People v. Estrada

1

THE PEOPLE, Plaintiff and Respondent, v. ERICA MICHELLE ESTRADA, Defendant and Appellant.

B312352

California Court of Appeals, Second District, Fourth Division

May 17, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. YA076269 Scott T. Millington, Judge. Reversed and remanded with directions.

Law Office of Stein and Markus, Andrew M. Stein and Joseph A Markus; Brentford Ferreira Attorney at Law and Brentford Ferreira, for Defendant and Appellant.

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

MANELLA, P. J.

INTRODUCTION

Appellant Erica Michelle Estrada appeals from the trial court's denial of her petition under Penal Code section 1170.95 to vacate her murder conviction.^[1] In 2013, a jury convicted appellant of felony murder and found true a robbery-murder allegation under section 190.2 (the special circumstance statute). During the pendency of appellant's direct appeal, our Supreme Court clarified the meaning of the special circumstance statute in People v. Banks (2015) 61 Cal.4th 788 (Banks). We affirmed the judgment, holding, inter alia, that the special circumstance finding was supported by substantial evidence under Banks. (People v. Gonzalez (2016) 246 Cal.App.4th 1358 (Gonzalez I).) Our Supreme Court granted review on an issue immaterial to this appeal, and affirmed. (People v. Gonzalez (2018) 5 Cal.5th 186 (Gonzalez II).)

After the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which narrowed the felony murder rule by incorporating the special circumstance statute's requirement that the defendant at least have been a major participant in the underlying felony and have acted with reckless indifference to human life, appellant filed a petition for resentencing under section 1170.95, alleging she was not guilty of murder in the wake of SB 1437. Without issuing an order to show cause, the trial court denied the petition, reasoning that (1) the jury's robbery-murder special circumstance finding precluded relief as a matter of law, by establishing that appellant at least had been a major participant in the robbery and had acted with reckless indifference to human life; and (2) although some cases had held that a pre-Banks special circumstance finding alone could not preclude relief under Section 1170.95, those cases were inapposite in light of our holding in Gonzalez I that the special circumstance finding was supported by substantial evidence under Banks.

On appeal, appellant contends the court erred in denying her petition without issuing an order to show cause. The Attorney General disagrees, arguing the special circumstance finding precluded relief as a matter of law, either alone or in conjunction with our substantial-evidence holding in Gonzalez I. In the alternative, the Attorney General argues we should deem any error harmless by making a new finding of substantial evidence under Banks on this appeal.

We conclude the court erred, as neither the jury's pre-Banks special circumstance finding nor our opinion in Gonzalez I refuted, as a matter of law, appellant's allegations that she was not a major participant in the robbery and did not act with reckless indifference to human life within the meaning of the special circumstance statute as clarified in Banks. We further conclude the error was not harmless regardless of whether the trial record contains substantial evidence under Banks, as a finding of substantial evidence of appellant's guilt under a still-valid theory of murder is insufficient to render her ineligible for resentencing under section 1170.95. Accordingly, we reverse the order denying appellant's petition, and remand the matter to the trial court with directions to issue an order to show cause and proceed in accordance with section 1170.95.

BACKGROUND

In 2009, Victor Rosales died from a single gunshot wound to the chest. (Gonzalez I, supra, 246 Cal.App.4th at 1367-1368.) The People charged appellant and two codefendants -- Jorge Gonzalez and Alfonso Garcia -- with Rosales's murder. (Id. at 1363.) The People alleged that a principal was armed with a firearm during the murder, and that the murder was committed during the commission of a robbery. (Ibid.) With respect to codefendant Gonzalez alone, the People brought an additional charge of shooting at an occupied motor vehicle, and an additional allegation of causing death by personally and intentionally discharging a firearm. (Ibid.)

A. Trial Evidence

The prosecution's primary evidence concerning the shooting of Rosales consisted of pretrial statements made shortly after the shooting by his friend Alejandro Ruiz, who did not testify. (Gonzalez I, supra, 246 Cal.App.4th at 1367, 1371.) Rosales's mother and two sisters testified that Ruiz made statements indicating appellant (Rosales's girlfriend) was responsible for the shooting in some unspecified manner. (Id. at 1366-1367.) More specific statements by Ruiz were introduced through the testimony of Inglewood Police Officer Fernando Vasquez, who interviewed Ruiz upon responding to a 911 call about the shooting. (Id. at 1367.) Ruiz told the officer that about 20 minutes before the 911 call, he drove to Rosales's house to pick up Rosales, who said appellant had asked to meet at a nearby laundromat to get lunch. (Id. at 1367.) Ruiz drove Rosales to the laundromat. (Ibid.) "[Ruiz] recognized [appellant], accompanied by two male Hispanics, walking out from behind two palm trees. [Appellant] pointed at Rosales, and one of the males walked up to the passenger side door, produced a small handgun, and fired a single shot at Rosales." (Ibid.) The shooter tried to pull Ruiz out of the car, but Ruiz quickly drove away, back to Rosales's house. (Ibid.) Officer Vasquez testified that on the evening of the shooting, he arrested appellant and Gonzalez outside appellant's house. (Ibid.)

The prosecution's primary evidence concerning the defendants' intent to rob Rosales consisted of the testimony of potential accomplice Anthony Stephen Kalac, who testified after invoking his privilege against self-incrimination and being granted use immunity. (Gonzalez I, supra, 246 Cal.App.4th at 1364, 1374.) Kalac testified that on the day of the shooting, he joined appellant, codefendant Gonzalez, codefendant Garcia, and Garcia's girlfriend in a room at the Crystal Inn (across the street from the laundromat where the shooting took place). (Id. at 1364.) Appellant, Garcia, and Gonzalez discussed where they could obtain drugs. (Ibid.) During this discussion, appellant told Garcia and Gonzalez that she knew someone (Rosales) they could "'come up on, '" which Kalac understood to mean "'rob.'" (Ibid.) Appellant said Rosales was a drug dealer who had been "'physical'" (violent) with her. (Ibid.) "On cross-examination, Kalac admitted that part of the conversation among Gonzalez, [appellant], and Garcia about where to obtain drugs had taken place in Spanish, a language he does not understand. Kalac testified that the only part of defendants' conversation that was in English was about '[w]here they were meeting basically and how long.'" (Gonzalez II, supra, 5 Cal.5th at 210 (dis. opn. of Liu, J.).) Kalac also admitted he was high on heroin during the conversation. (Id. at 193 (maj. opn. of Cuéllar, J.); id. at 211 (dis. opn. of Liu, J.).)

Kalac further testified that appellant called Rosales, asked him to sell her drugs, and told him to meet at the laundromat. (Gonzalez I, supra, 246 Cal.App.4th at 1364.) Garcia said he would act as lookout, and left the Crystal Inn with Gonzalez. (Id. at 1365.) Appellant, assisted by Garcia's girlfriend and Kalac, relocated to a nearby hotel. (Ibid.) Appellant left Kalac alone in the new hotel. (Ibid.) Kalac started walking home, and encountered Garcia and Gonzalez, who told him "'shit went bad.'" (Ibid.) Kalac testified that he never saw a gun. (Ibid.) However, Kalac's ex-girlfriend told police that Garcia gave Kalac the gun that had been used in the shooting. (Id. at 1365-1366.)

Neither appellant nor Garcia testified. (Gonzalez I, supra, 246 Cal.App.4th at 1371.) Gonzalez testified he was with appellant, Garcia, and Kalac at the Crystal Inn on the day of the shooting, but they did not plan to rob Rosales; instead, at Gonzalez's request, appellant arranged to buy drugs from Rosales. (Id. at 1369-1370.) Because the hotel manager had told them to leave, appellant relocated to a new hotel, while Gonzalez and Garcia went to the laundromat to meet Rosales. (Id. at 1370.) Gonzalez did not have a gun, and he had not seen any guns in the hotel room. (Ibid.) Outside the laundromat, Gonzalez saw Rosales sitting in a car, looking at him. (Ibid.) Gonzalez walked over to Rosales and greeted him twice, but Rosales did not respond, prompting Gonzalez to ask whether he should get appellant. (Ibid.) Rosales suddenly threatened Gonzalez with a handgun, which Gonzalez grabbed in self-defense; in the ensuing struggle for possession, the gun accidentally discharged. (Ibid.) Gonzalez ran away, found Garcia, and came across Kalac, to whom he gave the gun. (Ibid.) He joined appellant at a new hotel and accompanied her to her house, where she introduced him to her son before the police arrived and arrested them. (Id. at 1370-1371.)

B. Judgment and Appeal

"Aside from felony murder, the jury was not instructed on any other theory of murder." (Gonzalez I, supra 246 Cal.App.4th at 1379.) The jury convicted all defendants of felony murder, and found true the robbery-murder special circumstance allegation. (Id. at 1363.) However, the jury found all the...