People v. Alcantar Vazquez

• Decision Date: 01 June 2022
• Docket Number: 2d Crim. B302686
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO ALCANTAR VAZQUEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ALBERTO ALCANTAR VAZQUEZ, Defendant and Appellant.

2d Crim. No. B302686

California Court of Appeals, Second District, Sixth Division

June 1, 2022

NOT TO BE PUBLISHED

Superior Court County of Ventura No. CR44630 Anthony J. Sabo, Judge

Todd W. Howeth, Public Defender, William Quest, Senior Deputy Public Defender, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee, Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

PERREN, J.

In 1999, appellant Jose Alberto Alcantar Vazquez was convicted of first-degree murder (Pen. Code, ^[1] §§ 187, subd. (a), 189) and other crimes. The jury also found true special circumstance allegations that the murder occurred during the commission of an attempted kidnapping and burglary (§ 190.2, subds. (a)(17)(B) & (G)). In 2019, appellant filed a petition for resentencing under section 1170.95. In denying the petition

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following an evidentiary hearing, the trial court found appellant was ineligible for relief under section 1170.95 because the evidence, when viewed 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), was sufficient to support the jury's true findings on the felony-murder special circumstance allegations, i.e., that appellant was a major participant in the burglary and attempted kidnapping and acted with reckless indifference to human life. Appellant contends among other things that the court erred in failing to apply the beyond-a-reasonable-doubt standard of proof in making its findings, as set forth in subdivision (d) of section 1170.95. We affirm.

FACTS AND PROCEDURAL HISTORY^[2]

Appellant married Monica Donahoo in June of 1997. They had dated each other when they were teenagers, but had broken up because their parents did not approve of the relationship. In the intervening years, Donahoo married a professional gambler several years her senior, who died of cancer in 1996. She inherited his house, a large sum of cash, and his interest in the Players Club card room, a poker parlor.

After her first husband's death, but before her marriage to appellant, Donahoo became enamored with Felipe Arambula, the victim in this case. Arambula was married and had three children. He was the part owner in a Mexican restaurant, and employees of the restaurant reported that Donahoo often visited

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and brought Arambula gifts. Arambula instructed his employees not to tell Donahoo that he was married. In March of 1997, Donahoo gave Arambula two cashiers checks for $25, 000 apiece, which he later used to purchase a home for his family. She also gave him a power of attorney to sell a Lincoln Town Car, which he drove for several months and eventually sold for $10, 000.

Manny Vasquez (no relation to appellant) worked at Jiffy Lube and serviced appellant's car on May 3, 1997. During the summer of 1997, Vasquez asked his friend Erick Gonzalez to help him kidnap someone. He 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 guy to "Jose's" house. He showed Gonzalez a gun and said he got it from "Jose." Vasquez later introduced Gonzalez to appellant, who asked Gonzalez where he could buy guns. Gonzalez told appellant he might be able to get guns for him, but ultimately decided not to participate in the kidnapping.

Vasquez asked another friend, Angel Gutierrez, if he would be interested in helping Vasquez kidnap somebody. Vasquez told Gutierrez that the man who was hiring 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 later introduced him to appellant in the parking lot of a Toys R Us, and told appellant, "[T]his is the guy I tried to hire."

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Vasquez also discussed his plan with a third friend, Richard Garcia. Vasquez did not ask Garcia to help him, but told him that the owner of the Players Club was going to pay him to do a kidnapping. Vasquez told Garcia that he got a gun from the man who owned the club.

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 a gun and 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., armed with a nine-millimeter Beretta and a stun gun. Arambula had not yet returned home, but 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 told her 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. She believed that a third person was present.

Arambula came home shortly after 10:00 p.m., 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. Vasquez and Hampton fled the house. Arambula had been shot six times by a nine-millimeter weapon and died from his wounds. A Nokia cellular phone and a single athletic shoe were discovered at the scene.

Vasquez and Hampton spoke to Gonzalez, Gutierrez and Garcia after the shooting and described what had happened. They said that when Arambula came home, they used the stun gun and tried to grab him but he put up a struggle. Vasquez

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dropped the nine-millimeter weapon during the struggle and Hampton picked it up and shot Arambula. Vasquez said he had dropped his cellular phone at the house and Hampton said he had lost one of his shoes.

The cellular phone was registered in the name of Vasquez's mother. Telephone company records showed that a few minutes before the shooting, several calls were made from that cellular phone to appellant's residence. There had also been several calls between the two telephone numbers during the previous year. Vasquez went into hiding and had not been located at the time of appellant's trial. Before he disappeared, Vasquez met briefly with appellant at a Black Angus restaurant.

Hampton met with his parents a few days after the shooting 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 and arranged for Hampton to stay with a friend of his. Hampton and appellant spoke on the telephone several times while Hampton was in Texas. Hampton was eventually apprehended but did not testify at appellant's trial.

Appellant and Donahoo flew to Mexico after the shooting. Appellant was arrested upon their return in August of 1998, and was interviewed by police. He denied knowing any details about Donahoo's former relationship with Arambula, but said he had noticed that she 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 that 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 only wanted Vasquez to

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tell Arambula that he wanted to talk to him; he did not want Arambula to be kidnapped or harmed in any way. When he learned about what had happened, he was frightened, so he gave $300 to Hampton and arranged for him to go to a friend's house in Texas.

A jury convicted appellant of murder, attempted kidnapping (§§ 207, subd. (a), 664), burglary (§ 459), assault with a stun gun (§ 244.5, subd. (b)), and false imprisonment by violence (§ 236). The jury also found true allegations that the murder occurred during the commission of a burglary and attempted kidnapping (§ 190.2, subds. (a)(17)(B) & (G)), and that appellant was 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 him to life without the possibility of parole plus four years and eight months. We subsequently affirmed the judgment on appeal. (People v. Vazquez, supra, B135076.) In 2002, we summarily denied appellant's petition for a writ of habeas corpus in which he contended among other things that his appellate counsel had provided ineffective assistance by failing to challenge the special circumstance findings. (In re Vazquez (Apr. 3, 2002, B157027).)

Our Supreme Court's decision in Banks was issued in 2015, and Clark was issued in June 2016. In April 2017, appellant filed a petition for a writ of habeas corpus in the trial court alleging that the evidence was insufficient to support the special circumstance findings, i.e. that he was a major participant in the underlying felonies who acted with reckless indifference to human life. On May 9, 2017, Ventura County Superior Court Judge Ryan Wright issued a written ruling denying the petition

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on the merits.^[3] We summarily denied appellant's ensuing Habeas petition.

In 2019, appellant filed a petition for resentencing under section 1170.95. Because the trial judge who sentenced appellant had retired, the matter was assigned to Judge Anthony Sabo. (§ 1170.95, subd. (b)(1).) In his petition, appellant reiterated his...