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C.A. Justices Spar Over What Is Required to Prove Murder Liability Under Revised Law
Majority Says Participant in Drive-by Shooting Was Actual Killer or Was Otherwise Ineligible for Resentencing; Baltodano Dissents, Saying Proof of That Is Lacking
By a MetNews Staff Writer
Div. Six of this district’s Court of Appeal held yesterday, in a 2-1 decision, that evidence that a defendant pled guilty to voluntary manslaughter—and was the only charged party to admit to personally using a gun in a deadly, gang-related drive-by shooting—was sufficient to establish that he was the actual killer or a direct aider and abettor, depriving him of eligibility for a resentencing, drawing a dissent by Justice Hernaldo J. Baltodano.
The dispute arose under revisions to the Penal Code enacted in 2019 following the passage of Senate Bill 1437, which amended the felony murder rule and the natural and probable consequences doctrine “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 life.”
Effective Jan. 1, 2019, Penal Code §1172.6 provides a procedural mechanism for defendants who were convicted of murder under now-defunct theories of murder liability to petition the court for vacatur of their murder conviction and resentencing on any remaining counts. Under the section, if a trial judge determines that a petitioning defendant has made a prima facie showing of entitlement to relief, an evidentiary hearing is held.
At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that a petitioner is guilty of murder under current law. A person charged with murder who pleads guilty to manslaughter remains eligible for resentencing under the statutory scheme.
Drive-by Shooting
Appealing his judgment of conviction was Javier Villagrana, who pled guilty to voluntary manslaughter—and admitted to the personal use of a firearm during the crime and to gang allegations—after being charged with the June 2013 murder of Juan Vasquez. Villagrana was sentenced to 26 years in prison.
Jaime Chavez, Villagrana’s cousin, was also charged with the murder and pled to voluntary manslaughter but did not admit the firearm allegation.
After Villagrana filed a petition for resentencing in 2022, Los Angeles Superior Court Judge Connie R. Quinones ordered an evidentiary hearing.
During the hearing, the prosecution relied on the charging document, the defendant’s plea and admissions, and portions of the preliminary hearing transcript related to an officer’s testimony about the murder scene to argue that the defendant was the actual killer.
Quinones took judicial notice of each of the documents and denied the petition for resentencing, finding that Villagrana is “factually ineligible” for resentencing “based on the fact that there was no natural and probable consequence [theory], implied malice theory, or felony murder [theory].”
Justice Kenneth Yegan authored yesterday’s majority opinion, in which Presiding Justice Arthur Gilbert joined, affirming the order. Yegan noted that the Office of the Attorney General conceded error but disagreed with the office’s assessment of the case. He wrote:
“The victim of a ‘drive-by,’ gang motivated shooting, who suffers six bullet wounds, and who dies as a result thereof, is a murder victim. This seems unremarkable. The only rational inference that can be drawn from this uncontested factual predicate is that the crime is murder.
“In 2014, Javier Villagrana pleaded no contest to voluntary manslaughter and admitted gang as well as personal use of a firearm allegations. This was a lenient offer by the prosecutor….Appellant’s connection to, and causation of this murder is demonstrated by his plea and admissions of the enhancement allegations.”
Dissenting, Baltodano argues that the majority’s conclusion relies on impermissible speculation and improper inferences from the “thin evidentiary record.”
Confessed Error
Yegan acknowledged that the Office of Attorney General “confesses error based upon” the 2003 California Supreme Court decision in People v. Jones, in which then-Justice Joyce Kennard (now retired), writing for the court, said:
“The finding of personal use…would not in itself prove defendant was the actual killer. If two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer.”
Unpersuaded as to the applicability of the Jones decision, Yegan remarked that “Jones does not apply, where as here, the only person who admitted to using a firearm during the commission of the offense is appellant.”
Yegan said that “[i]t is well settled that reversal for insufficient evidence is unwarranted unless” there is no hypothesis under which it can be said that there is sufficient substantial evidence to support the conviction. He conceded that mere speculation cannot support a ruling but pointed out that a judge is entitled to draw reasonable inferences from the evidence in making its decision.
Applying these principles, he wrote:
“After considering the evidence, the trial court found appellant was ‘factually ineligible’ for resentencing ‘based on the fact that there was no natural and probable consequence [theory], implied malice theory, or felony murder [theory].’ Thus, the trial court presumably found appellant ineligible as the actual shooter or, at the very least, as a direct aider and abettor to murder. This is a rational inference and not speculation.”
He added:
“[A] rational trier of fact could reasonably have found appellant guilty, beyond a reasonable doubt, as a direct aider and abettor to murder, if not as the actual shooter. The evidence established that there were seven .22 caliber casings at the scene. Vasquez was shot six times, including in the neck, upper torso, and forearm. He died as a result of these injuries. Appellant was present at the shooting. He admitted using a firearm in an affirmative manner. He admitted the offense was gang related. And appellant admitted he was responsible for Vasquez’s death as indicated by his plea to voluntary manslaughter.”
Common Sense
Responding to the dissent, Yegan said:
“As a preliminary matter, the dissent is inconsistent with common sense. The objective reader will make up his or her own mind. The dissent violates the rules on appeal. It recites the substantial evidence rule and then does not apply it. It reweighs the evidence on appeal to achieve a result. The elementary concept of logical inference drawing is missing. To make matters worse, the dissent actually draws inferences away from the order under review. This is an extreme departure from traditional application of the substantial evidence rule….There is a hypothesis that supports the trial court’s order.”
He continued: “The dissent says that the majority opinion is based on speculation. Not so. It is the dissent which is speculating and there is no reason to do so given the uncontested factual predicate. The Legislature changed the murder rules to ensure that a sentence was commensurate with the defendant’s individual culpability. Did the Legislature intend to give sentencing leniency to someone who, motivated by gang animus, uses a firearm in a drive-by shooting, that results in six bullet holes in the victim and his death? Such a person is acting with malice despite the People’s pretrial offer of a plea to manslaughter with the admission of two special allegations. It is not speculation ‘to connect the dots’ and affirm the trial court’s factual finding that appellant was acting with malice and can presently be convicted of murder. The trial court expressly so found beyond a reasonable doubt. According to the dissent, this finding is entitled to no weight whatsoever.”
Baltodano’s View
Baltodano wrote:
“At [the] hearing, prosecutors chose not to introduce any new evidence. They instead relied on the information, the plea colloquy, the sentencing transcript, and excerpts from the preliminary hearing transcript; there was no trial….
“No rational trier of fact could reasonably find the elements of murder proven beyond a reasonable doubt on such a thin evidentiary record. None of the evidence relied on by the trial court shows that Villagrana was the actual shooter—or that he was even present at the shooting….He was not the sole perpetrator. Nothing indicates that his was the only firearm used during the shooting, nor does anything connect him to the bullet casings found at the scene or the firearm that killed Vasquez. And while he admitted to the use of a firearm, such use does not require actually firing the weapon…;….That is why the Attorney General concedes insufficient evidence supports a murder conviction here.”
He concluded that “[t]he majority speculates Villagrana was the actual shooter—or ‘at the very least…[an] aider and abettor’— because he was present at the scene of Vasquez’s shooting and, unlike Chavez, admitted to using a firearm” and said:
“[N]othing in the plea colloquy provides any insight into why the parties agreed that certain allegations would be admitted while others would be dismissed. It is not my role to imagine such reasons; my role is ‘to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.’….Here, no such evidence supports the trial court’s cursory conclusion that Villagrana was the actual shooter.”
The case is People v. Villagrana, 2024 S.O.S. 3443.
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