People v. Chiaia CA2/6 ( 2022 )

Filed 9/27/22 P. v. Chiaia CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for 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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B312891
(Super. Ct. No. SB199196)
Plaintiff and Respondent, (Santa Barbara County)
v.
ZACHARIAH CHIAIA,
Defendant and Appellant.
Zachariah Chiaia appeals an order denying his 2019
petition for resentencing of his 1994 second degree murder
conviction (Pen. Code, § 187, subd. (a)1) under former section
1170.95, renumbered, effective June 30, 2022, as section 1172.6,
with no change in text. (Stats. 2022, ch. 58, § 10.) He was
sentenced to 15 years to life in state prison. The trial court
issued an order to show cause. It subsequently denied the
All statutory references are to the Penal Code unless
1
otherwise stated.
petition. We conclude, among other things, that the court did not
err by denying the petition. We affirm.
FACTS
On May 25, 1993, Chiaia, then 18 years old, and his friends
Chad L., then 14, and Robert C., then 14, were “hanging out”
together. “One of them, apparently [Chiaia], suggested that they
beat up somebody for something to do.”
They went to a park where homeless people often sleep at
night, and they spotted “Louis Altmark, 58, lying on a bench.”
Chiaia approached Altmark and hit his forehead. Altmark stood
up, “at which time the three young men hit him, possibly twenty
times.” Altmark did not fight back, he “merely shielded himself”
from the attack.
The three young men left. They walked around the park
and ended up where Altmark was again lying on a bench.
Altmark saw the young men. He jumped up and ran. Chiaia ran
after him and “tackled him to the ground.” Robert C. and
Chad L. “started kicking Altmark in the ribs.” Chiaia hit and
kicked Altmark in the head and ribs.
Altmark made “a snoring sound which appeared to indicate
that [he] was unconscious.” Robert C. “rifled through” Altmark’s
backpack “for drugs or money.” “After removing a cigarette
lighter, he threw the things in the pond to dispose of
fingerprints.”
The three of them headed for Chad L.’s house, but they
turned around and went back to the park. “Robert C. and
[Chiaia] realized they had blood on them and they did not want
Mr. Altmark to drown in his own blood.” They flipped Altmark
over, and Chiaia took Altmark’s wallet.
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Chiaia and Robert C. went to the apartment of a friend of
Robert C. “where [Robert C.] bragged to his friend that they had
beaten someone up.” Robert C. thought he kicked Altmark “less
than 20 times while [Chiaia] kicked him less than 10 times.”
The next morning Altmark “was found” and taken to the
hospital. “He had a severe head injury, a swollen and bloody
face, was unconscious, had low body temperature, a fractured rib,
and irregular heart rhythm.” “[Altmark] was essentially brain
dead.”
“The emergency room physician testified that he rated the
beating on a scale of one to ten in seriousness as a ‘ten’ and could
not recall having seen a more serious beating.” Altmark died in
early August. “The forensic pathologist determined Mr.
Altmark’s cause of death as cerebral contusions with subdural
and subarachnoid hemorrhage due to blunt head trauma.”
Two days after the attack on Altmark, Chiaia went to the
police department and spoke with Sergeant McCaffrey. He told
McCaffrey, “ ‘He got beat. I’m not going to tell you who was with
me, I’m not a rat.’ ” McCaffrey said Chiaia told him that he
kicked “ ‘the victim in the face and upper chest area three or four
times. [Chiaia] had tried to stop the others and assessed his
involvement in the assault as 10 percent.’ ” Chad L. claimed
Chiaia did not request the others to stop or attempt to restrain
them during the attack.
The People filed an information charging Chiaia with one
count of murder. After a trial by jury, Chiaia was convicted of
second degree murder. We affirmed the conviction and stated,
“The evidence was overwhelming that [Chiaia’s] kicks and
punches, in combination with those of his cohorts, [were] a direct
cause or a substantial factor in Mr. Altmark’s death.”
3
In 2019, Chiaia filed a petition for resentencing under
former section 1170.95. The trial court issued an order to show
cause. The court held a total of eight hearings on various stages
of Chiaia’s petition. The last two hearings involved the People’s
return to the court’s issuance of an order to show cause (OSC)
and their request to reconsider the issuance of the OSC. The
prosecutor claimed the uncontradicted evidence in the trial
transcripts showed Chiaia was an actual killer and therefore
categorically ineligible for section 1170.95 relief.
At the final hearing Chiaia’s counsel told the trial court he
did not need a further hearing to present new evidence because
he was not presenting any additional evidence. He was relying
on the facts in the record of conviction that included the trial
transcripts. The People also elected to rely on the evidence
admitted at Chiaia’s jury trial. The court took the matter under
submission. In denying the petition, the court found “the
prosecution has proven the elements of second degree murder
beyond a reasonable doubt.” It found Chiaia was not eligible for
relief under former section 1170.95.
DISCUSSION
Resentencing Under Section 1170.95 (Now Section 1172.6)
The origin of former section 1170.95 was the passage of
Senate Bill No. 1437 in 2018. (Stats. 2018, ch. 1015, § 4.)
“Senate Bill 1437 ‘amend[s] 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.’ ” (People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, italics added.)
4
A defendant convicted of murder may file a petition under
this section alleging he or she “could not be convicted of first or
second degree murder” because of changes to the law required by
Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38
Cal.App.5th at p. 417.) If the petitioner has made a prima facie
showing that he is entitled to resentencing relief, the trial court
will issue an order to show cause for a second stage hearing. At
that hearing the court will make independent findings on the
evidence and decide whether to resentence the defendant. An
appellate court reviews those findings for substantial evidence
and draws all reasonable inferences in favor of the trial court’s
decision. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-
508.)
The Standard the Trial Court Used to Make Its Findings
Chiaia contends the trial court used an incorrect standard
to make its findings. He notes the court cited a case that applied
a substantial evidence standard.
But, as the People note, the trial court also made an
alternative finding as “an independent factfinder” and applied
the correct standard. The court said, “[T]he prosecution has
proven the elements of second degree murder beyond a
reasonable doubt.” (Italics added.) The court cited a case
containing an incorrect standard, but it applied the correct
beyond a reasonable doubt standard to make its findings. (People
v. Owens (2022) 78 Cal.App.5th 1015, 1022.)
Consideration of Facts from an Appellate Opinion
Chiaia contends the trial court erred by considering facts
from the statement of facts in the appellate decision that
affirmed his second degree murder conviction.
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But Chiaia did not object to the admission of facts from
that decision. Consequently, he has forfeited this issue. (People
v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) But even had he
objected, the result does not change.
Chiaia argues that when the trial court denied his petition,
facts in appellate opinions were part of the record of conviction
that the trier of fact may consider in determining whether a
conviction qualifies under the sentencing scheme at issue.
(People v. Woodell (1998) 17 Cal.4th 448, 457.) But he claims
Senate Bill No. 775 (Sen. Bill 775) changed the procedure at the
evidentiary hearing because it did not include the language of the
former statute that authorized relying on those facts. He claims
Sen. Bill 775 is fully retroactive and he is entitled to a reversal.
“[A] change in the criminal law will be given retroactive
effect when a rule is substantive rather than procedural.” (In re
Martinez (2017) 3 Cal.5th 1216, 1222.) Sen. Bill 775 (2021-2022
Reg. Sess.) made substantive changes that are retroactive.
(Stats. 2021, ch. 551, § 2.) But it also made procedural changes to
the evidentiary hearing. Procedural changes generally apply
prospectively. (Martinez, at p. 1222.) “There is no statement in
Senate Bill 775 indicating that the procedural change is to be
applied retroactively on appeal.” (People v. Owens, supra, 78
Cal.App.5th at p. 1026.) This arguably may indicate an intent
not to make the procedural changes retroactive. (Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 724.)
But we need not decide that issue because, assuming
arguendo that the Sen. Bill 775 procedural changes are
retroactive to pending cases, the result will not change. Sen. Bill
775 provides, “The admission of evidence in the hearing shall be
governed by the Evidence Code, except that the court may
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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.”
(Former § 1170.95, subd. (d)(3), now section 1172.6, subd. (d)(3).)
The material facts in our decision in this case recited “evidence
previously admitted” at trial which is “admissible under current
law.” “[W]e presume the facts previously stated by this court
were faithful to the appellate record before us and reliably
summarized the evidence against defendant.” (People v. Guilford
(2014) 228 Cal.App.4th 651, 661; People v. Harris (2021) 60
Cal.App.5th 939, 959, fn. 13, review granted April 28, 2021,
S267802.) Consequently, facts reciting admissible trial witness
testimony in appellate decisions, as here, may be considered as
evidence by trial courts in resentencing proceedings. (People v.
Lewis (2021) 11 Cal.5th 952, 972 [the appellate opinion is part of
the record of conviction in section 1170.95 proceedings]; People v.
Woodell, supra, 17 Cal.4th at p. 457; Harris, at p. 959, fn. 13;
People v. Williams (2020) 57 Cal.App.5th 652, 662; Guilford, at
p. 661.) “[T]he appellate opinion is part of the record of
conviction and factual statements in the opinion are admissible
in section 1170.95 proceedings . . . .” (Harris, at p. 959, fn. 13.)
Moreover, the trial court here also had the trial transcripts.
Chiaia claims the court exclusively relied on the facts in the
appellate opinion. That is not correct. The court said, “[T]he
court is left to render a decision based on the record of conviction,
including the Court of Appeal’s decision.” (Italics added.)
Because the court had the trial evidence in the record before it,
and decided facts from the record of conviction, it had the
evidence authorized by Sen. Bill 775. (People v. Owens, supra, 78
Cal.App.5th at p. 1022.) The court made its own findings using a
7
beyond a reasonable doubt standard and found Chiaia acted with
“malice”; he initiated the beating, attacked Altmark, acted with a
conscious disregard for human life; and his self-serving
statements to police were not credible. Chiaia has not shown
that any of the trial court’s fact findings were not supported by
admissible evidence in the record of conviction. (Ibid.) Moreover,
Chiaia’s trial court brief contains a compelling admission – “Mr.
Chiaia admits to having repeatedly kicked the victim in the head.”
(Italics added.)
Consideration of Youth Offender Traits
Chiaia contends the trial court erred by not considering his
“youth-offender traits” to make findings on such issues as malice
and a reckless disregard for human life.
“Reckless indifference to human life is ‘implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death.’ ” (In re Scoggins (2020) 9 Cal.5th 667, 676.) The
greater the defendant’s participation in the crime, “ ‘the more
likely that he acted with reckless indifference to human life.’ ”
(People v. Clark (2016) 63 Cal.4th 522, 615.)
Chiaia cites In re Moore (2021) 68 Cal.App.5th 434, where
the court held a minor’s youth was a relevant factor in
determining whether he acted with reckless indifference to
human life. That case involved a 16 year old who was not the
actual killer.
In re Harper (2022) 76 Cal.App.5th 450 involved a 16 year
old convicted of murder who was not the actual killer. The court
said, “We need not decide today whether youth is a factor that
must be considered whenever the Banks/Clark [People v. Banks
(2015) 61 Cal.4th 788; People v. Clark, supra, 63 Cal.4th 522]
analysis is conducted for a defendant who was a minor at the
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time of the offense.” (Id. at p. 470.) But without deciding that
issue, the court nevertheless weighed evidence of youth-related
factors with the facts of the offense. The youth-related factors
were not sufficient as a mitigating factor given the aggravating
facts of his crime.
The trial court considered Chiaia’s claim that his youth was
a mitigating factor. But it found he did not present youth trait
evidence to show lack of malice. Chiaia claimed his age,
“immaturity, and his organic inability to adequately contemplate
and appreciate the consequences of his actions” should be
considered. But this was a conclusory claim. Youth-related
evidence depends on the “evidence” or “offer of proof” presented.
(People v. Howard (2021) 74 Cal.App.5th 141, 152.) Chiaia
presented no evidence other than his age. The trial court may
not speculate about evidence Chiaia did not present. Because
this was personal information, that only he would know, the
court could draw unfavorable inferences against him. (Evid.
Code, § 412.)
Moreover, Chiaia did not even make an offer of proof. The
court, noting this, said, “[P]etitioner has not indicated what
evidence he would offer to demonstrate the absence of malice
based on his immaturity.” (Italics added.) In cases involving
juveniles, the “presumption of immaturity” may be rebutted
where there is “no particularized mitigating evidence before the
court.” (People v. Blackwell (2016) 3 Cal.App.5th 166, 202, italics
added.) Unlike Moore and Harper, Chiaia was an adult and an
actual killer. “ ‘[C]hildren are constitutionally different from
adults for purposes of sentencing’ ” (People v. Jackson (2021) 61
Cal.App.5th 189, 197), and defendants who participate in killing
9
are categorically different than those who do not. (People v.
Gutierrez-Salazar, supra, 38 Cal.App.5th at p. 417.)
Moreover, even where youth-related trait evidence is
presented, it may not be sufficient as a mitigating factor where
the crime involves: 1) the defendant’s willing participation in a
serious crime posing “a very high risk” that the victim “would
die”; 2) the defendant showed “indifference” to the victim’s fate;
or 3) where there are other significant Banks/Clark aggravating
factors. (In re Harper, supra, 76 Cal.App.5th at p. 472.)
These aggravating factors are present here. Chiaia directly
participated in a deadly attack. The danger was increased
because this was a surprise group attack on a helpless
unsuspecting victim. There was a “very high risk” of death
because the emergency room physician testified he “could not
recall having seen a more serious beating.” Chiaia showed “a
willingness to use” violent force. (People v. Clark, supra, 63
Cal.4th at p. 619.) Violence was not an incidental or unexpected
result; it was the goal of this crime. Chiaia knew his
“confederate’s propensity for violence” because he participated in
the group attack with them. (In re Scoggins, supra, 9 Cal.5th at
p. 677.) Chiaia’s “own actions” played a role in the victim’s death.
(People v. Banks, supra, 61 Cal.4th at p. 803.) He made no effort
to “minimize the possibility of violence during the crime.” (People
v. Owens, supra, 78 Cal.App.5th at p. 1024; see also Scoggins, at
p. 677.)
Chiaia’s conduct after the attack showed a callous
disregard for the victim. He took advantage of the injured man
by taking his wallet and leaving him to die without calling for
emergency medical assistance. (People v. Douglas (2020) 56
Cal.App.5th 1, 10.) The trial court could also reasonably infer the
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common juvenile trait of a minor being influenced by other
juvenile peers or older criminals was not present. Chiaia was the
adult who committed this offense with minors.
The trial court found Chiaia’s “self-serving statements
about his attempts to stop his accomplices lack credibility,
particularly in light of his active role in the beatings.” It found
Chiaia “initiated the beating” and he “tackled” the victim “when
he tried to run away.” “[T]he trial court was not limited to
considering only appellant’s self-serving statements to determine
his mental state, particularly when those statements were made
to police when appellant had an incentive to minimize his
involvement.” (People v. Owens, supra, 78 Cal.App.5th at
p. 1025.) The court “properly considered all of the evidence in
determining appellant acted with reckless indifference.” (Ibid.)
It could reasonably infer the lack of provocation, violence,
deliberate brutality of this crime and the callous nature of
Chiaia’s actions outweighed any mitigating factors. (In re
Harper, supra, 76 Cal.App.5th at p. 472.)
Right to a Due Process Hearing
Chiaia contends he did not receive a hearing complying
with due process standards or the requirements of section
1170.95. We disagree.
The trial court held eight hearings at the various stages of
his petition. The eighth hearing was a second stage hearing. The
court had issued an OSC. The People filed a return. Counsel for
the parties appeared. The trial transcripts had been filed with
the court. The evidence admitted at trial constituted admissible
evidence for the hearing. Both parties agreed there would be no
new evidence. The People cited facts from the record to show
Chiaia was guilty of second degree murder. The parties filed
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briefs citing the evidence from the trial transcripts. The court
took the matter under submission and then filed a written
decision, making independent fact findings and ruling the People
had met their burden of proof.
Chiaia contends the trial court erred by not holding a ninth
hearing to consider new evidence. The People respond this claim
is barred by the invited error doctrine.
At the October 6, 2020, hearing, the trial court asked
Chiaia’s counsel whether he was going to present new evidence at
another hearing. Counsel said, “At this stage it’s simply
argument on the evidence and on the transcript of the trial
record.” Counsel felt another hearing was not necessary. The
court relied on the option selected by Chiaia’s counsel. (People v.
Reynolds (2010) 181 Cal.App.4th 1402, 1408.) There was no error
and no reason to hold a ninth hearing to consider new evidence
when there was no new evidence to be presented. (People v.
Owens, supra, 78 Cal.App.5th at p. 1022.)
Chiaia’s Ineligibility for Resentencing Relief
The People contend the trial court correctly denied the
petition because Chiaia was “an actual killer.”
A defendant who was an actual killer is not entitled to
relief under former section 1170.95 or current section 1172.6.
(People v. Gutierrez-Salazar, supra, 38 Cal.App.5th at p. 417.) As
we stated in our prior decision that affirmed Chiaia’s second
degree murder conviction, “The evidence was overwhelming that
[Chiaia’s] kicks and punches, in combination with those of his
cohorts, [were] a direct cause or a substantial factor in Mr.
Altmark’s death.” The trial court may consider the record of
conviction in deciding whether a petition is “meritless.” (People v.
Lewis, supra, 11 Cal.5th at pp. 970-971; People v. Owens, supra,
12
78 Cal.App.5th at p. 1022.) Before issuing its order to show
cause, the trial court found Chiaia was “an actual killer.”
After holding eight hearings, the trial court again found
Chiaia was ineligible for resentencing because he acted with
“malice”; he “initiated the beating by hitting or kicking Altmark”;
he acted with “conscious disregard for life”; and the “prosecution
has proven the elements of second degree murder beyond a
reasonable doubt.” We must draw all reasonable inferences in
support of these findings. (People v. Owens, supra, 78
Cal.App.5th at p. 1022; People v. Crosswhite, supra, 101
Cal.App.4th at pp. 507-508.) Chiaia has not shown why the trial
court could not reasonably find that he was not eligible for
resentencing as an actual killer or a major participant acting
with reckless disregard for human life in the deadly attack.
(People v. Gutierrez-Salazar, supra, 38 Cal.App.5th at p. 417.)
Violating Chiaia’s Right to Appear
Chiaia contends the trial court “violated” his right to
appear in the proceedings. We disagree.
Chiaia notes that when the trial court issued its order to
show cause, it stated, “Given the uncertainties in how this matter
will proceed, and the logistical issues related to [his]
incarceration and how that will impact his ability to effectively
participate in the process, the court would like the opportunity to
confer with the parties, before making a determination about how
this matter should proceed.” (Italics added.) Chiaia notes there
is a gap in the record because, “[t]here was no conference on the
logistics on the record.” (Italics added.) He concludes that the
court violated his right to appear in the proceedings.
But the record is incomplete. We cannot presume error
based on an incomplete record. (People v. Malabag (1997) 51
13
Cal.App.4th 1419, 1427.) The “defendant has the burden of
providing a record adequate to support his arguments on appeal.”
(Ibid.) He did not meet his burden. The facts about what
conferences and agreements the parties and the court made on
this issue should have been resolved with a settled statement.
(Ibid.) “ ‘ “A judgment or order of the [trial] court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent . . . .” ’ ”
(Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Moreover, the claim that the trial court was violating
Chiaia’s right to appear is not shown by the court’s statement. It
shows the court understood his right to appear and it was
proceeding to accommodate that right.
Other Issues
Chiaia appears to suggest that his trial counsel acted
without his consent, and that he (Chiaia) was prevented from
appearing at the hearing. But these claims are made without a
specific factual summary and without citations to the record.
Consequently, the record is not sufficient to support them or to
support an ineffective assistance claim on a direct appeal. (Cal.
Rules of Court, rule 8.204(a)(2)(C); People v. Mendoza Tello (1997)
15 Cal.4th 264, 266; People v. Malabag, supra, 51 Cal.App.4th at
p. 1427.) After reviewing all of Chiaia’s contentions, we conclude
he has not shown grounds for reversal.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Thomas R. Adams, Jr., Judge
Superior Court County of Santa Barbara
______________________________
Sylvia W. Beckham, 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 Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
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