People v. Nieber

82 Cal.App.5th 458

298 Cal.Rptr.3d 410

The PEOPLE, Plaintiff and Respondent,

v.Toren Eric NIEBER, Defendant and Appellant.

D079208

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

Filed August 22, 2022

Sheila O'Connor, Encintas, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Robin Urbanski, Acting Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J. Toren Eric Nieber was convicted in 2017 for his role in the commission of a 2016 burglary and robbery during which one of the victims was shot and killed. At the preliminary hearing, the magistrate found insufficient evidence to hold over Nieber on a special circumstance allegation, and the matter proceeded to trial without that charge. Following a conviction on all counts, Nieber appealed, challenging his sentencing pursuant to Penal Code ¹ section 1172.6.² He argued that he should be resentenced without an evidentiary hearing pursuant to subdivision (d)(2) because the court's decision at the preliminary hearing constituted a "prior finding by a court" that he was not a major participant in the underlying crime. The trial court, which had presided over the preliminary hearing as well as the trial, ordered an evidentiary hearing and followed the procedures outlined in subdivision (d)(3). It concluded the People proved beyond a reasonable doubt that Nieber was a major participant who acted with a reckless indifference to human life and was therefore ineligible for resentencing. It denied the petition.

On appeal, Nieber makes three arguments. First, he contends the court improperly held an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3) because the court's finding at the preliminary hearing required it to resentence him under subdivision (d)(2). Second, he contends collateral estoppel likewise meant the court was required to follow the procedure detailed in subdivision (d)(2). Third, Nieber contends the court's conclusion that he was a major participant and acted with reckless indifference to human life is not supported by sufficient evidence. We find his contentions without merit, and we affirm.

I

BACKGROUND AND PROCEDURAL FACTS

Nieber and co-defendant Lawrence Johnson were charged with murder,³ with the special circumstance that it occurred in the commission of a burglary and a robbery. After the preliminary hearing, the court found there was insufficient evidence that Nieber was a major participant, and it dismissed the allegation. The People filed a third amended information that removed the special circumstance and the felon in possession of a firearm charges. The case proceeded to trial, and the jury convicted Nieber on all counts.

A. The Crimes

We take the facts of the underlying conviction from our previous opinion, People v. Nieber (Jan. 21, 2020, D073059 [nonpub. opn.]), 2020 WL 289207 :

"At approximately 11:45 a.m. on May 11, 2016, S.P. went to the grocery store and then returned to the house on Tommy Drive (the Tommy Drive residence) where he had been staying with his brother, J.P, and three other individuals, B.A., B.W., and W.S. No one else was home at the Tommy Drive [r]esidence at the time.

"S.P. shut the front door, set his groceries down on the counter, and went to the back room of the house to check his cell phone. As he was doing so, several men suddenly came into the house through the front door. S.P. believed there were three to five men in the group. One of them held a gun to S.P.'s head and told him to get down on the ground. The gun was a Beretta-style automatic pistol, similar to a Colt .45, and the man who held it to his head was about six feet tall, clean shaven with tan skin and age lines on his face. S.P. did not get a good look at any of the other intruders.

"As S.P. lay on the ground on his stomach with his hands behind his back, he heard the men rummaging through the house. The men asked him where B.A. was and what time he usually came home for the day, and then asked, ‘Where's the money? Where's the weed?’ S.P. told them that he had no idea and that he was just staying there for a while. He was aware that there were some marijuana plants growing in the back yard and believed they belonged to B.A., but he did not know for sure and did not tell the intruders about them.

"After a while, two of the men tied S.P.'s hands behind his back with an electrical cord and blue painter's tape and moved him to the front room of the house. They then covered his eyes with a piece of cloth, obstructing his sight. The men continued ransacking the house. They asked S.P. about some beer that was in the fridge and he thought he heard at least one bottle being opened and set down. He also heard them smoking something and believed it was methamphetamine because he did not smell cigarette smoke or marijuana. S.P. thought he heard the names ‘Larry’ and ‘Joe’ but could not recall the context in which the names were spoken.

"Approximately 15 to 20 minutes after the intruders moved S.P. to the front room, B.W. arrived at the residence. As soon as B.W. entered the house, one of the intruders put a silver handgun in his face and told him to get down. He got down on the ground and someone hit him in the back of the head with the gun. The intruders bound his hands behind his back and put a blindfold over his eyes so he could not see.

"S.P. heard the intruders ask B.W. what his name was and then many of the same questions they had asked S.P. about B.A. and the location of the marijuana and money. They also asked B.W. if he was B.A.'s partner, and then went through his pockets and took his cell phone, his driver's license, a credit card, and a bank debit card. One of the men asked B.W. for the PIN number to the debit card. He told them the PIN and then heard one of the intruders leave and heard a car start outside.

"Later, B.W. heard one of the intruders say, ‘Larry said the PIN didn't work,’ and believed the speaker was relaying this information from a person calling on the phone to another one of the intruders in the house. The intruders told B.W. the PIN he had given them did not work and threatened to chop off his fingers if he did not tell them the correct PIN. He then heard someone come back through the front door, and shortly thereafter, someone put a gun to the back of B.W.'s head and said, ‘What's the password? You gave me the wrong one.’ B.W. said that he had given them the correct PIN and perhaps they were trying to take out too much money. He later learned that they were using a credit card instead of his bank card at the ATM, which is why the PIN he gave them did not work.

"Somewhere between five and 20 minutes after the second discussion about the PIN number started, and about 30 to 40 minutes after B.W. had arrived at the Tommy Drive residence, B.A. returned to the residence and entered through the front door. S.P. heard a scuffle and then heard the intruders say, ‘Oh, hey, [B]. We've been waiting for ya. Tell us where the stuff's at. Tell us where the weed's at. Tell us where the money's at.’ There were at least two voices talking to B.A. B.A. told them that everything he had was in a box and out in the backyard. They asked him if there was anything in his car and then S.P. heard movement towards the front door followed by a second scuffle.

"About 20 seconds later, S.P. and B.W. heard four to six gunshots, footsteps running out of the house, and then silence. S.P. waited for about 30 seconds and then called out to B.W. to see if he was okay. S.P. managed to remove the restraints around his wrists and went to help free B.W. He did not see B.A. anywhere in the house so he went outside and found him lying facedown in the dirt next to the driveway in a pool of blood. S.P. attempted to assist B.A. while B.W. tried to find a neighbor to call the police.

"Meanwhile, a neighbor had heard the gunshots and walked outside to investigate. He heard someone say, ‘Help me,’ and saw S.P. rolling B.A. onto his back in the driveway. He could see that B.A. was seriously injured and called 911. The call was received at 2:48 p.m. and the police arrived a few minutes later at 2:51 p.m.

"B.A. was pronounced dead at the scene.

"Investigation and Forensic Evidence

"The police interviewed B.W. and S.P. [at] the scene that same day. B.W. said that he heard the name ‘Larry,’ but also said S.P. had told him that he heard the name ‘Larry.’

"Several crime scene specialists collected evidence from the Tommy Drive residence that evening. Photographs were taken of the blue tape around B.W.'s wrist and the injury to the back of his head from where he was hit with the gun. The house appeared to have been ransacked, drawers had been opened and emptied, and items were left in disarray all over the floor. Officers collected a lighter and a pipe used to smoke methamphetamine from a couch in the front room, a half empty beer bottle from the floor, and another open beer bottle from the kitchen counter. They also collected and inventoried a pillowcase full of items that was left in the hallway. Inside the pillowcase, they found a plastic baggy of marijuana, cellphones, and ID's and credit cards belonging to B.W. and B.A.

"The police conducted DNA testing on a number of items retrieved from the house and found DNA belonging to Nieber on the mouth of the beer bottle retrieved from the living room floor, DNA belonging to Johnson on a roll of blue painter's tape, and DNA belonging to Nieber, Johnson, and Grizzle—another separately convicted accomplice—on the mouth area of the methamphetamine pipe.⁴

"Officers on the scene found four shell casings behind the front door and in the living room of the Tommy Street residence, and three bullets were retrieved from in and around B.A.'s body. A criminologist later determined the three bullets were all fired from the...