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‘Conscious Disregard,’ ‘Reckless Indifference’ Are Distinctive Concepts, C.A.’s Majority Declares
Justice Wiley Argues That the Two Phrases, as a Practical Matter, Have the Identical Meaning
By a MetNews Staff Writer
Three justices in Div. Eight of the Court of Appeal for this district were in agreement, in opinions filed yesterday, that resentencing was properly denied to a man who participated in the fatal beating of a member of a rival gang, but Justice John Shepard Wiley Jr., in a concurring opinion, maintained that his colleagues used two phrases as if they had discrete meanings when, as a practical matter, there’s no difference between them.
“In my view, these phrases have the same meaning: conscious disregard for human life is equivalent to reckless indifference to human life,” Wiley wrote, rejecting the contrary view expressed in the majority opinion by Presiding Justice Maria E. Stratton, who was joined by Justice Victor Viramontes.
In petitioning for a resentencing, Fredy Cordero Gudiel contended that, under the facts, he could not today be convicted, as he was in 2007, of second degree murder. In 2022, he invoked legislation providing for relief for persons convicted of murder under now-repudiated theories based on fictionally imputed malice.
Although Penal Code §188 now provides that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime,” a person who aids and abet in the commission of acts that are dangerous to human life, with a death resulting, may still be convicted of second degree murder if it is found that there was implied malice—acting “in conscious disregard for life.”
Trial Court Ruling
In denying the resentencing petition, then-Los Angeles Superior Court Judge Stephen A. Marcus, now retired, found that Gudiel acted “either with the intent to kill or acted in conscious disregard for the life of the victim,” explaining:
“So I have concluded that the petitioner knew his companions intended to commit a life endangering act. They had bats. They immediately jumped on the victim. Petitioner intended to aid them in the commission of that act, and did so by punching the victim and throwing a heavy bike on him.”
In her opinion affirming Marcus’s order, Stratton said:
“Gudiel strongly disputes that it was the bike that caused the blunt force trauma that was the cause of death. The short answer to this is that throwing the bike in and of itself need not be the actual cause of Maldonado’s death. It suffices that Gudiel knew he was aiding in a life-endangering attack by the bat-wielding perpetrators that caused the victim to bleed profusely, knew dangerous weapons, baseball bats, were being used against Maldonado, and intended to stop Maldonado from escaping or defending himself by incapacitating him further by punching and kicking him and throwing the heavy bike on him as he lay prone on the ground. Ensuring Maldonado was unable to escape or defend himself helped the perpetrators complete their assault.”
On appeal, Gudiel asked the court to apply the California Supreme Court’s 2015 decision in People v. Clark. There, it was held that “reckless indifference” had not been evinced by a participant in a killing who merely engaged in the planning of a robbery, to take place after hours and with the use of an unloaded gun.
In the three final paragraphs of her opinion—with which Wiley took exception—Stratton said:
“Appellant contends the trial court should have applied People v. Clark…because ‘reckless indifference to human life’ under [Penal Code] section 190.2, subdivision (d), is ‘similar’ to the conscious disregard for human life that is the critical element of second degree murder. We do not agree.
“These concepts have been separately and distinctly analyzed and applied in our jurisprudence for decades. ‘Reckless indifference’ is a finding necessary for death penalty eligibility in felony murder cases. ‘Conscious disregard’ is an element of the crime of aiding and abetting an implied malice second degree murder. Each has its own function and purpose.
“As the People point out, the reckless indifference standard for felony murder special circumstances is qualitatively different than the conscious disregard standard for implied malice second degree murder. The reckless indifference standard actually requires a subjective awareness of a higher degree of risk than the conscious disregard for human life standard….That is reason enough not to combine them into one analytical framework. The trial court did not err in refusing the invitation to apply Clark. We decline the invitation as well.”
In his concurring opinion, Wiley said:
“I disagree with the last three substantive paragraphs of the majority opinion, but we reach the same ultimate destination by different roads: we must affirm the order.”
He remarked that “conscious disregard for human life” and “reckless indifference to human life” both expound the same core concept: recklessness.”
The jurist added:
“I have yet to learn of an example, however, where someone identifies conduct that would satisfy one phrase but not the other. I doubt there is such an example. Absent a concrete example, it is hard to see any practical difference between conscious disregard for human life and reckless indifference to human life.”
He said he agrees with the result because “Gudiel displayed a high level of participation.”
Although Marcus declared Clark to be inapposite, Wiley observed, he “effectively did apply the Clark decision.”
The case is People v. Gudiel, 2024 S.O.S. 3851.
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