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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B229255

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA083187)
         v.

CHRISTOPHER STRATIS et al.,

         Defendants and Appellants.



         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 Maurtua, 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
Plaintiff and Respondent.
       In 2013, this court 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 there 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 improperly imposed a parole revocation fine.
       We reversed Stratis’s sentence of LWOP and remanded the matter for
resentencing with adherence to the guidelines set forth in Miller v. Alabama (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 Maurtua 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 General and Stratis. Thereafter, the Supreme Court transferred review to this
court 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 aider 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 committed 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 California’s sentencing scheme such that it “requires a trial court, in 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.)
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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 light 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
resentencing.


                                        THE EVIDENCE3


         A.       A Home Invasion Robbery is Planned and Executed
             Christopher Santana told Christine Alegre (Victor Maurtua’s cousin) that he
    wanted to invade the Hong home when the occupants were present and that he had
    been watching the home for a while. He explained his ex-girlfriend lived in the home
    but expressed concern that her brother was “kind of buff.” Santana suggested
    committing the robbery while his ex-girlfriend and her brother were home—he
    indicated he could tie up the brother and place him in a closet with his ex-girlfriend.
             On March 19, 2008, Alegre and her friend Magali Fernandez were picked up at
    Alegre’s home by Santana and Maurtua. Santana was driving a van. They
    proceeded to Ontario to pick up Christopher Stratis. On the trip home the three men
    spoke about committing a home invasion robbery.
             Santana stopped the van near the home of Stratis’s foster mother in Duarte.
    Stratis wanted to break into the safe in the home. The three men got out of the van and
    put on latex gloves. One of them was carrying a backpack. They abandoned their plan
    when they noticed people were home. Stratis said, “We’re going to have to come
    back.”


3
       This section is lifted verbatim from our opinion in People v. Christopher Stratis et
al, B229255.
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       Santana drove the van past the Hong home. A car was exiting the driveway.
Santana commented: “[O]h, this is the house. . . . [L]ook how big this house is.”
Santana said, “Okay, we’re going to do this right now because the gate is open.”
The three men exited the van. Santana took a backpack containing a Glock .40-
caliber semiautomatic handgun and covered his face with a bandana. Stratis
covered his head with the hood of his black sweatshirt. All three men put on latex
gloves.
       The three men entered the garage of the Hong home. Santana continued inside
the house while Stratis and Maurtua stayed in the garage. Shots were fired in the
home— Santana had shot Hong three times while she was speaking to a 911 operator.
One of her wounds was “rapidly” fatal. The men fled the scene.
       Alegre had driven the van away but returned to pick up the men when she
received a phone call from Santana. Stratis was quiet and remained calm for the
remainder of the day. Santana got into the driver’s seat of the van and drove it past the
Hong home. They observed an ambulance and police cars. Alegre asked, “Did you
hurt somebody?” Santana replied, “What do you think?”
       The group stopped by Santana’s home. The three men exited the van and
returned a few minutes later. Alegre asked Santana, “Who did you shoot?” Santana
responded, “Some bitch.” The group proceeded to Maurtua’s residence where they sat
in the backyard for a brief time.
      With the assistance of a police dog, officers followed defendants’ trail to a road
nearby the Hong home. They recovered two pairs of surgical booties, discarded
clothing including a black hooded sweatshirt, and a backpack containing a loaded Glock
.40- caliber semiautomatic handgun and a crescent wrench.




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     B.     The Police Interviews of Stratis and Maurtua
       Maurtua and Stratis were interviewed by police detectives. Their interviews
were played for their respective juries only. A summary of the relevant portions of the
interviews follows.


            1.        Stratis
       Stratis referred to Santana by his moniker “Vicious” and said Santana was
“crazy” given the “way he looks and the way he acts towards people.” Stratis was
contacted by Santana the night before the home invasion robbery and agreed to do a
“house lick,” i.e., a home invasion robbery.
       They initially stopped near a house in Duarte. The men exited the car with
gloves on but abandoned the idea of going into the house because a female was
observed in the window and there was a daycare next to the home.
       When they reached the Hong home, Maurtua provided Stratis with gloves.
Santana had a backpack. Stratis had the hood to his sweater over his head. The
three men jumped over a wall and entered the Hong garage through a side door.
Stratis heard gunshots and fled. His two companions caught up to him and the three
men jogged to a dead end street. The men discarded many items during their flight—
Santana threw his backpack, Maurtua dropped the gloves and Stratis took off his black
“hoodie” sweater. Santana called one of the girls in the van. The van arrived, the
men entered it, and Santana drove it away.


            2.        Maurtua
       Maurtua knew Santana was associated with an El Monte criminal street gang and
had the moniker “Vicious.” Prior to committing the crime at the Hong residence,
Santana spoke to Maurtua about Santana’s participation in home invasion robberies.
Santana described the crimes as “[J]ust freakin’ simple.” Santana said he had been to a
party at the Hong home and that it was a “big house.” He explained the girl who lived

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there had a brother who was “kind of buff” but that, if the girl and the brother happened
to be home, he would “just kill them.”
       When the men exited the van at the Hong home, Maurtua saw Santana holding a
backpack. Maurtua confirmed all three men put on latex gloves and that Santana had a
bandana over his face. After the men jumped a fence, Santana unzipped the backpack
and removed a gun. Maurtua was shocked. As Santana was entering the home with
the gun in his hand, Maurtua observed Hong walk by and look in their direction.
Maurtua heard Hong calling 911 and then heard the gunshots. Santana exited the
home, unzipped the backpack and placed the gun inside of it. He tossed the backpack
away as they fled the scene. After the men reached the van, Santana said he shot
Hong because she saw him.


                                      DISCUSSION


     A.      The Banks Case and Its Guidelines
     An aider 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 murder 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 “major participant” in the crime who acted 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) was properly sentenced to LWOP. (Banks,
supra, 61 Cal.3d at pp. 804-812.) The evidence demonstrated 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 dropped his cohorts off near the

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dispensary and waited approximately three 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 Matthews and Matthews 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.) It 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 have prevented it.” (Id. at p. 805, fn. 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 held, 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 result, the mens rea component necessary to uphold the



                                             7
 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 Santana the night before the crimes were committed. This contact was not from
any ordinary person—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 the
intended home invasion target. They initially selected the home of Stratis’s foster mother
because Stratis knew there 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, “We’re going to have to come back.”
        When they reached the Hong home, the men operated together and attempted to
 avoid identification—Maurtua put on a white bandana, Stratis pulled the hood up on his
 sweatshirt, and all three men wore latex gloves. Stratis and Maurtua jumped a fence
 with Santana and the three men entered Hong’s garage together. Stratis was present at
 the scene, operated to avoid detection, and provided security/protection for the shooter.
 After gunshots rang out, Stratis fled with the gunman and left 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 “Vicious,” took a leadership role by directing the group
 away from the first target, and was present at the scene of the shooting. We turn now
 to mens rea.
        Some of the same facts illustrative 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 as

                                               8
“Vicious” (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 someone 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 concluding that a rational trier of fact could have found Stratis acted
with reckless indifference to human life.




                                            9
                                     DISPOSITION
       The case is remanded to the trial court for resentencing of Christopher Stratis
pursuant to guidelines set forth in People v. Guiterrez (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.
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