Opinion
B326085
05-08-2024
THE PEOPLE, Plaintiff and Respondent, v. RUBEN JAMES JONES, Defendant and Appellant.
Marilee Marshall for Defendant and Appellant. Rob Bonta, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott Taryle and Chung Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA221615 Eleanor Hunter, Judge. Affirmed.
Marilee Marshall for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott Taryle and Chung Mar, Deputy Attorneys General, for Plaintiff and Respondent.
ADAMS, J.
In 2002, a jury convicted defendant and appellant Ruben James Jones of second degree murder. Jones now appeals from the trial court's order denying his petition for resentencing under Penal Code section 1172.6. After an evidentiary hearing, the trial court concluded the People proved beyond a reasonable doubt that Jones was guilty of second degree express malice murder as a direct aider and abettor. The court denied the petition for resentencing. We affirm the trial court order.
All further undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) We therefore refer to the statute as section 1172.6 for the remainder of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The June 2000 Shooting
In June 2000, Darrel "Rainbow" Cooper was shot and killed in Los Angeles. Cooper was a member of the First Street East Coast Crips and was the son of a respected older member of the Six Deuce East Coast Crips (Six Deuce). Fernando Millsap, a member of the Five Deuce Broadway Gangster Crips (Five Deuce or Broadways), would later be arrested for Cooper's murder.
The night after Cooper's murder, members of Five Deuce were at a party at a masonic lodge in Los Angeles. At around 1:45 a.m., as people were leaving, shots were fired into the crowded parking lot. John Boyakins was shot twice and killed. Several others were wounded, including Millsap.
Clarence H.'s Statements
In September 2000, detectives interviewed Clarence H., who was in custody on other charges. Clarence H. said Lamont Devault, Jones's codefendant, "shot up" a parking lot outside a party at the masonic lodge in retaliation for Cooper's murder. According to Clarence H., the day after Cooper's murder, Devault and other Six Deuce members "got mad" and gathered at Jones's house "with all their guns." Devault and others talked about their plan to shoot up a party where Five Deuce members were present. Devault and Jones each had an AK-47. Both firearms belonged to Jones. Outside Jones's house, a van was modified to remove the middle seat "so they [could] slide the door open and put the A.K. out there and shoot from there." Clarence H. recalled seeing Jones with his AK-47, seated on the floor of the van where the seat had been removed, before Jones, Devault, and several others left for the masonic lodge.
Clarence H. remained at Jones's house, but he heard the shooting occur in real time at the masonic lodge "down the street." The group returned to Jones's house after the shooting and reported that Devault shot up the party. According to Clarence H., the plan did not work "because only one car shot and that was the van and [Devault] did the busting," and because no Five Deuce members were killed. Devault was upset that Jones did not open fire. When Devault asked Jones why he did not shoot, Jones said the van door was jammed and would not open. Clarence H. saw Devault return the AK-47 to Jones.
In November 2000, Clarence H. identified Devault and Jones from photographic six-packs. In a photo identification report, Clarence H. wrote notes consistent with his prior statements about the shooting. However, by November 2001, Clarence H. did not want to testify. Clarence H. told detectives that he had faced pressure from other gang members to lie on the stand and that he had already been stabbed for "telling on" other gang members, including Jones. Clarence H. confirmed to detectives, however, that his previous statements about what happened the night of the shooting were true.
Stanley Morgan's Statement
In April 2001, detectives spoke to Six Deuce member Stanley Morgan. Morgan positively identified Devault and Jones from separate photographic six-packs. Morgan stated in the photo identification report that he was at Jones's house the evening before the shooting, along with Devault. He wrote that Devault had been "tr[y]in[g] to get people to go shot [sic] the Broadways" "because of Rainbow."
Charges and Trial
The information charged Devault and Jones with one count of murder (§ 187, subd. (a)) and three counts of attempted willful, deliberate, premeditated murder (§§ 187, subd. (a), 664). The information alleged that all counts were committed for the benefit of, at the direction of, and in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The information also alleged that with respect to these charges, a principal personally used and intentionally discharged a firearm proximately causing great bodily injury and death. (Former §§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d), &(e)(1).) The information charged Devault alone with possession of a firearm by a felon and alleged that he personally and intentionally discharged a firearm causing great bodily injury and death. (Former §§ 12021, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c), &(d).)
Former section 12022.5, enacted in 1982, was repealed in 2010 and replaced by section 12022.5 addressing the same subject matter. (Stats. 2010, ch. 711, § 5.) Former section 12022.53, enacted in 1997, was repealed in 2010 and replaced by section 12022.53 addressing the same subject matter. (Stats. 2010, ch. 711, § 5.)
In January 2002, Jones and Devault were jointly tried. Several of the People's witnesses recanted their earlier statements to detectives, including Clarence H. and Morgan.
Verdict and Sentence
The trial court instructed the jury on four alternate theories of criminal liability, including that Jones could be convicted of murder if the jury found he conspired to commit assault with a firearm and Boyakin's killing was a natural and probable consequence of that conspiracy.
The jury acquitted Jones of first degree murder and convicted him of second degree murder. The jury also convicted Jones of three counts of attempted murder and found true that each attempted murder was committed willfully, deliberately, and with premeditation. As to all counts, the jury further found true that a principal personally and intentionally used and discharged a firearm, and that the offenses were committed for the benefit of a criminal street gang.
The court sentenced Jones to life plus 60 years to life.
Jones and Devault appealed. A different panel of this court affirmed their convictions on direct appeal. (People v. DeVault, et al. (Mar. 11, 2005, B162631) [nonpub. opn.] rehearing denied and opinion modified April 8, 2005.)
Resentencing Proceedings
In September 2021, Jones filed a petition under section 1172.6 seeking resentencing of his second degree murder conviction. Jones contended he was eligible for resentencing because the court instructed the jury on a natural and probable consequences theory as to the killing of Boyakins. Jones argued he should be resentenced on the target offense of conspiracy to commit assault or battery. The court concluded Jones made a prima facie case for resentencing eligibility and set an evidentiary hearing on the petition.
In October 2022, the trial court held the evidentiary hearing. The court admitted 13 exhibits into evidence, including the trial transcripts, the verdict forms relevant to Jones, and transcripts and documents related to Clarence H.'s pretrial statements. Neither party presented new or additional evidence under section 1172.6, subdivision (d)(3).
After hearing arguments from both sides, the court concluded the People had established beyond a reasonable doubt that Jones was guilty of second degree murder as either a direct aider and abettor or under a provocative act theory. The court found that Clarence H.'s and Morgan's pretrial statements were credible and provided support for Jones's liability as a direct aider and abettor. The statements indicated Jones was a member of Six Deuce, and that the day after the murder of a prominent Six Deuce member's son, other members of the gang gathered at his house. The statements showed that "[w]hen Mr. Devault came into [Jones's] home and started talking about, 'Well, what are we going to do?' [and] 'Let's retaliate' . . . Mr. Jones[ ] responded by going and getting guns. He got not just one gun to give to Mr. Devault. He got two guns. He kept one, . . . and gave the other to Mr. Devault ...." According to the trial court, the evidence further reflected that "we had a congregation of Six-Deuce East Coast Crips going into rival gang territory, with AK-47's that were supplied by Mr. Jones. Mr. Jones went with them into a van, and apparently the plan was he was going to open the door and fire." The court credited evidence reflecting that Jones said he did not shoot because he could not open the van door.
With respect to his mental state, the court found that Jones "was a full-fledged member of this group that went to go seek retaliation in rival gang territory, with AK-47's," and that the group in the van "drove there with the intent to kill." The court made clear that it found beyond a reasonable doubt that Jones was guilty of murder as a direct aider and abettor, with express malice.
Alternatively, the court found the People had established beyond a reasonable doubt that Jones was guilty of murder under the provocative act theory. The court concluded the doctrine did not require malice to be imputed and therefore remained a viable theory under the Penal Code as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). It further observed that the circumstances of this case-"You're shooting into a crowd, they shoot back, somebody gets killed"-was a "classic provocative act." The court concluded Jones was factually ineligible for relief under section 1172.6 and denied his resentencing petition.
Jones timely appealed.
DISCUSSION
I. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and limited the scope of the felony murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended section 188 by adding the requirement that, except as stated in section 189, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The amendment eliminated imputed malice liability for second degree murder. (People v. Lopez (2023) 88 Cal.App.5th 566, 575.) It also eliminated aider and abettor liability for crimes committed by the actual perpetrator "that were not intended but were reasonably foreseeable," which were previously actionable under the natural and probable consequences doctrine. (People v. Pacheco (2022) 76 Cal.App.5th 118, 123, review granted May 18, 2022, S274102.) But a principal in a murder, including an aider or abettor, may still be criminally liable if he or she personally possesses malice aforethought, whether express or implied. (People v. Silva (2023) 87 Cal.App.5th 632, 639-640; People v. Offley (2020) 48 Cal.App.5th 588, 595-596 [Senate Bill No. 1437 did not "alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator' "].)
Senate Bill No. 1437 created a procedure, now codified at section 1172.6, in which a person convicted of a qualifying offense under the former law may seek resentencing if he or she can no longer be convicted of those offenses under amended section 188. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847; see also Sen. Bill No. 775 (2021-2022 Reg. Sess.) § 2 [further amending statutory procedures in § 1172.6].) A defendant commences the procedure by filing a petition containing a declaration that, among other things, he or she could not presently be convicted of murder under the current law. (Strong, supra, 13 Cal.5th at p. 708.) If, after briefing and a hearing, the court determines the petitioner made a prima facie case for relief, the court shall issue an order to show cause. (§ 1172.6, subd. (c).)
Within 60 days after issuing an order to show cause, "the court must hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill No. 1437 .... [Citation.]" (People v. Njoku (2023) 95 Cal.App.5th 27, 41; § 1172.6, subd. (d)(1), (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." (§ 1172.6, subd. (d)(3).) The parties "may also offer new or additional evidence to meet their respective burdens." (Ibid.)
At this stage, "[t]he question is whether the petitioner committed [the underlying crime] under a still-valid theory, and that is a factual question." (People v. Clements (2022) 75 Cal.App.5th 276, 294 (Clements).) The trial court is therefore "a fact finder tasked with holding the People to the beyond a reasonable doubt standard." (Id. at pp. 294-295.) The court" 'must impartially compare and consider all the evidence that was received throughout the entire trial' and determine whether that 'proof . . . leaves you with an abiding conviction that the charge is true.' [Citations.]" (Id. at p. 295.) "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); Clements, at pp. 294-297.)
II. Aiding and Abetting Second Degree Murder with Express Malice
"Second degree murder is an unlawful killing with malice aforethought, but without the premeditation or deliberation required for first degree murder. [Citation.] Malice may be express or implied." (In re Ferrell (2023) 14 Cal.5th 593, 600.) "Express malice consists of a specific intent to kill, i.e., 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' (§ 188.)" (In re Sergio R. (1991) 228 Cal.App.3d 588, 595.) "[I]t is well settled that intent to kill or express malice . . . may in many cases be inferred from the defendant's acts and the circumstances of the crime." (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).)
For direct aiding and abetting liability, specific intent crimes require an aider and abettor to"' "share the specific intent of the perpetrator ...." '" (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy); People v. Glukhoy (2022) 77 Cal.App.5th 576, 590 ["the direct aider and abettor must have the same mental state as the actual perpetrator of the charged crime"].) Therefore, to be guilty of second degree express malice murder as a direct aider and abettor, the prosecution must prove beyond a reasonable doubt that a defendant aided, promoted, encouraged, or instigated a killing while knowing and sharing the perpetrator's intent to kill. (McCoy, at p. 1118.)
III. The Jury's Rejection of First Degree Murder Did Not Preclude the Conclusion That Jones Committed Second Degree Murder with Express Malice
Jones argues that the jury's prior finding that he did not premeditate or deliberate with respect to the murder precluded the trial court's conclusion that Jones acted with express malice. We disagree.
Although Jones's petition sought resentencing of only his second degree murder conviction, on appeal he appears to include the attempted murder convictions in his arguments. We decline to consider the application of section 1172.6 to Jones's attempted murder convictions since he has not sought resentencing in the trial court in the first instance.
Under certain circumstances, courts have reversed a trial court's findings at a section 1172.6 evidentiary hearing when they contradicted prior jury findings made at trial. (People v. Arnold (2023) 93 Cal.App.5th 376, 385-387 [trial court could not find the petitioner was the actual killer in a stabbing since the jury previously found not true that he personally used a knife]; People v. Cooper (2022) 77 Cal.App.5th 393, 398 [trial court could not deny resentencing relief based on a finding that the petitioner fired a gun since the jury previously acquitted the petitioner of being a felon in possession].) Here, however, Jones does not identify a factual inconsistency between the jury's findings at trial and the trial court's ruling at the evidentiary hearing. Instead, he argues the jury's acquittal on first degree murder contradicts the trial court's finding that he acted with express malice. In doing so, Jones erroneously conflates premeditation and deliberation with the specific intent to kill.
"[T]he Supreme Court has drawn a line between homicide which follows deliberation and premeditation, first degree murder, and a killing preceded merely by a specific intent to kill." (People v. Martinez (1980) 105 Cal.App.3d 938, 943; People v. Thomas (1945) 25 Cal.2d 880, 898-899.) Premeditation and deliberation "refer to the quality of the intent to kill." (People v. Castillo (1997) 16 Cal.4th 1009, 1017.) "Premeditation occurs when the killing is' "considered beforehand,"' and deliberation occurs when the decision to kill is' "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." [Citation.]' [Citation.]" (People v. Mejia (2012) 211 Cal.App.4th 586, 604 (Mejia).)
Thus, "premeditation and deliberation is not synonymous with malice aforethought [citation]; it requires 'substantially more reflection.' [Citation.]" (People v. Boatman (2013) 221 Cal.App.4th 1253, 1270; People v. Washington (1976) 58 Cal.App.3d 620, 624 ["Malice aforethought as required in second degree murder is not synonymous with the term deliberate as used in defining first degree murder"].)
In this case, the jury's decision to acquit Jones of first degree murder signifies only that the jury could not find beyond a reasonable doubt that Jones premeditated and deliberated before aiding and abetting Devault in shooting and killing the victim. The jury's verdict did not determine the question of whether Jones possessed the specific intent to kill.
Jones nonetheless contends that under the specific facts of this case, the jury's finding that he did not premeditate necessarily means he did not act with the intent to kill. According to Jones, "no words or actions are attributed to appellant after leaving his house; he was only alleged to have ridden in the back of the van while the shooting took place. The jury's finding, in this context, that he did not premeditate, therefore, is necessarily a finding that he did not participate in a plan to go kill people."
To the extent Jones is arguing that the jury's rejection of premeditation and deliberation as to the murder count indicated the jury found Jones factually innocent of any "planning" activity Jones engaged in before leaving his house, he is mistaken."' "[A]cquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt." [Citation.]' [Citation.]" (People v. Prock (2014) 225 Cal.App.4th 812, 819 (Prock); In re Coughlin (1976) 16 Cal.3d 52, 59 ["the fact of an acquittal establishes only that the trier of fact entertained a reasonable doubt of defendant's guilt"].) Here, the jury's decision to acquit Jones of first degree murder indicated that it had a reasonable doubt that Jones's actions before the shooting amounted to first degree murder. The acquittal did not, however, indicate that the jury rejected the truth of the evidence itself. Nothing precluded a finding that Jones intended to kill based on all of his words and actions the night of the shooting.
Prock, supra, 225 Cal.App.4th 812, is instructive on this point. The underlying case concerned a fatal stabbing. After Prock and the victim got into an argument at a gas station, Prock threatened to kill the victim and said," 'I have guns and knives, I'll be back.'" (Id. at p. 815.) He went home, retrieved a knife, returned to the gas station, and fatally stabbed the victim in the chest. (Id. at pp. 815-816.) At the first trial, Prock was acquitted of first degree murder but convicted of second degree murder. (Id. at p. 814.) A federal court granted Prock's subsequent habeas petition and ordered a new trial. At the second trial, the jury again convicted him of second degree murder. (Id. at p. 814.)
On appeal, Prock contended the prosecutor's closing argument improperly sought to relitigate whether Prock premeditated and deliberated by relying on facts reflecting he "planned" the stabbing. (Prock, supra, 225 Cal.App.4th at pp. 817-818.) The Court of Appeal, in affirming the judgment, reasoned that the jury's acquittal on the first degree murder charge in the first trial did not mean that it found Prock "did not factually plan to kill" the victim. (Id. at p. 819.)
The court explained, "An acquittal on first degree murder alters the legal, but not factual, landscape for retrial purposes on lesser offenses. Here, for example, it seems apparent that appellant went home to get a knife. He was thinking about getting a knife before he picked it up and returned to confront the victim. This is planning activity. A prosecutor may argue 'planning' to show murder in the first degree. [Citation.] But such planning may also show express malice to prove second degree murder." (Prock, supra, 225 Cal.App.4th at pp. 820-821.) The court further reasoned that "[b]ecause 'it is impossible to know exactly why a jury found a defendant not guilty on a certain charge,' the jury 'cannot be said to have "necessarily rejected" any facts when it returns a general verdict of not guilty.' [Citation.] Consequently, the jury in appellant's first trial cannot be said to have 'necessarily decided' that he did not factually plan to kill [the victim]." (Id. at p. 819.)
Here, the jury's rejection of the first degree murder charge similarly reflected only that the jury had a reasonable doubt as to his guilt on the degree of the murder. It did not reject the truth or validity of the evidence regarding Jones's actions leading up to the shooting; in other words, it did not change the "factual[ ] landscape" for purposes of the second degree murder charge. (Prock, supra, 225 Cal.App.4th at p. 820.) Nothing precluded a finding that Jones's activity before the shooting-retrieving weapons after hearing Devault's plan for retaliation, arming both Devault and himself with AK-47's, and getting into the van modified to allow him to shoot-fell short of premeditation and deliberation but was still sufficient to prove Jones possessed the specific intent to kill. The trial court's finding beyond a reasonable doubt that Jones harbored the specific intent to kill did not conflict with the jury's acquittal on the charge of first degree murder.
Finally, we note that substantial evidence supports the trial court's finding that Jones directly aided and abetted second degree murder with express malice. (People v. Oliver (2023) 90 Cal.App.5th 466, 480 (Oliver) [appellate courts determine whether there is any substantial evidence to support the trial court's factual findings at a section 1172.6 evidentiary hearing].) The evidence established that Six Deuce members, including Jones, were motivated to retaliate for Cooper's murder. (Smith, supra, 37 Cal.4th at p. 741 ["evidence of motive is often probative of intent to kill"].) After hearing Devault's plan for retaliation, Jones retrieved two AK-47's-lethal, high-powered firearms. He supplied Devault with one AK-47 and kept the other. Along with Devault, he then got into the van specifically modified to allow him to shoot out of the sliding door. Clarence H.'s statement revealed that the only reason Jones did not shoot was because the door jammed. This evidence supported the trial court finding that Jones participated in Devault's plan to "shoot up" the party with the intent to kill. (See Mejia, supra, 211 Cal.App.4th at p. 635 [evidence that the defendant scaled a wall to a bedroom and armed himself with a loaded gun supported the specific intent to kill].)
Jones suggests in passing that deference to the trial court's credibility determinations is not appropriate where, as here, the trial court did not hear live testimony. The single authority Jones cites for this proposition, In re Sodersten (2007) 146 Cal.App.4th 1163, concerns the appellate court's review of a habeas petition in the first instance. (Id. at p. 1223.) In contrast, other courts have deferred to the trial court's credibility determinations during section 1172.6 evidentiary hearings, even where the trial court did not hear live testimony. (Oliver, supra, 90 Cal.App.5th at pp. 481, 482, 484 [appellate court would not second guess a trial court's implicit credibility findings made after a review of witness testimony in the record of conviction].) To the extent Jones contends we should not defer to the trial court's credibility determinations here, the argument is unavailing.
The trial court properly determined the People established Jones committed second degree murder under the still-valid legal theory of direct aiding and abetting with express malice. There is thus no basis for us to conclude Jones's counsel was ineffective for failing to raise any preclusion arguments at the evidentiary hearing. We also need not address the trial court's alternative finding that Jones was guilty of second degree murder under the provocative act doctrine.
IV. Ineffective Assistance of Counsel
Jones also contends he was denied the effective assistance of counsel because his attorney failed to present evidence at the evidentiary hearing "either as part of the record or as new evidence" under section 1172.6, subdivision (d)(3). Specifically, Jones points to declarations from Millsap, Morgan, and the mother of one of Jones's children, Keisha Huntsman, that he previously submitted in support of a petition for writ of habeas corpus.
We previously took judicial notice of portions of the petition-specifically the declarations which were attached as exhibits-at Jones's request.
Millsap declared he saw the shooters on the night of the incident and neither Jones nor Devault was one of the shooters. Morgan attested that he never identified Jones to the police and was certain that Jones and Devault were not the shooters. He also recanted portions of his trial testimony and prior statements to detectives and suggested Clarence H. had a motive to falsely implicate Jones. Huntsman purported to provide Jones an alibi, indicating Jones was taking care of his daughters on the night of the shooting and would not have left them alone. She also indicated Clarence H. had reason to falsely implicate Jones.
"The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the' "right to the effective assistance of counsel at trial."' [Citations.]" (In re Long (2020) 10 Cal.5th 764, 773.) "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "Accordingly, we must 'reconstruct the circumstances of counsel's challenged conduct, and . . . evaluate the conduct from counsel's perspective at the time.' [Citation.]" (In re Long, at pp. 773-774.)
The parties dispute whether Jones had a constitutional right to the effective assistance of counsel at the evidentiary hearing. We assume without deciding that Jones had the right to effective assistance of counsel at these proceedings. (Lewis, supra, 11 Cal.5th at p. 973 [due process concerns justifying the constitutional right to counsel do not apply to prima face stage]; People v. Foley (2023) 97 Cal.App.5th 653, 659 [constitutional right to counsel applies in resentencing petition context once court issues order to show cause and holds evidentiary hearing].)
Jones has not shown that by failing to offer these declarations as evidence at the hearing on his resentencing petition, his counsel's representation fell below the requisite standard of reasonableness. The declarations are hearsay that Jones apparently would have offered for their truth. (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1085, fn. 5 [a written declaration "is archetypical hearsay"].) The declarations would not have been admissible at the evidentiary hearing absent the applicability of an exception to the hearsay rule. (Evid. Code, § 1200; § 1172.6, subd. (d)(3) ["The admission of evidence in the hearing shall be governed by the Evidence Code"].) Jones has not identified any hearsay exception that would have applied to the declarations. Nor does Jones contend that the declarants were available to testify or that his counsel was ineffective for failing to call them as witnesses.
From counsel's perspective at the time, it would have been reasonable to conclude that the declarations were hearsay not subject to any exception, and that the prosecutor would successfully object to their admission on that basis. Counsel was not required to present plainly inadmissible evidence to satisfy the standard of reasonable representation. (People v. Jones (1979) 96 Cal.App.3d 820, 827 ["Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel"].) The decision not to present the declarations as evidence at the evidentiary hearing did not fall below objective standards of reasonableness.
DISPOSITION
The trial court's order is affirmed.
We concur: LAVIN, Acting P. J., EGERTON, J.