People v. Smith CA2/1 ( 2023 )

Filed 3/1/23 P. v. Smith CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317371
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A762389)
v.
RODNEY TOMMY SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Shelly B. Torrealba, Judge. Affirmed.
Richard D. Miggins, 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, Daniel Chang and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Defendant Rodney Tommy Smith was convicted in 1985 of
second degree murder in connection with a gang related drive-by
shooting. The conviction was later affirmed on direct appeal. In
2019, defendant filed a petition to be resentenced under former
Penal Code section 1170.95.1 The trial court appointed counsel
for defendant, held an evidentiary hearing, and after hearing
argument denied the petition.
Defendant now appeals the denial of his resentencing
petition. Defendant contends the trial court applied an incorrect
standard of proof, did not act as an “independent factfinder,”
considered inadmissible evidence, and erred in using a theory of
criminal liability not relied upon at his original trial. Defendant
further argues substantial evidence does not support the trial
court’s factual findings. We find no merit in any of defendant’s
contentions and affirm the denial of the resentencing petition.
FACTUAL BACKGROUND
A. The Offense Conduct
We take the following facts from the transcript of
defendant’s trial. In January 1985, defendant (who was also
known as Snowman) was 19 years old and a member of the Crips
street gang. On the afternoon of January 30, 1985, defendant
1 Unspecified statutory references are to the Penal Code.
After the proceedings in the trial court, the Legislature
renumbered section 1170.95 as section 1172.6, with no change in
the text of the statute (Stats. 2022, ch. 58, § 10, eff. June 30,
2022). For the sake of clarity given that the law was codified at
former section 1170.95 at the time of the trial court proceeding,
we (as the parties likewise do in their briefs) refer to the statute
by its former number.
2
was on foot in rival gang territory near the intersection of 46th
Street and Crenshaw Boulevard in Los Angeles. Coming around
the corner, defendant encountered Deradous Harris walking with
some friends. Before Harris and his friends could react,
defendant said, “Now what’s up” and fired four shots from a
distance of 25 to 30 feet. A bullet struck Harris above the left
ankle, passing through his leg.
Two days later, on the afternoon of February 1st, defendant
was driving his car near the intersection of 48th Street and 9th
Avenue in Los Angeles. This neighborhood was in territory
claimed by a rival gang. While driving on 9th Avenue, defendant
stopped the car and fired a single shot towards Willie Rubin,
Andre West and Maurice McIntosh. No one was struck and
defendant drove away.
On the night of February 2nd, Rubin and Marvin McIntosh
(Maurice McIntosh’s brother)2 were outside a home on 9th
Avenue when they saw a car turn onto the street. The car slowed
down and its headlights were turned off. Because the car looked
suspicious, Rubin and Marvin ducked behind a car parked in the
driveway. The car drove past them and stopped. Rubin
recognized defendant as the driver of the car. Two shots were
fired from the car, after which Rubin heard someone from the car
say “cuz”—a word indicating hostility to the Bloods gang
members. One of the shots struck Marvin in the head; he died as
a result of the gunshot wound. After the shots were fired
defendant “just took off across 48th [Street]” and kept going.
2 Because Marvin and Maurice share the same surname,
we use their first names to avoid confusion and not out of any
disrespect.
3
Earlier that night, prior to the shooting, Ronnie Luke saw
defendant and Rogelio “Loco Doc” Cordoba leave in defendant’s
car. Defendant returned alone and told Luke that he and
Cordoba had gone “riding” in the “Fifties’ hood,” referring to
territory of the Fifties Blood gang, and that he and Cordoba “had
just shot at some bloods down on 9th Avenue.” According to
defendant, he and Cordoba “drove by on the street” and Cordoba
yelled “Harlem Crips Rollin’ Thirties” before firing. Luke told
defendant that it was “stupid to do that in his car and that he
and Loco Doc [Cordoba] were going to get in trouble,” to which
defendant responded, “Well, they shouldn’t be blasting at us all
the time.”
After this conversation with defendant, Luke got in his car
and drove by the neighborhood to which defendant had referred.
When there, Luke saw “the ambulance and the police cars and
stuff like that.” The next morning Luke was present when
someone told defendant that “M Bone [Marvin] was dead,” to
which defendant answered, “then Loco Doc [Cordoba] is in
trouble.”
On the afternoon of February 6, 1985, Los Angeles Police
Department Detective Jerry Johnson interviewed Cordoba at the
77th Street Division station. In response to questions,3 Cordoba
stated that he was riding with defendant in defendant’s car on
the evening of February 2nd when they were fired on by rival
gang members in the 4900 block of 9th Avenue. According to
3 The court admitted Cordoba’s statements only as to
Cordoba; the court sustained a hearsay objection to their
admission as to defendant. We set forth these statements to help
explain both parties’ closing arguments and defendant’s claim of
self-defense.
4
Cordoba, defendant stopped the car, backed up a few feet, and
told Cordoba to “buss on them,” meaning to “shoot at them,” with
a .38 caliber revolver that defendant handed to Cordoba.4
Defendant encouraged Cordoba to shoot, telling him, “don’t be a
mark”—that is, not to be a coward. Cordoba told Detective
Johnson “that he leaned out or crawled partially out of the
passenger window and fired the weapon over the top of the car in
the direction of where the victim and persons were standing in
front of the residence.”
B. Defendant’s Trial
Defendant was charged with one count of first degree
murder (§ 187, subd. (a)) for the killing of Marvin and one count
of assault with a deadly weapon for shooting at Rubin on
February 2, 1985 (§ 245, subd. (a)(2)). In addition, defendant was
charged with three counts of assault by means of force likely to
produce great bodily injury for shooting at Harris on January 30,
1985, and at Rubin and West on February 1, 1985. Cordoba was
also charged.
Defendant and Cordoba waived a jury and the court tried
them together. The People called as witnesses Luke, Harris,
Maurice, Rubin and Detective Johnson, who all testified to the
events summarized above. In addition, the parties stipulated
4 Detective Johnson could not recall the exact point in the
sequence of events when defendant gave Cordoba the revolver.
Johnson testified that Cordoba told him “that after the group in
front of the house fired at them, [defendant] stopped the car. And
I don’t recall if he said at that point [defendant] gave him the
gun, or if [defendant] backed up and then gave him the gun. I
don’t recall. But, at some point, either before or after [defendant]
backed the car up, Cordoba was given a gun by [defendant].”
5
that a forensic pathologist, Dr. Bolduck, performed an autopsy on
Marvin and determined his cause of death was a gunshot wound
to the head.
Neither defendant testified. The parties stipulated that the
sole defense witness, Kendall Turner, would testify that he
“heard a pop, which he described as a small caliber gunshot,”
followed by “two loud bangs, which he recognized as large caliber
gunshots,” after which he saw defendant’s car leaving the scene.
Citing Turner’s testimony that Cordoba fired after being
fired upon, defendant argued that the February 2, 1985 shooting
was “a classic case of self-defense.” The People argued that
defendant aided and abetted Marvin’s murder: “This is a
planned hunt, in essence. They’ve turned the lights out as
they’re cruising down the streets looking for a potential victim.”
The prosecution also disputed the claim of self-defense: “Even if
we accept . . . Cordoba’s statement that he was fired upon first,
what happened in this case was that shots were fired, and . . .
defendant . . . stopped the car, put the car in reverse and backed
it up to approach to get closer to the intended victims in this case.
This was not a self-defense situation. What happened was they
stopped the car and backed up so they could be closer to the
victims.”
The trial court acquitted defendant of first degree murder,
but found him guilty of second degree murder as well as guilty on
the assault counts.5 The court also found true special allegations
relating to firearm use. For the murder of Marvin, the court
sentenced defendant to 15 years to life in state prison plus an
additional year for the use of a firearm, for a total of 16 years to
5 The court also convicted Cordoba.
6
life. On the count of assault with a firearm on Rubin, the court
sentenced defendant to the middle term of three years, to run
consecutively with the life term. On the remaining counts, for
shooting at Harris on January 30, and at Rubin and West on
February 1, the court sentenced defendant to the middle term of
three years, running concurrently with his sentence on the
murder charge.
In an unpublished opinion, a panel of this court affirmed
defendant’s conviction. (People v. Cordoba et al. (June 30, 1988,
B019212).) Defendant later filed a habeas corpus petition in the
Los Angeles Superior Court; that court denied the petition in
2016. (In re Rodney Tommy Smith (Aug. 11, 2016, A762389.)
C. Defendant’s Petition for Resentencing
On January 4, 2019, defendant filed a petition for
resentencing under former section 1170.95. Defendant’s petition
alleged that he had been convicted of second degree murder
pursuant to the felony-murder rule or the natural and probable
consequences doctrine and that he could not now be convicted of
second degree murder because of changes made to sections 188
and 189, effective January 1, 2019. At defendant’s request, the
trial court appointed counsel to represent him.
The People opposed defendant’s petition. While the
primary ground of opposition was that former section 1170.95
was unconstitutional,6 the People also opposed relief because
6 Prior to the evidentiary hearing in this matter, our
court—like other appellate courts that considered the issue—
determined that former section 1170.95 was constitutional. (See,
e.g., People v. Bucio (2020) 48 Cal.App.5th 300, 308.) The People
7
defendant was convicted under section 187 “as a direct aider and
abettor to the killing rather than as an accomplice to an
underlying crime under a felony murder theory or natural and
probable consequences theory, rendering him ineligible for
[former] section 1170.95 resentencing.” Specifically, the People
argued that defendant “directly aided and abetted his co-
defendant in shooting a firearm at the victim and as such
displayed implied malice, a basis for a second degree murder
conviction which has not been restricted by the 2019 changes to
sections 188 or 18[9].”
Defendant contended in reply that amendments to “section
188 requiring that a principal in a murder ‘shall act with malice
aforethought,’ combined with the prohibition against imputing
malice from participation in a crime, . . . has eliminated imputing
implied malice for second degree murder to an aider and abettor.”
Defendant further asserted that addressing a “new theory of
murder liability” at the resentencing hearing that is different
than the one presented at trial, would violate the due process and
double jeopardy clauses of both the federal and California
constitutions.
D. Denial of Defendant’s Petition
The People conceded that defendant had made a prima
facie showing that he was entitled to relief, and the trial court
held an evidentiary hearing on defendant’s petition on
October 12, 2021.
Prior to the hearing the People filed five exhibits, including
the unpublished Court of Appeal opinion affirming defendant’s
abandoned this argument at the evidentiary hearing, and it is not
an issue on appeal.
8
conviction, the complete transcript of defendant’s bench trial, a
2009 comprehensive risk assessment prepared for the Board of
Parole Hearings, a 2004 mental health evaluation for the Board
of Prison Terms, and a 1990 psychological evaluation for the
Board of Prison Terms (collectively, the assessments). Defendant
offered no exhibits. On the day after the hearing, defendant filed
a brief agreeing that both the trial transcript and the 1988
appellate opinion were admissible at the evidentiary hearing;
defendant objected to the admission of the 2009, 2004, and 1990
assessments on hearsay related grounds.
At the hearing, the People argued that defendant was
guilty of aiding and abetting as well as implied malice second
degree murder and thus not entitled to relief. The prosecutor
argued defendant committed a planned attack: “He went into
rival gang territory. He wasn’t just sort of harmlessly minding
his own business and found himself under some kind of an attack
where self-defense was necessary. It’s not a self-defense
situation. It was a drive-by gang shooting.” The prosecutor
agreed there was not “an intent to kill, per se, and that’s why
we’re talking about implied malice. The idea was to shoot at
these guys and to send a message or a warning,” but the
defendant knew “drive-by shootings kill people and he proceeded
in spite of that and someone got killed and it’s implied malice.”
Defense counsel stressed defendant was not the actual
killer and argued he acted in self-defense. After defendant and
Cordoba were shot at, Cordoba “took it upon themselves to fire
upon them, not intending to kill anybody, but to scare them off,
do something else [other] th[a]n inflict great bodily harm on
somebody.” Defense counsel argued these facts “have to be
considered by the court in determining whether or not
9
[defendant]’s participation in this action, if it is participation,
whether or not he was just simply the driver and not knowing
that Cordoba planned to do anything serious.” Accordingly,
counsel argued, defendant was not an aider and abettor, and was
not a major participant who acted with reckless indifference to
human life.
After argument, the trial court indicated it would prepare a
written decision, provide it to counsel, and then hold a further
hearing where both counsel could respond to the court’s written
analysis. The hearing resumed on October 27, 2021. After
presenting counsel its written ruling denying defendant’s
petition, the court offered both sides an opportunity to present
further argument. Counsel for both parties declined, and the
court made its written ruling final.
In ruling, the trial court found “[defendant] admitted to
‘riding in Fifties’ hood . . . and blasted some Fifties.’ This
admission established [defendant]’s knowledge of Cordoba having
a gun. His actions of driving his car with co-gang member
Cordoba with a gun, in hostile territory, cruising slowly down the
street with headlights on, turning off the headlights, and
stopping as Cordoba shot at victims Rubin and [Marvin] establish
active participation in planned aggression. Moreover, his actions
during the three days immediately prior to the murder of driving
the same car into hostile gang territory, yelling ‘Now what’s up’
and being the undisputed shooter in two assault convictions
provide further corroboration. From this evidence, the trial court
could reasonably infer [defendant]’s gang affiliation and
knowledge of the ongoing rivalry with Fifties/Blood gang
members. It was also reasonable for the trial court to infer
[defendant] wanted the retaliatory drive-by shooting to occur
10
based on his repetitive and close-in-time conduct. The evidence
was more than sufficient to support the trial court’s conclusion
that [defendant] aided and abetted the shootings.” The trial
court concluded that “the People have established proof beyond a
reasonable doubt in accord with . . . [former] section 1170.95 and
the [defendant] is ineligible for resentencing in this matter.”
Defendant filed a timely notice of appeal. We have
jurisdiction pursuant to section 1237, subdivision (b).
DISCUSSION
A. The Resentencing Statutes
“Effective January 1, 2019, the Legislature passed Senate
Bill [No]. 1437 [(2017-2018 Reg. Sess.) (Senate Bill 1437)] ‘to
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant . . . who acted with reckless indifference to
human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v.
Lewis (2021) 11 Cal.5th 952, 959.) Senate Bill 1437 amended
section 188, subdivision (a)(3), to require that all principals to
murder must act with either express or implied malice to be
convicted of that crime, with the exception of felony murder
under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.)
Senate Bill 1437 amended section 189, subdivision (e), to provide
that for a felony murder conviction the defendant had to be the
actual killer, an aider and abettor who acted with the intent to
kill, or a major participant who acted with reckless indifference
to human life in the underlying felony. (Stats. 2018, ch. 1015,
§ 3.)
Senate Bill 1437 also added former section 1170.95, which
provided a procedure for defendants convicted of murder to seek
resentencing. (Stats. 2018, ch. 1015, § 4.) At the time of
11
defendant’s evidentiary hearing, former section 1170.95,
subdivision (a) provided that “[a] person convicted of felony
murder or murder under a natural and probable consequences
theory may file a petition” for resentencing “when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine. [¶]
(2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be
convicted of first or second degree murder because of changes to
[s]ection 188 or 189 made effective January 1, 2019.”
Effective January 1, 2022—that is, after the trial court’s
decision denying defendant’s petition for resentencing, and
during the pendency of this appeal—Senate Bill No. 775 (2021-
2022 Reg. Sess.) (Senate Bill 775) amended former section
1170.95 to state that (1) the burden of proof at a resentencing
hearing under this section is “on the prosecution to prove, beyond
a reasonable doubt, that the petitioner is guilty of murder . . .
under California law as amended by [Senate Bill 1437],” and
(2) “[a] finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (Fmr. § 1170.95, subd. (d)(3), as amended by
Stats. 2021, ch. 551, § 2.) Senate Bill 775 also clarified that the
trial court’s role in a resentencing hearing is to act as an
independent fact finder and determine, in the first instance,
whether the petitioner committed murder under the law as
12
amended by Senate Bill 1437. (People v. Clements (2022) 75
Cal.App.5th 276, 294, 297; see also People v. Garrison (2021) 73
Cal.App.5th 735, 745, fn. omitted [trial court acts as “an
independent fact finder, to determine beyond a reasonable doubt
whether [the] defendant is guilty of murder under a valid theory
of murder”].)
The People do not concede the retroactive application of all
these changes to defendant’s case but note that defendant could
potentially file a new petition in the superior court under the
amended provisions. As we find defendant’s arguments meritless
regardless of which statutory version controls, we assume for the
sake of argument, and without deciding, that the changes to
former section 1170.95 at issue in this matter apply retroactively
to defendant’s case.
B. Standard of Review
The interpretation of the statutory language of former
section 1170.95—that is, the correct standard to be applied by the
trial court in evaluating eligibility for resentencing—is a question
of law that we determine de novo. (People v. Prunty (2015) 62
Cal.4th 59, 71; People v. Drayton (2020) 47 Cal.App.5th 965, 981.)
The trial court’s determination that defendant is ineligible for
relief because he is guilty of murder, beyond a reasonable doubt,
is a determination of fact. (People v. Clements, supra, 75
Cal.App.5th at p. 294 [“The question is whether the petitioner
committed murder under a still-valid theory, and that is a factual
question”].) We review the trial judge’s factfinding for
substantial evidence. (People v. Owens (2022) 78 Cal.App.5th
1015, 1022.)
13
C. The Trial Court, Acting as an Independent Fact
Finder, Applied the Correct Standard in Denying
Defendant’s Petition
Defendant first contends reversal is required because the
trial court applied an incorrect standard when denying his
petition. At the time of the hearing, former section 1170.95,
subdivision (d)(3) stated that the prosecution’s burden was “to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” Unsurprisingly, the trial court looked to this
language when denying the petition, stating the People had the
burden to “prove [defendant]’s ineligibility for re-sentencing
beyond a reasonable doubt” and had met that burden.
While this matter was on appeal, the Legislature amended
former section 1170.95, subdivision (d)(3) to provide in pertinent
part that “[a]t the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to [s]ection 188 or 189 made effective January 1,
2019.” (Fmr. § 1170.95, subd. (d)(3), as amended by Stats. 2021,
ch. 551, § 2.)
Defendant argues we should reverse because the trial court
relied on the standard in effect at the time of the hearing, rather
than the one currently in force. Defendant’s argument, however,
ignores other statements made by the court while ruling. While
the court made comments based on the then applicable standard
of proof, it made further statements demonstrating that it found
beyond a reasonable doubt that defendant had committed an
offense that made him ineligible for relief. Specifically, in
denying the petition the court found that “[t]he totality of the
14
evidence presented established proof beyond a reasonable doubt
for . . . defendant’s second degree murder conviction and he is
ineligible for sentencing pursuant to . . . [former] section
1170.95.” The court further found that the evidence was
insufficient “to support [defendant]’s claim of unreasonable self-
defense.” Thus, when read in context, it is clear the trial court
found the prosecution had proven beyond a reasonable doubt that
defendant was guilty of murder “under California law as
amended by the changes to [s]ection 188 or 189 made effective
January 1, 2019” (fmr. § 1170.95, subd. (d)(3)), and we
accordingly find no error in the legal standards applied by the
court when it weighed the evidence.
Defendant argues we should not rely on these statements
because the court elsewhere stated “there was sufficient evidence
to convict [defendant] on an aider and abettor theory of liability,”
and that “the evidence presented supports [defendant]’s
conviction under a theory of implied malice.” Defendant argues
these statements refer to the original trial court’s determination
of guilt in 1985, and thus do not reflect independent fact finding
by the court hearing the resentencing petition.
“The very settled rule of appellate review is a trial court’s
order/judgment is presumed to be correct, error is never
presumed, and the appealing party must affirmatively
demonstrate error on the face of the record.” (People v. Davis
(1996) 50 Cal.App.4th 168, 172.) The record need not
affirmatively demonstrate the trial court’s application of the
correct legal standard; instead, we presume the court applied the
correct standard unless there is evidence to the contrary. (Peake
v. Underwood (2014) 227 Cal.App.4th 428, 447.) Given the trial
court’s statement that the totality of the evidence presented at
15
the evidentiary hearing “established proof beyond a reasonable
doubt for . . . defendant’s second degree murder conviction,” we do
not read the other statements to which defendant refers as
demonstrating a failure of independent factfinding. Indeed, the
resentencing trial court’s language elsewhere makes clear it was
describing its own determination based on the evidence and
argument presented to it, and not parroting some finding by
another judicial officer in a different proceeding. The court’s use
of the present tense in describing its findings, the trial court’s
reference to evidence introduced at the resentencing hearing that
did not exist at the time of defendant’s bench trial, and the
court’s rejection of arguments specifically made at the
resentencing hearing all demonstrate this.
Nor do we find persuasive defendant’s claim that the trial
court’s statements that it “concurs with the [a]ppellate [c]ourt’s
finding there was sufficient evidence to convict [defendant] on an
aider and abettor theory of liability” and that it “agrees with the
1988 [a]ppellate [c]ourt decision” that defendant cannot claim
self-defense demonstrate a lack of independent judgment. A
judicial officer does not “agree” or “concur” in another judicial
officer’s opinion without first forming her own opinion. The order
denying defendant’s petition shows that the trial court
independently considered the issues raised by defendant’s
petition and found guilt beyond a reasonable doubt; the fact the
trial court reached the same conclusion as that reached by the
judge at defendant’s trial, and by the panel that heard his appeal,
does not demonstrate a failure of independent review.
16
D. The Trial Court Did Not Commit Reversible Error by
Considering the Appellate Opinion Affirming
Defendant’s Conviction
Defendant next argues the trial court erred by considering
the entirety of the unpublished opinion affirming defendant’s
conviction. As with his previous argument, this claim arises out
of amendments to former section 1170.95 that took effect after
the evidentiary hearing. At the time of the hearing at issue here,
former section 1170.95, subdivision (d)(3) allowed “[t]he
prosecutor and the petitioner [to] rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens” at the evidentiary hearing. An appellate decision was
considered part of the “record of conviction” admissible in
posttrial proceedings. (See In re W.B. (2012) 55 Cal.4th 30, 57.)
As noted above, given this law, defendant specifically agreed that
the 1988 appellate opinion was admissible at the evidentiary
hearing.
However, effective January 1, 2022, the Legislature limited
use of prior appellate opinions in former section 1170.95
proceedings to “the procedural history of the case recited.” (Id.,
subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.) Defendant
argues that this amendment applies retroactively to limit the
admissible portion of the appellate opinion to the procedural
history of the case, and that the trial court committed prejudicial
error here by straying beyond that limited permitted use.
The People first argue this objection was waived below and
cannot be considered on appeal. We reject this argument. The
issue of the admissibility of the facts recited in the prior appellate
opinion only arises because of a change in law that took place
after the evidentiary hearing in this matter. We do not fault
17
defense counsel for not making an objection that would have had
no merit at the time of the hearing. (People v. Harris (2013) 57
Cal.4th 804, 840; People v. Pearson (2013) 56 Cal.4th 393, 461-
462.)
We find the People’s alternative argument that any error
was harmless far more compelling. We need not decide whether
any change in the admissibility of appellate opinions wrought by
Senate Bill 775 applies retroactively,7 because even if this change
applied retroactively any error in admitting the appellate opinion
was harmless. The evidence at the evidentiary hearing included
not only the 1988 appellate opinion, but also the compete
transcript of defendant’s trial. Defendant does not identify any
fact set out in the appellate opinion that is not also found in the
trial transcript. Defendant suffered no prejudice by the trial
court considering an appellate opinion containing the same facts
as the indisputably admissible trial transcript. (People v. Owens,
supra, 78 Cal.App.5th at p. 1027 [the “appellant suffered no
prejudice by the court’s consideration of” inadmissible evidence
because there was nothing unfavorable to the appellant in
inadmissible documents that was not also contained in
admissible evidence]; People v. Clements, supra, 75 Cal.App.5th
at pp. 292-293 [same].)
7 See People v. Owens, supra, 78 Cal.App.5th at pages 1026-
1027 (expressing doubt that changes in admissibility of evidence
in Senate Bill 775 apply retroactively but declining to resolve the
issue because any error in admitting evidence was harmless).
18
E. The Trial Court Did Not Commit Reversible Error by
Admitting the Assessments
Defendant argues the trial court erred by admitting the
assessments that the People offered in evidence. Defendant
bases his argument on an amendment to former section 1170.95,
subdivision (d)(3) that took effect on January 1, 2022, providing
in pertinent part that “[t]he admission of evidence in the
[evidentiary] hearing shall be governed by the Evidence Code.”
Relying on this language, defendant argues that the assessments
contained inadmissible hearsay, and their admission was
prejudicial error requiring remand for a new evidentiary hearing.
The People argue that the assessments were properly admitted
as reliable hearsay, and that any error in admitting them was
harmless.
We need not reach the issue of admissibility because we
agree with the People that, regardless of whether the records in
question were admissible, defendant has not shown that any
error in admitting the records requires reversal. Article VI,
section 13 of the California Constitution provides in pertinent
part that “[n]o judgment shall be set aside, or new trial granted,
in any cause, on the ground of . . . the improper admission or
rejection of evidence, . . . unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.” This provision places the burden on
defendant to show “that it is reasonably probable that a result
more favorable to the appealing party would have been reached
in the absence of the error.” (People v. Watson (1956) 46 Cal.2d
818, 836.)
19
Defendant fails to show how he was prejudiced by the
admission of any portion of any of the three assessments offered
by the People. Defendant argues that the statement attributed to
him in the 2009 assessment, to the effect that he should have told
Cordoba to fire into the air, is “the bedrock of evidence considered
by the trial court in determining that [defendant] aided and
abetted the shooting and acted with reckless disregard of human
life.”8 We read the court’s decision very differently. Contrary to
defendant’s contention, the trial court specifically noted that “a
reasonable person would know participating in a drive-by
shooting is conduct which is inherently dangerous to human life.”
It supported that conclusion by noting that “the evidence
demonstrated [defendant] knowingly participated in a drive-by
shooting and his previous returns to the same area looking for
rival gang members further buttresses the inference of his
implied malice.” Only after making these points did the court
hold that “[a]dditionally, [defendant] acknowledged the inherent
dangerousness of his conduct in his 2009 parole board statement
when he stated, ‘I should have told him (Cordoba) to just shoot in
the air.’ ”
Far from being “the bedrock” of the trial court’s decision,
defendant’s admission that he would be better off had he told
Cordoba “to just shoot in the air” merely adds further
corroboration to other evidence from which the trial court had
found that defendant knew that shooting at people was
8The only other statement relied upon by the prosecutor
during the resentencing hearing from these documents was a
statement by defendant that his sister was killed in a drive-by
shooting in 1975. The trial court did not reference or rely on this
statement, and defendant does not argue prejudice from it.
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inherently dangerous. Thus, it is clear the trial court would have
reached the same result even if the assessments had not been
admitted at the evidentiary hearing.
F. The Resentencing Court Was Not Bound by the
Original Basis for Conviction
Defendant’s penultimate contention is that the trial court
erred in finding the evidence supported a finding of implied
malice, when at the original bench trial the prosecution argued
only an aiding and abetting theory. Defendant also argues that,
because the matter was originally tried to the court and no jury
instructions were given, it is possible the original trial court
convicted defendant on a theory other than aiding and abetting.
Because in defendant’s view the original grounds for the murder
conviction are unclear, and may have included a theory under
which he would be eligible for resentencing, the trial court
abused its discretion in finding guilt on grounds that may have
differed from the original basis of conviction to render him
ineligible for relief.
A number of recent decisions have rejected this argument.
(E.g., People v. Gentile (2020) 10 Cal.5th 830, 856 [“the
Legislature authorized the parties to offer new or additional
evidence during the [former §] 1170.95 process in order to allow
the parties to explore issues they did not explore under the prior
state of the law”]; People v. Schell (2022) 84 Cal.App.5th 437, 444-
445 [because a resentencing hearing “does not subject a
defendant to the risk of additional punishment, is not a trial,
permits both parties to present new evidence, and merely
considers whether the defendant’s request for leniency meets the
necessary criteria, there is no constitutional problem in allowing
new theories of murder liability at that hearing”]; People v. Flint
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(2022) 75 Cal.App.5th 607, 618 [rejecting contention “that the
double jeopardy clauses of the federal and state constitutions
preclude the prosecution from introducing new theories of [the
defendant’s] guilt that it did not raise at trial”]; People v. Duchine
(2021) 60 Cal.App.5th 798, 813 [“By allowing new evidence and
providing for an evidentiary hearing, the Legislature plainly
intended that the issues concerning whether the defendant was
guilty under theories of murder not previously or necessarily
decided would be resolved anew, through a factfinding process
affording a degree of due process to the petitioner”].) We join
these courts in rejecting defendant’s argument.
G. Substantial Evidence Supports the Trial Court’s
Findings
Defendant finally argues substantial evidence does not
support the trial court’s decision that he was guilty of aiding and
abetting the murder and acted with implied malice. “We
‘ “examine the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value that would support a rational trier of fact in finding
[the defendant guilty] beyond a reasonable doubt.” ’ [Citation.]
Our job on review is different from the trial judge’s job in
deciding the petition. While the trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make
determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a
rational fact finder’s findings beyond a reasonable doubt.
[Citation.]” (People v. Clements, supra, 75 Cal.App.5th at p. 298.)
We presume in support of the decision of the trial court the
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existence of every fact reasonably inferable from that evidence.
(People v. Boyer (2006) 38 Cal.4th 412, 480.)
The trial court first concluded that defendant was guilty
“on an aider and abettor theory of liability.” To be liable as a
direct aider and abettor, defendant must have, “by words or
conduct, aid[ed] the commission of the life-endangering act . . .
[with] knowledge that the act is dangerous to human life, and
acting in conscious disregard for human life.” (People v. Powell
(2021) 63 Cal.App.5th 689, 713, fn. omitted.) “[A]n aider and
abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or
her conduct endangers the life of another and acts with conscious
disregard for life.” (People v. Gentile, supra 10 Cal.5th at p. 850.)
The trial court’s order summarized the evidence that
supported a finding that defendant was guilty beyond a
reasonable doubt as an aider and abettor: “[Defendant] admitted
to ‘riding in Fifties’ hood . . . and blasted some Fifties.’ This
admission established [defendant]’s knowledge of Cordoba having
a gun. His actions of driving his car with co-gang member
Cordoba with a gun, in hostile territory, cruising slowly down the
streets with headlights on, turning off the headlights, and
stopping as Cordoba shot at victims Rubin and [Marvin] establish
active participation in planned aggression. Moreover, his actions
during the three days immediately prior to the murder of driving
the same car into hostile gang territory, yelling ‘now what’s up’
and being the undisputed shooter in two assault convictions
provide further corroboration.” All of this was substantial
evidence supporting the court’s finding that defendant aided and
abetted Marvin’s murder.
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The trial court also found, in the alternative, that
defendant was guilty beyond a reasonable doubt of implied malice
murder. “[A] conviction for second degree murder, based on a
theory of implied malice, requires proof that a defendant acted
with conscious disregard of the danger to human life.” (People v.
Knoller (2007) 41 Cal.4th 139, 156.) This standard applies even
though defendant was not the actual shooter. (See, e.g., People v.
Mancilla (2021) 67 Cal.App.5th 854, 865 [“traditional principles
of implied malice” include a situation where “the defendant
intends to kill or intentionally commits acts that are likely to kill
with a conscious disregard for life . . . even though he uses
another person to accomplish his objective”].) Implied malice
may be proved by circumstantial evidence (People v. Superior
Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502; People v.
Klvana (1992) 11 Cal.App.4th 1679, 1704), and may also be
inferred from the circumstances of the murder itself (People v.
Canizalez (2011) 197 Cal.App.4th 832, 842; People v. Harmon
(1973) 33 Cal.App.3d 308, 311).
The facts recited by the trial court demonstrate that
substantial evidence supports the court’s conclusion that
defendant was guilty of implied malice murder: “[Defendant]’s
claim he was simply the driver and had no knowledge of
Cordoba’s intentions the night of the murder is unpersuasive
based on the totality of his previously stated actions and
admissions. Moreover, a reasonable person would know
participating in a drive-by shooting is conduct which is inherently
dangerous to human life. [(]See [People v.] Watson [(1981) 30
Cal.3d 290.)] Here, the evidence demonstrated [defendant]
knowingly participated in a drive-by shooting and his previous
24
returns to the same area looking for rival gang members further
buttresses the inference of his implied malice.”
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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