People v. Baker CA4/1 ( 2021 )

Filed 10/4/21 P. v. Baker CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077943
Plaintiff and Respondent,
v. (Super. Ct. No. CR143101)
RYNELL MARION BAKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
David M. Gill, Judge. Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland,
Assistant Attorneys General, A. Natasha Cortina and Alan L. Amann,
Deputy Attorneys General, for Plaintiff and Respondent.
In 1994, a jury convicted Rynell Marion Baker and codefendants
Reginald Lewis and William Ortega of conspiracy to commit murder (Pen.
Code,1 § 182, subd. (a)(1)) and first degree murder (§ 187, subd. (a)). It found
true allegations that Ortega personally used a firearm (§ 12022.5) and that
Lewis and Baker were armed with a firearm during the murder’s
commission. (§ 12022, subd. (a)(1).) The trial court sentenced Baker to 25
years to life for murder plus a consecutive one-year sentence for the firearm
allegation. It stayed the sentence for the conspiracy count.
In January 2020, Baker petitioned for resentencing under section
1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) and asked the court to assign him counsel. In part, Senate
Bill No. 1437 amended the felony-murder rule and the natural and probable
consequences doctrine as it relates to murder, limiting murder liability to
defendants who (1) are the actual killer; (2) are not the actual killer but who
share the killer’s intent to kill and aid and abet the killing; or (3) are a major
participant in an enumerated felony and who act with reckless indifference to
human life, and eliminating natural and probable consequences liability for
murder regardless of degree. (People v. Gentile (2020) 10 Cal.5th 830, 846-
848.) The trial court denied the petition, finding Baker did not make a prima
facie showing he was entitled to relief under the statute.
On appeal, Baker contends the court erred by denying his petition
without issuing an order to show cause and holding a hearing; that the
court’s decision was based on improper “factfinding” and consideration of
matters outside of his petition. He maintains the court should have viewed
his petition’s factual allegations as true, and issued an order to show cause
because his petition complied with section 1170.95 and made out a prima
facie claim for relief. Baker asks that we remand the matter with directions
1 Undesignated statutory references are to the Penal Code.
2
that the court appoint counsel for him, issue an order to show cause, and
conduct an evidentiary hearing.
While Baker’s appeal was pending, the California Supreme Court
decided People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which resolves, among
other things, whether a trial court presented with a section 1170.95 petition
may consider the record of conviction to determine whether a petitioner such
as Baker made out a prima facie showing he is entitled to section 1170.95
relief.2 We invited the parties to file supplemental briefing on the decision,
and have considered those briefs. Applying Lewis, we reject Baker’s
contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the underlying facts of Baker and his codefendants’
crimes, which are set forth in more detail in this court’s prior opinion denying
Baker’s petition for a writ of habeas corpus and affirming the convictions.
(People v. Baker, et al. (Jun. 21, 1996, D021705) [nonpub. opn.] (Baker).) A
copy of this court’s opinion is in the record of this appeal.
In January 1993, Baker, Lewis and Ortega, all members of the West
Coast Crips criminal street gang, were at a nightclub where they “ ‘mad-
2 Lewis additionally held a defendant is statutorily entitled to counsel, if
requested, upon filing a facially sufficient petition under section 1170.95.
This followed from the Lewis court’s interpretation of subdivision (c) of
section 1170.95, which it held described only a single prima facie showing,
not a two-step process with distinct sequential inquiries: “ ‘If the petitioner
has requested counsel, the court shall appoint counsel to represent the
petitioner.’ [Citation.] The combined meaning is clear: petitioners who file a
complying petition requesting counsel are to receive counsel upon the filing of
a compliant petition.” (Lewis, supra, 11 Cal.5th at p. 963.) Baker was
represented by the Office of the Alternate Public Defender when he filed his
reply to the People’s opposition to his petition; thus, this part of Lewis’s
holding is not pertinent here.
3
dogg[ed]’ ” some rival Piru gang members, L.M. and R.I. A verbal altercation
ensued between the rival gang members, and club bouncers separated them.
Baker, Lewis and Ortega left about 10 to 15 minutes before the club closed at
3:45 a.m. L.M. and his group left the club when it closed. As the club was
closing, several Crips gang members, including Baker and Ortega, were
waiting outside standing shoulder to shoulder on a median island facing the
club. Baker and Ortega stood beside each other. When L.M. and R.I. walked
out, Baker, Ortega and the group moved forward and formed a semicircle
around them. Baker shouted, “ ‘What’s up now, motherfuckers? You guys
don’t have the bouncers here to keep us off your ass right now. Let’s take
[care] of now what we should have took care of inside.’ ” Seeing Baker reach
to the back of his trench coat, R.I. ran, shouting to L.M. that the men had
guns. Ortega raised his arm and shot L.M., killing him.
After a jury convicted Baker and Ortega as stated above, this court in
June 1996 affirmed the judgment in an unpublished opinion. (Baker I, supra,
D021705.) In part, we concluded: “[T]he evidence . . . is sufficient to permit
the jury to infer Baker knew Ortega, at least, was armed and the group
intended to kill [L.M.], the principal antagonist in the Crip/Blood
confrontation inside the club. Baker’s actions at the shooting scene show he
helped prevent [L.M.] from escaping. The evidence is sufficient to find he
aided and abetted.” We likewise concluded there was substantial evidence
Baker conspired to commit murder.
In January 2020, Baker petitioned for resentencing under section
1170.95 using a check-box form. He asserted he was convicted of first or
second degree murder pursuant to the felony-murder rule or natural and
probable consequences doctrine. He also asserted he was convicted of first
degree felony murder but because of changes to sections 188 and 189, he
4
could not now be convicted because he was not the actual killer, nor was he a
major participant in the felony who acted with reckless indifference to human
life during the course of the crime. Pointing out Baker was convicted of first
degree murder and conspiracy to commit murder, the People responded in
part that Baker had not made out a prima facie showing he was entitled to
relief; that is, he had not established he could not be convicted of first or
second degree murder because of the statutory changes to those offenses set
out in section 1170.95. They argued Baker’s conviction for conspiracy to
commit murder required the specific intent to kill, and was necessarily
conspiracy to commit premeditated and deliberated first degree murder.
Thus, the People asserted that notwithstanding his declaration to the
contrary, Baker had failed to make the showing that he came within the
provisions of section 1170.95, as he had not pleaded any facts from his record
of conviction or new facts demonstrating he could not be convicted under the
amended law. They argued the court was permitted to consider Baker’s
record of conviction and the content of its own files and if it determined he
had not made the necessary showing, deny the petition.
Now represented by the Office of the Alternate Public Defender, Baker
replied that his charging documents and verdict forms did not specify a
theory of liability, and that under People v. Drayton (2020) 47 Cal.App.5th
9653 the court should accept the facts asserted in a petition for resentencing
unless they were untrue as a matter of law. He asserted the court was
required to issue an order to show cause if, taking the petition’s facts as true,
the petitioner would be entitled to relief because he met section 1170.95’s
3 Lewis abrogated Drayton as to the two-step analysis, but relied on that
case in ruling on the prima facie-showing issue. (Lewis, supra, 11 Cal.5th at
p. 963.)
5
requirements. Baker argued his petition alleged each of the three facts
required by the law, and the charging documents confirmed Baker was
charged and convicted of first degree murder, but did not provide sufficient
information about the theory of liability used by the People. He asked the
court to issue an order to show cause and set a hearing to decide the merits of
his petition.
The court denied Baker’s petition on grounds Baker did not make a
prima facie showing he warranted the requested relief. It ruled his petition
and response were “boilerplate” and conclusory; they did not provide facts or
explanation “as to why or how the charging document ‘allowed the
prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine’ nor how [Baker] ‘could not be
convicted of first or second degree murder because of changes to Section 188
or 189 made effective January 1, 2019.’ ” The court continued that the
conclusory allegations were “blatantly contradicted by the record of
conviction” as the jury was not instructed on either felony murder or the
natural and probable consequences doctrine, and thus the record contradicted
the assertion that the charging document allowed the prosecution to proceed
on either theory of murder. The court pointed out that the jury in Baker’s
case unanimously found he conspired to commit first degree murder and was
instructed that to convict him of that offense, it had to find he acted with the
specific intent to agree to commit the public offense of murder. Thus, it found
the jury “also made an explicit finding that [Baker] acted with intent to kill
when he planned and participated in the murder.” The trial court finally
observed that this court had rejected Baker’s arguments challenging the
evidence of his specific intent to agree to murder and to kill, and section
1170.95 was not a vehicle to relitigate those claims.
6
Baker filed this appeal.
DISCUSSION
I. Senate Bill No. 1437 and Standard of Review
The court in Lewis summarized the background and operation of
section 1170.95: “Effective January 1, 2019, the Legislature passed Senate
Bill 1437 ‘to amend the felony-murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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 in the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188 and 189 of the
Penal Code, Senate Bill 1437 added section 1170.95, which provides a
procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief. [Citation.]
“Pursuant to section 1170.95, [subdivision (a),] an offender must file a
petition in the sentencing court averring that: ‘(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 [of] first degree or
second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.’ [Citations.] Additionally, the petition shall state
“[w]hether the petitioner requests the appointment of counsel.” [Citation.] If
a petition fails to [include the contents required by section 1170.95,]
subdivision (b)(1) [i.e., petitioner’s declaration under subdivision (a), case
7
number and year of conviction, and a statement whether petitioner requests
appointment of counsel] ‘the court may deny the petition without prejudice to
the filing of another petition . . . .’ [Citation.] [¶] Where the petition
complies with [section 1170.95,] subdivision (b)’s three requirements, then
the court proceeds to [section 1170.95,] subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11
Cal.5th at pp. 959-960.)
Section 1170.95, subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.” This provision
“describe[s] only a single prima facie showing”; “ ‘ “[t]he first sentence [of
subdivision (c)] states the rule” ’ and ‘ “[t]he rest of the subdivision
establishes the process for complying with that rule.” ’ ” (Lewis, supra, 11
Cal.5th at p. 962.) Applying this meaning, petitioners who file a complying
petition requesting counsel are to receive counsel upon the filing of a facially
sufficient petition. (Id. at pp. 957, 967, 970.) “[O]nly after the appointment of
counsel and the opportunity for briefing may the superior court consider the
record of conviction to determine whether ‘the petitioner makes a prima facie
showing that he or she is entitled to relief.’ ” (Id. at p. 957.)
“If the trial court determines that a prima facie showing for relief has
been made, the trial court issues an order to show cause, and then must hold
8
a hearing ‘to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the
same manner as if the petitioner had not . . . previously been sentenced,
provided that the new sentence, if any, is not greater than the initial
sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet their
respective burdens.’ [Citation.] At the hearing stage, ‘the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.’ ” (Lewis, supra, 11 Cal.5th at p. 960;
see also People v. Gentile, supra, 10 Cal.5th at pp. 842-843; People v. Turner
(2020) 45 Cal.App.5th 428, 433-434.)
II. Equal Protection Argument
We begin with Baker’s argument that he may challenge his conviction
for conspiracy to commit murder under section 1170.95, and that any
conclusion otherwise violates his right to equal protection under the state and
federal Constitutions.4
The starting point for statutory interpretation is the statute’s language.
(People v. Gonzales (2018) 6 Cal.5th 44, 50.) Section 1170.95 provides a
remedy only for “[a] person convicted of felony murder or murder.” (§
1170.95, subd. (a); accord, People v. Paige (2020) 51 Cal.App.5th 194, 202
[statute does not provide relief to persons convicted of manslaughter]; People
v. Sanchez (2020) 48 Cal.App.5th 914, 918 [“By its plain language, section
4 The People do not respond to Baker’s equal protection contention,
presumably because the trial court in this case entertained Baker’s petition,
accepted and considered briefing on the issue, and decided whether he made
out a prima facie case under section 1170.95 with respect to both his
convictions for murder and conspiracy to commit murder.
9
1170.95 . . . makes sentencing relief available only to qualifying persons
convicted of murder”]; People v. Larios (2019) 42 Cal.App.5th 956, 970,
review granted Feb. 26, 2020, S259983 [“the relief provided in section
1170.95 is limited to certain murder convictions and excludes all other
convictions . . . .”].)5 On that ground, Baker is not eligible for relief under
section 1170.95 with respect to his conspiracy conviction.
Baker, however, maintains such an interpretation violates equal
protection under the state and federal Constitutions as “irrationally under-
inclusive, permitting imposition of a more severe penalty on an accomplice
under the natural and probable consequences doctrine when the victim is
killed or that a murder was in furtherance of a conspiracy.” He argues he has
shown a state-adopted classification affects two or more similarly situated
groups in an unequal manner, because murder and conspiracy to commit
murder are “similarly situated” for purposes of section 1170.95 as both
require malice by definition.
We cannot agree. “ ‘[O]ffenders who commit different crimes are not
similarly situated for equal protection purposes.’ ” (People v. Cervantes
(2020) 44 Cal.App.5th 884, 888; accord, People v. Paige, supra, 51 Cal.App.5th
at p. 206; People v. Sanchez, supra, 48 Cal.App.5th at p. 920.) Baker was
convicted of conspiracy, a different crime from murder. (United States v.
Rabinowich (1915) 238 U.S. 78, 86 [“It . . . has been repeatedly declared in
decisions of this court, that a conspiracy to commit a crime is a different
offense from the crime that is the object of the conspiracy”].) “Conspiracy is
an inchoate crime. [Citation.] It does not require the commission of the
substantive offense that is the object of the conspiracy.” (People v. Swain
5 We may rely on appellate cases as persuasive authority while pending
review. (Cal. Rules of Court, rule 8.1115(e)(1).)
10
(1996) 12 Cal.4th 593, 599-600.) Thus, Baker “ ‘has failed to establish the
threshold requirement of an equal protection claim: disparate treatment of
similarly situated persons.’ ” (Sanchez, at p. 920; accord, Paige, at p. 205;
Cervantes, at p. 888.)
Even if we accepted Baker’s argument that persons convicted of murder
and conspiracy to commit murder are similarly situated for purposes of
section 1170.95, we would still reject his equal protection challenge. “[I]f the
classification does not involve a suspect class, legislation is presumed to be
valid under the equal protection clause if the statutory classification is
rationally related to a legitimate state interest.” (People v. Mora (2013) 214
Cal.App.4th 1477, 1483; see People v. Paige, supra, 51 Cal.App.5th at p. 205
[applying rational basis review in deciding equal protection challenge];
Sanchez, at p. 921 [same]; Cervantes, at p. 888 [same]; People v. Lopez (2019)
38 Cal.App.5th 1087, 1111, review granted November 13, 2019, S258175 [“We
. . . apply rational basis review to determine whether the Legislature’s
limitation of the ameliorative provisions of Senate Bill 1437 was justified”].)
We conclude there is a rational basis to exclude conspiracy from section
1170.95 when multiple defendants act in concert. The mere fact of
cooperation by multiple persons creates a higher degree of culpability: “For
two or more to confederate and combine together to commit or cause to be
committed a breach of the criminal laws is an offense of the gravest
character, sometimes quite outweighing, in injury to the public, the mere
commission of the contemplated crime.” (United States v. Rabinowich, supra,238 U.S. at p. 88.) As long as the Legislature acts rationally, its
determination to exclude crimes from the ambit of section 1170.95 should not
be disturbed. (See People v. Sanchez, supra, 48 Cal.App.5th at p. 921.)
11
III. Consideration of Matters Outside Baker’s Petition
Baker contends the trial court erred by denying his request for an order
to show cause and summarily denying his petition based on matters outside
his petition. He maintains section 1170.95 requires that the court conduct a
purely facial review of the factual assertions in a defendant’s petition and
accept those assertions as true. According to Baker, the court erred in his
case by looking behind his petition’s allegations to the jury instructions, and
engaged in prohibited factfinding to determine he was ineligible.
In Lewis, the California Supreme Court decided against Baker’s
interpretation of the statute. A trial court can consult and rely on documents
within the record of conviction in determining whether a prima facie showing
is made, if the documents are relevant to the underlying substantive
question. (Lewis, supra, 11 Cal.5th at p. 972, fn. 6.) “[T]here is no categorical
bar to consulting the record of conviction at the prima facie stage.” (Ibid.)
The court reasoned: “The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are clearly
meritless. This is consistent with the statute’s overall purpose: to ensure
that murder culpability is commensurate with a person’s actions, while also
ensuring that clearly meritless petitions can be efficiently addressed as part
of a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at p.
971.)
However, that prima facie inquiry is “limited.” (Lewis, supra, 11
Cal.5th at p. 971.) “Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved. If so, the court
12
must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citations.] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Ibid.) Lewis explained that
appellate opinions “are generally considered to be part of the record of
conviction. [Citation.] However . . . the probative value of an appellate
opinion is case-specific, and ‘it is certainly correct that an appellate opinion
might not supply all answers.’ [Citation.] In reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’
[Citation.] . . . [T]he ‘prima facie bar was intentionally and correctly set very
low.’ ” (Lewis, at p. 972.) Lewis concluded that “the parties can, and should,
use the record of conviction to aid the trial court in reliably assessing whether
a petitioner has made a prima facie case for relief under [section 1170.95,]
subdivision (c).” (Ibid.)6
Under Lewis, the trial court here properly considered documents in
Baker’s record of conviction, including this court’s prior appellate opinion, in
deciding whether he established a prima facie case of eligibility for
resentencing under section 1170.95.
Baker does not squarely argue in his opening brief (with a required
corresponding heading, Cal. Rules of Court, rule 8.204(a)(1)(B)) that his
record of conviction as a factual matter fails to support the trial court’s
6 Lewis did not resolve what substantively is required for a petitioner to
prove he or she “ ‘could not be convicted of first or second degree murder
because of changes to section 188 or 189 made effective January 1, 2019.’ ”
(Lewis, supra, 11 Cal.5th at p. 972, fn. 6.)
13
conclusion that he is not entitled to section 1170.95 relief. He maintains the
court engaged in inappropriate factfinding in connection with its
consideration of the jury instructions. He repeats the contentions in his
supplemental brief, arguing that because the conspiracy instructions did not
identify a victim, the jury could have found him guilty of conspiracy not
because he held the intent to kill, but because it found the murder by one
conspirator was the act of all conspirators.7
We disagree that the court in reaching its ruling engaged in
improper “ ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972, quoting People v Drayton,
supra, 47 Cal.App.5th at p. 979.) Rather, we hold the record of Baker’s
conviction refutes the allegations in his petition, thus the superior court did
not err in determining Baker was ineligible for relief under section 1170.95
as a matter of law.
Though Lewis did not address the relevant standard of review for the
lower court’s determination of whether a petitioner has made a prima facie
showing,8 we agree it is predominately a legal question, and thus our review
is de novo. (Accord, People v. Arias (2021) 66 Cal.App.5th 987, 999; People v.
Cunningham (2015) 61 Cal.4th 609, 664 [independently reviewing the record
7 Baker further argues the court erred by considering the absence of a
natural and probable consequences jury instruction, stating only that the
court’s “conclusion that the absence of an instruction precluded the jury’s
reliance on the natural and probable consequences doctrine necessarily
involved ‘factfinding’ beyond the assertions in the petition and the charging
document.” Baker does not further explain the assertion.
8 Lewis did, however, address the standard of review for the prejudice
determination stemming from the petitioner’s deprivation of counsel. (Lewis,
supra, 11 Cal.5th at pp. 972-973.)
14
to resolve the legal question of whether it supported a prima facie case of
racial discrimination in juror excusal].)
Here, the jury was presented only with instructions on murder with
malice aforethought; it was not presented with theories of felony murder or
natural-and-probable-consequences murder. Further, as Lewis made clear,
the appellate opinion is generally part of the record of conviction. More
specifically, “an appellate court decision . . . can be relied upon to determine
the nature of a prior conviction because it may disclose the facts upon which
the conviction was based.” (People v. Trujillo (2006) 40 Cal.4th 165, 180.) In
the opinion in Baker’s case, this court affirmed the jury’s findings that Baker
aided and abetted L.M.’s murder and committed conspiracy to commit
murder, which “is necessarily conspiracy to commit premeditated and
deliberated first degree murder.” (People v. Beck and Cruz (2019) 8 Cal.5th
548, 641.) Senate Bill No. 1437 “did not . . . alter the law regarding the
criminal liability of direct aiders and abettors of murder because such
persons necessarily ‘know and share the murderous intent of the actual
perpetrator.’ [Citations.] One who directly aids and abets another who
commits murder is thus liable for murder under the new law just as he or she
was liable under the old law.” (People v. Offley (2020) 48 Cal.App.5th 588,
595-596; see also People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Further, a
conviction for conspiracy to commit murder cannot be vacated under section
1170.95. Such a conviction requires proof that the defendant had the intent
to kill and cannot be based on a theory of implied malice. (People v. Swain,
supra, 12 Cal.4th at p. 607.) In Baker’s case, the jury in convicting him found
true overt acts alleging that Ortega, Lewis, Baker and other unknown
persons “waited on the center divide of . . . El Cajon Boulevard and watched
the . . . nightclub until the victim, [L.M.], exited the nightclub” and further
15
that Ortega “shot [L.M.] in the head, killing him.” Taken as a whole, the
record refutes any possible inference or conclusion that Baker did not hold
the intent to kill L.M., as Baker maintains.
DISPOSITION
The order denying Baker’s petition to vacate his convictions and for
resentencing is affirmed.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
16