Filed 11/15/21 P. v. Mariscal CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B311259
(Super. Ct. No. 2010028681)
Plaintiff and Respondent, (Ventura County)
v.
GERARDO GARCIA
MARISCAL,
Defendant and Appellant.
Gerardo Garcia Mariscal appeals from the trial
court’s denial of his petition for resentencing (Pen. Code,
§ 1170.95).1 He contends there was insufficient evidence he acted
with reckless indifference to human life. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Murder of Uriel Bucio
Uriel Bucio worked at a used car dealership. He was
often accompanied there by his 10-year-old son, Uriel, Jr.
1 Subsequent statutory references are to the Penal Code.
Mariscal frequently “hung around” the dealership.
In December 2008, Mariscal believed that Bucio
would possess $30,000 to $50,000 in cash to buy cars for the
dealership. Mariscal recruited Miguel Gonzalez Pena to rob
Bucio at the dealership. Mariscal provided Pena with a loaded
handgun. Pena told Mariscal, “[I]f he tries to get away, he dies.”
Mariscal and Pena exchanged calls minutes before
the murder from locations near the dealership. Mariscal went
with Pena and waited while Pena “did the job.”
Pena wore a piece of cloth over his face, glasses, and
gloves. He pointed the handgun at Bucio and ordered him and
his son to lie on the ground. Pena searched Bucio’s truck for the
money. Bucio told Pena, “I know who you are.” Pena then shot
Bucio in front of Uriel, Jr.
Pena ran away with $5,000 he took from Bucio.
When a policeman and a fireman went by, Mariscal gave Pena
“the heads up to go to [Pena’s] truck.”
Meanwhile, Uriel, Jr. climbed through a window of
the dealership and phoned his mother. After police and family
members arrived, Bucio was taken to the hospital and underwent
surgery. He died of a single gunshot wound.
Pena did not know he killed Bucio until Mariscal told
him the next day. Pena gave the gun back to Mariscal, who
traded it to a “dude . . . from . . . Colonia” in exchange for some
rims for his car.
Mariscal and Pena each discussed the crime with an
informant in separate recorded conversations. Mariscal said he
told Pena not to kill Bucio. Pena said that after Bucio recognized
him, he “didn’t have any choice” but to shoot him.
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2010 Robbery
In July 2010, Mariscal, Pena, and three others robbed
a group raising funds at a barbeque. Mariscal and the other
participants carried guns and wore ski masks. At gunpoint,
Mariscal and Pena ordered the group, including a small boy, onto
the ground. One of the robbers took two suitcases he thought
would contain half a million dollars, but which contained only
paper.
Guilty plea and sentence
Mariscal pled guilty to first degree felony murder in
the commission of a robbery. (§§ 187, subd. (a), 189, subd. (a),
190.2, subd. (a)(17)(A).) He admitted furnishing a firearm to aid
and abet the robbery. (§ 12022.4.) He also pled guilty to the 2010
second degree robbery and admitted he personally used a firearm
in its commission. (§§ 211, 12022.53, subd. (b).)
The trial court sentenced Mariscal to 26 years to life
for the murder and a concurrent term of 15 years for the 2010
robbery.
Section 1170.95 proceedings
In 2020, Mariscal filed a petition for resentencing.
The court appointed counsel, issued an order to show cause,
received briefing, and conducted a contested evidentiary hearing.
(§ 1170.95, subds. (c), (d)(1).)
The court considered our opinion affirming the
murder and robbery convictions of codefendant Pena (People v.
Pena (Oct. 25, 2016, B266438) [nonpub. opn.]), the transcript of
the preliminary hearing, the transcript of Pena’s court trial,
exhibits from Pena’s trial including transcripts of conversations
with the informant, and cell phone records. Three witnesses
testified at the hearing.
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The trial court denied the petition, finding that
Mariscal was a major participant in the murder who acted with
reckless indifference to human life.
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437
(S.B. 1437), which redefined “malice” and limited application of
the felony murder rule. (Stats. 2018, ch. 1015, §§ 2, 3, amending
Pen. Code, §§ 188, 189.) S.B. 1437 also added section 1170.95,
which provides for a petition to vacate a murder conviction where
the defendant could not be convicted of murder based on the
amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4.)
S.B. 1437 narrowed the classes of persons liable for
felony murder to “the actual killer,” those who aided and abetted
the killer with intent to kill, and “a major participant in the
underlying felony [who] acted with reckless indifference to
human life.” (§ 189, subd. (e).)
“Reckless indifference to human life ‘requires the
defendant be “subjectively aware that [their] participation in the
felony involved a grave risk of death.”’ [Citations.]” (People v.
Banks (2015) 61 Cal.4th 788, 807 (Banks).) Reckless indifference
“encompasses a willingness to kill (or to assist another in killing)
to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(People v. Clark (2016) 63 Cal.4th 522, 617 (Clark).)
In Clark, our Supreme Court listed factors to
consider to determine whether a participant acted with reckless
indifference to human life: (1) knowledge that a gun will be used,
defendant’s own use of weapons, and the number of weapons; (2)
the defendant’s physical presence at the crime and opportunities
to restrain the crime and/or aid the victim; (3) the duration of the
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crime; (4) the defendant’s knowledge of a cohort’s likelihood of
killing; and (5) the defendant’s efforts to minimize the risks of
violence. (Clark, supra, 63 Cal.4th at pp. 618-622.) The above
factors are neither individually necessary nor sufficient. (Id. at p.
618.) The totality of the circumstances must be considered to
determine whether Mariscal acted with reckless indifference to
human life. (In re Scoggins (2020) 9 Cal.5th 667, 677.)
At the evidentiary hearing, the trial court acts as an
independent fact finder. (See People v. Clements (2021) 60
Cal.App.5th 597, 613-617, review granted Apr. 28, 2021,
S267624.) We review the trial court’s findings for substantial
evidence. (Id. at p. 618.) “[W]e review the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . We presume in support of the judgment the existence
of every fact the trier of fact reasonably could infer from the
evidence.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Substantial evidence of two of the Clark factors
clearly support the trial court’s finding of reckless indifference.
Mariscal knew a loaded gun would be used and provided it to
Pena. He knew Pena planned to kill Bucio if he tried to escape.
The trial court properly found that the duration of the crime was
neutral—the victim did not immediately turn over the money,
but it was not a hostage situation. One factor weighs against a
finding of reckless indifference: Mariscal claims he told Pena not
to kill Bucio.
Substantial evidence also supports the trial court’s
conclusion that Mariscal was close enough to the shooting that he
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could have assisted Bucio. Mariscal’s proximity was supported
by cell phone records, Mariscal’s and Pena’s statements that
Mariscal went with Pena and waited for him, Mariscal’s warning
when a policeman and fireman went by, and his knowledge of
details of the crime that Pena did not know.
Here, as in People v. Williams (2020) 57 Cal.App.5th
652, 664, “the superior court could reasonably infer he did not
call for assistance or attempt to render aid to the victim who did
not die at the scene of the shooting. [Fn. omitted.]” This case is
unlike In re Taylor (2019) 34 Cal.App.5th 543, 559, in which the
defendant did not drive away from the gunshot victim until he
knew that help was arriving.
Evidence of Mariscal’s behavior after the murder also
supports the finding of reckless indifference to human life, even if
it would be insufficient standing alone. (In re Taylor, supra, 34
Cal.App.5th at p. 560.) Mariscal traded the murder weapon for
rims for his car. He giggled and laughed when describing the
crime, including during his statement that Bucio’s 10-year-old
son was present during the murder. He later participated in
another armed robbery, without changing the method to reduce
the risk of more killings. (People v. Douglas (2020) 56
Cal.App.5th 1, 10-11.)
Mariscal does not dispute that he was a major
participant in the robbery of Bucio. We nevertheless consider the
major participant factors listed in Banks because they
“‘significantly overlap’” with the factors for reckless indifference
to human life. (Clark, supra, 63 Cal.4th at pp. 614-615 [“‘the
greater the defendant’s participation in the felony murder, the
more likely that he acted with reckless indifference to human
life’”].)
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The major participant factors listed in Banks are:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used? No one of these considerations is
necessary, nor is any one of them necessarily sufficient.”
(Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
Evidence of the Banks factors provides further
support for the finding of reckless indifference here. Mariscal
was the “mastermind” of the robbery, recruited Pena to commit
it, and provided the murder weapon. He knew Pena was willing
to kill. He was near the robbery but did nothing to assist the
victim. He laughed when describing the murder and participated
in another armed robbery less than two years later.
Substantial evidence supports the trial court’s
determination that Mariscal acted with reckless indifference to
human life. We therefore affirm the denial of the petition for
resentencing.
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DISPOSITION
The trial court’s order denying Mariscal’s petition for
resentencing pursuant to section 1170.95, entered January 26,
2021, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
Mark D. Lenenberg, 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,
Assistant Attorney General, Idan Ivri and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.