People v. Taito CA2/3

Filed 10/26/26 P. v. Taito CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, B337324 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA015316) v. SAFOLOOOI SAM TAITO, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Reversed and remanded with directions. Corey J. Robins, 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, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗  In 1994, a jury convicted appellant Safoloooi Sam Taito of first degree murder with a felony-murder special circumstance and a deadly and dangerous weapon enhancement for stabbing Librado Godoy Lopez in his head with a screwdriver, repeatedly punching and kicking him, and taking his personal property. After the Legislature enacted Senate Bill No. 1437 (2017– 2018 Reg. Sess.), Taito filed a petition for resentencing under Penal Code section 1172.6,1 seeking to vacate his murder conviction. The superior court found Taito failed to make a prima facie showing that he was eligible for relief and denied his petition. In our previous opinion, we affirmed the superior court’s denial of Taito’s petition. We interpreted section 189, subdivision (e)(2) to require the aider and abettor to felony murder act with an intent to kill and aid, abet, or assist the actual killer in the underlying felony at the time the killing occurred, rather than in the killing itself. We concluded that the jury’s true finding on the felony murder special circumstance established Taito’s culpability under section 189, subdivision (e)(2). On January 28, 2026, the California Supreme Court granted review and later transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Morris (2026) 19 Cal.5th 671 (Morris), which held that liability under section 189, subdivision (e)(2) requires that the non-killer aid, abet, or assist the actual killer in the commission of the killing itself, not merely the underlying felony. 1 All further statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 2 We now conclude that the record of conviction does not conclusively establish that Taito aided and abetted the actual killer in the killing itself. Because our previous opinion concluded that Taito was ineligible for relief under section 189, subdivision (e)(2), we did not reach whether the record of conviction established that he was an actual killer. We now address that issue and conclude that the record of conviction does not establish that Taito was the actual killer and ineligible for relief as a matter of law. We reverse the order of denial and remand with directions to issue an order to show cause and hold an evidentiary hearing under section 1172.6, subdivision (d)(3). FACTUAL AND PROCEDURAL BACKGROUND2 1. Facts Taito and codefendant Itiitilogoma “Kiki” Su’e lived in an apartment complex in Long Beach, California. On March 12, 1993, at about 11:30 p.m. to 12:00 a.m., a resident of the complex named Sina O’Brien heard loud music playing in the street. Taito, Su’e, and two others were in the street outside the complex. At 1:00 a.m., O’Brien looked out of her window after hearing glass break. She saw another resident named Librado Godoy Lopez lying in the street. Taito and Su’e were standing over Godoy Lopez, kicking his abdomen and punching his head. They struck Godoy Lopez for 10 to 15 minutes. Taito said, “Get his wallet, get his money.” Su’e looked through Godoy Lopez’s 2 On February 5, 2025, we granted Taito’s request for judicial notice of the record in case No. B091355. The factual and procedural background here, which is not disputed, is drawn from the prior opinion. 3 pockets but did not take anything. Taito took Godoy Lopez’s wallet and keys. O’Brien saw Taito stab Godoy Lopez in the head with an unknown item. After the stabbing, Su’e said, “That’s enough. Let’s get out of here.” Su’e ran and Taito drove Godoy Lopez’s car behind the complex to an alley. Taito returned on foot and kicked Godoy Lopez again and looked in his pockets. O’Brien called 911. The apartment manager, Alameda Tepa,3 also heard noise from the street. She recognized Taito’s and Su’e’s voices. Alameda looked out her window and saw Taito standing next to a car. Taito said, “get in the car, get in the car.” Alameda did not see Su’e or anyone else. Taito entered the car and left. From her front door, Alameda saw Taito return, running back from the alley behind the complex. Taito lifted a man who was lying in the street. Taito reached into the man’s pocket, took something from him, and kicked him multiple times. Loud music and voices also woke Alameda’s husband, Iuta Tepa. From their window, he saw Taito, Su’e, and a man in a white truck. Iuta saw Godoy Lopez enter his car on the other side of the street. He saw either Taito or Su’e pull Godoy Lopez out of his car and hit him. Godoy Lopez fell on the street and Taito and Su’e punched and kicked him. Taito struck Godoy Lopez’s head with an object. Taito and Su’e searched Godoy Lopez. They ran away. Su’e returned and tried to pull the object out of Godoy Lopez’s head. When Taito returned, he entered Godoy Lopez’s car and drove away. 3 Because Alameda Tepa and her husband Iuta Tepa share a common last name, we will refer to them by their first names. 4  When the police arrived, Godoy Lopez was lying on his stomach. He was stabbed in the right temple with a 10-inch screwdriver. The tip protruded out of his head behind the left ear. Godoy Lopez underwent surgery immediately after he was found by the police and taken to the hospital. On March 23, 1993, he was declared brain dead. The next day, he was taken off a respirator and pronounced dead. The autopsy revealed that the cause of death was multiple traumas caused by the penetrating stab wound and blunt force trauma to the head from the beating. 2. Procedure A. The charges, trial, verdicts, and sentence The District Attorney prosecuted Taito and codefendant Su’e on an information filed on May 7, 1993, charging them with murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). The information also charged Taito with first degree burglary (§ 459; count 3), a felony-murder special circumstance (§ 190.2, subd. (a)(17)), and a personal use of a dangerous and deadly weapon enhancement (§ 12022, subd. (b)) as applied to counts 1 and 2. The trial court instructed the jury on first degree murder theories of premeditation and deliberation (CALJIC No. 8.20) and felony murder with robbery designated as one of the qualifying offenses (CALJIC No. 8.21). The court also instructed on principals and direct aiding and abetting (CALJIC Nos. 3.00, 3.01, 3.14) and aiding and abetting felony murder (CALJIC No. 8.27.) The trial court instructed the jury on the felony-murder special circumstance with CALJIC No. 8.81.17, which required finding that the murder was committed while a defendant was 5 engaged in the commission or attempted commission of a robbery and to advance or carry out the robbery. The trial court also instructed the jury with CALJIC No. 8.80.1 on the non-killer’s requisite mental state for the felony-murder special circumstance.4 4 The trial court orally read an edited version of CALJIC No. 8.80.1 as follows: “If you were to [find] the defendant – a defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true. “Murder in the commission or attempted commission of a robbery. “The People have the burden of proving the truth of the special allegation. “If you have a reasonable doubt as to whether it’s true, you must find it to be not true. “Unless an intent to kill is an element of a special circumstance, if you are sat [sic] satisfied beyond a reasonable doubt the defendant actually killed a human being, you need not find the defendant intended to kill in order to find the special circumstance to be true. “If you find a defendant was not the actual killer of a human being or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant, unless you are satisfied beyond a reasonable doubt the defendant, with the intent to kill aided and abetted or counseled or commanded or induced or solicited . . . or requested or assisted in any acts during the commission of the murder of the first degree. 6  The jury convicted Taito of first degree murder (§ 187, subd. (a); count 1) and second degree robbery (§ 211; count 2). The jury found true the felony-murder special circumstance (§ 190.2, subd. (a)(17)) as to count 1 and the personal use of a deadly and dangerous weapon enhancement (§ 12022, subd. (b)) as to counts 1 and 2.5 The jury acquitted Taito of first degree residential burglary (§ 459; count 3). The jury also convicted codefendant Su’e of first degree murder and second degree robbery. On December 15, 1994, the trial court sentenced Taito to state prison for life without the possibility of parole for the first degree murder with the felony murder special circumstance. The court stayed the one-year term for the personal use of a deadly and dangerous weapon enhancement as to count 1. The court imposed the mid-term of three years for the second degree robbery in count 2, plus one year for the personal use of a deadly and dangerous weapon enhancement. On March 31, 1997, the Court of Appeal affirmed Taito’s judgment of conviction. (People v. Safoloooi (Mar. 31, 1997, B091355) [nonpub. opn.].) “And the murder we are talking about is in the commission of the crime of murder [sic]. It’s called 190.2(a)(17), a crime which resulted in the death of a human being, Librado [Godoy] Lopez.” 5 The jury deadlocked as to whether to impose the death penalty and the trial court declared a mistrial. The District Attorney decided to no longer seek the death penalty. 7  B. Section 1172.6 proceedings On August 24, 2021, Taito filed a petition for resentencing under the former section 1170.95, now section 1172.6.6 The superior court appointed counsel to represent him. On January 11, 2022, the District Attorney filed his opposition to the petition and a supplemental opposition. On June 23, 2023, Taito filed a reply. On March 18, 2024, the superior court denied the petition at the prima facie stage without issuing an order to show cause. Taito appealed the superior court’s order. We affirmed, concluding that the jury’s true finding on the felony murder special circumstance established Taito’s culpability under section 189, subdivision (e)(2). On January 28, 2026, the California Supreme Court granted review and later transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Morris, supra, 19 Cal.5th 671. DISCUSSION 1. Changes to the Murder Law Senate Bill No. 1437 amended the substantive law on accomplice liability for murder by narrowing the felony-murder rule and eliminating the natural and probable consequences doctrine as a theory of liability for murder. (People v. Gentile (2020) 10 Cal.5th 830, 842–843, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) 6 Taito submitted that the petition was not in the record and that, after a record omission letter, the petition could not be found. 8 Pertinent for our review, Senate Bill No. 1437 added section 189, subdivision (e), providing felony murder liability only if the defendant was the actual killer, was not the actual killer but, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder, or was a major participant in the underlying felony and acted with reckless indifference to human life. (People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) A defendant convicted under the prior felony murder law can petition to vacate the conviction and be resentenced on any remaining counts, if he could not now be convicted of murder because of the changes made by Senate Bill No. 1437. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708–709 (Strong); Lewis, supra, 11 Cal.5th at pp. 959–960.) Upon receipt of a petition that contains all required information, the trial court must appoint counsel to represent the petitioner, if requested. (§ 1172.6, subd. (b)(3).) The court must also direct the prosecutor to file a response to the petition and permit the petitioner to reply. (Ibid.) If the court determines the petitioner has made a prima facie case for relief, it must issue an order to show cause and conduct an evidentiary hearing. (Id., subds. (c) & (d)(1).) The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) The court takes the petitioner’s factual allegations as true and refrains from factfinding. (Id. at p. 972.) “The record of conviction will necessarily inform the trial court’s prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Id. at p. 971.) Dismissal at the prima facie showing stage requires that the record of conviction conclusively establish the jury made 9 findings on all elements necessary to convict under the current law. (Strong, supra, 13 Cal.5th at p. 708; Curiel, supra, 15 Cal.5th at p. 450.) If the defendant has made a prima facie showing, the court must issue an order to show cause and conduct an evidentiary hearing on his entitlement to relief. (§ 1172.6, subd. (c); Strong, at p. 708; Curiel, at p. 450.) Whether the record of conviction shows the petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question that we review de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) 2. Section 189, subdivision (e)(2) according to Morris Senate Bill No. 1437 amended felony murder liability to require one of three conditions. Section 189, subdivision (e) provides, “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [including robbery] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” The Supreme Court in Morris resolved a split among the Courts of Appeal regarding the interpretation of section 189, subdivision (e)(2) and the actus reus for felony murder liability of a non-killer. (Morris, supra, 19 Cal.5th at p. 693.) The Court held that the language in section 189, subdivision (e)(2) requiring that a defendant who was not the actual killer must have aided, 10 abetted, or assisted the “actual killer in the commission of first degree murder” means that he must have aided, abetted, or assisted the killing itself. It was not referring to aiding, abetting, or assisting the qualifying felony during which the murder occurred. (Morris, at pp. 678, 681–686.) The Court reasoned, “The commonsense meaning of aiding and abetting ‘the actual killer in the commission of murder in the first degree,’ involves aiding or abetting the killing of a human being, and not just aiding another in the commission of an enumerated felony by an act that does not aid in the killing.” (Morris, supra, 19 Cal.5th. at p. 683.) The Court also explained that the opening sentence of section 189, subdivision (e) “already requires participation in a qualifying felony and it then lists three subparts with additional requirements for establishing felony-murder liability.” (Morris, at p. 684.) If subdivision (e)(2) required only aiding and abetting in the underlying felony, it would be redundant of the participation requirement in subdivision (e). (Morris, at p. 684.) Finally, the absence of the phrase “underlying felony” from subdivision (e)(2) indicates that the Legislature intentionally omitted it because it was used elsewhere in section 189. (Morris, at pp. 683–684.) Because of the clarification by Morris, the jury’s true finding on the felony murder special circumstance did not necessarily establish Taito’s liability under section 189, subdivision (e)(2). The trial court informed the jury with CALJIC 8.80.1 that liability for a non-killer required that he, “with the intent to kill[,] aided and abetted . . . or assisted in any acts during the commission of the murder of the first degree.” (Italics added.) This language permitted liability based on aiding, abetting, or assisting “any acts during the commission of the 11 murder” rather than aiding, abetting, or assisting the lethal act itself. 3. Actual killer The Attorney General argues that Morris is distinguishable from Taito’s case because his conviction necessarily reflects that he was convicted as the actual killer. The Attorney General primarily relies on the concession by trial counsel during closing argument that Taito was the actual killer. Trial counsel urged the jury to convict Taito of manslaughter and focused on his lack of intent to commit the robbery underlying the theory of felony murder. The Attorney General also points out that the prosecution proceeded under the theory that Taito was the actual killer based on stabbing Godoy Lopez in the head with a screwdriver. We disagree with the Attorney General’s arguments. The jury was free to reject any concession or theory made by defense counsel. Similarly, a prosecutor’s theory of the case does not constrain the jury from relying on an available alternative theory. (People v. Clark (2011) 52 Cal.4th 856, 947 [“theories suggested by the prosecutor are not the sole theories the jury may consider in making its determination of guilt”]; People v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.”].) The trial prosecutor recognized this. During the jury instruction conference, the prosecutor requested instructions on aiding and abetting, suggesting that the jury may consider applying that theory to evidence against Taito, even if it was not her theory of liability. Because of these possibilities, the question at the prima facie stage is not what theories were asserted, but 12 what the jury necessarily concluded. (Curiel, supra, 15 Cal.5th at p. 467.) The Attorney General next argues that “[t]he jury had to have concluded that [Taito] was the actual killer in order to convict based on the evidence and arguments presented to it, and the jury confirmed that it did so by finding the weapon-use enhancement true.” To establish that Taito was the actual killer, we would need to first determine that stabbing Godoy Lopez in the head with the screwdriver was a cause of death. According to the coroner, the autopsy revealed that Godoy Lopez died from the stabbing injury to his head by the screwdriver, as well as blunt force trauma to his head from the beating. But we would have to credit this testimony to conclude that the stabbing was a cause of death. Second, we would need to determine that Taito was the only person who stabbed Godoy Lopez with a screwdriver. We recognize that the jury’s true finding of the personal use of the deadly and dangerous weapon enhancement reflected that it unanimously concluded that Taito personally used the screwdriver in the commission of the murder. Generally, courts view the true finding of a personal use of a firearm or a weapon enhancement to be insufficient to conclusively establish the requisite culpability as an actual killer. (People v. Jones (2003) 30 Cal.4th 1084, 1120; People v. Garrison (2021) 73 Cal.App.5th 735, 743.) In some cases, the use of a firearm or a deadly weapon can be limited to merely displaying it in a menacing manner, rather than using it to cause the lethal act. (Jones, at p. 1120; Garrison, at p. 743.) To understand the significance of the true finding for the weapon enhancement, we would need to assess the facts and confirm that the personal use was limited to stabbing 13 Godoy Lopez in the head, rather than displaying the screwdriver in a menacing manner. Even if we could conclude that Taito stabbed and did not merely brandish the screwdriver, we cannot determine without factfinding whether Taito was the only person to do so. The witnesses O’Brien and Iuta testified that they saw Taito stab Godoy Lopez in the head with an unknown object. Iuta further testified that he saw Su’e try to remove the object from Godoy Lopez’s head. The true finding for the weapon enhancement alleged against Taito does not conclusively demonstrate that someone else, namely Su’e, did not use the screwdriver, unless we credit the witnesses’ testimony that only Taito stabbed Godoy Lopez and infer that the unknown object was the screwdriver ultimately removed from his head. Although we cannot rule out that Taito was the actual killer, or an aider and abettor under a still valid theory of felony murder, we cannot reach such conclusions without an evidentiary hearing. 14  DISPOSITION We reverse the superior court’s order denying Taito’s resentencing petition. We remand with directions for the superior court to issue an order to show cause and hold an evidentiary hearing under section 1172.6, subdivision (d)(3). NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS HANASONO, J. We concur: ADAMS, P. J. ASHWORTH, J.* * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 15