Opinion
B302912
03-16-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CHIA, Defendant and Appellant.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A576188) APPEAL from an order of the Superior Court of Los Angeles County, Stanley Blumenfeld, Judge. Affirmed. Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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Petitioner Michael Chia petitioned for resentencing on his two murder convictions pursuant to Penal Code section 1170.95 (section 1170.95). After a hearing pursuant to section 1170.95, subdivision (d), the trial court denied the petition. On appeal, although Chia challenges the admission of statements he made before the parole board, he fails to demonstrate any prejudice because the trial court concluded that Chia was not eligible for relief under section 1170.95 even without considering this evidence. We also reject Chia's argument that the trial court erred in finding that the prosecution met its burden to demonstrate Chia was ineligible for resentencing. We thus affirm the trial court's order denying Chia's petition for resentencing.
The record contains the following additional names for Michael Chia: Michael Su Chia; Su Te Chia; and Michael Lee Chia.
BACKGROUND
1. Facts underlying Chia's murder convictions
Following Chia's resentencing hearing, the trial court described the facts as follows:
"a. In 1988, Frank Kow arranged to sell two pounds of heroin for $80,000. Unbeknownst to Kow, he made this arrangement with an undercover agent for the Drug Enforcement Administration (DEA), Paul Seema. Agent Seema informed Kow that he was acting as a broker for two 'buyers,' George Montoya and Jose Martinez (two other DEA agents). Kow arranged for the meeting to occur on February 5, 1988, at a restaurant in Monterey Park.
"b. Kow did not plan to sell heroin to the 'buyers.' Rather, he arranged with William Wang and Michael Sun to rob them of the $80,000 and kill them. This was the plan from the outset and continued to its conclusion on February 5, 1988.
"c. On February 5, 1988, Kow met with the agents at the restaurant and informed them that the heroin was located at a house in Pasadena. Kow and the three agents drove to a house in Pasadena. When they arrived, Kow got out of the car, pointed a .45 caliber semi-automatic handgun at the agents and ordered them to raise their hands. Wang, who had been following behind in another car driven by Sun, exited his car, armed with a .38 caliber revolver, and assisted Kow, who demanded the money. After Agent Montoya handed Kow the bag of money, Kow and Wang started shooting, causing the deaths of Agents Montoya and Seema.
"d. Michael Chia, the petitioner, knew of the plan in this case. The evidence is compelling that he knew that the plan was not only to rob the purported drug buyers, but to shoot and kill them as well. In other words, the petitioner knew that murder was one of the twin objectives of this crime.
"e. With full knowledge of the objectives, the petitioner assisted in the robbery-murder plan. The night before the shooting, the petitioner assisted Wang in the delivery of one of the murder weapons: he drove Wang to Kow's apartment knowing of the weapon's intended, deadly use the following day. And according to the surveillance information, the petitioner appeared to be acting as a 'look out' while he awaited the delivery of the weapon and the return of Wang.
"f. On the day of the shooting, knowing the plan was to be carried out that morning, the petitioner drove Wang to Kow's apartment. The petitioner's assistance did not end with the drop off; rather, he continued to participate in the planned robbery-murder as it was being carried out. According to Wang, the petitioner agreed to serve as Wang's 'look out'—i.e., to guard his safety as Wang was executing the plan. Wang testified that the petitioner expressed concern about the dangerousness of the plan and agreed to 'watch [his] back.' In that purported role, the petitioner headed to the restaurant where the meeting was set to take place.
"g. At the restaurant, the petitioner engaged in a flurry of activity. Among other things, he did the following: he drove through the restaurant's parking lot; he returned to the parking lot; he spoke with Wang and Sun outside the restaurant; he walked into the restaurant where Kow was located; he left the restaurant and drove around the parking lot; he left the parking lot and returned after the agents had arrived; and he drove around the parking lot while Kow and the agents were inside the restaurant and while Wang and Sun were surveilling Kow and the agents from outside the restaurant.
"h. The parties do not dispute the actions taken by the petitioner at the restaurant, but rather disagree on the meaning of those actions. According to experienced federal agents who testified at trial, the petitioner's actions at the restaurant were acts of counter-surveillance. According to Wang, the petitioner was there to assist him in the event that he encountered trouble during the robbery-murder. The court finds this disagreement largely immaterial. That is, the petitioner's actions were in furtherance of the plan, whether the actions were in the nature of counter-surveillance or protection—or, as is most likely, both. The petitioner was there to assist—and acted for purposes of assisting—knowing that he was aiding a plan to rob and kill."
2. Chia's 2005 trial
The Ninth Circuit reversed Chia's first judgment of conviction in 2004. (People v. Chia (Oct. 23, 2007, B186803) [nonpub. opn.] (Chia I).) In a 2005 retrial, the jury rejected Chia's defense and convicted him of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery, with true findings on allegations that a principal had been armed with a firearm during the commission of the murders and the robbery. (Id.)
Wang testified during Chia's trial. When asked, "[T]he plan was not just to rip off these drug dealers, but to actually kill them, right?" Wang answered affirmatively. When asked, "[S]o you told the defendant [Chia] that plan and why you were going to be dropping off a gun, right?" Wang answered affirmatively. According to Wang, when Chia drove Wang to Kow's apartment, Chia knew Wang was "dropping off" a gun that "was to be used in killing" the drug dealers. When Chia dropped Wang off on the morning of the murders, the "plan" was for Chia to serve as Wang's "lookout."
Agent Stephen Georges testified at Chia's 2005 trial. Since 1978, Georges worked in intelligence. Georges worked as an undercover agent approximately 800 times and participated in approximately 1,000 search warrants. Georges participated in approximately 3,500 surveillances and in excess of 400 surveillances where he detected countersurveillance being conducted by drug traffickers. Georges opined: "Based on my training and experience and my observations, the defendant Michael Chia in the Black Mitsubishi was performing countersurveillance . . . ."
In the 2005 jury trial, the trial court instructed the jury on aiding and abetting. The court instructed the jury that "[a] person aids and abets the commission and attempted commission of a crime when he or she: [¶] (1) with knowledge of the unlawful purpose of the perpetrator, and [¶] (2) with the intent or purpose of committing or encouraging or facilitating the commission of the crime; and [¶] (3) by act or advice aids, promotes, encourages or instigates the commission of the crime." The court further instructed the jury "[a]n aider and abettor must share in the principal's criminal purpose or intent."
The court also instructed the jury on conspiracy: "A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of robbery, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement." "A member . . . of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy, even though that crime or act was not intended as part of the agreed-upon objective and even though he was not present at the time of the commission of the crime or act."
The trial court also instructed the jury that "[a]n unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of a crime of robbery, is murder of the first degree when the perpetrator had the specific intent to commit that crime.
During closing argument, Chia's counsel argued that Chia did not have the intent to encourage the murders because "he did everything to discourage, over and over again. He tried to discourage his friend, William Wang, from participating." Counsel argued that Chia did not share in the principals' intent.
The jury convicted Chia of two counts of first degree murder, attempted murder and robbery, and conspiracy. With respect to both murders and the attempted murder, the jury found a principal was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a).
The jury found the following overt acts (among others involving only Chia's coconspirators), occurred in furtherance of the conspiracy: "On or about the evening of February 4, 1988, defendant Michael Chia . . . [drove] . . . William Wang to the residence of co-conspirator Frank Kow . . . to deliver a .45-caliber automatic pistol and bullets to be used in the planned robbery and murder . . . ." On February 4, 1988, Wang removed a pistol and bullets from Chia's car "and delivered them to the co-conspirator Frank Kow . . . ." Chia parked his vehicle in the parking lot of the restaurant where Kow met with three undercover drug enforcement administration agents.
3. Appeal from the judgment of conviction
Chia appealed from the judgment of conviction. In the opinion affirming the judgment, we described the facts as follows:
"In July 1987, Group 4 of the DEA's Los Angeles office began an investigation of Frank Kow, a major dealer in heroin imported from Southeast Asia for distribution in the United States. In October, Kow gave a free sample of heroin to a confidential informant. In November, he sold half an ounce of 80 percent pure heroin to an undercover agent, Paul Seema (one of the murder victims). Later, Kow offered two pounds of heroin to Agent Seema for $80,000; Seema had told Kow he was working as a broker for two buyers, undercover agents George Montoya (the other murder victim) and Jose Martinez (the attempted murder victim). On February 4, 1988, Kow told Agent Seema the heroin was ready, that he would meet him and the buyers the next morning at the Tiny Naylor's restaurant in Monterey Park, and that the heroin would be delivered at a residence in Pasadena.
"At 7:30 that evening, Agent Nadine Moorin set up surveillance in a car parked near Kow's apartment, and Agent Leo Ducey set up surveillance from a different vantage point. Shortly after 10:00 p.m., Chia drove up and parked his black Mitsubishi in front of Agent Moorin's car. Chia and Wang got out and opened the trunk; Wang took out a bag containing a box and a .45-caliber handgun which he put in his pants, and Wang then walked to Kow's upstairs apartment. Agents Moorin and Ducey both saw Chia stand next to the Mitsubishi for a few minutes, looking up and down the street, and both agents believed Chia was acting as a 'look-out' for Wang. As Agent Moorin watched, Chia then followed Wang into Kow's apartment building, went upstairs to a landing outside Kow's apartment, and walked along the landing, looking back and forth (leading Agent Moorin to believe Chia was continuing his role as look-out for Wang).
"Shortly thereafter, Wang came out of Kow's apartment without the box and left with Chia in the Mitsubishi. Agent Moorin broadcast a description of the men and the car, including the license plate number, and Agents Stephen Georges and Ducey followed the Mitsubishi until it stopped on Atlantic Boulevard. The agents drove past the Mitsubishi, then turned around, by which time the Mitsubishi was parked, unoccupied, in front of the 8000 Club (on the other side of the street from where it had stopped a moment earlier). As the agents watched, a gray Honda parked behind the Mitsubishi, and Chia got out of the Honda, then entered the club. After awhile, Chia and Wang came out of the club, got into the Honda, and drove away. Agents Georges and Ducey stayed to watch the Mitsubishi, but Agent Georges later revised the surveillance plan to include Chia and Wang.
"The next morning (February 5), Agent Georges and other DEA agents prepared for the sale by counting out $80,000 for the 'buy money,' setting up Agent Martinez with a . . . transmitter to record any conversations during the transaction (the transmitter later failed), and setting up Agent Georges's Volvo as the undercover car (because it did not have a police radio). Agents Moorin and Ray Berndt set up surveillance from different vantage points at Kow's apartment, and at about 11:25 a.m. saw Chia walk out of Kow's apartment complex, drive away in the Mitsubishi, and turn onto Atlantic Boulevard, heading in the direction of Tiny Naylor's. Agent Ducey started to follow but lost the Mitsubishi in traffic and went on to Tiny Naylor's.
"Meanwhile, at about 11:00 a.m., Agent Ralph Partridge set up surveillance in a parking lot on Atlantic Boulevard, across the street from Tiny Naylor's. Agent Partridge saw Kow standing by the restaurant, then saw Chia's Mitsubishi drive through the Tiny Naylor's parking lot. Agent Ducey arrived, parked near Agent Partridge, and saw the Mitsubishi. Agent Georges arrived, parked near Agents Partridge and Ducey, and saw a red Nissan (with Wang as a passenger) circle through the Tiny Naylor's parking lot (driving in the wrong direction). The Nissan parked in the lot, and Chia's Mitsubishi then entered the lot and parked a few spaces away from the Nissan. Sun and Wang got out of the Nissan and walked to the front of the car. Chia got out of his car and stood talking to Sun and Wang for about three minutes, then walked toward the restaurant while Wang and Sun got back into the Nissan. Chia walked within three to five feet of Kow, then entered the restaurant. Wang and Sun drove out of the parking lot.
"Chia came out of the restaurant about 10 minutes later, again walked within a few feet of Kow, got back into his Mitsubishi, then drove through the parking lot against the flow of traffic. The Nissan returned to the lot and parked. At about this time, Agents Martinez, Montoya, and Seema entered the parking lot in the Volvo. Agent Martinez parked the car and all three agents got out. Agent Montoya took the car keys and got into the driver's seat, and Agents Seema and Martinez walked to the restaurant, met Kow, then went into the restaurant and sat in a booth. At about the time the agents entered the restaurant, Chia parked the Mitsubishi near the Nissan.
"In the restaurant, Kow told Agents Martinez and Seema that the heroin was ready and that it was being held in a 'stash house' in Pasadena. The agents agreed to drive with Kow to the house. Meanwhile, the Nissan circled the parking lot against the flow of traffic, then parked close to the Volvo. Wang got out of the Nissan and walked to a pay phone, dialed a number, hung up, waited a minute or two, then walked back to the Nissan. Inside the restaurant, Kow received a page.
"As Wang walked back toward the Nissan, Chia pulled the Mitsubishi out of its parking space, drove through the lot against the flow of traffic, then left the parking lot, heading south on Atlantic. Wang got into the Nissan, and Sun drove the Nissan through the lot against the flow of traffic, then pulled behind a tree in another part of the parking lot. Wang got out of the car and watched as Kow and Agents Seema and Martinez came out of the restaurant and returned to the Volvo. Agent Montoya got into the back seat on the driver's side, Kow into the back seat on the passenger's side, and Agent Seema sat in the front passenger seat. Kow said he wanted to see the money, and Agent Martinez (who was in the driver's seat) got out of the car, opened the trunk, retrieved a leather bag, and handed it to Agent Montoya. Kow looked into the bag at the money and appeared satisfied.
"While the agents were with Kow in the parking lot, Chia drove the Mitsubishi behind Agent Georges's car in the lot across the street from Tiny Naylor's, passed alongside Agent Georges's car, then crossed the street into the Tiny Naylor's lot, drove against the flow of traffic by the Volvo, then made a series of turns and parked nearby, facing the Volvo. In the Volvo, Kow told Agent Martinez to drive north on Atlantic, which he did (with Agent Georges and other DEA agents following). Wang got back into the Nissan and sped through the parking lot to catch up to the Volvo. Agent Partridge followed the Nissan.
"Agent Martinez drove north into Pasadena, where Kow told him to turn onto Marengo and to stop in front of a house. As Agent Martinez parked, Agent Ducey pulled his car into the driveway of a nearby residence. Kow said he was going to get the 'stuff,' got out of the Volvo, stepped onto the parkway, then turned and pointed a .45-caliber semi-automatic handgun at Agents Seema and Martinez. Kow told the three agents to put up their hands, at which point the Nissan pulled up behind the Volvo and Wang got out, walked up next to Kow, and pulled out a .38-special caliber blue-steel Colt revolver. Kow demanded the money. Agent Montoya picked up the leather bag and handed it to Kow, and Kow told the agents to lock their doors. Kow and Wang looked at each other and then began shooting at the agents.
"Agent Martinez was able to get out of the driver's door, draw his gun, and run for cover. Wang and Kow ran to the Nissan and Sun began driving away. Meanwhile, Agent Ducey had seen a signal from the Volvo (one of the agent's fingertips stuck through the sunroof) that a robbery was in progress and he had called for backup. When the shooting started, Agent Ducey pulled out of the driveway and intentionally crashed into the Nissan as it started to drive away. Kow shot at Agent Ducey and Agent Martinez shot at Sun. Agent Georges drove head-on into the Nissan. A chase ensued, during which Kow and Sun were shot and killed.
"Shortly after noon, Los Angeles County Deputy Sheriff Robert Alcaraz, having heard a radio call to be on the lookout for the Mitsubishi in the area of Tiny Naylor's, saw the car as it was about to turn left onto Atlantic, followed it, and called for backup. When Chia stopped at a red light, Deputy Alcaraz (in uniform and driving a marked patrol car) stopped behind Chia, partially opened his door, and pointed his gun in Chia's direction. Chia got out of his car, looked at the deputy, then raised his hands as though gesturing, 'What's up?' Deputy Alcaraz told Chia to stay where he was, but Chia got back into his car. Other officers arrived at the scene and Chia (along with his two passengers, Linda Cheng and Jimmy Sun) were ordered out of the Mitsubishi.
"From Chia's Mitsubishi, Pasadena police officers recovered a magazine for a .45-caliber semi-automatic handgun, a 50-round box of .45-caliber hollow-point ammunition (brand name P.M.C.) with seven rounds missing, three sets of handcuffs (two still in their original boxes), and three full-face new ski masks (with price tags still attached). Pasadena Police Department Detective Lionel Salgado interviewed Chia four times after he was taken into custody." (Chia I, supra, B186803, fn. omitted.)
"A gun shop owner placed Chia . . . in his shop two or three times during December 1987 and January 1988, and testified that one of Chia's companions had purchased at least one box of Hornady .45-caliber hollow point ammunition. A firearms expert testified that the bullet recovered from Agent Montoya's body was a .45-caliber Hornady hollow point." (Chia I, supra, B186803.)
"[T]he People presented the eyewitness testimony of DEA agents Moorin, Georges, Partridge, Ducey, Berndt, and Martinez, Los Angeles Sheriffs Deputies Verdugo and Alcaraz, and Pasadena Police Officers Thomas and Salgado, which established the facts summarized above. In addition, Agents Georges, Partridge, and Ducey testified about their training and expertise in surveillance and counter-surveillance techniques and drug deals, and they opined that Chia's activities at Tiny Naylor's—driving through the parking lot, parking, leaving, returning, parking—were consistent with counter-surveillance techniques." (Chia I, supra, B186803.)
In the appeal from the judgment of conviction, this court rejected Chia's argument that "the evidence is insufficient to support the jury's finding that he aided and abetted the robbery, murders, and attempted murder because, he claims, the evidence does not show that he acted with the intent to encourage or facilitate the crimes as required by People v. Beeman (1984) 35 Cal.3d 547, 560.)" (Chia I, supra, B186803.) We concluded that substantial evidence supported "the jury's finding that Chia intended to encourage and facilitate" the murders. (Ibid.) "It is undisputed (and conceded by Chia) that he knew his cohorts were going to rob and murder the 'drug dealers' (that is, the DEA agents). With that knowledge, Chia went with Kow to purchase the ammunition used to murder Agent Montoya; drove Wang to Kow's apartment where, with Chia's knowledge, Wang delivered one of the guns used in the murders; drove Wang to Kow's apartment on the day of the crimes, knowing Wang and Kow were on their way to commit the robbery and murders; and acted as the lookout at Tiny Naylor's. Moreover, at the time of his arrest, Chia had in his possession items that could have been used in the robbery (a magazine for a .45-caliber weapon, ammunition, handcuffs and ski masks)." (Ibid.)
4. Chia's petition for resentencing
In 2019, Chia filed a petition for resentencing. Chia alleged that he could not now be convicted of first or second degree murder because of changes made to Penal Code sections 188 and 189, effective January 1, 2019. The court appointed counsel to represent Chia. The parties stipulated that Chia established a prima facie case and the trial court issued an order to show cause and held a resentencing hearing. The parties also agreed that at the order to show cause hearing, the court would consider the record from defendant's trial and would make credibility determinations and reasonable inferences from the record. The parties disagreed whether statements Chia made at his 2016 parole hearing were admissible at the order to show cause hearing.
5. November 2016 parole hearing
At a parole hearing held November 16, 2016, the parole officer explained that the purpose of the hearing was to consider Chia's suitability for parole.
Chia testified to all of the following after swearing that he would tell the truth. Chia did not formally join a gang but hung out with a lot of gang members. Chia did not know Frank Kow. He met Michael Sun once at a night club. Chia was friends with William Wang. Wang told Chia that Kow planned to rob and kill drug dealers. Chia tried to convince Wang not to participate in the crime. Chia thought he would follow the car in which Wang rode so that he would be available to pick up Wang. Chia tried to follow them but lost them.
Chia said he drove Wang knowing that Wang had a gun and ammunition. Chia also had handcuffs and ski masks in his car. Chia was willing to do whatever Wang asked him to do. Chia agreed to "support" Wang and "to look after him, to make sure he's safe."
Chia knew that Wang and others planned a "murder/robbery." Chia "didn't care about people dying." At the time Chia believed $60,000 was involved, but he later learned it was more. Chia "expected" Wang to give him "some money." 6. Section 1170.95 , subdivision (d)(3) hearing
The trial court described the procedure for the section 1170.95, subdivision (d)(3) hearing as follows: "[T]his court is going to be considering witness testimony in the trial . . . as though it were presented before me live. [¶] The significance of that being is that the court is being asked to make essentially credibility determinations and to draw reasonable inferences from the testimony." Both parties agreed with that procedure.
Only one witness, attorney Michael Beckman, testified at Chia's section 1170.95 subdivision (d) hearing. Since 2005, Beckman represented inmates at parole hearings. Beckman testified that "the key issues in parole hearings . . . are whether the inmate has insight into the causative factors underlying the crime and his prior criminality, whether or not he takes full responsibility for his role in the crime, whether he has genuine remorse for the crime, and then whether he has shown evidence of change since the crime." An inmate who accepts responsibility for a crime is more likely to be granted parole. "[T]he likelihood of being granted parole decreases substantially with every less bit of responsibility the inmate takes for the crime."
The entire trial transcript as well as this court's opinion from the judgment of conviction were admitted as exhibits. The transcript from the parole board hearing also was admitted as an exhibit. The parties agreed that the trial court was "being asked to make essentially credibility determinations and to draw reasonable inferences from the testimony."
Both sides presented argument to the trial court. The People stated that it was their burden "to prove beyond a reasonable doubt that petitioner is ineligible for resentencing." The People also analogized the trial court's role to the role it takes in deciding a motion pursuant to Penal Code section 1118, but inconsistent with that analogy, the People acknowledged the trial court could make credibility determinations.
The People argued Chia was guilty beyond a reasonable doubt of murder under current law. The People further argued both that Chia aided and abetted the murders and that he was guilty of felony murder as a major participant who acted with reckless indifference to human life. The prosecutor contended that at the time Chia aided and abetted, he had the intent to kill.
Defense counsel argued the "most egregious" thing Chia did was to give his friend Wang a ride. "So what did Michael Chia do? He gave William Wang a ride twice: the night before with the gun and the ammo and the day of. And that's pretty much it." Counsel further argued that Chia naively believed he could rescue Wang if Wang needed rescuing. Counsel argued that even though Chia heard there would be a murder, he did not believe it. Counsel reiterated, "Chia didn't believe there was going to be a killing . . . ." Counsel conceded that if Chia supplied the weapon to the killers "with an understanding that that weapon then was going to be used for the murder," Chia would be a direct aider and abettor.
The court asked defense counsel the following question: "Mr. Wang said on numerous occasions that he told your client that, in fact, the plan was not just to rob but to kill. He was about as clear on that point as you can be. [¶] And your client undisputedly, as I understand it, assisted in the delivery of one of the murder weapons. And he dropped off Mr. Wang at Mr. Kow's apartment on the day of the robbery and murder. He went to the restaurant and the like." In response, Chia's counsel conceded there were acts of aiding and abetting but argued that Chia did not have the intent to kill.
7. The trial court denied Chia's petition for resentencing
In its final order the court explained that Chia was not entitled to resentencing for two separate reasons. First, Chia directly aided and abetted the murders. Second, Chia was a major participant in the robbery and acted with reckless indifference to human life. "The petitioner did not simply have reason to suspect that the robbery might lead to murder; he knew that the plan was to murder in the course of the robbery. He even assisted in the delivery of one of the murder weapons."
The court ultimately concluded, "Under the law as it exists today in California, the petitioner could be convicted of murder on both theories. And to the extent that this court sits as a trier of fact, it finds that the prosecution has demonstrated beyond a reasonable doubt that the petitioner is indeed guilty of multiple murder under these theories." The court noted it "would reach this conclusion even in the absence of the petitioner's statements at the parole hearing." The trial court found Chia did not make statements before the parole board "that are inconsistent with what the court discerned from the trial transcript."
With respect to aiding and abetting, the trial court found "the petitioner directly aided and abetted the murders in this case." "Here, the express design of the scheme in which the petitioner assisted was to kill in the commission of the robbery. At a minimum, the petitioner knew that if the scheme were successful, death would result. And yet he acted, and death occurred as planned."
With respect to being a major participant, the court explained that Chia "assisted in delivering one of the murder weapons knowing its intended use and purpose, brought Wang to Kow's apartment on the day of the murder, and then supplied counter-surveillance and/or protection during the course of the deadly scheme. Moreover, the petitioner had the ability to prevent the murders in this case, and yet he chose a different course. It is not enough to say that the petitioner tried to dissuade Wang from participating in the scheme, even if the court were to accept the petitioner's claimed efforts. It is what the petitioner did and what he failed to do that matter when he became aware that his claimed effort to dissuade had fallen on deaf ears. What he did was to assist in the scheme; what he failed to do is to alert the authorities to thwart the deadly plan. And he had every reason to believe the plan would be deadly: death was a stated objective; and, as the petitioner knew, the participants (Kow and Wang) were fully committed to the plan and capable of carrying it out."
Turning to reckless indifference, the trial court explained: "That the petitioner acted with reckless indifference to human life is plain from the facts of this case. The petitioner did not simply have reason to suspect that the robbery might lead to murder; he knew that the plan was to murder in the course of the robbery. He even assisted in the delivery of one of the murder weapons." The court also found that Chia's statements at the parole board were voluntary.
We deem Chia's premature notice of appeal filed before the final order denying his petition for resentencing to be timely filed. (Cal. Rules of Court, rule 8.104(d)(2) ["The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment."].)
DISCUSSION
Section 1170.95 was enacted to implement changes in the murder laws made by Senate Bill No. 1437. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 249.) The purpose was to " 'more equitably sentence offenders in accordance with their involvement in homicides.' " (People v. Gentile (2020) 10 Cal.5th 830, 839 (Gentile).) "Prior to the enactment of Senate Bill No. 1437, . . . both the felony-murder rule and the natural and probable consequences doctrine provided theories under which a defendant could be found guilty of murder without proof of malice." (People v. Lee (2020) 49 Cal.App.5th 254, 260, review granted July 15, 2020, S262459.) Senate Bill No. 1437 amended the law to " 'require that a principal act with express or implied malice and by amending [Penal Code] section 189 to state that a person can only be liable for felony murder if (1) the "person was the actual killer"; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." [Citation.]' " (People v. Tarkington (2020) 49 Cal.App.5th 892, 896, review granted Aug. 12, 2020, S263219.)
Here, the parties stipulated to a prima facie case, and after a hearing, the trial court found Chia directly aided and abetted the murders and acted as major participant with reckless indifference to human life. As we shall explain, Chia demonstrates no error in the trial court's conclusion that Chia directly aided and abetted the murders. Therefore, Chia was not entitled to resentencing. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted March 18, 2020, S260598 [no change to law "regarding the criminal liability of direct aiders and abettors of murder].) We need not decide whether Chia also acted as a major participant with reckless indifference to human life. A. Assuming Error Arguendo, Admission of Chia's Statements Before the Parole Board Does Not Require the Reversal of the Trial Court's Order
The trial court concluded Chia "directly aided and abetted the murders in this case." It further concluded that it would reach the same conclusion "even in the absence of the petitioner's statements at the parole hearing." Chia argues that the trial court erred in admitting his statements from his parole suitability hearing. Chia contends he was prejudiced by those statements because even though the trial court expressly stated it would reach the same conclusion absent Chia's statements before the parole board, "it is impossible to parse out what effect those statement actually had." According to Chia, "[o]nce the cat was out of the bag, it would have been exceedingly difficult for the court to undo its knowledge of what appellant said."
Chia's argument is based on an incorrect premise that the trial court was unable to compartmentalize the evidence from the parole suitability hearing when analyzing whether Chia was a direct aider and abettor. Chia's argument conflicts with the general presumption that a jury may disregard improper testimony. (People v. Allen (1978) 77 Cal.App.3d 924, 935; see also People v. Franklin (2016) 248 Cal.App.4th 938, 955 [appropriate admonition can generally cure prejudice of improper statement].) "It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.' " (Allen, at p. 935.)
Here, the general presumption concerning juries applies with equal or greater force to a trial court, skilled in considering only proper evidence. Chia cites no legal support for his argument, which also conflicts with the concessions he made in the trial court. At the section 1170.95, subdivision (d)(3) hearing, the trial court stated, "[O]f course, if I conclude that it is not admissible, you could . . . rest assured that I will compartmentalize and not consider it." Chia's counsel responded, "I have the utmost confidence." Chia's counsel later confirmed that "unequivocally" the trial court was "capable of unringing that bell [from having read the statement before the parole board]." Simply put, the record does not support Chia's concern that the trial court would not have been able to consider Chia's aiding and abetting liability with and without Chia's testimony at his parole suitability hearing. The trial court concluded that the prosecution met its burden with and without the parole hearing evidence; Chia thus cannot demonstrate prejudice from the admission of that evidence even if arguendo its admission were error. We conclude that this purported error was harmless under any standard of prejudice. (Chapman v. California (1976) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
In his reply brief, Chia argues that the case should be remanded because the Los Angeles County District Attorney's Office no longer seeks to admit transcripts of a parole hearing in a section 1170.95 proceeding. We need not decide whether remand is available based on an alleged change in the District Attorney Office's procedure. As we have explained, any asserted error in admitting in the order to show cause hearing Chia's statements at his parole suitability hearing was harmless.
B. Chia Demonstrates No Error in the Trial Court's Finding that The Prosecution Proved Beyond a Reasonable Doubt That He Was Not Entitled to Resentencing
Chia argues that the evidence does not support the conclusion that he harbored the intent to kill necessary for direct aiding and abetting liability. According to Chia, the prosecution did not prove that element beyond a reasonable doubt. "[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.' " (Gentile, supra, 10 Cal.5th at p. 843.)
We analyze Chia's argument under two different standards because there is a split of authority regarding the trial court's role at the section 1170.95, subdivision (d)(3) hearing. Chia fails to show error under either standard. In the final section, we explain why we reject Chia's argument that this court should serve as a trier of fact and weigh the credibility of the witnesses presented in Chia's 2005 trial.
1. Applying People v. Duke (2020) 55 Cal.App.5th 113 (Duke), review granted January 13, 2021, S265309, Chia Demonstrates No Error
In Duke, supra, 55 Cal.App.5th 113, we considered the nature of the prosecution's burden at the evidentiary hearing. We held that at a section 1170.95, subdivision (d) hearing, the trial court must determine "beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law—in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder." (Duke, at p. 123.) We further held that this standard "is essentially identical to the standard of substantial evidence, in which the reviewing court asks ' "whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. . . . [¶] . . ." [Citation.]' [Citation.]" (Ibid.)
We need not determine whether the trial court applied the correct standard under Duke, i.e., whether the trial court reviewed the record to determine whether a rationale trier of fact could determine Chia was guilty beyond a reasonable doubt. This court has already held that substantial evidence supported that Chia intended to kill. In his direct appeal from the judgment of conviction, we rejected Chia's argument that the evidence was insufficient to support the jury's finding that he harbored the requisite intent for aiding and abetting. (Chia I, supra, B186803.) Thus, we have already concluded a rationale trier of fact could find Chia guilty beyond a reasonable doubt. At his section 1170.95 hearing, Chia offered no new evidence concerning his intent. As indicated in our recitation of our prior opinion above, substantial evidence supported the conclusion that Chia intended to kill when he aided and abetted the murders.
2. Applying People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez), review granted March 10, 2021, S266652, Chia Demonstrates No Error
Other courts have rejected Duke's holding that at a section 1170.95, subdivision (d) hearing, the trial court applies a standard akin to substantial evidence. For example, Rodriguez reasoned that the trial court acts as an "independent fact finder and determines whether the evidence establishes a petitioner would be guilty of murder under amended [Penal Code] sections 188 and 189 and is thus ineligible for resentencing under section 1170.95, subdivision (d)(3)." (Rodriguez, supra, 58 Cal.App.5th at pp. 243-244, review granted; see also People v. Duchine (2021) 60 Cal.App.5th 798, 813 [following Rodriguez]; People v. Clements (2021) 60 Cal.App.5th 597, 615 ["[T]he plain text of the statute requires the trial judge to sit as a fact finder, not as a quasi-appellate court."]; People v. Lopez (2020) 56 Cal.App.5th 936, 949, review granted Feb. 10, 2021 S265974 [disagreeing with Duke].)
The trial court here applied this independent factfinder standard, concluding that "to the extent that this court sits as a trier of fact, it finds that the prosecution has demonstrated beyond a reasonable doubt that the petitioner is indeed guilty of multiple murder[s] . . . ."
When a trial court applies the independent factfinder standard, this court is required to review the trial court's factual findings under "a deferential standard of review in determining whether the evidence supports any of the superior court's factual findings." (Rodriguez, supra, 58 Cal.App.5th at p. 238, review granted.) The trial court found that Chia aided and abetted the murders by promising to assist Wang and by engaging in counter-surveillance activities. As Chia's counsel acknowledged at the section 1170.95 hearing, Chia aided and abetted the murders. The disputed issue was whether Chia shared his confederates' intent to kill in doing so.
Circumstantial evidence supported the trial court's inference that Chia harbored the intent to kill when he aided and abetted the murders. When he agreed to assist, Chia knew that Wang and his confederates intended to kill the DEA agents who were posing as drug dealers. Chia engaged in planning activity prior to the killings, thus supporting the inference he also intended to kill the purported drug dealers. Chia engaged in countersurveillance at the time of the killings further supporting the inference. Engaging in multiple acts of assistance over multiple days to ensure his confederates would be successful in killing the purported drug dealers (undercover agents) all support the inference that he shared his confederates' intent to kill. A reasonable trier of fact could conclude that Chia acted "with 'knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends.' " (Gentile, supra, 10 Cal.5th at p. 843.)
3. Chia's Argument that This Court Should Review the Record and Itself Make Credibility Determinations Anew Lacks Merit
Chia additionally argues that this court should review the record and "make its own factual findings . . . ." Chia argues that if this court credits the defense evidence, then the prosecution cannot demonstrate that Chia intended to facilitate a murder. Chia correctly points out that in the context of evaluating a claim for ineffective assistance of counsel, a reviewing court may review the record de novo to decide the mixed question of fact and law. (See, e.g., In re Thomas (2006) 37 Cal.4th 1249, 1256-1257.) The standard of review on a claim of ineffective assistance of counsel does not apply here and Chia cites no authority to the contrary. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043 ["It is axiomatic that cases are not authority for propositions that are not considered."].)
Chia cites no authority supporting the proposition that after an 1170.95 hearing, the Court of Appeal reviews the record and makes its own factual findings. Section 1170.95 does not authorize a reviewing court to act as a trier of fact. Both the jury and the trial court at the resentencing hearing rejected Chia's defense.
DISPOSITION
The order denying Chia's petition for resentencing is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------