Filed 5/5/16 P. v. Stratis CA2/5

On remand

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

C HRISTOPHER STRATIS et al.,

Defendant s and Appellant s

. B229255

(Los Angeles County

Super. Ct. No. KA083187)

APPEAL from a judgment of the Superior Court of the County of Los Angeles,

Mike Camacho, Judge. Affirmed and remanded with instruction.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and

Appellant Christopher Stratis.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and

Appellant Victor Manuel Maurtu a, III.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,

Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for

Plai ntiff and Respondent.2

In 2013, this c ourt considered the appeals of defendants and appellants

Christopher Stratis and Victor Manuel Maurtua III. Each challenged the judgment

corresponding to their convictions for first degree murder (Pen. Code, § 187, subd. (a)). 1

Defendant’s were sentenced to life in prison without the possibility of parole (LWOP)

because the jury found the murder was perpetrated during the commission of a burglary

(§ 190.2, subd. (a ) (17)(G)).

Stratis and Maurtua both contended ther e was insufficient evidence to support the

burglary

- murder special circumstance finding and both maintained their LWOP sentences

constituted cruel and/or unusual punishment under the state and federal Constitutions.

Stratis also argued the trial court imp roperly imposed a parole revocation fine.

We reversed Stratis’s sentence of LWOP and remanded the matter for

resentencing with adherence to the guid e lines set forth in Miller v. Alabam a (2012) 567

U.S. ___ [132 S.Ct. 2455]. 2 We additionally ordered the trial court to recalculate

Stratis’s presentence credit award and modified the judgment against M aurtua to omit a

parole revocation fine. In all other respects, the judgments were affirmed.

The California Supreme Court initially granted the petitions for review filed by the

Attorney Gen e ral and Stratis. Thereafter, the Supreme Court transferred review to this

c ourt for reconsideration in light of People v. Banks (2015) 61 Cal.4th 788 ( Banks )

— a

case explaining the requirement that a defendant who is an ai der and abettor to a murder

must have conducted himself as a major participant with reckless indifference to human

life in order to justify a finding that the he commi tted the murder under a special

circumstance, e

. g ., during a burglary. The Supreme Court order directed as follows: “In

1 All further statutory references are to the Penal Code.

2 The year after we filed our opinion, the California Supreme Court held Miller

applies to Californi a ’s sentencing scheme such that it “requires a trial court, i n exercising

its sentencing discretion, to consider the ‘ distinctive attributes of youth ’ and how those

attributes ‘ diminish the penological justifications for imposing the harshest sentences on

juvenile offenders ’ before imposing life without parole on a juvenile offender.

[Citation.]” ( People v. Guiterrez (2014) 58 Cal.4th 1354, 1360

- 1361.)3

the event the Court of Appeal determines defendant David Stratis’s burglary

- murder

special circumstance is supported by substantial evidence, the matter should be remanded

to the trial court for resentencing of Stratis in l ight of the guidelines set forth in People v.

Guiterrez (2014) 58 Cal.4th 1354.”

We hold Stratis’s conduct qualified him for special circumstance punishment and

therefore, as directed by the Supreme Court, we remand the matter to the trial court for

rese ntencing.

THE EVIDENCE 3

A. A Home Invasion Robbery is Planned and Executed

Christoph e r Sant a na to l d Christine Alegre (Vi c tor Maurtu a ’s cous i n) t hat he

wanted to i nvade t h e H ong h o m e when the o c cupants we r e present a nd that he h ad

been watching t h e h o m e f or a while. He explai n ed his ex

- girl f riend li v ed i n the h o m e

but expressed c oncern t h at her brother was “ki n d o f buf f .” Santana sugg e sted

c o mmitting t he robbe r y w h ile his e x

- g i rl f riend and her bro t her were h o m e

— he

in d ic a ted he could tie up the brother a nd place h i m i n a clos e t with his e x

- girl f riend.

On March 19, 20 0 8, A l egre and her f riend M a gali Ferna n dez were p i cked up at

Alegre’s h o me b y San t ana and M a urtua. S an t ana was dr i ving a v a n. Th e y

proce e ded to Ontario to pick up Chr i stopher St r atis. O n the trip h o m e t he three m e n

spoke a b out c o m m itti n g a h o me in v asion robb e r y

.

Santana st o pped t h e v a n near the ho m e of Str a tis’s f oster m other in D uarte.

Stra t is wanted to b reak in t o t h e sa f e in the h o m e. T h e three m en got out of the van and

put on latex glove s

. One of them was car r y i ng a b a c k pack. Th e y abando n ed their plan

when th e y notic e d people w e re h o m e. S tratis s a id, “ W e ’ re going to have to c o m e

back.”

3 This section is lifted verbatim from our opinion in People v. Christopher Stratis et

al , B2292 5 5.4

Santana dr o ve the v an past the H o ng h o me. A car was e x iting t he d rivew a y

.

Santana c o mmente d : “ [ O]h, this is the h o use.

. . . [ L]ook how b i g th i s house is

. ”

Santana sa i d, “Ok a y

, w e’re going t o do th i s ri g ht now bec a use the ga t e is open.”

The three m en e x ited the v a n. Santana took a bac k pack contai n ing a G lo c k .40

-

caliber s e m iaut o matic han d g u n and cover e d his f ace with a ban d ana. S t ratis

covered his head with the h o od of his b l ack sweats h irt. All th r ee m en put on latex

gl o ves.

The three m e n enter e d the garage of the H o ng h o m e. Sa n tana co n tin u ed inside

t h e house whi l e Strat i s and Maurtua s t a y ed in the garage. S h ots were f i r ed in the

h o me

— Santana had shot H ong three t i m es while s he was speak i ng to a 9 11 operator.

O ne of her wounds w as “rapi d l y ” f atal. The m en f led the scene.

Alegre had driven t he v an aw a y but returned to pick up the m en w hen she

received a phone call f

r o m S an t ana. Stratis was q u iet a nd r e m ained ca l m f or t he

r e m ainder of the d a y

. Sant a na got i nto t he driver’s seat of the v an and dro v e it past the

Hong h o me. Th e y observed an a m bul a nce and police c ars. A l eg r e asked, “D i d y ou

h urt s o m ebo d y ? ” Santana rep l ied, “ What do y ou th i nk ? ”

The group stopped b y Santana’s ho m e. T he t hree m en ex i ted the v a n and

retur n ed a f

ew m inu t es later. A l egre asked Santana, “ W h o did y o u sho o t ? ” Santana

re s ponded, “ S o me bit c h.” The gr o up proceed e d to M a ur t ua’s reside n ce where t h e y sat

in the bac k y ard f

or a brief ti m e.

W i t h the a s sistance of a police do g

, o ff icers followed de f endants’ tr a il to a road

near b y the Hong h o me. Th e y reco v ered two p airs of surgical bo o ties, discarded

c l othing including a black h oo d ed sweatsh i rt, and a b a ckpack cont a ining a l o aded Glock

.40

- caliber s e m i aut o m a t ic handgun a n d a cresc e nt wrench.5

B. The P o lice Inte r vi e ws of Stratis and Maur t ua

Maurtua a n d Strat i s w e re interview e d b y p oli c e detectives. Their i nt e rviews

were pl a y ed f

or their resp e c t ive juries o n l y

. A s u m m a r y of the relevant p o rtions of the

interviews f

ollows.

1. Stratis

Stratis re f erred to S an t ana b y his moniker “V i cious” and said Sa n ta n a was

“cra z y ” given the “ w a y he l oo k s and the w a y he ac t s t owards pe o ple.” S t rat i s was

cont a cted b y Santana the night b e f ore the h o m e invasi o n r o bbe r y and a greed to do a

“house li c k,” i.e., a h o m e inv a sion r o bbe r y

.

Th e y initia l l y sto p ped near a house in Dua r te. The m en e xited the c a r with

glo v es on but aba n doned t he i dea of going into t he h ouse becau s e a f e m a l e was

obser v ed in the window a n d there was a d a y care ne x t to the h ome.

W h en th e y r eached t he Hong h o me, Maur t ua p rovided St r atis wi t h gl o ves.

Santana had a back p a c k. Stratis had the hood to his sw e ater over his head. The

t hree m e n j u m

p e d over a wa l l and entered the H o ng garage thro u gh a si d e d oor.

Strat i s heard gunshots a nd f led. His two c o m

p a nions c a ug h t up to h i m and the thr e e

men jogg e d to a dead end st r eet. The men discarded m a n y i t e m s during their f ligh t

—

Santana t hrew h i s backpack, Maurtua d r o pped the g l oves a n d St r atis took o f f his black

“ hoodie” s w eater. Santana cal l ed one of t he girls in the van. T h e van arrive d

, the

m e n entered it, a n d Santana dr o ve it a w a y

.

2. Maurtua

Maurtua k n ew San t ana was assoc i ated wi t h an El Monte c r i m inal str e et gang and

had the m o niker “ V ici o us.” Prior to c o mmitt i ng the cr i m e at the Ho n g residence,

Santana spoke to Maurtua a bo u t Santana’s particip a ti o n in h o m e invasi o n ro b beries.

Sa n tana described t h e cr i m es as “ [ J]ust f reakin’ simpl e .” Santana said he had been to a

pa r t y at the Hong ho m e and th a t it was a “ b ig ho u se.” He explain e d the gi r l w ho lived6

t h ere had a brother w h o was “ k ind of buf f ” but that, if the girl and the brother ha p pened

to be h o m e, he would “

j ust kill th e m .”

W h en the men exit e d t he van at the Hong h o m e, Maurt u a saw S ant a na holding a

backpack. Maurtua c o n f ir m ed all three m e n p ut on latex gloves a nd t hat Santana had a

bandana ov e r his f ace. A f ter the m e n j u m

p ed a f ence, Santana unz ip ped the bac k pack

and r e m ov e d a gun. M aurtua was shocked. A s Santana was enter i ng the h o m e w ith

the gun in his hand, Maur t ua observed Hong wa l k b y and l o ok in t heir d irection.

M aurtua heard Hong calling 911 and then h e ard the gu n shots. S a ntana ex i ted t he

h o m e, u nzipped the backpack and pl a c e d the gun i nside of it. He tossed t he back p ack

aw a y as th e y f

led the scene. A f

ter the men reached t h e van, S a ntana said h e shot

Ho n g because s he saw h i m.

DISCUSSION

A. The Banks Case and Its Guidelines

An aid er and abettor to first degree murder , i.e., not the actual killer, is subject to a

penalty of LWOP if the jury finds true one of several special circumstances

. In this

case, the applicable special circumstance is m urder during the commission of a

burglary. Certain rules determine the constitutionality of such punishment if the aider

and abettor did not have the intent to kill. Under these circumstances

, an LWOP

sentence for an aider and abettor is constitutionally permissible only if that person was

a “majo r pa rticipant” in the crime who act ed with “reckless indifference to human

life.” ( Banks

, supra

, 61 Cal.4th at pp. 797

- 798.)

Banks applied these rules to assess whether there was sufficient evidence an aider

and abettor to a murder ( Lovie Matthews) wa s p roperly sentenced to LWOP. ( Banks

,

supra , 61 Cal.3d at pp. 804

- 812.) The evidence d e monstrated Matthews participated in

the burglary of a marijuana dispensary with three confederates, one of whom was Leon

Banks. Matthews was the driver of the car . He d ropped his cohorts off near the7

dispensary and waited approximately thr e e blocks away for about 45 minutes. During

the burglary , Banks shot and killed one of the security guards of the dispensary. Just a

few moments after the shooting, Banks called Matth ews and M atthews responded by

driving toward the dispensary. Matthews was eventually flagged down by two of the

burglars (not Banks) who entered the vehicle. The three men drove off. The police

arrived and captured Banks on foot near the dispensary. ( Id . at pp. 795

- 796, 804

- 805.)

Banks held the evidence that Matthews was a major participant in the offense was

“ insufficient to find the special circumstance true and Matthews eligible for [LWOP]

under state law.” ( Banks

, supra , 61 Cal.4th at p. 805.) I t rejected the notion that he was

a major participant in the offense for the following reasons: “No evidence was

introduced establishing Matthews’s role, if any, in planning the robbery. No evidence

was introduced establishing Matthews’s role, if any, in procuring weapons. . . . [N]o

evidence was introduced that Matthews [or the two men he picked up after the shooting]

had themselves previously committed murder, attempted murder, or any other violent

crime. .

. . During the robbery and murder, Matthews was absent from the scene, sitting

in a car and waiting. There was no evidence he saw or heard the shooting, that he could

have seen or heard the shooting, or that he had any immediate role in instigating it or

could ha ve prevented it.” ( Id . at p. 805 , f n. omitted. ) Banks summed up Matthews ’s

role as “no more that a getaway driver.” ( Ibid .)

Banks then turned to the issue of whether Matthews’s mental state demonstrated a

reckless indifference to human life and applied the following rule: “Reckless

indifference to human life ‘requires the defendant be “ subjectively aware that his or her

participation in the felony involved grave risk of death.”’ [Citations.]” ( Banks

, supra

,

61 Cal.4th at p. 807.) Banks h eld, although there was evidence Matthews knew he was

participating in an armed robbery, “nothing at trial supported the conclusion beyond a

reasonable doubt that Matthews knew his own actions would involve a grave risk of

death.” ( Id. at p. 807 .) As a r esult

, the mens rea component necessary to uphold the8

special circumstance and concomitant LWOP sentence was, like actus reus, also

lacking.

B. The Application of Banks

Unlike Matthews

, Stratis’s participation was far greater than that of a mere

getaway driver. Stratis was involved in substantial planning and participation . He was

contacted by S an t ana the night before the crimes were committed. This contact was not from

any ordinary pe

rson

— Santana was known by his moniker “Vicious” and Stratis considered him

to be “crazy.” Stratis must have reached an agreement with Santana as the following day Stratis

was picked up in a van containing Santana and Maurtua and the three men discussed th e

intended home invasion target

. T hey initially selected the home of Stratis’s foster mother

because Stratis knew t here was a safe inside and wanted to break into it. Santana and the

two men donned latex gloves and exited the van but, because people were seen in the

home, it was Stratis who instructed, “ W e ’ re going to have to c o m e back.”

When they reached the Hong home, the m en o p erated together and att e m p t ed to

avoid i d enti f

icatio n

— Maurtua put on a w h ite bandana, Stratis pulled the hood up on his

sweat s hirt, and all t hree m en w ore latex g l oves. Stra t is and Maurtua j u mped a f en c e

with San t ana and the three m en e n tered H o ng ’s garage t ogether. Stratis was present at

the scene, operated to avoid detection

, and provided security/protection for the shooter.

A f ter gunshots ra n g o u t, Stratis f led with the gunman and l ef t Hong to die.

In sum

, Stratis’s involvement in the crimes greatly exceed that of Matthews.

Stratis participated in planning the home invasion robbery, knowingly teamed up with

a man with the moniker of “ V icious,” took a leadership role by direct ing the group

away fr o m the first target , and was present at the sce n e of the shooting. We turn now

to mens rea.

Some of the same facts illustrat ive of Stratis’s participation in the crimes, also

indicate Stratis knew his actions involved a grave risk of harm to others. Most

importantly , Stratis elected to commit the home invasion robbery with a man known as9

“ V icious” (Santana) and described by Stratis himself as “crazy.” This seemingly

considered sadistic mad man was, certainly to no surprise of anyone, armed with a gun.

Indeed, there was evidence that the gun was visible in Santana’s hand when he entered

the home.

There are other non

- overlapping circumstances indicative of the requisite mens

rea. There was no evidence anyone made any attempt to ensure the home was empty.

To the contrary, the evidence suggested someo n e was in the home

— the gate was open

when the men arrived at the scene and , thereafter, Hong looked through a window, in

the direction of Stratis and Maurtua, just before she was gunned down by Santana.

We have no difficulty distinguishing the mental state of Stratis from that of

Matthews and concludin g that a rational trier of fact could have found Stratis acted

with reckless indifference to human life.10 DISPOSITION

The case is remanded to the trial court for resentencing of Christopher Stratis

pursuant to guidelines set forth in People v. Guiter rez (2014) 58 Cal.4th 1354. In all

other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORT

KUMAR, J. 

We concur:

TURNER, P. J.

KRIEGLER, J.

 Judge of the Superior Court of the County of Los Angeles, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.