Filed 10/20/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B313694
(Super. Ct. No. CR47771)
Plaintiff and Respondent, (Ventura County)
v.
TERRY PAUL SCHELL,
Defendant and Appellant.
Terry Paul Schell joined in an “eight against one” gang
assault resulting in the victim’s death. While his cohorts used a
baseball bat, a shovel, and a knife, appellant pummeled the
victim with his fists and feet. The trial court found that this
participation in the gang assault resulting in death is an implied
malice murder. We agree.
Appellant unsuccessfully appeals the trial court’s order
denying his petition for resentencing on his 2001 second degree
murder conviction pursuant to Penal Code section 1172.6 (former
§ 1170.95). 1 Following an evidentiary hearing, the trial court
1 All statutory references are to the Penal Code.
found, beyond a reasonable doubt, that there was substantial
evidence to support a finding of second degree implied malice
murder. Appellant contends among other things that the
evidence is insufficient to support that finding.
Factual Background
In 1999, 18-year-old William Zara was beaten to death by a
group of at least eight people affiliated with the Ventura Avenue
Gang. He was attacked because gang members thought that he
had called the police complaining that the gang was disturbing
the peace. Zara initially used a baseball bat to fend off the
attack. One of the attackers, Benny Lopez, took the bat away
from Zara and beat him with it. Another attacker hit Zara with a
shovel. Appellant participated in the attack with his fists and
feet. He was so close to Zara during the attack that Zara’s blood
was deposited on his clothing. Zara was also stabbed three times
and appellant told a friend that he “shanked” Zara. The People
could not prove that appellant used a knife to stab Zara, but as
we shall explain, the trial court did not find that appellant used a
knife during the attack.
1172.6 Petition and Hearing
In 2020, appellant filed a section 1172.6 petition for
resentencing. The trial court found appellant had made a prima
facie showing for relief, issued an order to show cause, and
subsequently held an evidentiary hearing in accordance with
section 1172.6, subdivision (d).
Neither party offered any new or additional evidence at the
evidentiary hearing. The prosecution argued that appellant was
guilty of second degree implied malice murder because, among
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no changes in text (Stats. 2022, ch. 58, § 10).
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other things, he participated in the assault on Zara by hitting,
kicking, and stabbing him. Appellant replied that the evidence
was insufficient to support his conviction on that theory or that
he had stabbed Zara during the incident. Appellant also asserted
that the People should be estopped from arguing that appellant
stabbed Zara because during closing argument the prosecutor
had conceded that the evidence was insufficient to support such a
finding. The prosecution countered that the People were not
precluded from arguing different theories of guilt at the section
1172.6 evidentiary hearing, and that even if the evidence did not
show appellant stabbed Zara the facts presented at trial were
sufficient to prove he was guilty of second degree implied malice
murder.
Trial Court Ruling
At the conclusion of the hearing, the trial court found
beyond a reasonable doubt, that the evidence supports a finding
of second degree implied malice murder. Accordingly it denied
the petition. It noted that although the evidence did not show
that appellant and his accomplices brought the shovel and bat to
the crime scene, once they obtained those items “it doesn’t take
much time to form the intent to use those weapons and they
certainly did.”
After noting that the original judge who had presided at
trial indicated at sentencing that he was not convinced beyond a
reasonable doubt that appellant had stabbed Zara, the trial court
made clear that its ruling on the section 1172.6 petition “does not
depend on the knife” and that the other evidence supports a
second degree implied malice murder because it was “pretty darn
convincing.” The trial court reasoned: “I am persuaded beyond a
reasonable doubt that [appellant’s] participation was more than
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mere presence. He was standing shoulder to shoulder with the
people [who] were w[i]elding weapons that crushed [the] victim’s
skull, that he actively participated in battering the victim with at
least his hands or his feet and then, in the process, . . . personally
inflicted, great bodily injury on the victim and personally
contributed to or participated in the ultimate death of [the]
victim.” In finding beyond a reasonable doubt that appellant had
acted with a conscious disregard for Zara’s life, the trial court
noted that appellant “was right there, close enough to get blood
on him[self].”
Sufficiency of the Evidence
As indicated, appellant’s sufficiency of the evidence
contention fails. Section 1172.6, which was enacted “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 human life.” (Stats., 2018, ch. 1015, § 1,
subd. (f).)
Section 189, as amended, now provides that in cases where
a death occurs during the perpetration or attempted perpetration
of a felony listed in section 189, subdivision (a), a person is liable
for murder only if the person was the actual killer, the person
acted with intent to kill in aiding, assisting, or soliciting the
killer, or if the person “was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd.
(e)(3).) Our Supreme Court has recognized, however, that
“notwithstanding [SB] 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
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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.” (People v. Gentile (2020) 10 Cal.5th 830, 850
(Gentile).)
After issuance of an order to show cause, the trial court sits
as a trier of fact on a section 1172.6 petition. Its factual finding
of second degree implied malice murder is reviewed for
substantial evidence. (People v. Owens (2022) 78 Cal.App.5th
1015, 1022.) Accordingly, “we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the [trier of fact] could
reasonably have deduced from the evidence.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357; Owens, at p. 1022.) In conducting this
review, “‘“[w]e resolve neither credibility issues nor evidentiary
conflicts . . . .” [Citation.]’ [Citation.]” (Owens, at p. 1022.)
The theory of second degree implied malice murder,
remains valid notwithstanding the recent changes effected by
Senate Bill No. 1437 (SB 1437) and Senate Bill No. 775 (SB 775).
(Gentile, supra, 10 Cal.5th at p. 850; People v. Powell (2021) 63
Cal.App.5th 689, 714; People v. Glukhoy (2022) 77 Cal.App.5th
576, 599-600 (Glukhoy).) Pursuant to this theory, “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.)
Appellant was one of at least eight gang members or gang
associates who participated in a vicious assault upon the victim.
The trial court could reasonably infer that appellant knew Zara
was repeatedly being hit in the head with a shovel and bat and
that he intended to aid those acts by participating in the assault.
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The blows to Zara’s head were loud enough to be heard by several
neighbors, some of whom heard someone yell “[s]top it” and
“[y]ou’re killing him.” Another witness described the group as
behaving “like a bunch of rats going for cheese.” While appellant
was participating in the attack, his pants, underwear, and jacket
were stained with Zara’s blood.
Appellant’s presence at the scene, his participation in the
attack on the victim, his companionship with other perpetrators,
his conduct before and after the crimes, and his motive of
retaliation for disrespect all support the finding that he aided
and abetted an implied malice murder. (See Glukhoy, supra, 77
Cal.App.5th at pp. 599-600 [recognizing that circumstances
relevant to the determination whether a defendant is guilty of
aiding and abetting a crime include presence at the crime scene,
his or her companionship and conduct before and after the crime,
and motive].) As the People note, “[a]ppellant did not need to
specifically know that someone would strike Zara with [a shovel
and bat] in that particular manner to be liable under an implied
malice theory. It suffices that he knew he was aiding in a violent
attack, knew dangerous weapons were being used against Zara,
and intended to stop Zara from escaping or defending himself by
helping the perpetrators to surround and hit him.”
Remaining Contentions
Appellant’s remaining contentions also lack merit.
Although he claims that his eligibility for resentencing “cannot be
denied on [the] ground that [he] stabbed [the] victim as he was
effectively acquitted of using [a] knife during [the] incident,”
(capitalization omitted), the trial court made clear that its ruling
“does not depend on the knife as part of it.” We also reject
appellant’s assertion that second degree implied malice murder
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cannot be shown unless the prosecution proved beyond a
reasonable doubt that his conduct was a substantial factor in
aiding and abetting the actual perpetrators of the murder. Aside
from failing to establish that the law imposes any such
requirement, the evidence is sufficient to support such a finding
because his actions helped prevent Zara from fleeing from his
assailants.
We also reject appellant’s claim that SB 775 invalidated the
theory of aiding and abetting a second degree implied malice
murder. The referenced portion of SB 775 merely recognizes that
“a person convicted of . . . murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime” may petition for resentencing. (§ 1172.6, subd. (a),
italics added.) Second degree implied malice murder, however, is
not based on a theory of imputed malice. “[N]othing in [SB] 775
or its legislative history indicates a rejection of our high court’s
observation [in Gentile] concerning the availability of direct
aiding and abetting implied malice murder as a theory of
accomplice liability.” (Glukhoy, supra, 77 Cal.App.5th at p. 591;
accord, People v. Clements (2022) 75 Cal.App.5th 276, 301; People
v. Langi (2022) 73 Cal.App.5th 972, 983.) Appellant’s claim that
aiding and abetting implied malice murder is akin to provocative
act murder fails because provocative act murder requires a
showing that the defendant personally harbored malice. (People
v. Mancilla (2021) 67 Cal.App.5th 854, 868; People v. Johnson
(2020) 57 Cal.App.5th 257, 266.)
Finally, we reject appellant’s claim that the so called
“canon of constitutional doubt” precluded the trial court from
finding guilt of second degree murder on a theory that was not
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presented at trial. 2 This claim was not raised below and is thus
forfeited. Also, the jury in appellant’s case was instructed on
both implied malice and aiding and abetting and the prosecutor’s
theory was and is that appellant acted with implied malice.
Moreover, the claim, as we understand it, lacks merit.
Interpreting section 1172.6 to allow the prosecution to present
different theories of guilt at the evidentiary hearing does not
implicate constitutional concerns. Courts have unanimously held
that section 1172.6 is an act of lenity in which the petitioner has
no Sixth Amendment right to a jury trial. (See, e.g., People v.
James (2021) 63 Cal.App.5th 604, 611.) It has also been
recognized that allowing the prosecution to offer new theories of
guilt at the hearing does not implicate double jeopardy concerns.
(People v. Flint (2022) 75 Cal.App.5th 607, 618.)
Although appellant contends that allowing the prosecution
to present a new theory of guilt in this context implicates his due
process rights, he had a full and fair opportunity to present new
and additional evidence at the evidentiary hearing but declined
to do so. As the People aptly put it, “[B]ecause a section [1172.6]
evidentiary hearing does not subject a defendant to the risk of
additional punishment, is not a trial, permits both parties to
present new evidence, and merely considers whether the
2 Pursuant to the canon of constitutional doubt, “‘“[i]f a
statute is susceptible of two constructions, one of which will
render it constitutional and the other unconstitutional in whole
or in part, or raise serious and doubtful constitutional questions,
the court will adopt the construction which, without doing
violence to the reasonable meaning of the language used, will
render it valid in its entirety, or free from doubt as to its
constitutionality, even though the other construction is equally
reasonable.”’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.)
8
defendant’s request for leniency meets the necessary criteria,
there is no constitutional problem in allowing new theories of
murder liability at that hearing.”
DISPOSITION
The judgment (order denying petition for resentencing) is
affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, 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, Noah P. Hill, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
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