People v. Schell, 2d Crim. No. B313694

• Court: California Court of Appeals
• Writing for the Court: YEGAN, J.
• Citation: 84 Cal.App.5th 437,300 Cal.Rptr.3d 409
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry Paul SCHELL, Defendant and Appellant.
• Docket Number: 2d Crim. No. B313694
• Decision Date: 20 October 2022

84 Cal.App.5th 437
300 Cal.Rptr.3d 409

The PEOPLE, Plaintiff and Respondent,
v.
Terry Paul SCHELL, Defendant and Appellant.

2d Crim. No. B313694

Court of Appeal, Second District, Division 6, California.

Filed October 20, 2022

Wayne C. Tobin, Newbury Park, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

84 Cal.App.5th 440

Terry Paul Schell joined in an "eight against one" gang assault resulting in the victim's death. While his cohorts used a baseball bat, a shovel, and a knife, appellant pummeled the victim with his fists and feet. The trial court found that this participation in the gang assault resulting in death is an implied malice murder. We agree.

Appellant unsuccessfully appeals the trial court's order denying his petition for resentencing on his 2001 second degree murder conviction pursuant to Penal Code section 1172.6 (former § 1170.95).¹ Following an evidentiary hearing, the trial court found, beyond a reasonable doubt, that there was substantial evidence to support a finding of second degree implied malice murder. Appellant contends among other things that the evidence is insufficient to support that finding.

Factual Background

In 1999, 18-year-old William Zara was beaten to death by a group of at least

300 Cal.Rptr.3d 412

eight people affiliated with the Ventura Avenue Gang. He was attacked because gang members thought that he had called the police complaining that the gang was disturbing the peace. Zara initially used a baseball bat to fend off the attack. One of the attackers, Benny Lopez, took the bat away from Zara and beat him with it. Another attacker hit Zara with a shovel. Appellant participated in the attack with his fists and feet. He was so close to Zara during the attack that Zara's blood was deposited on his clothing. Zara was also stabbed three times and appellant told a friend that he "shanked" Zara. The People could not prove that appellant used a knife to stab Zara, but as we shall explain, the trial court did not find that appellant used a knife during the attack.

84 Cal.App.5th 441

1172.6 Petition and Hearing

In 2020, appellant filed a section 1172.6 petition for resentencing. The trial court found appellant had made a prima facie showing for relief, issued an order to show cause, and subsequently held an evidentiary hearing in accordance with section 1172.6, subdivision (d).

Neither party offered any new or additional evidence at the evidentiary hearing. The prosecution argued that appellant was guilty of second degree implied malice murder because, among other things, he participated in the assault on Zara by hitting, kicking, and stabbing him. Appellant replied that the evidence was insufficient to support his conviction on that theory or that he had stabbed Zara during the incident. Appellant also asserted that the People should be estopped from arguing that appellant stabbed Zara because during closing argument the prosecutor had conceded that the evidence was insufficient to support such a finding. The prosecution countered that the People were not precluded from arguing different theories of guilt at the section 1172.6 evidentiary hearing, and that even if the evidence did not show appellant stabbed Zara the facts presented at trial were sufficient to prove he was guilty of second degree implied malice murder.

Trial Court Ruling

At the conclusion of the hearing, the trial court found beyond a reasonable doubt, that the evidence supports a finding of second degree implied malice murder. Accordingly it denied the petition. It noted that although the evidence did not show that appellant and his accomplices brought the shovel and bat to the crime scene, once they obtained those items "it doesn't take much time to form the intent to use those weapons and they certainly did."

After noting that the original judge who had presided at trial indicated at sentencing that he was not convinced beyond a reasonable doubt that appellant had stabbed Zara, the trial court made clear that its ruling on the section 1172.6 petition "does not depend on the knife" and that the other evidence supports a second degree implied malice murder because it was "pretty darn convincing." The trial court reasoned: "I am persuaded beyond a reasonable doubt that [appellant's] participation was more than mere presence. He was standing shoulder to shoulder with the people [who] were w[i]elding weapons that crushed [the] victim's skull, that he actively participated in battering the victim with at least his hands or his feet and then, in the process, ... personally inflicted, great bodily injury on the victim and personally contributed to or participated in the ultimate death of [the] victim." In finding beyond a reasonable doubt that appellant had acted with a conscious disregard for Zara's life, the trial court noted that appellant "was right there, close enough to get blood on him[self]."

84 Cal.App.5th 442

300 Cal.Rptr.3d 413

Sufficiency of the Evidence

As indicated, appellant's sufficiency of the evidence contention fails. Section 1172.6, which was enacted "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats., 2018, ch. 1015, § 1, subd. (f).)

Section 189, as amended, now provides that in cases where a death occurs during the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), a person is liable for murder only if the person was the actual killer, the person acted with intent to kill in aiding, assisting, or soliciting the killer, or if the person "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in...