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Filed 6/21/23 P. v. Faumu i CA4/2 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. VAVAO POLO FAUMUI, Defendant and Appellant. E075801 ( Super.Ct.No. FBV3726)
OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Vavao P. Faumui, in pro. per.; Dwyer and Kim and John P. Dwyer for Defendant and Appellant. No appearance by Plaintiff and Respondent.2

In 2007, a jury convicted Vavao Faumui of first degree murder with true findings

on the robbery and burglary felony

- murder special circumstances

. (Pen. Code, § 190.2, subds. (a)(17)(A) , (a)(17) (G) , (d)

. ) 1 In 20 19 , Faumui filed a petition to vacate his murder conviction under section 1172.6 (formerly § 1170.95)

. 2 After an evidentiary hearing, the
trial court found Faum u i was “a major participant” in the underlying felonies and acted “with reckless indifference to human life” within the meaning of section 189, subdivision (e)(3) and denied the petition. (§ 1172.6 , subd. (d).) Faumui appealed the order denying his petition, and we dismissed the appeal as abandoned because nei ther he nor appointed counsel raised any arguable issues . The California Supreme Court subsequently granted review of our dismissal order and
transferred the matter back to us with directions to vacate our order and reconsider the appeal under the Wende 3 guidance it articulated in People v. Delgadillo (2022) 14 Cal.5th 216 ( Delgadillo ) . Having done so, we affirm the order denying Faumui’s petition.

1 Unlabeled statutory citations refer to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer to whichever of the two statutes was in effect at the relevant time.

3 People v. Wende (1979) 25 Cal.3d 436 ( Wende ).3 I BACKGROUND At trial, the prosecution presented evidence that , l ate in the evening on September 8, 2003, Faumui and t hree other men attempted a home invasion robbery during which the victim was shot multiple times and later died from his injuries

. 4 Many of the details of
the incident came from Faumui’s own admissions to law enforcement

. He told police he
had approached the home with two accomplices while the lookout , Robin Sherwood,
waited in the car. Faumui said he carried a flashlight and his accomplices carried guns

. They knock ed on the door , and when the victim answered , they pushed their way into the
house. Faumui struggled with the victim “[f]or a minute, not even that , ” and then “bee lined” for the door when he heard a gunshot

. Sherwood’s friend , Jaramillo, testified he had let Sherwood borrow his grandmother’s car that evening . He said that when Sherwood returned the car , around
2 :00 a.m. the following morning , Sherwood told him t hey had just done “something” and “[s]omebody got shot.” Later that day, when Jaramillo was at Sherwood’s apartment,
Sherwood proceeded to recount the details of the botched robbery while Faumui listened and nodded in agreement. Sherwood recounted how, when the victim opened the door,
Faumui hit him with the fl ashlight and tried to wrestle him to the ground . W hen it became clear the victim was starting to gain the upper hand, Faumui told his friends to

4 We take our factual summary from our unpublished opinion in Faumui’s direct appeal, People v. Faumui (Oct. 20, 2008, E043981).4

“shoot him.” Faumui testified in his own defense and denied the conversation with
Jaramillo had taken place.
Th e prosecution tried Faum u i for first degree murder under the alternate theories of felony murder and direct aiding and abetting . The jury found him guilty of first degree murder, first degree burglary, and attempted first degree robbery in concert. As to each count, the jury found true the armed principal allegation (§ 12022, subd. (a)(1) ), and a s to the murder, they found true the robbery and burglary felony

- murder special circumstance allegations ( § 190.2, subd s. (a)(17)(A) , (a)(17)(G) , & (d) )

. Before se ntencing, San Bernardino County Superior Court Judge John M. Tomberlin found Faumui had suffered four strike priors, four prior serious felony enhancements, and eight prison prior
enhancements

. For those priors and his current convictions, Faumui received a sentence of life without parole plus 25 years

. In 2018, the Legislature enacted Senate Bill No. 1437 (2017

- 2018 Reg. Sess.), which, among other things, amended the definition of felony murder in section 189 and created a procedure for vacating murder convictions predating the amendment that could not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.) Following this procedure, Faumui filed a petition to vacate his murder conviction in 2019 . He alleged he
ha d been convicted of first deg ree murder under a felony

- murder theory and could not be convicted of murder under the new law because he was not a major participant in the felony and did not act with reckless indifference to human life during its commission

.5

At the evidentiary hearing o n Faumui ’s petition, Judge Tomberlin concluded the
evidence the People submitted established that Faum u i “was the first person through the door, attacked the [victim] and urged his compatriot to kill the [victim] or at least to shoot him.” Based on that ev idence, the judge found Faum u i was a major participant in the underlying felonies and acted with reckless indifference to human life within the meaning of section 189, subdivision (e)(3) and denied the petition

. Faumui appealed the denial of his petition , but we dismissed the appeal as
abandoned when appointed counsel filed a no - issue brief under Wende and Faumui
declined to file a supplemental brief when invited to do so. Faumui petitioned for review
of our dismissal o rder, and on June 9, 2021 , the California Supreme Court granted his request pending its decision in Delgadillo

. Several months later, the Court issued Delg adillo , in which it held that appellate courts may dismiss Wende appeals of denials
of section 1172.6 petitions whe n the defendant has been informed of their right to file a supplemental brief and both counsel and appellant have identified no arguable issues on appeal . ( Delgadillo , supra , 14 Cal.5th at p. 232 .) The Court advised that , as a best practice, appellate courts should expressly notify defendants that their appeal s may be

“ dismissed as abandoned ” if counsel files a no

- issue brief and they fail to file a supplemental brief “ raising any argument [they] wish [] the court to consi der .” ( Id. at
p. 222 .)
On March 2 2 , 2023 , t he Court transferred this matter back to us with directions to

vacate our dismissal order and reconsider whether to exercise our discretion to conduct6

an independent review of the record “or provide any other relief ” i n light of Delgadillo

. Because our order informing Faumui that his counsel had filed a no

- issue brief and inviting him to file a supplemental brief did not expressly notify him that we could dismiss his appeal as abandoned if he failed to identify any argu able issues , we issued
two orders. In one order, we invited the parties to file supplemental briefs in light of Delgadillo

. In the other, we notified Faumui that his counsel had filed a no

- issue brief and invited him once again to file a supplemental brief

. W e informed him that we would “evaluate the specific arguments presented” in his supplemental brief . W e also notified
him that “[f]ailure to timely file a supplemental brief may result in the dismis sal of the appeal as abandoned.” Neither the People nor appointed counsel filed additional brief ing, but Faumui filed a supplemental brief raising one argument for our consideration. We turn no w to consider the merits of his argument. (See Delgadillo , supr a , 14 Cal.5th at p. 232 [ where a defendant files a supplemental brief , the appellate court is “ required to evaluate the specific arguments presented in that brief and to issue a written opinion ” but “[t] he filing of a supplemental brief

. . . does not compel an independent review of the entire record to identify unraised issues ”].)
II DISCUSSION
Faumui argues that he did not know his accomplice would in fact shoot the victim and, as a result, the judge denied his petition in error

. This argument amounts to a7

challenge to the sufficiency of the evidence supporting the judge’s finding that he was “a major participant” in the underlying felonies and acted “with reckless indiffer ence to human life” within the meaning of section 189, subdivision (e)(3). When addressing such a challenge, “we review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence

— that is, evidence th at is reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Cravens (2012) 53 Cal.4th 500, 507.)
Under section 18 9, “[a] participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder ” if “[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life , as descr ibed in subdivision (d) of Section 190.2.” (§ 189, subd. (e) , italics added .) In this context, a major participant is someone whose “personal involvement” in the qualifying felony is “substantial” and “greater than the actions of an ordinary aider
and abet tor” ( People v. Banks (2015) 61 Cal.4th 788, 802 ( Banks )), but they “need not be the ringleader” ( People v. Williams (2015) 61 Cal.4th 1244, 1281). The factors for evaluating whether a defendant qualifies as a major participant include: (1) the defendant’s role in planning the felony ; (2) their role in “supplying or using lethal weapons”; (3) their awareness of the “particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants”; (4) their presence “at the scene of the killing” and thus whether they were “in a position to facilitate or8

prevent the actual murder”; (5) whether their “own actions or inaction play[ed] a particular role in the death”; and (6) their actions after the use of lethal force. ( Banks , at p. 803.) A person acts with reckless indifference to human life when they “‘knowingly engag[e] in criminal activities known to carry a grave risk of death.’” ( People v. Clark (2016) 63 Cal.4th 522, 616.) Participating in an armed burglary or arm ed attempted robbery, on its own, is insufficient to show a reckless indifference to human life. ( In re Scoggins (2020) 9 Cal.5th 667, 678.) The factors for evaluating whether a defendant meets this standard include: (1) their awareness that a lethal weapo n would be used,
whether they personally used a lethal weapon, and the number of lethal weapons used; (2) their “[p]roximity to the murder and the events leading up to it”; (3) the length of time they or their confederates restrained the victim; (4) their knowledge of a confederate ’ s likelihood of killing; and (5) whether they made an effort to minimize the risk of violence. ( Clark , at pp. 618

- 622.) In regard to both standards , n o single one of the se factors is necessary, nor is any one necessarily sufficient. ( Banks , supra , 61 Cal.4th at
p. 803; Clark , at p. 618.) Here, the record support s a finding that Faumui was a major participant in the burglary and attempted robbery because the People produced evidence that Faumui had taken part in the home invasion and was the one who fought with the victim before the
victim was shot

. The record also support s a finding that Faumui acted with reckless9

indifference to human life because the People presented evidence that , during his struggle
with the victim, he urged his accomplices to fire their weapons

. Even if we assume , for the sake of argument , that the record contain s some evidence to support a finding that Faumui didn’t know his armed accomplice s would in fact discharge their weapon s , the judge was free to discount that evidence and credit
instead the evidence that Faumui told his accomplices to “shoot him” while knowing full well that they w ere armed and the victim was an easy target. When the record contains
evidence to support more than one inference, w e defer to the fact finder’s resolution of credibility issues so long as the ir decision is supported by substantial evidence. ( People v. Young (2005) 34 Cal.4th 1149, 1181.) Because that is the case here , we reject Faumui’s claim that the record compel s a different result

. III DISPOSITION
We affirm the order denying Faumui ’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORT S

SLOUGH J. We concur:

CODRINGTON

Acting P. J.

MENETREZ J.