People v. Thimbrel CA2/5

Filed 12/27/22 P. v. Thimbrel CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B317779
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA032307)
v.
SEAN THIMBREL,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Renee F. Korn, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Sean Thimbrel appeals from an order denying
his petition for resentencing pursuant to Penal Code section
1172.6.1 We affirm.
II. BACKGROUND
A. Underlying Conviction
On January 14, 1991, at around 5:30 p.m., defendant
borrowed a Monte Carlo in exchange for rock cocaine about half a
mile from Olympic Boulevard and La Brea Avenue. (People v.
Larranaga, et al. (Apr. 19, 1993, B060628) [nonpub. opn.]
(Larranaga).) Defendant was alone at the time he borrowed the
car and told the car owner that he needed it to pick up his
girlfriend. (Ibid.)
Two hours later, Anthony Stephenson and Kerry O’Neal
were driving westbound on Olympic Boulevard in Stephenson’s
Mustang. (Larranaga, supra, B060628.) Neither man was a
gang member. (Ibid.) As they approached Olympic and
Sycamore, O’Neal noticed defendant’s car traveling faster than
they were. (Ibid.) The Monte Carlo initially maneuvered as
though to turn left, but instead drove behind the Mustang.
(Ibid.) At a red light on La Brea Avenue, the Monte Carlo pulled
1 Further statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section
1170.95 to 1172.6 with no change in text. (Stats. 2022, ch. 58,
§ 10.) We will refer to the statute by its current section number
only.
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into the left turn lane next to the Mustang. (Ibid.) The Monte
Carlo’s closeness caught O’Neal’s attention. (Ibid.)
O’Neal exchanged a glance with Stephenson. (Larranaga,
supra, B060628.) O’Neal looked again at the Monte Carlo and
saw the front seat passenger, Jerome Larranaga, hanging out of
the window, holding a gun with both hands, and pointing it at the
Mustang. (Ibid.) Stephenson and O’Neal ducked when they saw
the gun. (Ibid.) O’Neal heard two quick shots, and after a pause,
a third shot. (Ibid.)
O’Neal waited a second before sitting up. (Larranaga,
supra, B060628.) Stephenson was lying down with his face on
O’Neal’s lap. (Ibid.) The Mustang drifted into the intersection
but O’Neal, who was in the passenger seat, was able to stop the
car. (Ibid.) Stephenson was unconscious, had a faint heartbeat,
and had been shot in the face. (Ibid.) O’Neal asked two people to
call the police. (Ibid.) Stephenson died of a gunshot wound to the
head. (Ibid.) He also had a gunshot wound to the left shoulder.
(Ibid.)
The police arrived at 7:45 p.m., and paramedics treated
Stephenson in the Mustang. (Larranaga, supra, B060628.) The
police searched the Mustang and found no weapons. (Ibid.)
There was a bullet hole in the driver’s door. (Ibid.)
A Los Angeles Police Department officer was on duty near
Olympic and La Brea between 7:30 and 7:40 p.m. on January 14,
1991. (Larranaga, supra, B060628.) The officer heard two
gunshots in rapid succession, followed by a third gunshot. (Ibid.)
He then saw the Monte Carlo screech around the corner from
westbound Olympic to southbound La Brea. (Ibid.) The officer
pursued the Monte Carlo, which approached speeds of 50 to 60
miles per hour in a residential neighborhood. (Ibid.) A police
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helicopter also joined in the pursuit. (Ibid.) The Monte Carlo
continued to flee until it reached Pico Boulevard. (Ibid.) After
traveling five to six blocks on Pico, the Monte Carlo stopped.
(Ibid.) Both defendant, who had been driving the Monte Carlo,
and Larranga, who was in the passenger seat, were dressed in
blue. (Ibid.) The two men surrendered to the police. (Ibid.)
Larranaga and defendant were members of the Schoolyard
Crips, a criminal street gang whose gang color was blue.
(Larranaga, supra, B060628.) The Schoolyard Crips were
enemies of the Mansfield Hustler Crips. (Ibid.) A Schoolyard
Crip had been murdered shortly before the shooting here, in what
police believed was a gang-related shooting. (Ibid.) The
Mansfield Hustler Crips were known to drive Mustangs with a
similar appearance as Stephenson’s. (Ibid.) The shooting
occurred in Mansfield Hustlers’ territory. (Ibid.)
A detective spoke with Larranaga and defendant on the
night of their arrest. (Larranaga, supra, B060628.) Larranaga
asked the detective what charges were pending against him and
the detective responded that the two could talk about it later.
(Ibid.) Larranaga then said, “‘Is the dude dead, yet?’” to which
the detective responded, “‘Not yet.’” (Ibid.)
The detective later testified as a gang expert, opining that
gang members would steal or trade narcotics in order to obtain
cars to use in drive-by shootings. (Larranaga, supra, B060628.)
He added that gang members participated in drive-by shootings
with other gang members for purposes of gang recognition.
(Ibid.) When two members participated, one could serve as a
witness for the other. (Ibid.) In addition, one could act as a
driver and the other as a shooter, making it easier to commit a
drive-by shooting. (Ibid.) The detective had never known a
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driver in an inter-gang drive-by shooting to be ignorant of what
was about to happen. (Ibid.) Gang members were aware of rival
gang territories and therefore would know what would happen
when gang members drove into a rival gang’s neighborhood.
(Ibid.)
On May 10, 1991, a jury convicted defendant of the first
degree murder of Stephenson (count 1), the attempted
premeditated murder of O’Neal (count 2), and shooting at an
occupied vehicle (count 3). (Larranaga, supra, B060628.) The
jury found true that a principal was armed with a firearm.
(Ibid.) The trial court sentenced defendant to a term of 26 years,
4 months to life. (Ibid.) On April 19, 1993, this court modified
defendant’s sentence by staying the four-month term for the
firearm enhancement, but otherwise affirmed the judgment.
(Ibid.)
B. Section 1172.6 Petition
On April 4, 2019, defendant filed a petition for resentencing
pursuant to section 1172.6. On June 4, 2019, the trial court
appointed counsel to represent defendant.
On August 12, 2019, the District Attorney filed an
opposition to the petition.
On March 23, 2021, the trial court issued an order to show
cause and set the matter for an evidentiary hearing.
On January 7, 2022, defense counsel filed a supplemental
brief in which he objected to “the factual rendition from the
appellate decision.”
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C. Evidentiary Hearing
On January 12, 2022, the trial court conducted the section
1172.6, subdivision (d)(3) evidentiary hearing. Neither party
introduced new or additional evidence. The court explained that
it would consider the appellate opinion in Larranaga, supra,
B060628, the clerk’s and reporter’s transcripts from trial, and the
filings pertaining to the petition. The court overruled defendant’s
objection to the use of the gang expert’s testimony at trial.
Following argument by counsel, the trial court stated that
it found “beyond a reasonable doubt that [defendant] is guilty of
count 1 as an aider and abettor.” It continued, “This court finds
there is evidence to prove [defendant] guilty beyond a reasonable
doubt that he committed the crime with malice aforethought.”
The court made certain findings of fact that, in the court’s view,
demonstrated defendant acted with the intent to kill and with
implied malice. It added, “Further, there is evidence to prove
[defendant] guilty beyond a reasonable doubt as to second degree
implied malice murder as well.”
As to count two, the trial court stated, “the jurors had a
panoply of choices as to what . . . defendant was guilty of. They
found he was guilty of first degree attempted murder. The court
believes and finds that the record of conviction demonstrates that
there is evidence beyond a reasonable doubt that [defendant]
directly aided and abetted in the attempted murder of [O’Neal].
[D]efendant had the intent to kill, not only . . . [Stephenson], but
also . . . [O’Neal], and, accordingly, the court finds that
[defendant] was convicted of first degree attempted murder under
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current law.” The court then stated that it denied defendant’s
petition and also later issued a written decision to that effect.
Defendant timely appealed.
III. DISCUSSION
A. Section 1172.6
Section 1172.6 “creates a procedure for convicted murderers
[and attempted murderers] who could not be convicted under the
law as amended to retroactively seek relief.” (People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) “If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause.” (§ 1172.6, subd. (c).)
Within 60 days of issuance of the order to show cause, the trial
court shall hold an evidentiary hearing “to determine whether
the petitioner is entitled to relief.” (Id., subds. (d)(1) & (d)(3).)
“[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.
The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless
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the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens.”
(§ 1172.6, subd. (d)(3).)
B. Reliance on Prior Appellate Opinion
Defendant argues that the trial court erred by relying upon
the factual summary of the case set forth in our prior appellate
opinion. According to defendant, the Legislature, by specifying
that a trial court could “consider the procedural history of the
case recited in any prior appellate opinion” (§ 1172.6, subd.
(d)(3)), implied that the factual recitation from the appellate
opinion was not admissible for purposes of a section 1172.6
hearing. We will assume without deciding that the court erred by
relying upon the factual recitation in the appellate opinion. (See
People v. Clements (2022) 75 Cal.App.5th 276, 292 [stating in
dicta that section 1172.6’s language limiting use of prior
appellate opinions “indicates the Legislature has decided trial
judges should not rely on the factual summaries contained in
prior appellate decisions when a section [1172.6] petition reaches
the stage of a full-fledged evidentiary hearing”].)
We thus consider whether the assumed error was harmless
under a Watson2 standard of review. (See Lewis, supra, 11
Cal.5th at p. 973.) Here, the trial court not only relied upon the
appellate opinion’s factual recitation in reaching its ruling, but
also considered the clerk’s and the reporter’s transcript from the
trial and made its own factual findings. Further, as defendant
concedes, there is nothing that is “wrong or improper” about the
2 People v. Watson (1956) 46 Cal.2d 818.
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appellate opinion’s description of the trial evidence. On this
record, we conclude that defendant has not met his burden of
demonstrating prejudice. (People v. Clements, supra, 75
Cal.App.5th at p. 293.)
C. Failure to Reduce Count 1 to Second Degree Murder
Defendant next argues that the trial court, having found
that he was also guilty of second degree implied malice murder,
should have reduced his conviction in count 1 from first to second
degree murder. We review this issue de novo. (Lewis, supra, 11
Cal.5th at p. 961.)
As an initial matter, defendant’s contention ignores that
the trial court expressly found, beyond a reasonable doubt, that
defendant was guilty of first degree murder and only made its
finding regarding second degree murder as an alternative ruling.
Moreover, section 1172.6 provides no mechanism for a trial court
to reduce a murder conviction. Rather, “[i]f the prosecution fails
to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining
charges.” (Id., subd. (d)(3); see also id., subd. (e) [“The
petitioner’s conviction shall be redesignated as the target offense
or underlying felony for resentencing purposes if the petitioner is
entitled to relief pursuant to this section, murder or attempted
murder was charged generically, and the target offense was not
charged”].)3
3 We have denied defendant’s writ petition in which he
contended that his conviction for first degree murder in count 1
should be reduced to second degree murder pursuant to People v.
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D. Trial Court’s Duty at Evidentiary Hearing
Finally, defendant contends that the trial court erred by
failing to perform its statutory duty during the evidentiary
hearing. We disagree.
According to defendant, the record is not clear as to
whether the jury convicted him as a direct aider and abettor or
under a natural and probable consequences theory. Defendant’s
observation, however, is not relevant to whether the trial court
erred during the evidentiary hearing. It is only relevant to
whether defendant made a prima facie case for relief under
section 1172.6, and the trial court correctly concluded that he
had.
Defendant also argues that the trial court failed to act as
an independent factfinder during the section 1172.6 evidentiary
hearing. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
Defendant cites to portions of the clerk’s and reporter’s transcript
in which the court appears to suggest that defendant was,
meaning at the time of the criminal trial, convicted of first degree
murder and attempted premeditated murder under current law.4
Chiu (2014) 59 Cal.4th 155, 166. (See In re Thimbrel (B321150)
[nonpub. order].)
4 Defendant specifically cites two portions of the written
order in which the court wrote “[t]his court finds that [defendant]
was convicted of first and second-degree murder under current
law” and “[t]his court finds that [defendant] was convicted of
first[]degree attempted murder under current law . . . .”
Defendant also cites the reporter’s transcript of the evidentiary
hearing, at which the court stated, “[T]he jurors had a panoply of
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We disagree with defendant’s characterization of the record. The
record amply demonstrates that the court acted as an
independent factfinder during the evidentiary hearing. As noted,
the court specifically stated that it relied upon the clerk’s and
reporter’s transcripts of the trial proceedings when reaching its
decision. Further, the court stated numerous times that it found
defendant guilty of murder beyond a reasonable doubt and made
specific factual findings that supported its ruling. (See People v.
Stowell (2003) 31 Cal.4th 1107, 1114 [“[W]e apply the general
rule ‘that a trial court is presumed to have been aware of and
followed the applicable law’”].) The court therefore did not err by
denying defendant’s section 1172.6 motion.
choices . . . [and] the court finds that [defendant] was convicted of
first degree attempted murder under current law.”
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IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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