People v. Njoku

Filed 8/31/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093672
Plaintiff and Respondent, (Super. Ct. No. 14F07784)
v.
MONICA NJOKU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, James E.
McFetridge, Judge. Affirmed.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen, Christopher J. Rench and Max Feinstat, Deputy
Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part III of the Discussion.
1
Following an evidentiary hearing, the trial court denied defendant Monica Njoku’s
petition for resentencing pursuant to Penal Code1 section 1172.6.2 On appeal, defendant
argues insufficient evidence supports the trial court’s finding she aided and abetted
implied malice murder. In making this argument, defendant contends we should apply
the independent review standard when examining the record because neither she nor the
prosecution introduced additional evidence at the evidentiary hearing. Defendant also
argues any factual disputes should be resolved in her favor because the prosecution did
not introduce live testimony at the evidentiary hearing to resolve the factual disputes as it
was required to do pursuant to the Fifth and Fourteenth Amendments to the United States
Constitution.
In the published portion of this opinion, we reject defendant’s contentions that we
should independently review the evidence and that the prosecution was required to
introduce live testimony. In the unpublished portion of this opinion, we reject
defendant’s claim that insufficient evidence supports the trial court’s finding of implied
malice. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At defendant’s evidentiary hearing, the parties relied on only the trial court
transcript and did not introduce any additional evidence. We rely on the facts as related
in defendant’s direct appeal and supplement them with additional testimony from the trial
transcript when appropriate. (People v. Njoku (Nov. 19, 2018, C082166) [nonpub. opn.]
(Njoku).)
1 Further undesignated section references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although defendant filed her petition under former section 1170.95, we cite to
the current section 1172.6.
2
I
Prosecution’s Case
“[Defendant] owned a house in Sacramento. She lived elsewhere, renting rooms
in the house to short term tenants, primarily single mothers with children. [Defendant]
did not require credit or background checks, and allowed tenants to pay rent and deposits
on a flexible schedule and in installments, as they were able. [Defendant] did not observe
the usual formalities associated with the landlord/tenant relationship. Some tenants were
not required to sign lease agreements. Others signed lease agreements, but were not
given copies of those documents. In keeping with her informal approach to
landlord/tenant matters, [defendant] also made frequent unannounced visits to the house,
using her own key to enter without knocking.
“Although [defendant] generally catered to single mothers, she also rented a room
to [Edward W., the victim and] a single father with a two-year-old son. Other tenants in
the house during the relevant period included Jasmine M[.], a single mother with an
eleven-month-old daughter, and Amanda F[.], a single mother with a five-or six-year-old
son. At the time of the events detailed below, [Edward] had been living in the house for
two weeks, [Jasmine] for three weeks, and [Amanda] for three months. All had been
either homeless or at risk of homelessness prior to taking rooms in [defendant]’s house.
“[Defendant] and [Jasmine] had a disagreement several days before the [murder].
On Friday, November 14, 2014, [defendant] appeared at the house unannounced and
learned that [Jasmine] had violated house rules by allowing her sister to spend the night.
She confronted [Jasmine], saying, ‘You need to get the F out of my house, and I don’t
care where you go, but you need to go now.’ [Jasmine] and her daughter left the house,
but returned the following night.
“[Defendant] came back to the house on Sunday, November 16, 2014.
[Defendant] confronted [Jasmine] again, saying, ‘What are you still doing here?’ ‘You
need to leave.’ [Jasmine] responded that she could not ‘just leave,’ adding that she had a
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right to three days’ notice prior to being evicted. [Defendant] denied that she was under
any obligation to give notice, saying, ‘you need to get the hell out of my house’ and ‘this
is my house, I don’t have to give you a warning about how long you have to be out of
here.’
“[Edward], who was standing nearby, interjected. [Edward] agreed that [Jasmine]
was entitled to notice. He added that he did not want to continue living in a house in
which the parent of a small child could get kicked out without notice. He told
[defendant] to stop yelling at [Jasmine] and asked that she refund money he had already
paid in rent. [Defendant] angrily responded, ‘You can leave, I don’t care. And you’re
not getting your money back.’
“The argument continued in this fashion for some time, with [defendant] and
[Edward] yelling back and forth at one another. Eventually, [Edward] called his sister
and asked her to pick him and his son up. [Defendant] responded, ‘If you are calling
your sister I’m calling my family too.’ [Defendant] then phoned someone. [Amanda]
heard [defendant] tell the person on the other end of the line that she had a tenant who did
not want to get out of her house, and she needed help. [Jasmine] heard [defendant] say,
‘My tenants are trippin[’.] Come. You need to get over here. I’m going to send you the
address.’ [Defendant] then turned to [Jasmine], saying ‘You’re about to go. You’re
about to leave.’
“[Defendant’s brother Monterio Roberts and his wife T.S.] knocked on the door a
short time later. . . . [Defendant] answered the door and showed Roberts and [T.S.] to a
common area (designated by the parties as ‘the northeast living room’), which was then
occupied by [Edward] and [Jasmine]. A discussion ensued.
“The discussion began civilly enough, with [T.S.] telling [Edward] and [Jasmine]
that she was celebrating a birthday that day. The mood changed, however, when Roberts
began commenting on [Edward]’s financial circumstances. According to [Jasmine],
Roberts said to [Edward], ‘We wouldn’t have this problem [referring to [Edward]’s
4
dispute with [defendant]] if you was [sic] man enough to have a house for your kid; you
wouldn’t have to be renting a room.’ As [Jasmine] would later testify, ‘the argument was
getting very heated, it felt like it was going to be a fight any moment.’
“At some point, [Edward] called 911.[3] . . . On the recording, [Edward] can be
heard explaining the situation with [defendant] to the 911 operator in a measured tone of
voice as an unidentified woman yells in the background. Later, [Edward] can be heard
interacting with an unidentified man, saying, in a louder tone, ‘Don’t—no, no, no. First
of all, don’t come in my—if we gonna do that we can do that. Don’t—don’t—better
believe I’m not scared.’ Later still, [Edward] can be heard saying, ‘Dude, I’ve done
martial arts all my life. Best believe I’m not scared.’ [Edward] can also be heard saying,
‘Bro, don’t come at me like that.’ During the trial, [Jasmine] recalled that Roberts was
‘talking smack’ and ‘running up on’ [Edward]. [Edward], for his part, was ‘upset’ but
‘standing still.’ Following a further discussion, which was repeatedly interrupted by
people speaking loudly in the background, the 911 operator agreed to send someone to
the house.
“A short time later, [defendant], Roberts and [T.S.] announced that they were
going to the liquor store. As they were leaving, [defendant] said, ‘We’re about to go to
the store, and when we come back it’s about to get real turnt up in here.’ During the trial,
[Amanda] testified that she understood [defendant] to mean that it was going to get
‘crazy,’ and ‘not in the fun way.’
“[Edward] called 911 a second time after [defendant], Roberts and [T.S.] left.
Believing the dispute to be over, [Edward] cancelled the earlier request for assistance,
and then went outside and smoked a cigarette with [Jasmine]. [Edward]’s two-year-old
3 “[Defendant] had called 911 earlier that day, saying that she needed help with
some people who were staying in her house and being disruptive. [Defendant] cancelled
the call a short time later.”
5
son also went outside. [Jasmine]’s eleven-month-old daughter remained inside (in a
common area designated by the parties as ‘the southeast living room’) eating a snack and
watching television in her stroller.
“The calm was short lived. [Defendant], Roberts and [T.S.] returned to the house
after approximately thirty minutes. [Edward] and [Jasmine] went back inside. [Amanda]
went to her room and closed the door. [Defendant] saw [Jasmine]’s daughter and said,
‘Why is the stroller on the carpet?’ [Defendant] began to push the stroller towards a
sliding glass door leading outside. [Jasmine]’s daughter began to cry. [Jasmine] said,
‘Wait, get your hands off my daughter’s stroller. You’re not pushing my daughter
outside.’ [Defendant] then reached down and ‘yanked’ [Jasmine]’s daughter, who was
still strapped in, out of the stroller. [Jasmine] said, ‘What are you doing? Don’t touch
my daughter.’ [Edward] interjected, saying, ‘Don’t touch her daughter. You’re doing
too much. Calm down.’ As [Jasmine] would later recall, everyone in the room started
‘yelling at each other’ and ‘getting into it.’ With tempers rising, [Edward] called 911 a
third time.
“During the course of [Edward]’s third 911 call (the substance of which is
described below), [Jasmine] (along with her daughter) and [Edward] moved from the
southeast living room to the northeast living room. [Defendant], Roberts and [T.S.] soon
followed. [Amanda] and her son remained in their room with the door closed. However,
[Amanda] opened the door and peeked out several times during the course of the ensuing
altercation.
“An audio recording of [Edward]’s third call to 911 was played for the jury. The
recording begins with [Edward] telling the 911 operator, ‘We have an emergency here.
The landlord has come back and they’re trying to fight the girl and . . . [¶] . . . and trying
to take the baby and everything.’ Moments later, [Edward] can be heard yelling, ‘[Y]ou
locked my son outside? Oh, my fuckin’ God.’ An irate [Edward] continued, ‘Are you
fucking serious? You locked my [two year old] outside. Oh, my God. No, she locked
6
my son outside. She locked my son outside. Are—and you’re laughing about it? What
the fuck. Oh my God, oh my God. God Lord have mercy. Oh, my God.’ During the
trial, [Jasmine] explained that [Edward] was yelling because his son had been locked
outside, and he believed that [defendant] was responsible. [Jasmine] testified that she
had not seen [defendant] lock the door, but confirmed that ‘[defendant] was laughing
about it.’
“Moments later, [Edward] can be heard telling the 911 operator, in a more
composed tone of voice, ‘My name is Edward . . . . They’re in this house. We paid rent
for it. She hasn’t given us our rent back. This—this person is trying to invite more
people, somehow he can come get me out of the house and everything like that.’ The 911
operator can be heard responding, ‘Okay. Who is he?’ The following exchange can then
be heard:
“ ‘[[EDWARD]]: It’s [unintelligible]. I got kids in here.
“ ‘911: Who’s he?
“ ‘[[EDWARD]]: I will fight for my rights on everything I love.
“ ‘911: Okay. Edward?
“ ‘[[EDWARD]]: I don’t know who this dude is but I guess it’s her brother or
something like that.’
“By now, [Jasmine] was seated in a recliner with her daughter in her lap. Roberts
was standing approximately two feet away from [Jasmine]. [Edward] was standing
approximately 16 feet away from Roberts, near the door to a utility room. During the
trial, [Jasmine] testified that Roberts was angry, and moving closer to [Edward]. On the
911 recording, [Edward] can be heard saying, ‘Dude, I want you to come.’
“[Defendant] and [T.S.] were also in the northeast living room. In [Jasmine]’s
opinion, [T.S.] was trying to defuse the situation by drawing [Edward]’s attention to the
fact that his son, now in the northeast living room, was unharmed. By contrast, [Jasmine]
recalled, [defendant] was ‘in [her] face, just trying to fight.’
7
“[Jasmine] watched as Roberts pulled what appeared to be a switchblade knife out
of his pocket. [According to Jasmine,] Roberts opened the knife with a flick of the wrist.
He then walked across the room towards [defendant] and [Edward], using a gait that
[Jasmine] described as ‘like a menacing kind of little thug.’ The verbal sparring
continued. According to [Jasmine], [defendant] ‘was talking mess to [Jasmine], talking
mess to [Edward], just kind of, in [her] opinion, um, making the scene bigger than what it
had to be. It was like egging him on.’ As [Jasmine] put it, [defendant] was ‘hyping
[Roberts] up’ and ‘playing like the instigator.’ On the 911 recording, [Edward] can be
heard repeating the words, ‘Y’all doin’ too much,’ against a background of excited
crosstalk. Suddenly, Roberts charged [Edward].
“Roberts and [Edward] exchanged blows, with each man landing several punches.
[Edward], who was taller, appeared to gain the upper hand. At that point, [defendant]
and [T.S.] joined the fray. As [Jasmine] would later testify, ‘all four were fighting.’ The
scene was confusing, however, and [Jasmine] allowed that [T.S.] may have been trying to
break up the fight.
“On the 911 recording, the sounds of a scuffle can be heard, punctuated by the
sounds of one or more female voices screaming ‘Stop’ and ‘Oh, my God.’ A muffled
male voice can be heard saying, ‘Get off my wife.’ During the trial, however, [Jasmine]
was adamant that [Edward] did not make physical contact with [T.S].
“The melee moved from the northeast living room to the adjoining utility room.
Around the same time, [Amanda] emerged from her room and saw Roberts, [defendant]
and [T.S.] ‘take [Edward] down.’ [Amanda] screamed at the group to stop and ran back
to her room. [Amanda] did not see a knife in Roberts’[s] hands.
“[Jasmine], still seated in the recliner, heard [Amanda] yelling ‘stop, stop,’ and
another sound, which she believed to be the sound of [Edward] being stabbed. On the
911 recording, the sounds of a struggle can be heard, followed by the sound of groaning.
8
Upon hearing these sounds, [Jasmine] sprang from the recliner with her daughter in her
arms, grabbed [Edward]’s son, and ran out the door.
“Around the same time, [Amanda] emerged from her room again and saw
[defendant] and [T.S.] standing on either side of [Edward], who was now lying on the
ground in the fetal position. According to [Amanda], [defendant] and [T.S.] were
stomping on [Edward]’s upper body. During the trial, [Amanda] testified that she
screamed at [defendant] and [T.S.] to stop. [Amanda] recalled that [defendant] looked in
her direction but did not appear to see her. In [Amanda]’s words, [defendant] ‘whipped
her hair around and just looked like in my direction and just turned her head back, and it
wasn’t her, and then she just kept stomping.’ According to [Amanda], [defendant]
‘looked crazed.’ [Amanda] retreated to her room. Although [Amanda] can be heard
screaming at various points on the 911 recording, she could not make out the sounds of
her own screaming [or the sounds of stomping], or say when, in relation to the stabbing,
the stomping might have occurred.
“On the 911 recording, a man’s voice can be heard saying, ‘Nigga get your fuckin’
hands off me.’ Another male voice can then be heard saying, ‘You stabbed me really
good. You stabbed me. You got me.’ Moments later, the same male voice can be heard
saying, ‘Can somebody help me, please? I don’t want to die for my son, please?’ A
woman’s voice responds, ‘Get up.’
“[Amanda] stayed in her room, listening, until the sounds of fighting stopped.
When she came out, she saw [Edward]’s body lying halfway in the utility room and
halfway in the northeast living room. [Defendant], Roberts and [T.S.] were gone.
[Amanda] dragged [Edward], who was still alive, into the northeast living room and
called 911. As [Amanda] spoke with 911, [defendant] and [T.S.] reappeared. [T.S.], a
certified nurse’s assistant, instructed [Amanda] to apply pressure to [Edward]’s wounds.
“[Amanda] held [Edward] and waited for paramedics to arrive. As she waited, she
noticed [defendant] and [T.S.] running into the utility room and then out of the house, and
9
then back again. During the trial, [Amanda] estimated that [defendant] and [T.S.]
completed this circuit at least three times. [Amanda] also noticed that [defendant] and
[T.S.] were moving things around in the utility room, as if they were looking for
something. During the trial, [Amanda] explained that she thought they were looking for
[Edward]’s phone, which was still connected to 911. [Edward], still conscious, was also
thinking about the phone. He begged [Amanda] to join the search, saying ‘go get the
phone because they’re not going to be able to prove it unless they have that phone.’
Neither [defendant] nor [T.S.] offered to help [Edward], who lay crying in pain on the
floor.[4] Instead, [according to Amanda, defendant] told [Edward] to ‘shut the fuck up.’
[Defendant] then continued rummaging around in the utility room.
“Meanwhile, [Jasmine], having run to a neighbor’s house, was placing her own
call to 911. [Jasmine] told the 911 operator, ‘What happened, right, they started fighting
and the guy took out the knife and he ran up on him and then next thing you know
[Edward] hit him and then the, uh, guy had a knife again and they just start like crazy ass
stuff. It was like a real, you know, scuffle.’ Moments later, [Jasmine] said, ‘I have no
idea what happened. Because most likely he stabbed him because I think the other guy
started beating him up so I think he stabbed him because I heard the sound and this is
crazy. I can’t believe he did that like that. It’s crazy.’
“[Jasmine] concluded the call with 911 and walked back to the house. By then,
police officers and an ambulance had arrived. [Jasmine] watched as [Edward] was
loaded on a stretcher into an ambulance. She then encountered [Amanda]. [Amanda],
who had already been contacted by responding officers, told [Jasmine] that she had seen
[defendant] and [T.S.] stomping on [Edward], and heard them ‘talking shit to him while
he was dying.’ [Amanda] told [Jasmine] that she had not reported these things to
4 “[Defendant] did, however, place another call to 911, which she ended when she
learned that [Amanda] was already on the phone with 911.”
10
responding officers, as she had been afraid to do so.[5] [Jasmine] encouraged [Amanda]
to tell police what she had seen. [Amanda] spoke with detectives a short time later and
reported the stomping.
“[Edward] was pronounced dead on November 16, 2014, at 6:14 p.m., an hour
after he placed his final 911 call. An autopsy revealed that [Edward] had been stabbed
three times: once in the chest and twice in the abdomen. The fatal wound was three and
one quarter inches deep and struck [Edward]’s inferior vena cava, a major blood vessel
returning blood from the lower part of the body to the heart. [Edward] died from loss of
blood.
“Crime scene investigators found [Edward]’s phone underneath a dryer in the
utility room. Investigators also found bloody clothes in the trunk of a Dodge Avenger
parked in front of the house, which was registered to [T.S]. DNA analysis indicated that
the blood matched two contributors: [Edward] and Roberts. Investigators also found
blood on the boots that [defendant] had been wearing at the time of the stabbing. DNA
analysis indicated that the blood on [defendant]’s boots matched [that of Edward].
“Police contacted [defendant] and [T.S.] at the scene. Roberts surrendered to
police eight days later. He had a cut on his pinky finger and a wound on his stomach.
Police photographed Roberts’[s] injuries.
“During the trial, Dr. Joseph Pestaner, a forensic pathologist, testified for the
prosecution about [Edward]’s cause of death.” (Njoku, supra, C082166.) When asked
about Edward’s injuries, Dr. Pestaner testified to two hemorrhages located on Edward’s
head and abrasions on his arms and lips. When asked about stomping as a potential cause
5 “During the trial, Deputy Adrian Zuniga, who responded to the scene, testified that
[Amanda] said that she had not seen any part of the altercation. [Amanda] explained that
she had been afraid to tell Zuniga the truth, as [defendant] had been standing nearby.”
11
of Edward’s injuries, Dr. Pestaner testified he would have expected to see more serious
injuries if Edward had been exposed to extensive stomping.
II
Defense Case
“Roberts testified in his own defense. Roberts explained that he planned to have
drinks with [defendant] and [T.S.] at the house to celebrate [T.S.]’s birthday. He denied
that [defendant] called him to help her in evicting her tenants. He also denied discussing
the eviction of [Jasmine] and [Edward] during the trip to the liquor store with [defendant]
and [T.S].
“Roberts testified that he went into the kitchen after returning from the liquor store
and overheard the confrontation between [defendant] and [Jasmine] in the southeast
living room. Roberts testified that [defendant] ordered [Jasmine] to leave, and [Edward]
interjected, saying ‘that’s not fair, she shouldn’t have to get out, and if she has to leave,
he’ll leave or something like that.’ According to Roberts, a discussion of prorated rent
ensued, which came to an end when [Edward] discovered that his son had been locked
outside. At that point, Roberts testified, [Edward] started screaming and ‘got in
[defendant’s] face.’ According to Roberts, ‘He was pretty much pushing up on her, real
close to her, and he kept saying that she locked his son outside.’ Roberts testified that he
tried to separate [Edward] and [defendant], but only succeeded in drawing [Edward]’s ire.
“In Roberts’[s] retelling, an enraged [Edward] reached over the heads of
[defendant] and [T.S.], who were standing between the two men, and struck Roberts at
least three times. During the course of the altercation, Roberts said, the group backed
into the utility room.
“In the utility room, Roberts said, [Edward] ‘was swinging wildly, hitting
everyone, hitting me some more, hitting my wife and sister.’ Although Roberts ‘got a
couple of punches in,’ [defendant] and [T.S.] were both knocked to the ground. And
Roberts himself was ‘getting beat on.’ According to Roberts, the brawl escalated further
12
when [Edward] ‘went down on one knee,’ ‘buried his head into my stomach,’ clamped
down with his teeth, and shook his head, ‘like he was a pit bull or something.’ Roberts
testified that [Edward] briefly let go, and then bit him again. Roberts explained that the
biting caused him to groan in pain, adding that some of the groaning sounds on the 911
recording came from him, not [Edward]. It was at that point, Roberts continued, that he
pulled out his knife and stabbed [Edward]. According to Roberts, ‘I didn’t even want to
stab him, but he wouldn’t stop, and he was hurting my wife and hurting my sister and
hurting me.’ Roberts explained that he left the scene of the crime, and threw away the
knife because he was scared.
“[T.S.] also testified. [T.S.] explained that she and Roberts agreed to meet
[defendant] at the house because they were planning to eat dinner in the area. [T.S.]
maintained that [defendant] did not say anything about problems with tenants when the
plan for the evening was conceived.
“Turning to the events immediately preceding the stabbing, [T.S.] recalled that she
returned from the liquor store with [defendant] and Roberts and found [Jasmine]’s baby
eating noodles in her stroller in front of the television. Seeing the baby eating over the
carpet, [defendant] became agitated and grabbed the stroller. [Jasmine] said, ‘Don’t
touch my baby.’ [Edward] appeared, taking [Jasmine]’s side in what was then still a
verbal altercation. The group moved from the southeast living room to the northeast
living room. [Edward] discovered that his son had been locked outside and became
‘hyped’ and ‘angry.’ [T.S.] tried to defuse the situation by pointing out that [Edward]’s
son was unharmed. In [T.S.]’s words, however, ‘he didn’t calm down. He got angry.’
According to [T.S.], [Edward] ‘kinda, you know, pushed me out of the way. And then,
um, I stumbled a little bit to my right, I believe.’ The next thing she knew, [T.S.]
continued, ‘the men were tussling.’
“[T.S.] testified that [Edward] and Roberts traded blows, and then backed into the
utility room. [Edward] gained the advantage, getting on top of Roberts, who was on the
13
floor. [T.S.] grabbed [Edward]’s shirt and attempted to pull him off. As she did so, she
heard Roberts say that [Edward] was biting him. She then heard ‘a grunt kinda noise’
and the sound of glass breaking. Moments later, the fight was over. [T.S.] testified that
she did not see Roberts produce or use a knife. [T.S.] denied stomping on [Edward], and
testified that she did not see [defendant] stomping on [Edward] either.
“After the stabbing, [T.S.] testified that she went outside to see whether police
were coming. She then went back inside. [T.S.] denied that she rummaged through the
utility room, searching for [Edward]’s phone. [T.S.] also stated that she did not
appreciate the severity of [Edward]’s injuries in the immediate aftermath of the stabbing.
“On cross-examination, the prosecutor impeached [T.S.] with a video recording of
an interview in which she told police that she was outside at the time of the stabbing and
did not know the man with the knife. [T.S.] admitted that she lied to police. She
explained that she was scared and trying to protect her husband. She added that, ‘I was
absolutely wrong for lying, and I’m not proud of that, especially looking back at the tape.
It was wrong.’ Several character witnesses testified that [T.S.] has a reputation for
helping others and finding peaceful solutions to interpersonal conflicts.” (Njoku, supra,
C082166.)
A jury found defendant and Roberts guilty of second degree murder and acquitted
T.S. of all charges. (Njoku, supra, C082166.)
III
Evidentiary Hearing
After reviewing the transcript of defendant’s trial, the trial court denied
defendant’s petition.
Factually, the trial court described the parties’ positions as follows: “The parties
dispute the role [defendant] played in the murder of Edward . . . on November 16, 2014.
They dispute whether the evidence shows [defendant] acted with implied malice by
egging on the knife wielding [Roberts] and then joining him in the deadly assault,
14
including stomping on the victim and the stabbing that caused the victim’s death, or
whether the evidence shows that [defendant] merely committed an assault without
sufficient proof that she knew [Roberts] had a knife. A secondary point to the defense
argument is the record is too muddled to make any conclusions about [defendant]’s state
of mind based on a proof beyond a reasonable doubt ‘of each and every element of
malice’ standard.”
Ultimately, the trial court found “that the entire atmosphere of hostility toward the
victim was generated and pushed by [defendant]. A fist fight between co-defendant
Roberts and the victim ensued. Once the victim decided to fight back, the knife came out
and [defendant] acted in concert with co-defendant Roberts to subdue and murder the
victim. [Jasmine] saw Roberts holding the knife as he walked toward [defendant] and
then paused next to her. She also saw [defendant] looking at Roberts when he had the
knife out. Common sense indicates [defendant] knew her brother had a knife and
encouraged him to go after the victim and joined in the brutal assault that led to his death.
[Amanda] testified that she thought all three assailants killed the victim. [Defendant]
fueled the animosity towards the victim and contributed toward the fatal attack with
stomping and telling him to shut the f- - - up after his stabbing with blood ‘everywhere’
while he lay in the throes of death.”
Defendant appeals.
DISCUSSION
“Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
the felony-murder rule to provide: ‘A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
15
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of [s]ection 190.2 [the statute defining felony-murder special
circumstances].’ (§ 189, subd. (e).) The new law was designed ‘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).)
“The Legislature also added former section 1170.95 (now section 1172.6), which
creates a procedure for offenders previously convicted under a felony-murder theory to
obtain the benefits of these changes retroactively. Under the statute, individuals
convicted of murder can petition for relief in the court where they were sentenced if (1)
the complaint or information filed against them ‘allowed the prosecution to proceed
under a theory of felony murder . . . ,’ (2) they were convicted of murder following a
trial, and (3) they could not now be convicted of murder ‘because of changes to [s]ection
188 or 189.’ (Former § 1170.95, subd. (a); see now § 1172.6, subd. (a).) In most cases
where the petitioner makes a prima facie showing that he or she is entitled to relief, the
court must hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill [No.] 1437 (2017-2018 Reg. Sess.).
(§ 1172.6, subd. (d)(3).) ‘A finding that there is substantial evidence to support a
conviction for murder, attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ (Ibid.)”
(People v. Oliver (2023) 90 Cal.App.5th 466, 477-478 (Oliver).)
I
The Applicable Standard Of Review Is Substantial Evidence
“Ordinarily, a trial court’s denial of a section 1172.6 petition is reviewed for
substantial evidence.” (People v. Reyes (2023) 14 Cal.5th 981, 988.) Relying on
People v. Vivar (2021) 11 Cal.5th 510, defendant contends her case is different because
16
the trial court’s inquiry was limited to a “cold record,” thus deference to the court’s
factual findings on appeal is unwarranted. We disagree and adopt the reasoning of
Oliver, supra, 90 Cal.App.5th 466.
“In People v. Perez (2018) 4 Cal.5th 1055, our Supreme Court considered and
rejected an argument similar to [defendant]’s in the context of a Proposition 36 petition
for recall of sentence. The People argued that [independent] review was ‘more
appropriate because trial courts do not have an advantage over appellate courts in
determining eligibility based on the record of conviction.’ (Perez, at p. 1066.) [Our]
Supreme Court disagreed, concluding that ‘even if the trial court is bound by and relies
solely on the record of conviction to determine eligibility, [where] the question . . .
remains a question of fact . . . we see no reason to withhold the deference generally
afforded to such factual findings.’ (Ibid.)
“[People v.] Vivar, supra, 11 Cal.5th 510, is distinguishable. There, our high court
endorsed an independent standard of review when evaluating a trial court’s decision
under section 1473.7 regarding whether to vacate a conviction due to negative
immigration consequences. (Vivar, at pp. 524-527.) ‘A successful section 1473.7 motion
requires a showing, by a preponderance of the evidence, of a prejudicial error that
affected the defendant’s ability to meaningfully understand the actual or potential
immigration consequences of a plea.’ (Vivar, at p. 517, italics omitted.) In choosing
independent review in this context, [our] Supreme Court reasoned that analogous
prejudice determinations in ineffective assistance of counsel claims were reviewed
independently as predominantly legal questions; that the interests at stake supported
independent review where the determination was likely to be made from a cold record;
and that prior appellate decisions had reviewed such prejudice determinations
independently, but the Legislature, aware of this standard, did not alter it when amending
the statute. (Id. at pp. 524-527.) [Our] Supreme Court went on to emphasize that its
holding was ‘a product of multiple factors with special relevance’ in that context (id. at
17
p. 527) and reaffirmed the ‘familiar postulate’ that ‘ “an appellate court should defer to
the factual determinations made by the trial court,” ’ regardless of ‘ “whether the trial
court’s ruling[s are based] on oral testimony or declarations” ’ (id. at p. 528, fn. 7).
“We conclude that Perez, rather than Vivar, controls here. Whether [defendant
harbored the malice required for a finding of second degree murder] is predominantly a
factual question reviewable for substantial evidence. Other courts considering the issue
have reached a similar conclusion. (See People v. Sifuentes (2022) 83 Cal.App.5th 217,
232-233 [Division Four of the First District rejecting Vivar and concluding that whether
the petitioner knew or reasonably should have known that the victim was a police officer
under the resentencing statute was predominantly a factual question reviewable for
substantial evidence]; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591 [Second
District rejecting Vivar and concluding that ‘substantial evidence support[ed] the finding,
beyond a reasonable doubt, that Mitchell was a major participant in a felony who acted
with reckless indifference to human life’]; People v. Clements (2022) 75 Cal.App.5th
276, 283, 302 [Fourth District rejecting Vivar; concluding that ‘the trial judge sits as a
fact finder at a hearing under section 1170.95, subdivision (d) [now § 1172.6, subd. (d)]
and that substantial evidence support[ed] the trial judge’s finding beyond a reasonable
doubt that Clements committed implied malice second degree murder’].)” (Oliver, supra,
90 Cal.App.5th at pp. 479-480.)
Defendant urges us to reach a different conclusion and argues reliance on Perez is
misplaced. Specifically, she argues that whether the substantial evidence standard of
review applies to a trial court’s findings under Proposition 36 was not a central issue in
Perez because, under the facts of that case, our Supreme Court relied on undisputed
evidence and believed the trial court’s finding was unsupported based on those
undisputed facts. Thus, defendant reasons, because our Supreme Court would have come
to the same conclusion had it applied either an independent judgment or substantial
18
evidence review standard, the portion of the opinion describing the proper standard of
review as substantial evidence review is dicta.
We disagree. Even if not determinative of the case before it, our Supreme Court
directly addressed the issue of the proper standard of review, and its holding was express.
(People v. Perez, supra, 4 Cal.5th at p. 1066.) Further, dicta of our Supreme Court has
persuasive value that we cannot ignore absent a compelling reason. (Benton v. Benton
(2019) 39 Cal.App.5th 212, 218.) Defendant has failed to demonstrate a compelling
reason here where Justice Corrigan’s concurrence in Perez would have decided the case
on the theory defendant now advances, but the concurrence failed to gain the support
required to be the majority opinion. (Perez, at pp. 1068-1070 (conc. opn. of
Corrigan, J.).) Accordingly, we are not persuaded to divert from Perez.
Defendant also argues the considerations outlined in Vivar to justify independent
judgment review also favor the use of independent judgment review for section 1172.6
cases when the evidence consists of documentary evidence. Again, we disagree.
Whereas the prejudice issue at the center of Vivar was a legal question traditionally
afforded independent judgment review (People v. Vivar, supra, 11 Cal.5th at pp. 524-
525), the issue here is a factual one traditionally afforded substantial evidence review
(Oliver, supra, 90 Cal.App.5th at p. 480). Further, defendants petitioning under section
1172.6 are currently imprisoned and given an opportunity to present additional evidence
not admitted at their trial (§ 1172.6, subd. (d)(3)), whereas the relief at issue in Vivar
could only be granted to individuals who had been released from confinement and who
predominantly relied on records from long past legal proceedings (Vivar, at pp. 526-527).
Accordingly, the history and nature of the claims at issue in Vivar and at a section 1172.6
evidentiary hearing are distinguishable such that the independent judgment review
justified in Vivar is not justified here. Accordingly, the substantial evidence standard of
review is appropriate.
19
II
The Prosecution Was Not Required To Rely On Live Testimony To Meet Its Burden
Defendant argues section 1172.6 “leaves open the question whether the court can
resolve disputed facts on a cold record or whether the court must rely solely on
undisputed facts plus any new evidence presented at the hearing.” She insists that for the
trial court to rely on the cold record alone to resolve disputed facts revealed by that
record violates due process under the Fifth and Fourteenth Amendments to the United
States Constitution, and as a result the prosecution failed to meet its burden of
demonstrating she is ineligible for resentencing. We disagree.
As an initial matter, we note section 1172.6 is not silent about the trial court’s role
in evaluating the evidence, whether that evidence consists of only a cold record or of the
cold record and evidence admitted at the evidentiary hearing, before determining whether
a defendant is entitled to resentencing. Indeed, section 1172.6 provides: “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 . . . . 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 [examination] pursuant to subdivision (b) of [s]ection 872 shall
be excluded from the hearing as hearsay, unless 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),
italics added.)
“It’s true that it’s unusual to ask the trial judge to sit as the fact finder and (in some
cases) make factual determinations on a cold record . . . . While that 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. The Legislature landed on that compromise as a way of
extending the ameliorative benefits of its redefinition of murder to people previously
20
convicted under prior law, which [it] judged to be too harsh. [It] could have directed that
qualifying offenders receive a new trial by a new jury on the critical factual questions.
But that was impractical for many reasons; the expense would have been enormous and
the chances of obtaining live testimony from witnesses who remembered the events from
years or decades earlier is small. The Legislature also could have simply refused to make
the benefits of the new law available to people already validly convicted under the old
law. [It] chose the middle course of requiring trial judges to decide the critical factual
questions based—at least in some cases—on a cold record. While the Legislature’s
compromise is not perfect, it is adequate. And if either party believes it’s important to
put on live testimony to allow the trial judge to make credibility determinations based on
cues other than consistency and plausibility, the statute expressly allows them that
opportunity.” (People v. Clements, supra, 75 Cal.App.5th at p. 297.)
Permitting a trial court to resolve disputed facts in the absence of live testimony at
a section 1172.6 resentencing hearing further does not violate defendant’s right to due
process under the Fifth and Fourteenth Amendments to the United States Constitution, as
defendant contends. A petitioner under section 1172.6 does not possess many of the
constitutional rights afforded to a criminal defendant at trial. (See People v. Lewis (2021)
11 Cal.5th 952, 973 [a petitioner under § 1172.6 is not constitutionally entitled to counsel
in the proceeding, but rather, possesses “a purely statutory right to counsel that attaches
before the issuance of an order to show cause”]; People v. James (2021) 63 Cal.App.5th
604, 610 [“a convicted person litigating a section [1172.6] petition does not enjoy the
rights that the Sixth Amendment guarantees to criminal defendants who have not yet
suffered a final conviction,” including the right to a trial by jury]; People v. Hernandez
(2021) 60 Cal.App.5th 94, 111 [“The retroactive relief provided by section [1172.6] is a
legislative ‘act of lenity’ intended to give defendants serving otherwise final sentences
the benefit of ameliorative changes to applicable criminal laws and does not result in a
new trial or increased punishment that could implicate the double jeopardy clause”];
21
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the retroactive relief [defendants]
are afforded by Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.)] is not subject to Sixth
Amendment analysis”].) This is because “ ‘a sentence modification under section
[1172.6] is an act of lenity and not a criminal trial.’ ” (People v. Anderson (2022)
78 Cal.App.5th 81, 90.)
Indeed, defendant received the benefit of credibility determinations based on live
testimony when she was initially tried for murder at her criminal jury trial. The
resentencing process cannot result in additional punishment and is a completely voluntary
endeavor on defendant’s behalf. “No constitutional provision required the Legislature to
authorize relief under the conditions specified in section [1172.6] and none compels it to
make the conditions subject to jury determination” or other constitutional mandates.
(People v. James, supra, 63 Cal.App.5th at p. 609.) Thus, to the extent defendant
characterizes the role of the court as determining her guilt, that characterization is flawed.
The trial court is not determining guilt; it is determining eligibility for resentencing based
on a reasonable doubt standard. (§ 1172.6, subds. (a), (d).)
For these reasons, we agree with the People’s argument that defendant received
adequate procedural due process during the resentencing hearing. Factors relevant to this
inquiry take into account: “First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and [third], the [g]overnment’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” (Mathews v. Eldridge (1976) 424 U.S. 319, 335.)
As described, the private interest at stake is whether defendant is entitled to a
reduced sentence after having already been found guilty of murder. (§ 1172.6, subds. (a),
(d).) Defendant is entitled to introduce additional evidence pertaining to her culpability
in the event the evidence revealed by the trial record is incomplete or leads to a
22
conclusion adverse to her position. (Id., subd. (d)(3).) The government has provided for
procedural safeguards by extending the right to counsel, providing for an evidentiary
hearing that permits the introduction of evidence, and limiting the evidence to that which
is reliable or admissible under current law. (Id., subds. (b)(3), (d)(3).) These procedural
safeguards account for the credibility concerns raised by defendant by providing a
petitioner with the tactical decision to introduce evidence relevant to credibility
determination or to rely on the argument that the prosecution has failed to meet its
burden. Finally, the cost of holding a new trial for every defendant who could possibly
benefit from the passage of section 1172.6 would be extremely high and detrimental to
the efficiency of all court business. As described by the Clements court, “While the
Legislature’s compromise is not perfect, it is adequate.” (People v. Clements, supra,
75 Cal.App.5th at p. 297.)
The cases defendant relies on do not support her position. For example, in United
States v. Raddatz (1980) 447 U.S. 667, the Supreme Court considered the
constitutionality of a provision permitting federal magistrate judges to hold suppression
hearings before district courts “decide such motions based on the record developed before
[the] magistrate” judge. (Id. at p. 669.) After determining the statute at issue did not
require the district court to hold a hearing at which it could hear the evidence for itself,
the Supreme Court determined the United States Constitution did not require such
procedural hurdles either. (Id. at pp. 676-677, 680-681.) The Supreme Court cautioned
judges to be sensitive about making credibility determinations on a cold record but
concluded the practice was permissible in the suppression motion context because the
interests at stake at a suppression hearing are of a lesser magnitude than those in the
criminal trial itself and because the district court holds broad discretion to reject or
modify the magistrate’s findings or to conduct a hearing. (Id. at pp. 679-681.) This case
supports our analysis above, in that the interests at stake in a resentencing proceeding are
23
of a lesser magnitude than those in a criminal trial and other procedural safeguards are in
place such that live testimony is not required.
In Johnson v. Finn (9th Cir. 2011) 665 F.3d 1063, 1066, the Ninth Circuit Court of
Appeals held that a district court must hold a hearing on a Batson6 motion before
rejecting the credibility findings of the magistrate judge who first heard the motion. In so
holding, the Ninth Circuit paid particular attention to the limitations of a cold record
when making credibility assessments. It concluded, “[Petitioners] were constitutionally
entitled to have the district judge observe the prosecutor’s demeanor before rejecting their
Batson claim. Because the petitioners’ interest in the vindication of their rights is
immense, because the administrative burden of an additional hearing is relatively minor,
and because a credibility determination based on a cold record is substantially more
likely to be in error than one based on an in-person evaluation of a witness, the district
judge deprived [petitioners] of due process when he declined to afford them a new
evidentiary hearing.” (Id. at pp. 1075-1076.)
Johnson is distinguishable for the reasons outlined above. In short, defendant’s
private interests are not similar to the interests held by the petitioners in Johnson because
she has already been afforded a full criminal trial. The administrative burden on the
government is immense and procedural safeguards are in place such that defendant could
have utilized live testimony to undercut the prosecution’s argument that it met its burden
based on the cold record alone.
6 Batson v. Kentucky (1986) 476 U.S. 79.
24
III
Substantial Evidence Supports The Trial Court’s
Finding Defendant Committed Second Degree Murder7
Defendant contends substantial evidence does not support the trial court’s finding
that she acted with conscious disregard for life when aiding and abetting the assault on
Edward. We disagree.
“In reviewing the trial court’s findings for substantial evidence, we apply well
settled principles. ‘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.’ ” [Citation.] Our job on review
is different from the trial judge’s job in deciding the petition. 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, contradicted or uncontradicted, to
support a rational fact finder’s findings beyond a reasonable doubt.’ ” (Oliver, supra,
90 Cal.App.5th at p. 480.) Reversal is not warranted unless “ ‘ “upon no hypothesis
whatever is there sufficient substantial evidence to support the [trial court’s ruling].” ’ ”
(People v. Cravens (2012) 53 Cal.4th 500, 508.)
“[S]econd degree murder . . . 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.’ [Citation.] . . .
‘Malice is implied when the killing is proximately caused by “ ‘an act, the natural
7 Because we conclude the proper standard of review is substantial evidence, we do
not address defendant’s fourth claim that upon an independent review she cannot be
found guilty of murder.
25
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his [or her] conduct endangers the life of another and who acts
with conscious disregard for life.’ ” [Citation.] In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the life of another.’ ”
(People v. Cravens, supra, 53 Cal.4th at p. 507.)
“[U]nder direct aiding and abetting principles, an accomplice is guilty of an
offense perpetrated by another if the accomplice aids the commission of that offense with
‘knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 843, quoting
People v. Perez (2005) 35 Cal.4th 1219, 1225.) “ ‘[T]o be liable for an implied malice
murder, the direct aider and abettor must, by words or conduct, aid the commission of the
life-endangering act, not the result of that 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.’ ”
(People v. Reyes, supra, 14 Cal.5th at p. 991.) Implied malice simply “requires a
defendant’s awareness of engaging in conduct that endangers the life of another—no
more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143.)
Defendant invites us to reweigh the evidence by pointing to several omissions and
inconsistencies in the order containing the trial court’s factual recitation of the trial
transcript. We decline to do so. (See People v. Nelson (2011) 51 Cal.4th 198, 210
[“ ‘We do not reweigh evidence or reevaluate a witness’s credibility’ ”].) The court
identified the relevant question in its order—whether defendant acted with implied
malice when egging on the knife wielding Roberts and then stomping on Edward after
Edward had been stabbed. In this regard, the trial court found defendant created the
antagonistic atmosphere preceding the murder. This is supported by Jasmine’s
testimony, which the trial court found credible, that defendant picked a fight about
26
Jasmine’s infant daughter immediately upon returning from the liquor store. (Njoku,
supra, C082166.) Defendant then laughed at Edward when he became upset about his
young son being locked outside. (Ibid.) Tensions escalated quickly with everyone
talking or yelling and defendant antagonizing Jasmine and Edward, and in the process
encouraging Roberts. (Ibid.; see People v. Young (2005) 34 Cal.4th 1149, 1181 [the
testimony of a single witness is sufficient to support a finding as to any fact].)
The trial court also found Jasmine was credible when testifying that defendant
continued to encourage Roberts to fight with Edward after Roberts had displayed a knife.
(Njoku, supra, C082166.) The trial court pointed to defendant’s proximity to Roberts to
justify the inference defendant knew Roberts possessed a knife when she encouraged him
to fight with Edward. This is a reasonable inference we are bound to accept. (Pilliod v.
Monsanto Co. (2021) 67 Cal.App.5th 591, 641-642 [we review the judgment in light of
every reasonable inference].)
The trial court further found Amanda’s testimony was credible when she related
her perceptions that defendant stomped on Edward and made disparaging comments to
him while he was dying. The fact that Amanda could not discern particular people
speaking or the sound of stomping on the 911 call is of little consequence. We do not
have a copy of the 911 call. Instead, we have a transcript of the call and testimony
regarding the call. From these sources, it appears there were a myriad of undiscernible
noises on the 911 call and the location of Edward’s phone in relation to the altercation is
unknown, leaving little context for us to assess the probative nature of the 911 call as
compared to Amanda’s testimony. Further, Dr. Pestaner testified to injuries Edward
sustained that were consistent with stomping injuries. While Dr. Pestaner testified he
believed worse injuries would have resulted if the stomping was extensive, that does not
preclude a finding that defendant stomped on Edward to some degree after he had been
stabbed, contrary to defendant’s contention.
27
Finally, the trial court reweighed the evidence when making its reasonable doubt
finding, and thus the prosecution’s argument and theory of the case, as well as the jury’s
verdict acquitting T.S., are irrelevant, contrary to defendant’s contention.
Defendant also compares her facts to Valenzuela, arguing her conduct was not as
bad as the conduct in that case and thus does not justify an implied malice finding.
(People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485.) Initially, we note
the futility of comparing cases in a sufficiency of the evidence context. “When we decide
issues of sufficiency of evidence, comparison with other cases is of limited utility, since
each case necessarily depends on its own facts.” (People v. Thomas (1992) 2 Cal.4th
489, 516.) Further, Valenzuela pertained to the required finding at a preliminary
examination and involved a prearranged fist fight where the defendant’s group brought
knives, leading to the death of a person in the other group. (Valenzuela, at pp. 491-495.)
While noting the case was close, the Valenzuela court found sufficient evidence to hold
the defendant to answer based on a finding the defendant could at least infer his
coparticipant was armed with a knife. (Id. at pp. 490, 503-504.) Here, the trial court
found defendant knew Roberts was armed with a knife before she continued to encourage
him to fight Edward, distinguishing Valenzuela.
At bottom, it appears defendant is arguing that she did not know Roberts had come
to the house with a knife or had a violent disposition, and thus an implied malice finding
was inappropriate. Not so. As the trial court found, defendant created an antagonistic
atmosphere by escalating the argument with Jasmine and Edward at every turn and then
encouraged Roberts to fight with Edward knowing Roberts was armed with a knife. (See
People v. Vargas (2022) 84 Cal.App.5th 943, 955 [substantial evidence supported a
finding of conscious disregard when the defendant “knew that firing a gun into a brawl
could . . . result in someone’s death, but she directed [the perpetrator] to do it anyway”].)
Defendant then participated in the fight by stomping on Edward and then failed to help
him after he had been fatally injured. Taken together, defendant knew Roberts fighting
28
Edward while brandishing a knife could result in Edward’s death. She ignored that risk,
and even increased it, by participating in the assault after Edward was stabbed and then
callously ignoring him and attempting to hide evidence while he laid on the ground
bleeding to death. Accordingly, substantial evidence supports the trial court’s finding
that defendant acted with implied malice.
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is affirmed.
/s/
ROBIE, J.
We concur:
/s/ ,
EARL, P. J.
/s/
KRAUSE, J.
29