California Court of Appeals, Second District, Fifth Division
PROCEEDINGS; petition for writ of habeas corpus. Los Angeles
County Super. Ct. No. TA087610 William R. Chidsey, Judge.
Matthew Alger, under appointment by the Court of Appeal, for
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.
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 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
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the judgment of conviction in an unpublished opinion,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)
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.”
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
purposes of our analysis, we repeat the factual background
set forth in our unpublished opinion in Loza:
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.
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.
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
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
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.'
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.
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.
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
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.
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
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.
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.
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 ...