Filed 5/30/19
                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                   E069088

v.                                                  (Super.Ct.No. INF1401840)

JOSEPH GENTILE, JR.,                                OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of Riverside County. Graham A. Cribbs, Judge.

Affirmed.

        Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant Joseph Gentile, Jr.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Lynne

McGinnis, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and

Respondent.

        A jury convicted Joseph Robert Gentile of first degree murder in connection with

the 2014 beating death of Guillermo Saavedra by means of using a golf club, wooden


                                            1
chair, and a beer bottle. The prosecution’s main witness testified upon a grant of use

immunity, but, depending on which statements the jury believed, she may have actively

participated in the beating using those implements. The jury found untrue an allegation

that defendant used a deadly or dangerous weapon, and he was sentenced to 25 years to

life.

        We reversed that conviction for instructional error pursuant to the Supreme Court

decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), because the jury was instructed

it could convict defendant under a natural probable consequences theory, one of two

theories supported by the evidence, and remanded the matter for the People to decide

whether to accept a reduction to second degree murder, or to retry defendant for first

degree murder under theories other than natural and probable consequences. (People v.

Gentile (Feb. 27, 2017, E064822) [nonpub. opn.](Gentile I).)

        On remand, the People accepted the reduction to second degree murder and

defendant was resentenced to an indeterminate term of 15 years to life. Defendant

appealed again, raising the issues we had left undecided in the first appeal, affirming the

judgment as modified by reducing court facilities assessments. (People v. Gentile (Nov.

15, 2018, E069088 [nonpub. opn.](Gentile II).) Defendant then petitioned for review

arguing that he was entitled to a reversal of his murder conviction pursuant to Senate Bill

No. 1437.

        The California Supreme Court granted review and transferred the case back to us

with directions to vacate our decision filed on November 15, 2018 in defendant’s second


                                             2
appeal, and to reconsider the cause in light of Senate Bill No. 1437, and our

determination in the defendant’s first appeal that it was probable the jury convicted

defendant of murder on the theory he aided and abetted Saundra Roberts in a target crime

that, as a natural and probable consequence, resulted in her murder of the victim. (See

Gentile I, supra, E064822, pp. 12-14.)

       After reconsidering the matter in light of Senate Bill No. 1437, we again affirm.

                                          BACKGROUND

       We take the facts from our previous opinion1, Gentile I, supra, E064822, pages 3-

11, with additions based on subsequent procedural history:

       Objectively Established Facts

       The undisputed facts show that prior to June 21, 2014, Guillermo Saavedra lived

in the back of the La Casita restaurant in Indio, acting as property caretaker and

handyman. On June 23, 2014, at 7:30 a.m., the owner of the property and his son

happened to drive past the restaurant and noticed the lights were on, which seemed

unusual. They entered the restaurant when Saavedra did not respond and found Saavedra

laying on the floor, dead. Outside, in the parking lot, they found Saavedra’s cell phone.

The police were contacted.

       When they arrived at the restaurant, the police found the victim’s body, along with

a broken chair, a golf club, a wooden stick with blood, and a broken bottle near the body.

       1 In a separate section we address the various statements of the witnesses because
the divergent accounts of the offense led to the competing theories of defendant’s liability
for murder.

                                             3
The victim’s cell phone was found in the grass just north of the building. Investigators

documented three sets of bloody footprints, at least one of which was a shoeprint, and

one of which appeared to have been made by a sock or bare foot. Detectives also

collected surveillance videos from the Royal Plaza Inn and from the nearby laundromat.

The police obtained and executed various search warrants after viewing evidence on the

surveillance tapes of the nearby Royal Plaza hotel and the laundromat. After reviewing

those surveillance videos, police officers visited the areas and found a sock on a bush at

the property located between the hotel and the laundromat. The sock appeared to have a

reddish-brown substance on it.

       Also undisputed are certain movements by defendant and his estranged wife,

Saundra Roberts, captured on the surveillance videos. At 1:03 a.m. on June 22, 2014, the

defendant approached the night entrance of the Royal Plaza Hotel in Indio and pressed

the buzzer. Defendant then went to the door of the hotel manager’s apartment, seeking to

rent a room. He appeared intoxicated, so the manager declined to rent him a room,

although defendant and Roberts were regular tenants, renting a room from her two or

three times per month.

       The hotel manager also managed the coin-operated laundry located near the hotel.

Surveillance video from that location showed Roberts talking with her on-again-off-again

boyfriend, Stephen Gardner. Gardner had been contacted by Roberts, who asked him to

bring a pair of shorts, a shirt and socks to the laundromat. Roberts sounded panicked, so

Gardner thought she was in trouble. He took the clothes to the laundromat where he


                                             4
found Roberts with defendant, which made him angry. The defendant appeared to be

wet, and his hands were red.

       The victim suffered multiple fractures of his ribs, collarbone, and parts of the

spinal structure, as well as lung hemorrhage. The injuries would have required

significant blunt force. From the nature of the injuries, the pathologist opined that

multiple blunt impact injuries caused the death. The pathologist also noted that the

victim had coronary disease that may have led to heart failure, as a result of the beating.

The injuries to Saavedra were probably inflicted with fists, a golf club, a beer bottle, and

a chair. The pathologist described the cause of death as a heart attack caused by multiple

blunt force injuries.

       DNA testing of the blood on the sock and the head of the broken golf club

matched the victim, Saavedra. There was also DNA that was consistent with defendant’s

profile as a minor contributor on the sock, as well another person’s DNA, which the

analyst could not identify due to the complex nature of the mixture. A cigarette butt

recovered at the scene contained a mixture of Roberts’ and Saavedra’s DNA. A second

cigarette butt had only one DNA profile, belonging to Saavedra, while a third butt had

defendant’s DNA on it. Swabs from the golf club head were analyzed and found to

contain a mixture of two persons’ DNA, but the profile belonging to Saavedra was the

only one that could be identified. The swab from the golf club grip had DNA from three

people.




                                              5
       In Court and Out of Court Statements

       Roberts gave various accounts of the events. At trial, she testified that she called

defendant for help moving from Stephen Gardner’s residence on Friday, June 21, 2014,

so defendant sent a young man with a truck to move her belongings. She was moving her

belongings to the restaurant at which Saavedra, her dear friend, worked security and

lived. The restaurant was her “safe house” when she was “at odds” with Gardner.

Roberts wanted to introduce defendant to Saavedra because Saavedra wanted to meet

defendant. Saavedra wanted to meet defendant because they both had backgrounds

serving in the Marines. Later, Edward Cordero, one of defendant’s house mates, dropped

defendant off at the restaurant.

       At the restaurant, the three people drank many beers and martinis over the

evening. At one point, Roberts went out to purchase more alcohol, and when she

returned, the defendant and Saavedra were still in conversation. At some point, the two

men raised their voices at each other, but they did not fight. Eventually, Roberts felt both

drunk and like a third wheel, so she left the two men and went to her homeless camp to

sleep it off. When she left, there had not been any fighting.

       In this version, Roberts indicated that she awoke at around 1:00 or 1:30 a.m., and

went to a nearby AM/PM store to buy cigarettes; when she came out she saw defendant

across the street at the Royal Plaza Inn hotel. She saw him walk through the parking lot

and was curious why he had not gone home. Defendant told her he was trying to get a




                                             6
room at the hotel but was unsuccessful. Defendant was dressed in the same clothes he

had worn earlier but his clothes appeared wet.

       For this reason, Roberts contacted Gardner and asked him to bring her some

clothes at the laundromat. Gardner was unaware that Roberts wanted the clothing for

defendant, so he was surprised and angry to see defendant at the laundromat when he

showed up with the items. Gardner brought a pair of shorts, a tie-dyed tee shirt, and a

single sock.2 Later, Roberts went to Gardner’s place but he ran her off because he was

angry. She went back to her homeless camp to sleep and that was the last she saw of

defendant or Gardner.

       Prior to trial, Roberts gave three other and different statements during interviews

with police. In the first pretrial statement, Roberts testified she was living at the

restaurant where Saavedra worked, although her relationship with the victim was purely

platonic. She did not mention defendant sending a young man with a truck to move her

to the restaurant. On Saturday, the defendant called her and wanted to meet with her and

get a room with her, although she said it had been 16 months since she had been with

defendant.3 In this version, Roberts indicated she went to Saavedra’s place, spoke of the

martinis she had made, and discussed how defendant and Saavedra talked about their


       2   Gardner had left one sock in his van when he delivered the clothing.

       3 There is actually some corroboration for this statement, because the hotel
manager testified that defendant had contacted her earlier on June 21, 2014, to reserve a
room for the night. However, the hotel manager indicated that defendant and Roberts
were regular customers.

                                               7
military backgrounds. She described how she went out to buy more alcohol, and that the

next morning, when she saw defendant, he told her he had gotten to a brawl.

       A few days after giving her first statement to police, Roberts was interviewed

again; this time, the officers wanted her to focus on the events of Saturday. Roberts again

told the officers defendant had called her that day, and that she spoke to him in the

morning; when she met up with him, defendant was drunk, belligerent, and not himself.

After ditching defendant following a trip to her storage unit, she met up with him again at

the Jack-in-the-Box, where they got into an argument and went their separate ways.

However, she went with defendant to the Royal Plaza Inn that Saturday before noon.

Then she was dropped off at the La Casita restaurant in a white car. Saavedra had talked

to defendant and invited him over, so defendant showed up at the restaurant at about 8:00

p.m., but Saavedra was not there. Roberts and defendant went to the store to purchase

beer and got into another argument. Roberts returned to the restaurant without defendant,

and Saavedra had returned. Saavedra told her they should go get the defendant if he were

drunk, so Roberts went back and told defendant that Saavedra wanted to meet him.

       In this second interview, Roberts repeated the information about Saavedra and

defendant discussing their military service, Vietnam in particular, when she went out to

purchase more alcohol. When she returned, their voices were raised, but they were not

physical. Roberts left to go to her camp, and defendant stayed at the restaurant. She

awoke at around 1:30 or 2:00 a.m. to go to the AM/PM market, where she saw defendant

across the street at the Royal Plaza hotel. His clothes were soaking wet, he told her he


                                             8
could not find his phone, and said something about getting into a fight. Specifically,

Roberts reported that he had said he had been in a bad fight and that he might have killed

the man, that he had hurt him pretty bad. He also said he needed clothes. Also, during

this second interview, Roberts stated defendant smelled like blood and that she thought

she saw blood on his shoes. However, defendant was wearing sandals, according to the

surveillance videos.

       Roberts was interviewed a third time after the defendant’s arrest. She told officers

she had spoken by telephone with Charolette Sullivan, a long-time friend of defendant’s

and hers. In this interview, officers were again trying to clarify the events of Saturday,

June 21, 2014. In this statement, Roberts told officers she had wanted to keep Saavedra’s

place a secret from defendant, although at trial she stated she wanted to keep it secret

from Gardner.

       Defendant asked his brother for a ride, but his brother declined. According to the

brother’s statement to police (which the brother refuted at trial), defendant told his

brother he had done something bad and needed to leave. Defendant called his house-

mate and coworker Susan Champion that he was leaving and would not be returning,

although she denied this at trial. On Sunday, June 22, 2014, defendant asked his

housemate and coworker Edward Cordero for a ride to Imperial Beach. Cordero

frequently gave rides to defendant, who did not have a car. Cordero dropped defendant

off at Imperial Beach and returned a short time later.




                                              9
       Defendant’s longtime friend, Charolette Sullivan lived in Imperial Beach, and had

invited defendant to visit over the Fourth of July weekend. However, defendant called to

ask if he could come down earlier, and, when Sullivan agreed, defendant arrived that

same day. Defendant appeared to be sad, and his hands appeared swollen, but he did not

immediately mention being in a fight with anyone. He attributed the swelling to arthritis.

       Eventually, defendant disclosed to Sullivan he had gotten into a fight with

someone and had hit him, but that when the victim apologized, defendant stopped.

However, afterwards, defendant stated that Roberts picked up some kind of club and

started swinging at the man. Later, Roberts also called Sullivan, and more or less

confirmed the defendant’s version. Roberts told Sullivan that Saavedra had raped her and

that defendant was upset about it. Roberts said that both defendant and Saavedra got

really drunk and were talking about Marines stuff when Roberts mentioned to defendant

that Saavedra had raped her in that same restaurant. Roberts indicated that she left, and

when she did, the defendant and Saavedra got into a fight. Roberts indicated she went

back later and bleached everything.

       On June 28, 2014, police executed a search warrant of the residence of Sullivan,

where they arrested defendant. In the garage where defendant was staying, there was a

blue backpack and beach bag, along with a piece of paper that had writing on it. In the

backpack, officers found a tie-dyed tee shirt and four Hawaiian shirts.

       Following his arrest, defendant was interviewed. In the interview, defendant

described how Cordero had dropped him off at the La Casita restaurant to meet Roberts,


                                            10
where there was a man (the victim) defendant did not know. Roberts had told defendant

she was staying at the restaurant in exchange for watching the restaurant. Roberts told

defendant that the other man present had been raping her. The man admitting raping

Roberts and said he was sorry. Defendant struck the man three or four times in the face,

using his hands. Roberts then said that the man would never rape her again and began

hitting the victim with a club or what appeared to the defendant to be a sledgehammer.

Defendant took the object away from Roberts, but she retrieved it and resumed hitting the

victim. Defendant took the weapon away a second time, threw it on the ground, asked

her what she was doing, and then left. Defendant denied ever striking the victim with a

weapon.

       Legal Proceedings

       Defendant was charged with one count of premeditated murder (Pen. Code, § 187,

subd. (a))4, along with personal use of a deadly weapon (§ 12022, subd. (b)(1)), and one

prison prior. (§ 667.5, subd. (b).) Following a jury trial, defendant was convicted of first

degree murder, but the jury did not make a true finding as to the weapon use allegation.

The prison prior was dismissed, and defendant was sentenced to an indeterminate term of

25 years to life in prison. He appealed.

       On February 27, 2017, in Gentile I, we reversed the conviction for first degree

murder based on the California Supreme Court case of People v. Chiu (2014) 59 Cal.4th

155, and remanded the matter to the trial court for the People to elect whether to retry

       4   All further statutory references are to the Penal Code unless otherwise indicated.

                                              11
defendant or accept a reduction in the degree of the offense, without reaching the

remaining issues. On remand, the People accepted the reduction to second degree

murder, and defendant was resentenced to an indeterminate term of 15 years to life.

Defendant objected because there were five issues unaddressed.

       Defendant filed his second appeal, raising the issues that had been left undecided

in Gentile I. On November 15, 2018, we affirmed the judgment, but modified the

sentence to reduce the court facilities assessments that were imposed. (Gentile II, supra,

E069088.) Defendant petitioned the California Supreme Court for review, seeking a

determination that the provisions of Senate Bill No. 1437 applied retroactively to cases

not final on appeal.

       On March 13, 2019, the Supreme Court granted review, transferred the matter to

this court with directions to vacate our decision and reconsider the cause in light of

Senate Bill No. 1437 (eff. Jan. 1, 2019) and our holding in the first appeal that it was

probable the jury convicted defendant of murder on the theory that he aided and abetted

Saundra Roberts in a target crime that, as a natural and probable consequence, resulted in

her murder of the victim.

                                           DISCUSSION

       In the first appeal, defendant relied on Chiu, supra, 59 Cal.4th 155, to argue that

his first degree murder conviction should be reversed because the jury was instructed on

an impermissible natural and probable consequences theory of liability. At trial, the jury

had been instructed that it could convict defendant of first degree murder if it concluded


                                             12
defendant directly committed the murder, or if it found he aided and abetted the

perpetrator (Roberts) in committing the murder. As to this second theory, the jury was

further instructed that he could be convicted of first degree murder if he committed an

aggravated assault on the victim (former § 245, subd. (a)(1)), while the coperpetrator

committed an assault with a deadly weapon, and the victim died as a natural and probable

consequence of the assault with a deadly weapon. (Gentile I, supra, E064822, p. 12.)

We agreed this was error in reversing and remanding. We are now charged with

determining whether the same error requires reversal of the second degree murder

conviction. We conclude the second degree murder conviction is proper.

       In Chiu, the Supreme Court held that a defendant cannot be found guilty of first

degree murder under the natural and probable consequences theory of accomplice

liability. (Chiu, supra, 59 Cal.4th p. 166.) However, the Supreme Court did not hold that

an aider or abettor could never be convicted of murder; it simply limited liability for first

degree premeditated murder to offenders whose convictions were based on direct aiding

and abetting principles. (Ibid.) As for aiders and abettors convicted under the natural

and probable consequences theory, the Court held that punishment for second degree

murder is commensurate with a defendant’s culpability for aiding and abetting a target

crime that would naturally, probably, and foreseeably result in a murder. (Ibid.)

       Based on the reasoning of Chiu, we agreed that reversal was required in Gentile I,

because the jury instructed on alternative theories of liability, one of which was improper:

On one hand, according to the instructions and Roberts’ testimony, the jury could


                                             13
conclude the defendant directly and personally killed the victim and that Roberts was an

accomplice after the fact. (Gentile I, supra, E064822, p. 11.) On the other hand, the jury

could conclude defendant committed an aggravated assault while aiding and abetting

Roberts’ assault with a deadly weapon, the natural and probable consequences of which

was to cause the victim’s death. (Id., at p. 12.) Reversal was required because we could

not discern whether the conviction was based on a valid or invalid theory.

       In the meantime, after the decision in Gentile I, and before Gentile II was decided,

the Legislature passed Senate Bill No. 1437, amending the provisions of section 189 to

add subdivision (e), in response to Chiu. After we filed our opinion in Gentile II,

defendant requested by letter that we allow supplemental briefing on the retroactive

applicability of Senate Bill No. 1437, which had not yet gone into effect, to his second

degree murder conviction. (See In re Estrada (1969) 63 Cal.2d 740, 742; see also,

People v Martinez (2019) 31 Cal.App.5th 719, 728.) We treated the letter as a petition

for rehearing, but we declined the request as premature because Senate Bill No. 1437

would not go into effect until January 2019.

       The amendment to section 189 provides, “(e) A participant in the perpetration or

attempted perpetration of a felony listed in subdivision (a) 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


                                              14
major participant in the underlying felony and acted with reckless indifference to human

life, as described in subdivision (d) of Section 190.2.”

       In adopting this amendment, the Legislature indicated its purpose: “This bill

would require a principal in a crime to act with malice aforethought to be convicted of

murder except when the person was a participant in the perpetration or attempted

perpetration of a specified felony in which a death occurred and the person was the actual

killer, 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, or the person was a major participant in the underlying

felony and acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, Sen.

Bill No. 1437.) It only intended to prohibit murder convictions where the participant was

not the actual killer or a direct aider or abettor of the murderer. (Ibid.)

       In construing the amendment, we follow well settled principles governing

statutory interpretation. “‘“Our role in construing a statute is to ascertain the

Legislature’s intent so as to effectuate the purpose of the law. [Citation.]’” [Citations.]”

(People v. Canty (2004) 32 Cal.4th 1266, 1276.) If the language is clear and

unambiguous, then we need go no further. (Ibid.) “‘“We select the construction that

comports most closely with the apparent intent of the Legislature, with a view to

promoting rather than defeating the general purpose of the statute, and avoid an

interpretation that would lead to absurd consequences.” [Citation.]’ [Citation.]”




                                               15
(People v. Hagedorn (2005) 127 Cal.App.4th 734, 741.) Defendant does not argue that

the terms of the amendment are vague or ambiguous, so we do not tarry there.

       In his supplemental letter brief, defendant argues that the amendment to section

189, “has now eliminated all murder liability, including second degree murder liability,

based on the natural and probable consequences doctrine.” We disagree. This argument

proposes a construction of section 189, subdivision (e), which is contrary to the plain

language of the statute, misconstrues the holding in Chiu, and would lead to absurd

results.

       As indicated, Chiu made clear that second degree murder liability is proportional

to the culpability of an aider and abettor under the natural and probable consequences

doctrine. (Chiu, supra, 59 Cal.4th at p. 166.) Additionally, the plain language of section

189, subdivision (e), expressly provides for murder liability in situations in which the

defendant is the actual killer, or where the defendant was a “major participant” within the

meaning of section 190.2, subdivision (d). That subdivision authorizes imposition of the

death penalty or imprisonment for life without possibility of parole for “every person, not

the actual killer, who, with reckless indifference to human life and as a major participant,

aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission

of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of

some person or persons.”

       Contrary to defendant’s interpretation, section 189, subdivision (e) does not

eliminate all murder liability for aiders and abettors. To the contrary, the amendment


                                             16
expressly provides for both first and second degree murder convictions under appropriate

circumstances. Defendant’s construction would therefore conflict not only with the plain

language of the statute, but also with the holding of Chiu, which also held that “[a]iders

and abettors may still be convicted of first degree premeditated murder based on direct

aiding and abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 166-167, citing People

McCoy (2001) 25 Cal.4th 1111, 1117–1118.) Considering the statement in Chiu, holding

that under the natural and probable consequences theory, punishment for second degree

murder is commensurate with a defendant’s culpability, neither the Supreme Court nor

the Legislature intended to relieve an aider-abettor entirely of liability for murder.

       At a minimum, after reviewing the record, we conclude that defendant in this case

was a direct or active aider and abettor. He actually delivered serious blows with his fists

and feet to the victim at the urging of Roberts, and in one statement expressed fear that he

may have killed the victim. His hands were swollen when he arrived in Imperial Beach,

consistent with a beating by fists. Even if the jury believed defendant’s testimony—that

after his own beating of the victim he left the scene when Roberts began beating the

victim with a deadly or dangerous weapon—the killing would have been the result of

defendant’s aggravated assault committed while directly aiding or abetting Roberts’

assault with a deadly weapon.

       In other words, he directly aided and abetted the murder of the victim by beating

and now stands properly convicted of second degree murder. We addressed the

problematic instruction that allowed the jury to find him guilty of first degree murder


                                             17
under the natural and probable consequences theory in Gentile I. The People thereafter

accepted a reduction of degree to second degree murder, obviating any prejudice from the

erroneous instruction. The amended provisions of section 189, subdivision (e), did not

prohibit this result, and the conviction for second degree murder is commensurate with

defendant’s culpability and conforms with the legislative intent underlying Senate Bill

No. 1437 and the holding of Chiu.

        The People argue that defendant is not entitled to have the merits of a Senate Bill

No. 1437 claim in this appeal because he must first raise that claim in the trial court by

way of a petition pursuant to Penal Code section 1170.95. There is some support for this

petition. (See People v. Carter (2019) 34 Cal.App.5th 831,835; People v. Anthony

(2019) 32 Cal.App.5th 1102,1147; People v. Martinez (2019) 31 Cal.App.5th 719, 724-

728.)

        However, none of those decisions were the result of a transfer from the California

Supreme Court with directions to reconsider the cause in light of Senate Bill No. 1437.

For this reason, as well as reasons of judicial economy, we reach the merits and confirm

our prior conclusion in this case (Gentile II, E069088, p. 3, fn. 2), that defendant was, at a

minimum, an active aider-abettor who is not entitled to vacation of his murder

conviction.




                                             18
                                 DISPOSITION

     The judgment is affirmed.

     CERTIFIED FOR PUBLICATION
                                               RAMIREZ
                                                         P. J.


We concur:

McKINSTER
                       J.

CODRINGTON
                       J.




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