People v. Ignacio

THE PEOPLE, Plaintiff and Respondent, v. ERIC IGNACIO, Defendant and Appellant.

B311152

California Court of Appeals, Second District, Seventh Division

May 16, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No KA040038, Juan C. Dominguez, Judge. Reversed and remanded with directions.

Edward J. Haggerty, 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, David E. Mado, and Stephanie A. Miyoshi Deputy Attorneys General for Plaintiff and Respondent.

WISE J. ^[*]

Eric Ignacio appeals from an order denying his petition to vacate his second degree murder conviction and for resentencing under Penal Code section 1170.95.^[1] Ignacio argues substantial evidence does not support the trial court's conclusion he is guilty of second degree murder as a direct aider and abettor under amended sections 188 and 189 and, as a consequence, we should reverse the order denying his petition and direct the trial court to grant the petition and to resentence him as required by section 1170.95, subdivision (d)(1). In the alternative, he contends the case should be remanded for a new evidentiary hearing because the trial court erred when it relied on the factual summary and conclusions from this court's February 2000 opinion in his direct appeal to conclude he was ineligible for resentencing.

Although the evidence presented at the evidentiary hearing was sufficient to support the court's order, reversal is required because the recent legislative amendments to section 1170.95 no longer permit a trial court to rely on an appellate opinion's factual summaries and conclusions to determine a petitioner's eligibility for resentencing. Here the trial court relied almost exclusively on this court's prior opinion to deny Ignacio's section 1170.95 petition, and it is reasonably probable that a result more favorable to Ignacio would have been reached in the absence of that error. Accordingly, we reverse the order denying Ignacio's petition and remand for a new evidentiary hearing.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

A. The Murder of Anthony Boissiere

In 1997 Ignacio and his codefendants Paul Ortiz, Gabriel Centeno and Victor Blas were Azusa 13 criminal street gang members. In early July 1997 another member of the Azusa 13 gang, Nick Jaramillo, was involved in a fight with Anthony Boissiere.^[3] A short time later, while Boissiere was walking with a friend, Moses Alcala, Jaramillo and Ignacio approached them in a car; Jaramillo got out of the car and chased Boissiere but did not catch him.

Two weeks later, Boissiere, Alcala, and Alcala's girlfriend, Angie Ramirez, attended a party at a private residence. Ignacio and his co-defendants Ortiz, Centeno and Blas also went to the party, arriving in Blas's Buick Regal.

During the party Boissiere and Blas got into a fistfight in the front yard. At some point Ignacio, Centeno and Ortiz joined Blas, kicking and punching Boissiere. Ignacio and one of his co-defendants, either Ortiz or Centeno, briefly went to the Buick Regal and returned to the fight. Moments later gunshots were fired. Boissiere was shot three times and fell to the ground. Ignacio, Centeno, Ortiz and Blas immediately fled in Blas's car. Boissiere died from multiple gunshot wounds. His body also had numerous cuts, scrapes and bruises from the fight.

During the police investigation Acala and Ramirez identified Ignacio, Oritz, Centeno and Blas as Boissiere's attackers. Acala also identified Ignacio as one of the two people who briefly left the fight, went to the Buick Regal, and returned before Boissiere was shot. No one identified who possessed the gun or who fired the shots that killed Boissiere.

In May 1998 Ignacio, Centeno, Ortiz and Blas were charged with murder (§ 187). The charges included the allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1)) and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Ortiz was also charged with dissuading a witness (§ 136.1, subd. (c)(1)).^[4]

All the defendants were tried together. On the murder charge the prosecution proceeded on the theory that a principal armed with a gun committed the murder. The prosecution argued each of the defendants was liable for Boissiere's murder under the alternative theories that each defendant either directly aided and abetted the principal in committing the murder or that each defendant aided and abetted in committing the assault and the murder was the natural and probable consequence of that assault. The jury was instructed on each theory.

The jury convicted Ignacio^[5] and each co-defendant of second degree murder (Pen. Code, § 187, subd. (a) (1)) with gang and firearm enhancement findings under sections 186.22, subdivision subdivision (b) and 12022, subdivision (a)(1).^[6] The trial court sentenced Ignacio to an aggregate term of 15 years to life for the murder conviction plus a one-year firearm enhancement but did not impose an additional sentence for the gang allegation.

B. The Direct Appeal (B125562)

Ignacio and his co-defendants appealed. They each raised various challenges to their convictions including a claim that there was insufficient evidence to support their convictions for murder under either of the prosecution's aider and abettor theories because there was no evidence that a specific defendant shot or intended to shoot Boissiere and there was no showing that any of the defendants had an intent to kill.

Ignacio individually argued there was insufficient evidence that he did anything to aid and abet the commission of the murder, shared the shooter's intent or was aware that one of his co-defendants had a gun and intended to shoot Boissiere.^[7] He asserted he was merely a bystander to the shooting and the prosecution's evidence (that he and another defendant went to the car during the fight and one of them retrieved a gun) was insubstantial, conflicting and incredible. He further argued insufficient evidence existed to conclude the murder was a natural and probable consequence of the fight.

In February 2000 a different panel of this court resolved Ignacio and his co-defendants' appeals in a single opinion. This court affirmed the murder convictions concluding sufficient evidence supported the convictions under the natural and probable consequence doctrine.^[8] This court found Ignacio and his co-defendants participated in the beating of Boissiere stating it was "reasonably foreseeable this attack might kill him, even without the use of a gun[;]" "[a]ppellants did not have to know that one of their group had a gun or intended to shoot in order to be liable for aiding and abetting the killing[;]" and "it was reasonably foreseeable that this gang-motivated scuffle might escalate into a shooting." Because this court held sufficient evidence supported the murder conviction under the natural and probable consequences theory of aiding and abetting, this court did not address whether sufficient evidence also supported the verdicts against Ignacio or his co-defendants under the direct aider and abettor theory of murder.

C. Ignacio's Section 1170.95 Petition

On February 6, 2019, Ignacio filed a petition for resentencing under Penal Code section 1170.95, alleging he was prosecuted for and convicted of second degree murder under the natural and probable consequences doctrine and could not now be convicted of murder following Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). Ignacio filed a brief in support of the petition in which he argued he was not the actual killer, he did not have the specific intent to kill, and he was not a major participant who acted with reckless indifference to human life. Instead, he was "simply involved in a fistfight with no intent to kill," and was therefore eligible for resentencing under section 1170.95.

The prosecution responded to the petition noting the trial court had instructed on direct aiding and abetting and the natural and probable consequences theory. The prosecution argued even though there was no evidence presented as to the identity of the shooter, Ignacio's guilt as a direct aider and abettor was shown by evidence that he went to the Buick Regal to "retrieve what could be nothing other than the murder weapon" that was used almost immediately after that to shoot Boissiere. The prosecution argued Ignacio was a major participant who acted with reckless indifference to human life because he and his co-defendants, who were all members of the Azusa 13 gang, went to a party and "ganged up" on Boissiere when co-defendant Blas appeared to be losing a fistfight with Boissiere. Ignacio and either Ortiz or Centeno then returned to Blas's car to retrieve a gun that was used to shoot Boissiere. The exhibits attached to the prosecution's reply included this court's unpublished opinion in the direct appeal and the reporter's transcript of the jury instructions from the trial.

The trial court^[9] requested additional briefing on whether it could make a finding contradicting the factual summary and findings in this court's prior opinion. The prosecutor filed a brief arguing that because no new evidence had been presented the trial court should be limited to Ignacio's record of conviction, including the court of appeal's opinion in the direct appeal. The prosecutor maintained that because the currently assigned superior court judge was not present for the trial testimony of the witnesses, the court was not in a position to reweigh the credibility of the trial witnesses and could not make findings...