discussed his plan with a third friend, Richard Garcia. Vasquez told Garcia that the owner of the Players Club was going to pay him to do a kidnapping. Vasquez said the owner had given him a gun. On June 13, 1998, Vasquez spent the afternoon and early evening with Gonzalez, Gutierrez and Garcia. David Hampton was also with the group. Vasquez showed his friends two guns,

one of which was a stun gun. At about 9:00 p.m., Vasquez and Hampton left the group saying they were going to “handle this thing.” Vasquez and Hampton entered Arambula’s home at about 9:45 p.m. They were armed with a nine-millimeter Beretta pistol and a stun gun. Arambula had not yet returned home. His wife was putting their children to bed. Vasquez ordered Arambula’s wife to remain in one of the bedrooms and said they would not hurt her. Vasquez said that Arambula owed $100,000 and that they were there for the money. Arambula’s wife did not see Hampton, but heard someone talking on the phone in another room of the house. Arambula came home shortly after 10:00 p.m. He was carrying over $2,000 in cash receipts from his restaurant. His wife heard a struggle and the buzzing sound of a stun gun, followed by several gunshots. Arambula was shot six times by a nine-millimeter firearm. He died from these wounds. After the shooting, Vasquez and Hampton spoke to Gonzalez, Gutierrez, and Garcia. They said they had used the stun gun and had tried to grab Arambula, but he had put up a struggle. Vasquez dropped the nine-millimeter firearm. Hampton picked it up and shot Arambula. Vasquez said he had dropped his cellular phone inside Arambula’s house. The police found Vasquez’s cellular phone. It was registered in the name of his mother. Telephone company records showed that a few minutes before the shooting, several calls had been made from the cellular phone to appellant’s residence. During the previous year, there had also been several calls between the two telephone numbers.

After the shooting Vasquez went into hiding. Before he disappeared, he had met briefly with appellant. At the time of appellant’s trial, Vasquez had not been apprehended. A few days after the shooting, Hampton met with his parents and told them what had happened. He showed them a “wad” of cash and said he had been paid $1,000. Appellant purchased a one-way airline ticket for Hampton to Austin, Texas. He arranged for Hampton to stay there with appellant’s friend. While Hampton was in Texas, he and appellant spoke on the telephone several times. Hampton was eventually apprehended. After the shooting appellant and Donahoo flew to Mexico. Appellant was arrested upon their return in August 1998 and was interviewed by the police. He denied knowing any details about Donahoo’s relationship with Arambula, but said he had noticed that she had behaved strangely one day when they went to Arambula’s restaurant. Later, a man appellant did not know approached him at a gas station, told him to watch his back, and mentioned the name “Felipe.” Appellant wanted to find out what was going on, so he asked Vasquez to contact Arambula and set up a meeting. Appellant claimed he wanted Vasquez to tell Arambula that he wanted to talk to him; he did not want Arambula to be kidnapped or harmed in any way. When appellant learned about what had happened to Arambula, he was frightened. He gave $300 to Hampton and arranged for him to go to a friend’s house in Texas. Procedural History A jury convicted appellant of murder, attempted kidnapping (§§ 664, 207, subd. (a)), burglary (§ 459), assault with a stun gun (§ 244.5, subd. (b)), and false imprisonment by

violence (§ 236). The jury found true special circumstance allegations that the murder had occurred during the commission of a burglary and an attempted kidnapping (§ 190.2, subds. (a)(17)(B) & (G)). In addition, the jury found true allegations that appellant had been armed with a firearm and had furnished a firearm to another during the commission of each offense except the assault with a stun gun (§§ 12202, subd. (a)(1)), 12022.4). The trial court sentenced appellant to life without the possibility of parole plus four years, eight months. We affirmed the judgment on appeal. (Vazquez I, supra (see ante, p. 3, fn. 3.) Our Supreme Court’s decision in Banks was issued in 2015. Its decision in Clark was issued in 2016. In April 2017 appellant filed a petition for a writ of habeas corpus in the trial court. He alleged that, based on Banks and Clark, the evidence was insufficient to support the jury’s special circumstance findings that he was a major participant in the underlying felonies and had acted with reckless indifference to human life. In May 2017 the trial court denied the petition on the merits. Appellant subsequently filed a habeas petition in this court. We summarily denied the petition.⁴ In 2019 appellant filed a petition for resentencing. (§ 1172.6.) Because the trial judge who sentenced appellant had retired, the matter was assigned to Judge Anthony Sabo. (§ 1172.6, subd. (b)(1).) In the petition appellant reiterated his rejected habeas claim that the evidence was insufficient to support the jury’s findings that he was a major participant in the underlying felonies and had acted with reckless indifference to

human life. In opposing the petition, the People argued that the jury’s true findings on the special circumstance allegations categorically precluded appellant from obtaining relief. The trial court ruled that appellant had made a prima facie case for relief. It issued an order to show cause. (§ 1172.6, subd. (c).) The trial court subsequently conducted an evidentiary hearing to determine whether appellant was entitled to relief. (Id., subd. (d).) Neither side presented new evidence at the hearing. After the evidentiary hearing, the trial court issued a 7- page ruling. (Appendix A.) The trial court stated that it had reviewed the trial transcripts, our opinion affirming the judgment on direct appeal, the probation report, and appellant’s habeas corpus petition. It said its task was to “examine[] the evidence to determine if, when viewed in the light most favorable to the verdict, each essential element of the crime was proven beyond a reasonable doubt.” The trial court made an in-depth analysis of the evidence. In its conclusion the court wrote: “After examining the evidence submitted by [appellant] and applying the Banks factors, the court finds beyond a reasonable doubt that [appellant] was both a major participant and acted with reckless indifference to human life. . . . [The] Petition for Resentencing pursuant to Penal Code section [1172.6] is denied.” Appellant appealed. In a majority opinion authored by now retired Justice Perren (Yegan, J., concurring), we affirmed the order denying the petition because “[t]he totality of the considerations supports the jury’s finding that appellant was a major participant in the attempted kidnapping and burglary who acted with reckless indifference to human life.” (Vazquez II,

supra, slip opn. at p. 15.) Now retired Justice Tangeman dissented. He concluded that the matter must be remanded for a new evidentiary hearing because the trial court had not acted as an independent factfinder and the jury’s special circumstance finding had predated Banks and Clark. Appellant’s Contentions Appellant contends: “[T]he trial court applied the substantial evidence standard of proof to deny relief after an evidentiary hearing. Specifically, the court concluded that substantial evidence supported the jury’s felony murder special circumstances finding made well before . . . Banks . . . and . . . Clark . . . . Under Strong, that was error and requires reversal.” “[T]he trial court viewed the evidence in a light most favorable to the prosecution, thereby lessening the prosecution’s burden.” In his reply brief appellant cites Enmund v. Florida (1982) 458 U.S. 782, for the proposition that he could not be convicted of first degree murder as a matter of law because it is undisputed that he neither committed the homicide, nor was present when the killing took place, nor schemed nor participated in a plot to commit murder. Enmund is distinguishable. The issue there was whether the imposition of the death penalty was constitutionally disproportionate under the circumstances, which were completely different from the circumstances here. “[T]he [Supreme] Court found that Enmund’s degree of participation in the murders was so tangential that it could not be said to justify a sentence of death. It found that neither the deterrent nor the retributive purposes of the death penalty were advanced by imposing the death penalty upon Enmund.” (Tison v. Arizona (1987) 481 U.S. 137, 148.)

Finally, appellant claims “that the trial court erred by relying in part on the probation report following the evidentiary hearing.” The claim is forfeited because he did not raise it below. (See People v. Stitely (2005) 35 Cal.4th 514, 538.) Moreover, appellant fails to show how the court’s consideration of the probation report prejudiced him. “[T]rial [court] error . . . is reversible only if the defendant proves prejudice.” (People v. Perry (2006) 38 Cal.4th 302, 312.) In a supplemental letter brief filed on April 11, 2022, appellant stated, “While the use of the probation report in and of itself would not require reversal, the combination of relying on the probation report with the application of the incorrect standard of proof does warrant reversal.” People v. Strong “In Senate Bill No. 1437 (2017–2018 Reg. Sess.) . . . , the Legislature significantly narrowed the scope of the felony-murder rule. [Pursuant to new section 1172.6,] [i]t also created a path to relief for defendants who had previously been convicted of murder on a felony-murder theory but who could not have been convicted under the new law.” (Strong, supra, 13 Cal.5th at p. 703.) Appellant was convicted of murder on a felony-murder theory. In Strong, supra, 13 Cal.5th at p. 708, our Supreme Court noted: “Penal Code section 189, as amended [by Senate Bill No. 1437], now limits liability under a felony-murder theory principally to ‘actual killer[s]’ (Pen. Code, § 189, subd. (e)(1)) and those who, ‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the first degree’ (id., subd. (e)(2)). Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were

‘major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2’ — that is, the statute defining the felony-murder special circumstance. (Id., § 189, subd. (e)(3).)” The Supreme Court continued, “Banks and Clark both substantially clarified the law governing findings under Penal Code section 190.2, subdivision (d): Banks elucidated what it means to be a major participant and, to a lesser extent, what it means to act with reckless indifference to human life, while Clark further refined the reckless indifference inquiry.” (Strong, supra, 13 Cal.5th at pp. 706-707.) Thus, “[f]or petitioners [such as appellant] with pre-Banks/Clark findings, no judge or jury has ever found the currently required degree of culpability for a first time.” (Id. at p. 718.) The Supreme Court held: “[Un]less a defendant was tried after Banks was decided [in 2015], a major participant finding will not defeat an otherwise valid prima facie case [under section 1172.6, subdivision (c)]. And unless a defendant was tried after Clark was decided [in 2016], a reckless indifference to human life finding will not defeat an otherwise valid prima facie case. [¶] Because Strong’s case was tried before both Banks and Clark, the special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p 721.) “This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) Impact of People v. Strong on Section 1172.6(d)(3) If a petitioner makes a prima facie showing under section 1172.6, subdivision (c), the court conducts an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3), which provides: “At

the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . .” “A finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) Appellant was convicted of felony murder before Banks and Clark were decided. Therefore, “no judge or jury has ever found the currently required degree of culpability for a first time.” (Strong, supra, 13 Cal.5th at p. 718.) It follows that at the section 1172.6, subdivision (d)(3) evidentiary hearing, the People were required to prove beyond a reasonable doubt that appellant was a major participant in the underlying felony and had acted with reckless indifference to human life. The jury’s pre- Banks/Clark special circumstance findings did not relieve the People of this burden. The Trial Court Acted as an Independent Factfinder The language of section 1172.6, subdivision (d)(3) requires the trial court to act as an independent factfinder. “This plain language shows the People are required to establish the defendant is guilty under current law as a matter of fact and beyond a reasonable doubt.” (People v. Clements (2022) 75 Cal.App.5th 276, 296.) “[T]he plain text of the statute requires the trial judge to sit as a fact finder, not as a quasi-appellate court.” (Id. at p. 295.) The People concede that “[a]t a section 1172.6, subdivision (d)(3), evidentiary hearing, the court must act as an independent factfinder . . . .” Instead of acting as an independent factfinder, the trial court here arguably applied the substantial evidence rule.

Pursuant to this rule, in determining the sufficiency of the evidence “both trial and appellate courts must review ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics added.) The trial court said its task was to “examine[] the evidence to determine if, when viewed in the light most favorable to the verdict, each essential element of the crime was proven beyond a reasonable doubt.” (Italics added.) The court noted, “This same standard also applies to challenges to the evidence where a special circumstance is found to be true. People v. Edwards (2013) 57 Cal.4th 658, 715.” At page 715 Edwards sets forth the substantial evidence standard of review. In accordance with that standard of review, the trial court observed: “It was reasonable for the jury to conclude that [appellant] was aware of what was taking place and the possible consequences of the crime with the supplied weapons.” “The jury could have logically concluded that [appellant] was being informed of exactly what was taking place in the home as the attempted kidnapping was taking place and when the murder occurred.” “The trial court’s use of an unsound course of reasoning is immaterial if the action ultimately taken . . . was proper. [Citation.]” (People v. Patton (1976) 63 Cal.App.3d 211, 219.) Here, the action ultimately taken by the trial court was proper. When it ruled on appellant’s petition, the court fulfilled its responsibility to act as an independent factfinder and determine whether the evidence established appellant’s guilt beyond a reasonable doubt. The court said, “After examining the evidence submitted by [appellant] and applying the Banks factors, the

court finds beyond a reasonable doubt that [appellant] was both a major participant and acted with reckless indifference to human life.” (Italics added; see Appendix A, p. 6, “Conclusion.”) But in an abundance of caution, we show below that even if the trial court had applied an incorrect standard of proof, the error would have been harmless. In our discussion below, we assume for purposes of analysis only that the trial court did not act as an independent factfinder. Any Assumed Error Is Subject to Review Under the Watson Harmless Error Test “[S]ection [1172.6] is an act of legislative lenity in that a defendant who qualifies for [post-sentencing] relief [under the statute] may receive a decreased punishment.” (People v. Myles (2021) 69 Cal.App.5th 688, 703.) It “is purely a creature of state statutory law.” (People v. Epps (2001) 25 Cal.4th 19, 29.) “Typically, when an ‘error is purely one of state law, the Watson harmless error test applies.’” (People v. Lewis (2021) 11 Cal.5th 952, 973; see People v. Watson (1956) 46 Cal.2d 818.) “Under the Watson test, we deem an error harmless unless it is ‘reasonably probable’ the outcome would have been different in the absence of the [assumed] error.” (People v. Hendrix (2022) 13 Cal.5th 933, 942.) Harmless Error: Major Participant Issue In Banks the Supreme Court identified factors that “may play a role in determining whether” a defendant was a major participant in criminal activity. (Banks, supra, 61 Cal.4th at p. 803.) “Among those factors . . . are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the

defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently significant to be considered ‘major’ [citations].” (Ibid.) Assuming the trial court had not acted as an independent factfinder, it is not reasonably probable the outcome would have been different as to the “major participant” issue had the court acted as an independent factfinder. Appellant was the “mastermind” of the attempted kidnapping. He hired Vasquez and Hampton to kidnap the victim. The trial court noted that appellant had supplied the murder “weapon and a stun gun to Vasquez in preparation for the kidnapping.” Appellant had “also supplied his accomplices with ammunition, . . . rope, tape, and gloves.” Although appellant was not physically present at the scene of the killing, cell phone records show that he was in contact with Vasquez during the commission of the crimes. The trial court stated: “[T]he evidence shows that [appellant] was in direct contact with Vasquez virtually from the moment Vasquez and Hampton entered the home until just before the two men fled after the murder. . . . With near continuous communication taking place between the armed hired kidnappers and

[appellant], [appellant], from his remote location, could have either facilitated or prevented the murder by giving directions to his confederates.” The trial court continued: “[B]ut for [appellant’s] involvement there is no reason to believe any crime would have been committed.” Appellant’s “actions make him both the catalyst for the crime as well as the leader of it and therefore a major participant. . . . Following the killing, the record indicates that Vasquez and Hampton were paid at least $1,000 each . . . .” Appellant “facilitated Hampton in fleeing to the state of Texas with a plane ticket, money, and a place to stay.” Harmless Error: Reckless Indifference Issue “Reckless indifference to human life ‘requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 807.) “The mere fact of a defendant's awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life.” (Clark, supra, 63 Cal.4th at p. 618.) “Reckless indifference to human life has a subjective and an objective element. [Citation.] As to the subjective element, ‘[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed,’ and he or she must consciously disregard ‘the significant risk of death his or her actions create.’ [Citations.] As to the objective element, ‘“[t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.”’” (In re Scoggins (2020) 9 Cal.5th 667, 677.)

In Clark our Supreme Court set forth several factors that may be relevant in determining whether the defendant acted with reckless indifference to human life. The first factor is the defendant’s awareness that a firearm would be used, whether the defendant used a firearm, and the number of firearms involved. (Clark, supra, 63 Cal.4th at p. 618.) Appellant knew that a firearm would be used. He provided the firearm and ammunition to Vasquez and Hampton. The second factor is the defendant’s “physical presence at the crime and opportunities to restrain the crime and/or aid the victim.” (Clark, supra, 63 Cal.4th at p. 619, italics and capitalization omitted.) Although appellant was not physically present at the scene of the crime, he was in continuous contact with the perpetrators and could have restrained them. They were acting on his behalf and under his direction. After the victim was shot, appellant made no attempt to aid him. The third factor is the “duration of the felony.” (Clark, supra, 63 Cal.4th at p. 620, italics and capitalization omitted.) “Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, ‘there is a greater window of opportunity for violence’ [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life.” (Ibid.) Here, the intended crime – kidnapping – involved movement of the victim at gunpoint and a prolonged period of restraint. The fourth factor is the “defendant’s knowledge of factors bearing on a cohort’s likelihood of killing . . . .” (Clark, supra, 63 Cal.4th at p. 621.) The trial court stated: “There is no evidence

that either Vasquez or Hampton had any experience in crimes of violence. . . . [Appellant] appears to have hired the first two people who were willing to commit the crime for him . . . . [T]hey were unsophisticated criminals sent to a larger person’s home to commit a crime of violence with a weapon provided by [appellant]. It should have been reasonable for [appellant] to expect that under those circumstances his criminal employees would be in a position to use those weapons more recklessly and more quickly than someone with more criminal experience.” The trial court noted that appellant had told the police that “the victim was a big man who might want to fight.” The fifth factor is the “defendant’s efforts to minimize the risks of the violence during the felony.” (Clark, supra, 63 Cal.4th at p. 621, italics and capitalization omitted.) Appellant took no measures to minimize the risks of violence. He planned and supervised the commission of a crime with a high risk of lethal violence: an armed home-invasion kidnapping while the victim’s wife and children were inside the home. “[Appellant] had to be aware of the risk of resistance to such an armed invasion of the home and the extreme likelihood death could result.” (People v. Mora (1995) 39 Cal.App.4th 607, 617.) The trial court observed: “[Appellant] was aware that the victim was married and should have reasonably assumed that his wife would be home at the time of the break in.” Thus, assuming the trial court had not acted as an independent factfinder, it is not reasonably probable the outcome would have been different as to the “reckless indifference” issue had the court acted as an independent factfinder. The trial court would have found beyond a reasonable doubt that appellant was “‘“subjectively aware that his . . . participation in the felony

involved a grave risk of death.”’” (Banks, supra, 61 Cal.4th at p. 807.) Disposition Our decision in Vazquez II is vacated. The order denying appellant’s section 1172.6 petition for resentencing is affirmed. NOT TO BE PUBLISHED.

YEGAN, J.

I concur:

GILBERT, P. J.

GILBERT, P. J., Concurring. I concur because it appears the trial court applied the Banks-Clark factors in arriving at its decision beyond a reasonable doubt. NOT TO BE PUBLISHED.

GILBERT, P. J.

BALTODANO, J., Dissenting. I respectfully dissent. The order denying the Penal Code 1 section 1172.6 petition should be reversed and remanded for a new evidentiary hearing. In examining the evidence “in the light most favorable to the verdict,” the trial court improperly applied a sufficiency of the evidence standard at the evidentiary hearing and did not independently weigh the facts. “[A] fact finder tasked with holding the People to the beyond a reasonable doubt standard, ‘must impartially compare and consider all the evidence that was received throughout the entire trial’ and determine whether that ‘proof . . . leaves you with an abiding conviction that the charge is true.’ [Citations.]” (People v. Clements (2022) 75 Cal.App.5th 294-295.) Only after “the trial court sits as a trier of fact” (People v. Schell (2022) 84 Cal.App.5th 437, 442) and makes an independent finding of facts beyond a reasonable doubt, can we meaningfully review whether there is substantial evidence to support the trial court’s factual findings. (Clements, supra, at pp. 295, 298.) The trial court applied a substantial evidence standard when it based its ruling on what “was reasonable for the jury to conclude” and what the jury “could have logically concluded.” It did not mention the defense’s evidence or theory of the case, much less independently weigh the evidence. Because the trial court did not engage in this comparative analysis, its finding regarding reckless indifference to human life falls short of the evidentiary support required by section 1172.6, subdivision (d)(3). In its minute order denying the resentencing petition, the trial court cited People v. Banks (2015) 61 Cal.4th 788, but did

1 Undesignated statutory references are to the Penal Code.

not cite People v. Clark (2016) 63 Cal.4th 522, or its factors. Banks, at page 803, lists factors for the “major participant” element. (See Clark, at p. 611.) Clark lists factors for “reckless indifference to human life.” (Id., at pp. 618-622.) “ ‘[W]hether a category of crimes is sufficiently dangerous to warrant felony- murder treatment, and whether an individual participant has acted with reckless indifference to human life, are different inquiries.’ ” (Id., at p. 616.) The trial court here confused the two elements, erroneously stating, “[t]he Banks decision . . . listed factors it considered in determining if a defendant acted with reckless indifference.” The court then listed and analyzed the Banks factors and concluded they established reckless indifference, without ever referring to the Clark factors. Because the trial court did not analyze the Clark factors, it could not have made the independent factual finding that appellant acted with reckless indifference to human life. These errors are not harmless under People v. Watson (1956) 46 Cal.2d 818 because there is “ ‘more than an abstract possibility’ ” the trier of fact might find a reasonable doubt as to this element if it independently weighed the evidence. (People v. Hardy (2021) 65 Cal.App.5th 312, 329–330.) A “ ‘reasonable probability’ ” “ ‘does not mean “more likely than not,” but merely a “probability sufficient to undermine confidence in the outcome.” ’ ” (Ibid.) Given the trial court’s incorrect application of the standard of proof at the evidentiary hearing and its failure to apply the Clark factors, there has not been a finding beyond a

reasonable doubt by either the jury or the trial court that appellant acted with reckless indifference to human life as defined by Clark. NOT TO BE PUBLISHED.

BALTODANO, J.

APPENDIX A

1 2 3 4 5 6 7 8

Anthony J. Sabo, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Claudia Y. Bautista, Public Defenders, William Quest, Snr. Deputy Public Defender. Rob Bonta, Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee, Colleen M. Tiedemann, Daniel Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Footnotes

[4] On our own motion, we take judicial notice of these court records. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)