People v. Schell

84 Cal.App.5th 437

300 Cal.Rptr.3d 409

The PEOPLE, Plaintiff and Respondent,

v.Terry Paul SCHELL, Defendant and Appellant.

2d Crim. No. B313694

Court of Appeal, Second District, Division 6, California.

Filed October 20, 2022

Wayne C. Tobin, Newbury Park, 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, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

Terry Paul Schell joined in an "eight against one" gang assault resulting in the victim's death. While his cohorts used a baseball bat, a shovel, and a knife, appellant pummeled the victim with his fists and feet. The trial court found that this participation in the gang assault resulting in death is an implied malice murder. We agree.

Appellant unsuccessfully appeals the trial court's order denying his petition for resentencing on his 2001 second degree murder conviction pursuant to Penal Code section 1172.6 (former § 1170.95).¹ Following an evidentiary hearing, the trial court found, beyond a reasonable doubt, that there was substantial evidence to support a finding of second degree implied malice murder. Appellant contends among other things that the evidence is insufficient to support that finding.

Factual Background

In 1999, 18-year-old William Zara was beaten to death by a group of at least eight people affiliated with the Ventura Avenue Gang. He was attacked because gang members thought that he had called the police complaining that the gang was disturbing the peace. Zara initially used a baseball bat to fend off the attack. One of the attackers, Benny Lopez, took the bat away from Zara and beat him with it. Another attacker hit Zara with a shovel. Appellant participated in the attack with his fists and feet. He was so close to Zara during the attack that Zara's blood was deposited on his clothing. Zara was also stabbed three times and appellant told a friend that he "shanked" Zara. The People could not prove that appellant used a knife to stab Zara, but as we shall explain, the trial court did not find that appellant used a knife during the attack.

1172.6 Petition and Hearing

In 2020, appellant filed a section 1172.6 petition for resentencing. The trial court found appellant had made a prima facie showing for relief, issued an order to show cause, and subsequently held an evidentiary hearing in accordance with section 1172.6, subdivision (d).

Neither party offered any new or additional evidence at the evidentiary hearing. The prosecution argued that appellant was guilty of second degree implied malice murder because, among other things, he participated in the assault on Zara by hitting, kicking, and stabbing him. Appellant replied that the evidence was insufficient to support his conviction on that theory or that he had stabbed Zara during the incident. Appellant also asserted that the People should be estopped from arguing that appellant stabbed Zara because during closing argument the prosecutor had conceded that the evidence was insufficient to support such a finding. The prosecution countered that the People were not precluded from arguing different theories of guilt at the section 1172.6 evidentiary hearing, and that even if the evidence did not show appellant stabbed Zara the facts presented at trial were sufficient to prove he was guilty of second degree implied malice murder.

Trial Court Ruling

At the conclusion of the hearing, the trial court found beyond a reasonable doubt, that the evidence supports a finding of second degree implied malice murder. Accordingly it denied the petition. It noted that although the evidence did not show that appellant and his accomplices brought the shovel and bat to the crime scene, once they obtained those items "it doesn't take much time to form the intent to use those weapons and they certainly did."

After noting that the original judge who had presided at trial indicated at sentencing that he was not convinced beyond a reasonable doubt that appellant had stabbed Zara, the trial court made clear that its ruling on the section 1172.6 petition "does not depend on the knife" and that the other evidence supports a second degree implied malice murder because it was "pretty darn convincing." The trial court reasoned: "I am persuaded beyond a reasonable doubt that [appellant's] participation was more than mere presence. He was standing shoulder to shoulder with the people [who] were w[i]elding weapons that crushed [the] victim's skull, that he actively participated in battering the victim with at least his hands or his feet and then, in the process, ... personally inflicted, great bodily injury on the victim and personally contributed to or participated in the ultimate death of [the] victim." In finding beyond a reasonable doubt that appellant had acted with a conscious disregard for Zara's life, the trial court noted that appellant "was right there, close enough to get blood on him[self]."

Sufficiency of the Evidence

As indicated, appellant's sufficiency of the evidence contention fails. Section 1172.6, which was enacted "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats., 2018, ch. 1015, § 1, subd. (f).)

Section 189, as amended, now provides that in cases where a death occurs during the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), a person is liable for murder only if the person was the actual killer, the person acted with intent to kill in aiding, assisting, or soliciting the killer, or if the person "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." ( § 189, subd. (e)(3).) Our Supreme Court has recognized, however, that "notwithstanding [SB] 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." ( People v. Gentile (2020) 10 Cal.5th 830, 850, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ).)

After issuance of an order to show cause, the trial court sits as a trier of fact on a section 1172.6 petition. Its factual finding of second degree implied malice murder is reviewed for substantial evidence. ( People v. Owens (2022) 78 Cal.App.5th 1015, 1022, 294 Cal.Rptr.3d 257.) Accordingly, "we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence." ( People v. Zamudio (2008) 43 Cal.4th 327, 357, 75 Cal.Rptr.3d 289, 181 P.3d 105 ; Owens , at p. 1022, 294 Cal.Rptr.3d 257.) In conducting this review, " ‘ "[w]e resolve neither credibility issues nor evidentiary conflicts ...." [Citation.]’ [Citation.]" ( Owens , at p. 1022, 294 Cal.Rptr.3d 257.)

The theory of second degree implied malice murder, remains valid notwithstanding the recent changes effected by Senate Bill No. 1437 (SB 1437) and Senate Bill No. 775 (SB 775). ( Gentile, supra , 10 Cal.5th at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; People v. Powell (2021) 63 Cal.App.5th 689, 714, 278 Cal.Rptr.3d 150 ; People v. Glukhoy (2022) 77 Cal.App.5th 576, 599-600, 292 Cal.Rptr.3d 623 ( Glukhoy ).) Pursuant to this theory, "an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." ( Gentile , at p. 850, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Appellant was one of at least eight gang members or gang associates who participated in a vicious assault upon the victim. The trial court could reasonably infer that appellant knew Zara was repeatedly being hit in the head with a shovel and bat and that he intended to aid those acts by participating in the assault. The blows to Zara's head were loud enough to be heard by several neighbors, some of whom heard someone yell "[s]top it" and "[y]ou're killing him." Another witness described the group as behaving "like a bunch of rats going for cheese." While appellant was participating in the attack, his pants, underwear, and jacket were stained with Zara's blood.

Appellant's presence at the scene, his participation in the attack on the victim, his companionship with other perpetrators, his conduct before and after the crimes, and his motive of retaliation for disrespect all support the finding that he aided and abetted an implied malice murder. (See Glukhoy, supra , 77 Cal.App.5th at pp. 599-600, 292 Cal.Rptr.3d 623 [recognizing that circumstances relevant to the determination whether a defendant is guilty of aiding and abetting a crime include presence at the crime scene, his or her companionship and conduct before and after the crime, and motive].) As the People note, "[a]ppellant did not need to specifically know that someone would strike Zara with [a shovel and bat] in that particular manner to be liable under an implied malice theory. It suffices that he knew he was aiding in a violent attack, knew dangerous weapons were being used against Zara, and intended to stop Zara from escaping or defending himself by helping the perpetrators to surround and hit him."

Remaining Contentions

Appellant's remaining contentions also lack merit. Although he claims that his eligibility for resentencing "cannot be denied on [the] ground that [he] stabbed [the] victim as he was effectively acquitted of using ...