People v. Pellecer CA2/2

Filed 3/7/23 P. v. Pellecer CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B318988
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA417246)
v.
JAVIER PELLECER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lynne M. Hobbs, Judge. Affirmed.
Pensanti & Associates and Louisa Belle Pensanti for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 2016, a jury found defendant and appellant Javier
Pellecer guilty of the first degree murder of Columbus Campbell
(Campbell) (Pen. Code, § 187, subd. (a)),1 the second degree
murder of Kavette Watson (Watson) (§ 187, subd. (a)), and being
an accessory after the fact to murder (§ 32). The jury found true
allegations that the crimes were committed for gang purposes.
(§ 186.22, subd. (b)(1).) As to the murders, the jury also found
true multiple murder special circumstance allegations (§ 190.2,
subd. (a)(3)) and firearm enhancement allegations (§ 12022.53,
subds. (b), (c), (d) & (e)(1)). The trial court sentenced defendant
to an aggregate prison term of life without the possibility of
parole plus 65 years to life.
We affirmed the judgment on direct appeal. (People v.
Pellecer (Sept. 18, 2018, B280333) [nonpub. opn.], at p. 28
(Pellecer).)
In 2019, defendant filed a petition for resentencing under
section 1172.6 (former § 1170.95).2 The trial court found that
defendant had failed to make a prima facie showing for relief as
to Campbell’s murder, but the court issued an order to show
cause and held an evidentiary hearing as to Watson’s murder. At
the conclusion of the evidentiary hearing, the court denied
defendant’s petition. This appeal ensued.
We affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
2
BACKGROUND
I. Facts Underlying Convictions3
A. The murders of Campbell and Watson
At approximately 12:30 a.m., on October 6, 2008, Kimberly
Ramirez (Ramirez) was talking with a man in the vicinity of
3415 West 63rd Street in Los Angeles. (Pellecer, supra, B280333,
at p. 3.) Someone fired several gunshots from behind Ramirez.
(Ibid.) “Ramirez ducked. She saw someone wearing dark
clothing shoot at a parked white Mercedes Benz. The shooter
then got into a dark colored ‘Nissan of some sort’ that was parked
next to the victims’ car. The Nissan then drove away.” (Ibid.)
Campbell, a Rollin 60’s Crips gang (Rollin 60’s) member,
had been sitting in the driver’s seat of the Mercedes Benz;
Watson, who was 16 years old, had been sitting in the front
passenger seat. (Pellecer, supra, B280333, at pp. 3–4.) Both
Campbell and Watson sustained gunshot wounds. (Id. at p. 4 &
fns. 3–4.) Campbell died at the scene; Watson was transported to
the hospital, where she later died from her injuries. (Id. at p. 4.)
“Los Angeles Police Department Detective Ernesto
Mendoza, who was assigned to the criminal gang homicide
division, responded to the crime scene. He recovered 11 .40-
caliber casings from the Mercedes Benz. [¶] Detective Mendoza
later determined that defendant owned a blue Nissan Altima.”
(Pellecer, supra, B280333, at p. 4.)
B. Police interview of Crystal Davis (Davis)
Detective Mendoza interviewed Davis, who lived in the
same neighborhood as defendant, in January 2009. (Pellecer,
supra, B280333, at p. 4.) Davis said that Wayne Gray (Gray),
3 We draw these facts from our prior, unpublished opinion
affirming the judgment. (Pellecer, supra, B280333.)
3
with whom she had a child, was a Rollin 60’s member. (Id. at
pp. 2, 4–5.) “Davis was present when Campbell and Gray got into
an argument and fight in an apartment complex in
September 2008. Campbell ‘blind-sided’ Gray and hit him in the
face; Gray suffered a cut above his eye.” (Id. at p. 5.)4
C. The murder of Charles Westby (Westby)
“Westby was murdered on June 2, 2013, as a result of
multiple gunshot wounds.
“Los Angeles Police Department Detective John Jamison
arrested [Jerry] Wilson, Gray, and [Leon] Panting for the murder
of Westby. Los Angeles Police Department Detective Eric
Crosson told Detective Jamison that someone had assisted those
men in disposing of the murder weapon.” (Pellecer, supra,
B280333, at pp. 2, 5.)
D. Resumption of the investigation into the murders of
Campbell and Watson
“In 2013, Los Angeles Police Department Detectives Miguel
Gutierrez and Crosson were assigned to investigate the
homicides of Campbell and Watson. Detective Gutierrez
requested surveillance on defendant. On October 16, 2013,
defendant was detained and brought into an interview room at
the police station. Detective Gutierrez also set a ‘jail operation’
in place, whereby a confidential informant (CI)[5] would be placed
in a cell with a person that the police believe[d] committed a
4 At trial, Davis denied making these statements to police.
(Pellecer, supra, B280333, at p. 5, fn. 6.)
5 “The CI was posing as a fellow inmate; he was never
actually in custody.” (Pellecer, supra, B280333, at p. 5, fn. 7.)
4
crime so that the suspect would ‘talk and maybe confess about
the crime.’
“Detective Gutierrez then interviewed defendant, and the
interview was recorded. During the interview, Detective
Gutierrez wanted to ‘stimulate’ defendant so that he would talk
about the crime with the CI. Therefore, he told defendant that he
(defendant) had loaned his car to the shooter and that his car was
used in the shooting. Detective Gutierrez also told defendant
about the motive that the shooter had for the shooting (a fight
with the victim). And, Detective Gutierrez gave defendant a
general location and date and time of the double homicide.
Defendant was then placed in a jail cell with the CI.” (Pellecer,
supra, B280333, at pp. 5–6, fn. omitted.)
E. Defendant’s recorded conversation with the CI
“The CI asked defendant what he was charged with.
Defendant replied, ‘The ultimate’ and ‘187.’ The CI asked
defendant how long ago the crimes occurred, and defendant
replied ‘Five years ago.’ Defendant then said that the ‘[s]ame
motherf***er’ just did some ‘sh**’ this year, ‘in June.’ Defendant
continued: ‘But all right like me and him did this one way back
then, f*** I, I had nothing to do with this one right now.’
“Defendant and the CI then talked about defendant getting
picked up after five years. The CI told defendant that the police
probably had his car ‘branded,’ but could not put him in the
vehicle. Defendant replied that he had put paper plates on the
car and after he ‘did the . . . job,’ he put the regular plates back
on.
“The CI next told defendant: ‘You know what else you
gotta worry about homey? Get rid of those straps. Get rid of ‘em.’
Defendant responded, ‘All of them are gone.’ Defendant
5
explained that he sold it to a whole other neighborhood,
approximately 30 minutes away.
“As their conversation continued, defendant told the CI
that his ‘homeboy’ called him and asked him to pick him up. The
man went to defendant’s car and said, ‘“hey man let’s go do this
little . . .”’ and defendant went with him.
“The following exchange then occurred:
“‘[DEFENDANT]: But see when we had did the sh**,
‘cause I know the little, it was this little f***in’ mayate (n***er)
that he got into it with right?
“‘[CI]: Yeah, yeah.
“‘[DEFENDANT]: So I . . . you know I didn’t care, like “f***
it.” What I didn’t like afterward because there was a girl in
there.
“‘[CI]: Uh.
“‘[DEFENDANT]: There was like a f***in’ [16]-year old girl
in there.
“‘[CI]: On in there.
“‘[DEFENDANT]: In the car with homeboy. They were like
f***in’ asleep like at one in the morning by a motel and sh**.
“‘[CI]: Oh so you guys rolled up on a car that was . . . .
“‘[DEFENDANT]: So, yeah, so my homey, he’s like “hold
on, this fool’s in this motel” ‘cause he [had] seen the car.
“‘[CI]: Yea . . . oh so you guys stopped?
“‘[DEFENDANT]: He stopped but then he looked in the car
and he’s like “this mother***er’s sleeping in his car” like . . . .
[¶] . . . [¶]
“‘[DEFENDANT]: But I, I didn’t know that it was a girl in
there asleep too. So he [had] seen her to[o] and just f***[]it let
em . . . .
6
“‘[CI]: Oh he let ‘em both have it?
“‘[DEFENDANT]: Yea they both . . . .
“‘[CI]: Oh but you know what—you got, you got to do . . . .
“‘[DEFENDANT]: That’s that’s pretty much it. Yeah. You
gotta do what you gotta do.’
“Defendant then indicated that he did not care about the
male victim, but was bothered by the fact that the second victim
was a 16-year-old girl.
“The CI then asked defendant what he did when his friend
jumped out of the car ‘to do that.’ Defendant replied, ‘I just . . . I
pulled up right, right next to it. He jumped out “bam, bam, bam”
rolled, the light turned green. . . . There was nobody in sight
man.’ The CI asked where the motel was, and defendant said
‘[o]n 63rd and Crenshaw.’
“Next the CI asked defendant about ‘[t]he heat from back
then.’ Defendant stated that it was gone ‘two days after’ the
shooting. Defendant then admitted that he ‘got rid of this one for
him too.’
“Later in the conversation, defendant indicated that the
2008 shooting was a ‘target’ shooting; they ‘went looking for that
fool’ because they knew ‘where his whereabouts were.’
“In Detective Gutierrez’s opinion, defendant had confessed
to being the driver in the 2008 double homicide. Thus, he
generated a report of the jail operation and took it to the district
attorney’s office.” (Pellecer, supra, B280333, at pp. 6–9.)
II. Section 1172.6 Petition
On November 4, 2019, defendant filed a petition for
resentencing pursuant to section 1172.6. Following briefing and
oral argument by the parties, the trial court found that defendant
had failed to make a prima facie showing for relief as to the
7
murder of Campbell.6 As to the murder of Watson, the court
issued an order to show cause.
III. Evidentiary Hearing
The evidentiary hearing on defendant’s petition was held
on February 7 and 23, 2022.
A. The People’s evidence
The People submitted the trial transcripts, trial exhibits,
portions of the preliminary hearing transcript, the jury
instructions, the jury verdict forms, and our prior opinion
affirming the judgment.
B. Defendant’s evidence
Defendant testified on his own behalf at the evidentiary
hearing. He also offered the transcript of the preliminary
hearing testimony of Ricardo Zamora (Zamora).7
1. Defendant’s testimony
Defendant was “hanging out” in the Dorset Village
apartment complex. He left his car parked in the complex when
a friend picked him up to go to dinner. He returned to the area
around 10:30 p.m. or 11:00 p.m., but he could not retrieve his car
because Dorset Village was gated. Defendant went back to his
home, which was one street away.
Defendant eventually got in contact with Gray, who lived in
Dorset Village. At defendant’s request, Gray delivered
defendant’s car to him at around midnight. Gray asked
defendant to take him to get drugs before taking him back home.
6 Because the judge who presided over defendant’s trial and
sentencing had retired, a different judge ruled on defendant’s
petition.
7 Zamora did not testify at defendant’s trial.
8
When defendant and Gray arrived at the area where the drugs
were sold, Gray exited the car and defendant got into the driver’s
seat. Gray returned with the drugs and got into the passenger’s
seat. They then drove to a liquor store to buy drinks.
After leaving the liquor store, Gray asked defendant to turn
onto 63rd Street. After passing a few stop signs, Gray directed
defendant to pull over into an empty parking spot. Defendant
complied. Gray prepared to snort cocaine and asked defendant to
pull into a motel parking lot, saying that “somebody was over
there . . . he wanted to see[.]” A person then walked down the
street. Gray pulled out a gun from his waistband, rolled down
the window, and told the person to “‘get the f*** away from
here.’”
Defendant told Gray, “‘Let’s go.’” Gray responded, “‘Hold
on. Let me just—I’m just going to walk into the hotel. I’m just
going to go to the hotel. Just wait for me.’” Gray exited the car
and started walking down the street. Gray veered out of
defendant’s sight. Defendant heard gunshots and ducked. When
the gunshots stopped, defendant started driving and saw Gray
standing on the street waiting. Gray got into the car, and
defendant drove off. Defendant asked Gray, “‘What the hell just
happened?’” and Gray “explained” what had occurred.
Defendant was arrested about a month later. He was
questioned, polygraphed, and released the same day. Five years
passed. Defendant was arrested again on October 16, 2013, and
taken to a police station, where he had a conversation with a
person in the lockup with him. Defendant “wasn’t 100% truthful”
during that conversation. The person defendant spoke to did not
appear at defendant’s trial.
9
Defendant did not shoot the victims, encourage Gray to do
so, or know that Gray was going to do something. Defendant
admitted to being a Rollin 60’s member at the time. Gray was
affiliated with the gang but was not a member.
2. Zamora’s preliminary hearing testimony
Zamora testified that at around midnight on October 6,
2008, he was “[h]anging out” in the vicinity of 3415 West 63rd
Street in Los Angeles. He saw a male and a female in a parked
white BMW or Mercedes Benz. He also saw a dark-color car,
which he had never seen in the neighborhood before, parked a
few cars behind the white car. Two men were in the dark-color
car. One was making “[a]ngry type gestures.”
Zamora went back to his apartment but then returned to
where the dark-color car was parked. He pretended to urinate so
that he could see who was in the car. The front passenger side
window rolled down. The man sitting in the front passenger seat
pointed a gun at Zamora and said, “‘Get the f*** away from me,
you punk ass motherf***er, before I shoot.’” Zamora ran to a
balcony close to his apartment and watched the dark-color car.
About 10 minutes later, Zamora saw a man with a pistol in
his hand exit the dark-color car from the passenger side. The
man walked to the white car and started shooting into the
driver’s side window. After the shooting stopped, the driver of
the dark-color car drove up slowly with the lights off, picked up
the shooter, and drove away.
IV. Trial Court Order
After entertaining oral argument, the trial court denied
defendant’s section 1172.6 petition as follows:
“[T]he court . . . finds that in the trial of this case, the
People proceeded under an aider and abettor theory. That theory
10
was argued before the jury. That was the only theory given to
the jury, and the jury found that the defendant was guilty based
on that aider and abettor theory.
“The court also finds that substantial evidence supports
that theory, as stated by the Court of Appeal. When the court
considers the defendant’s jailhouse conversation, the court finds
that it only bolsters the Court of Appeals’ conclusion, as well as
the jurors’ conclusion, that the defendant was an aider and
abettor in the killing of Campbell. And to the extent that the
defendant’s testimony differs, the court finds it not credible.
“The court believes that the defendant, even if he did not
have in mind to kill the 16-year-old that was present in the car,
and was remorseful that it occurred—the court believes that the
aider and abettor theory applies to the transferred intent
doctrine as well, not because the case is stated prior to
[section 1172.6], but because of the changes in the law had to do
with not having the mens rea of killing, which is a high—which is
one of the most heinous crimes.
“So once you reach that level of mens rea to kill one person,
I believe that transferred intent would apply to an unintended
target, even under an aider and abettor theory.
“And for these reasons, the court denies the [section 1172.6]
petition.”
V. Appeal
Defendant filed a timely notice of appeal from the denial of
his section 1172.6 petition.
DISCUSSION
I. Relevant Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) was enacted to “amend the felony
11
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
To accomplish this, Senate Bill 1437 substantively
amended sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2-3.) A
murder conviction now “requires proof that the defendant (1) was
the actual killer (who acted with the requisite express or implied
malice), (2) directly aided and abetted the actual killer while
acting with the intent to kill, or (3) was a major participant in a
felony who acted with reckless indifference to the value of human
life. (§§ 188, 189.)” (People v. Duran (2022) 84 Cal.App.5th 920,
927 (Duran).)
Thus, as relevant here, “[a]lthough an accomplice can no
longer be convicted of murder under the natural and probable
consequences theory, an accomplice can still be convicted of
murder as a direct aider and abettor. [Citations.]” (People v.
Pacheco (2022) 76 Cal.App.5th 118, 124 (Pacheco), review granted
May 18, 2022, S274102; see also People v. Gentile (2020)
10 Cal.5th 830, 848 (Gentile) [“Senate Bill 1437 does not
eliminate direct aiding and abetting liability for murder because
a direct aider and abettor to murder must possess malice
aforethought”].) “Under a direct aider and abettor liability
theory, the prosecution must prove the person who is not the
actual killer ‘engaged in the requisite acts and had the requisite
intent’ to aid and abet the target crime of murder. [Citation.] A
direct aider and abettor’s ‘guilt is based on a combination of the
12
direct perpetrator’s acts and the aider and abettor’s own acts and
own mental state.’ [Citation.]” (Pacheco, supra, at p. 124.)
Senate Bill 1437 also added what is now section 1172.6.
(People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) “While the
amendments to sections 188 and 189 narrow the elements of
murder prospectively, section 1172.6 is the statutory mechanism
for determining whether to retroactively vacate a final murder,
attempted murder, or manslaughter conviction that does not
comply with the new, narrower definitions.” (Duran, supra,
84 Cal.App.5th at p. 927.)
To seek relief under section 1172.6, a defendant “must ‘file
a petition’ alleging entitlement to relief along with ‘[a]
declaration’ attesting to eligibility for relief. [Citation.]” (Duran,
supra, 84 Cal.App.5th at p. 927.) “When the trial court receives a
petition containing the necessary declaration and other required
information, the court must evaluate the petition ‘to determine
whether the petitioner has made a prima facie case for relief.’
[Citations.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial
court may dismiss the petition. [Citations.]” (Strong, supra,
13 Cal.5th at p. 708.)8
“If the defendant ‘makes a prima facie showing’ of
entitlement to relief (that is, if the record of conviction does not
establish ineligibility for relief as a matter of law), then the [trial]
8 The record of conviction, which the trial court may rely on
in determining whether a prima facie showing is made (People v.
Lewis (2021) 11 Cal.5th 952, 970–971), “may include the
underlying facts as presented in an appellate opinion, the trial
evidence, the jury instructions, and closing arguments of counsel”
(People v. Lopez (2022) 78 Cal.App.5th 1, 13).
13
court must in most cases convene an evidentiary hearing where
the People bear the burden of establishing beyond a reasonable
doubt that the defendant is guilty of the pertinent crime under
the new, narrower definitions. [Citation.] At that evidentiary
hearing, the court may consider ‘evidence previously admitted at
any prior hearing or trial’ that is admissible under current law,
as well as ‘new or additional evidence’ that is admissible under
current law. [Citation.] If the People ‘fails to sustain its burden
of proof’ at the evidentiary hearing, then the conviction must be
‘vacated’ and the defendant resentenced. [Citation.]” (Duran,
supra, 84 Cal.App.5th at p. 927.)
II. The Trial Court Properly Denied the Section 1172.6 Petition as
to the Murder of Campbell at the Prima Facie Stage
Based on our de novo review (People v. Coley (2022)
77 Cal.App.5th 539, 545), we conclude that the trial court
properly denied defendant’s section 1172.6 petition as to
Campbell’s murder at the prima facie stage, without issuing an
order to show cause.
The jury found defendant guilty of the first degree murder
of Campbell after having been instructed on, as relevant here,
malice murder (CALCRIM No. 520), first degree murder
(CALCRIM No. 521), and direct aiding and abetting liability
(CALCRIM Nos. 400–401). The jury was instructed that
defendant was guilty of first degree murder if the People proved
beyond a reasonable doubt that defendant “acted willfully,
deliberately, and with premeditation.” Defendant acted
“willfully” if he “intended to kill.” The jury was not instructed on
14
felony murder. Nor was the jury instructed on the doctrine of
natural and probable consequences as to Campbell’s murder.9
Given these instructions, the record of conviction
demonstrates that the jury necessarily found that defendant was
a direct aider and abettor who acted with the intent to kill
Campbell. Defendant is therefore ineligible for relief under
section 1172.6 as to Campbell’s murder as a matter of law. (See
People v. Cortes (2022) 75 Cal.App.5th 198, 205 [the defendant
failed to make a prima facie showing of entitlement to
section 1172.6 relief because “the jury was not instructed on any
theory of liability for murder or attempted murder that required
that malice be imputed to him”]; People v. Estrada (2022)
77 Cal.App.5th 941, 945–949 [the defendant was ineligible for
section 1176.2 relief because the jury instructions showed that he
was convicted as a direct aider and abettor to first degree
murder]; People v. Daniel (2020) 57 Cal.App.5th 666, 677 [the
defendant was ineligible for section 1172.6 relief as a matter of
law because the jury was not instructed on felony murder or the
natural and probable consequences doctrine], review granted
Feb. 24, 2021, S266336, review dism. Dec. 1, 2021.)
III. Substantial Evidence Supports the Finding that Defendant
Was Guilty of the Murder of Watson Under a Still-Valid Theory
We review for substantial evidence the trial court’s finding
that defendant was guilty of Watson’s murder under a still-valid
theory of murder liability. (People v. Vargas (2022)
84 Cal.App.5th 943, 951.) “Under this familiar standard, ‘“we
review the entire record in the light most favorable to the
9 The jury was instructed on the doctrine of natural and
probable consequences (CALCRIM No. 402) as to the murder of
Watson only.
15
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] We
determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” [Citation.] In so doing, a reviewing court “presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.”’ [Citations.]” (Ibid.)
The trial court denied defendant’s section 1172.6 petition as
to Watson’s murder following the evidentiary hearing because it
found that defendant was a direct aider and abettor to the
murder under the doctrine of transferred intent. “‘Under the
classic formulation of California’s common law doctrine of
transferred intent, a defendant who shoots with the intent to kill
a certain person and hits a bystander instead is subject to the
same criminal liability that would have been imposed had “‘the
fatal blow reached the person for whom intended.’” [Citation.] In
such a factual setting, the defendant is deemed as culpable as if
he had accomplished what he set out to do.’ [Citation.]” (People
v. Bland (2002) 28 Cal.4th 313, 320–321 (Bland).) Even when
the intended victim is killed, the doctrine of transferred intent
can apply to the killing of an unintended victim. (Id. at p. 326
[“Intent to kill transfers to an unintended homicide victim even if
the intended target is killed”].) A direct aider and abettor who
shares the actual killer’s intent to kill the intended victim may
also be convicted of the murder of an unintended victim under
the doctrine of transferred intent. (People v. Vasquez (2016) 246
Cal.App.4th 1019, 1024–1026.) This remains a valid theory of
16
murder liability, as “Senate Bill 1437 d[id] not eliminate direct
aiding and abetting liability for murder . . . .” (Gentile, supra,
10 Cal.5th at p. 848.)
As we previously concluded in affirming the judgment on
direct appeal, “[a]mple evidence provided that defendant had the
intent to kill Campbell based on his role in aiding and abetting
Gray in the execution killing of Campbell. [Citation.] He so
admitted to the CI—defendant and Gray targeted Campbell.
After switching his license plates, defendant drove Gray to where
they believed Campbell was. He picked Gray up after he shot the
victims.” (Pellecer, supra, B280333, at p. 12.) The trial court was
entitled to disbelieve defendant’s contrary testimony at the
evidentiary hearing that he did not know that Gray would do
anything. (People v. Maury (2003) 30 Cal.4th 342, 403 [“it is the
exclusive province of the . . . [factfinder] to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends”].)
The evidence also shows that Watson was killed when,
directly aided and abetted by defendant, Gray fired at least
11 shots into the car occupied by both Campbell and Watson.
Even if defendant did not know that Watson was in the car,
defendant’s intent to kill Campbell (the intended victim)
transferred to Watson (the unintended victim). (See Bland,
supra, 28 Cal.4th at p. 322 [“[A] person’s intent to kill the
intended target is not ‘used up’ once it is employed to convict the
person of murdering that target. It can also be used to convict of
the murder of others the person also killed”].)
Accordingly, substantial evidence supports the finding that
defendant was guilty of Watson’s murder under a theory
unaffected by Senate Bill 1437.
17
IV. Defendant’s Contentions
Urging reversal, defendant raises a variety of arguments.
We find each unpersuasive.
A. Right to confront the CI
Defendant contends that the admission of his conversation
with the CI violated his Sixth Amendment right to confront
witnesses because the CI was not present at the trial.10
At the section 1172.6 evidentiary hearing, the trial court
could properly consider evidence, like defendant’s conversation
with the CI, that was previously admitted at his trial, provided
that the evidence was still admissible under current law.
(§ 1172.6, subd. (d)(3); Duran, supra, 84 Cal.App.5th at p. 927.)
On direct appeal, we rejected defendant’s challenge to the
admission of that conversation, concluding that, under Illinois v.
Perkins (1990) 496 U.S. 292 (Perkins), “there were no
constitutional violations.” (Pellecer, supra, B280333, at pp. 19–
20.)11 Defendant points to no change of law that has
subsequently rendered the conversation inadmissible under
current law.
10 The People contend that, by failing to object at the
evidentiary hearing, defendant has forfeited the argument that
the trial court erred by considering defendant’s conversation with
the CI. Defendant’s counsel did, however, argue that defendant
“was not given a full and fair opportunity to cross-examine . . .
[the CI] at trial.” We find this sufficient to preserve the issue for
appeal.
11 In Perkins, the United States Supreme Court held “that an
undercover law enforcement officer posing as a fellow inmate
need not give Miranda [v. Arizona (1966) 384 U.S. 436] warnings
to an incarcerated suspect before asking questions that may elicit
an incriminating response.” (Perkins, supra, 496 U.S. at p. 300.)
18
In any event, the admission of defendant’s conversation
with the CI did not implicate the Sixth Amendment’s
confrontation clause, which “provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.’” (Crawford v.
Washington (2004) 541 U.S. 36, 42.) “[O]nly hearsay statements
that are ‘testimonial’ are subject to the confrontation clause.
[Citations.]” (People v. Fayed (2020) 9 Cal.5th 147, 168 (Fayed).)
“The admission of nonhearsay statements, it follows, ‘raises no
Confrontation Clause concerns.’ [Citations.]” (Ibid.; see also
Michigan v. Bryant (2011) 562 U.S. 344, 368, fn. 11 (Bryant) [“the
Confrontation Clause is not implicated when statements are
offered ‘for purposes other than establishing the truth of the
matter asserted[]’”].)
Here, the CI’s out-of-court statements made during his
recorded conversation with defendant were not offered for the
truth of the matters asserted. (Cf. Bryant, supra, 562 U.S. at
p. 368, fn. 11 [“An interrogator’s questions, unlike a declarant’s
answers, do not assert the truth of any matter”].) Rather, the
CI’s “statements were nonhearsay and admissible to put
defendant’s ‘admissions on the tape[] into context, making the
admissions intelligible for the jury. Statements providing context
for other admissible statements are not hearsay because they are
not offered for their truth.’ [Citation.]” (Fayed, supra, 9 Cal.5th
at p. 169.) As nonhearsay, no confrontation clause concerns
arose. (Bryant, supra, at p. 368, fn. 11; Fayed, supra, at p. 168.)12
12 In the section of defendant’s opening brief regarding the
Sixth Amendment’s confrontation clause, defendant recites
section 4001.1, subdivision (b)’s provision that “[n]o law
enforcement agency and no in-custody informant acting as an
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B. Trial court’s credibility determination
Defendant also argues that the trial court’s finding that his
testimony was not credible “should not be a factor in determining
whether [d]efendant c[ould] make a prima facie showing for
relief.”
Certainly, in conducting its prima facie review of a
section 1172.6 petition, “[t]he [trial] court may consider the
record of conviction, but it must not engage in factfinding, weigh
the evidence, or reject the petition’s allegations on the basis of
adverse credibility determinations. [Citation.]” (People v.
Jenkins (2021) 70 Cal.App.5th 924, 932.) Contrary to defendant’s
intimation, the court here did not reject defendant’s petition at
the prima facie stage based on an adverse credibility
determination. The court denied the petition as to Campbell’s
murder at the prima facie stage because, having been convicted
as a direct aider and abettor, defendant was ineligible for relief
as a matter of law. The court could properly make and rely upon
its credibility determination following defendant’s testimony at
the section 1172.6 evidentiary hearing as to Watson’s murder.
(See Guardianship of Saul H. (2022) 13 Cal.5th 827, 846 [“if a
court holds an evidentiary hearing, it may make credibility
agent for the agency, may take some action, beyond merely
listening to statements of a defendant, that is deliberately
designed to elicit incriminating remarks.” Section 4001.1,
subdivision (b), is inapposite. It is inapplicable to incriminating
statements pertaining to uncharged offenses to which the Sixth
Amendment right to counsel has not yet attached. (People v.
Gallardo (2017) 18 Cal.App.5th 51, 78.) Here, defendant’s
conversation with the CI occurred before he was charged in this
case.
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determinations, to which an appellate court would generally
defer”].)
C. Consideration of motion for mistrial and direct appellate
opinion
Defendant asserts that the trial court erroneously “based
its decision” to deny his section 1172.6 petition “on the denial of
his motion for mistrial and appeal of the verdict” given that “[t]he
standards of review are different.” However, without any
developed argument or citation to the record, this contention is
not cognizable. (See People v. Stanley (1995) 10 Cal.4th 764, 793;
People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, abrogated in
part on other grounds by People v. Griffin (2004) 33 Cal.4th 536,
555, fn. 5; People v. Clements (2022) 75 Cal.App.5th 276, 292–293
(Clements) [where the defendant failed to “identif[y] any portion
of [the] prior [appellate] opinion that the trial judge relied upon”
in denying a section 1172.6 petition, the defendant had “provided
no basis for overturning the trial judge’s ruling on the ground
that it reached its ultimate conclusion that she was not entitled
to relief based on information in [the] prior opinion rather than
information in the trial transcripts the parties submitted for the
trial court’s decisions”].) Furthermore, we have not located any
mention by the court of defendant’s motion for mistrial or new
trial in connection with its decision on the section 1172.6 petition.
D. Consideration of Zamora’s preliminary hearing
testimony
We reject defendant’s contention that the trial court should
have considered Zamora’s preliminary hearing testmony for the
simple reason that the transcript of the testimony was admitted
at the section 1172.6 evidentiary hearing and was reviewed by
the court.
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E. Presiding judge
Defendant’s final argument is that his “interest in a full
and fair hearing was not best served” because the judge who
presided over his trial did not preside over the hearing on his
section 1172.6 petition.
We find no ground for reversal. Section 1172.6,
subdivision (b)(1), provides: “If the judge that originally
sentenced the petitioner is not available to resentence the
petitioner, the presiding judge shall designate another judge to
rule on the petition.” (See also People v. Santos (2020)
53 Cal.App.5th 467, 474–475.) Here, the judge who had presided
over defendant’s trial and sentencing had retired from the
superior court and was therefore unavailable. (Cf. People v.
Rodriguez (2016) 1 Cal.5th 676, 693 [explaining that “[t]he
ineluctable realities of life sometimes mean that the judge
designated by statute to hear a suppression motion has died,
retired, resigned, or lacks the capacity to undertake his or her
duty” (italics added)].) While “mak[ing] factual determinations
on a cold record” is “not the ideal position for a fact finder, it is
possible to review a trial transcript and reach an opinion about
what actually happened.” (Clements, supra, 75 Cal.App.5th at
p. 297.) In the context of section 1172.6, “[t]he Legislature landed
on that compromise as a way of extending the ameliorative
benefits of its redefinition of murder to people previously
convicted under prior law, which they judged to be too harsh.”
(Clements, supra, at p. 297.)
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DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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