Opinion
F087227
08-19-2024
THE PEOPLE, Plaintiff and Respondent, v. GAYLIN LYNN BURLESON, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. SUF7138B, Jennifer O. Trimble, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In 1971, defendant Gaylin Lynn Burleson pled guilty to first degree murder, first degree robbery, and kidnapping for the purpose of robbery. He was sentenced to life in prison. In 2019, defendant petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction of first degree murder. The court denied the petition, relying on evidence outside of the record. In 2020, we reversed and remanded. On remand, the court denied defendant's petition at the prima facie stage, finding that defendant failed to make a prima facie case. Defendant again appealed, arguing the court erred in denying the petition at the prima facie stage because the record did not conclusively establish that he was precluded from relief. We agreed, reversed, and directed the court to issue an order to show cause.
Undesignated statutory references are to the Penal Code. Former section 1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
The trial court issued an order to show cause, held an evidentiary hearing, and denied defendant's petition. His appellate counsel filed a brief identifying no error, summarizing the procedural and factual background of the case, and asking that we conduct an independent review. Defendant submitted a supplemental brief, arguing that the court made errors regarding admissibility of evidence, violated ex post facto principles, failed to consider defendant's youth at the time of the offense as relevant to whether he acted in reckless disregard for human life, and violated due process protections by failing to consider evidence favorable to defendant's petition. Defendant also contends that his counsel was ineffective for failing to raise the foregoing issues and the prosecutor committed misconduct by misleading the court. We affirm.
PROCEDURAL BACKGROUND
On November 23, 1971, defendant pled guilty to robbery, kidnapping to commit robbery, and murder of Michael Shockley. Two codefendants were charged with the same offenses. On December 21, 1971, defendant was sentenced to life in prison.
" 'About 48 years later, on February 11, 2019, defendant filed a petition in Merced County Superior Court to vacate his murder conviction and to be resentenced under section [1172.6].
" 'On April 8, 2019, the Merced County Superior Court denied defendant's petition.'
"On September 10, 2020, we reversed the order denying defendant's petition and remanded for further proceedings because the trial court considered evidence outside of the record of conviction-specifically, the factual summary from the opinion on defendant's direct appeal of his conviction-in denying defendant's petition at the prima facie stage.
"On remand, the prosecutor filed an 'informal response' to defendant's petition and defendant filed a request for an order to show cause. On June 8, 2022, the trial court held a hearing at which it concluded the probation officer's report, change of plea hearing transcript, sentencing hearing transcript, and minute orders from April 1 and November 23[, 1971,] constituted evidence contained in defendant's record of conviction. The probation officer's report contained defendant's 'account of the crime' [¶] • - [¶] [which the trial court relied upon in] den[ying] defendant's petition."
Defendant appealed. On February 8, 2023, we reversed and directed the trial court to issue an order to show cause.
On May 26, 2023, the trial court issued an order to show cause pursuant to section 1172.6, subdivision (c). The prosecutor filed an opposition to the petition and asked the court to take judicial notice of five documents: the probation officer's report, the grand jury transcript, a "[t]ranscript of [defendant]'s [s]tatement," the "[t]ranscript of [codefendant] Chatman's [c]ontinued [s]tatement," prior appellate opinions on defendant's appeals, and "any other records in [defendant's] case . . .." The prosecutor also filed an addendum, proffering defendant's September 1978 parole eligibility hearing transcript. Defendant objected to the court taking judicial notice of any of those documents. However, defendant conceded that the court could admit any statements made by defendant to the extent that they were part of the record of conviction and could be authenticated, and prior opinions for the purpose of establishing the procedural history of the case.
According to the prosecutor, the statement was made to a police officer before defendant's guilty plea. In 1971, defendant moved to suppress the statement and the motion was denied. The prosecutor stated at the order to show cause hearing that they assumed the statement "was admitted in part of the record of his conviction" based only upon a minute order dated November 8, 1971, that indicated the trial court denied the motion to suppress.
While the prosecutor relied on defendant's statement to the parole board in their addendum, there was not a specific request for judicial notice or other statement regarding how the court was permitted to consider the evidence.
On October 20, 2023, the trial court took judicial notice of defendant's statement as set out in the probation officer's report, the transcript of defendant's statement to officers at the time of his arrest, defendant's "[a]ppellate [o]pinion[s] ... insofar as they state the procedural history of the case," and defendant's statement to the parole board. In all other respects, it denied the prosecutor's request for judicial notice.
On November 17, 2023, the trial court denied defendant's petition in reliance on defendant's statements "to officers at the time of his arrest, his statement to Probation after his plea, and his statement at his 1978 Parole Consideration Hearing. Defendant's Probation statement and Parole Consideration statement, in significant part, track his Mirandized statement." The court concluded those statements were "admissible as admissions." The court then concluded that defendant was a major participant in the offense and acted with reckless disregard for human life.
The factual background is based upon defendant's statement in the probation officer's report, defendant's statement at his 1978 parole consideration hearing, and defendant's statement to law enforcement. Defendant does not challenge the admissibility of the former and we conclude below that the latter two statements were admissible.
On March 6, 1971, defendant and Lonnie Chatman robbed a gas station in Fresno. After the robbery, they drove the two gas station attendants to a secluded location and left them. No one was harmed during the robbery.
The following night, they robbed a gas station in Reno, Nevada. They again drove the attendant to a secluded area. No one was harmed in the robbery.
On March 12, 1971, defendant's birthday, he had a party which Chatman, Bobby Hardcastle, and others attended. Chatman suggested the robbery at issue in this case. Defendant declined because he "was in the mood to party," he wanted to celebrate, and, as he had explained before, he previously worked at that gas station in Stockton and "cops [kept] a close watch on the place" because it had been robbed many times before. Approximately 30 minutes later, defendant agreed to the robbery and Chatman asked defendant where they could find firearms. Defendant asked Hardcastle if they could use his firearms and Hardcastle agreed.
In the late evening of the same night or early hours of the next morning, defendant drove the three to Hardcastle's home and picked up the firearms-a high powered rifle and a shotgun. While there, Chatman said," 'If you do you to shoot the guy, they can't trace a shotgun shell,' so [they] took that along too." They drove to a gas station in Stockton. Hardcastle went to the rear of the gas station with a shotgun and Chatman armed himself with a rifle and hid under a blanket in the back seat. Defendant drove to a gas pump and when the attendant, Shockley, came to the vehicle, defendant told him Chatman had" 'a gun on [him]'" and told Shockley this was" 'a hold up.'" Defendant did not know Shockley. Defendant directed Shockley to get into the front passenger seat. When Shockley complied, defendant took Shockley's keys.
At that point, defendant intended to take money from the gas station, but a customer arrived. Defendant waited on the customer and several others. Defendant then went to the gas station and took money from the cash drawer. He collected Hardcastle and then defendant, Chatman, and Hardcastle took Shockley to a secluded area. Defendant explained to Shockley that they did not want him to be able to call the police so they would leave him somewhere secluded. Defendant offered Shockley a cigarette and attempted to calm him. He intended to drive elsewhere, but when he noticed he did not have enough gas to get where he intended, he instead drove to a field where he and Chatman had taken target practice earlier that month.
When they arrived at the field, defendant gave Shockley another cigarette. Chatman and defendant then walked Shockley into the field. Chatman tied Shockley while defendant held the "gun and flashlight on him." After Shockley was tied, Chatman took Shockley's wallet and keys, defendant left the remainder of his cigarettes with Shockley, and defendant returned the rifle to Chatman. Defendant then ran back to the car. When he was approximately 30 yards from Shockley, defendant heard two gunshots. Defendant thought Chatman fired shots to scare Shockley. When all three men were back in the car and approximately half a mile away, they counted the money. When they were about halfway back to defendant's apartment, defendant asked Chatman about the gunshots and Chatman said he shot and killed Shockley.
In his parole consideration statement, defendant said he had already made his way back to the car before he heard the gunshots.
DISCUSSION
I. Section 1172.6 Petition Framework Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017 2018 Reg. Sess.) (Senate Bill 1437) "to amend the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); see § 189, subd. (e); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708.)
Senate Bill 1437 accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):
"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2." (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at p. 842.)
Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)
Senate Bill 1437 also added section 1172.6 (former § 1170.95) to provide a procedure for those convicted of a qualifying offense "to seek relief under the two ameliorative provisions above." (Gentile, supra, 10 Cal.5th at p. 843.) This procedure is available to persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter ...." (§ 1172.6, subd. (a).)
"Section [1172.6] lays out a process" for a person convicted of one of the aforementioned offenses "to seek vacatur of his or her conviction and resentencing." (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;]
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3); see also § 1172.6, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960.)
In this case, we determined that defendant had made a prima facie case when last he appealed. We directed the trial court to issue an order to show cause. (§ 1172.6, subds. (c), (d)(1).) The court did so and held a hearing and considered documentary evidence. At such an evidentiary hearing, the defendant has the right to introduce evidence and "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that [the defendant] is guilty of murder . . . under California law as amended by the changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) The admission of evidence at such a hearing is "governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.... The prosecutor and the [defendant] may also offer new or additional evidence to meet their respective burdens." (§ 1172.6, subd. (d)(3).)
II. The Trial Court's Ruling was Supported by Admissible Evidence
Defendant contends the trial court erred by admitting the" 'transcript of [defendant's] statement'" to police officers because it was" 'not [a] part of the record of conviction,'" no foundation was laid for its admission, and it was not authenticated. He also contends the court erred by admitting his 1978 parole consideration statement, concluding (without explanation) that the admission: violated the Confrontation Clause of the United States Constitution, constituted inadmissible hearsay, and was made without foundation having been established. Defendant does not attribute any error to the court's admission of his statement that was contained in the probation officer's report. As noted by the court, in each of those three statements, defendant relayed virtually the same account of the events leading to the robbery and murder of Shockley. We find no abuse of discretion in the admission of those statements.
In the same section, defendant also contends that the "Law of Cases doctrine [sic]" operated to require exclusion of Chatman's statement from the trial court's consideration in this case. Because the court did not consider Chatman's statement, and defendant does not attempt to tie this argument to admission of the parole consideration statement, we give it no further consideration.
We review a defendant's challenge to evidentiary rulings for abuse of discretion (People v. Flores (2020) 9 Cal.5th 371, 409 ["We review the trial court's evidentiary ruling[s] for abuse of discretion."].)"' "[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." '" (People v. Turner (2020) 10 Cal.5th 786, 807.)
First, defendant contends that his statement to law enforcement was not part of the record of conviction because there was no evidence to support the prosecutor's contention that the transcript was attached to a motion to suppress by defendant's trial counsel in the original case. The record before us contains the prosecutor's representation that defendant's counsel attached the transcript, accompanied by a declaration by the district attorney authenticating "what . . . it contained and who took it and the circumstances under which it was taken," to a motion to suppress and the statement was admitted based on a minute order reflection that the "the [m]otion to [s]uppress matter, having been submitted to the court, the [c]ourt denies [the] [m]otion to [s]uppress [e]vidence." The trial court indicated that the prosecutor's representation mirrored its own recollection and its written ruling reflected that "[t]he statement was entered into evidence by defense at the original proceedings during a motion to suppress evidence." The transcript of the statement itself has a handwritten notation labeled, "Attachment I" and bears a seal and certification from the San Joaquin County Superior Court that it is an accurate copy of the court's record. The record before us contains no further detail regarding the admission of defendant's statement to law enforcement. We cannot accept defendant's assertions that the court's conclusion was in error regarding admission of the statement at a prior hearing on a record that provides no support for that contention. Because the court found the statement was admitted at a prior hearing, it was made admissible by section 1172.6, subdivision (d)(3). (§ 1172.6, subd. (d)(3) [The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.].)
For the same reason, defendant's contention that the prosecutor committed misconduct by misleading the court regarding the admission of that statement at a prior hearing in defendant's underlying case must fail on this record.
As for the foundation for and authentication of defendant's statement to law enforcement, we do not read section 1172.6 subdivision (d)(3) to require the prosecution to reestablish the admissibility of evidence previously admitted at a prior hearing in the underlying case. To the contrary, previously admitted evidence is an express exception to the rule that the admission of evidence at the hearing is otherwise governed by the Evidence Code. Because the statement was admitted at a prior hearing, a proper foundation presumably was laid at that time. Nothing in the record suggests otherwise. Even if more were required, the trial court's conclusion that the statement was admitted in connection with defendant's motion to suppress in the underlying case resolves both inquiries. The considerable overlap between defendant's statement to law enforcement, the probation officer, and the parole board was enough for the court to have reasonably concluded that defendant's statement to law enforcement was authentic. (People v. Skiles (2011) 51 Cal.4th 1178, 1187 ["a writing can be authenticated by circumstantial evidence and by its contents"].) And defendant's prior request to suppress the document could reasonably have been understood to have been an admission of authenticity of the statement or constituted acting upon the document as authentic. (Evid. Code, § 1414.)
As a threshold matter regarding defendant's claim that admission of the parole suitability hearing transcript violated his right to confront witnesses, the trial court considered only defendant's own statement, which does not implicate confrontation rights. The court's consideration of defendant's own prior statements did not implicate confrontation rights. (People v. Jennings (2010) 50 Cal.4th 616, 660-661 [consideration of a defendant's admissions and adoptive admissions does not implicate confrontation rights].) Moreover, "[t]he Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right .. to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42.) A section 1172.6 evidentiary hearing is not a criminal prosecution. (People v. Silva (2021) 72 Cal.App.5th 505, 520.) "[T]he panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing .." (People v. Duran (2022) 84 Cal.App.5th 920, 931, italics omitted.) Rather, the retroactive relief provided by this law" 'is a legislative "act of lenity" intended to give defendants serving otherwise final sentences the benefit of ameliorative changes to applicable criminal laws and does not result in a new trial or increased punishment.'" (People v. Vargas (2022) 84 Cal.App.5th 943, 952.) Accordingly, the relief afforded by Senate Bill 1437 is" 'not subject to Sixth Amendment analysis.'" (People v. James (2021) 63 Cal.App.5th 604, 609 [collecting cases]; see, e.g., People v. Schell (2022) 84 Cal.App.5th 437, 444 ["Courts have unanimously held that section 1172.6 is an act of lenity in which the petitioner has no Sixth Amendment right to a jury trial."].)
Although defendant's apparent confrontation clause argument is under a heading related to admission of the parole consideration hearing transcript in his supplemental brief, it is unclear and underdeveloped. Insofar as defendant intended to contend that admission of Chatman's statement violated confrontation rights, we note that the trial court did not admit or consider Chatman's statement.
Next, defendant contends his statement to the parole board was inadmissible hearsay. He is mistaken. Defendant's parole consideration statement was a public record. (Evid. Code, § 1280.) And, because the trial court considered only defendant's statement, it was correct in concluding that the statement was not inadmissible hearsay because it was an admission. (People v. Mitchell (2022) 81 Cal.App.5th 575, 586 (Mitchell); Evid. Code, § 1220 [hearsay exception for party admissions].)
A writing made "as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any .. criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee[;] [¶] (b) The writing was made at or near the time of the act, condition, or event[;] [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1280.)
Defendant finally contends that no foundation was established for the admission of his 1978 parole consideration hearing transcript. He is again mistaken. Again, we note that section 1172.6, subdivision (d)(3) provides an exception to the rules of evidence for evidence admitted at a prior hearing. Even if that were not the case, "Evidence Code section 1280 ... 'permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.' [Citation.] 'In addition to taking judicial notice, a court may rely on the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that the foundational requirements of Evidence Code section 1280 are met.'" (People v. George (1994) 30 Cal.App.4th 262, 274.)
A trial court's "ruling on admissibility 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary.'" (People v. Martinez (2000) 22 Cal.4th 106, 120, citing Evid. Code, § 402, subd. (c).) Thus, when an official record is admitted, it may be inferred that a court has taken judicial notice of regulations imposing official obligations on a public employee and applied the presumption that official duty has been regularly performed (Evid. Code, § 664). (Martinez, at p. 121; accord, People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477 ["findings [on the foundational requirements under Evidence Code section 1280] may be inferred from the court's ruling admitting the [official record]".) In this case, the court took judicial notice of the parole consideration transcript and noted that defendant's statement in that transcript was admissible as an admission. Defendant has offered nothing to rebut the implied findings made by the court regarding the reliability of the document. (See People v. Miles (2008) 43 Cal.4th 1074, 1083 ["[u]nless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances" of the official act or duty performed].)
The trial court did not abuse its discretion in admitting defendant's statement to law enforcement or parole consideration statement.
III. The Trial Court's Ruling Did Not Violate Ex Post Facto Principles
Defendant contends that the trial court's consideration of" 'major participant'" and" 'reckless disregard for human life'" principles violate ex post facto principles because they were not elements of the offense in 1971. We disagree.
As the court in People v. Hill (2024) 100 Cal.App.5th 1055, 1067, recently explained:
"Section 1172.6 does not fall into any of the four traditional categories of ex post facto laws established by the United States Supreme Court: (1) It does not impose punishment for an act which was not punishable at the time it was committed; (2) It does not aggravate a crime or make it greater than it was when committed; (3) It does not impose a greater punishment for a crime than when the crime was committed; and (4) It does not' "alter[] the legal rules of evidence, [or] receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."' (Stogner v. California (2003) 539 U.S. 607, 612, ... italics omitted; see Weaver v Graham (1981) 450 U.S. 24, 28 ... ['The ex post facto prohibition forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed"' (fn. omitted)]; [citation].) Indeed, as our Supreme Court has observed, preventing unforeseeable punishment is 'one of the primary purposes of the ex post facto clause.' (People v. Snook (1997) 16 Cal.4th 1210, 1221 ..)
"Section 1172.6 does not apply any new law retroactively to make formerly innocent conduct criminal. Rather, it looks to whether a defendant could be convicted under current law despite the elimination of certain theories of murder that were available to the prosecution when the defendant was convicted before the enactment of Senate Bill No. 1437. Accordingly, the denial of a section 1172.6 petition in reliance on a theory of felony murder based on current law does not implicate ex post facto principles." (People v. Hill, supra, 100 Cal.App.5th at p. 1067.)
" '[B]ecause a section [1172.6] evidentiary hearing does not subject a defendant to the risk of additional punishment, is not a trial, permits both parties to present new evidence, and merely considers whether the defendant's request for leniency meets the necessary criteria, there is no constitutional problem in allowing new theories of murder liability at that hearing.'" (People v. Schell, supra, 84 Cal.App.5th at pp. 444-445.)
Ex post facto principles were not violated by the trial court's conclusion that defendant could presently be convicted of murder under a theory not available in 1971.
IV. Defendant's Youth at the Time of the Offense
In reliance on People v. Jones (2022) 86 Cal.App.5th 1076, defendant contends that the trial court erred for failing to consider his youth at the time of the offense. If the court erred, it was harmless.
Multiple appellate courts have concluded that a defendant's youth is relevant in making the major participant and reckless disregard findings under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. (People v. Pittman (2023) 96 Cal.App.5th 400, 416-417 (Pittman); People v. Oliver (2023) 90 Cal.App.5th 466, 486-487; People v. Jones, supra, 86 Cal.App.5th at p. 1091; Mitchell, supra, 81 Cal.App.5th at p. 586; In re Moore (2021) 68 Cal.App.5th 434, 451; People v. Harris (2021) 60 Cal.App.5th 939, 960, abrogated on other grounds by People v. Lewis, supra, 11 Cal.5th at p. 952.) The court in Jones, which defendant relies upon, explained that it reversed the trial court's denial of the defendant's motion for the court to "have a meaningful opportunity to consider Jones's youth as part of the totality of the circumstances germane to determining whether he was a major participant who acted with reckless indifference to human life" because prior cases-Harris and Moore-had addressed the relevance of youth as to minors. (Jones, at p. 1093.) Such was not the case here. At the time of the hearing on defendant's petition, case authority, including Mitchell, Jones, Oliver, and Pittman, was clear that a young adult offender's youth was a relevant consideration. Indeed, defendant's trial counsel raised the issue to the trial court in his briefing and the court noted in the factual summary portion of its ruling that the offense took place the day of and day after defendant's 20th birthday. Absent evidence to the contrary-and we see none-"we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.)
The earliest of those cases, Mitchell, supra, 81 Cal.App.5th 575, was decided on July 22, 2022, and the most recent, Pittman, supra, 96 Cal.App.5th 400, was decided on October 13, 2023. Defendant's petition was denied on November 17, 2023.
Even assuming the trial court erred in failing to explicitly consider defendant's youth in making the reckless disregard finding, any error was harmless. In so doing, we apply the harmless error standard from People v. Watson (1956) 46 Cal.2d 818, 836- whether there is a reasonable probability that the failure to consider defendant's youth impacted the court's decision. (Pittman, supra, 96 Cal.App.5th at pp. 417-418.)" 'A "reasonable probability" "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility."' [Citation.] The cases discussing the role of youth in relation to criminal culpability 'stress two areas': youthful offenders' 'relative impulsivity' and 'their vulnerability to peer pressure.' [Citation.]' "Transient rashness,"' '" 'impetuosity,'"' and '" 'failure to appreciate risks and consequences'"' are hallmarks of an immature brain." (Id. at p. 418.)
In this case, as the trial court explained in its ruling, defendant had previously committed robberies, had used weapons in prior robberies, "was aware his co-defendant said to take [a] shotgun because a shotgun shell could not be traced in the event they had to shoot someone[,]" planned the robbery with a codefendant (including the plan to kidnap the victim), and obtained the firearms used in the robbery (including the firearm ultimately used in the murder), had been to the field where the victim was tied and killed, and handed a loaded firearm to the shooter after the victim was tied. After the murder, defendant and the shooter committed an additional robbery. While defendant told the probation officer he was approached by a codefendant regarding the robbery at issue in this case, his objections to committing the robbery were that he was "in the mood to party" rather than to commit a robbery and that he did not want to rob the particular gas station at issue because he had worked there and knew that "the cops [kept] a close watch on that place" because it had been robbed so many times before. Defendant's conduct was not impulsive and his response to the proposed robbery-stating practical objections-was not reflective of a youth caving to peer pressure. There is no reasonable probability the court would have found the"' "hallmark features of youth" '" were at play in shaping defendant's decision to commit the robbery or obscuring the risks involved in commission of the robbery; there is no reasonable probability the court would not have found defendant acted with reckless disregard for human life. (Pittman, supra, 96 Cal.App.5th at p. 418, citing People v. Oliver, supra, 90 Cal.App.5th at pp. 486-487.) Indeed, defendant was aware of the risk of death to others based on the use of firearms and planned to bring a shotgun to mitigate the risk of being caught.
V. The Trial Court's Ruling Did Not Deny Defendant Due Process
Defendant contends the trial court denied him due process by failing to consider relevant evidence helpful to his case. For that proposition, he relies on People v. Reeder (1978) 82 Cal.App.3d 543, 553, Chambers v. Mississippi (1973) 410 U.S. 284, and People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599. The former two cases stand for the proposition that a defendant has a due process right to present relevant evidence in support of their defense, subject to some practical limitations (e.g., Evid. Code, § 352). (Reeder, at p. 553; Chambers, at p. 294.) Burrell-Hart stands for the proposition that a defendant has a right to present their defense theory and "all ... pertinent evidence should be considered by the trier of fact." (Burrell-Hart, at p. 599.) However, in support of his petition, defendant presented no evidence. Indeed, in his memorandum in support of his petition, defendant repeatedly argued there was "[n]o [a]dmissible [e]vidence [w]hatsoever [i]n [t]he [r]ecord . . . [f]or [t]h[e] [c]ourt [t]o [w]eigh." He was not prevented from presenting evidence.
Defendant cited to Davis v. Alaska (1974) 415 U.S. 308, 317, for the quotation "We further recognize that a defendant's right to present his defense theory is a fundamental right and that all of his pertinent evidence should be considered by the trier of fact." That quotation is actually from People v. Burrell-Hart, supra, 192 Cal.App.3d at page 599, citing Davis v. Alaska.
The trial court also did not decline to consider evidence supporting defendant's theory. Defendant contends that the court did not consider that defendant: did not use a firearm and never pointed the firearm at the victim; was "not present" when his codefendant shot the victim because he was at least 30 yards away; had no reason to believe his codefendant would shoot the victim because he had not done so in the three prior robberies; and attempted to minimize the risk of violence. He is mistaken- the court at least peripherally addressed all of the evidence defendant identified in its analysis. It noted that defendant pointed the firearm at Shockley as they walked into the field and then "gave the gun used in the killing to his co-defendant after the victim was tied"; it did not conclude that defendant fired a weapon in this case. It found that defendant "was present at the scene of the killing" and noted in the facts portion of its ruling that "[d]efendant said once Shockley was tied, he handed the rifle to Chatman and ran back to the car." The court further noted that defendant had committed robberies before and after this incident that involved weapons but where no actual violence occurred. As to whether defendant had reason to believe violence may occur in light of his past experience with other participants, the court reached no conclusion. Instead, it relied upon defendant's knowledge that Chatman commented that they should bring a shotgun because "a shotgun shell could not be traced in the event they had to shoot someone." Finally, as to defendant's purported attempts to minimize the risk of violence, the facts he identified did not clearly lead to an inference that he was attempting to minimize violence. For instance, the court considered defendant's plan to dress as a gas station attendant and bringing a cord to tie Shockley as evidence of his planning.
Defendant identifies his attempts to "minimize the risk[] of violence" as: serving customers at the gas station, remaining "calm and polite," attempting to curtail Chatman's attempts to "frighten and intimidate victims in each robbery," attempting to dissuade Chatman from robbing the specific gas station at issue in this case, and encouraging Chatman to tie Shockley loosely and leave Shockley's wallet and keys.
That conclusion is consistent with defendant's testimony at the parole consideration hearing where he said, "Chatman tied [Shockley] up while I held a gun and flashlight on him."
In short, the trial court did not ignore the evidence that defendant identified; it simply did not draw the conclusion that those facts supported his innocence. We find no fault with the court's reasoning. Defendant's due process claim fails.
VII. Independent Review
Beyond the issues identified by defendant, we have independently reviewed the record and find no error.
VIII. Cumulative Prejudice and Ineffective Assistance of Counsel
Defendant contends that appellate counsel was ineffective for failing to identify the issues he presented and that the purported errors below cumulatively caused him prejudice. Because we have concluded that none of the issues defendant identified are meritorious and we identified no error in our independent review, defendant's ineffective assistance claim fails for lack of deficient performance and prejudice (see People v. Kelly (2006) 40 Cal.4th 106, 119 [appellate counsel is not ineffective where the appellate court conducts an independent review and finds no error]) and his cumulative prejudice claim fails for lack of error and prejudice (People v. Williams (2013) 56 Cal.4th 165, 201, disapproved on another ground by People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9).
DISPOSITION
The order is affirmed.
[*] Before Detjen, Acting P. J., Franson, J. and Meehan, J.