People v. Reyes

• Citation: 14 Cal.5th 981,531 P.3d 357,309 Cal.Rptr.3d 832
• Docket Number: S270723
• Decision Date: 29 June 2023
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andres Quinonez REYES, Defendant and Appellant.
• Court: California Supreme Court

14 Cal.5th 981

531 P.3d 357

309 Cal.Rptr.3d 832

The PEOPLE, Plaintiff and Respondent,

v.Andres Quinonez REYES, Defendant and Appellant.

S270723

Supreme Court of California.

June 29, 2023

Gerald J. Miller, under appointment by the Court of Appeal, and Richard A. Levy, Torrance, under appointment by the Supreme Court, for Defendant and Appellant.

Mary K. McComb, State Public Defender, Samuel Weiscovitz and Jennifer Hansen, Deputy State Public Defenders, for Office of the State Public Defender as Amicus Curiae on behalf of Defendant and Appellant.

Christopher Hawthorne and Marisa Harris for Juvenile Innocence & Fair Sentencing Clinic as Amicus Curiae on behalf of Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Eric A. Swenson, Meredith White, Jennifer B. Truong and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Liu, J.

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 Penal Code section 1172.6 (Stats. 2022, ch. 58, § 10 ). (All statutory references are to the Penal Code.) He argued that the evidence against him did not support a conviction under any valid theory of murder in light of the limitations imposed by Senate Bill No. 1437. The trial court denied his petition, finding that he was guilty beyond a reasonable doubt of implied malice murder, an alternative theory that remained available after Senate Bill No. 1437. The Court of Appeal affirmed. ( People v. Reyes (Aug. 4, 2021, G059251) 2021 WL 3394935 [nonpub. opn.].) Because the trial court erred in denying Reyes's petition, we reverse the Court of Appeal's judgment with instructions to remand the case to the trial court for further proceedings on Reyes's resentencing petition.

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 bicycle riders, he confronted Felix Nieves. Nieves, who did not belong to a gang, was walking in F-Troop territory near where Rosario had been shot. Reyes asked Nieves what "barrio" he belonged to; Nieves denied any gang affiliation and said he did not want any problems. Reyes said he was from "the Troop" and challenged Nieves to a fight. When Nieves saw Reyes reach to pull something from his waistband, he fled. Reyes and his companions caught Nieves about two blocks away, and the group assaulted him. At one point, Reyes stood behind Nieves and held a gun to the back of his neck. Nieves managed to hit Reyes and grab the weapon. Reyes and the others fled.

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 to support whatever you're doing. And if you need something, whether it be fighting, getting the gun and shooting, whatever need be for the incident you're involved in, those guys that are there for backup are there to support whatever you're doing."

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, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).) As relevant here, the bill amended section 188 to provide that, except in cases of felony murder, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought." ( § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) This change "bars a conviction for first or second degree murder under a natural and probable consequences theory." ( Gentile , at p. 846, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Reyes petitioned the trial court for resentencing under former section 1170.95 (now § 1172.6 ), arguing that he was convicted of murder under the now-invalid natural and probable consequences theory. (For clarity, we refer simply to § 1172.6.) The court appointed counsel for Reyes and held a hearing, at which Reyes argued that the evidence did not support a murder conviction under any valid theory because it did not show that he committed "an act that actually ... help[ed], encourage[d], [or] facilitate[d] Francisco [Lopez] in the shooting." The court denied the petition, finding that Reyes was guilty beyond a reasonable doubt of second degree murder. The court was "guided by the principles that are in [ CALCRIM No. 520 ], specifically implied malice." It found that "the act in this case is the defendant, along with several other gang members, one of which [was] armed, traveled to rival gang territory," that the natural and probable consequence of their doing so was dangerous to human life, that Reyes was aware the act was dangerous to human life, and that he deliberately acted with conscious disregard for that danger. Reyes appealed, arguing in part that "there was no evidence of any acts taken by appellant to aid or assist in or facilitate the commission of the murder." After extensively quoting the trial court's findings, the Court of Appeal held that the evidence was sufficient to establish Reyes's guilt of second degree murder and affirmed. We granted review.

II.

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]...