People v. Eng CA1/1 ( 2024 )

Filed 5/21/24 P. v. Eng CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A166699
v. (San Francisco City & County
DAVID T. ENG, Super. Ct. Nos. CRI 1093930,
132384-2)
Defendant and Appellant.
Defendant David T. Eng appeals from the denial of a petition for
resentencing under Penal Code1 section 1172.6 after an evidentiary hearing.
He contends the trial court abused its discretion in denying his Marsden2
motions to substitute appointed counsel and in denying his petition for
resentencing. We affirm.
BACKGROUND
Defendant was convicted of second degree murder in 1989 and
sentenced to 17 years to life. In July 2021, he filed a petition for resentencing
pursuant to now section 1172.6 (formerly § 1170.95). The prosecution
stipulated the petition stated a prima facie case for resentencing, and the
All further statutory references are to the Penal Code unless
1
otherwise indicated.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
trial court appointed counsel, issued an order to show cause, and set the
matter for an evidentiary hearing.
Several months later, defendant filed a Marsden motion requesting the
court relieve his current counsel and appoint new counsel to represent him on
his resentencing petition. The trial court heard and denied the motion
without prejudice.3
Shortly before the evidentiary hearing on his petition for resentencing,
defendant filed a second Marsden motion, which he withdrew at the
beginning of the evidentiary hearing.
The court proceeded to the merits of defendant’s petition. The
prosecution, relying principally on the testimony at the preliminary hearing,
argued the “transcript established that [defendant] personally stabbed the
victim—participated in it. The victim was stabbed 29 times. There is not a
scenario in which malice for this murder conviction could be imputed to the
[defendant].” Counsel for defendant did not present any additional evidence
and submitted on the record of conviction.
After the prosecution also submitted, the court asked defense counsel if
there was “[a]ny argument . . . on behalf of [defendant] regarding the People’s
position that there’s sufficient evidence based on the preliminary hearing
transcript.” Defense counsel responded: “Well, a preliminary hearing
transcript establishes probable cause only. It does not establish proof beyond
a reasonable doubt which is the burden on the People at this particular
hearing, so in that regard it’s insufficient.”
3 We discuss the details of the hearings on defendant’s Marsden
motions in detail, infra, in connection with our discussion of the issues on
appeal.
2
The court then asked defendant if he “wish[ed] to address the Court in
any way,” noting he had previously mentioned he wanted to bring “a couple
things up.” Defendant responded he “would like to go on with the Marsden
motion.” The trial court heard the motion and denied it.
The court then turned to the merits of defendant’s petition. Stating it
had reviewed the information and the preliminary hearing transcript, the
court discussed what the record showed: Defendant’s sister4 reported to
defendant and codefendant, Anthony Hardnett, “that she had been . . . .
terribly disrespected and that she wanted something done about it. And
[defendant] along with his codefendants then proceeded to the location where
the victim was. The victim was essentially invited into a room to get high—
that kind of thing and that [sic] was set upon by a group of people including
[defendant]. And the transcripts of the sworn testimony indicates [sic] that
[defendant] was part of the group that stabbed the victim. The victim was
stabbed 29 times. And among the first people to stab were [defendant and
Hardnett]. The . . . decedent was alleged to have been a pimp and a drug
dealer involved in prior violence.”
The court further stated: “There’s testimony that when [defendant]
himself stabbed the decedent and then put his hand over the decedent’s
mouth and himself [sic] and the others continued to stab the decedent as the
decedent was sliding down up against the wall and that [defendant] actually
urged others to stab the victim some more.” Based on that testimony, the
court found defendant “is not someone who is eligible under the statute.” The
court also stated it “did not see that there was any felony murder theory that
was proffered at the trial. I don’t find that there was a natural and probable
consequence theory where [defendant] or one of his codefendants was accused
4 Defendant, his sister, and Hardnett were jointly tried.
3
of a target crime that then resulted in the decedent being killed. I didn’t find
that there was any evidence of that.” The court expressly found defendant
“was an active participant acting with the intent to kill.” The court therefore
ruled defendant did not qualify for relief under section 1172.6 and denied the
resentencing petition.
DISCUSSION
Marsden Motions
Defendant contends the trial court abused its discretion in denying his
motions to substitute counsel because (1) he presented clear evidence of
irreconcilable conflicts that made it likely he would receive ineffective
representation and (2) the court’s failure to conduct an adequate inquiry of
counsel prevented it from making an informed decision on the motions.
“ ‘When a defendant seeks substitution of appointed counsel pursuant
to [Marsden, supra,] 2 Cal.3d 118, “the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of
inadequate performance. A defendant is entitled to relief if the record clearly
shows that the appointed counsel is not providing adequate representation or
that defendant and counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.” ’ ” (People v. Ng
(2022) 13 Cal.5th 448, 500.) We review the denial of a Marsden motion under
the abuse of discretion standard. (Ng, at p. 500.)
Initial Marsden Motion
Defendant filed his first Marsden motion more than two months before
the evidentiary hearing. The written motion included a declaration stating
he filed his petition for resentencing in June or July 2021 and was appointed
counsel. A year later, after becoming “increasingly frustrated,” he made “a
major effort to find out what was going on with [his] resentencing efforts from
4
[his] difficult to reach appointed attorney.” When defendant was finally able
to speak with his attorney, he told defendant he did not have grounds for
relief under section 1172.6. Defendant told his attorney that his codefendant,
Hardnett, testified at trial that he (Hardnett) was the actual killer, that
because of this, defendant “could not be convicted under the laws in effect
today,” and that his attorney “needed to get the transcripts and see for
himself.” His attorney assertedly told him “it didn’t matter.” Defendant
claimed he therefore had “a substantial difference of opinion” with his
attorney and his attorney had a conflict of interest based on “his own busy
schedule and collegial relationships with the [d]istrict attorney’s office.”
Finally, defendant averred his codefendants, Hardnett and defendant’s sister,
were prepared to testify he was not the actual killer, had no intent to kill,
and was never recklessly indifferent to human life.
At the Marsden hearing, defendant complained about the delays in the
resentencing proceedings and his counsel not acting as “a zealous advocate.”
Defendant maintained his attorney was “on the side of the District Attorney”
and had not considered his culpability at the time of the murder. Defendant
also said he had not received the transcripts from his trial and complained
his attorney told him he was ineligible for relief without reviewing the
transcripts, which, according to defendant, would reveal that Hardnett “took
the stand and stated he [(Hardnett)] committed this murder.” Defendant
argued that he told his counsel the jury did not find him guilty of first degree
murder, despite testimony by his ex-girlfriend that he planned and
premeditated the murder. Because “everything needed to be reevaluated,” it
was not reasonable to assume her testimony was truthful.
The trial court asked defense counsel to address defendant’s
complaints, beginning with his concern that the case had aged with no
5
resolution. Counsel noted one reason for the delay was he initially sought
relief for defendant under section 1170, subdivision (d), because defendant’s
sister had been successful with that process. But the district attorney
unequivocally refused to agree to similar relief for defendant. He also told
the court there had been delays due to COVID-19.
Counsel further told the court he last spoke with defendant about three
weeks before the hearing. Although he had not received the trial transcripts
at that time, he had reviewed a Ninth Circuit Court of Appeal opinion and
had spoken with trial counsel for the codefendants.5 Defendant’s attorney
explained to defendant that even if he was not the actual killer, he would still
be ineligible for relief under section 1172.6 if he was aiding and abetting a
killing with intent to kill, which appeared to be the situation. Counsel had
recently received the trial transcripts, jury instructions, and closing
arguments from the trial and stated, “I’ve gone through that. What I have
not gone through yet, I didn’t have a chance, was Mr. Hardnett’s testimony.”
With regard to Hardnett’s testimony, counsel had told defendant that since
all three codefendants were convicted, it appeared the jury did not believe his
testimony over that of defendant’s ex-girlfriend, who testified for the
prosecution.
The trial court found counsel had not been dilatory and had “been
moving forward trying to figure out the best path to get [defendant’s] relief.”
The court told defendant it appreciated his concerns, but denied the motion
without prejudice, concluding counsel was “providing constitutionally
adequate representation” and there had not been “a complete breakdown of
communication between the parties.”
5 Counsel apprised the court defendant’s trial counsel was no longer
available and was living in France.
6
Subsequent Marsden Motion(s)
About two weeks prior to the evidentiary hearing on his petition for
resentencing, defendant filed a second Marsden motion.
Accordingly, prior to the start of the hearing, the court closed the
courtroom to the public, stated defendant had filed a Marsden motion, and
asked if he still wanted to relieve his attorney. Defendant told the court he
wanted to withdraw the motion.
The court then reopened the courtroom and proceeded with the
hearing.
After both the prosecution and defense counsel submitted on the
matter, the court asked defendant if he “wish[ed] to address the Court in any
way,” noting defendant had previously mentioned he wanted to bring “a
couple things up.” Specifically, the court stated: “I wanted to deal with his
first motion which was the Marsden motion. And now that we’ve moved past
that, is there anything you would like to address the Court with? He doesn’t
have to, but he sure is welcome to.” Defendant responded that he “wanted to
address the Marsden motion, but I withdrew that plea, your Honor, because I
wanted to trust in the system one more time.”6
The trial court then stated: “Okay. Well, I don’t want to mix up apples
and oranges. That’s why I made a very specific ruling regarding the Marsden
which is I was prepared to hear from you again on the Marsden. Even
though I heard from you before, I told you then as I was prepared to do this
morning is to hear you out again on the Marsden. [¶] That’s a very separate
issue from the actual merits of your case. My understanding is that you did
6 At the end of his statement, defendant again emphasized, “when I did
withdraw my plea from the Marsden motion, you know, I did that under the
discretion of your decision of whatever you render here today.”
7
not want to go ahead with the Marsden today and that you’re withdrawing
the Marsden motion. Have you had any change of heart about that?”
Defendant responded, “No, I would like to go on with the Marsden
motion.” The trial court asked, “So you want to go on with it now?”
Defendant responded, “Yes.”
The court held a Marsden hearing outside the presence of the public,
inviting defendant to address very specifically any reasons his counsel was
unable to provide effective assistance. Defendant stated his attorney told
him that he did not have the time for his case and had too much on his plate.
Defendant also claimed his attorney had told his sister that if they fired him,
defendant would never get out of prison. Defendant suggested counsel’s
statements were retaliation for his first Marsden motion, and asked the court
“to give [him] somebody that does have the time to fight for my defense
respectfully.”
The court inquired of counsel whether he felt like he had enough time
to provide constitutionally adequate assistance of counsel to defendant;
counsel confirmed that he did and denied telling defendant or his sister that
he did not have time to work on the case. The court asked counsel whether
he ever said to defendant’s sister “something to the effect of ‘if you fire me,
you’ll never get out of prison.’ ” Counsel denied making such a statement and
could not think of any conversation that could have been misconstrued to
come up with those words.
Finally, the trial court asked counsel if he felt there was anything more
he needed, including additional time to prepare, or some additional resources
to represent defendant on his petition. Counsel responded that in addition to
the exhibits provided by the prosecution, counsel had reviewed a Ninth
Circuit opinion “which laid out some of the facts . . . and was provided with
8
the trial transcript in this matter and analyzing and reviewed . . . the jury
instructions among other things. So I went through it all. There’s nothing
else I can do at this point, your Honor.”
The court asked defendant if he had anything else to add. Defendant
reiterated his claim that counsel told him he was overwhelmed and did not
have the time for his case, and confirmed he had nothing else to add.
The trial court denied the motion, ruling as follows:
“Okay. Well, the Court’s going to deny the motion. I
mean, [counsel] is a well-known practitioner in these
courts. And sometimes there’s misunderstanding or
miscommunications.
“There’s a lot of pressure in these things with
[defendant] being back in custody after being out for a good
leave time. I understand that. And frankly the comment,
‘if you fire me, you’ll never get out of prison’—it just doesn’t
make any sense. I don’t believe that was said, and it
doesn’t make any sense as to why one thing would be
connected to the other.
“I have no doubt, [defendant], that maybe there was a
conversation; perhaps you misheard something. In terms
of having enough time, I’ve indicated to [counsel]—he’s well
aware we’re willing to give resources in these cases. The
Bar Association of San Francisco has paralegals he can
access.
“It looks to me like [counsel] has gone above and beyond
in looking at the appellate record in your case, including
the federal appellate record. And he’s just not finding
something that puts you in a position to be given relief
under this statute, and that’s not [counsel’s] fault. That’s
just the law that we’re dealing with here.
“So I don’t find that he’s provided ineffective assistance
of counsel. It looks like he’s reviewed everything. He’s
gone as far as he can go in terms of what relief is available
to you under the statute. So I am going to deny your
motion at this time.”
9
The Trial Court Acted Within Its Discretion in Denying the
Motions
Defendant contends the trial court failed to conduct an adequate
inquiry into the basis of his Marsden motions, and thus was unable to make
an informed decision as to whether he had received ineffective assistance.
This, in turn, says defendant, prevents this court from determining whether
he would have received a more favorable ruling on his section 1172.6 petition
had the evidence he wanted counsel to provide the trial court been presented
at the evidentiary hearing. Specifically, defendant focuses on the failure of
his counsel to present any evidence, including Hardnett’s trial testimony or
new testimony from defendant or his codefendants, and failure to make any
substantive argument at the close of the hearing. Defendant asserts he is
entitled to both a new Marsden hearing and a new evidentiary hearing, “with
all parties and the court having access to the complete record.”
As to the first Marsden motion, defendant has not shown the trial court
faltered in its duty of inquiry. Indeed, defendant does not advance any
specific claims of error with respect to the trial court’s inquiry or ruling on his
first Marsden motion, and states in his reply brief that his “challenge on
appeal is directed in substantial part to the second Marsden denial.” As we
have recited, at the hearing on defendant’s first Marsden motion, the trial
court allowed defendant an opportunity to state all of his concerns regarding
counsel’s representation, which focused primarily on defendant’s assertions
that counsel was difficult to reach, too busy to work on his case, was “on the
side” of the district attorney, and had not reviewed the trial transcripts.
Counsel responded, explaining he had been focused on pursuing an
alternative avenue for sentencing relief and also experienced delays related
to COVID-19. Counsel also stated he had only recently received the trial
transcripts, jury instructions, and closing arguments, and stated he had not
10
yet had the opportunity to review Hardnett’s trial testimony. At that point,
the evidentiary hearing was still two months away. The court denied the
motion, but without prejudice, allowing defendant to reassert any of his
concerns with counsel’s performance later in the proceeding. The record thus
reflects that the trial court amply complied with its duty to allow defendant
to explain the basis of his complaints and heard from counsel. It credited
counsel’s statements and reasonably concluded counsel had not been dilatory
or ineffective. (See People v. Taylor (2010) 48 Cal.4th 574, 599–600 [trial
court’s inquiry at Marsden hearing was sufficient where defendant had
“opportunity to air his complaints”; “trial court was entitled to credit
counsel’s explanations and to conclude that defendant’s complaints were
unfounded”]; People v. Smith (1993) 6 Cal.4th 684, 696–697 (Smith) [court
did not err in denying Marsden motion where it allowed defendant to fully
state his complaints and carefully inquired into them].)
As for defendant’s second motion, he unequivocally withdrew it
immediately prior to the evidentiary hearing and agreed to proceed with
current counsel. Accordingly, the trial court had no duty to conduct an
inquiry on that motion. (See, e.g., People v. Padilla (1995) 11 Cal.4th 891,
926–927 [trial court did not err in failing to hold Marsden hearing where
defendant affirmatively withdrew request for substitute counsel], overruled
on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v.
Jones (2012) 210 Cal.App.4th 355, 362 [trial court’s failure to hold hearing on
Marsden motion was not error where the defendant abandoned his claim].)
Defendant’s final motion was made orally after the evidentiary hearing
was concluded and both the prosecutor and defense had submitted the
11
matter.7 It appears the motion was not aimed at obtaining new counsel going
forward. Rather, defendant apparently wanted a new evidentiary hearing,
this time with counsel who supposedly would provide adequate
representation. In other words, despite his decision at the outset of the
hearing to go forward with his current counsel, he apparently concluded in
hindsight that had been a poor tactical choice and wanted another
opportunity to make his case with different counsel.
Defendant seeks the same relief on appeal. To begin with, he cites no
authority suggesting a Marsden motion can be used as a substitute for a
motion for a new trial.8 Indeed, by the time defendant made his third
Marsden request, there was nothing left for a new attorney to do. “Whenever
[a Marsden] motion is made, the inquiry is forward-looking in the sense that
counsel would be substituted in order to provide effective assistance in the
future.” (Smith, supra, 6 Cal.4th at p. 695; see People v. Whitt (1990)
51 Cal.3d 620, 658–659 [posttrial Marsden motion could properly be denied
as untimely; “court was not required to stop the nearly completed proceeding
in its tracks in order to allow another attorney to completely familiarize
himself with the case”].)
Furthermore, the trial court heard defendant’s oral motion and offered
defendant ample opportunity to state all of his complaints regarding counsel’s
7 We refer to this motion as defendant’s “third” Marsden motion in
light of the unequivocal withdrawal of his second Marsden motion prior to the
evidentiary hearing.
8 There is no dispute a defendant may seek substitution of counsel to
bring a motion for new trial, but that is different than using the Marsden
motion itself as a substitute for a new trial motion.
12
performance.9 Despite the fact the evidentiary hearing had just taken place,
defendant raised no concerns about his counsel’s failure to present trial
testimony or other evidence at the hearing, call or investigate witnesses, or
make evidentiary objections. Rather, defendant raised two other complaints:
counsel had been too busy and did not dedicate enough time to his case; and
counsel told his sister if “they” fired counsel, defendant would never get out of
prison. The court asked counsel about both complaints, counsel responded,
and the trial court gave a thorough and well-reasoned explanation for
denying the motion.
On appeal, defendant claims the trial court “did not make any inquiry
whatsoever as to whether counsel had reviewed the testimony of Hardnett or
others in the trial transcripts” or “ask counsel to respond to [defendant’s]
complaints that he failed to interview [his sister] and/or Hardnett or call
them or [defendant] as witnesses at the evidentiary hearing.” However,
those complaints were not raised in his third motion. Rather, they were
raised, in part, in his second Marsden motion, which he expressly withdrew.10
9 The trial court told defendant: “So if you want to address any issues
since the last Marsden hearing, I’m happy to hear from you very specifically
as to why you believe that [counsel] cannot provide you with effective
assistance of counsel. And if you could be as specific as possible, take your
time, and speak nice and slowly.” After defendant gave his reasons, the court
repeatedly asked, “Anything else?,” until defendant responded, “That’s it,
your Honor.” After the court asked counsel to respond, the court again
allowed defendant to address the court and again confirmed defendant did
not have “[a]nything else” to say.
10 In his second motion, defendant asserted his counsel did not have
time for his case and had not sent defendant the trial transcripts because
they were too bulky. He did not claim counsel had not reviewed the
transcripts. Defendant also claimed his codefendants were “ready to testify.”
He did not argue counsel had failed to investigate whether they would be
appropriate witnesses or whether to call them. And while defendant included
13
The court had no sua sponte duty to revisit those complaints, and even if it
did, any failure to do so was harmless error. (See, e.g., People v. Lloyd (1992)
4 Cal.App.4th 724, 732 [failure to consider first Marsden motion was
harmless error when defendant failed to reassert the reasons underlying the
motion at a later hearing]; People v. Vera (2004) 122 Cal.App.4th 970, 980–
982 [trial court did not err in conducting Marsden inquiry where the
defendant abandoned his unstated complaints about counsel by failing to
accept trial court’s invitation to present them at a later hearing].)
The closest defendant came to raising any of the complaints in his
second Marsden motion at the hearing on his third motion was complaining
that his attorney had not devoted sufficient time to the case. In that context,
he told the court that when he asked his counsel “have you read the trial
transcripts or anything like that,” counsel said he did not have time and had
“too much on his plate.” The trial court, in turn, specifically asked counsel
whether he had enough time to provide adequate assistance, and counsel
represented he had received the trial transcript, analyzed the jury
instructions, and “went through it all.”
Finally, defendant fails to demonstrate that counsel’s failure to present
Hardnett’s testimony, or to interview or call Hardnett to testify at the
evidentiary hearing, was ineffective assistance, particularly since Hardnett
had testified at length at trial.11 (See, e.g., People v. Welch (1999) 20 Cal.4th
701, 728–729 [“A defendant does not have the right to present a defense of his
own choosing, but merely the right to an adequate and competent defense.
his own version of the facts of the case in his declaration supporting his
second motion, he did not say he wanted to testify at the evidentiary hearing
or state what other evidence supported his version of the facts.
We grant defendant’s unopposed request for judicial notice of
11
Hardnett’s trial testimony.
14
[Citation.] Tactical disagreements between the defendant and his attorney
do not by themselves constitute an ‘irreconcilable conflict.’ ”]; People v. Penrod
(1980) 112 Cal.App.3d 738, 750 [decision to call witnesses is ordinarily a trial
tactic within the attorney’s control].) Contrary to defendant’s
characterization of Hardnett’s trial testimony, it made no difference to
defendant’s culpability for the crimes. Hardnett testified only that he
(Hardnett) panicked and stabbed the victim repeatedly because he thought
the victim had a gun, but he was not aware of what defendant was doing and
did not see defendant do anything. In short, Hardnett’s testimony does not
support defendant’s version of the incident—that defendant acted in defense
of Hardnett but disengaged from the fight before the victim was killed.
As for defendant’s sister, her declaration in support of defendant’s
motion stated only that counsel had failed to ask her about “what happened
on the night/morning of the incident at the heart of the . . . case” when
counsel saw her at defendant’s hearings and that she “believe[d]” she had
unspecified information relevant to defendant’s petition. This is not
sufficient to show counsel was ineffective for failing to interview or call her as
a witness.12 (See In re Noday (1981) 125 Cal.App.3d 507, 522 [“ ‘To sustain a
claim of inadequate representation by reason of failure to call a witness,
there must be a showing from which it can be determined whether the
testimony of the alleged additional defense witness was material, necessary,
or admissible, or that defense counsel did not exercise proper judgment in
failing to call [the witness].’ ”].)
12 Nor is defendant’s speculative and conclusory statement in his own
declaration that his codefendants would testify he “was not the actual killer,”
“had no intent to kill anybody,” and was “never . . . recklessly indifferent to
human life,” sufficient to show ineffective representation.
15
In sum, defendant has not shown the trial court failed to conduct an
appropriate inquiry or abused its discretion in denying his Marsden motions.
Denial of Resentencing Petition
Defendant next contends the trial court erred in denying his petition
for resentencing for two reasons: (1) it is not clear whether the trial court
made its findings beyond a reasonable doubt;13 and (2) the trial court’s
findings are, in part, not supported by the record.
As to his first claim, defendant asserts that in ruling defendant was
ineligible for resentencing the trial court did not “expressly indicate” it was
making that finding beyond a reasonable doubt or state the prosecution had
proven defendant guilty of murder beyond a reasonable doubt. Based on a
review of the record as a whole, it is abundantly clear the trial court’s
findings were made under the “beyond a reasonable doubt” standard.
At the outset of the hearing, after noting it had reviewed the response
to the order to show cause and reviewed the record, the trial court stated,
“[T]his is the People’s burden to prove beyond a reasonable doubt that
[defendant] does not qualify for relief under the statute.” (Italics added.) A
short time later when the trial court asked if defendant had any argument
about whether there was sufficient evidence based on the preliminary
hearing transcript, defense counsel told the court: “Well, a preliminary
hearing transcript establishes probable cause only. It does not establish
proof beyond a reasonable doubt which is the burden on the People at this
particular hearing, so in that regard it’s insufficient.” (Italics added.) And
13 “At 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 . . . under California
law as amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
16
again, right before ruling on the petition for resentencing, the trial court
asked, “So is there anything further that the People want to argue in support
of their position that they’ve shown beyond a reasonable doubt that
[defendant] is not eligible for relief under the statute?” (Italics added.) The
trial court then “found [defendant] was an active participant acting with the
intent to kill” and found him ineligible for relief under the statute. On this
record, we have no hesitation in concluding the trial court recognized and
applied the appropriate legal standard, and acting as an independent fact
finder, made its findings beyond a reasonable doubt. (See People v. Stowell
(2003) 31 Cal.4th 1107, 1114 [“ ‘a trial court is presumed to have been aware
of and followed the applicable law’ ”]; People v. Cody (2023) 92 Cal.App.5th
87, 110 [reading transcript as a whole, trial court correctly applied beyond
reasonable doubt burden of proof at § 1172.6 evidentiary hearing].)
With respect to whether certain of the trial court’s findings were
supported by evidence in the record, defendant first argues the court erred
because it stated it did not see any indication that felony murder or natural
and probable consequences theories were presented at trial. Defendant
asserts this rationale for finding him ineligible for resentencing is not
supported by the record because the trial court did not have the trial
transcripts, jury instructions, or closing arguments from trial before it when
making its ruling. However, the trial court did have the preliminary hearing
transcript and the testimony at that hearing amply supports the trial court’s
finding that defendant was actively engaged in stabbing the victim,
encouraging others to stab him more, and was thus acting as a direct aider
and abettor with the intent to kill.14
14 Defendant concedes he is not challenging the trial court’s reliance on
the preliminary hearing transcript because no objection was made below.
17
Under a direct aider and abettor theory, the prosecution “must show
that the defendant acted ‘with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.’ ” (People v. Gomez
(2018) 6 Cal.5th 243, 279.) The amendments to sections 188 and 189 did not
alter the law regarding the criminal liability of direct aiders and abettors of
murder. (People v. Vargas (2022) 84 Cal.App.5th 943, 953 (Vargas); People v.
Offley (2020) 48 Cal.App.5th 588, 595–596.)
Section 1172.6, subdivision (a)(3) permits resentencing where a
defendant “could not presently be convicted of murder . . . because of changes
to Section 188 or 189 made effective January 1, 2019.” Because the court
found beyond a reasonable doubt defendant was guilty as a direct aider and
abettor, and defendant does not challenge the sufficiency of the evidence
supporting that finding, defendant was ineligible for resentencing. (See, e.g.,
Vargas, supra, 84 Cal.App.5th at pp. 954–955 [trial court finding that the
defendant was ineligible for resentencing relief based on aiding and abetting
theory of murder was supported by substantial evidence].)
Defendant additionally contends the trial court’s finding that
defendant, in attacking the victim, “urged others to stab the victim some
more” is not supported by the record. Defendant argues the relevant
testimony at the preliminary hearing was that his sister, not defendant,
yelled, “ ‘Get him, Dee [(i.e., defendant)],’ ” during the stabbing attack on the
victim. While defendant is correct about that statement, his ex- girlfriend
also testified that as defendant and Hardnett stabbed the victim, defendant
said to Hardnett: “ ‘Stab him in the throat so he can choke on his own
blood.’ ” Thus, contrary to defendant’s claim, the trial court’s finding that
18
defendant “actually urged others to stab the victim some more” is supported
by the evidence in the record.
DISPOSITION
The orders denying defendant’s Marsden motions and resentencing
petition are affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Langhorne Wilson, J.
A166699
People v. Eng
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