Filed 11/2/ 23 P. v. Moreno CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIV IS ION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRENDA MOR ENO

,

Defendant and Appellant. B3 1 9890

(Los Angeles County Super. Ct. No. K

A 042134 )

APPEAL from a n order of the Superior Court of Los Angeles County

, Rob B. Villeza , Judge. Affirmed

.

Alex Coolman , 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, Senior2

Assistant Attorney General, S eth McCutcheon and William H. Shin, Deputy Attorney s General, for Plaintiff an d Respondent.

* * * * * *
Brenda Moreno (defendant) appeals the trial court’s order denying her petition for resentencing filed pursuant to Penal
Code section 117 2.6

. 1 Concluding there was no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crimes On a Tuesday night in late September 1998, defendant and
four others

— her roommate, her roommate’s boyfriend (the boyfriend)

, and two of his friends (Dennis Barroso and Brian Scott)

— drove around the San Gabriel Valley committing a rash
of violent crimes. Defendant joined in because she “wanted to get the money” from the robberies they planned to commit “to buy drugs and to pay [her] rent.”
With the roommate driving an SUV , the group prepared for the spree by making three stops

— tw o separate stops to pick up a total of four shotguns and four handguns, and one stop to pick up black knitted gloves. After the boyfriend suggested driving to Diamond Bar to find their first victim, defendant willingly gave the roommate driving directions

.

1 All further statutory references are to the Penal Code

u nless otherwise indicated. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For the sake of simplicity, we refer to the section by its new numbering only

.3 For their first crime of the evening, the group followed a woman driving an Infiniti. When the woman pulled over across the street from her house , the boyfriend and his two friends got out of their SUV, with shotguns and handguns on display. They
deman ded the woman’s purse, her watch and her necklace . The boyfriend drove off in the Infiniti. One of the boyfriend ’s friends expressed his intention to “shoot her,” and the others had to talk
him out of it. Afterwards, the group rendezvoused at the boyfri end’s apartment to split up the proceeds of the carjacking. Defendant “wanted to go and do it again” because it “seemed like fun” and “was so easy.” One of the boyfriend’s friends declined to
continue. The group then tried to commit a second carjacking in Rosemead, but ultimately failed. As before, the roommate followed the intended victim into his driveway

, and the boyfriend and his remaining friend jumped out of the SUV to point shotguns at the driver. But the driver honked his horn, put his
car in r everse, and drove away

— but not before the remaining
friend shot at the car. After that failure, the roommate drove up alongside a group of four pedestrians

— a man named Gilbert Rivas (Rivas), his fiancée, his fiancée’s teenage son and Rivas’s teenage broth er

. The boyfriend and his friend leaned out of the SUV’s window s and demanded to know Rivas’s gang affiliation; when Rivas replied that he did not “bang,” the two men in the SUV proclaimed their affiliation with the “Valinda Flats” gang. They
then jumped out of the car

— with the two men again wielding shotguns. Rivas’s teenage brother handed over cash, some cigarettes and his new black Nikes. Defendant then demanded
that Rivas’s fiancée hand over her rings. When she hesitated and4

explained that her ring s had little monetary value but great sentimental value, defendant yelled, “Take off your rings, bitch!” and punched her in the face. When Rivas told defendant that she did not need to hurt his fiancée or disrespect them, the boyfriend’s friend shot Rivas in the stomach and the boyfriend
shot Rivas twice more

— once in the back and once in the head. They all got back into the roommate’s car, leaving Rivas to die
from his wounds.
The next day, defendant dropped off the stolen Infiniti at a body shop; shredd ed some documents from the Diamond B ar robbery; changed her appearance by cutting and dyeing her hair; and spent the rest of the day “g [ etting ] high” and watching
movies.
B. P lea

, conviction

, and sentencing On June 1, 1999 , defendant entered a plea agree ment in which she pleaded guilty to second degree murder (§ 187, subd. (a)) and one count of robbery (§ 211) in exchange for the dismissal of the remaining charges and a sentence of 15 years to life in prison. As part of the plea agreement, defendant agre ed

to testify fully and truthfully at all stages of the trial of her
codefendants

— the roommate, the boyfriend, and the boyfriend’s
friend

. The trial court sentenced defendant to the agreed

- upon term of 15 years to life. Defendant did not appeal her convi ction.
II. Procedural Background On November 30, 2020, defendant filed a petition for resentencing under section 1172.6. After appointing counsel for
defendant and entertaining briefing , the trial court in October
2021 issued an order to show cause and set the matter for an evidentiary hearing.5 On April 20 , 202 2 , the trial court held an evidentiary hearing. At the beginning of the hearing, the court recited the
list of documents that it had reviewed and considered for the purposes of the hearing. Amo ng other things, t hat list included (1) the pleadings and attached exhibits; (2) the record of
conviction

, which included “the preliminary hearing transcript”
and “portions of the trial transcript, including the testimony of [defendant] as a witness for th e People against the remaining
defendants” ; (3) the plea agreement; and (4) the Court of Appeal
decision issued in the boyfriend’s friend’s appeal on April 24,
2001. 2 Defendant had no objection to the admission of any of the
listed items. Defendant intro duced no new evidence and did not testify

. The trial court denied defendant ’ s petition after finding, beyond a reasonable doubt, that she was a major participant in
the underlying robbery and had acted with reckless disregard for
human life. Specificall y , the court found defendant (1) played a major role in planning the robberies and “provided directions to the targeted areas where the incidents occurred” ; (2) knew guns
would be used to commit the robber ies because she was inside the car when they were r etrieved and used in the earlier incidents ; (3) w as aware of the danger posed by the crime because the boyfriend’s friend had previously fired his weapon during the failed carjacking ; (4) did nothing to minimize the risk of violence
but instead escalated t he Rivas robbery by punching Rivas’s
fiancée in the face when she refused to hand over her ring s , causing Rivas to intervene

, leading to his death ; and (5) did not render any aid to Rivas but fled with the others.

2 ( People v. Barroso e t al. (Apr. 24, 2001, B135322) [non pub.

opn. ]. )6

I II

. Appeal Defendant filed this timely appeal.

DISCUSSION
Defendant argues that the trial court erred in denying her petition because (1) the court impermissibly relied on the facts set forth in the appellate opinion involving the boyfriend’s friend, in violation of section 1172.6, subdivision (d)(3) ; and (2) the court misconstrued one snippet of her testimony at the boyfriend’s
friend’s trial. 3
I. Pertinent Law In 2018, our Legislature amended the definition of
“murder” in our s tate to preclude a jury from “imput[ing]” the
“malice” element of that crime “based solely on [a defendant’s] participation in a crime.” (§ 188, subd. (a)(3).) Our Legislature’s purpose was to ensure that “[a] person’s culpability for murder [is] premised upon that person’s own actions and subjective mens rea.” (Stat s. 2018, ch. 1015, § 1(g).) As amended, liability for murder is limited to persons (1) who are the actual killer ; (2) who aided and abetted the actual killer in the murder (that is, who acted with the intent to kill) ; or (3) who were a major participant
i n the underlying felony that result ed in the killing, but only if

3 In her op ening brief, defendant argued that the record did not support five specific factual findings made by the trial court. This argument was premised on the trial court’s incorrect reference to only o ne of three volumes of transcripts from the boyfriend’s friend’s trial. When the People pointed out the trial court’s error and explained how the other two volumes of transcripts set forth the evidence that supported the factual findings defendant attacke d, defendant in her reply appropriately withdrew that argument. Thus, we have no occasion to address it.7

they also acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e); e.g., People v. Johns (2020) 50 Cal.App.5th 46, 58

- 59.) Section 1172.6 is the procedural ve hicle by which persons
convicted in now

- final judgments can seek to vacate convictions that do not satisfy the now

- current definition of “murder.” Where, as here, a defendant files a facially sufficient petition and
the record does not otherwise foreclose relief as a matter of law,
the trial court must issue an order to show cause and convene an evidentiary hearing. (§ 1172.6, subd. (c).) At the hearing, the People have the burden of proving to the trial court, as an independent factfinder, that a defend ant is guilty of murder on a
still

- valid theory. (§ 1172.6, subd. (d)(3). ) At that hearing, the Evidence Code “govern[s],” “except that the court may [also] consider” (1) “ evidence previously admitted at any prior hearing
or trial that is admissible unde r current law,” (2) “stipulated evidence,” (3) “matters judicially noticed,” and (4) “the procedural history of the case recited in any prior appellate opinion.” ( Ibid. )
II. Analysis Neither of defendant’s arguments has merit.
The trial court did not er r by impermissibly considering the facts from the appellate opinion in the boyfriend’s friend’s case. To begin, the trial court did not rely on the facts from that opinion. Defendant asserts that the court cited the opinion for the proposition that defen dant jumped out of the car to confront
Rivas and the others while armed , but the trial court cited the preliminary hearing transcript

— not the appellate opinion. Further, whether defendant was armed at that time was not a
critical factor in the trial court ’s analysis of whether she acted with reckless indifference to the value of human life; indeed, the8

court remarked that “defendant didn’t supply or use guns during the crime spree.” (Italics added.) Lastly, even if the trial court
had relied on the passa ge from the appellate opinion indicating that all three people who jumped out of the SUV were armed, this error is not cognizable because defendant forfeited the error by saying she did not “object” to the trial court’s unrestricted reliance on that opinio n. Defendant’s argument that section 1172.6, subdivision (d)(3)

, precludes a forfeiture or waiver was rejected in People v. Vance (2023) 94 Cal.App.5 th 706, 71 3

- 714

. We see no basis to disagree with Vance

. The trial court also did not misconstrue a snip pet of her testimony from the boyfriend’s friend’s trial. At that trial, she
testified

, “ . . . I chose to get off and sock this lady, and maybe that did trigger off the shooting . . . maybe I was the person that triggered off the shooting, you know, and I feel good .” (Italics added.) She further explained , “Even though I’m crying, I feel good that I came out and I said the truth because this guy’s life was taken away.” (Italics added.) Defendant complains that the trial court read the first snippet of her testimony as indicating
that she “fe [ lt ] good” about triggering the shooting. We agree that the full context of her testimony would not support this reading, but the trial court did not construe her testimony in this way. To the contrary, when assess ing whether defendant acted with reckless indifference to human life, the court repeated
defendant’s statement verbatim on two occasions but on neither occasion commented on defendant’s use of the word “good.” We decline to invalidate the court’s ruling o n the basis of a misconstruction of the court’s reasoning.
And even if we assume that the trial court somehow committed either error, those errors were harmless because9

substantial evidence supports the trial court’s finding beyond a
reasonable doubt that defendant acted with reckless indifference
to human life

— even if we ignore the contents of the appellate opinion and construe the “feel good” comment in the manner defendant suggests. 4 ( People v . Nieber (2022) 82 Cal.App.5th 458,
476 [applying substantia l evidence review].)
In People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522 ( Clark ), our Supreme Court spelled out that a defendant acts with reckless indifference to
human life when s he “ ‘ “knowingly engag[es] in crimin al activities known to carry a grave risk of death.” ’ ” ( Banks

, at p. 801, quoting People v. Estrada (1995) 11 Cal.4th 568, 577, quoting Tison v. Arizona (1987) 481 U.S. 137, 157

. ) Our Supreme Court has identified a number of considerations bearing on
whet her a defendant has acted with reckless indifference to human life. “No one of these considerations is necessary, nor is any one of them necessarily sufficient” ( Banks

, at p. 803); what matters is the totality of the considerations ( In re Scoggins (2020)
9 Cal.5th 667, 677)

. The considerations are: (1) “Did the defendant use or know that a gun would be used during the [underlying] felony,” and, relatedly, “[h]ow many weapons were ultimately used?”; (2) “Was the defendant physically present at the crime,” such that s he had “the opportunity to restrain the crime or aid the victim?”; (3) “What was the duration of the interaction between the perpetrators of the [underlying] felony and the victims?”; (4) “What was the defendant’s knowledge of

. . . her confeder ate’s propensity for violence or likelihood of using

4 We need not examine the major participant element because defendant concedes this element. ( People v. Bascomb (2020) 55 Cal.App.5th 1077, 1084 , 10 87

. )10

lethal force?”; and (5) “What efforts did the defendant make to minimize the risks of violence during the felony?” ( Ibid

. , citing
Clark

, supra , 63 Cal.4th at pp. 618

- 623.)
The Banks factors support t he trial court’s finding that
defendant acted with reckless indifference to human life. First, defendant knew that guns would be used in the confrontation with Rivas and his family. She was present when the group retrieved the cache of guns; she was pre sent when the boyfriend and his friends displayed the guns during the first carjacking and second failed carjacking; and she was present
when the boyfriend’s friend shot at the fleeing victim of the second carjacking. Whether defendant herself used a gun does not diminish her awareness that her compatriots were “locked
and loaded.” Second, defendant knew of the propensity for violence of
her cohorts because of what happened in the two carjackings earlier in the evening

. Third, defendant was present at the crime scene and played an integral part in the robbery

. When defendant believed Rivas’s
fiancée was not complying quickly enough with the group’s demands, she stepped forward and punched the fiancée in the face and demanded her ring s

. It was that cond uct that immediately escalated the confrontation , as defendant herself acknowledged when testifying. Fourth, defendant did nothing to minimize the risk of
violence . To the contrary, defendant knew the boyfriend’s friend was trigger happy and she neverthe less escalated the situation by punching Rivas’s fiancée. Finally, defendant did nothing to aid Rivas when he was
sho t . She fled with the others, and later disguised her looks to11

evade arrest.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED I N THE OFFICIAL REPORTS

.

______________________, J.
HOFFSTADT

We concur:

_________________________, Acting P. J.
ASHMANN

- GERST

_________________________, J.
CHAVEZ