People v. Stefin

1

THE PEOPLE, Plaintiff and Respondent, v. TAVARES STEFIN, Defendant and Appellant.

B315497

California Court of Appeals, Second District, Seventh Division

March 9, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No BA227886, Kathleen Kennedy, Judge. Affirmed.

Jonathan E. Demson, 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, and Charles S. Lee and Rama R. Maline Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL J.

INTRODUCTION

Convicted in 2005 on two counts of second degree murder, Tavares Stefin appeals from the superior court's order following an evidentiary hearing denying his 2019 petition for resentencing under Penal Code former section 1170.95 (now section 1172.6).^[1]Stefin contends substantial evidence did not support the court's finding he could still be convicted under current law on the two murder counts as a direct aider and abettor of implied malice murder. We conclude substantial evidence supported the finding and affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

A. A Jury Convicts Stefin on Two Counts of Second Degree Murder, and We Affirm

One evening in February 2002, members of the Every Woman's Fantasy (or EWF) criminal street gang-including 19-year-old Johnathan Bolden and 17-year-old Stefin-gathered at a townhouse with companions. Stefin was socializing with a group in a bedroom, Bolden with a group in a hallway, when Bolden got into an argument with a 14-year-old girl named Desiree Collins. During the argument Bolden brandished a nine-millimeter pistol he had been carrying that evening at his waist. Collins mocked him and dared him to shoot her. Bolden shot her in the head, killing her. At the direction of Bolden, whom the group considered a "big homie" and "shot caller," Stefin and others cleaned up the blood in the hallway while Bolden disposed of the girl's body. (People v. Bolden et al. (Sept. 10, 2007, B186192) [nonpub. opn.], 2007 WL 2586460 (Bolden).)

Bolden, other EWF members, and some associates had planned to rob a Caribbean restaurant the following morning. They were informed they would find a large quantity of marijuana and $500,000 in cash inside the restaurant. The original plan did not call for Stefin to participate, but after Bolden killed Collins, some of those who were supposed to participate were afraid of Bolden and dropped out. Stefin therefore agreed to participate, though he admitted to Bolden's girlfriend that he did not want to go. Asked later why he did not follow her advice not to participate, Stefin answered, "I always go with them, always." (Bolden, supra, B186192.)

So, the morning after Bolden killed Collins, he drove Stefin and another EFW member, Eddie Williams, to the restaurant to conduct the robbery. All three were armed: Stefin with a .22-caliber rifle, Bolden with the same nine-millimeter pistol he used to shoot Collins, and Williams with a .25-caliber handgun. Outside the restaurant the group encountered Carl Scott, a handyman who did odd jobs at the restaurant, sitting in his car.

Bolden ordered Scott out of the car at gunpoint. Bolden told Scott to knock on a side door of the restaurant and tell the people inside to open the door. Williams stood nearby, gun in hand, to ensure Scott complied. When the door opened, Bolden, Stefin, and Williams rushed inside behind Scott. (Bolden, supra, B186192.)

Inside the restaurant were two cooks, Rodney Tomlin and Emard Peart. When Bolden and the others ran in through the door, Tomlin jumped out a nearby window and hid in an area beneath the restaurant's kitchen. Bolden pointed his gun at Peart and said, "Don't move. Get on your knees." Peart and Scott complied. Peart asked what Bolden wanted. Bolden told him he wanted marijuana and money. Peart said no one at the restaurant had anything to do with growing or selling marijuana. Bolden pointed his gun, told Peart to shut up, and demanded his wallet. Peart refused to give up his wallet, but gave Bolden $46 in cash, which Bolden pocketed. (Bolden, supra, B186192.)

Bolden went to a storeroom at the back of the restaurant, where he began to knock cups, plates, and other supplies from the shelves in a search for marijuana and cash. Williams stood in the doorway, brandishing his gun. Meanwhile, armed with his rifle, Stefin led Peart to the cash register at the front of the restaurant. Neither Stefin nor Peart could open the register. Stefin followed Peart to the kitchen, so that Peart could attend to the chicken he was frying. (Bolden, supra, B186192.)

Suddenly, Scott ran into the storeroom and struck Bolden in the neck with a meat cleaver. As blood gushed from Bolden's neck, Scott turned and attacked Williams. Bolden fired multiple shots, striking both Scott and Williams. When Stefin reached the storeroom, he found Scott dead and Williams badly wounded.

Stefin took Williams to the hospital, where Williams was pronounced dead. Bolden survived, as did Peart, who escaped from the restaurant during the melee.

In May 2005, in connection with the deaths of Scott and Williams, a jury, instructed on felony murder and the natural and probable consequences doctrine as bases for murder liability, convicted Stefin on two counts of second degree murder. (§ 187, subd. (a).) The jury also convicted him of second degree robbery of Peart (§ 211) and second degree burglary of the restaurant (§ 459) and found true various criminal street gang and firearm allegations. On each murder count, the trial court sentenced Stefin to a prison term of 15 years to life, plus 25 years to life for the related enhancements, and ordered the sentences on the two convictions to run concurrently. The court stayed under section 654 execution of the sentences it imposed for the remaining convictions. On Stefin's appeal from the judgment, we affirmed his convictions. (Bolden, supra, B186192.)

B. The Superior Court Twice Denies Stefin's Petition for Resentencing

In April 2019 Stefin petitioned for resentencing under newly enacted former section 1170.95. The superior court summarily denied the petition on the ground Senate Bill No. 1437, which created former section 1170.95, was unconstitutional. We reversed. (People v. Stefin (July 22, 2020, B302765) [nonpub. opn.], 2020 WL 4199631 at p. 2.)

On remand, the superior court issued an order to show cause and held an evidentiary hearing on Stefin's petition. The parties relied on the record of conviction, including the trial transcripts, and did not present new evidence. The court determined that whether Stefin could still be convicted of murder under a felony murder theory was not an issue because the jury- instructed that finding Stefin guilty of murder on a felony murder theory required finding him guilty of murder in the first degree- found Stefin not guilty of murder in the first degree. The People argued Stefin could still be convicted of murder under a theory of aiding and abetting an implied malice murder.

The superior court agreed with the People. The court cited the Supreme Court's holding in People v. Gentile (2020) 10 Cal.5th 830 (Gentile) that, "notwithstanding Senate Bill 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." (Gentile, at p. 850.) The superior court found that, under this theory of murder liability, the People "still to this day can prove" Stefin guilty beyond a reasonable doubt on both second degree murder counts. The court denied Stefin's petition, and Stefin timely appealed.

DISCUSSION

A. Section 1172.6

Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (Gentile, supra, 10 Cal.5th at pp. 842-843) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957).^[3]Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189, subdivision (e). The latter provision requires the People to prove specific facts relating to the defendant's culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); the defendant, though not the actual killer, with the intent to kill assisted in the commission of the murder (§ 189, subd. (e)(2)); or the defendant was a major participant in a felony listed in section 189, subdivision (a), and acted with reckless indifference to human life, "as described in subdivision (d) of Section 190.2," the felony-murder special-circumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708; Gentile, at p. 842.)

Section 1172.6 authorizes an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder because of the changes the Legislature made effective 2019 to the definitions of the crime. (See People v. Strong supra, 13 Cal.5th at p. 708; People v. Lewis, supra, 11 Cal.5th at p. 957; Gentile, supra, 10 Cal.5th...