People v. Pittman ( 2023 )

Filed 10/13/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A161815
v.
JAMES PITTMAN, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 59334178)
James Pittman was sentenced to 15 years to life in prison for the
second-degree murder of Joel Vigil in the early morning hours of July 4, 1993.
Pittman was 21 years old at the time, and committed the crime with Charles
Myers and Joshua Harvest, who were 16 and 17 years old, respectively. At a
2017 parole hearing, Pittman provided new inculpatory statements about the
murder. Later, the trial court relied on Pittman’s parole hearing testimony
to conclude he was not entitled to relief under Penal Code section 1172.6, 1
which could have included vacatur of his conviction and resentencing.
Pittman now appeals from the denial of his section 1172.6 petition.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II and III.
1 Undesignated statutory references are to the Penal Code. The parties’
briefs and the trial court order refer to former section 1170.95, which was
renumbered as of July 1, 2022 to section 1172.6. (Assem. Bill No. 200 (2021–
2022 Reg. Sess.) (Stats. 2022, ch. 58, § 10).) For simplicity, we refer to
section 1172.6.
Pittman contends that the trial court should have granted his petition
for three reasons. First, he argues that it was improper for the trial court to
admit and credit his parole hearing testimony, contending alternatively that
parole hearings are unconstitutionally coercive, that use immunity applies to
his testimony, or that the testimony was not reliable because it was adduced
in that coercive setting. Second, he contends that the evidence presented at
trial, along with his parole hearing testimony, was not sufficient to establish
that he harbored the mental state necessary to convict him under any theory
of murder that remains valid following recent legislative changes. Finally, in
supplemental briefing, he argues that remand to the trial court is appropriate
in light of new appellate authority that requires courts to consider how youth
impacts a defendant’s ability to form a sufficiently culpable mental state to
support a felony murder conviction.
In the unpublished portion of this opinion, we conclude that Pittman’s
parole hearing testimony could be considered by the trial court and that all of
the evidence, taken together, could constitute substantial evidence in support
of the trial court’s decision if there were no other circumstances warranting
consideration. However, in the published portion of the opinion, we conclude
that Pittman’s youth is a relevant factor in assessing whether he formed the
requisite mental state for conviction, which the trial court did not consider.
Finding that the error is not harmless, we reverse and remand for further
proceedings.
2
BACKGROUND
A. The Evidence at Pittman’s 1994 Trial
1. Myers’ Testimony
At trial, the bulk of the direct evidence of the crime came from Myers’
testimony. Myers testified that he, Pittman, and Harvest were at Myers’
house at night for a party. All three were drunk.
Harvest suggested robbing a nearby store. Pittman stated he would get
a gun from his house to commit the robbery; he left to get a gun, but returned
without one. Myers did not think Pittman actually had a gun. When
Pittman went to retrieve the gun, he saw a man, Vigil, parked in front of his
house. The man was “shooting up dope with a prostitute in his truck.”
Pittman regrouped with Myers and Harvest, described what he had
seen, and said to them, “Let’s go whip his ass,” referring to Vigil. Myers
assumed they “were going to fight Mr. Vigil,” throw something at the truck,
or chase Vigil off. Myers did not believe they were going to rob or kill Vigil,
there was no plan to do so, and Pittman never said anything to that effect.
Pittman took one “chisel” from a bucket on a neighbor’s porch and
handed one each to Myers and Harvest. Myers testified that he thought the
chisels were metal implements with one sharp cutting edge and one blunt
end. Chisels in hand, Pittman, Harvest, and Myers started walking down the
street toward the truck. Harvest then “t[ook] off running.” As Myers
rounded the corner, he observed Harvest open the door to Vigil’s truck and
start stabbing Vigil with the chisel.
Myers saw Harvest stab Vigil twice, then threw his chisel at the back of
Vigil’s truck, breaking the back window. Myers then saw Pittman, who was
standing at Vigil’s tailgate, throw his chisel at the back of the truck, but he
did not see where it landed. Harvest was still at the open truck door. Myers
3
saw Vigil’s head “go forward” in a “little nod” approximately two seconds after
Pittman threw his chisel. Myers did not hear any impact, but assumed
Pittman’s chisel hit Vigil in the head.
A few seconds after Pittman threw his chisel, Myers observed Harvest,
alone, pull Vigil out of the truck. Vigil did not appear conscious; he was not
moving. Myers did not see any attack on Vigil outside the truck. Harvest
yelled for them to put Vigil in the back of Vigil’s truck. Myers observed
Harvest holding Vigil’s upper body and Pittman holding Vigil by the shoes or
ankles, attempting to lift him.
Myers entered the truck and looked for the chisels. The cab light was
on, and Myers could see “puncture holes” in the front windshield.
When Myers exited the truck, Vigil’s body was in the gutter, near the
sidewalk at the back of the truck. Myers ran up the street and back around
the corner to his truck, with Pittman following. Pittman got into Myers’
truck and drove away with Myers. Harvest drove away in Vigil’s truck. A
few minutes later, Myers saw Vigil’s empty truck crashed on the street. As
Myers and Pittman drove nearby, Harvest called to them. Pittman and
Myers picked Harvest up, and all three drove back to Myers’ house.
During interviews prior to trial, Myers reported that Pittman had
stomped on Vigil’s head outside the truck. Myers later explained that he did
not actually observe Pittman stomp on Vigil’s head, but that he had “heard it
from somebody.” In a different interview, Myers stated that Pittman told
him that he had kicked Vigil; at trial, Myers denied that Pittman told him he
had done so.
2. Sergeant George Ward and Myers’ Probation Officer
After Myers testified, the prosecution called two officers who had
previously interviewed Myers. The first, Sergeant George Ward, led the
4
murder investigation. Myers reported to Ward that Pittman hit Vigil, but did
not stomp or kick him. Ward also testified that Myers stated he had not
actually seen Pittman kick Vigil, but that Pittman told him he had done so,
so Myers believed him. Ward testified that Myers stated it was Harvest who
pulled Vigil from the truck. Myers also told Ward that Pittman did not
actually assault Vigil; only Harvest did.
Myers’ probation officer testified that Myers reported to him that after
Vigil was pulled from the truck, Pittman stomped on his head.
3. Pittman’s Interview with Ward
Portions of Pittman’s July 7, 1993 videotaped interview with Ward
were played for the jury. Pittman told Ward he was drunk that night. He
had said he was going to his house to get a gun, but he did not have one.
When returning from his house, Pittman observed Vigil in his truck with a
woman and believed Vigil was injecting heroin.
Harvest suggested they should beat up Vigil “and make him leave.”
Harvest then “ran over [to the truck], opened the door and started stabbing
[Vigil] in the head.”
When Harvest was stabbing Vigil, Pittman and Myers were by the
corner. Pittman and Myers threw their spikes at the truck. Harvest was
stabbing Vigil and did not stop when they threw the spikes. Pittman threw
his spike, which hit a metal part of the rear window, and then hit the front
windshield. Vigil’s body ended up on the ground outside the truck.
Myers and Pittman ran away, then returned to get Harvest, who was
dragging Vigil’s body toward the curb. Pittman initially tried to help Harvest
move Vigil, but he did not want to. Myers stayed by the truck. Pittman and
Myers then ran away. Pittman did not hit, stomp, or stab Vigil.
5
Harvest jumped in Vigil’s truck and drove off. Myers and Pittman
drove around looking for Harvest and saw Vigil’s truck “wrecked.” They
found Harvest and picked him up. When they arrived back at Myers’ house,
Harvest had blood “[a]ll over him.”
4. Sarah Potter’s Testimony
Sarah Potter was 17 years old at the time she testified. She was Myers’
girlfriend at the time of Vigil’s murder and was at his house that night. Just
before Pittman, Harvest, and Myers left the house, Pittman stated they
wanted to go get in a fight or to hurt somebody. When they returned, Potter
saw Pittman washing his socks; he said he had to wash them because there
was blood on them. Pittman also said he should have been a baseball player
because of the way he threw the spike that killed Vigil. Pittman stated he
had kicked or stomped on Vigil because “he was still alive after he was out of
the truck.” Pittman and Harvest laughingly demonstrated how heavy Vigil
was to lift and move.
5. Tamara Culpepper’s Testimony
Tamara Culpepper was 17 years old and Pittman’s girlfriend at the
time of Vigil’s murder. Her testimony was inconsistent at times, but she
confirmed she was at Myers’ house the night of Vigil’s murder. Pittman was
drinking along with others at the party. Pittman, Harvest, and Myers left
late in the evening because Pittman needed diapers and Harvest needed
more alcohol.
Culpepper testified that when Myers, Pittman, and Harvest returned,
Harvest, who had blood on his hands, went into the bathroom. Harvest
scrubbed “his whole body, hands, and face.” Culpepper asked what had
happened. Myers stated that Harvest “was beating up this guy.” Pittman
explained that he had thrown a rock or spike at Vigil’s truck, that it had
6
ricocheted off a metal part of the truck and hit the front windshield, and that
Harvest had pulled Vigil out of the truck and hit him. Pittman and Myers
ran away, but Harvest “wouldn’t leave,” and then “ended up” in Vigil’s truck.
6. Dr. Peterson, Forensic Pathologist
Dr. Peterson, a forensic pathologist for the county, testified as an
expert regarding Vigil’s death. He testified that Vigil died from “penetrating
head injuries.” The fatal group of wounds was located on the left side of
Vigil’s face, above his ear. According to Peterson, “force must have been
applied several times in that small area to produce the fatal injury.” Certain
superficial “chop” injuries caused abrasions before death, while the deeper
injuries would have caused death “in a matter of seconds.” Brain tissue
found on the left side of Vigil’s face had “exited through th[e] hole in [Vigil’s]
head.”
Chop injuries on the front and side of Vigil’s face were inflicted prior to
his death. Kicks could have caused the non-lethal injuries to Vigil’s shoulder,
cheek, nose, and forehead. The sharp end of the larger of two chisels in
evidence could have caused the lethal injuries, but the blunt injuries likely
were not caused by any surface of the chisel.
Dr. Peterson and the doctor who completed the autopsy agreed that two
small injuries to the right side of Vigil’s face likely were not caused by a kick,
although Dr. Peterson testified that a kick could have caused one of the
injuries. Some of the blunt injuries could have been caused by Vigil’s head
hitting the pavement or the inside of his truck.
The back of Vigil’s head showed no signs of injury.
7. John Nelson, Criminalist
John Nelson, criminalist for the sheriff’s department, testified as an
expert in blood spatter analysis and crime scene processing and
7
reconstruction. Nelson analyzed the crime scene, where he observed pools of
blood, smears, spatters, drag marks, and bloody shoe prints from at least two
individuals.
Two sets each of three blood spatter patterns indicated two separate
sets of at least three blows to Vigil. Both sets of blows were delivered low to
the ground and were consistent with kicking Vigil on the ground after he had
already started bleeding. The second set of three blows resulted in blood
splatter on the rear portion of Vigil’s truck. The minimum number of blows
that occurred outside the truck was six; Nelson could not determine a
maximum number of blows.
At a minimum, two blows would have been inflicted inside the truck;
Nelson could not determine a maximum number of blows. Nelson believed
the attack began in the truck cab, after which Vigil was pulled from the cab
leaving a large pool of blood. The first three blows were then delivered a
distance away, and the second three blows in a third location near the truck’s
rear wheels. Vigil’s body was then dragged behind the truck.
The window behind the driver’s seat was broken, with pieces of glass
remaining at the edges. There were “impact marks left by some tools” that
hit “the rubber grommets surrounding th[e] window at the top above the
broken area and another tool mark [was] left by an object which impacted the
metal divider bar at the edge . . . of the broken window.” The tools that
caused the impact marks were consistent with the chisels presented at trial,
including the powdery orange rust that may have been the same material
that deposited upon impact with the front windshield. Nelson observed no
injuries to the back of Vigil’s head, either at the scene or during the autopsy.
Nelson did not believe all the stab wounds to Vigil happened inside the
truck, but acknowledged that was possible. The brain tissue and hair on the
8
truck’s exterior indicated that some of “the penetrating wounds of the scalp”
occurred outside the vehicle. No brain tissue or hair fragments were found
inside the truck. Nelson stated that the brain tissue on the truck’s exterior
was consistent “not so much [with] kicking but receiving blows.” He could not
rule out that a kick or a stab deposited the brain tissue, or distinguish
between any blows inflicted by stabbing versus kicking.
The bloody shoeprints came from two different pairs of shoes. They
were consistent with Harvest’s and Pittman’s shoes.
Most of the clothing Nelson analyzed did not appear to have been
washed following the attack on Vigil. It appeared Pittman had cleaned blood
off his shoes, which had small amounts of residual blood on them. That blood
was consistent with kicking Vigil, but Nelson could not determine
conclusively if Pittman had done so. One drop of blood was located on the
rear of Pittman’s shorts. Nelson also located a very small spot of blood on
Myers’ shoes, as well as contact blood stains on the inside front of Myers’
pants. Two pairs of Harvest’s shoes, along with his shirt, pants, and one sock
had bloodstains.
B. Jury Instructions and Verdicts
The jury was instructed on the natural and probable consequences
theory of murder. The jury returned verdicts that Pittman was not guilty of
first-degree murder but was guilty of second-degree murder; they did not
specify the theory or theories they relied on to find Pittman guilty.
C. Parole Hearing
In 2017, Pittman testified at a parole hearing. At the outset, the
presiding commissioner of the Board of Parole Hearings (Board) admonished
Pittman that he “d[id]n’t need to make any admissions or discuss details of
9
the crime, um, that’ll be up to you and your attorney whether you want to
discuss it today. Okay?” Pittman responded, “Yes ma’am.”
Pittman described his upbringing and family background, and the
circumstances preceding the offense. When a commissioner commented on
the “evolution” in Pittman’s discussion, he explained that at the last hearing
the commissioner “encouraged [him] to . . . get a better in depth
understanding of [his] upbringing.” A commissioner later noted that Pittman
was “not even close to being this forthcoming last time” about his gang
involvement.
Pittman then described the crime. That night, Harvest had said he
wanted to rob a neighborhood market, so Pittman said he would go get a gun
from his house. He never had a gun. As he walked toward his house,
Pittman saw Vigil’s truck drive by, then turn around. When he left his
parents’ house, Pittman saw the truck parked in a spot where people used
drugs. A man and woman were in the truck and the woman was preparing to
use drugs, which angered Pittman.
Pittman went back around the corner to where Harvest and Myers
were parked in Myers’ car and told them what was happening; he said “let’s
go . . . attack these guys. Get rid of them.” He saw the chisels in a bucket in
the neighbor’s front yard, and he picked them up and handed one to
everybody. There was no other discussion about the chisels or what Pittman,
Harvest, or Myers would do with them, but Pittman knew Harvest had killed
someone eight days before and “knew when [he] handed [Harvest] that
weapon that he would use that on the individual in the truck.”
Harvest ran up to the truck, “yanked the door open,” and made
“stabbing motions” in Vigil’s face and head area. Pittman threw his chisel,
which broke the back window. He then came around to the door, finding
10
Vigil slumped over the steering wheel. He and Harvest pulled Vigil out of the
truck “[t]o continue the attack that was planned to go over there and do.”
Once Vigil was out of the truck, Pittman “kicked him a couple of times”
in the side of the head. He “wasn’t aware that [Vigil] was already dead.”
Vigil was not conscious and blood was everywhere.
Myers and Pittman started to run away, but Harvest asked for help
with Vigil. Pittman tried to drag Vigil with Harvest and then put him in the
back of the truck, but they could not lift him. They left Vigil in the gutter.
All three started running away again, then Harvest went back, jumped
in the truck, and drove it away. He crashed the truck a block away. Myers
and Pittman drove around, saw the crashed truck, and heard Harvest yell.
Harvest jumped in the truck and they drove over to Myer’s house where
Harvest, “covered in blood,” cleaned up. Pittman stated that he did not have
any blood on him after the attack, including on his shoes.
Pittman was drunk. He did not know Vigil was dead until the next
day. Pittman knew that Harvest and Myers had both been involved in a
prior murder.
Pittman took responsibility for the murder and taking Vigil’s life. A
commissioner asked Pittman why he spent so many years saying his only
participation was dragging Vigil. Pittman explained: “It’s finally taking full
responsibility of my actions. I’m the one that brung what they were doing to
the kids—to [Harvest] and [Myers]. I could have been the one that prevented
this from happening and I didn’t do that.” Later he repeated, “I’m the one
that’s responsible for their family member being murdered.”
A commissioner asked Pittman if his story would continue to change,
and if not, why not. Pittman responded that his current testimony was “all
[of] it,” and that his testimony would not evolve further because, “from the
11
last hearing when [the commissioner] basically gave me the direction, I took
that direction and . . . this is how it’s all coming out. . . . [¶] . . . I took your
words and respected them and . . . I applied myself.”
Pittman again discussed his responsibility for murdering Vigil, and
explained the plan had been to “go[] over there to attack him.”
Commissioners commented that the Board last denied parole because
Pittman lacked credibility and minimized his crime. Later, Pittman’s
attorney commented that at the last hearing a commissioner told Pittman he
had to be “all in or all out,” and asked Pittman what he had decided. Pittman
responded, “I’m all in.” In closing, the commissioners commented
approvingly that Pittman had been “forthright,” had made “enormous
changes,” and that he was “definitely making huge strides” toward release.
Pittman and his attorney cited, and the Board considered, several
issues related to his youth at the time of the crime.
D. Resentencing Petition and Hearing
In 2019, Pittman filed a petition for resentencing under section 1172.6.
The court issued an order to show cause why Pittman should not be
resentenced. With its briefing, the prosecution submitted a transcript of the
2017 parole hearing, and separately cited specific statements from the
hearing. Over Pittman’s objection, the court found certain excerpts from the
transcript admissible.
At the resentencing hearing, Pittman called two experts to discuss the
parole process. Neither was familiar with Pittman’s case.
The first witness, Aly Tamboura, worked on criminal justice reform,
including projects related to California’s parole hearing process. He worked
with the former secretary of the Department of Corrections on parole issues
and also evaluated a Stanford University project that used an algorithm to
12
analyze parole hearing transcripts. Tamboura had read a cross-section of
375 parole transcripts and spoken with formerly incarcerated people about
their experiences. The most important factor in the Board’s assessment of
parole suitability, according to Tamboura, is taking responsibility, also
known as showing insight. At parole hearings, showing insight involves
admitting the facts of the crime as “outlined in the [trial] court transcript.”
He explained that trial court records are treated as “gospel,” and if the parole
applicant disputes facts in the record, they are deemed to lack insight and
“are usually not granted parole.” Tamboura was not aware of a single
instance where someone disputed the facts in the record and was paroled. He
acknowledged that the Board also considers disciplinary history and plans for
release in evaluating a person’s suitability for parole.
The second expert, Heidi Rummel, testified that she had represented
hundreds of people seeking parole as the director of a post-conviction justice
legal clinic. Rummel agreed that the Board considers the parole applicant’s
personal accountability, remorse, and insight. She explained that the Board
considers those factors, among others, to evaluate a person’s current
dangerousness, and thus their suitability for release. Other significant
factors are institutional conduct and disciplinary history. Rummel agreed
that “[i]t’s very difficult to be granted parole for people who do not discuss the
commitment offense” because otherwise “there’s no way for someone to take
personal accountability for the crime.” If a person does not discuss the crime,
they also cannot address insight and remorse. It is “very damaging” for a
person to minimize their involvement, blame others, or otherwise not take
full responsibility for the crime. According to Rummel, “[t]hat’s a typical
reason for a parole denial.”
13
Rummel noted the “impossible choice” for prospective parolees:
whether to admit inculpatory facts to secure parole or instead to protect their
chances of obtaining other types of post-conviction relief. Rummel agreed
that although it is very hard for an individual to secure release on parole if
they minimize or do not discuss the crime, it is still possible. A third defense
witness, an attorney, agreed by declaration that “incarcerated people who
express remorse and take full responsibility for their convictions improve
their chances of being granted parole.”
The court denied Pittman’s petition on December 28, 2020.
Considering the jury’s general guilty verdict, the court explained that one or
more jurors may have concluded Pittman was guilty under the invalidated
natural and probable consequences theory, and that it had to vacate
Pittman’s conviction “only where the sole evidentiary basis of [that
conviction] involved a theory of liability [that is] no longer permitted.” The
court concluded that Pittman “acted as a principal who along with co-
defendant Harvest personally killed Mr. Vigil while acting with express or
implied malice. Alternatively, the court finds that . . . [Pittman] acted with
malice aforethought as an aider and abettor of a principal (Harvest) who
killed Mr. Vigil.”
The court discussed the factual background, drawing on the trial
evidence, and also noted, “[o]f particular significance,” four of Pittman’s
statements at the parole hearing. The court explained that the statements
were admissible hearsay as party opponent statements under Evidence Code
section 1220. Although the court acknowledged “the difficulty that might be
presented to any prospective parolee when considering whether” to discuss
their “conviction at a parole hearing,” “given the nature of the specific details
14
provided by [Pittman] to the parole board about this limited set of facts,” it
had “no doubt” that the testimony was credible.
The four portions of the transcript the court relied on were Pittman’s
testimony that: (1) Vigil “was pulled from the truck so that [Pittman] and
Harvest could continue a ‘planned attack’ ”; (2) Pittman “had supplied
weapons (chisels) from a neighbor’s yard to ‘everybody’ ”; (3) “Harvest had
murdered someone eight days before this crime and [Pittman] knew Harvest
would use the weapon [Pittman gave him] to kill [Vigil]”; and (4) “[a]fter
[Vigil] had been attacked and pulled from the truck, [Pittman] kicked him a
couple of times in the side of his head as [Pittman] was not aware that [Vigil]
was already dead.”
The court ultimately found that Pittman had distributed the chisels or
spikes to the three young men; thrown a chisel or spike at Vigil through the
back window of his truck; kicked Vigil in the head; and acted with the
implicit intent to kill and knowing that Harvest intended to kill Vigil. Even
without the parole statements, the court stated, “the evidence established
beyond a reasonable doubt the malice aforethought necessary to prove the
crime” and that “[a]t the very least, the evidence show[ed] [Pittman] was
acting with conscious disregard for human life,” “a form of implied malice.”
DISCUSSION
I. Section 1172.6 and Principles of Implied Malice Murder
Section 1172.6 allows individuals to petition for relief if they were
convicted of murder under theories invalidated by Senate Bill 1437. (See
§ 1172.6, subd. (a)(1)–(3); Stats. 2018, ch. 1015, §§ 1, 2, 3.) With the
enactment of Senate Bill 1437, the Legislature abolished the natural and
probable consequences doctrine of murder liability. (People v. Gentile (2020)
10 Cal.5th 830, 842–843, superseded by statute on other grounds as stated in
15
People v. Wilson (2023) 14 Cal.5th 839, 869; see § 188, subd. (a)(3).) Once the
petitioner meets certain procedural conditions set forth in section 1172.6, the
trial court holds a hearing where “the burden of proof [is] on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by [Senate Bill 1437’s] changes to
Section 188 or 189.” (§ 1172.6, subd. (d)(3); People v. Oliver (2023)
90 Cal.App.5th 466, 477 (Oliver).)
At the hearing, a court “may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law [and] new or
additional evidence” offered by either party. (§ 1172.6, subd. (d)(3).)
We must consider whether Pittman can now be found guilty of murder.
The parties focus on the “essential question” whether Pittman harbored
implied malice during the crime. To guide our analysis, we outline the
standards applicable to our evaluation of the trial court’s ruling at Pittman’s
section 1172.6 hearing.
a. Standard of Review
We review the trial court’s decision denying Pittman’s petition for
substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes);
People v. Sifuentes (2022) 83 Cal.App.5th 217, 232–233.) “In reviewing the
trial court’s findings for substantial evidence, we . . . ‘ “ ‘examine the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value that would support a rational trier of fact in finding [the
necessary fact] beyond a reasonable doubt.’ ” . . . While the trial judge must
review all the relevant evidence, evaluate and resolve contradictions, and
make determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any substantial evidence,
16
contradicted or uncontradicted, to support a rational fact finder’s findings
beyond a reasonable doubt.’ ” (Oliver, supra, 90 Cal.App.5th 466 at p. 480.)
“[S]ufficiency determinations necessarily take account of the ‘standard of
proof that applied before the trial court.’ ” (People v. Renteria (2022)
13 Cal.5th 951, 970.)
b. Aiding and Abetting Implied Malice Murder
Pittman was convicted of second-degree murder, which is “ ‘the
unlawful killing of a human being with malice aforethought but without the
additional elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder.’ ” (People v. Cravens
(2012) 53 Cal.4th 500, 507 (Cravens).) Malice aforethought “may be express
or implied.” (§ 188, subd. (a).) Implied malice exists “when no considerable
provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (Id., subd. (a)(2).) “Murder is
committed with implied malice when ‘the killing is proximately caused by
“ ‘an act, the natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for
life.’ ” ’ [Citation.] ‘ “To be considered the proximate cause of the victim’s
death, the defendant’s act must have been a substantial factor contributing to
the result, rather than insignificant or merely theoretical.” ’ ” (Reyes, supra,
14 Cal.5th at p. 988.) “The question of implied malice is to be decided in light
of all the circumstances.” (People v. Moore (2010) 187 Cal.App.4th 937, 942.)
The trial court concluded that Pittman was guilty of implied malice
murder either as a principal or as an aider and abettor. On appeal, the
Attorney General makes no distinct argument that Pittman is guilty as a
principal. The undisputed testimony at trial established that Harvest’s
17
stabbing of Vigil alone caused his death within a matter of seconds; that
Pittman’s chisel did not strike Vigil; and that any kicks were not lethal.
Even if Pittman’s chisel struck Vigil in some way, that single blow could not
have resulted in the group of lethal wounds in close proximity that caused
Vigil’s death, according to Dr. Peterson. While we consider any kicks
inflicted by Pittman relevant to whether he harbored implied malice, we find
scant evidence in the record supporting a theory that Pittman’s actions
proximately caused Vigil’s death, as required to prove he was liable as a
principal. (Reyes, supra, 14 Cal.5th at p. 988.) We therefore focus on aiding
and abetting liability.
“ ‘[D]irect aiding and abetting is based on the combined actus reus of
the participants and the aider and abettor’s own mens rea. [Citation.] In the
context of implied malice, the actus reus required of the perpetrator is the
commission of a life-endangering act. For the direct aider and abettor, the
actus reus includes whatever acts constitute aiding the commission of the
life-endangering act. . . . The mens rea, which must be personally harbored
by the direct aider and abettor, is knowledge that the perpetrator intended to
commit the act, intent to aid the perpetrator in the commission of the act,
knowledge that the act is dangerous to human life, and acting in conscious
disregard for human life.’ ” (Reyes, supra, 14 Cal.5th at pp. 990–991.) The
direct aider and abettor must, therefore, act with intent to aid the life-
endangering act of the direct perpetrator that proximately causes the death.
(Id. at pp. 991–992.)
To find him guilty of second-degree implied malice murder as an aider
and abettor, the trial court was required to find that Pittman knew Harvest
intended to attack Vigil, intended to aid Harvest in attacking Vigil, knew the
18
attack was dangerous to Vigil’s life, and acted in conscious disregard of his
life.
II. Admissibility of Parole Hearing Testimony
Pittman challenges the trial court’s consideration of his parole hearing
testimony on three grounds. We review de novo his claims that the testimony
should be excluded as involuntary and that he should have been granted
immunity for that testimony. (See People v. Vasila (1995) 38 Cal.App.4th
865, 874–876 (Vasila); People v. Anderson (2022) 78 Cal.App.5th 81, 89–93
(Anderson).) We review the trial court’s ruling on the admissibility of the
testimony for abuse of discretion. (People v. Duran (2022) 84 Cal.App.5th
920, 927–928 (Duran).) “[A] court abuses its discretion when it
misapprehends the pertinent law.” (Id. at p. 928.)
a. Involuntariness
Pittman argues that because of the coercive nature of parole hearings
in general, as well as the specific circumstances of his 2017 parole hearing,
the trial court should have excluded his parole testimony as involuntary.
Pittman points to the expert testimony at his resentencing hearing that
parole applicants are very rarely granted parole if they do not maximize their
responsibility for the crime and show “insight” by admitting to the facts in
the trial court record. Pittman also notes the Board members’ comments
regarding the differences between his 2017 parole hearing testimony and
that in prior hearings. In sum, Pittman argues that “[w]hen he testified at
his 2017 parole hearing, [he] understood that the Board expected a full
confession in exchange for his release on parole.”
In determining whether a confession is involuntary, we ask whether
(1) the defendant was promised leniency, and (2) that promise was “ ‘a
motivating cause of the decision to confess.’ ” (Vasila, supra, 38 Cal.App.4th
19at p. 873.) If a government agent merely encourages a person to tell the
truth and does not promise “some benefit beyond that which ordinarily
results from being truthful,” the confession is not involuntary. (Id., at
p. 874.)
Regulations describe the information the Board can gather from a
parole applicant, stating: “The facts of the crime shall be discussed with the
prisoner to assist in determining the extent of personal culpability. The
board shall not require an admission of guilt to any crime for which the
prisoner was committed. A prisoner may refuse to discuss the facts of the
crime in which instance a decision shall be made based on the other
information available and the refusal shall not be held against the prisoner.”
(Cal. Code Regs., tit. 15, § 2236; see also § 5011, subd. (b).) The regulations
also cite remorse as a factor indicating suitability for parole—but do so along
with eight other factors. (Cal. Code Regs., tit. 15, § 2281, subd. (d).) The
regulatory scheme, therefore, does not require parole applicants to discuss
and admit the facts of their crime to be deemed eligible for release.
And although the expert testimony was mixed, two of Pittman’s experts
acknowledged that a person can be released on parole without discussing
their crime. Two experts also agreed that other factors—including
institutional behavior, disciplinary infractions, and plans for release—play a
significant role in the Board’s evaluation of parole suitability. (See Cal. Code
Regs., tit. 15, § 2281, subds. (c)(6), (d)(8), (d)(9).)
With respect to Pittman’s hearing in particular, the Board did not
promise leniency in exchange for his incriminating testimony. At most,
Board members in the past had encouraged Pittman to tell the truth, and
then expressed approval when he did so at the 2017 hearing. Pittman was
represented by an attorney, and the Board admonished him at the outset that
20
he was not required to discuss details of the crime or admit guilt. Consistent
with the regulatory scheme, the Board encouraged Pittman to delve broadly
into his background to develop better insight into all the circumstances that
led to the crime (see Cal. Code Regs., tit. 15, § 2281, subd. (b)), rather than
simply parrot facts from the trial record.
The circumstances in Vasila and People v. Gonzalez (2012)
210 Cal.App.4th 875—the two cases Pittman presents as analogous here—are
readily distinguishable. In both cases, the defendants were offered concrete
promises in exchange for their incriminating statements. (See Vasila, supra,
38 Cal.App.4th at pp. 874, 877 [confession involuntary where officers told
defendant they would charge him with federal crimes and not release him if
he refused to tell them where he had hidden firearms]; Gonzalez, at pp. 881,
884 [statement by parole agent that if defendant did not agree to speak with
officers, parole agent would be forced to recommend that defendant serve
maximum time in custody, knowing defendant feared returning to prison,
rendered defendant’s confession involuntary].) Board members here did not
promise Pittman release in exchange for his admitting additional or
particular facts. They noted his “forthcoming” answers and discussion not
only of the crime, but also the contributory factors in his background. The
Board, having advised Pittman of his rights, merely encouraged him to
provide further truthful testimony. (Vasila, at p. 874.)
Pittman’s parole testimony was not involuntary.
b. Immunity
Pittman next contends that section 1172.6 petitioners should receive
immunity for their testimony at parole hearings because otherwise they are
forced to choose between their right to be free from self-incrimination and the
possibility that they might be released on parole. The California Supreme
21
Court has held that criminal defendants should receive immunity for their
testimony at probation revocation hearings, allowing them to object and
courts to exclude such testimony from the prosecution’s case in chief at a
subsequent criminal trial. (People v. Coleman (1975) 13 Cal.3d 867, 889
(Coleman).) In such instances, the Coleman court concluded, the defendant
should not be required to choose between the right to be heard at the
revocation proceedings and the right to be free from self-incrimination. Such
immunity, Pittman argues, should be extended to testimony provided during
parole hearings to protect a defendant’s rights and prevent the prosecution
from gaining an unfair advantage.
This court, however, has held that Coleman-type immunity does not
extend to the use of parole hearing testimony in section 1172.6 proceedings.
(Anderson, supra, 78 Cal.App.5th at pp. 89–93; see also People v. Myles (2021)
69 Cal.App.5th 688, 704–706 [no immunity for statements made during
parole hearing or parole risk assessment]; People v. Duran, supra,
84 Cal.App.5th at pp. 930–931 [no immunity for petitioner’s statements made
to psychologist during parole risk assessment interview]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 589 [no immunity for parole hearing testimony].)
“Absent a compelling reason, the Courts of Appeal are normally loath to
overrule prior decisions from another panel of the same undivided district or
from the same division.” (Estate of Sapp (2019) 36 Cal.App.5th 86, 109,
fn. 9.) We find no compelling reason to do so here.
Our decision in Anderson, like the others noted above, distinguished
Coleman on the ground that the privilege against self-incrimination does not
attach to resentencing hearings under section 1172.6, so in this context
defendants do not face the unfair choice between the exercise of two rights
that gave rise to the Coleman rule. (Anderson, supra, 78 Cal.App.5th at
22
p. 93; see Myles, supra, 69 Cal.App.5th at p. 706; Duran, supra,
84 Cal.App.5th at pp. 929–931; People v. Mitchell, supra, 81 Cal.App.5th at
p. 589.) Pittman argues that we were wrong to conclude that the Fifth
Amendment does not apply. He points to People v. Basler (2022)
80 Cal.App.5th 46, 57–59, published shortly after Anderson, which found that
a resentencing hearing under section 1172.6 is akin to a plenary sentencing
hearing and a critical stage in the criminal process at which the defendant
therefore has a Sixth Amendment right to be present. And he notes that
Basler relied in part on the observation in People v. Lewis (2021) 11 Cal.5th
952, 973, that there is a due process right to the appointment of counsel in a
habeas case after the issuance of an order to show cause, as well as in a
Proposition 47 resentencing hearing after the defendant passes the eligibility
stage. (Basler, at pp. 58–59.)
These cases do not establish that the privilege against self-
incrimination applies to testimony regarding the offense of conviction at a
resentencing hearing under section 1172.6. As we wrote in Anderson, “the
United States Supreme Court has held that the Fifth Amendment applies
through original sentencing, but has stated that incrimination is complete in
cases in which the sentence has been fixed and the judgment of conviction
has become final.” (Anderson, supra, 78 Cal.App.5th at p. 93, citing Mitchell
v. United States (1999) 526 U.S. 314, 324.) Relying on Mitchell v. United
States to reach the same conclusion, the Duran court pointed out that a
defendant’s final judgment of conviction remains intact during the
resentencing hearing, and is not vacated unless and until the prosecution
23
fails to sustain its burden of proof. (Duran, supra, 84 Cal.App.5th at pp. 930–
931.) 2
Pittman points out that our Supreme Court has held that a habeas
petitioner has the right to assert the privilege against self-incrimination if
called as a witness in that proceeding, which he argues is analogous to a
resentencing hearing. (See In re Scott (2003) 29 Cal.4th 783, 815.) But this
argument fails to distinguish between two different things. After holding
that a habeas petitioner could not assert a privilege against being called as a
witness (because the court concluded that the proceedings were “civil in
nature for these purposes”), Scott then added that the petitioner has a right
to invoke the privilege “as to individual questions, as does any witness in any
proceeding.” (Id. at pp. 815–816, italics added.) This latter aspect of the
court’s holding did not turn on a special characteristic of habeas proceedings.
The court was merely applying the general rule that a witness in a criminal
or civil proceeding may invoke the privilege against self-incrimination when
the witness faces a risk of incrimination. Even assuming that this rule also
applies to a resentencing hearing under section 1172.6, the relevant point
from Mitchell v. United States is that “where there can be no further
incrimination, there is no basis for the assertion of the privilege.” (Mitchell v.
United States, supra, 526 U.S. at p. 326; see People v. Lopez (1999)
2 At oral argument, Pittman’s counsel contended that a murder
conviction is “presumptively invalid” once the petitioner makes a prima facie
showing of entitlement to relief under section 1172.6, subdivision (c). We can
agree with this characterization to the extent it means that, upon such a
showing, the prosecution bears the burden of proving beyond a reasonable
doubt that the defendant is guilty of murder under a currently valid theory
and the conviction will be vacated if the prosecution fails to carry its burden.
But we do not agree with it insofar as it is intended to suggest that the
conviction has already been vacated and the resentencing hearing is
therefore equivalent to a new trial.
24
71 Cal.App.4th 1550, 1554 [“When a defendant has already pled guilty to a
charge, and time to appeal the conviction has run without an appeal being
filed, the defendant’s privilege to avoid compelled self-incrimination with
regard to the facts underlying the conviction no longer exists”].) Because the
judgment of conviction remains intact during the resentencing hearing, the
defendant does not have a basis to invoke the privilege as to the facts
underlying the conviction; the defendant does not face “further incrimination”
based on those facts. We see no indication that Scott considered this issue,
and indeed, in a footnote the court wrote: “Because petitioner ultimately did
not testify at the reference hearing, we do not consider any other issues that
might arise regarding a testifying petitioner’s possible invocation of the
privilege against self-incrimination.” (Scott, at p. 817, fn. 7.) As the Supreme
Court has frequently observed, “ ‘ “ ‘cases are not authority for propositions
not considered.’ ” ’ ” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252.)
Pittman also argues that we should find the privilege applicable based
on the enactment of Senate Bill No. 775 (2021–2022 Reg. Sess.), in which the
Legislature “[r]eaffirm[ed] that the proper burden of proof at a resentencing
hearing under this section is proof beyond a reasonable doubt,” (Sen. Bill
No. 775 (2021–2022 Reg. Sess.) § 1(c)) and amended (now) section 1172.6,
subdivision (d)(3), to provide that the resentencing hearing is governed by the
Evidence Code, subject to certain exceptions. Pittman contends that by
referring to the Evidence Code, the Legislature necessarily included Evidence
Code section 940, which codifies the privilege against self-incrimination. But
that section provides: “To the extent that such privilege exists under the
Constitution of the United States or the State of California, a person has a
privilege to refuse to disclose any matter that may tend to incriminate him.”
(Italics added.) For the reasons discussed above, a person with a final
25
conviction does not have a constitutional privilege against self-incrimination
as to the facts underlying that conviction.
With respect to the burden of proof, we acknowledge that in People v.
Mitchell, supra, 81 Cal.App.5th 575, Presiding Justice Stratton argued in
dissent that denying the defendant the privilege against self-incrimination
lessened the prosecution’s burden of proof, which she found inconsistent with
the Legislature’s express imposition of that burden on the People without
qualification. (Id. at p. 604 (dis. opn. of Stratton, P. J.); cf. Coleman, supra,
13 Cal.3d at p. 876 [“The heavy burden thus placed upon the prosecution in a
criminal trial to prove through its own investigation the guilt of the
defendant may be substantially lightened if the prosecution is allowed to take
advantage of the defendant’s testimony at a prior probation revocation
hearing”].) But that view did not persuade the majority, and the panel in
Duran also disagreed with it. (See Duran, supra, 84 Cal.App.5th at p. 931.)
As other courts have observed, notwithstanding the prosecution’s burden of
proof, “section 1172.6 remains a ‘ “ ‘ resentencing procedure, not a new
prosecution.’ ” ’ ” (Estrada v. Superior Court (2023) 93 Cal.App.5th 915, 924–
925, quoting People v. Flint (2022) 75 Cal.App.5th 607, 618.) Of course, if the
Legislature concludes that a different rule would better advance its intent in
creating the resentencing remedy, it may amend the statute to provide use
immunity for parole hearing testimony, or more generally, to allow the
defendant to assert a privilege against self-incrimination as to the conviction
at issue. But without more, we do not see a “compelling reason” to abandon
our prior holding in Anderson that use immunity is not available for parole
hearing testimony.
26
c. Reliability
Pittman alternatively contends that the trial court should have
excluded, or at least declined to credit, his parole testimony as unreliable
hearsay. The trial court admitted Pittman’s parole hearing testimony as a
party admission under Evidence Code section 1220. “[T]he party-admission
exception codified in Evidence Code section 1220, covers ‘[e]vidence of a
statement . . . when offered against the declarant in an action to which he is a
party . . . .’ ” (People v. Flinner (2020) 10 Cal.5th 686, 735.) “While
‘sometimes referred to as the exception for admissions of a party,’ Evidence
Code section 1220 ‘covers all statements of a party, whether or not they
might otherwise be characterized as admissions.’ ” (People v. Gonzalez (2021)
12 Cal.5th 367, 409.)
Pittman does not identify any case in which a party admission offered
under Evidence Code section 1220 was excluded as unreliable, or was even
subject to an evaluation for reliability prior to admission. “As reported in the
Law Revision Commission Comment, the rationale of this exception to the
hearsay rule is that the party’s right to cross-examine the declarant is not
violated since the party himself made the statement.” (People v. Alvarez
(1968) 268 Cal.App.2d 297, 305.) Pittman cites People v. Earnest (1975)
53 Cal.App.3d 734, 741, in which the court wrote that “the principal reason
for all the exceptions to the hearsay rule”—and it expressly included
Evidence Code section 1220 among them—“is that under certain
circumstances hearsay statements are as reliable as statements made in
court.” However, the only requirements for admissibility under Evidence
Code section 1220 are that (1) there is a statement of the declarant (2) offered
against the declarant. (People v. Gonzalez, supra, 12 Cal.5th at p. 409.)
Those minimal conditions were satisfied here.
27
Acknowledging that his statements “technically fell within the
parameters of Evidence Code section 1220,” Pittman argues that the trial
court should not have relied on them because they were “not made under
trustworthy circumstances.” But while the trial court could properly consider
Pittman’s arguments that the statements should not be credited given the
circumstances under which they were made, or because they were
inconsistent with the forensic evidence, the testimony of other witnesses, or
Pittman’s own statements at previous parole hearings, our task on appeal is
different. In conducting our review, we do not resolve credibility issues or
evidentiary conflicts. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) To
be sure, under appropriate circumstances, we can find evidence so unreliable
that it cannot constitute substantial evidence in support of the judgment.
(See People v. Del Rio (2023) 94 Cal.App.5th 47, 57–59 [probation report
could not sustain judgment where the People failed to demonstrate a
substantial basis for believing the hearsay information it contained was
reliable]; In re Eugene M. (1976) 55 Cal.App.3d 650, 659 [prior unsworn out-
of-court statement, though admissible as a prior inconsistent statement, was
not substantial evidence when “given by an apparent accomplice under threat
of prosecution and thereafter repudiated under oath”].) However, for the
reasons discussed above, Pittman’s testimony not only was properly
admitted, but the circumstances were not so inherently coercive or
untrustworthy—and the statements were not so inherently unbelievable or
contradictory—that no reasonable trier of fact could have credited them.
Accordingly, we conclude that the trial court properly admitted
statements that Pittman made at his parole hearing, and that the weight to
give them was for the trial court to decide.
28
III. Substantial Evidence
As noted above, we must consider whether the record contains
substantial evidence that Pittman knew Harvest intended to attack Vigil,
intended to aid Harvest in attacking Vigil, knew the attack was dangerous to
Vigil’s life, and acted with conscious disregard for Vigil’s life. (Reyes, supra,
14 Cal.5th at pp. 991–992.)
The evidence at trial showed that Pittman, angered by seeing Vigil
“shooting up dope with a prostitute in his truck,” picked up chisels in a
bucket from his neighbor’s porch, took one for himself, handed one each to
Harvest and Myers, and said, “Let’s go whip [Vigil’s] ass.” The chisels were
metal instruments with one blunt end and a sharp cutting edge at the other
end. Pittman, Harvest, and Myers all proceeded to Vigil’s truck with the
chisels. After Harvest ran ahead and while he was stabbing Vigil with his
chisel, Pittman threw his chisel at the back of Vigil’s truck. Once Vigil was
on the ground, Pittman attempted to help Harvest pick up Vigil’s body and
put it into the back of the truck. Unsuccessful, Pittman, Harvest, and Myers
all fled the scene, without rendering aid or otherwise demonstrating concern
for Vigil’s life. Pittman therefore supplied the deadly instruments to himself
and his three codefendants, angrily instigated the attack on Vigil,
participated in the attack, attempted to help Harvest move Vigil’s body from
the crime scene, and disregarded whether Vigil survived the attack.
Pittman’s parole hearing testimony gave further support to the trial court’s
finding that Pittman acted with implied malice. That testimony indicated
that Pittman (1) knew Harvest had recently committed a murder; (2) knew
Harvest intended to murder Vigil; (3) helped Harvest pull Vigil from the
truck to continue the attack; and (4) kicked Vigil in the head “a couple times”
because Vigil did not appear to be dead yet.
29
In large part, Pittman disputes the inferences the trial court drew from
the evidence to conclude that he acted with conscious disregard for Vigil’s life.
Pittman argues that the direct evidence better supports a finding that
Pittman intended only to assault Vigil. But “ ‘ “[i]f the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ” (People v.
Cravens, supra, 53 Cal.4th at p. 508.) Here, the inferences the trial court
drew from the evidence were reasonable. While Pittman’s stated intention
was to “whip [Vigil’s] ass,” he supplied the chisels to himself and his
codefendants, knew that one of his codefendants had murdered someone else
just days before, helped pull Vigil out of the truck to continue the attack,
kicked Vigil in the head, and after the attack acted inconsistently with any
concern for whether Vigil lived or died. All of these facts are consistent with
an inference that Pittman acted with conscious disregard for Vigil’s life.
Pittman also disputes whether his acts of distributing the chisels,
instigating the attack, and/or throwing the chisel at the back window of
Vigil’s truck actually aided the murder. He takes issue with the trial court’s
reliance on “group beating” cases like Cravens and People v. Guillen (2014)
227 Cal.App.4th 934 (Guillen). 3 We agree with Pittman that Guillen and
Cravens are insufficiently analogous to resolve the question of whether he
acted with implied malice in these circumstances. In both Guillen and
Cravens there was evidence that the defendants inflicted one or more direct
blows on the victim that contributed in substantial part to their deaths.
(Cravens, supra, 53 Cal.4th at pp. 508–511; Guillen, at pp. 985–988.) Their
3 The trial court also relied on People v. Garcia (2020) 57 Cal.App.5th
100, but that case has since been depublished. (People v. Garcia, opn.
ordered nonpub. Dec. 29, 2021, S265692.)
30
physical acts lent support to the courts’ conclusions that each defendant
subjectively appreciated the risk of death to the victim and consciously
disregarded that risk. (Cravens, at p. 511; Guillen, at pp. 988–991.) Here, by
contrast, the evidence indicates that Harvest alone inflicted the lethal blows
on Vigil.
Nonetheless, the facts that Pittman instigated the attack on Vigil,
supplied the chisels to himself and his codefendants, and joined the attack
even without directly contributing to Vigil’s lethal injury are sufficient to
support the trial court’s conclusion. For example, in People v. Superior Court
(Valenzuela) (2021) 73 Cal.App.5th 485, 491, 493–494, 502–504, the court
found sufficient evidence to support a charge of aiding and abetting second-
degree implied malice murder where the defendant instigated and
encouraged a group attack, joined the attack while armed with a weapon,
targeted the victim, and knew his codefendant—who ultimately inflicted the
fatal blow—was armed with a knife.
Thus, even without relying on Guillen and Cravens, we conclude that
the record contains substantial evidence that could support the trial court’s
finding that Pittman is guilty as an aider and abettor of second-degree
implied malice murder if there were no other relevant factors to consider.
However, as discussed in the next section, youth is a relevant factor that the
trial court did not consider, and we do not find the error harmless. (See
People v. Jones (2022) 86 Cal.App.5th 1076, 1090–1091, 1093 [while
substantial evidence might support the judgment if youth were not a relevant
consideration, remand was appropriate where trial court failed to consider
it].)
31
IV. Pittman’s Youth
We granted Pittman’s request for supplemental briefing to address the
role, if any, that youth should play in analyzing his petition.
a. Forfeiture
The Attorney General argues that we should not consider Pittman’s
arguments regarding his youth because his counsel did not raise the issue in
the trial court. But we agree with the courts in People v. Jones (2022)
86 Cal.App.5th 1076, 1091 (Jones) and Oliver, supra, 90 Cal.App.5th at
p. 488, that, given the timing of the cases deciding that youth is a relevant
factor bearing on mental state in section 1172.6 petitions, “ ‘it is unlikely . . .
that the trial court [or the parties] could have known to consider [Pittman’s]
age and maturity level, particularly to the extent now required by cases
issued after the resentencing hearing.’ ” (Oliver, at p. 490.) The trial court
issued its order on Pittman’s petition in December 2020. The relevant
appellate cases were not decided until 2021 or later. (See People v. Harris
(2021) 60 Cal.App.5th 939, review dism. and remanded on other grounds
September 28, 2022, S267802; In re Moore (2021) 68 Cal.App.5th 434; People
v. Ramirez (2021) 71 Cal.App.5th 970; In re Harper (2022) 76 Cal.App.5th
450; Jones, supra, 86 Cal.App.5th 1076; People v. Keel (2022) 84 Cal.App.5th
546; People v. Mitchell (2022) 81 Cal.App.5th 575; Oliver, at p. 466.) We
therefore exercise our discretion to consider the relevance of youth in this
still-developing area of the law. 4 (Oliver, at p. 488.)
b. The Relevance of Youth
Pittman urges that his age—21—at the time of the attack is relevant to
whether he acted with implied malice and therefore could be found guilty of
4 Because we find no forfeiture, we do not address the issue of
ineffective assistance of counsel.
32
second-degree murder at his resentencing hearing. Recent appellate cases
have concluded nearly uniformly that a defendant’s youth—defined, roughly,
as being 25 years of age and younger—is a factor within the totality of
circumstances relevant to the requisite mental state for felony murder. (See
People v. Harris, supra, 60 Cal.App.5th at p. 960; In re Moore, supra,
68 Cal.App.5th at pp. 453–455; People v. Ramirez, supra, 71 Cal.App.5th at
p. 987; Jones, supra, 86 Cal.App.5th at pp. 1091–1093; People v. Keel, supra,
84 Cal.App.5th at pp. 562–563; but see In re Harper, supra, 76 Cal.App.5th at
p. 470 [assuming, without deciding, that youth may play a role in the
analysis]; Oliver, supra, 90 Cal.App.5th at p. 490 [finding harmless any error
in trial court’s failure to consider defendant’s age of 23 years]; People v.
Mitchell, supra, 81 Cal.App.5th at p. 595 [discussing defendant’s youth, but
suggesting that consideration was more relevant to the question whether he
should be released on parole].)
The policy interests underlying the felony murder cases—that youth is
relevant to a criminal defendant’s ability to perceive risk and consequences,
and therefore to the level of culpability—apply equally in the context of
implied malice murder. The parties offer no reason not to include youth as a
factor in the totality of the circumstances bearing on whether Pittman acted
with implied malice. And the implied malice mental state—conscious
disregard for human life (Reyes, supra, 14 Cal.5th at p. 988)—is similar to the
“reckless indifference to human life” standard applicable to felony murder.
(In re Scoggins (2020) 9 Cal.5th 667, 677.) Indeed, the concept of reckless
indifference to human life has a subjective component that expressly
incorporates the “conscious[] disregard” of “ ‘the significant risk of death [the
defendant’s] actions create.’ ” (Ibid.) Given these similarities, and the lack of
33
any distinction supplied by the parties, we see no reason not to apply the
principle articulated in the felony murder cases here.
The Attorney General concedes that youth may be a relevant factor in
the totality of the circumstances relevant to Pittman’s mental state, but
argues that the trial court may have implicitly considered the issue; that this
court is not required to remand to the trial court to consider Pittman’s youth;
and that any failure to consider Pittman’s youth was harmless.
As the Attorney General notes, however, there was no discussion of
Pittman’s youth in the proceedings in the trial court, and the court did not
mention the subject in its otherwise comprehensive ruling. We cannot,
therefore, assume the trial court implicitly considered it. (See Jones, supra,
86 Cal.App.5th at p. 1092 [the trial court issued its decision omitting
discussion of youth shortly after People v. Harris was decided, “without any
remonstrance by defense counsel”].)
Because no evidence of youth was addressed in the trial court, we look
to the felony murder cases to determine whether there is a reasonable
possibility that the failure to consider Pittman’s youth impacted the trial
court’s decision. (Oliver, supra, 90 Cal.App.5th at p. 489, fn. 8 [applying
prejudice standard from People v. Watson (1956) 46 Cal.2d 818, 836].) “A
‘reasonable probability’ ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ ” (People v. Hardy
(2021) 65 Cal.App.5th 312, 329–330.) The cases discussing the role of youth
in relation to criminal culpability “stress two areas”: youthful offenders’
“relative impulsivity” and “their vulnerability to peer pressure.” (Oliver, at
p. 489.) “ ‘Transient rashness,’ ” “ ‘ “impetuosity,” ’ ” and “ ‘ “failure to
appreciate risks and consequences” ’ ” are hallmarks of an immature brain.
(Id. at p. 490.) The circumstances of the offense here suggest that some of
34
these “hallmark features of youth” may have been at play. (Id. at pp. 486,
487; see also In re Moore, supra, 68 Cal.App.5th at p. 454.)
Pittman, 21, participated in the attack on Vigil with two peers who
were 16 and 17 years old. Inferences of immaturity and peer pressure may
be drawn from those facts. In addition, notwithstanding Pittman’s
characterization of the attack as “planned,” the trial evidence indicates that
Pittman and his peers acted impulsively and under the influence of
“transient rashness.” The selection of chisels as weapons appears to have
been spontaneous. The acknowledged motivation for the crime was the
happenstance that, while walking by his house, Pittman noticed Vigil
“shooting up dope with a prostitute in his truck.” Pittman argues on appeal
that material characteristics of youth are exacerbated in certain situations
like those here, citing Pittman and his codefendants’ intoxication and
“negative emotional arousal.” We also note that issues surrounding youth
were discussed at Pittman’s parole hearing.
That Pittman was 21 years old at the time does not dissuade us. The
defendant in Jones was 20 years old, and yet the court deemed remand
warranted to consider his relative youth. (Jones, supra, 86 Cal.App.5th
at pp. 1092–1093; cf. Oliver, supra, 90 Cal.App.5th at p. 489 [“Presumably,
the presumption of immaturity weakens as a defendant approaches 26”].) We
do not find further factual distinctions between this case and the felony
murder cases sufficiently compelling to overcome “the interest[s] of justice”
served by remand. (Jones, at p. 1093.)
We conclude, therefore, that Pittman’s youth was a factor for the court
to consider at his resentencing hearing, and that remand is appropriate for
35
the court to consider how, if at all, Pittman’s youth impacted his ability to
form the requisite mental state for second-degree murder.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court
for further proceedings consistent with this opinion.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
HIRAMOTO, J. *
* Judge of the Superior Court of California, County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
36
Trial Court: Contra Costa County Superior Court
Trial Judge: Honorable Charles B. Burch, Judge
Counsel for Mary K. McComb
Defendant State Public Defender
and Jessie S. Hawk
Appellant: Deputy State Public Defender
Counsel for Rob Bonta
Plaintiff Attorney General
and Lance E. Winters
Respondent: Chief Assistant Attorney General
Jeffrey M. Laurence
Assistant Attorney General
Catherine A. Rivlin
Deputy Attorney General
Charlotte Woodfork
Deputy Attorney General
37