California Court of Appeal Aug 24, 2022 No. E076748Unpublished
Filed 8/24/22 P. v. Morales CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076748
v. (Super. Ct. No. FVA1301388)
EDWARD MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana
Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
Defendant and appellant Edward Morales appeals from an order denying his
petition to vacate his first degree murder conviction and obtain resentencing relief 1 pursuant to Penal Code section 1170.95. He claims the trial court improperly denied his
petition because the court’s ruling “is based on [independent] factual findings which the
record does not show beyond a reasonable doubt that the jury decided under the
instructions it received at trial.” We disagree and affirm the order.
II.
FACTUAL AND PROCEDURAL BACKGROUND 2 A. Factual Background
During the early morning on July 26, 2013, Mr. Padilla was murdered. A
neighbor testified that during the early morning hours of July 26, 2013, she heard
someone say, “‘Help me,’” and someone hitting another person. It sounded like someone
was in pain. After 10 minutes it was quiet. The neighbor called the police.
At 5:12 a.m., Police Officer Stacey arrived at the street behind the neighbor’s
house, near Padilla’s home. Officer Stacey found in the street a bloody shirt. He also
found on Padilla’s driveway a broken baseball bat, a water bottle, a laptop, a notepad, a
pen, keys, and other items. Officer Stacey saw a lot of blood, suggesting a violent
1 All future statutory references are to the Penal Code. 2 The factual background is taken verbatim from this court’s nonpublished opinion in defendant’s direct appeal, case No. E070263. (People v. Morales (Feb 13, 2020, E070263) [nonpub. opn.] (Morales I), 2020 WL 726677.)
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struggle. There was blood on a vehicle in the driveway, the garage, and the sidewalk
leading into the backyard. There were also fresh tire tracks on Padilla’s lawn.
Police officers entered Padilla’s home in search of those who might have been
seriously injured. Padilla’s wife and two daughters told the police Padilla had left for
work early that morning. Padilla’s car, a black Nissan Versa, was gone and he was not
answering his cell phone. The bloody shirt and other items strewn on the driveway
belonged to Padilla. Padilla’s family told the police defendant might be involved.
Defendant was a former boyfriend of one of Padilla’s daughters and had spent a
substantial amount of time with the Padilla family. The two year relationship ended
about a year before the murder.
At 10:00 p.m., on July 26, 2013, Police Officer Palmer was dispatched to Flores
Park in Rialto, in response to a vehicle fire. Upon arriving, Officer Palmer saw a black
car engulfed in flames. After the fire department put out the fire, a police field evidence
technician examined the vehicle and found Padilla’s body in the vehicle. His hands, chin,
and neck were bound with duct tape. The technician also found in the car a pair of
scissors, Padilla’s employee identification card, and Padilla’s wallet.
A forensic pathologist determined that Padilla had sustained burns, lacerations,
and bruising to his body. His skull had several depressed fractures, indicating something
struck his head and on the opposite side he had scalp contusions. In addition, Padilla had
scratches and puncture wounds consistent with being stabbed with scissors. His left
index finger, larynx and hyoid bone were fractured. The forensic pathologist concluded
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Padilla died from a blunt force injury to the neck and head, with probable asphyxia from
the hyoid and larynx fractures and from the binding around Padilla’s head and neck. The
forensic pathologist also concluded Padilla was not alive when his body burned because
there was no soot in his airway.
Upon searching defendant’s apartment, the police found blood on the carpet, and a
bleach bottle and stain remover on the balcony. The police also searched defendant’s car.
The car was clean and the floor mats were missing. Blood was found on a seatbelt on the
driver’s side. During a search of Gonzalez’s residence, the police found a hand gun in
the rain gutter outside Gonzalez’s bedroom. There was blood on the butt end of the gun,
the gun barrel, and magazine chamber.
Police Officer Vantuinen, who assisted with the investigation, testified defendant
gave him his cell phone during his second interview on August 1, 2013. Defendant told
Vantuinen he was in possession of his cell phone the entire day of the murder on July 26,
2013. The police obtained phone data from defendant’s cell phone. Sergeant Guthrie,
the lead investigator in the case, testified defendant’s cell phone data showed that
defendant called Gonzalez on July 26, 2013, at 1:47 a.m. Then defendant and Gonzalez
exchanged text messages at 2:48 a.m. At 5:32 a.m., defendant received a call from
Gonzalez, causing defendant’s cell phone to “ping” off a cell phone tower about halfway
between Padilla’s house and Flores Park.
B.S. testified she met defendant and Gonzalez through social media. In 2013, a
few months after meeting defendant online, the police called B.S. This was shortly after
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defendant had called B.S. and asked her to tell the police that he had been with her all
night the previous night, which was untrue. Defendant told B.S. he wanted her to say this
because he had been in a fight at a gas station. Defendant described his car for B.S. so
she could confirm that information with the police. When B.S. spoke with the police a
few minutes later, she said defendant had been with her all night at her home, until 7:00
a.m. on July 26, 2013.
A day or two later, the police met with B.S. and told her they were investigating
defendant for murder. B.S. again said she had been with defendant during the night,
which was false, but said she was with him only from 2:00 a.m. to 3:00 or 4:00 a.m.,
which was also false. After the police left, B.S. called defendant and told him about her
encounter with the police. Defendant told B.S. he was involved in a fight, not murder.
Then he gave the cell phone to his mother, who told B.S. there had not been a murder and
that the police were trying to scare B.S. After B.S. said she did not want to be involved,
B.S.’s mother sounded upset and told B.S. to keep quiet, lie, and not worry. About three
weeks later, B.S. spoke to the police again and said defendant was not with her the night
of the incident.
The police interviewed defendant three times. Officer Vantuinen interviewed
defendant the evening of July 26, 2013, before Padilla’s body was found. Defendant
denied any involvement in Padilla’s disappearance. Defendant claimed he had been with
his female friend after leaving work the night before. During defendant’s second
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interview on August 1, 2013, at the police department, defendant again denied any
involvement in the crimes against Padilla.
After the police spoke to defendant’s brother, Victor, defendant was interviewed a
third time on August 6, 2013. During his third interview, defendant initially denied
involvement in the crimes, but later said he was forced to go to Padilla’s home at
gunpoint, and ran home when Gonzalez attacked Padilla. Defendant claimed his
fingernail came off during a work-related accident. Later in the interview, he said it was
pulled off during the altercation with Padilla, when defendant accidentally slammed it in
a door. When Sergeant Guthrie confronted defendant with Victor’s statement and the cell
phone evidence, defendant admitted that two days before the killing, he and Gonzalez
planned to rob Padilla. Defendant stated that Gonzalez told him that defendant was only
going to drive Gonzalez there and Gonzalez was not going to touch Padilla or hit him.
Defendant told Sergeant Guthrie that, at 4:50 a.m., he and Gonzalez parked down
the street from Padilla’s house and walked to the side of Padilla’s house. When Padilla
exited his house, Gonzalez hit him with a baseball bat in the face and body so forcefully
the bat broke. As Padilla tried to run away, he dropped all of his belongings and his shirt
came off. Gonzalez hit Padilla with a gun multiple times, pushed him into Padilla’s car,
and told defendant to drive the car. When the car went into reverse, it went across the
grass and up on the curb, hitting another vehicle. While defendant was driving, Gonzalez
tied up Padilla and continued hitting Padilla so forcefully that defendant crashed into a
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tow truck. Defendant heard what sounded like Gonzalez choking Padilla or stabbing him
in the neck with scissors.
While defendant was driving, Gonzalez inadvertently said defendant’s name and
The amended provision also revised subdivision (d)(3) of section 1170.95, which
now states: “At the hearing to determine whether the petitioner is entitled to relief, the
burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection 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
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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 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. 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. If 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.” (§ 1170.95, subd. (d)(3), as amended by Stats.
2021, ch. 551.)
C. Analysis
The issue in this case pertains to the trial court’s role as a fact finder at the
evidentiary hearing. Specifically, the issue of whether a trial court acts as an independent
factfinder and evaluates the evidence or whether section 1170.95 limits the trial court’s
decision to the jury’s explicit findings to determine whether the petitioner is ineligible for
resentencing because he or she is guilty of murder under the current laws beyond a
reasonable doubt.
Initially, we note there is no dispute that defendant made a prima facie showing of
eligibility under section 1170.95, subdivision (a). There is also no contention as to
whether the trial court correctly held the evidentiary hearing under section 1170.95,
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subdivision (d). At the hearing stage, under section 1170.95, subdivision (d)(3), the
statute shifts the burden to the People. As noted, the Legislature specified “the 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 [s]ection 188 or 189 made effective January 1, 2019 .” (§ 1170.95, subd. (d)(3).) To
sustain their burden, the People may offer new or additional evidence, and subject to
evidentiary rules, “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.” (§ 1170.95, subd. (d)(3).) In
addition, “[t]he court may also consider the procedural history of the case recited in any
prior appellate opinion” and the preliminary hearing, subject to the hearsay rules. (Ibid.)
The trial court must resolve whether the People sustained their burden of proof, and if
they have not done so it directs “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.” (§ 1170.95, subd. (d)(3).)
Recently, this court in People v. Clements (2022) 75 Cal.App.5th 276 (Clements),
concluded “the plain text of the statute requires the trial judge to sit as a factfinder, not as
a quasi-appellate court,” rejecting the trial court and the People’s position that the trial
judge decides whether substantial evidence supports a conviction under a still-valid
theory. (Id. at 295.) We explained, “When interpreting the statute, we must attend to the
Legislatures’ clear purpose in section 1170.95, subdivision (d) of requiring a factfinding
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at the ultimate hearing on the merits. Subdivision (d) specifies the purpose of the hearing
is ‘to determine whether the petitioner is entitled to relief’ and places ‘the burden of
proof . . . on the prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ This plain language shows the People are required to
establish the defendant is guilty under current law as a matter of fact and beyond a
reasonable doubt. [Citation.] Applied to this case, the judge was required to determine
whether the People satisfied their burden of proving beyond a reasonable doubt that
Clements committed implied malice murder based on the evidence contained in the
record of conviction.” (Clements, supra, at p. 296.)
Based on our reasoning in Clements, we conclude that the trial court’s role at the
section 1170.95, subdivision (d) hearing is to act as an independent trier of fact and
evaluate the evidence to determine whether the People satisfied their burden of proving
beyond a reasonable doubt that defendant committed murder under the current laws. In
analyzing the plain text and purpose of the statute, we disagree with defendant’s
interpretation that the trial court is limited in its determination based on findings made by
a jury in the trial proceedings. Defendant’s argument is contrary with the clear intent of
the Legislature, as reflected by the plain language of section 1170.95. That section does
not limit a trial court to only consider the jury’s findings, but allows the court to review
the evidence presented at trial, and even additional evidence presented at the hearing, to
determine whether the People have proven beyond a reasonable doubt that petitioner
committed murder under a still-valid theory. “The statute is explicit that either party
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‘may . . . offer new or additional evidence to meet their respective burdens.’ (§ 1170.95,
subd. (d)(3).) Under our interpretation, the judge simply reviews the record, hears the
testimony, and decides as a factual matter whether the petitioner committed murder under
the current law.” (Clements, supra, 75 Cal.App.5th at p. 297.)
Although it is “unusual to ask the trial judge to sit as the fact finder and (in some
cases) make factual determinations on a cold record, . . . 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 convicted under prior law, which they judged to be too
harsh. They 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. They 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.” (Clements, supra, 75
Cal.App.5th at p. 297.) “Of course, in a section 1170.95 petition, the trial judge isn’t
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charged with holding a whole new trial on all the elements of murder. Instead, the parties
will focus on evidence made relevant by the amendments to the substantive definition of
murder.” (Id. at p. 298.)
Defendant’s interpretation of the statute is contrary to the Legislature’s intent.
Nothing in section 1170.95 limits a trial court to the factual findings already rendered by
a jury in determining whether the People have shown a petitioner is guilty under current
law as a matter of fact and beyond a reasonable doubt. Section 1170.95, subdivision
(d)(1) states “the court shall hold a hearing to determine whether to vacate the murder,
attempted murder, or manslaughter conviction and to recall the sentence. . . .” And
subdivision (d)(2) of that statute explicitly accounts for a situation where there was a
prior finding by a court or a jury that would render a defendant eligible for relief as a
matter of law. Specially, that provision, in relevant part, states “If there was a prior
finding by a court or jury that the petitioner did not act with reckless indifference to
human life or was not a major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” (§ 1170.95, subd. (d)(2).) Absent
from either provision is any direction to a trial court to consider the absence of particular
jury findings in determining whether relief should be granted. What is more, by allowing
the parties to allow new or additional evidence, the Legislature anticipated that the trial
court would be considering the petition beyond the jury’s explicit findings. We do not
believe the Legislature intended the trial court to merely evaluate the jury’s findings or
grounds on which the original verdict was rendered. And we are reluctant to find so in
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the “[a]bsen[ce of] a clear expression of legislative intent.” (See e.g., People v. George
(1984) 157 Cal.App.3d 1053, 1057-1058.)
Moreover, in examining the purpose inspiring section 1170.95 convinces us that
subdivision (d)(3) turns a petitioner’s entitlement to relief on whether the trial court itself
finds, beyond a reasonable doubt, that defendant is guilty of murder on a still-valid theory
of liability. This is the outcome most consistent with our Legislature’s stated purpose to
extend Senate Bill No. 1437’s new rules in an equitable fashion both prospectively and
retroactively. In the introductory legislative “findings” of Senate Bill No. 1437, our
Legislature declared that its purpose was to more closely align the punishment for murder
with a person’s “own level of individual culpability.” (Stats. 2018, ch. 1015, § 1(d), (e);
Gentile, supra, 10 Cal.5th at pp. 845-846.) Furthermore, by simultaneously amending the
statutes defining murder and creating the procedural mechanism in section 1170.95 to
revisit already existing murder convictions, our Legislature confirmed that this purpose
was designed to benefit both past and future offenders. Where, as here, there is an
avowed purpose to grant ameliorative relief “prospective[ly] and retrospective[ly],” the
best way to effectuate that purpose is to give the requirements for all relief a “parallel
construction.” (People v. Frierson (2017) 4 Cal.5th 225, 236.) This principle of parallel
construction here leads unavoidably to the conclusion that the People must convince the
trial court, as an independent trier of fact, that the petitioner is guilty of murder on a still-
valid theory beyond a reasonable doubt.
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If the People may obtain a murder conviction under the amended statutes in the
future only by proving beyond a reasonable doubt that the defendant was the actual killer,
acted with the intent to kill or was a major participant acting with reckless indifference to
human life, then section 1170.95 should be read to require the People to preserve a past
murder conviction by proving any of those same facts to the trier of fact beyond a
reasonable doubt. Under this interpretation, the sole difference between the two is that to
obtain future convictions the proof must be made to a jury, while the showing to preserve
past convictions may be made to the court. However, that difference is simply because
the constitutional right to a jury trial does not attach in the latter situation, where what is
at issue is a possible entitlement to a reduced sentence rather than the initial imposition of
criminal liability. (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064; People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [“[T]he Legislature’s changes constituted an act of
lenity that does not implicate defendants’ Sixth Amendment rights”].) For this reason,
we reject defendant’s Sixth Amendment constitutional right-to-a-jury-argument.
Petitioners filing section 1170.95 petitions are not criminal defendants charged anew with
murder entitling them with the constitutional right to a jury. Senate Bill No. 1437 is an
act of lenity and does not implicate a defendant’s constitutional rights. As such, the Sixth
Amendment right to a jury does not prohibit trial courts from relying on facts not found
by a jury in determining section 1170.95 eligibility.
Defendant contends that the incorporation of the beyond-a-reasonable-doubt
standard in subdivision (d)(3) of section 1170.95 suggests that the trial court’s findings
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must be limited to what the jury found in the underlying trial. We find this contention
unpersuasive. The language “beyond a reasonable doubt” refers to the well- established
standard of proof the prosecution must prove in criminal cases. (See Evid. Code, § 115.)
“The function of a standard of proof . . . is to ‘instruct the factfinder concerning the
degree of confidence our society thinks he [or she] should have in the correctness of
factual conclusions for a particular type of adjudication.’” (Addington v. Texas (1979)
441 U.S. 418, 423, quoting In re Winship (1970) 397 U.S. 358, 370; accord,
Conservatorship of Wendland (2001) 26 Cal.4th 519, 546.) “The standard serves to
allocate the risk of error between the litigants and to indicate the relative importance
attached to the ultimate decision.” (Addington v. Texas, supra, at p. 423; accord,
Santosky v. Kramer (1982) 455 U.S. 745, 755 [The required minimum standard reflects a
“societal judgment about how the risk of error should be distributed between the
litigants.”].)
Moreover, section 1170.95, subdivision (d)(3), as amended, demonstrates a clear
Legislative intent that the trial court is not limited to considering the jury’s explicit
findings in determining whether a defendant is entitled to relief. The amended provision
specifically references the admission of evidence at the hearing stage and the means by
which the Evidence Code applies to the proceedings. And the new provision, despite the
Evidence Code, states that the “court may consider” previously admitted evidence at any
hearing or during trial that is presently admissible as well as the procedural history
recited in any prior appellate opinion. (§ 1170.95, subd. (d)(3).) The amended section
24
also references the preliminary hearing, allowing a consideration of that hearing, subject
to the hearsay rules. (Ibid.)
Defendant expends a lot of time analyzing cases where murder convictions were
challenged on direct appeal and whether any error was harmless beyond a reasonable
doubt. (See, e.g., People v. Chiu (2014) 59 Cal.4th 155, 167; People v. Chun (2009) 45
Cal.4th 1172, 1203; Chapman v. California (1967) 386 U.S. 18, 24.) However, those
cases are inapposite as section 1170.95 was not at issue. In contrast to those cases, the
instant case does not involve a direct appeal from defendant’s murder conviction itself.
Rather, defendant is appealing from the trial court’s order denying his section 1170.95
petition for resentencing relief. The statutorily standards for granting or denying the
resentencing petition are quite different than the standards applicable for determining
harmlessness on direct appeal. Those differences are material. First, the harmless error
line of cases requires courts to inquire whether “there is a basis in the record to find that
the verdict was based on a valid ground.” (People v. Chiu, supra, 59 Cal.4th p. 167.)
That reverse analysis is inconsistent with section 1170.95, subdivisions (a)(3)’s and
(d)(3)’s explicit direction to the trial court to determine if the petitioner could now be
convicted of murder under current sections 188 and 189 as amended, not whether he or
she was, in fact, convicted of murder under a still valid theory. Second, subdivision
(d)(3) permits both parties to present new or additional evidence at the evidentiary
hearing after issuance of an order to show cause. If the trial court’s ineligibility ruling
may be based on evidence not heard by the original trier of fact, the Legislature cannot
25
have intended the court simply to evaluate the grounds on which the original verdict was
reached. Lastly, section 1170.95 is available to defendants convicted of murder
following a plea in lieu of a trial, and it would be impossible to evaluate whether a still-
valid ground for a murder conviction existed in those cases, given the limited record in
many plea cases. Nevertheless, section 1170.95 contemplates the same procedure to
determine ineligibility in plea matters as in cases with a jury trial.
We also reject defendant’s reliance on subdivision (g) of section 1170.95 to
support his position. That section, which was added by Senate Bill No. 775, states “[a]
person convicted of murder, attempted murder, or manslaughter whose conviction is not
final may challenge on direct appeal the validity of that conviction based on the changes
made to [s]ections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of
2018).” (§ 1170.95, subd. (g).) While defendant is correct that a court would be
constrained on direct appeal to the record, his case is not on direct review and has been
long final. Furthermore, as explained above and noted by the People, the Legislature has
provided a specific process for those petitioners whose cases have been final and clearly
intended to treat those petitioners differently.
We conclude that the trial court’s role at the section 1170.95, subdivision (d)
evidentiary hearing is to act as an independent trier of fact and evaluate the evidence to
determine whether the People satisfied their burden of proving beyond a reasonable doubt
that defendant committed murder under a still-valid theory. Viewed in its entirety, the
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transcript of the evidentiary hearing demonstrates the trial court engaged in appropriate
and independent factfinding and applied the proper reasonable doubt standard.
IV.
DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly acted as an independent factfinder at the evidentiary hearing to determine whether the defendant was guilty of murder under current law, and that substantial evidence supported the court's finding that the defendant acted with the intent to kill and as a major participant with reckless indifference to human life.
Issues
Whether a trial court acts as an independent factfinder at a section 1170.95 evidentiary hearing.
Whether the trial court's denial of the resentencing petition was supported by substantial evidence.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court concluded that the prosecution had proven beyond a reasonable doubt that defendant “aided and abetted the willful, deliberate, and premeditated murder of the victim with the intent to kill.””
“The court also found that “defendant was a major participant in the plan and execution of the plan to rob the victim” and that “defendant acted with reckless indifference to human life””