Opinion
D079493
09-08-2022
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE FOREMAN, Defendant and Appellant.
Theresa Osterman Stevenson, 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, Christopher P. Beesley, Supervising Deputy Attorney General, and Michael D. Butera, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernadino County, No. FV1023703-1 Joseph B. Widman, Judge. Affirmed.
Theresa Osterman Stevenson, 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, Christopher P. Beesley, Supervising Deputy Attorney General, and Michael D. Butera, Deputy Attorney General, for Plaintiff and Respondent.
BUCHANAN, J.
In a prior appeal, we affirmed a judgment against Daniel Lee Foreman convicting him of first degree murder, assault with a firearm, attempted residential robbery, residential burglary, and active participation in a street gang, as well as true findings on enhancement allegations that Foreman personally used a firearm and acted to benefit a gang. (People v. Foreman (Sept. 23, 2010, D055887) [nonpub. opn.].)
In 2020, Foreman filed a petition to vacate his murder conviction and for resentencing pursuant to former Penal Code section 1170.95 (now section 1172.6) after Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) amended California law to limit the scope of the felony-murder rule and eliminate liability for murder under the natural and probable consequences doctrine. After holding an evidentiary hearing on Foreman's petition, the trial court concluded that he could still be convicted for murder under the law as amended and thus denied the petition.
Foreman brought his petition under former Penal Code section 1170.95, which was amended effective January 1, 2022 and then renumbered as Penal Code section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We refer to the subject statute by its current number throughout this opinion. All further statutory references are to the Penal Code.
Foreman now contends that the order denying his petition must be vacated and the case remanded with instructions to the trial court to either grant the petition or conduct a further evidentiary hearing. Foreman argues remand is necessary for two reasons: (1) it is unclear whether the trial court understood and properly fulfilled its role as independent fact finder in determining that the prosecution proved beyond a reasonable doubt that Foreman was guilty of murder; and (2) the record does not support a finding beyond a reasonable doubt that Foreman was guilty of murder. We reject both contentions and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence from Underlying Trial
James Gavin, Thomas R., and Jessica B., lived together at a residence in San Bernardino County. In July 2004, Gavin and Jessica were shot at the residence during a home invasion. Gavin, who was shot in the back, died. Jessica, who was shot in the arm, survived.
During the prosecution's case, Thomas and Jessica testified about the events leading up to the shooting. While Thomas was at home talking with Gavin, two men Thomas did not know entered their residence. They described one of the men as taller (approximately between 6'0" and 6'2") with lighter-colored hair, a slender build, and a bandana covering part of his face, while the other was shorter (approximately between 5'6" and 5'8") with dark hair. The taller man, holding a gun, asked for someone named John. Thomas responded that he did not know who the man was asking for.
Jessica then arrived home. As she opened the door and started to step inside, she heard one or both of the two men yelling at Gavin to" '[g]et down on the floor.'" One of the men was pointing a gun at Jessica. Gavin pushed Jessica back outside and ran out the door. As Gavin did so, he was shot in the back. The bullet went through Gavin's lung and heart, exited his chest, and hit Jessica in the arm.
The man who fired the gun then told Thomas to tell "John":" 'You're not going to be able to get over on us this way.'" The two men then left the home. While she was outside lying on the ground, Jessica heard arguing and heard someone say," 'What did you have to do that for?'" She then heard a vehicle speed away from the residence.
Foreman and Ryan M., both members of the Vagos Motorcycle Gang, were charged with the shooting. After reaching a plea agreement, Ryan testified at Foreman's trial on behalf of the prosecution. Ryan testified that he and Foreman went to the residence in Foreman's truck to take drugs and money from a man named John H.; they were both carrying guns; Ryan's gun was unloaded; Foreman told the men at the residence not to move; and Foreman fired his gun as Gavin pushed Jessica out the door. After firing the gun, Foreman stated," 'Tell John that was for him.'" The two men ran from the house and Ryan said to Foreman," 'What the fuck'" or something to that effect. The two then left in Foreman's truck. Ryan was upset that Foreman had pulled the trigger, and he did not speak with him for months afterward.
The prosecution submitted into evidence an audio recording of a conversation that occurred a few days after the shooting between Foreman and an undercover informant (Ashley W.) who had infiltrated the Vagos gang. In the recorded conversation, Foreman made statements indicating that he shot Gavin and Jessica, including the following exchange:
"[Ashley]: You guys leave any shit out there?
"Foreman: No.
"[Ashley]: Nothing?
"Foreman: Nothing, no, nothing what so ever, what so ever, so ever brother. They don't know me or the person I was with. They couldn't see cause it was dark, we were covered up, gloves, long sleeves, shades, ya know, brother it wasn't my first rodeo you know what I mean?
"[Ashley]: Yeah.
"Foreman: And then you know what's fucked up is Ryan said 'why did you shoot him?' I said, I operate like a machine dude when I'm doing business.
"[Ashley]: Yeah.
"Foreman: I've been doing this shit for so long. ([I]naudible) like pffffff, nobody else move, put your head down, you know what I mean?
"[Ashley]: It was just one?
"Foreman: Yeah. I just shot him once.
"[Ashley]: Good shot.
"Foreman: It went through him and hit his girlfriend's arm.
"[Ashley]: Fuck bro.
"Foreman: Yeah man.
"[Ashley]: Trip, huh?
"Foreman: When I said nobody move, I looked at everybody else and said quit looking at me (inaudible).
"[Ashley]: Did you ever get anything or no?
"Foreman: No.
"[Ashley]: You guys had to bail after that?
"Foreman: That's what I said just my fucking luck I didn't get shit. It's just fucked, it's just fucked man. But you know, it's all gravy. I want to go out and have some fucking beers man."
Another prosecution witness, Gerry W., testified that when he was at Foreman's home after the shooting, Foreman read a newspaper article about the shooting. At some point Foreman commented," 'Maybe someone will understand when you're told not to move, you don't move.' "
In defense, Foreman called Cameron P. to the stand, who testified that he was at Foreman's home with Gerry, and Foreman did not make the statement claimed by Gerry. Cameron also provided an alibi for Foreman, testifying that he and Foreman were at Foreman's home installing a stereo in Shannon M.'s car from approximately 11:00 a.m. to midnight on the day of the shooting. Shannon testified that Foreman and Cameron had been working on her car stereo that day, that she had been at Foreman's house off and on, and that each time she returned, the two men were still there working on her stereo. The defense also recalled Jessica to the stand, who repeated her earlier testimony that the shooter's eyes were blue and did not look the same as Foreman's hazel eyes.
In rebuttal on behalf of the prosecution, Sergeant Donald M. testified that during a police interview, Foreman stated that he was at home on the day of the shooting and there were numerous people in and out of his home that day, but he could not think of anyone who could "vouch" for him. Foreman did not mention Shannon or Cameron as alibi witnesses, nor did he mention installing a car stereo.
Sergeant M. also testified that Foreman was approximately six feet two inches tall and Ryan stood about five feet 10 inches tall. When he saw them in 2004, Foreman was "thin," with light colored hair and Ryan was a "thick" guy weighing over 200 pounds.
B. Convictions and Sentence
A jury convicted Foreman of first degree murder, assault with a firearm, attempted residential robbery, residential burglary, and active participation in a street gang. The jury also made true findings on enhancement allegations that Foreman personally used a firearm and that he acted to benefit a gang. The jury deadlocked on (and the trial court subsequently declared a mistrial on and dismissed) an attempted murder charge as to Jessica and various other enhancements, including a special allegation that Foreman personally and intentionally discharged a firearm.
After the jury reached its guilty verdicts, Foreman filed a motion for disclosure of the sealed juror personal identifying information for purposes of investigating four claims of juror misconduct. He also filed a motion for a new trial based on the alleged juror misconduct and his counsel's failure to advise him that he had an absolute right to testify even if contrary to counsel's advice. The trial court heard argument from defense counsel and the prosecution and then denied the motions.
In April 2009, the trial court sentenced Foreman to an indeterminate term of 25 years to life for the murder and a consecutive determinate term of 28 years, four months (consisting of six years for burglary, one year for assault with a firearm, eight months for attempted robbery, eight months for participation in a gang, 10 years for a gang enhancement, and 10 years for a personal gun use enhancement) in state prison.
C. Prior Appeal
Foreman appealed the judgment entered against him based on the trial court's denial of his motion for disclosure of juror identifying information and for a new trial based on alleged juror misconduct and ineffective assistance of counsel. In September 2010, we affirmed the trial court's judgment, finding no reversible error. (People v. Foreman, supra, D055887.)
D. Petitions for Resentencing and Evidentiary Hearing
In March 2020, Foreman filed a pro per petition to vacate his murder conviction and for resentencing pursuant to section 1172.6. The trial court denied Foreman's petition without prejudice to refile based on its finding that he had not made a prima facie showing. In December 2020, Foreman filed a second petition, this time through counsel, for resentencing pursuant to section 1172.6. The trial court found that Foreman had established a prima facie case for relief and issued an order to show cause.
At the evidentiary hearing, the parties agreed to proceed based on the evidence from trial and did not present additional evidence. The trial court issued a tentative ruling denying Foreman's petition, finding him ineligible for relief under section 1172.6 based on its conclusion that the evidence proved beyond a reasonable doubt that Foreman "was the actual killer, the person who fired the fatal shot." More specifically, the court found that Foreman could still be convicted under the law as recently amended based on either the theory that "he was the actual killer who killed with malice aforethought" or that, "in the commission of the designated felony, [namely] first degree robbery or first degree residential burglary, the defendant was the actual killer." The court's finding that Foreman was the actual killer was "based primarily on the testimony of Ryan M[.] as well as the audio recorded conversation of Ashley W[.] and the defendant," along with "other evidence which was consistent with that during the course of the trial." The court rejected Foreman's contention that the hung jury as to whether he personally discharged a firearm precluded the conclusion that Foreman was the shooter, finding that this fact was "not dispositive" and did not amount to an acquittal.
The trial court made these initial findings during the August 4, 2021 hearing and then made its tentative decision final at the August 25, 2021 hearing.
Defense counsel argued that conflicting evidence, some of which indicated that Foreman was not the shooter, precluded a finding that Foreman was the actual killer. Such evidence included testimony from two witnesses providing an alibi for Foreman, testimony from another witness present at the scene stating that his eyes did not match those of the shooter, and varying descriptions of the shooter that did not match up with each other. Defense counsel also contended that the jury's inability to reach a decision on the personal and intentional discharge of a firearm allegation, and its subsequent dismissal at the request of the prosecution, was dispositive of the fact that the evidence did not prove beyond a reasonable doubt that Foreman fired the shot that killed Gavin.
At the final hearing on Foreman's petition, the court adopted its tentative and supplemented it to clarify that the court was "denying the petition on the following of two alternative grounds: First, that the record establishes as a matter of law that the evidence in the record is sufficient to uphold the conviction under a still valid theory of liability for murder, and second, the [c]ourt, sitting as a fact-finder, determined that the evidence in the record of the conviction proved beyond a reasonable doubt that the defendant was guilty of murder using a still valid theory of liability for murder."
DISCUSSION
I
Foreman first argues that we should vacate the court's order and remand the case because it is not clear whether the trial court understood and fulfilled its role as an independent fact finder when deciding Foreman's petition as required by section 1172.6, subdivision (d)(3). We disagree and find that the court applied the correct legal standard in determining that Foreman was guilty of murder under a still valid theory after the Legislature passed Senate Bill No. 1437.
A. Governing Law
Effective January 1, 2019, Senate Bill No. 1437 significantly limited the scope of the felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key provisions. (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) First, Senate Bill No. 1437 amended section 189 so that "[d]efendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life[.]' " (Strong, at p. 708, citing § 189, subd. (e)(3).) Second, it amended section 188 to provide that, when the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where they acted "with malice aforethought," and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); see People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
Senate Bill No. 1437 also established a new procedure to allow defendants who could not have been convicted under the new law to petition the sentencing court to vacate their murder conviction and resentence them on any remaining counts. (See § 1172.6, subd. (a); Strong, supra, 13 Cal.5th at p. 708].) After receiving a petition containing the required information, "the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.'" (Strong, at p. 708, citing § 1172.6, subd. (c).) If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill No. 775) amended section 1172.6 to clarify certain aspects of the law, including that (1) the burden of proof at a resentencing hearing under this section is "on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder" under California law as amended by Senate Bill No. 1437 and (2) "[a] finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3); see also Stats. 2021, ch. 551, § 1, subd. (c).) 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 and determine, in the first instance, whether the petitioner committed murder under the law as amended by Senate Bill No. 1437. (People v. Clements (2022) 75 Cal.App.5th 276, 294, 297 (Clements); see also People v. Garrison (2021) 73 Cal.App.5th 735, 745, fn. omitted (Garrison) [the trial court acts as "an independent fact finder, to determine beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of murder"].)
B. Analysis
Foreman contends that it is unclear from the record whether the trial court applied the correct legal standard in deciding his petition, and that a remand is necessary to ensure that the court acted as an independent fact finder as required by section 1172.6. In support of his position, Foreman focuses on (1) the timing of the enactment of Senate Bill No. 775, which clarified the standard of review for a section 1172.6 petition after the trial court here denied Foreman's petition, (2) the trial court's comments on the record, which Foreman contends demonstrate ambiguity, and (3) the prosecutor's statements to the court, which Foreman argues presented the trial court with an incorrect view of its role in deciding the petition. We reject each of these arguments.
On reply, Foreman contends for the first time that remand is also necessary to ensure the trial court did not rely on evidence "clarified by [Senate Bill No.] 775 to be inadmissible" at the section 1172.6 hearing. Senate Bill No. 775 went into effect prior to Foreman's filing of his opening brief. This argument "is omitted from [his] opening brief and thus waived." (People v. Duff (2014) 58 Cal.4th 527, 550, fn 9.) In any event, the trial court based its decision "primarily on the testimony of Ryan M[.] as well as the audio recorded conversation of Ashley W[.] and the defendant"-evidence Foreman does not claim is inadmissible and which, as we will explain, constitutes substantial evidence sufficient to support the trial court's finding.
First, we find the timing of Senate Bill No. 775 immaterial here. It is true that at the time the trial court made its ruling denying Foreman's petition, the Legislature had not yet enacted Senate Bill No. 775, and "there was a split of authority as to whether at the [former] section 1170.95, subdivision (d) hearing, the trial court acts as an independent fact finder or applies the substantial evidence test[.]" (Garrison, supra, 73 Cal.App.5th at p. 745.) But the trial court, likely recognizing this split and that "we might interpret the statute to require it to sit as the trier-of-fact . . . added a belt to its suspenders" and explicitly stated that it was denying the petition under both standards. (Clements, supra, 75 Cal.App.5th at p. 298 [finding trial court erred to the extent it applied substantial evidence standard in denying § 1172.6 petition before the enactment of Senate Bill No. 775, but affirming because the trial court also ruled defendant was not "eligible for resentencing on the alternative ground that she was in fact guilty of second degree murder"].) The court specifically found that, first, the evidence in the record was sufficient as a matter of law to uphold Foreman's murder conviction, and second, in the alternative, "the Court, sitting as a fact-finder, determined that the evidence in the record of the conviction proved beyond a reasonable doubt that the defendant was guilty of murder using a still valid theory of liability for murder." Accordingly, there can be no error on this basis. (Ibid.)
Second, we find that the trial court's comments on the record support the conclusion that the court was aware of and properly fulfilled its fact finding role in analyzing Foreman's petition. Foreman acknowledges the court's statement that it was sitting as a fact finder, yet he maintains that this statement is insufficient to determine whether the court properly acted as an independent fact finder or instead deferred to the jury's assessment of the evidence. We are not persuaded. In addition to the court's explicit statement that it sat as a fact finder, it also stated: "[T]he crux of the factual dispute here concerns whether the People have established [beyond] a reasonable doubt based upon the materials that are rightly before the Court that the defendant was the actual killer, the person who fired the fatal shot. And the Court finds [beyond] a reasonable doubt that the People have met its burden on that issue." In making this finding, the court first described the evidence it reviewed, which included the filings by both sides in support of and opposition to the petition, the trial transcript, the record on appeal, and a recording of a conversation between Foreman and one of the prosecution's witnesses, Ashley W. The court then explained that it "found most persuasive" the testimony of co-accomplice Ryan and the recorded conversation between Foreman and Ashley. The court's comments demonstrate that it acted as an independent fact finder as required by section 1172.6.
Third, there is nothing in the record that would lead us to conclude that the trial court accepted the prosecutor's argument that it was not authorized to make credibility determinations or resolve conflicts in evidence. Foreman emphasizes that the court did not expressly state its disagreement with the prosecution's erroneous view, but there was no reason for it to do so in light of its decision to deny the petition under either of the two alternative standards argued by the parties. Because the court clearly ruled that Foreman was guilty of murder either applying the substantial evidence test or acting as an independent fact finder, there is no need for us to remand the case for the trial court to apply the independent fact finder test again. (Clements, supra, 75 Cal.App.5th at pp. 293-302.)
We therefore conclude that the trial court properly fulfilled its role as independent fact finder in denying Foreman's section 1172.6 petition.
II
Foreman next argues that the trial court erred in denying his petition because the record does not support a finding that he is guilty, beyond a reasonable doubt, of first degree murder as the actual killer, as an aider and abettor with intent to kill, or as a major participant in a felony in which a death occurred who acted with reckless disregard for human life. He contends that we should vacate the trial court's order denying his petition and remand with instructions to grant Foreman's petition or, in the alternative, to "clarify" its findings as to which currently valid theory of murder it relied on in denying Foreman's petition. We find no error.
A. Standard of Review
We review the trial court's fact findings for substantial evidence. (Clements, supra, 75 Cal.App.5th at p. 298; Garrison, supra, 73 Cal.App.5th at p. 747.) "Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Clements, at p. 298.) We will not reverse unless there is no hypothesis upon which sufficient substantial evidence exists to support the trial court's decision. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Foreman initially contended that we should conduct an independent review of the record to determine whether the evidence proved Foreman guilty of murder beyond a reasonable doubt. On reply, Foreman appears to concede that we must apply a sufficiency of the evidence standard to the trial court's decision. (Clements, supra, 75 Cal.App.5th at p. 302 [rejecting defendant's argument "that we should review the trial judge's ruling independently, rather than for substantial evidence, because his inquiry was limited to a cold record"].) We agree with the holding and reasoning of Clements on this point.
B. Analysis
Substantial evidence in the record supports the trial court's finding, beyond a reasonable doubt, that Foreman was the actual killer in the commission of a qualifying felony for felony murder and thus remains guilty of murder under the law as amended by Senate Bill No. 1437. (See § 189, subd. (e)(1).) The prosecution's main evidence in support of its theory was Foreman's admission that he had shot Gavin. Foreman made the following statements to undercover informant Ashley during a conversation recorded days after the shooting:
Liability for felony murder under section 189, subdivisions (a) and (e)(1) exists if the defendant participated in the perpetration or attempted perpetration of a qualifying felony and was the actual killer. Sufficient evidence supports the finding that Foreman participated in a qualifying felony (attempted robbery and burglary), as found by both the jury and trial court, and Foreman does not appear to dispute this on appeal. The parties only dispute whether Foreman was the actual killer, so we limit our analysis accordingly.
"Foreman: And then you know what's fucked up is Ryan said 'why did you shoot him?' I said, I operate like a machine dude when I'm doing business.
"[Ashley]: Yeah.
"Foreman: I've been doing this shit for so long. ([I]inaudible) like pffffff, nobody else move, put your head down, you know what I mean?
"[Ashley]: It was just one?
"Foreman: Yeah. I just shot him once.
"[Ashley]: Good shot.
"Foreman: It went through him and hit his girlfriend's arm."
Foreman's recorded admission to being the shooter was corroborated by testimony from his accomplice Ryan, who was present at the scene, that Foreman had fired his gun during the burglary and attempted robbery. Ryan testified that Foreman fired his gun as Gavin pushed Jessica out the door and, after firing the gun, stated," 'Tell John that was for him.'" The prosecution further relied on testimony from victims Thomas and Jessica identifying the taller man as the one they saw holding a gun, as well as Jessica's testimony that the shooter was the taller, light-haired man, which were descriptions matching Foreman's appearance. The prosecution also presented circumstantial evidence, including testimony from Gerry that when he was at Foreman's home the day after the shooting, Foreman read a newspaper article about the shooting and at some point commented," 'Maybe someone will understand when you're told not to move, you don't move.' "
Foreman argues that several facts demonstrate there were "conflicting reasonable inferences raising reasonable doubt as to guilt," including: Foreman had alibi witnesses who placed him at his home during the crime; the shoe prints found at the scene did not match Foreman's shoes; no one at the scene at the time of the shooting identified Foreman as being the shooter or even being present other than Ryan, who accepted a plea deal from the prosecution to avoid a life sentence; Jessica testified that the shooter had blue eyes, while Foreman has hazel eyes; there were discrepancies among various descriptions of the shooter; defense witness Cameron disputed Gerry's testimony that Foreman had made a statement about the shooting; and the jury had been unable to reach a unanimous finding that Foreman personally discharged a firearm.
But such conflicting reasonable inferences are insufficient to warrant reversal of the trial court's order."' "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." '" (People v. Harris (2013) 57 Cal.4th 804, 849.) It is the trial court, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt in this context. (See People v. Zamudio (2008) 43 Cal.4th 327, 357-358 (Zamudio).) Thus, while "we must ensure the evidence is reasonable, credible, and of solid value," we accord deference to the trial court and review the record in the light most favorable to the finding below. (People v. Jones (1990) 51 Cal.3d 294, 314.)
The combination of the admission by defendant to shooting the victims, eyewitness testimony identifying him as the shooter, and circumstantial evidence indicating that defendant was the shooter constitutes reasonable, credible evidence of solid value. (See People v. Thompson (2010) 49 Cal.4th 79, 113-114 [finding substantial evidence supporting defendant's guilt as actual perpetrator of murder based on testimony from accomplice that defendant shot the victim and corroboration by defendant's post-crime statements and actions]; see also People v. Mentzer (1985) 163 Cal.App.3d 482, 485 [defendant's admission that he set the couch on fire, knew what he was doing and intended to do so, and made no effort to extinguish the fire constituted evidence that was credible and of solid value such that it supported the court's determination of specific intent].) "[T]hat the evidence does not conclusively rule out [defendant's] proposed alternative scenario[s]" does not render the evidence insufficient to support the trial court's decision. (Zamudio, supra, 43 Cal.4th at pp. 359-360.) We therefore find that substantial evidence supports the trial court's conclusion that Foreman was the actual killer.
We also reject Foreman's contention that remand is necessary to "clarify" on which theory the trial court relied in concluding that Foreman was guilty of murder. The court expressly stated that it had concluded that the prosecution had proved Foreman "was the actual killer, the person who fired the fatal shot," beyond a reasonable doubt. The court further explained that this finding led it to conclude that Foreman could be convicted under both the theory that he was the actual killer who killed with malice aforethought and the theory that he was the actual killer in the commission of the designated felony (in this case, attempted first degree robbery or first degree residential burglary).
We conclude that substantial evidence supports the trial court's finding beyond a reasonable doubt that Foreman was the actual killer who participated in a qualifying felony in which a death occurred and was guilty of felony murder under the current version of section 189, subdivisions (a) and (e)(1). Accordingly, we need not reach the question of whether Foreman killed with malice aforethought, aided and abetted a felony with the intent to kill, or was a major participant in a felony who acted with reckless indifference to human life.
DISPOSITION
The order denying Foreman's section 1172.6 petition for resentencing is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. IRION, J.