Opinion
G062018
11-14-2023
THE PEOPLE, Plaintiff and Respondent, v. ISAAC GARZA CORDERO, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07NF4480, James Edward Rogan, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
In 2011, a jury found Isaac Garza Cordero guilty of attempted murder and a substantive gang offense. The jury also found true related firearm, gang, and great bodily injury enhancements. The trial court imposed a sentence of 32 years to life.
In 2022, Cordero filed a petition for relief. (Pen. Code, § 1170.95.) After issuing an order to show cause, and independently reviewing the 2011 trial record, the trial court found beyond a reasonable doubt that Cordero could be convicted of attempted murder under current law as a direct aider and abettor and denied the petition.
Assembly Bill No. 200 (Reg. Sess. 2021-2022) has since renumbered section 1170.95 as section 1172.6. (See Stats. 2022, ch. 58, § 10.) For clarity, we refer simply to section 1172.6 throughout. All undesignated statutory references are to the Penal Code.
We find substantial evidence to support the trial court's ruling. Thus, we affirm the court's order denying Cordero's section 1172.6 petition.
I FACTS AND PROCEDURAL BACKGROUND
On December 20, 2007, Cordero and his brother were at the home of high school student Kevin G. in Placentia. They had driven there in Cordero's brother's car. Kevin's family knew Cordero's family from attending church together. Cordero's brother had a crush on Kevin's sister, whom he was there to visit. Kevin knew Cordero was a member of Plas, a gang located in Placentia. Kevin was not a gang member. Kevin knew that Cordero's gang nickname was "Puppet," but Cordero never did or said anything gang related when he was with Kevin.
Cordero convinced his brother to give Kevin the keys to his car, in order for Cordero and Kevin to drive to the market. Kevin did not ask for the keys. On the way, Cordero had the idea to have Kevin drive to his girlfriend's house in Anaheim. When they neared Cordero's girlfriend's house, he told Kevin to drive back to Placentia to pick up his friends. Cordero gave Kevin directions on how to get there.
In Placentia, Cordero directed Kevin to stop at an apartment building. Cordero got out of the car and went into an apartment for about 15 minutes. Kevin waited in the car. When Cordero returned to the car, he was with two young men Kevin had never met before (later identified as Plas gang members Jose Bello (or Sanchez) and Angel Ramos). Bello and Ramos got into the backseat, and Cordero told Kevin to drive back to his girlfriend's house in Anaheim.
Kevin drove around the neighborhood of the girlfriend's house, believing Cordero was spying on her. Kevin was aware they were driving in an area claimed as territory by Folks, a gang located in Anaheim. After driving through an alley, and then making a right turn onto Onondaga Avenue, Cordero told Kevin to stop. Kevin stopped and turned off the car, but one of the guys in the car told him to turn the engine back on.
The victim was standing at the side of Onondaga Avenue. Ramos, who was sitting in the right rear passenger seat, rolled down his window and asked the victim, "'Where are you from?'" The victim responded, "'Anaheim Folks.'" Ramos got out of the car, pointed a long-barreled weapon at the victim and fired three times, striking him in the head and leg. Kevin was frozen and shocked; he had no idea who the victim was.
Ramos got back into the car, instructed Kevin to drive away, and said, "'I got him'" or "'I hit him.'" Ramos still had the firearm. Kevin was afraid that if he "left the car, anything could have happened. I felt like it would have been me next." Someone told Kevin, "'Get out. Let's get out of here.'" Kevin drove back to the Placentia apartment where Cordero had picked up Bello and Ramos. Cordero got out of the car with Bello and Ramos; the gun was no longer in the car. Cordero returned alone to the car 10 to 15 minutes later, and Kevin drove back to his family's house. Kevin was scared and mad at Cordero. Cordero appeared to be calm about what had happened.
Kevin told Cordero he couldn't believe he had gotten him into this situation. Cordero told Kevin, "'You are in this so you can get blamed, too.'" Later, in the presence of Kevin, Cordero's brother asked Cordero about what had happened earlier that night. Cordero admitted to his brother that a Folks gang member had been shot. Cordero's brother was angry that Cordero had used his car during the shooting.
The next day at school, Kevin told two teachers about what had happened because his conscience was bothering him. Kevin also later told the police what he had witnessed. The police drove Kevin around and he showed them where he had picked up Bello and Ramos. Pursuant to a warrant, a .22 caliber cartridge was found during a search of Cordero's brother's car, and a .22 caliber rifle was found at the residence of Franklin O., which was in the apartment complex where Kevin had picked up and dropped off Bello and Ramos.
Cordero was arrested and later interviewed by Dustin Ciscel, an Anaheim police officer and member of the gang unit. After initially denying any involvement in the shooting, Cordero eventually acknowledged the shooting was not for any specific purpose, but rather was for the purpose of putting in work for the Plas gang. Cordero told the investigator that Plas and Anaheim Folks were generally enemies. Cordero said that before going into the Folks neighborhood, Ramos and Bello picked up a "strap" or a gun. Cordero said Ramos "hit up" the victim before shooting him (more details from the interview will be covered in the discussion section of this opinion).
Court Proceedings
In 2011, the prosecution filed an amended information charging Cordero with attempted premeditated murder and street terrorism. The information further alleged related gang, firearm, and great bodily injury enhancements.
During a jury trial, Kevin testified pursuant to an immunity agreement. A video of the interview between Officer Ciscel and Cordero was played for the jury, and each of the jurors was provided a transcript. Ciscel explained some portions of the interview. Ciscel testified that when he asked Cordero if he was going to "put in work" with a "strap," which meant a gun, Cordero responded, "'Yes.'" Ciscel testified that guns are highly respected in gangs, and gang members typically tell other members when there is a gun in the car.
Officer Ciscel said to "hit up" someone means to ask what gang a person is from and is a challenge. Ciscel explained that if a person responds that they are from a rival gang, the result is usually violence. Ciscel said that the area where the shooting took place is claimed by Folks, which stands for "Family Of Latin Kings." A disrespectful term for Folks is "Forks," which is how Cordero referred to the gang at one point during the interview.
Officer Ciscel testified that Southern California criminal street gangs are under the umbrella of the Mexican Mafia, which issues certain orders for gangs to follow. For example, the Mexican Mafia has prohibited gangs from performing classic drive-by shootings because they were causing the deaths or injuries of innocent bystanders. Accordingly, the Mexican Mafia did not ban all types of shootings but ordered that if a shooting was to take place, the gang member must get out of the car, do the shooting, and then reenter the car.
Sergeant Brian Perry of the Placentia Police Department testified as a Plas gang expert. Perry opined that Plas is criminal street gang in Placentia with about 150 members. Perry opined that Cordero was an active member of Plas at the time of the shooting. Perry said that the goal of Hispanic gangs generally, and Plas in particular, is to achieve respect; one way to achieve respect for the individual and the gang is by driving into the neighborhood claimed by a rival gang and shooting a member of that rival gang.
A jury found Cordero guilty of both the attempted murder and the substantive gang crime, and also found true the related enhancement allegations. The trial court sentenced Cordero to a total aggregate sentence of 32 years to life. This court affirmed the judgment as modified. (People v. Cordero (Mar. 26, 2013, G046211) [nonpub. opn.].)
In April 2022, Cordero filed a section 1172.6 petition seeking to vacate his attempted murder conviction and to be resentenced. The prosecution filed a response, noting Cordero "was tried under both direct aiding and abetting and natural and probable [consequences] theories of liability on the attempt murder count. There is nothing in the record of conviction showing definitively that the jury relied on one or the other theory and therefore the Petitioner has met his prima facie burden." The trial court issued an order to show cause.
In November 2022, the trial court conducted a hearing on the section 1172.6 petition. After considering the admissible portions of the clerk's transcripts, the trial reporter's transcripts, the unpublished opinion, and the arguments of counsel, the trial court denied the petition in a written ruling (the court's ruling will be covered in greater detail in the discussion section of this opinion).
II
DISCUSSION
Cordero's sole claim on appeal is there is insufficient evidence to support the trial court's factual finding that he directly aided and abetted the attempted murder.
In this discussion we shall: A) review relevant legal principles; B) directly quote the trial court's written ruling; and C) analyze the facts as applied to the law.
A. Relevant Legal Principles
Generally, a person convicted of murder or attempted murder under the natural and probable consequences doctrine may file a petition to have the conviction vacated and to be resentenced on any remaining counts. (§ 1172.6, subd. (a).) Although the natural and probable consequences theory is no longer an option under current law to convict an aider and abettor for murder or attempted murder, he or she can still be convicted as a direct aider and abettor. (§§ 188, 189.)
If a petitioner files a facially valid petition and the trial court issues an order to show cause, it must hold an evidentiary hearing "to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1172.6, subd. (d)(1).)
"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 or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion.... The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (§ 1172.6, subd. (d)(3).)
"The scope of our review for substantial evidence is well settled. The test is not whether the People met their burden of proving beyond a reasonable doubt that [a defendant in a section 1172.6 proceeding] was ineligible for resentencing, but rather 'whether any rational trier of fact could have' made the same determination, namely that '[t]he record . . . disclose[s] . . . evidence that is reasonable, credible, and of solid value- such that a reasonable trier of fact could'" make the same finding as the superior court. (People v. Williams (2020) 57 Cal.App.5th 662, 663.)
B. The Trial Court's Written Ruling
"The Court has read and considered the Petitioner's petition for resentencing . . . and the People's opposition thereto; the Court has also read and considered the relevant and admissible portions of the following documents: 1) the two-volume Clerk's Transcript on Appeal (386 pages); 2) the appellate court decision in People v.... Cordero, [supra,] G046211 . . .; 3) the Reporter's trial transcript of proceedings from November 10 to December 9, 2011. The Court has also considered the respective arguments of counsel and all issues raised in oral argument.
"The Court finds that the People have met their burden of proving beyond a reasonable doubt that the Petitioner was found guilty of attempted murder under the current law and is therefore not eligible for resentencing.
"Both the direct and circumstantial evidence shows beyond a reasonable doubt that the defendant formulated a plan with fellow gang members to go into rival territory armed with a firearm to attempt to kill a rival gang member. The Petitioner played an active and significant role in the events that led to the premeditated and deliberate shooting of the Victim in the head and leg. Petitioner provided the car and the getaway driver. He surveyed the area before leaving to secure backup from fellow gang members and for one of them to secure a firearm. Petitioner then returned to the scene with his associates to, as he described, 'put in work' for his criminal street gang as the necessary 'backup' in the contemplated and successful attempted murder of a rival gang member.
"The Court's independent review of the evidence is in accord with the Jury's original finding that the Petitioner committed the crime of attempted murder with premeditation and deliberation and thus intended to commit the crime of attempted murder. [¶] For all of the foregoing reasons, the petition for resentencing pursuant to Penal Code § 1172.6 is respectfully denied."
C. Application and Analysis
In this case, the evidence showed that Cordero asked his family friend Kevin to drive his brother's car to the market. They then drove from Placentia to Anaheim and drove around his girlfriend's home, which was in the area of his rival gang, Folks. During his interview with Officer Ciscel, Cordero admitted he had been "hit up" by Folks gang members in that area of Anaheim in the past. Cordero then had Kevin drive back to Placentia to pick up two of his fellow Plas gang members, Ramos and Bello. Cordero admitted in the police interview that his fellow gang members had obtained a gun, and he knew that one of them was carrying it by "the way he was walking."
Now with three Plas gang members in the car and a gun, Cordero had Kevin drive them back to the Folks area of Anaheim; apparently Kevin did not realize that he was the getaway driver in a "strap type deal." Cordero did not see any Folks gang members after driving around for about 20 to 30 minutes. At one point Kevin was told to stop the car, but he was then told to restart the engine, which is consistent with facilitating an escape from the scene. Ramos hit up the victim, and once the victim had identified himself as a rival Folks gang member, Ramos got out of the car and fired the weapon at the victim three times at close range. After the shooting, Ramos then got back in the car and said, "'I got him'" or "'I hit him,'" implying that he had accomplished the intended goal. During the interview with Officer Ciscel, Cordero admitted to seeing the victim fall to the ground, but Cordero did not call for help or do anything to assist the victim in any way. When Kevin told Cordero he couldn't believe what he had gotten him into, Cordero told Kevin, "'You are in this so you can get blamed, too.'"
Under the substantial evidence "'test, we review the evidence in the light most favorable to the prosecution and presume in support of the [order] the existence of every fact the [superior court] could reasonably have deduced from the evidence. [Citation.] "Conflicts [in the evidence] . . . subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge . . . to determine the . . . truth or falsity of the facts upon which a determination depends."'" (Williams, supra, 57 Cal.App.5th at p. 663.)
A person is guilty of attempted murder when he or she has the specific intent to kill and commits a direct but ineffectual act toward its commission. (People v. Mejia (2012) 211 Cal.App.4th 586, 605.) "Specific intent '"is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense."'" (People v. Thompkins (2020) 50 Cal.App.5th 365, 403.)
To prove a defendant guilty of aiding and abetting a crime, the evidence must establish four elements: (1) the perpetrator committed the crime; (2) the defendant knew the perpetrator intended to commit the crime; (3) before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and (4) the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.)
We find the evidence showed Ramos (the perpetrator) committed the crime of attempted murder because a shooting at close range indicates an intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 [shooting at close range "undoubtedly creates a strong inference that the killing was intentional"].) The evidence also reasonably showed Cordero knew Ramos intended to commit the crime. This was shown primarily by Cordero's knowledge of the presence of the gun before the shooting, as well as the related gang testimony. (See People v. Thompkins, supra, 50 Cal.App.5th at p. 403 ["Specific intent '"is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense"'"].)
Cordero's actions before the shooting also tend to show that he intended to aid and abet Ramos in the commission of the shooting. This included the evidence that Cordero had instructed Kevin to drive into a rival gang area to "put in work" with his fellow gang members. Finally, all of Cordero's actions taken together (arranging for Kevin to drive the car, picking up Bello and Ramos and the gun, having Kevin drive into rival gang territory, and facilitating the escape after the shooting) support a finding that Cordero did, in fact, aid and abet Ramos in the attempted murder. Indeed, the evidence effectively shows the crime would not have occurred but for Cordero's actions.
In sum, we find substantial evidence to support the trial court's factual finding that Cordero directly aided and abetted the crime of attempted murder. Thus, we hold that the trial court properly denied Cordero's section 1172.6 petition.
Primarily relying on People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen), Cordero argues "there is no evidence, substantial or otherwise appellant engaged in any conduct constituting . . . attempted murder." We disagree. Although the evidence demonstrated Cordero was not the actual shooter, there was substantial evidence that he directly aided and abetted the attempted murder.
In Nguyen, defendant was in the backseat of a car driven by a fellow gang member. (Nguyen, supra, 61 Cal.4th at p. 1053.) Another gang member was in the front passenger seat. At an intersection, the car defendant was in started following a car being driven by Tony, along with several passengers, who were all members of a rival gang. (Ibid.) "At one point, the car in which defendant was riding passed Tony's car, and defendant and the other passengers stared back at the car. The car in which defendant was riding then idled in the parking lot of a fast food restaurant, with its occupants 'all like looking out and stuff.' After Tony's car passed the restaurant, the other car pulled out of the parking lot and followed. Several blocks later, the two cars stopped next to each other at a stop light. When the traffic signal turned green," the right front passenger in the defendant's car shot Tony in the neck, then the car drove away. (Ibid.)
A gang expert testified "that Asian gangs tended not to be associated with a particular 'turf.' Instead, they 'go from place to place around the community hunting for their rivals.'" (Nguyen, supra, 61 Cal.4th at p. 1054.) The gang expert "explained that 'if they're not the shooter and they're in the backseat' of the car, a gang member would be expected to serve as a lookout, and '[i]f something were to happen and they would have to bail out of the car, that member would be expected to back that person up. Be it assault somebody, be it shoot somebody, be it take over the driving of the vehicle, whatever it may be.'" (Ibid.) The expert "also testified that at the time of the shooting, the [rival gangs] were in a state of war, and members of both gangs were expected to be able to engage in gunfights with their rivals 'at a moment's notice.'" (Ibid.)
In a direct appeal from a related special circumstance murder, defendant argued there was insufficient evidence to support his attempted murder conviction. (Nguyen, supra, 61 Cal.4th at p. 1053.) The Supreme Court disagreed: "Although 'gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime' [citation], [the] expert testimony strengthened inferences arising from other evidence specific to defendant's role in the crime at issue.... Understood in that context, defendant's act of staring at the occupants of Tony's car-followed by his car's maneuver in and out of the restaurant parking lot-could have supported the inference that defendant was aware of the impending shooting and acted to facilitate it by identifying [rival gang] members riding in Tony's car." (Id. at p. 1055, italics added.) The court found that: "Although the issue is close, the record here contains substantial evidence from which the jury could have found beyond a reasonable doubt that defendant knew of and shared [the shooter's] intent to kill Tony . . . and acted to further the shooting." (Id at p. 1056.)
Cordero argues: "Unlike Nguyen, there is no evidence Plas and Folks were engaged in some ongoing dispute or war at the time of the shooting. [Citation.] Further, unlike Nguyen, no evidence shows the Plas gang regularly hunted for rivals and had to be ready . . . at a moment's notice." But we do not find Nguyen helpful to Cordero's argument.
Similar to Nguyen, the gang evidence alone did not prove Cordero was an aider and abettor to the crime of attempted murder. The other evidence reasonably showed that Cordero took a number of actions to directly facilitate the shooting: he arranged for the use of his brother's car, he duped his apparent unwitting family friend Kevin to be the getaway driver, he surveyed the area prior to the shooting, he collected two cohorts and a firearm, he returned to the area and reacted calmly as the shooting of the victim took place, then right after the shooting he facilitated the escape of the shooter, and told Kevin that he had deliberately put him in this position. (See Nguyen, supra, 61 Cal.4th at p. 1054 ["'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense'"].)
In Nguyen, an expert testified "that Asian gangs tended not to be associated with a particular 'turf.'" (Nguyen, supra, 61 Cal.4th at p. 1054.) But in this case, Sergeant Perry testified that the goal of Hispanic gangs such as Plas is primarily to achieve respect and that one way to achieve is by driving into a neighborhood claimed by a rival gang and shooting a member of that rival gang. Thus, although the facts of the two cases are markedly different, we find that much like in Nguyen, the expert testimony in this case indeed "strengthened inferences arising from other evidence specific to defendant's role in the crime at issue." (Id. at p. 1055, italics added.)
Cordero points out that under current law the gang expert's testimony likely would not support the criminal street gang enhancement. (See, e.g., People v. Sanchez (2016) 63 Cal.4th 665 [a gang expert cannot relate case specific hearsay evidence].) However, Cordero does not specify any inadmissible expert testimony (or any other inadmissible evidence) that the court relied on in determining he was guilty of attempted murder. (See People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general rule is that a trial court is presumed to have been aware of and followed the applicable law"].)
Cordero also argues there are some interpretations of the facts that are more favorable to his position. For instance, Cordero argues that according to a police report, Kevin told the police that Cordero, immediately after the shooting, said, "'I can't believe this just happened.'" However, when Kevin was asked about this on cross-examination, Kevin said that he could not remember. Cordero argues his statement of disbelief is evidence that he was surprised, and he had no intent to kill. Conversely, the Attorney General argues Cordero's purported statement, "does not equate to a lack of intent to kill, but rather, surprise that his plan came very close to fruition."
However, it is not our role in a substantial evidence review to resolve conflicts in the evidence. (See People v. Jones (1990) 51 Cal.3d 294, 314 ["On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence"]; see also People v. Bean (1988) 46 Cal.3d 919, 932-933 [that some evidence could have supported a contrary finding does not warrant reversal].)
Having found sufficient evidence to support the trial court's finding that Cordero directly aided and abetted an attempted murder under current law, we must affirm. (See People v. Groom (1964) 60 Cal.2d 694, 697 ["when the sufficiency of the evidence is challenged an appellate court must affirm if the record contains substantial evidence of all elements of the crime"].)
III
DISPOSITION
The trial court's order denying Cordero's section 1172.6 petition following an evidentiary hearing is affirmed.
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.