People v. Zorns CA2/2 ( 2022 )

Filed 6/15/22 P. v. Zorns CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308967
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA003868)
v.
RICHARD LOUIS ZORNS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Affirmed.
John Lanahan, 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 C. Chang and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Louis Zorns appeals from
the denial of his petition for vacatur and resentencing pursuant
to Penal Code section 1170.95 entered after an evidentiary
hearing held under subdivision (d) of that statute.1 He contends
that the trial court erroneously applied a substantial evidence
standard to find that defendant was guilty of murder under the
2018 amendments to sections 188 and 189, rather than requiring
proof beyond a reasonable doubt. We disagree.
Defendant also contends that the trial court’s order should
be reversed due to ineffective assistance by appointed counsel in
the trial court. Finding insufficient evidence to support this
claim, we reject it and affirm the order.
BACKGROUND
1992 conviction
In 1992 defendant was convicted of first degree murder and
second degree robbery. He was sentenced to 25 years to life plus
seven years.2 The judgment was affirmed on appeal in People v.
Zorns (Mar. 31, 1993, B066434) (nonpub. opn.) (Zorns I).
Factual summary in appellate opinion3
“On July 3, 1990, Judy Adams, assistant manager of the
San Fernando swap meet, packaged the daily receipts and took
the money bags to the car of Barney Pipkin, the manager. Two
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Defendant was released on parole prior to the hearing on
his section 1170.95 petition.
3 We quote the factual summary in full, as the trial court
relied significantly on the summary in ruling on defendant’s
section 1170.95 petition.
2
other swap meet employees were assisting in loading the car.
Ricardo Roldan ran up to Pipkin with a gun and said ‘Don’t
f*****g move.’ As Roldan aimed the gun at Adams, it made a
clicking noise. Pipkin, who had a hearing disability, continued to
put the bags in the trunk. Sergio Ayala then approached the car,
grabbed the money bags, and ran towards the swap meet exit.
Pipkin ran after Ayala, and Roldan followed. Ayala ran to a
white Firebird driven by appellant. Meanwhile, Adams phoned
the police. Juan Jimenez, a security guard, chased after Ayala.
Jimenez yelled to Roland Teal, another security guard, to help
him. Teal followed Ayala in his van, and Jimenez followed in the
car of one of the vendors.
“Teal stopped the getaway car, got out of his van, and
began struggling with Ayala. Pipkin, Jimenez, and Teal’s
stepson then arrived at the scene and assisted in subduing Ayala.
Roldan, holding a gun, shouted at them to let Ayala go or he
would shoot. Jimenez pushed Ayala toward the gunman and
heard a burst of gunshots. Everyone scattered. The gunman
ordered Ayala to pick up the money, and they drove off in the
getaway car.
“As the robbers drove away, Pipkin called the police from
his car phone and gave them the license plate number of the
getaway car. Returning to the scene of the crime, he saw Teal on
his knees in the street. Teal died as a result of a gunshot that
pierced his lungs and heart.
“Jimenez identified appellant in court as the driver of the
getaway car. He testified that he was five feet away from
appellant as appellant was driving the getaway car out of the
swap meet. He also identified Roldan from a photographic
lineup.
3
“Ericka Catalan, who lived near the location where the
shooting took place, testified that she saw Ayala and Teal
struggling over bags. She heard gunshots and saw Ayala and a
second man, who had a gun, run to a car. In court she identified
appellant as the driver of the car. During a police interview,
Catalan described the driver of the car as having curly black hair,
and that he yelled at the men in Spanish to ‘get into the car.’ At
a photographic lineup, she identified Roldan.
“Christine Pedraza, appellant’s wife, owned a white
Firebird with license plates matching those reported to the police
as belonging to the getaway car. She testified at trial under a
grant of immunity. She overheard appellant making plans to ‘do
something,’ and noticed that he was trying to hide something
from her. On June 3, 1990, appellant took her car. Later, he
called her, sounding ‘hyper,’ and saying that ‘he did it.’ He told
her to call the police to report that her car had been stolen. She
then heard Ayala say that no one got a license plate number.
Appellant told Pedraza not to worry, and not to report the car as
stolen. When she went to pick up appellant, she saw him with
Ayala, Roldan, and two other men, Mendez and Carlos. A pouch
containing money was on the couch next to Ayala. She also saw a
briefcase and a brown paper bag, both containing money. Back at
her house, she later saw appellant take money out of a brown
paper bag, and count out $4000.
“Roldan’s former girlfriend, Jude Barrios, testified under a
grant of immunity at the preliminary hearing and at trial that
she became aware that Roldan was planning to rob the San
Fernando swap meet about a year before the incident. A month
prior to the robbery, at the house she and Roldan shared, she
heard Roldan discuss robbing the swap meet with appellant. The
4
day before the robbery, she heard Roldan tell appellant and
Ayala that they could ‘do it’ the next day.
“The next evening, Barrios picked up Roldan at appellant’s
house. The day after the robbery, Barrios heard Roldan, Ayala,
and appellant discussing the robbery. Roldan said he heard
Ayala tell the security guard holding him to let him go or his
homeboy would kill him.”
Section 1170.95 petition
In 2018, the Legislature amended sections 188 and 189,
limiting the scope of the felony-murder rule, effective January 1,
2019. The Legislature added section 1170.95, which provides a
procedure for those convicted of murder to retroactively seek
relief if they could not be convicted under sections 188 and 189 as
amended effective January 1, 2019. (Stats. 2018, ch. 1015; People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)4
In January 2019 defendant filed a petition pursuant to
section 1170.95, including a declaration alleging that he had been
4 Section 188, subdivision (a)(3) now provides: “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” Section 189, subdivision (e) now
provides: “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 major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
5
charged in an information that allowed the prosecution to
proceed under a theory of felony murder, and though he was
convicted of first degree murder, he could not now be convicted
due to the changes to sections 188 and 189. Counsel appeared for
defendant and both sides submitted briefs. On October 20, 2020,
the trial court called the matter for an evidentiary hearing on the
“major participant issue,” although the record does not reflect
that the trial court issued an order to show cause.
At the evidentiary hearing the parties submitted the issue
on the facts summarized in Zorns I, supra, B066434. In addition,
the prosecutor asked the court to consider the testimony from
defendant’s 1992 trial reported at pages 1391 through 1393 of
volume 10 of the reporter’s transcript. Those pages featured the
testimony of Barrios (Roldan’s former girlfriend) to the effect that
the day after the robbery she heard defendant, Roldan and Ayala
laughing and joking about the robbery. She testified that
defendant said he ran over some people and then laughed when
Roldan told him he was crazy.5 She also testified that defendant
said he did not drive too close to the scene because he did not
want to draw suspicion to the car or be recognized.
The trial court reviewed the facts as summarized in the
appellate opinion and those presented by the prosecutor before
denying the petition. The court based its findings on an analysis
of factors suggested in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), finding
that defendant was a major participant in the robbery, having
been part of the planning for at least a month, and acted with
5 The reporter’s transcripts of the 1992 trial do not show any
evidence that defendant ran over anyone. Indeed, the prosecutor
conceded in his closing argument that it did not happen.
6
reckless indifference to human life with “indifference to an actual
awareness of the grave risk of death by committing robbery,” and
was thus guilty of murder under the current felony-murder rule
set forth in section 189. (See § 189, subd. (e)(3).)
Defendant filed a timely notice of appeal from the order
denying his petition.
DISCUSSION
I. The trial court proceedings
A. Standard of proof
Defendant contends that the trial court erroneously based
its findings upon a substantial evidence review, using the wrong
standard of proof in concluding that he was a major participant
in the underlying robbery and acted with reckless indifference to
human life.6 Defendant argues that the error was prejudicial as
there is a reasonable probability that if the court had applied a
reasonable doubt standard, his petition would have been granted.
At the time the trial court ruled on defendant’s petition,
section 1170.95, former subdivision (d)(3) provided that at the
evidentiary hearing stage of proceedings, “the burden of proof
6 Defendant argues that the trial court used the standard of
review set forth in People v. Duke (Sept. 28, 2020, B300430),
review granted, cause transferred and opinion ordered
nonpublished Nov. 23, 2021, S265309. Although Duke described
what was essentially the substantial evidence standard,
defendant describes the standard used by the trial court
alternatively as substantial evidence and as “the ‘some evidence’
standard.” The “some evidence” standard of review requires only
a modicum of evidence. (In re Shaputis (2011) 53 Cal.4th 192,
209-210.) Defendant’s use of the term does not affect our
analysis.
7
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (See Lewis,
supra, 11 Cal.5th at p. 960.) The Legislature recently amended
section 1170.95 and added language to subdivision (d)(3) to
reaffirm the prosecutor’s burden of proof beyond a reasonable
doubt, adding: “A finding that there is substantial evidence to
support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (Stats. 2021,
ch. 551, § 2; see id., § 1(c).)7
At the evidentiary hearing the prosecutor advocated a
substantial evidence review, while defense counsel argued that
the prosecution’s standard of proof was beyond a reasonable
doubt. The trial court’s statement of findings and ruling does not
include the standard it applied. The People argue that the court
impliedly applied a reasonable doubt standard because it acted as
an “independent factfinder.”8 The judge in this proceeding was
7 Section 1170.95, subdivision (d) also now includes: “The
admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. . . . The prosecutor and the
petitioner may also offer new or additional evidence to meet their
respective burdens. . . .”
8 The People seemingly come to this conclusion by analyzing
the following appellate court cases, which are no longer citable,
by order of the California Supreme Court: People v. Clements
(Feb. 2, 2021, E073965), review granted, cause transferred and
8
not the trial judge, and the court’s comments regarding the
parties’ citations to the appellate opinion suggest that the court
had not reviewed the reporter’s trial transcripts, but instead
reviewed the facts summarized in Zorns I and those recited by
the prosecutor at the hearing.9 The appeal in Zorns I did not
address any claim or factors relating to whether defendant was a
major participant in the robbery or whether he acted with
reckless indifference to human life. At the section 1170.95,
subdivision (d) hearing, the prosecutor did not proffer any new
evidence or cite to the trial transcripts other than the testimony
relating to defendant’s joke about having run someone over at the
scene. 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. (Evid. Code, § 664; Peake v. Underwood
(2014) 227 Cal.App.4th 428, 447; People v. Mack (1986) 178
opinion ordered nonpublished Dec. 22, 2021, S267624; People v.
Rodriguez (Dec. 7, 2020, B303099), review granted, cause
transferred and opinion ordered nonpublished Dec. 22, 2021,
S266652; People v. Lopez (Oct. 30, 2020, H047254), review
granted, cause transferred and opinion ordered nonpublished
Dec. 22, 2021, S265974; People v. Duke, supra, B300430, review
granted, cause transferred and opinion ordered nonpublished.
9 Originally, there were 17 volumes of reporter’s transcripts,
which are no longer available in this court’s archives. The People
filed 16 of the transcripts but were unable to locate volume 7. We
granted the People’s request for judicial notice of its brief in
defendant’s appeal from the 1992 judgment. The People also
refer here to the brief’s summary of the testimony reported in the
missing transcript. We have reviewed some of the record
available.
9
Cal.App.3d 1026, 1032.) We decline defendant’s invitation to do
otherwise.
B. The Banks and Clark factors
The reckless indifference requirement was first articulated
in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida
(1982) 458 U.S. 782 in relation to the imposition of the death
penalty. In Banks, decided after defendant was convicted of
felony murder, the California Supreme Court applied the
analysis to felony-murder special-circumstance requirements
under section 190.2. (Banks, supra, 61 Cal.4th at p. 794.) As
amended, section 189, subdivision (e)(3), incorporates the same
requirement into the felony-murder statute. Thus, to convict a
defendant who was not the actual killer of felony murder, the
prosecution is required to prove beyond a reasonable doubt that
the defendant acted with reckless indifference to human life as a
major participant in one of the enumerated serious felonies
underlying felony murder.
The factors for determining whether the defendant acted
with reckless indifference to human life as a major participant
were further clarified when the California Supreme Court
explained that a finding of reckless indifference to human life
“‘requires the defendant be “subjectively aware that his or her
participation in the felony involved a grave risk of death.”’”
(Banks, supra, 61 Cal.4th at p. 807.) Thus it must be proven
beyond a reasonable doubt that the defendant “knew his own
actions would involve a grave risk of death.” (Ibid., italics
added.)
Our high court has explained a spectrum of culpability, a
continuum with Enmund’s conduct at one end and the Tison
brothers’ conduct at the other, with other nonkiller felony
10
murderers falling in between; thus at one end is “‘the minor actor
in an armed robbery, not on the scene, who neither intended to
kill nor was found to have had any culpable mental state.’”
(Banks, supra, 61 Cal.4th at p. 800.) At the other end are the
“actual killers and those who attempted or intended to kill.”
(Ibid.; see id. at pp. 800-802.) “Somewhere between them, at
conduct less egregious than the Tisons’ but more culpable
than . . . Enmund’s, lies the constitutional minimum” showing
required for the imposition of death or life without the possibility
of parole. (Id. at p. 802.)
Thus “any person who plans or participates in an armed
robbery can be said to anticipate that lethal violence might be
used, given that ‘roughly 1 in 200 [armed robberies] results in
death.’ [Citation.] But that fact, without more, does not
establish reckless indifference to human life.” (In re Scoggins
(2020) 9 Cal.5th 667, 682 (Scoggins), quoting Banks, supra, 61
Cal.4th at p. 811.) Our Supreme Court has identified a number
of considerations bearing on whether a defendant was a major
participant who acted with reckless indifference to human life.
(Banks, supra, at p. 803.) What matters is the totality of the
considerations. (Scoggins, supra, at p. 677.)
The factors used to determine whether the defendant was a
major participant include the role played by the defendant in
planning the criminal enterprise that led to death; the role
defendant had in supplying or using a lethal weapon; the
awareness of the defendant of the particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants; the defendant’s presence at the
scene of the killing; and the defendant’s action after lethal force
was used. (Banks, supra, 61 Cal.4th at p. 803; see Clark, supra,
11
63 Cal.4th at p. 611; see also Scoggins, supra, 9 Cal.5th at
p. 677.)
C. The trial court’s findings
The trial court found defendant’s actions to be more
extensive than those of a Banks-like getaway driver. It cited two
of the Banks factors and found them sufficient to support its
finding that defendant acted with reckless indifference to human
life: planning; and presence at the scene of the killing and no
effort to prevent the killing. (See Scoggins, supra, 9 Cal.5th at
p. 677; Banks, supra, 61 Cal.4th at p. 803.)
1. Planning
The trial court found that defendant was involved in
planning for “at least a month.” The appellate opinion and the
record support this finding, indicating that defendant learned of
Roldan’s plan one month before the robbery. The opinion recited
Barrios’s testimony that a month before the robbery she heard
Roldan discussing robbing the swap meet, which he had been
planning for a year. (Zorns I, supra, B066434.)
The prosecution asserts that the trial court’s finding is
supported by trial evidence, citing specific pages in the record.10
Our review of the testimony at or near the cited pages shows that
Barrios testified she did not know exactly when she first
overheard Roldan discussing his plans for the robbery with
defendant, that it was “a month give or take” before the robbery,
and that she overheard no more discussions with defendant about
10 The prosecution cites the reporter’s transcript, volume 6 at
pages 957 and 962, and volume 10 at pages 1356, 1357, 1358, and
1361. As page 1361 was limited to the codefendants and not to be
considered against defendant, we do not consider whether it
supports the prosecution’s contention.
12
the robbery until just before it occurred when Roldan said they
“would do it tomorrow.” Though defendant and Ayala did not
verbally respond, they shrugged their shoulders and nodded their
heads. The robbery occurred the next day. Pedraza testified that
she overheard defendant and some friends planning to “do the
swap meet.”
2. Presence at the scene
The trial court found that defendant was present at the
scene of the killing and also that the shooting “happened
presumably right in front of [defendant], who at that point had
the ability to prevent the killings [sic] from happening.” The
court observed: “There is obviously a short car chase from the
scene of the robbery to where it ended. [I]t’s unclear exactly how
long that car chase lasted, but his car had to be stopped by the
security guards and another witness or security guard or swap
meet participant and that’s when the shooting happened . . . .
There was a struggle over the money and at that point
[defendant] could have stopped his accomplice from insisting on
taking the money. But he didn’t, and the shot was fired, and the
defendant drove the shooter away.”
There was a short chase, but defendant notes the getaway
car was not stopped. It was parked at the exit gate when Ayala
ran toward it with the money bags. Pipkin followed on foot
behind Ayala a short distance before returning to his car.
Jimenez testified that he chased Ayala on foot, and defendant
then engaged in driving that blocked or shielded Ayala from
security guard Jimenez. Eventually Ayala was able to get inside
the white getaway car, which then left the scene. These facts
support the trial court’s conclusion that defendant was at the
scene, actively involved to the extent he assisted in Ayala’s
13
escape and had the opportunity to have prevented the shooting
death of the victim.
3. Awareness of dangers posed by the nature of the
crime, weapons used, or past experience or conduct
of confederates
The trial court acknowledged that there was no evidence of
past experience or conduct between defendant and Roldan or
Ayala that would relate to defendant’s knowledge of the
particular danger, and we found none in the trial transcript.
This however, does not mean defendant was not a major
participant who acted with reckless indifference to human life.
D. Analysis
Because the trial court independently found defendant
guilty of murder because defendant was a major participant who
“did, in fact, act with reckless indifference to human life,” it is our
task to view the record to determine the existence of “substantial
evidence—evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Hubbard
(2016) 63 Cal.4th 378, 392.)
1. Major participant
Substantial evidence supports finding that defendant was a
major participant, even when applying the afore-described (part
I.B.) Banks and Clark factors.
First, defendant engaged in planning the robbery by
attending a meeting for that purpose a month or so before the
heist and then discussing the night before “do[ing] the swap
meet.”
14
Second, at the scene, defendant actively used the getaway
car to block or shield Ayala from the security guards who were
trying to apprehend Ayala.
Finally, defendant was at the scene of the killing and did
not intervene in any way to stop the shooting of the victim. Nor
did defendant render any aid to the victim. Instead he fled the
scene driving the vehicle containing Roldan and Ayala to a place
of safety where they could count the stolen money.
2. Reckless indifference to human life
This standard “has a subjective and an objective element.”
(In re Scoggins, supra, 9 Cal.5th at p. 677.) To satisfy the
subjective component, “‘[t]he defendant must be aware of and
willingly involved in the violent manner in which the [underlying
felony] is committed,’ and . . . must consciously disregard ‘the
significant risk of death his or her actions create.’” (Ibid., quoting
Banks at p. 801.) The key is whether the defendant
demonstrates “a willingness to kill (or to assist another in killing)
to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.”
(Clark, supra, 63 Cal.4th at p. 617.)
Our Supreme Court has identified various considerations
bearing on whether a defendant has acted with reckless
indifference to human life. “No one of these considerations is
necessary, nor is any one of them necessarily sufficient” (Banks,
supra, 61 Cal.4th at p. 803); what matters is the totality of the
considerations (Scoggins, supra, 9 Cal.5th at p. 677). The
considerations are: (1) “Did the defendant use or know that a
gun would be used during the [underlying] felony,” and, “[h]ow
many weapons were ultimately used?”; (2) “Was the defendant
physically present at the crime,” such that he had “the
15
opportunity to restrain the crime or aid the victim?”; (3) “What
was the duration of the interaction between the perpetrators . . .
and the victims?”; (4) “What was the defendant’s knowledge of
his . . . confederate’s propensity for violence or likelihood of using
lethal force?”; and (5) “What efforts did the defendant make to
minimize the risks of violence during the felony?” (Ibid., citing
Clark, supra, 63 Cal.4th at pp. 618-623.)
Substantial evidence supports the finding that defendant
acted with reckless indifference to human life, when applying
this standard. First, although defendant did not personally use
the gun, he must have known Roldan was armed with a gun since
they came together to the scene in the car driven by defendant.
Second, defendant was present during the shooting and did not
try to stop or dissuade Roldan from shooting. Third, the entire
incident happened quickly. Finally the record shows no effort by
defendant to minimize the risk of violence.
E. Conclusion
We conclude that there is substantial evidence upon which
an independent fact finder reviewing the record considered by the
original trial court could conclude that the prosecutor had proved
beyond a reasonable doubt that defendant is guilty of murder
under the current sections 188 and 189. We thus affirm the
order.
II. Assistance of counsel
A. Applicable legal principles
The Sixth Amendment right to counsel does not apply to
postjudgment collateral challenges, including statutory petitions
seeking a more ameliorative sentence. (People v. Frazier (2020)
55 Cal.App.5th 858, 865-866.)
16
Section 1170.95, which established a procedure for
defendants to seek resentencing in the trial court, constituted an
act of lenity that does not implicate a petitioner’s Sixth
Amendment rights. (People v. Anthony (2019) 32 Cal.App.5th
1102, 1156; see People v. Daniel (2020) 57 Cal.App.5th 666, 675.)
Consistent with these principles, our Supreme Court in
Lewis reasoned that a petitioner is not constitutionally entitled to
counsel at the outset of the subdivision (c) stage of the petitioning
process, concluding that “the trial court’s failure to appoint
counsel to represent [the petitioner] was state law error only.”
(Lewis, supra, 11 Cal.5th at p. 973.) And in holding that the trial
court’s error is reviewed for prejudice under People v. Watson
(1956) 46 Cal.2d 818, 836, Lewis explained the state statutory
error did not amount to structural error or a pervasive Sixth
Amendment violation. (Lewis, supra, at pp. 973-974.)
Although defendant had no Sixth Amendment right to
counsel, he did have a statutory right to assistance of counsel. “If
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1170.95, former subd. (c).)
The law is undeveloped as to whether a statutory right to
the appointment of counsel in a collateral criminal resentencing
action triggers an attendant due process right to the effective
assistance of counsel. (See People v. Rouse (2016) 245
Cal.App.4th 292, 300 [noting right to counsel without discussing
effective assistance of counsel].) Since the entitlement to counsel
after an order to show cause under section 1170.95 is not a hollow
right, counsel should be held to the same standard of competency
set forth in Strickland v. Washington (1984) 466 U.S. 668(Strickland). Based on that assumption we nevertheless find
that defendant has failed to demonstrate entitlement to relief.
17
In order to establish a claim of ineffective assistance of
counsel under Strickland, defendant must show that his counsel’s
performance was deficient and that he suffered prejudice as a
result of such deficiency. (Strickland, supra, 466 U.S. at pp. 687-
692.) Defendant bears the burden of showing counsel’s
performance “fell below an objective standard of reasonableness”
“under prevailing professional norms.” (Id. at p. 688.) “Judicial
scrutiny of counsel’s performance must be highly deferential.”
(Id. at p. 689.) There is a strong presumption that counsel
“rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” (Id. at
p. 690.) Defendant must also show that counsel’s deficiencies
resulted in prejudice, that is, a “‘reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” (Id. at p. 694.)
B. Counsel’s representation was adequate
1. Within objective standard of reasonableness
Defendant contends his counsel failed to point out certain
“[f]actual errors in the decision of the Court of Appeal” from 1993.
(Boldface omitted.) Specifically he claims a discrepancy between
the trial court’s statement that “Teal followed the getaway car
and stopped it” and testimony given by Pipkin and Jimenez.
However, defendant fails to make the required showing that his
counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that, but
for the alleged error, the results of the section 1170.95 proceeding
would have been different. Rather, the superior court applied an
independent fact finder standard of review and presumably found
beyond a reasonable doubt that, because defendant was a major
participant who acted with reckless indifference to human life, he
18
was ineligible for resentencing. To the extent the trial court
relied on the challenged statement in this court’s decision, it was
an appropriate finding under section 1170.95, former subdivision
(d)(3). The findings are also supported by the trial transcript of
witnesses’ testimony. Though details between the appellate
opinion and the trial transcript may not be identical, both contain
information that defendant was not only a driver who waited off-
site for his confederates to steal money and then come to him for
a ride. Rather the evidence shows defendant was close at hand
and when Ayala was running toward the white car, defendant
used the car (traveling both forward and in reverse) to gain a
position of advantage for Ayala. Defendant was described as
using the white car as a shield for the escaping Ayala.
Defendant also contends that his defense counsel’s reliance
on Banks and Clark was misplaced because unlike many or most
cases in which a petition for relief under section 1170.95 has been
filed by an accomplice to felony murder, there was no prior
finding of a section 190.2 special circumstance that would
preclude defendant from relief. This argument lacks merit
because at defendant’s evidentiary hearing, the court determined
whether defendant was liable for murder under current law
beyond a reasonable doubt, and each side had the opportunity to
offer “new or additional evidence” concerning that issue.
Defendant also claims his counsel failed to review or refer
to the transcript of his trial. Defendant relies extensively on
evidence that he believes would have more convincingly rebutted
the prosecution. However, as Strickland explained, “[i]t is all too
tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
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unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. [Citation.] . . . [Citation.] There are
countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a
particular client in the same way.” (Strickland, supra, 466 U.S.
at p. 689; see People v. Holt (1997) 15 Cal.4th 619, 704.)
Defendant’s claims amount to little more than alternatives, with
hindsight and awareness of the failure of trial counsel’s tactics,
which might have offered a stronger defense.
Defendant’s remaining claims concerning his participation
in the crimes and his reckless indifference to human life are an
attempt to reargue the evidence, an exercise in which we will not
participate.
Defendant has thus failed to meet his burden of
demonstrating his counsel’s performance “fell below an objective
standard of reasonableness” “under prevailing professional
norms.” (Strickland, supra, 466 U.S. at p. 688.)
2. Defendant fails to demonstrate prejudice
Even assuming that counsel provided deficient
representation by failing to provide specific record citations for
the evidence he raised in support of his argument, defendant has
not shown a reasonable probability of a different result but for
his counsel’s alleged deficiencies. The evidence contained in the
record before the trial court showed that defendant was a major
participant who acted with reckless indifference to human life.
Counsel’s citations to specific pages in the transcript would not
have changed the record, and therefore not the result. (See
People v Harpool (1984) 155 Cal.App.3d 877, 886-887 [defendant
was not deprived of effective assistance of counsel as the result of
counsel’s failure to move to suppress in-court identification
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testimony of witness where trial court attributed little value to
that witness’s testimony, and both the direct and circumstantial
evidence presented at trial overwhelmingly favored defendant’s
guilt].)
DISPOSITION
The order denying the section 1170.95 petition is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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