People v. Maldonado

THE PEOPLE, Plaintiff and Respondent, v. LARENZO RICARDO MALDONADO, Defendant and Appellant.

B308300

California Court of Appeals, Second District, Third Division

September 23, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No A364611, William C. Ryan, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General Susan Sullivan Pithey, Assistant Attorney General, Amanda Lopez and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

HILL J. ^[*]

In 1981, Larenzo Ricardo Maldonado pleaded guilty to second degree murder based on a codefendant's fatal shooting of a pizza delivery man during the commission of an armed robbery. In 2019, Maldonado filed a petition for resentencing pursuant to newly-enacted Penal Code section 1170.95.^[1] The trial court denied the petition based on a finding that Maldonado was not entitled to relief under section 1170.95 because he was a major participant in the robbery and acted with reckless indifference to human life. On appeal, Maldonado argues the trial court erred in denying the petition because principles of double jeopardy precluded a finding that he could be convicted of first degree felony murder under current law. Maldonado also asserts the evidence was insufficient to support the trial court's factual finding that he was not entitled to resentencing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The 1980 robbery and murder^[2]

On October 10, 1980, seven juvenile members of the Avenues gang including Maldonado, decided to rob a pizza delivery man to obtain money to go to a county fair. The plan initially was devised by Rudy Zamorano, Martha McRae, and Lisa Gandara. They then gathered with Maldonado, Manual Marin, Ralph Garcia, and Pete Herrera at Maldonado's house where they worked out the details of the plan. All seven individuals “were for it.” The plan was to drive to a secluded street, order pizzas for delivery to an address on that street, and then wait for the delivery man to arrive to rob him. While the group agreed that “nobody was supposed to get hurt, ” they also decided to use a gun in the robbery “in case the pizza man decided to pull a gun” on them. Zamorano told the group that if the delivery man pulled out a gun or tried to defend himself “they were going to shoot him.”

The group drove in Marin's car to a fellow gang member's house where Zamorano retrieved a rifle and ammunition. They then chose a house on Raber Street as the location for the robbery because it was the darkest street in the area. After dropping off McRae and Herrera at a pay phone booth so that they could order the pizzas, the group parked the car down the street from the Raber Street house. While Marin stayed in the car, the rest of the group waited near the house for the delivery man. Maldonado and Gandara stood in front of the house while Zamorano and Garcia hid behind a car across the street.

When the delivery man, Phillip Ares, arrived on Raber Street, Gandara directed him to follow her to the house. As Ares was walking toward the house, Zamorano approached him from behind, placed the rifle against his back, and said, “Hold it, motherfucker, or I'll shoot you.” Gandara grabbed the pizzas from Ares's hands. Maldonado and Garcia then searched Ares for money. Maldonado removed change from one of Ares's pockets while Garcia took bills from another pocket.

After the men took Ares's money, Zamorano directed him to turn around. When Ares did not comply, Zamorano warned him, “If you don't turn around, I'll shoot you through the back.” Ares again did not comply, and instead stood silently with his back to Zamorano. After Zamorano told Ares to turn around a third time, Maldonado grabbed Ares by his arm and turned him toward Zamorano. At that point, the rifle was pointed at Ares's stomach. Zamorano told Ares, “I know you're going to snitch.” Zamorano then walked around Ares and shot him three times in the back. Ares died at the scene from his gunshot wounds.

Immediately after the shooting, Maldonado and the rest of the group ran back to Marin's car. When Gandara asked Zamorano why he shot the delivery man, Zamorano “[j]ust laughed.” According to Gandara, “we all laughed, just laughed, ” and “we didn't expect that he died.” After the group picked up McRae and Herrera, they drove to an alley, where they hid the rifle and split the proceeds from the robbery. The group then parked on a nearby street and ate the pizza.

II. Maldonado's 1981 guilty plea

Maldonado, Zamorano, and Marin were each charged with murder and robbery with robbery-murder special circumstance and firearm enhancement allegations. On January 7, 1981, Maldonado pleaded guilty to second degree murder pursuant to a plea agreement. He was sentenced to a term of 15 years to life in state prison.

III. Maldonado's 2019 petition for resentencing

On January 2, 2019, Maldonado filed a petition for resentencing pursuant to section 1170.95. He asserted he was entitled to relief under the statute because he pleaded guilty to murder pursuant to the felony-murder rule or natural and probable consequences doctrine, he was not the actual killer, he did not aid or abet a murder with the intent to kill, and he was not a major participant in the underlying felony or acted with reckless indifference to human life. On March 11, 2019, the trial court appointed counsel to represent Maldonado in his section 1170.95 petition.

On July 2, 2019, the People filed a response to Maldonado's petition. The People contended the petition should be denied because section 1170.95 was unconstitutional. The People also argued Maldonado was ineligible for resentencing because he was a major participant in the robbery and acted with reckless indifference to human life. On November 12, 2019, the trial court issued an order to show cause, finding that section 1170.95 was constitutional, and that Maldonado had made a prima facie showing of entitlement to relief.

On September 14, 2020, following a hearing on the order to show cause, the trial court denied Maldonado's petition. In a detailed memorandum of decision, the trial court found that Maldonado was not entitled to relief under section 1170.95 because the evidence showed, beyond a reasonable doubt, that Maldonado was a major participant in the underlying felony and acted with reckless indifference to human life. In finding that Maldonado was a major participant in the felony, the court relied on “his later, but actual, participation in the planning, his participation in the robbery, his lack of action when it became apparent his co-perpetrator believed the victim needed to be killed, and his lack of aid to the victim.” In finding that Maldonado had acted with reckless indifference to human life, the court cited “his role as a late-stage planner and a participant in the armed robbery who was in a position to prevent the violence but did not.”^[3]

Following the denial of his petition, Maldonado filed a timely appeal.

DISCUSSION

I. Overview of section 1170.95

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended murder liability under the felony murder rule and natural and probable consequences doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Prior to Senate Bill 1437's enactment, under the felony murder rule, “a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248.) Similarly, under the natural and probable consequences doctrine, a defendant was “liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (Id. at p. 248.)

Senate Bill 1437 amended the felony murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration or attempted perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor in the murder; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (See People v. Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural and probable consequences doctrine by adding section 188, subdivision (a)(3), which states that malice shall not be imputed to a person based solely on his or her participation in a crime. (Id. at p. 843.)

Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony murder or natural and probable consequences theory may petition the sentencing court to vacate the murder conviction and resentence the petitioner on any remaining counts. (See People v. Lewis supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 843.) A petitioner is eligible for relief if he or she: (1) was charged with murder by means of a charging document that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) was convicted of first or second degree murder, and (3) could no longer be convicted of first or second degree...