Filed 9/4/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084088
v. (Super.Ct.No. RIF1406144)
JOSEPH CHICO SOLIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi P. Semitsu and
Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Joseph Chico Solis appeals from the trial court’s denial of
his petition for resentencing under Penal Code section 1172.6. 1 He also seeks habeas
corpus relief, claiming that, contrary to the trial court’s minutes, he was absent from the
evidentiary hearing at which the court denied his petition. Defendant’s habeas contention
is that his constitutional right to be present at the hearing was violated in the absence of a
valid waiver of his presence. As we briefly explain post, however, defendant’s habeas
claim is not cognizable under longstanding precedent that the trial court’s minutes may
not be contradicted or altered except by amendment in proper proceedings below. His
habeas claim, premised on disputing the minutes regarding his presence, therefore fails.
On appeal, defendant challenges the sufficiency of the evidence to support the trial
court’s conclusion that he was barred from resentencing relief because he was the
victim’s actual killer. As we explain, the evidence sufficed for the trial court to reach this
conclusion by inference, including by reasonable inference from defendant’s plea
admission to use of knife in the commission of voluntary manslaughter, when there was
no evidence his codefendant had or used a weapon. As we also highlight, the evidence—
and proper inferences therefrom—need not be conclusive to support the trial court’s
factual findings under the beyond a reasonable doubt standard at a section 1172.6
evidentiary hearing. We therefore distinguish, but do not disagree with, People v.
Garrison (2021) 73 Cal.App.5th 735 (Garrison), where the evidence supported a
conclusive determination that the defendant was the actual killer. Substantial evidence to
1 All further statutory references are to the Penal Code, unless otherwise
specified.
2
support a judgment includes both circumstantial evidence and reasonable, logical
inferences from the evidence. We therefore affirm the trial court’s order denying
defendant’s resentencing petition.
BACKGROUND
On June 17, 2015, the Riverside County District Attorney, in a three-count, first
amended information, charged defendant and his codefendant, Alfred Solis, with the
murder of Jovany Romero. (§ 187, subd. (a); count 1.) The information alleged both
men committed the murder with special circumstances by intentionally killing Romero
while they were both active participants in a criminal street gang (§ 190.2, subd. (a)(22))
and that both did so for the benefit of, at the direction of, and in association with the gang
(§ 186.22, subd. (b)(1)(A)). The information alleged that defendant only, and not also the
codefendant, personally used a deadly weapon, a knife, in the commission of the offense
(§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
The information also charged both men in counts 2 and 3 respectively with assault
by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) and active
participation in a criminal street gang (§ 186, subd. (a)), with a gang benefit penalty
enhancement (§ 186.22, subd. (b)(1)(A)) attached to the assault count. The information
further alleged defendant committed residential burglary with a firearm in 2003, which
qualified as a prior serious, strike offense (§§ 667, subds. (a), (c), & (e)(1), 1170.12, subd.
(c)(1)) and had resulted in defendant serving a recent prior prison term (§ 667.5,
subd. (b)).
3
At a hearing on November 30, 2016, following plea negotiations, the trial court
granted the prosecutor’s motion to add a fourth felony count to the information, alleging
defendant committed voluntary manslaughter (§ 192, subd. (a); count 4), with a personal-
use weapon enhancement (§ 12022, subd. (b)(1)) alleged on that count.
The transcript of the hearing indicates the amendment was in substitution for the
murder count, as the prosecutor explained: “We’re asking to amend Count 1 from a 187
to … ,” with the court completing the sentence, “I’ll add a Count 4.” The court
confirmed: “Count 4 you want it to be a 192(a)?” and the prosecutor answered
affirmatively. Defendant entered his plea of “Guilty” to, as stated by the court, “the
charge in Count 4, a violation of 192 sub (a) of the Penal Code, a felony.”
The court’s minutes reflect that defendant waived formal arraignment on the added
count, was rearraigned, withdrew his not guilty plea to the count, and was advised of his
rights, which he waived, before he pled guilty to count 4. The minutes record that
defendant admitted the weapon-use enhancement (§ 12022, subd. (b)(1)) on the voluntary
manslaughter count and further admitted that the priors allegations were true. The
minutes also state that the court found a “factual basis for the plea[,] based on Oral
Statement from Defendant on the record.”
At the plea hearing, in response to the prosecutor’s query, “Is it true that on
October 13, 2013, in the county of Riverside, under the meaning of section 192, you
killed another person, another human being,” defendant answered, “Yes.” The court’s
minutes also record “incorporat[ion] herein” of defendant’s “Felony Plea form,” which
4
included as the stated “Factual Basis” for his guilty plea that “I agree that I did the things
that are stated in the charges that I am admitting.”
Defendant’s plea agreement stipulated a 28-year prison sentence. The transcript of
the plea hearing indicates a slight discrepancy in the manner in which defendant’s
sentence was calculated. The written plea form indicates the parties thought they could
get to the 28-year figure via: the upper term of 11 years for voluntary manslaughter,
doubled to 22 years by defendant’s prior strike admission, plus 5 years for his prior
serious felony, and 1 year for the prison prior. The trial court, however, noted a problem
at the plea change hearing, observing, “I think that the law is that when you have a prison
prior, a strike, and a 667(a), you can only use two out of three.”
Defense counsel responded, “That is correct,” and, at the court’s invitation (“I’ll
let you guys check that out”), the parties agreed to the prosecutor’s suggested resolution.
The prosecutor stated: “I think what we can do, Your Honor, is on Count 4 add a 12022.1
[see footnote No. 3] for an additional year for personal use of a knife. Because that is the
way the homicide took place.” 2 After confirming with defense counsel that the
admission was to personal use of a knife, the court turned to defendant with the following
query. The court asked: “So the People are adding a special allegation under 12022.1
2 The prosecutor misspoke in identifying the code section as 12022.1, which deals
with felonies committed on bail release; instead, it is clear that the “1” was intended as
reference to subsection (1) of section 12022, subdivision (b). That subsection provides
for an additional, consecutive term of 1 year for personal use of “a deadly or dangerous
weapon in the commission of a felony” (§ 12022, subd. (b)(1)), which was the
enhancement defendant admitted in his plea form and at the plea hearing.
5
[sic: § 12022, subd. (b)(1)], knife, during the commission of that voluntary manslaughter
case. Do you admit you had a knife?” Defendant answered, “Yes, sir.”
At sentencing on February 3, 2017, the trial court imposed the agreed-upon 28-
year prison sentence. The court dismissed the balance of the information.
Five years later, on February 2, 2022, defendant filed a petition for resentencing
under former section 1170.95 (now section 1172.6). The parties and the trial court agreed
that defendant’s petition stated a prima facie case for relief, resulting in an order to show
cause and an evidentiary hearing on whether to grant the petition.
At the evidentiary hearing, the trial court considered the transcript of defendant’s
change of plea hearing. In a brief morning session, the parties referenced the factual
basis for defendant’s “admission for killing another human being,” including his
“admission that he killed another human being within the meaning of Penal Code
section 192,” and his admission to personally using a knife “in the commission of that
voluntary manslaughter.” Asking, “[W]ere there codefendants,” the court added that “I
obviously took his plea, but I don’t remember everything about his case just yet.” When
the prosecutor answered the court’s codefendant question affirmatively, the court
summarized that the issue of whether defendant qualified for resentencing relief came
down to the following: “Well, that all depends on who did the killing, who did it, so it
will take a little more research.” The court adjourned the hearing until the afternoon.
At the afternoon session, the court reviewed the plea change transcript, including
that the factual basis for defendant’s plea included admitting that he admitted “kill[ing]
another person, another human being,” and that “he personally used a knife.” The court
6
concluded based on the circumstances that “that is the kind of admission which makes
him the actual killer.” The court ruled on that basis, “I’m convinced that he is not
eligible” for resentencing under section 1172.6. 3
DISCUSSION
Defendant challenges the sufficiency of the evidence to support the trial court’s
finding that he was—as the victim’s actual killer—excluded from resentencing relief
under section 1172.6. The evidence supports the trial court’s determination.
A. GOVERNING LAW
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the law of murder “ ‘ “to
more equitably sentence offenders in accordance with their involvement in
homicides.” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 986.) “Now, ‘[m]alice shall not
be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd.
(a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) To this end, the new
legislation limited the scope of the traditional felony murder rule and eliminated the
natural and probable consequences doctrine as a valid basis to support a murder
conviction. (People v. Lewis (2021) 11 Cal.5th 952, 957.) As a result, murder liability
can no longer be “ ‘imposed on a person who [was] not the actual killer, did not act with
3 The trial court noted in reference to taking defendant’s plea when there was a
codefendant in a homicide that “I did a lot of these kind of cases, and if a person was an
assistant or a helper, I’d really spell that out myself.” Defendant on appeal does not
mention this remark, and we do not consider it in resolving defendant’s challenge to the
sufficiency of the evidence to support the court’s ruling denying him resentencing relief
under section 1172.6.
7
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ ” (Id. at p. 959.)
Senate Bill No. 1437 also created “a special procedural mechanism for those
convicted under the former law to seek retroactive relief.” (People v. Strong (2022) 13
Cal.5th 698, 708 (Strong).) The relief mechanism is codified in section 1172.6. (See
former § 1170.95, added by Stats. 2018, ch. 1015, § 4, subsequently renumbered as
§ 1172.6 by Stats. 2022, ch. 58, § 10.) Consistent with the changes in substantive law:
“Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual killer,
acted with the intent to kill, or ‘was a major participant in the underlying felony and acted
with reckless indifference to human life.’ ” (Strong, at p. 708.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) expanded the changes made by Senate
Bill No. 1437 to reach defendants convicted of attempted murder and manslaughter.
(Stats. 2021, ch. 551, § 2; see 1172.6, subd. (a).) Relevant here, the relief mechanism
afforded in “section 1172.6 applies to those who pled guilty to manslaughter after being
charged with murder and who would have been subject to prosecution for murder under a
felony-murder theory, the natural and probable consequences doctrine, or any other
theory of imputed malice. (§ 1172.6, subd. (a).)” (People v. Gaillard (2024)
99 Cal.App.5th 1206, 1211.)
Under section 1172.6, a person may file a petition in the trial court “to have the
petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts.” (§ 1172.6, subd. (a).)
8
If the petitioner’s averments for relief meet an initial, prima facie threshold
(§ 1172.6, subds. (a)-(c)), as the parties and the trial court agreed was the case here, “the
court shall issue an order to show cause.” (Id., subd. (c).) In that event, the trial court
must hold, as it did here, an evidentiary hearing. (§ 1172.6, subd. (d)(1).) The purpose of
the hearing is for the court to determine whether to recall the petitioner’s sentence, vacate
the applicable conviction, and resentence the petitioner. (§ 1172.6, subds. (a), (d)(1),
(d)(3).)
At the hearing, the prosecution bears “the burden of proof . . . to prove, beyond a
reasonable doubt, that the petitioner is guilty” of his or her murder, attempted murder, or
manslaughter conviction offense “under California law as amended by” Senate Bill No.
1437. (§ 1172.6, subd. (d)(3).) In other words, the prosecutor may not rely on any now-
barred “theory under which malice is imputed to [the] person.” (Id., subd. (a)). The court
“may consider evidence previously admitted at any prior hearing or trial that is
admissible under current law.” (Id., subd. (d)(3).) Either party may also present “new or
additional” evidence. (Ibid.)
“Senate Bill No. 775 clarified that the trial court’s role in a section 1172.6
proceeding is to act as an independent fact finder.” (People v. Guiffreda (2023) 87
Cal.App.5th 112, 123.) Specifically, the court redetermines “in the first instance”
whether the petitioner is guilty of the conviction offense. (Ibid.) Similarly, on questions
such as whether the petitioner was the actual killer, the trial court “acts as an independent
fact finder” in determining whether the People have met their beyond a reasonable doubt
burden. (Garrison, supra, 73 Cal.App.5th at pp. 745, 747-748.) Findings such as
9
whether the defendant was the actual killer “is a factual question.” (People v. Clements
(2022) 75 Cal.App.5th 276, 294 (Clements).)
On appeal after an evidentiary hearing, “the questions we face on a review from a
court’s denial of a section 1172.6 motion are primarily factual.” (People v. Werntz (2023)
90 Cal.App.5th 1093, 1109.) The deferential substantial evidence standard therefore
applies. (Clements, supra, 75 Cal.App.5th at p. 298 [“We review the trial judge’s fact
finding for substantial evidence”]; accord, People v. Mitchell (2022) 81 Cal.App.5th 575,
590-591 [reviewing court “defers” to trial court’s findings at § 1172.6 evidentiary
hearing]; see also generally, e.g., In re Michael G. (2012) 203 Cal.App.4th 580, 589
[sufficiency of the evidence challenge “is generally considered the most difficult standard
of review to meet, as it should be, because it is not the function of the reviewing court to
determine the facts”].) Because an appellate court must “give due deference to the trier
of fact and not retry the case ourselves,” an appellant challenging the sufficiency of the
evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325,
330.)
Under the governing standard, 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 defendant guilty] beyond a reasonable doubt.” ’ ” (Clements,
supra, 75 Cal.App.5th at p. 298.) We presume, in support of the ruling, the existence of
every fact that can be reasonably deduced from the evidence. (People v. Owens (2022)
78 Cal.App.5th 1015, 1022.) “ ‘[R]eversal for insufficient evidence “is unwarranted
10
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the [fact finder]’s verdict.’ ” (People v. Davis (2024) 107
Cal.App.5th 500, 509-510 (Davis).)
“ ‘ “Substantial evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence.” ’ ” (Davis, supra, 107 Cal.App.5th at p. 510.)
B. ANALYSIS
1. PRECEDENT
As defendant concedes, “resentencing relief under section 1172.6 is not available
to an ‘actual killer.’ ” (People v. Garcia (2022) 82 Cal.App.5th 956, 973; see, e.g.,
Strong, supra, 13 Cal.5th at p. 710 [“Senate Bill [No.] 1437 relief is unavailable if the
defendant was . . . the actual killer”].) We therefore turn to defendant’s contention that
the evidence does not support a finding that he was the victim’s actual killer.
The Legislature has not defined the term “actual killer” in the context of
section 1172.6 resentencing, but courts have looked to section 190.2, subdivision (b)’s
“actual killer” basis for felony murder special circumstance liability. (See People v.
Garcia (2020) 46 Cal.App.5th 123, 151 (Garcia).) In that context, our Supreme Court
has used the phrase “personally killed” to describe an actual killer’s actus reus. (Ibid.;
see, e.g., People v. Jennings (1988) 46 Cal.3d 963, 979; People v. Taylor (2010)
48 Cal.4th 574, 661; see also People v. Belmontes (1988) 45 Cal.3d 744, 794 [“The
United States Supreme Court has made clear that felony murderers who personally killed
may properly be subject to the death penalty in conformance with the Eighth Amendment
11
... even where no intent to kill is shown”], overruled on other grounds in People v. Cortez
(2016) 63 Cal.4th 101.)
Thus, “the meaning of ‘actual killer’ . . . is literal. The actual killer is the person
who personally kills the victim, whether by shooting, stabbing, or [other means].”
(Garcia, supra, 46 Cal.App.5th at p. 152.) In Garcia, the actual killer’s means of
personally killing the victim consisted of “taping his mouth closed, resulting in death by
asphyxiation.” (Ibid.)
Whether defendant actually killed the victim was a factual question for the trial
court to determine at the evidentiary hearing below. (Garrison, supra, 73 Cal.App.5th at
pp. 745, 747-748.) Likewise, whether a personal use of a weapon finding establishes that
a defendant was the actual killer is similarly a factual question. (See, e.g., People v.
Young (2005) 34 Cal.4th 1149, 1205 (Young); People v. Jones (2003) 30 Cal.4th 1084,
1120 (Jones).) The answer is for the trial court to determine, depending on the particular
facts of the case. (Garrison, at pp. 745, 747-748.)
In Jones, the Supreme Court recognized that while a personal-use finding alone
does not “in itself” prove a defendant is the actual killer (Jones, supra, 30 Cal.4th at
p. 1120), the facts of a particular case may support, as Garrison phrased it, “only that
conclusion.” (Garrison, supra, 73 Cal.App.5th at p. 743.) The high court explained that
personal use does not inevitably establish the defendant is the actual killer because a
firearm or other weapon may be used in different ways. Thus: “If two robbers display
guns to intimidate robbery victims and one shoots and kills a victim, both robbers could
be found to have personally used a gun in the robbery and the felony murder, even though
12
only one is the actual killer.” (Jones, at p. 1120, italics added.) But when the record
shows only one perpetrator displayed a gun and the evidence indicates it was the
defendant, “not the second robber,” a personal-use enhancement supports finding the
“defendant to be the actual killer.” (Ibid.)
The Supreme Court in Jones was unswayed by the defendant’s “conjectures that
maybe both Domino’s Pizza robbers had guns, that the second robber displayed his
during the robbery and murdered [the] restaurant manager . . . , but that defendant drew
his gun only as he fled to [the getaway] car.” (Jones, supra, 30 Cal.4th at p. 1120.) The
court observed, “It is, of course, far more likely that the man who displayed the gun at
Domino’s Pizza and shot [the manager] is the same person who displayed a gun as the
robbers fled the scene.” (Ibid.) Because “[a]ll evidence point[ed] to defendant . . . as the
one with the gun,” the jury there, on death penalty charges, properly “found defendant to
be the actual killer.” (Ibid.)
Young followed Jones. In Young, the high court acknowledged that a finding of
personal use does not necessarily or automatically demonstrate that a defendant was the
actual killer. (Young, supra, 34 Cal.4th at p. 1205.) Where, however, there was “no
evidence that anyone else who may have been present at the ... residence displayed in a
menacing manner, or otherwise used, a gun,” “all evidence points to defendant as the one
who actually shot and killed [the victim].” (Ibid.)
In Garrison, on appeal following a section 1172.6 evidentiary hearing, the
reviewing court concluded the evidence showed that “one robber only,” of two, “used a
handgun.” (Garrison, supra, 73 Cal.App.5th at p. 744.) The relevant evidence included
13
the defendant’s recounting of “events as follows: either [the defendant] or his brother
‘took the gun from Verna’ and ‘pushed Verna’ causing her to fall to the ground. The man
then left the room and ‘[i]mmediately after the man left the room, Verna heard shots
fired.’ ” (Ibid.) The Garrison court noted in reviewing the evidence: “According to [the
defendant]’s own version of the facts of the offense, the only ‘use’ of the handgun in the
course of the murder was to kill Otto. There was no evidence that anyone used the gun
just for intimidation.” (Ibid.) The reviewing court concluded on this evidence that “[the
defendant]’s admission to use of a handgun in the course of the murder thus necessarily
was an admission that he was the shooter.” (Ibid., italics added.)
2. CONCLUSIVE EVIDENCE NOT REQUIRED AT SECTION 1172.6
EVIDENTIARY HEARING
Notably, the Garrison court found the evidence there, “including [the defendant]’s
plea to personally using a firearm, supported only the conclusion that [the defendant] was
the actual killer,” and thus the defendant’s firearm use admission “necessarily” amounted
also to admitting he was the sole shooter. (Garrison, supra, 73 Cal.App.5th at pp. 738,
743-744, italics and boldface added.) We pause to observe that a conclusive showing the
defendant was the actual shooter is not necessary or required at a section 1172.6
evidentiary hearing. Rather, that is the requisite proof to deny a defendant’s resentencing
petition at the prima facie stage. (See People v. Harden (2022) 81 Cal.App.5th 45, 59
[section 1172.6 petition properly denied at prima facie stage only when “record of
conviction conclusively establishes, with no factfinding, weighing of evidence, or
credibility determinations, that [the defendant] was the actual killer”].)
14
In contrast, once the matter proceeds to an evidentiary hearing, to establish that the
defendant is ineligible for resentencing—for instance as the victim’s actual killer—the
familiar beyond a reasonable doubt standard applies. (§ 1172.6, subd. (d)(3).) The trial
court’s role as fact finder at the evidentiary hearing is to “review all the relevant
evidence, evaluate and resolve contradictions, and make determinations as to credibility,
all under the reasonable doubt standard.” (Clements, supra, 75 Cal.App.5th at p. 298.) A
fact finder tasked with holding the People to the reasonable doubt standard “must
impartially compare and consider all the evidence that was received” and determine
whether that “proof . . . leaves you with an abiding conviction that the charge is true.”
(CALCRIM No. 220.) Stated conversely: Reasonable doubt “is that state of the case,
which, after the entire comparison and consideration of all the evidence, leaves the minds
of jurors [or the trial court as fact finder] in that condition that they cannot say they feel
an abiding conviction of the truth of the charge.” (§ 1096.)
3. EVIDENTIARY RULES CONCERNING INFERENCES
In considering and weighing the evidence as the fact finder, the trial court may
draw reasonable inferences. “An inference is a deduction of fact that may logically and
reasonably be drawn from another fact or group of facts found or otherwise established in
the action.” (Evid. Code, § 600, subd. (b).) “An inference is ‘not evidence but rather the
result of reasoning from evidence.’ ” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268,
1286.) If the reasoning leads to “a conclusion [that] reasonably and logically follows
from proof of the preliminary facts,” “the conclusion is a permissible inference within the
15
exclusive province of the trier of fact.” (People v. Massie (2006) 142 Cal.App.4th 365,
374 (Massie).)
A jury or other fact finder is not limited to drawing a valid, permissible inference
only “when the supporting evidence is so strong the inference must be found as a matter
of law. … Even ‘slight evidence’ in support of the fact to be inferred has been held to be
sufficient. It is up to the [fact finder] to assess the credibility and judge the weight of the
evidence proffered in support of and in opposition to the fact it is asked to infer.”
(Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004)
117 Cal.App.4th 1138, 1150, fn. omitted; see Massie, supra, 142 Cal.App.4th at p. 374
[“The strength of an inference may vary widely. In some circumstances, the preliminary
facts may virtually compel the conclusion. In other circumstances, the preliminary facts
may minimally [but adequately] support the conclusion”].)
If the evidence “could, but not necessarily would, lead a reasonable trier of fact to
infer” the ultimate fact in question, then the evidence and resulting inference are
sufficient to withstand appeal. (Fashion 21 v. Coalition for Humane Immigrant Rights of
Los Angeles, supra, 117 Cal.App.4th at p. 1150.) On appeal, “ ‘[w]e review the entire
record in the light most favorable to the judgment and affirm the convictions as long as a
rational trier of fact could have found guilt based on the evidence and inferences
reasonably drawn therefrom.’ ” (Massie, supra, 142 Cal.App.4th at p. 373.) The
“judgment is not subject to reversal on appeal simply because the prosecution relied
heavily on circumstantial evidence and because conflicting inferences on matters bearing
on guilt could be drawn at trial.” (Ibid.)
16
4. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S
ACTUAL-KILLER FINDING
With the foregoing principles in mind, we conclude that the evidence before the
trial court at the section 1172.6 evidentiary hearing supports the inference that defendant
was Romero’s actual killer. The court considered at the hearing the record of defendant’s
conviction, including his plea change. To resolve charges that he and his codefendant
murdered Romero, with the further allegation that defendant alone—and not also his
codefendant—personally used a knife “in the commission of” the offense, defendant pled
guilty to a charging amendment that added voluntary manslaughter in lieu of murder. He
also admitted the corresponding personal-use enhancement. Defendant also expressly
“agree[d]” as the factual basis for his plea that “I did the things that are stated in the
charges that I am admitting.” Taken together, the essential facts established by
defendant’s admissions were that he committed voluntary manslaughter in slaying
Romero and that he personally used a knife in doing so.
Conspicuous by its absence was any suggestion in the evidence that anyone
besides defendant used a knife or other weapon “in the commission of” killing Romero.
Nor was there any evidence that the manslaughter was by means other than the knife
defendant admitted using to commit the offense. In this sense, the record is similar to
Young, Jones, and Garrison. In those cases, while coperpetrators may have been present
at a homicide, only the defendant wielded the means by which to kill the victim; these
facts, coupled with the fact finder’s personal-use finding solely against the defendant,
supported a reasonable inference that the defendant was the actual killer. (Young, supra,
17
34 Cal.4th at p. 1205; Jones, supra, 30 Cal.4th at p. 1120; see Garrison, supra,
73 Cal.App.5th at p. 747 [trial court’s actual killer “conclusion consistent with [the
defendant’s] admission that he personally used a handgun in the commission of the
murder”].) In these circumstances, the fact finder’s actual killer determination
“reasonably and logically follows from proof of the preliminary facts,” and “the
conclusion is a permissible inference within the exclusive province of the trier of fact.”
(Massie, supra, 142 Cal.App.4th at p. 374.)
5. ADDITIONAL EVIDENTIARY CONSIDERATIONS
Two other core evidentiary considerations bolster our determination that the
evidence was sufficient to support finding defendant was the actual killer here. The first
is a caveat to the general rule that not all conceivable or available evidence must be
presented to determine guilt. (See CALCRIM No. 300 [“Neither side is required to call
all witnesses who may have information about the case or to produce all physical
evidence that might be relevant”].) This general principle is constrained by the limitation
that willful suppression of evidence by the government constitutes a denial of due
process. (People v. Noisey (1968) 265 Cal.App.2d 543, 549-550, cited in Jud. Council,
Advisory Comm. on Crim. Jury Instr., “Related Issues” note foll. CALCRIM No. 300.)
Thus, while in criminal matters “[t]here is no compulsion on the prosecution to call any
particular witness or to make any particular tests” or otherwise to fortify its case, this
proviso applies “so long as there is fairly presented to the court the material evidence
bearing upon the charge for which the defendant is on trial.” (People v. Tuthill (1947)
31 Cal.2d 92, 97-98, italics added, overruled on other grounds as noted by People v.
18
Balderas (1985) 41 Cal.3d 144, 182.) Given this due process requirement prohibiting the
suppression of evidence, the trial court in section 1172.6 proceedings may rely on the
prosecutor’s decisions at the evidentiary hearing to present evidence—for example,
evidence that only one defendant personally used a weapon—to be a fair picture of the
material evidence known to the prosecutor.
More specifically, there is a second safeguard expressly enacted by the Legislature
to ensure the trial court can rely on the evidence presented at a section 1172.6 hearing as
a full and fair picture of the material evidence. Subdivision (d)(3) of the statute grants
both the petitioner and the prosecutor the opportunity to present “new or additional
evidence” at the evidentiary hearing. (See Pen. Code, § 1172.6, subd. (d)(3) [each side
“may . . . offer new or additional evidence to meet their respective burdens”]; see
generally Evid. Code, § 550 [burden of producing evidence may shift back and forth
between the parties].) The “clear legislative intent” of subdivision (d)(3)’s broad
provision for admission of evidence is to “allow both parties to locate and introduce
evidence they did not have a chance to present in the original guilt proceeding.” (People
v. Myles (2021) 69 Cal.App.5th 688, 698.) Thus, while “requiring judges to decide the
critical factual questions” at Penal Code section 1172.6 evidentiary hearings, including
“at least in some cases ... on a cold record,” the Legislature has afforded the parties wide
latitude to present evidence as they see fit. (Clements, supra, 75 Cal.App.5th at p. 297.)
“[I]f 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.” (Ibid.)
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The opportunity to present additional evidence may be meaningful to determining
whether or not a petitioner seeking resentencing was the actual killer—or otherwise is
barred from or eligible for relief. As one court has observed, “the primary purpose of
introducing evidence at a section 1172.6 hearing is to determine a petitioner’s role in the
crime of which he or she was convicted.” (People v. Robinson (2024) 106 Cal.App.5th
854, 870 [finding grand jury testimony “assists in accomplishing that purpose”].) The
hearing “is not a trial, criminal prosecution, or subsequent retrial.” (Ibid.) Instead, “[i]t
is a postconviction collateral proceeding, the scope of which is limited to the issues made
relevant by the amended law of murder” (ibid.), which includes whether the defendant
may be ineligible for resentencing relief as the victim’s actual killer. (See, e.g., Strong,
supra, 13 Cal.5th at p. 710; People v. Garcia, supra, 82 Cal.App.5th at p. 973.) “Should
a petitioner wish to challenge th[e] evidence [presented by the prosecutor], section 1172.6
allows him or her to do so by offering new or additional evidence at the evidentiary
hearing.” (Robinson, at p. 870.)
6. SUFFICIENCY OF THE EVIDENCE REVISITED, AND
AFFIRMED
These considerations bring us full circle to the sufficiency of the evidence here.
Whether or not the parties present new evidence in the form of live testimony, the trial
court’s factfinding role and authority remain the same. (See, e.g., Clements, supra,
75 Cal.App.5th at p. 297 [trial judge at a section 1172.6 evidentiary hearing “reviews the
record, hears the testimony [if any], and decides as a factual matter whether the petitioner
committed murder under the current law”].) The trial court’s role and authority include
20
determining whether the defendant is ineligible for resentencing as the victim’s actual
killer. (Garrison, supra, 73 Cal.App.5th at pp. 745, 747-748.) This is a factual question
(Clements, at p. 294), as to which the trial court is entitled to draw all reasonable and
logical inferences from the evidence. (Davis, supra, 107 Cal.App.5th at p. 510; Massie,
supra, 142 Cal.App.4th at pp. 373-374.)
In evaluating the evidence, the trial court was not required to eliminate all possible
doubt before concluding defendant was the victim’s actual killer. (See CALCRIM
No. 220 [“the evidence need not eliminate all possible doubt because everything in life is
open to some possible or imaginary doubt”].) Hence, the prosecutor did not have to
categorically negate every possible scenario in which defendant was not the actual killer,
such as suggested by the defense in Jones that “maybe” both codefendants “had guns,
[and] that the second [one] displayed his . . . and [killed the victim]” with it. (See Jones,
supra, 30 Cal.4th at p. 1120.) There was no evidence of a second weapon here nor of any
weapons use whatsoever by the codefendant. Nor was it necessary to exclude the
theoretical possibility that, having no knife or gun, the codefendant here asphyxiated the
victim, as the killer in Garcia did. (Garcia, supra, 46 Cal.App.5th at p. 152.) There was
no evidence here remotely suggesting as much. Hypothetically, it is of course possible to
speculate that a third, uncharged coperpetrator could have killed Romero in exactly this
fashion or some other way, rather than defendant or his codefendant. But unlike at the
prima facie stage, neither the trial court nor the reviewing court deal in hypotheticals;
instead, only the evidence actually presented by the parties—and reasonable inferences
from the evidence—is determinative.
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Here, in sum, a reasonable fact finder could conclude that defendant’s voluntary
manslaughter plea to resolve murder charges, coupled with the fact that he alone was
charged with use of a weapon in the commission of killing Romero, which he admitted,
meant that he was the victim’s actual killer. In particular, where no evidence was
presented of use of a weapon by anyone but defendant, nor of use of defendant’s knife in
any manner but to kill Romero, nor of any other means or method by which anyone took
Romero’s life, the trial court as fact finder could draw as a reasonable and logical
inference from this evidence that defendant was Romero’s actual killer. (Accord, Young,
supra, 34 Cal.4th at p. 1205; Jones, supra, 30 Cal.4th at p. 1120; Garrison, supra,
73 Cal.App.5th at p. 747.)
7. NO DISAGREEMENT WITH GARRISON
We express no opinion that this was the only conclusion the trier of fact could
reach on the evidence presented. We avoid stating as much not because we disagree with
the Garrison court’s evaluation of the facts there, but only because—once the matter
proceeded beyond the prima facie stage to an evidentiary hearing—the reasonable doubt
standard controls, and that is the fact finder’s province. “[I]t is the [fact finder], not the
appellate court, which must be convinced of . . . guilt beyond a reasonable doubt.”
(Massie, supra, 142 Cal.App.4th at p. 374; see also ibid. [“It is the province of the trier of
fact to decide whether an inference should be drawn and the weight to be accorded the
inference”].) Of course, where the actual killer inference is inescapable and conclusive,
as the Garrison court determined there, the evidence necessarily supports a trial court’s
denial of section 1172.6 resentencing relief. We thus do not disagree with Garrison. We
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simply highlight that the fact that an appellate court could draw different inferences or
conclusions from the evidence in a particular case, or might desire conclusive certainty, is
of no moment. (See Massie, at p. 374 [“An appellate court will not interfere with the
decision of the trier of fact, even if the court believes that a contrary conclusion would
have been reasonable”]; see also, e.g., People v. Bertsch (2026) 19 Cal.5th 183, 1190
[guilt conclusion to a “ ‘moral certainty’ ” or on “ ‘moral evidence’ ” standard not
necessary]; accord, Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [“An instruction cast in
terms of an abiding conviction as to guilt, without reference to moral certainty, correctly
states the government’s burden of proof”].)
8. PEOPLE V. BURGESS DOES NOT AID DEFENDANT
Finally, defendant’s reliance on People v. Burgess (2023) 88 Cal.App.5th 592 is
misplaced. There, the codefendant was the actual killer. The defendant’s felony
participation in the events leading to the victim’s slaying was limited to theft by false
pretenses, which is not a predicate for application of the felony murder rule (§ 189,
subd. (a)), as clarified by changes in case law following the enactment of Senate Bill
No. 1437. (See Burgess, at pp. 603-605.) The evidence therefore did not support the trial
court’s conclusion that the defendant was guilty of murder under current law. (Id. at
pp. 605-606.) As such, the defendant qualified to have his conviction set aside for
resentencing. (§ 1172.6, subd. (d)(3).)
Defendant seeks the same result here, arguing there was no evidence he
participated in a qualifying underlying felony that would expose him to a murder
conviction under a theory of felony murder. (§ 189, subd. (a).) Nor, we observe, was
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there evidence defendant personally harbored malice aforethought, the other valid
alternative for a murder conviction under current law, after the enactment of Senate Bill
No. 1437. (§ 188, subd. (a)(3); see People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
But these considerations are beside the point for two reasons. First, by his plea
defendant was convicted of voluntary manslaughter, not murder. The issue at the
evidentiary hearing was thus “whether to vacate [his] … manslaughter conviction”
(§ 1172.6, subd (d)(1)), not whether the evidence may have supported a felony murder
conviction as defendant suggests by reference to Burgess. Second, as the Supreme Court
explained in Strong, Senate Bill No. 1437 was adopted to afford a potential avenue to
resentencing relief “for those who,” as relevant here, “were n[ot] the actual killers.”
(Strong, supra, 13 Cal.5th at p. 707.) The trial court’s actual killer finding precluded
defendant from relief, and Burgess says nothing to the contrary.
9. HABEAS CLAIM
Defendant also seeks habeas relief, which we consider with his appeal.
Attempting to create a conflict in the record, defendant attests in his habeas filing that he
was not present at the section 1172.6 evidentiary hearing, contrary to the trial court’s
minutes of the hearing. Defendant contends his absence, which he also says he did not
waive, violated his right to be present at the hearing, a “critical stage” in the proceedings
“ ‘akin to a plenary sentencing hearing.’ ” (People v. Quan (2023) 96 Cal.App.5th 524,
532-534; see People v. Basler (2022) 80 Cal.App.5th 46, 51 [defendant has “a
constitutional right to be present at his section [1172.6] evidentiary hearing”]; U.S.
Const., 6th & 14th Amends.; Cal. Const., art. 1, § 15.)
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Defendant’s habeas claim fails. As the People’s informal response correctly points
out, there is nothing in the reporter’s transcript to contradict the court’s minutes, nor
anything else in the trial court record to support defendant’s new absence contention. In
these circumstances, the court’s minutes “import absolute verity unless and until
amended.” (Shellhaas v. Petrolane, Ltd. (1950) 98 Cal.App.2d 171, 174.) “No proof is
admissible to show facts contrary to those which appear in the records and minutes of
judicial proceedings.” (Ibid.; see also Govea v. Superior Court of Merced County (1938)
26 Cal.App.2d 27, 33 [“The petitioner’s remedy, if any, is first, in the trial court, upon
motion for the correction of its minutes. The affidavit of the petitioner cannot be
considered”].) We will therefore deny the petition. 4
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under
section 1172.6 is affirmed.
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
McKINSTER
Acting P. J.
LEE
J.
4 Defendant’s habeas petition is resolved by separate order.
25
