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In re Loza

California Court of Appeals, Second District, Fifth Division

March 24, 2017

In re ADAM LOZA, on Habeas Corpus.

         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Los Angeles County Super. Ct. No. TA087610 William R. Chidsey, Judge. Petition denied.

          Matthew Alger, under appointment by the Court of Appeal, for Petitioner.

          Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Respondent.

          KIN, J. [*]


         A jury convicted petitioner Adam Loza of two counts of first degree murder and two counts of attempted robbery. The jury found true the Penal Code section 190.2[1] special circumstance allegations that the murders were committed while petitioner was engaged in the attempted commission of a robbery or burglary. In accordance with the section 190.2 robbery/burglary special circumstance findings, the trial court sentenced petitioner to consecutive prison terms of life without the possibility of parole on his murder convictions.

         On direct appeal, petitioner argued, among other things, that insufficient evidence supported the jury's robbery/burglary special circumstance findings. We affirmed the judgment of conviction in an unpublished opinion, People v. Loza (May 7, 2010, B212250) (Loza).

         In 2015, the California Supreme Court held in People v. Banks (2015) 61 Cal.4th 788 (Banks) that, under section 190.2, subdivision (d), an aider and abettor of felony murder who lacks the intent to kill may be sentenced to a term of life without the possibility of parole only if the aider and abettor was a “major participant” in the crime and acted with “reckless indifference to human life.” Relying on Banks, petitioner filed a petition for writ of habeas corpus in the Supreme Court challenging the sufficiency of the evidence supporting the jury's robbery/burglary special circumstance findings. Citing Banks, the Supreme Court ordered the Secretary of the Department of Corrections and Rehabilitation to show cause in this court “why petitioner is not entitled to the relief requested.”

         Having reviewed the record in light of our Supreme Court's most recent guidance (namely Banks, supra, 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 (Clark)) concerning a defendant aider and abettor's culpability along the so-called Enmund-Tison continuum (Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison)), we hold that sufficient evidence supports the jury's section 190.2 robbery/burglary special circumstance findings in this case. Accordingly, we deny the petition for writ of habeas corpus.


         I. Factual Background

         For purposes of our analysis, we repeat the factual background set forth in our unpublished opinion in Loza:

         “During the early morning hours of November 4, 2006, [petitioner] was riding around in a red Ford Explorer driven by co-defendant Julio Perez. [Fn. omitted.] Co-defendant Eric Sanford, Gilbert Rivera, Christopher Perez (‘Christopher') and Sara Graeff were passengers. Christopher is Julio Perez's brother. He was dating Graeff at the time. They had been drinking beer.

         “At some point, Perez saw co-defendant Sanford and stopped the car. [Fn. omitted.] Sanford came up to the Explorer and said, ‘I just shot someone in the head. Let me in the car. Let me in the car.' The occupants of the Explorer thought Perez was kidding. Sanford got into the Explorer. At some point, he put the gun in the back of the Explorer.

         “There was a discussion about stealing some beer. Sanford stated: ‘Let's go get some beer, I'm down, I'm down.' [Petitioner] stated that he would hold the door for Sanford.

         “About 4:00 a.m., Perez drove to a Mobil service station located at 22240 Avalon Boulevard in Carson (hereafter ‘Mobil'). The Mobil was open 24 hours a day and consisted of a gas station, automotive repair garage, and a Mobil mini convenience store. The Mobil sold beer, but the beer coolers were locked from 2:00 a.m. to 6:00 a.m. At 4:05 a.m., [co-defendant] Perez purchased five dollars worth of gasoline. At 4:07 a.m., [co-defendant] Perez pumped the gasoline. He then drove the Explorer to the side of the Mobil.

         “[Petitioner], Perez and Sanford got out of the Explorer. Perez gave a sweater to [petitioner], who put it around his head. Graeff told police that [petitioner] gave the gun to Sanford. [Petitioner] and Sanford walked towards the Mobil. Perez stayed behind inside the Explorer. About three minutes later, Sanford and [petitioner] ran back and got inside the Explorer. Perez drove away. [Petitioner] was hysterical and yelling, ‘You just shot them. You just shot them. You just shot them. I can't believe you just shot them.' Someone said to Sanford: ‘You shot them? Did you really shoot them?' Sanford stated, ‘I counted down, and I told them to give me their money, and they didn't-they didn't give it to me fast enough, so I shot them.'

         “At 5:00 a.m., Ronald Hasty, the owner of the Mobil, went to the Mobil. There, he found the front door unlocked. Hasty looked for his two employees, Eduardo Roco and Ester Ortiega, who had been working the overnight shift. Roco had been working at the Mobil for a ‘few years, ' and primarily worked the overnight shift. Ortiega had been working at the Mobil for a couple of weeks and was being trained by Roco.

         “Hasty did not see Roco and Ortiega. The window of the bullet proof glass booth was open about 24 to 30 inches. The cash register was inside this booth. Hasty walked to the clear bullet proof glass door of the booth and saw Roco and Ortiega lying dead on the floor. Hasty called 911.

         “Los Angeles County Deputy Sherriff Tanya Brown responded to the call. Deputy Brown observed that the Mobil's cash register was enclosed in a bullet proof glass booth, but the window to the booth was open. Behind the cash register, Roco and Ortiega were lying, dead. On the counter, there were three ‘Slim Jims' and a pack of ‘Apple Sour Candies.'

         “Roco had suffered a rapidly fatal gunshot wound to the chest with an exit wound in his back. Ortiega had suffered a rapidly fatal gunshot wound to her upper left back with the bullet in the right side of her chest.

         “Fingerprints were taken from the Slim Jims and Sour Apple gummy candies. Five latent prints were found on the Slim Jims. Sanford's left middle fingerprint matched a print found on one of the Slim Jims.

         “On November 11, 2006, [petitioner] was interviewed by Los Angeles County Sheriff's Detective Dan McElderry and Sergeant Ken Perry. [Petitioner] stated that when Sanford first got into the Explorer, he showed them a revolver. Perez told Sanford to put the gun in the back of the Explorer and he complied. At the Mobil station, after Perez purchased gas, [petitioner] suggested that they do a beer run. Sanford stated: ‘You gonna buy a beer, man you might as well just go in and rob them.' [Petitioner] agreed to hold the door open for Sanford.

         “[Petitioner] said that he ‘always comes over here to this gas station' and that the clerk knew him and his family. Perez told [petitioner] to take his shirt. [Petitioner] used this shirt to cover his head. Sanford said to [petitioner]: ‘I'm going in there, you just hold the door.' [Petitioner] waited outside the Mobil for about one minute, then went inside. He saw Sanford walk up to the register and say: ‘Give me the money.' The male clerk said: ‘[T]here's no money. There's a drop safe.' Sanford said: ‘Man, you got five seconds.' The male clerk said: ‘Shoot me.' [Petitioner] heard ‘two soft little pops.' Sanford said: ‘Let's get out of here. Let's get out of here.' They ran back to the Explorer and got inside. The Explorer drove off.

         “Sanford testified in his own defense at trial. He went into the Mobil to buy something to eat. He did not have a gun. As he was walking toward the Mobil, he asked the occupants of the Explorer whether they wanted anything. He saw Perez hand [petitioner] a shirt. While Sanford was in the Mobil buying food, [petitioner] came in the store and ordered the clerks to give him money out of ...

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