Filed 1/4/22 P. v. Mariscal CA2/6
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. OPINION FOLLOWING
REHEARING
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
1
Subsequent undesignated statutory references are to the
Penal Code.
In December 2008, Mariscal recruited Miguel
Gonzales Pena to rob Uriel Bucio at the car dealership where
Bucio worked. Mariscal provided Pena with a loaded handgun.
Pena told Mariscal, “[I]f he tries to get away, he dies.” Pena shot
and killed Bucio during the robbery.
2010 Robbery
In July 2010, Mariscal, Pena, and three others, at
gunpoint, robbed a group raising funds at a barbeque.
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.
Following a court trial, Pena was convicted of the
2010 robbery (§ 211) and first degree murder of Bucio (§§ 187,
subd. (a), 189, subd. (a)) with the special circumstance that it was
committed in the commission of a robbery (§ 190.2, subd.
(a)(17)(A)), and firearm allegations as to both counts (§ 12022.53,
subds. (b) & (d)). We affirmed the judgment against Pena.
(People v. Pena (Oct. 25, 2016, B266438) [nonpub. opn.].)
Section 1170.95 proceedings
In 2020, Mariscal filed a petition for resentencing.
The court appointed counsel, issued an order to show cause,
2
received briefing, and conducted a contested evidentiary hearing.
(§ 1170.95, subds. (c) & (d)(1).)
At the section 1170.95 hearing, the parties agreed
that the court could consider the “record of conviction” in Pena’s
case, including the transcripts and exhibits of his court trial.
Mariscal unsuccessfully objected to Pena’s statements to an
informant on hearsay and confrontation grounds.
The court considered the reporter’s transcript and
exhibits from Pena’s trial, including transcripts of Pena’s and
Mariscal’s conversations with the informant. Three witnesses
testified at the section 1170.95 hearing: the informant, the
interpreter who translated recordings of the conversations with
the informant from Spanish into English, and a law enforcement
investigator.
Mariscal’s statements to informant
At the section 1170.95 hearing, the informant
authenticated the audio recordings of his conversations with
Mariscal, the interpreter authenticated the transcript, and both
were admitted into evidence.
When the informant questioned Mariscal about the
2010 robbery, he admitted he wore a ski mask, “threw the people
to the ground,” and told a victim “hands up.”
The informant also questioned Mariscal about Bucio’s
murder. Mariscal’s statements to the informant included the
following:
Mariscal believed “the dude from the dealer” would
possess $30,000 to $50,000 in cash to buy cars for the dealership.
Mariscal “set the deal up” for Pena and recruited him to rob the
victim. The victim and his son knew Mariscal “really well.”
Mariscal provided Pena with a small semiautomatic handgun
3
with about six .380 caliber bullets.
Mariscal told Pena not to kill Bucio. Pena told
Mariscal, “[I]f he tries to get away, he dies.”
Mariscal went together with Pena and waited for
him. Pena wore a “a piece of cloth” as a mask, glasses, and
gloves.
Pena asked the victim for the money and searched for
it. He took “$1,000 pesos” from the victim. Pena killed the victim
“with just one shot” from the gun Mariscal lent him. Pena killed
Bucio in front of his son, who Mariscal believed was eight or nine
years old. Mariscal “passed” the gun to a “dude . . . from La
Colonia” in exchange for “some rims.”
The transcript showed that Mariscal giggled and
laughed when he described the crime, including during his
statement that Bucio’s son was present during the murder.
When the informant told Mariscal another person
had told him about the murder, Mariscal offered to “bump” and
“remove” that person.
Pena’s statements to informant
The exhibits from Pena’s trial included Pena’s
statements to the informant. They included the following:
Pena took $5,000 from Bucio. Bucio told Pena, “I
know who you are.” After Bucio recognized Pena, he “didn’t have
any choice” but to shoot him.
Mariscal waited for Pena while Pena “did the job.”
When a policeman and a fireman went by, Mariscal gave Pena
“the heads up to go to [Pena’s] truck.”
Pena did not know he killed Bucio until Mariscal told
him the next day. Pena gave the gun back to Mariscal.
Other evidence
4
At the section 1170.95 hearing, the informant
testified that he participated with Mariscal and others in the
2010 robbery. They expected a large amount of money would be
present. Mariscal and the others carried guns and wore masks.
District Attorney Investigator Adam Wittkins
testified that he investigated the murder when he was an Oxnard
police detective. He testified, without objection, that the
homicide occurred at a car lot, and the victim’s son climbed
through a window at the business to phone his mother and tell
her of the shooting. He believed that a .380 caliber shell casing
was found at the scene. Wittkins reviewed records that showed
that Mariscal and Pena exchanged calls minutes before the
murder from locations near the dealership. The cell phone
records were admitted into evidence.
Although the parties agreed the court could consider
Pena’s record of conviction, the record of the section 1170.95
proceedings does not show whether the court considered the
transcript of Pena and Mariscal’s joint preliminary hearing. The
preliminary hearing was primarily a “hearsay prelim” at which
law enforcement officers related witness statements (§ 872, subd.
(b)), including the following: Uriel Bucio worked at a used car
dealership. He was often accompanied there by his 10-year-old
son. Mariscal frequently “hung around” the dealership. Pena
pointed the handgun at Bucio and ordered him and his son to lie
on the ground. Pena looked through Bucio’s truck.
The preliminary hearing also included nonhearsay
evidence. This included identification of “Flaco” (the name
Mariscal used to identify his codefendant) as Pena. It also
included the medical examiner’s testimony that Bucio died of a
single gunshot wound, consistent with either a .357 or .380
5
caliber bullet.
The record does not indicate whether the court
considered our opinion in People v. Pena, supra, B266438. The
opinion included information about the 2010 robbery, including
that Mariscal and Pena “‘threw’ the group onto the ground and
threatened them with guns while [another participant] took two
suitcases he thought would contain half a million dollars.”
Denial of petition
The trial court denied the section 1170.95 petition.
The court found that Mariscal was a major participant in the
murder and acted with reckless indifference to human life.
The court discussed the factors of People v. Banks
(2015) 61 Cal.4th 788, 803 (Banks) and People v. Clark (2016) 63
Cal.4th 522, 618-622 (Clark) to determine whether Mariscal
acted with reckless indifference to human life. The court
concluded that Mariscal was the “mastermind” who initiated the
robbery, provided the loaded gun used to kill Bucio, and knew
Pena was willing to use the gun if Bucio attempted to escape.
The court noted that Mariscal was not physically present during
the shooting and was not in a position to stop it. But the court
found that Mariscal did not assist the victim although the cell
phone records showed he was in the area, and Pena’s statement
put him just outside the car lot and in a position to monitor and
give guidance regarding a passing police car. The court found
that the duration of the crime was a “push”—although the victim
did not immediately turn over money and Pena searched the
truck, it was not a “takeover hostage” situation and “wasn’t a
particularly long crime.”
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437
6
(Sen. Bill 1437), which redefined “malice” and limited application
of the felony murder rule. (Stats. 2018, ch. 1015, §§ 2, 3,
amending Pen. Code, §§ 188, 189.) Sen. Bill 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.)
Sen. Bill 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.]” (Banks,
supra, 61 Cal.4th at p. 807.) 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.” (Clark, supra, 63
Cal.4th at p. 617.)
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
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.
7
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. We review the trial court’s findings for
substantial evidence. “[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 supports 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. One factor weighs against a finding of reckless
indifference: Mariscal claims he told Pena not to kill Bucio.
Substantial evidence supports the trial court’s
conclusion that Mariscal was not present at the shooting and
could not have stopped it, but was close enough that he could
have assisted Bucio. Mariscal’s proximity was supported by cell
phone records, Mariscal’s statement that he went with Pena and
waited for him, 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
8
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 young 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.)
And he offered to kill an individual he believed told the informant
about the murder.
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, supra, 61 Cal.4th 788,
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’”].)
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
9
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 loaded 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.
Senate Bill No. 775
Mariscal petitioned this court for rehearing asserting
that some of the evidence produced at the evidentiary hearing
was inadmissible pursuant to the amendment to section 1170.95,
subdivision (d)(3), effective January 1, 2022. (Sen. Bill No. 775
(2021-2022 Reg. Sess.) Stats. 2021, ch. 551, § 2 (Sen. Bill 775).)
He contends the amendment applies here as a clarification of
existing law. (Western Security Bank v. Superior Court (1997) 15
Cal.4th 232, 244; People v. Lee (2018) 24 Cal.App.5th 50, 56-60;
see Sen. Bill 775, § 1 (d).) The Attorney General contends the
changes are not retroactive and do not apply to this appeal.
(People v. DeHoyos (2018) 4 Cal.5th 594, 601-603; see In re
Estrada (1965) 63 Cal.2d 740.) We decline to determine whether
10
new subdivision (d)(3) is retroactive because even if its new
evidentiary rules are applied, overwhelming evidence supports
the trial court’s findings that Mariscal was a major participant
and acted with reckless indifference to human life, beyond a
reasonable doubt.
Sen. Bill 775 specifies the evidence that may be
considered at a section 1170.95 hearing following issuance of an
order to show cause. As amended, section 1170.95, subdivision
(d)(3), provides in part: “The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of
the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule. The prosecutor and the petitioner
may also offer new or additional evidence to meet their respective
burdens.”
The most significant evidence supporting denial of
the resentencing petition were Mariscal’s statements to the
informant, including that he recruited Pena to rob Bucio, gave
Pena a loaded firearm, and knew Pena would kill Bucio if he tried
to escape. The statements were admissible against Mariscal as
admissions of a party. (Evid. Code, § 1220.) The “new or
additional evidence” adduced from the informant and
investigator who testified at the section 1170.95 hearing is also
admissible, as is the nonhearsay testimony at the preliminary
11
hearing. (§ 1170.95, subd. (d)(3), as amended by Sen. Bill 775.) If
the court considered hearsay from the preliminary hearing, it
was largely cumulative to the other evidence.
The Attorney General contends that our opinion in
People v. Pena, supra, B266438, is admissible for both its
procedural history and factual summary. (But see Kilroy v. State
of California (2004) 119 Cal.App.4th 140, 148.) We need not
resolve that issue, or the effect of the parties’ agreement that the
court could consider Pena’s record of conviction, because if the
court considered the opinion, the facts it summarized are largely
cumulative to other evidence.
Mariscal contends that Pena’s statements to the
informant are inadmissible against Mariscal because there was
no showing that Pena was “unavailable as a witness” as required
for the hearsay exception for declarations against interest. (Evid.
Code, § 1230.) Sen. Bill 775 provides that the court may consider
“evidence previously admitted at any prior hearing or trial that is
admissible under current law,” but does not explain how that
would apply to evidence at the trial of a codefendant. We need
not resolve that issue because even without Pena’s statements to
the informant, overwhelming admissible evidence supports denial
of the section 1170.95 petition, beyond a reasonable doubt.
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.
12
We concur:
GILBERT, P. J. PERREN, J.
13
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.