People v. Sifuentes

83 Cal.App.5th 217

299 Cal.Rptr.3d 320

The PEOPLE, Plaintiff and Respondent,

v.Miguel Galindo SIFUENTES, Defendant and Appellant.

A162225

Court of Appeal, First District, Division 4, California.

Filed September 12, 2022

Keker, Van Nest & Peters LLP, Nicholas D. Marais, Andrew S. Bruns, Tara M. Rangchi, San Francisco, [, under appointment by the Court of Appeal,] for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Jeffrey M. Laurence, Assistant Attorneys General, Seth K. Schalt, Bridget Billeter, Deputy Attorneys General for Plaintiff and Respondent.

BROWN, J.

In 2003, a jury convicted petitioner Miguel Galindo Sifuentes of first degree murder under a felony-murder theory after petitioner's co-felon killed Deputy Sheriff John Monego during a robbery of an Outback Steakhouse restaurant. The jury found not true the felony-murder special-circumstance allegations against petitioner ( Penal Code ¹ , § 190.2, subd. (a)(17)(A), (G) ).

In 2019, after the Legislature amended the felony-murder law, petitioner filed a petition for resentencing under former section 1170.95² , and the trial court issued an order to show cause. (Former § 1170.95, subd. (c).) The parties agreed petitioner could not be convicted of felony murder under current section 189, subdivision (e). The question before the trial court was whether the peace officer exception in section 189, subdivision (f) applied. The trial court found that it did and denied the petition because the People had established beyond a reasonable doubt that Monego was a peace officer who was killed while in the course of his duties, and petitioner knew or reasonably should have known that Monego, the victim, was a peace officer engaged in the performance of his duties. ( § 189, subd. (f).)

On appeal, petitioner contends that the trial court erred as follows: (1) the court used the wrong legal standard to assess whether he knew or reasonably should have known that Monego was a peace officer engaged in the performance of his duties; (2) substantial evidence does not support the court's finding that petitioner had the requisite knowledge; (3) the jury's not true findings on the felony-murder special-circumstance allegations required the court to grant the petition after petitioner established a prima facie case, regardless of section 189, subdivision (f) ; and (4) the court prejudicially erred by admitting victim impact testimony before ruling on his petition. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 1998, at about 10:15 p.m., Jeffrey DeRespini was working as a security guard at the Monarch Hotel, which was located adjacent to the Outback Steakhouse restaurant. The two businesses shared a parking lot. Two guests approached DeRespini and told him they had seen a suspicious vehicle in the parking area in the back of the hotel. The car was a newer white vehicle with no front license plate, but they could see the word "Livermore" where the license plate should have been. When they came into the parking lot and their headlights shined on the car, they saw the occupants bend down and act suspiciously. One guest showed DeRespini where the car had been parked, but it was gone. DeRespini walked around the parking lot but did not find the white car.

The Outback Steakhouse was to close at 11:00 p.m. Petitioner arrived shortly before closing time and told the host that he had a group of people meeting him later. Petitioner asked if, given that the restaurant closed at 11:00 p.m., his friends would be let in if they arrived after 11:00 p.m. This server asked the manager, Jim McGinnis, whether petitioner could be seated. McGinnis told the server that petitioner could be seated, but ten or fifteen minutes later, the server inquired of McGinnis how much more time to grant petitioner's guests who had yet to arrive. The server also told McGinnis that petitioner was acting in a peculiar manner. In response, McGinnis walked through the dining room to get a look at petitioner. McGinnis walked by petitioner and noted that he was sitting in a booth with his back to the corner. He also saw that petitioner wore a baseball style hat that was pulled down so low that it concealed his eyes. As he got nearer, petitioner looked up and briefly made eye contact, but he immediately looked down to avoid further eye contact. As McGinnis got nearer, petitioner put his head further down and hunched down in the seat, causing McGinnis's view of him to disappear. Nevertheless, McGinnis did not see enough to cause him alarm, so he told the server he would give the rest of petitioner's party probably ten or fifteen more minutes to arrive, but after that, they had to close. McGinnis went back to his duties, but about five minutes later, the server returned to the office, which was located in the kitchen area, and alerted him that the restaurant was being robbed. The server then pressed a panic button that automatically dialed the police.

At this point, McGinnis came out of his office and saw numerous people, both customers and employees, running towards him in a state of panic. He heard a gunshot in the kitchen and the sound of the bullet hitting the deep fryer. At this point, Vasquez, one of petitioner's co-felons, demanded to know who the manager was. McGinnis identified himself. Vasquez ordered him to the office and demanded the day's cash receipts.

While Vasquez and McGinnis were in the office the telephone rang; McGinnis testified, "I wasn't going to pay any attention to it, and very quietly he kind of put the gun sideways against my back, kind of nudged me towards the phone and said, ‘That's the fucking police. That's the fucking police. Answer the phone. You better be calm or I'm going to kill you.’ " Vasquez moved the gun so that it was touching the back of McGinnis's head as he picked up the phone to answer. McGinnis told 911 dispatch that everything was all right. Vasquez responded to McGinnis " ‘that was a smart fucking move because he didn't want to have to hurt anybody.’ "

Vasquez, petitioner, and another co-felon, Le, then herded the gathered employees and customers into the walk-in refrigerator. Petitioner stood by the door to the refrigerator waving a gun around and ordering the people into the cooler. Once all were in, Vasquez told the people in the refrigerator to stay inside for three minutes and that, after three minutes, they could come out and call the police. None of the three robbers shot, hit, or violently attacked any of the civilian victims at any time during this event.

When Deputy Schwab arrived at the restaurant in a marked Dublin Police vehicle, she was dressed in full police uniform with a police radio and other police gear, including her service weapon and an expandable baton. As she was driving up to the restaurant, Schwab radioed to dispatch that she had arrived. Schwab made this transmission while she was on the driveway leading into the parking area, and about 10 seconds later, she parked her vehicle. She parked about 100 feet to the front and left of the restaurant, in plain view of its entrance. She arrived at 11:57 p.m. Schwab then walked to the restaurant. She estimated that the walk from her vehicle to the front doors of the restaurant took about 30 to 45 seconds.

The restaurant entrance had a set of double doors that opened out and led into a foyer, where there was another set of double doors that opened out and led from the foyer into the restaurant. There were windows in both sets of double doors, and the whole north front of the restaurant was covered with windows. As Schwab approached the entrance, she could see four people inside who appeared to be laughing and talking. While she walked up to the east outside entrance door, Schwab looked through the windows immediately east of the restaurant's foyer. Three of the individuals she saw were younger, and one was an older African-American gentleman in a sports jacket. In questioning Schwab at trial, defense counsel referred to the older gentleman as Mr. Lewis. Schwab thought the four people were the manager and three workers. The robbers saw Schwab before she entered the restaurant, because when she entered, she was surprised by Vasquez, who was crouched down by the west interior door leading from the foyer into the restaurant pointing a gun at her waist.

While pointing his gun at her midsection, Vasquez repeatedly yelled at Schwab to give him her gun and get down. Schwab pleaded with Vasquez not to shoot her, and eventually dropped to the ground in the foyer. Vasquez kept demanding Schwab's gun and hit her in the face with a closed fist at least once. At this point, Schwab complied with the demands, unholstered her gun, and Vasquez grabbed her gun. Vasquez demanded Schwab stand up, but she was unable to do so because her legs were weak, so she scooted through a set of doors into the restaurant where she encountered Le and petitioner, along with the African-American gentleman.

Le pointed a gun at Schwab and told her to get up; when she complied, he put his gun into the small of her back. Le was about a foot and a half from Schwab, and petitioner stood right next to Le. Le and petitioner began walking Schwab east toward the back of the restaurant, with Le walking right behind Schwab and petitioner walking along Le's right side. Schwab lost sight of Vasquez and the African-American gentleman as she had her back to them. Vasquez never passed by Schwab. While walking, Schwab attempted to activate the emergency button on her radio, but Le told her not to mess with her radio. Schwab then heard at least five gunshots. She testified that she heard the first gunshot after walking about 20 feet. Schwab started to turn her head, but she thought better of it. When she first heard the gunshots, Schwab could only say that she was aware of Le because his weapon remained at her back. She believed that she walked another 15 feet thereafter during the course of the sound of the shots. Schwab...