People v. Vizcarra

• Decision Date: 19 October 2022
• Docket Number: D078869
• Citation: 84 Cal.App.5th 377,300 Cal.Rptr.3d 371
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerardo Jimenez VIZCARRA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

84 Cal.App.5th 377

300 Cal.Rptr.3d 371

The PEOPLE, Plaintiff and Respondent,

v.Gerardo Jimenez VIZCARRA, Defendant and Appellant.

D078869

Court of Appeal, Fourth District, Division 1, California.

Filed October 19, 2022

Ronda G. Norris, San Diego, 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, A. Natasha Cortina, Lynne G. McGinnis, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

McCONNELL, P. J.

IINTRODUCTION

In 2001, Gerardo Vizcarra was convicted of the second degree murder of Richard Holcomb ( Pen. Code, § 187, subd. (a) ).¹ Vizcarra and three confederates beat, kicked, and stabbed Holcomb to death after he bumped a mutual companion's young child into a wall while playing with him.

In 2019, Vizcarra filed a petition to vacate his murder conviction and to be resentenced under section 1172.6 based on changes to our state's murder laws effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (hereafter, Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg. Sess.) (hereafter, Senate Bill 775).² The trial court denied the petition for resentencing, finding Vizcarra was not entitled to relief because he remained liable for Holcomb's murder under a still-valid theory of liability—to wit, he directly aided and abetted an implied malice murder.

Vizcarra appeals the order denying his petition for resentencing. He argues direct aiding and abetting of implied malice murder is not a legally-valid theory of murder liability. Further, he argues he is entitled to resentencing under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (hereafter, Senate Bill 1393), which grants courts discretion to strike or dismiss prior serious felony enhancements in furtherance of justice.

We reject these arguments and affirm the order denying Vizcarra's petition for resentencing.

IIBACKGROUND

A. Factual Background

The following background comes from this court's opinion in People v. Vizcarra (Oct. 26, 2004, D041824) [nonpub. opn.] (hereafter, Vizcarra I ).

"On the afternoon of May 6, 2001, Vizcarra, the victim Richard Holcomb, and John Hedderson were in the living room of Hedderson's house. (Vizcarra rented space in Hedderson's garage.) Holcomb and Hedderson had been drinking and using methamphetamine.

"At some point, Holcomb picked up Hedderson's five-year-old son and bumped him into a wall while walking or swinging him around. As soon as the boy hit the wall, Holcomb put him down. Vizcarra became angry and told Holcomb, ‘You shouldn't have done that to a small child.’ Vizcarra told Holcomb he was going to call some friends to ‘take care of’ Holcomb. Vizcarra described Holcomb as drunk, argumentative and getting ‘in his face.’

"Vizcarra left the living room and made a phone call. Shortly thereafter three men arrived in a blue Mustang. One man said, ‘Oh, that's my brother-in-law’ as he walked through the front door. Vizcarra then grabbed Holcomb around the neck and dragged him into Hedderson's bedroom. The three men also went into the bedroom.

"Hedderson picked up his youngest son, carried him outside and then returned to the house. In the bedroom, he saw Holcomb, who appeared to have been beaten, partially rolled up inside the bedroom's rug. Holcomb was moaning. Vizcarra and three men had kicked, ‘stomped,’ and stabbed Holcomb. Vizcarra told Hedderson, ‘Don't trip,’ meaning Hedderson should not panic. One of the men said, ‘Don't let the kids walk past this part of the house.’ Hedderson responded, ‘Don't worry. We're out of here.’ He left with his sons.

"After Hedderson left, Vizcarra helped wrap Holcomb's body in a sheet from the bed, plastic garbage bags and the rug. He then helped move the body into the garage.

"About 4:00 p.m., Hedderson's sister arrived at the house because she was planning to take Hedderson's sons to a birthday party. The blue Mustang was still in the driveway. She knocked on the door and the window but received no response. Three men came from the back of the house, walked past her, got in the Mustang and drove away. She did not know any of the men nor was she able to later identify them. She walked to the back door and called out her brother's name. Vizcarra ‘came from behind a wall and jumped out,’ and told her Hedderson was not at home but would be back shortly. Vizcarra also told her he was getting ready to take a shower. Vizcarra was wearing a leather jacket but no shirt.

"After she left, Vizcarra asked to borrow a pair of pants from a homeless man living on a vacant lot next to Hedderson's house. The homeless man described Vizcarra as being ‘hyped up’ about something and having a knife in his hand. The homeless man gave Vizcarra a pair of pants. Vizcarra gave the homeless man his own pair of pants, telling him, ‘bury them and bury them deep.’ The homeless man did not remember seeing any blood on the pants but did notice they were damp.

"Vizcarra left the house to meet with some other people. They decided to burn Hedderson's house to cover up the murder. Vizcarra, ‘Toker’ (Saul Barrios), Twila Carroll and perhaps another person went to Hedderson's house. Vizcarra poured gasoline on the living room floor. About 5:00 a.m. on May 7, the house exploded. Vizcarra was burned in the fire.

"When the police responded to the fire, Hedderson's house was completely engulfed in flames. They found Holcomb's body in the garage. There were two plastic garbage bags over his head, and the body was wrapped in a sheet and rug from the bedroom.

"The autopsy revealed Holcomb had suffered a number of cutting wounds, including a fatal wound on his neck. He also had a number of injuries that were consistent with being kicked or stomped, including a fatal head injury

. Seven of Holcomb's ribs had been fractured in a ‘roughly linear pattern, indicating some broad-surface type impact’ such as a two-by-four or flat portion of a chair or table. The injuries were inflicted while Holcomb was still alive. At the time of his death, Holcomb had a blood alcohol level of .22 and had methamphetamine in his system.

"The forensic pathologist could not determine the order in which the injuries were inflicted. The neck wound probably would have resulted in Holcomb losing consciousness within 30 to 40 seconds due to a lack of blood to the brain but Holcomb might have continued to gasp for air and moan. Within five or ten minutes, depending upon the amount of Holcomb's physical exertion, he would have lost so much blood his heart would have started to beat irregularly.

"An arson expert testified the fire was deliberately set and gasoline was used as an accelerant. In the living room, there were two gasoline containers, a lighter and a gasoline soaked rag. One of the containers had a paint roller stuffed inside the opening, probably to be used as a wick so that when the roller was lit, the fire would go into the container and ignite the vapors. There was a lighter near this gasoline container. The explosion probably occurred because gasoline vapors had accumulated in the living room (due to gasoline poured along a wall and a couch) at the time the fire was ignited.

"The police interviewed Vizcarra on May 17 at the University of California, San Diego Burn Center (burn center). At the outset of the interview, Vizcarra denied knowing anything about the murder. He also denied knowing how the fire started, claiming he had been moving boxes for some people or had been sleeping just before the explosion. Later in the interview, Vizcarra admitted he knew ‘[m]ore or less’ what happened to Holcomb, but claimed he had only helped move the body. Eventually, Vizcarra admitted he had stomped or kicked Holcomb a couple of times, and helped wrap the body and move it to the garage. Vizcarra, however, claimed the three other men took Holcomb into the bedroom, started the beating, and stabbed Holcomb. Vizcarra claimed he kicked or stomped Holcomb because he was afraid.

"Vizcarra also eventually admitted participating in the arson, including being present when the decision was made to burn Hedderson's house and pouring gasoline on the living room floor. Vizcarra claimed he did not try to light the gasoline and that the plan was to light the fire by shooting flares at the house. He believed someone had wanted him to die in the fire.

"On November 19, 2002, Hedderson, while in custody and in a holding cell waiting to testify in Vizcarra's case, became aware Vizcarra was in another holding cell. Vizcarra told Hedderson not to testify and said, ‘If you do testify, don't say that I was there. Don't say you know me. Don't say I had anything to do with it.’ Vizcarra also made a comment that Hedderson understood to mean that if Hedderson testified against Vizcarra, Hedderson would be killed in prison. Later that day, Hedderson had another conversation with Vizcarra in which Vizcarra again told Hedderson to testify Vizcarra was not involved in the murder or arson. Hedderson agreed because he was afraid. Subsequently, Hedderson called his sister and asked her to contact the district attorney's office about the threat."

(Vizcarra I, supra , D041824, footnotes omitted.)

The district attorney charged Vizcarra with Holcomb's murder and arson of an inhabited structure ( § 451, subd. (d) ). It advanced alternative theories of murder liability, arguing: (1) he was liable for murder as a direct aider and abettor; and (2) he was liable for murder under the natural and probable consequences doctrine because he aided and abetted the commission of a target crime (assault by a deadly weapon or by means of force likely to produce great bodily injury) and murder was the natural and probable consequence of the target crime.³ Vizcarra was not prosecuted for murder under a felony-murder theory of liability.

After a trial, a jury acquitted Vizcarra of first degree murder, but found him guilty of second degree murder and arson of an inhabited...