Opinion
A162733 A162781
04-08-2022
THE PEOPLE, Plaintiff and Respondent, v. MANUEL TRUJILLO, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. MOHAMMED ZARIN KHAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. H52317C, H52317B
RICHMAN, ACTING P.J.
In 2015, defendants Mohammed Zarin Khan and Manuel Trujillo were convicted by a jury of first degree murder and attempted voluntary manslaughter. In 2019, following the passage of Senate Bill No. 1437, they filed petitions under Penal Code section 1170.95 to vacate their murder convictions. Over the People's opposition, the trial court found defendants had established a prima facie case for relief, issued an order to show cause, and held an evidentiary hearing. At the conclusion of the hearing, which was conducted by a judge who did not originally sentence defendants and at which no party introduced new live testimony, the court denied the petitions. Both Khan and Trujillo appeal. We affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The Facts
In our opinion in the prior appeal, we summarized the evidence presented at trial as follows:
"The case involves the murder of Francisco Lopez and the attempted murder of his brother Fernando that occurred when the Lopez brothers went to rob a grow house in Hayward. These are the facts leading to those crimes. [¶] . . . [¶]
"Sometime before February 2010, Abraham Sanchez and his brother Tiburcio Sanchez moved into a house on Standish Avenue in Hayward (Standish house) to work there in connection with a marijuana operation.Their cousin, Jesus Serna, joined them several months later. All three men were Mexican immigrants, and none spoke much English. They paid no rent, and would themselves be paid 'to watch over the house and watch over the marijuana,' and would be paid 'for every crop.' Their duties included treating the plants with chemicals and 'making sure that everything was going well.'
"Four of the participants here, Abraham and Tiburcio Sanchez and the victims, brothers Fernando and Francisco Lopez, share the same surnames. We will refer to them by their first names. All others will be identified by their last names."
"The Standish house was 'overseen' by Khan and Sylvestre Arroyo. Khan lived in a rental home in Hayward, and he, usually with Arroyo, would visit the Standish house approximately every two weeks, bringing chemicals and other items to help the grow. Khan did not speak Spanish, so Arroyo would speak to Abraham, who would translate for Khan. And when Abraham spoke with Khan by telephone, Trujillo would translate for him. [¶] . . . [¶]
"During the early morning hours of February 26, 2010, Fernando was sleeping in his parents' home in East Palo Alto, when he was awakened by a call from his brother Francisco, who asked him to 'come with him.' Some 45 minutes later Francisco picked up Fernando at their parents' house and, with Francisco's girlfriend Camie Libasci driving, they went to the Standish house. While Libasci sat in her car outside, the two men kicked open the front door.
"The noise awakened Serna, who went to Abraham's room to awaken him. Abraham got the shotgun and, armed with it, he and Serna went downstairs and then into the small garage, where they encountered the Lopez brothers. With the shotgun pointed at the brothers, Abraham and Serna asked why they had 'come inside like that.' They said Arroyo had sent them to rob them, to take the marijuana.
"Abraham called Khan to tell him about the break-in. Khan turned the call over to the Spanish-speaking Trujillo, who told Abraham they would be coming to the house.
"Abraham testified he called Khan because Khan had told him and Tiburcio that 'he was the one who had the top command there.' As Abraham put it on another occasion, Khan 'was the one who was in charge of what was going on there.' "
"Libasci, who as noted had parked in the driveway, testified that after some 15 minutes she heard a gunshot, a man scream, and a dog barking. She continued to wait for another 45 minutes, when a black Expedition pulled in front of the driveway and at least three men got out, one carrying a gun. Libasci slowly started her car, and then saw the men walk back to the Expedition. She pulled out of the driveway, made two left turns, and noticed the Expedition coming towards her. She drove past the Expedition and started speeding, and the Expedition made a U-turn and began to chase her. She pulled onto the freeway heading toward San Francisco, got off a few exits up the freeway, and headed back toward Palo Alto. The Expedition was still following. A Highway Patrol car pulled Libasci over, 'clocked at 90.' Libasci told the officer she was being chased and the people chasing her had her boyfriend and his brother. The officer did not believe her and told her to go home and wait for her boyfriend. After the officer wrote the speeding ticket, Libasci drove to Menlo Park to get Francisco's best friend, Javier Esparza, and they then drove back to the Standish house, where they found Fernando hiding in the bushes.
"Apparently while some of the above was occurring, Tiburcio arrived at the Standish house and called Khan. Khan told Tiburcio 'he was coming right away,' and Tiburcio waited outside for him to arrive. Shortly thereafter, Khan, Trujillo, a 'muscular' man, and Miguel Michel arrived at the Standish house. They went immediately to the small garage where the Lopez brothers were being held at gunpoint by Abraham and Serna.
"Khan had an AK-47 rifle and Trujillo a .45-caliber pistol. Speaking in English, Khan spoke 'loudly' to the Lopez brothers. Trujillo, speaking to the brothers in Spanish, said 'Khan was the boss there, and that they had made a mistake about the people that they had come to steal from.' And then the beatings began, Khan and Trujillo beating the Lopez brothers with their fists and firearms. They also kicked them. At some point, they bound the brothers' hands behind their back with zip ties. Michel also beat Francisco with his hands and choked him with an electrical cord, and he tried to hit the men in their heads with a drill. And at one point they removed the brothers' clothing. Sometime in the course of the beatings, Trujillo told the brothers 'that he was still outside to kill trash like [them].' Khan and Trujillo also threatened their lives and told them they were 'done for . . . that was it for [them].' Fernando testified that while he was in the garage, he believed his life was in danger.
"During the beatings, a gun went off accidentally and Michel was shot in his leg. Tiburcio instructed Serna to take Michel home and not return. Not long after that, the men holding the Lopez brothers in the garage led them outside. While Khan was holding Fernando's hands and directing him towards a parked vehicle, Fernando was able to break free of the zip ties and escape. Trujillo chased after him with a power drill that he used to try 'to punch and stab' Fernando, but Fernando was able to ultimately escape and, after unsuccessfully seeking help from neighbors, hid in the bushes where, as noted, Libasci found him.
"Meanwhile, Fernando saw someone drag Francisco out of the garage and put him into the back seat of a black Explorer. Trujillo, Tiburcio, and the muscular man then got into the Explorer. They saw Khan standing in the street, and picked him up, and Khan got into the driver's seat and drove to his house in Hayward. The muscular man dragged Francisco out of the vehicle and left him on the living room floor of Khan's house, where all three of them, Khan, Trujillo, and the muscular man, beat him in his face with closed fists and kicked him. Khan's wife told the men to stop, and they did. At that point, Francisco appeared to have trouble breathing, though he was still alive.
"Khan told the others that Francisco 'shouldn't stay there.' The muscular man grabbed Francisco, put him in the back seat of a black Lincoln, and got into the driver's seat; Trujillo got into the front passenger seat, Tiburcio in the back with Francisco. After driving for a while, the muscular man stopped the car, got out, and pulled Francisco from the car, leaving him on the ground at the side of the road. They then drove back to Khan's house and stayed there. Trujillo drove the Lincoln to take Tiburcio to get his truck.
"Six months later, on August 25, 2010, the police were interviewing Tiburcio, in the course of which he told them they would find Francisco's body near Niles Canyon Road or Highway 84, just outside Fremont. Accompanied by Tiburcio, the police went to that area, where they found Francisco's skeletonized body. The pathologist who performed the autopsy testified that Francisco had suffered at least six fractures in his face consistent with blunt force trauma, and opined that Francisco's death was caused by 'the totality of all of the fractures put together.'" (People v. Khan (Mar. 1, 2018, A147436) [nonpub. opn.], at *1-5.)
The Proceedings Below
"On August 28, 2014, the Alameda County District Attorney filed a first amended information charging Trujillo and Khan as follows: count one- murder of Francisco Lopez (. . . § 187[, subd.] (a)); count two-attempted murder of Fernando Lopez (§§ 187[, subd.] (a), 664); and count three- cultivation of marijuana (Health & Saf. Code, § 11358). Personal use of a firearm allegations were attached to counts one and two (§§ 12022, subd. (a)(1) and 12022.5, subd. (a), and 12022.53, subds. (b) and (g)); and it was alleged that both defendants suffered multiple prior convictions and served multiple prior prison terms (§ 667.5, subd. (b))." (People v. Khan, supra, at *5, fn. omitted.)
On October 19, 2015, following a trial presided by Judge Jon Rolefson, "the jury returned its verdicts, as follows:
"Khan: guilty of first degree murder of Francisco; guilty of attempted voluntary manslaughter of Fernando; guilty of cultivating marijuana; and not guilty of the use of a firearm. [¶] Trujillo: guilty of first degree murder of Francisco; guilty of attempted voluntary manslaughter of Fernando; not guilty of cultivating marijuana; and arming with a firearm found true.
"On January 29, 2016, the court sentenced Trujillo to state prison for a total term of 31 years to life . . . . Khan was sentenced to 32 years 2 months to life . . . ." (People v. Khan, supra, at *6.)
Khan and Trujillo appealed from their convictions, and this court affirmed. (People v. Khan, supra, at *1, 20.)
The Section 1170.95 Proceedings
In 2019, Khan and Trujillo filed petitions under section 1170.95 to vacate their murder convictions. They averred they were convicted of murder pursuant to the felony murder rule or natural and probable consequences doctrine, and that they could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019. They also denied they were the actual killers, aided and abetted the commission of first degree murder with the intent to kill, and/or were major participants in the underlying felony and acted with reckless indifference to human life. And they requested the appointment of counsel.
Judge Morris Jacobson, who had not sentenced defendants, appointed counsel for defendants and ordered the parties to submit briefing on defendants' eligibility for relief. After rounds of briefing, Judge Jacobson found defendants had made a prima facie showing of eligibility and ordered an evidentiary hearing.
The evidentiary hearing was held on April 20, 2021 and May 5, 2021, prior to which the parties submitted further briefs summarizing the evidence that supported their positions. Although section 1170.95 specifically allows the introduction of new or additional evidence, the parties agreed they would not introduce such evidence. Defendants' records of conviction, including trial transcripts and our opinion in the prior appeal, were submitted to the court. No one testified.
Following extensive argument, Judge Jacobson denied the petitions. He determined the People proved beyond a reasonable doubt that defendants were guilty of first degree murder, notwithstanding the changes to the law. Specifically, Judge Jacobson found the evidence proved that both defendants were the actual killers of Francisco, that even if not the actual killers, they aided and abetted the actual killer with the intent to kill, and that they were major participants in the underlying felony and acted with reckless indifference to human life. He thus concluded neither Khan nor Trujillo was entitled to relief under section 1170.95.
Khan and Trujillo filed timely notices of appeal. We subsequently granted the People's motion to consolidate the appeals.
DISCUSSION The Law
Last year we summarized:
" 'Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 'to amend the felony[-]murder rule and the natural and probable consequences doctrine, as it relates to murder, 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).)' (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) 'To further that purpose, Senate Bill [No.] 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill [No.] 1437 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 Section 190.2."' (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
"In effect, Senate Bill No. 1437 [(2017-2018 Reg. Sess.)] limited felony-murder liability to murders that fall within the felony-murder special-circumstances provisions of section 190.2. It also eliminated natural and probable consequences murder liability altogether. (Gentile, supra, 10 Cal.5th at pp. 842-843.) And it 'added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.' (Lewis, supra, 11 Cal.5th at p. 959.)
"As we explained in People v. Anthony (2019) 32 Cal.App.5th 1102,' "An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.'"' (Id. at p. 1148; see § 1170.95, subd. (a)(1)-(3).)
" 'Where the petition complies with subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made "a prima facie showing" for relief. (§ 1170.95, subd. (c).)' (Lewis, supra, 11 Cal.5th at p. 960.) 'If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (§ 1170.95, subd. (d)(3).) At the hearing stage, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3).)' (Ibid.)" '" (People v. Price (2021) 71 Cal.App.5th 1128, 1142-1143, review granted Feb. 9, 2022, S272572.)
After the trial court's decision in this case, the Legislature amended several provisions of section 1170.95, while leaving other provisions unchanged, to take effect on January 1, 2022. (Stats. 2021, ch. 551, §§ 1, 2.) Amended section 1170.95, subdivision (d)(3), like its former version, states that "the prosecution and the petitioner may . . . offer new or additional evidence to meet their respective burdens." (Stats. 2021, ch. 551, § 2.)
Khan's Appeal
Khan devotes his briefs to arguing that we should review the trial court's ruling independently, rather than for substantial evidence. He claims that because the court's inquiry was limited to a cold record-the trial transcript-without observation of live testimony, deference to the court's factual findings is inappropriate. Then, in a single sentence within the "Conclusion" section of his opening brief, Khan contends that this court, upon conducting independent review of the facts, should determine "the prosecution failed to satisfy its burden of proving beyond a reasonable doubt that [he] was ineligible for relief under section 1170.95."
We disagree with Khan that de novo review is appropriate under the circumstances of this case. In People v. Perez (2018) 4 Cal.5th 1055 (Perez), our Supreme Court rejected a similar argument in the analogous context of a Proposition 36 petition for recall of a sentence. The People argued that de novo review was "more appropriate because trial courts do not have an advantage over appellate courts in determining eligibility based on the record of conviction." (Id. at p. 1066.) The Supreme Court disagreed, concluding that "even if the trial court is bound by and relies solely on the record of conviction to determine eligibility, [where] the question . . . remains a question of fact . . . we see no reason to withhold the deference generally afforded to such factual findings." (Ibid.)
Khan mainly relies on People v. Vivar (2021) 11 Cal.5th 510 (Vivar) in support of de novo review, but that case is distinguishable. There, the Supreme Court endorsed the independent standard of review when evaluating a trial court's decision under section 1473.7 whether to vacate a conviction due to negative immigration consequences stemming from the conviction. (Vivar, supra, 11 Cal.5th at pp. 524-527.) "A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea." (Vivar, at p. 517.) In choosing independent review in this context, the court emphasized that the questions raised by a section 1473.7 motion, "while mixed questions, are predominantly questions of law." (Vivar, at p. 524.) Here, in contrast, the question whether a defendant is liable for murder stated in the new law presents predominantly factual questions. On top of that, the Vivar court expressly limited application of independent review to proceedings pursuant to section 1473.7. (Vivar, at p. 528, fn. 7.)
So are the other cases he cites. For example, People v. Peoples (2016) 62 Cal.4th 718, 740 and People v. Duff (2014) 58 Cal.4th 527, 551 held that independent review applies to a challenge to the denial of a suppression motion on Miranda and involuntariness grounds where facts surrounding the giving of a statement are undisputed. Here, however, the evidence at the section 1170.95 proceedings were heavily disputed. Khan also cites In re Cudjo (1999) 20 Cal.4th 673, a proceeding on a habeas corpus petition in which the Supreme Court found deference to the referee's factual findings "arguably inappropriate" where the findings were based solely on documentary evidence. (Id. at pp. 687-688.) But, because habeas corpus bears little resemblance to appellate review of a lower court's judgment, as the People note, In re Cudjo is not controlling. (See Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 250, fn. 5 ["[B]ecause habeas corpus is a collateral attack, a court considering such a petition is not genuinely 'reviewing' an earlier judgment. Thus, a petition for writ of habeas corpus is classified as an 'original proceeding' no matter what court it is filed in"].)
Thus, Perez, rather than Vivar, applies in this case. (See People v. Clements (2022) 75 Cal.App.5th 276, 302 (Clements).) The question of eligibility for section 1170.95 relief-such as whether defendants were major participants of the underlying felony with reckless indifference to human life-is predominantly a question of fact. (Clements, supra, at p. 302.) Under such circumstances, "we see no reason to withhold the deference generally afforded to such factual findings." (Perez, supra, 4 Cal.5th at p. 1066.) The substantial evidence standard of review therefore applies.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. . . . In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] 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. . . .' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the [trier of fact's decision.] [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"Although the usual formulation of the standard of review, set forth above, could be read to suggest that we will review the record to determine if it contains substantial evidence to support the fact finder's [ruling] even if the defendant does nothing more than baldly assert that the evidence is insufficient, that is not the case." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 (Sanghera).) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (Ibid.) "To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[ ] of conviction.' . . . Rather, he must affirmatively demonstrate that the evidence is insufficient." (Ibid., citing People v. Daniels (1948) 85 Cal.App.2d 182, 185 (Daniels).)
Khan, without any analysis of the evidence, contends that the evidence was insufficient to support the denial of his petition. "That is not a proper method of presenting the point." (Daniels, supra, 85 Cal.App.2d at p. 185.) Khan's failure to affirmatively demonstrate error allows us to "disregard[] the point entirely." (Ibid.) However, given that the People have undertaken to analyze the evidence-an analysis Khan does not challenge in his reply brief-we review the evidence to determine whether it was sufficient to support the denial of Khan's section 1170.95 petition.
Underlying Khan's appeal (as well as Trujillo's) is a concern about the trial court's ability to assess, on the cold record, the credibility of material trial witnesses, namely Tiburcio. The court was expressly aware of the credibility issues posed by Tiburcio, an accomplice who had pleaded to manslaughter conditioned on his truthful testimony at trial. For that reason, the court, "with care and caution," evaluated his trial testimony pursuant to CALCRIM No. 335, which instructs that a conviction cannot be had on the testimony of an accomplice unless that testimony is corroborated by other evidence that tends to connect the defendant with the commission of the evidence. After identifying the critical components of Tiburcio's testimony regarding the incident, the court explained how such testimony was independently corroborated by Fernando Lopez and Ana Gaono. Consequently, it found Tiburcio's testimony credible.
Against that backdrop, the court proceeded to analyze whether the evidence established defendants were liable under each of the three theories for murder stated in amended section 189, subdivision (e). It found, in part, "that it's been proved beyond a reasonable doubt as to both Mr. Trujillo and Mr. Khan, that they were major participants and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) Relying on the factors in People v. Clark (2016) 63 Cal.4th 522 and People v. Banks (2015) 61 Cal.4th 788, the court determined the following:
"So as to both Mr. Khan and Mr. Trujillo, I find it's been proved . . . beyond a reasonable doubt that Mr. Khan was the boss in this operation and that Mr. Trujillo was sort of the second in command; and when it came to the Spanish speakers in the situation, Mr. Trujillo acted as a go-between Mr. Khan, who apparently did not speak Spanish, and those who do not speak English. [¶] It's clear to me that Mr. Khan was the leader of this endeavor. He was the lead person in this event on the grow house, and he was the person that was directing the assaults on Fernando and Francisco Lopez. [¶] . . . Fernando and Francisco Lopez were caught by the residents of the house. They were held at shotgun after a telephone call apparently was made. They were held by shotgun in the garage until this other group of men arrived. [¶] When the other group of men arrived, the lead person in whatever was going on was Mr. Khan, and the second lead person was Mr. Trujillo. . . . [¶] When we move into other portions of this event, the events that occurred at Mr. Khan's house, as well as ultimately taking Francisco, from Mr. Khan's house down to Niles Canyon Road, I find that Mr. Trujillo took over as the person in charge.
"What role did the defendant have in supplying or using lethal weapons? [¶] It appears to me that the lethal weapons that were used here that caused the death, in fact, were people's fists and feet. Both Mr. Khan and Mr. Trujillo participated by punching and kicking both victims and particularly administering a beating to Francisco Lopez.
"What awareness did the defendant have of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? [¶] . . . [I]n terms of the awareness of the particular dangers posed by the nature of the crime, I do find that both Mr. Khan and Mr. Trujillo were well aware that Francisco Lopez was being severely beaten. They were aware that the man, Michel, who was with them, and apparently in a subordinate position to them in this event, had put an electrical cord around Francisco Lopez's neck and was choking him, strangling him, at the time that he was continuing to be beaten. [¶] They were aware, I'm sure-so Mr. Trujillo, sort of more directly on the driveway- that Francisco Lopez was beaten to the point of unconsciousness; and . . . what was described as difficulty breathing and that Mr. Francisco Lopez was very severely injured. More of this is described once the group arrives at Mr. Khan's house where more beating is administered. And then Mr. Khan, after his wife intervenes, tells the others to remove Francisco Lopez. And then Mr. Trujillo, I find, is certainly aware that Francisco Lopez is very, very severely injured; and then they leave him by the side of the road on Niles Canyon Road. [¶] . . . [¶]
" . . . [W]as the defendant present at the scene of the killing in a position to facilitate or prevent the actual murder, and did his or her own actions or inactions play a particular role in the death? [¶] . . . Khan and Trujillo] were both active participants in this. They were not only directing others to administer the beating; they were landing blows themselves. Throughout this they were telling these men they weren't going to survive this event; they were going to die. Various form of death threats were being made. . . . [¶] They could have prevented the murder by stopping the beating, by just saying, okay, that's enough. Instead they chose to facilitate the killing. [¶] . . . [¶]
"And this kind of overlaps into the next question, which is what did the defendant do after the lethal force was used? [¶] So after this very, very severe beating and strangulation, all of that went on, Mr. Khan resituated the group to his house where more beating went on; and then once his wife intervened, he directed the others to get rid of [Francisco], to take him away to somewhere else. And Mr. Trujillo oversaw that portion of it and, again, they didn't get medical attention. They left the man by the side of the road to die."
Turning to whether defendants acted with reckless indifference to human life, the court stated:
". . . I'm incorporating the facts that I've indicated in my analysis for major participant . . . . [¶] So I certainly find based on the numerous death threats that were being made while these very severe beatings were going on, the strangulation that was going on, telling these men that they were never going to come back from this, and then the fact of taking one of the two men, Francisco Lopez, out and dumping him by the side of the road, those are all factors that I'm considering.
"I'm mindful that I need to consider whether there was knowledge of weapons and the use in the number of weapons. Again, in this situation, it was fists and feet.
"Another factor I should consider is physical presence at the crime and the opportunities to restrain the crime and/or aid the victim. [¶] Again, Mr. Khan and Mr. Trujillo were leading this attack. They were present. They could have stopped it. They could have gotten Francisco Lopez to the hospital. Instead, they simply increased the beating, ultimately dumping him by the side of the road.
"Another factor is the duration of the felony, and it seems to me that this beating [of Francisco] went on . . . for between two and three hours, which is a really, really long time to systemically beat somebody. [¶] . . . [¶]
"Another factor would be a defendant's efforts to minimize the risk of violence during a felony. And I find that they simply increased it. They took no steps to minimize the risk of violence during this event.
"So I find that both Mr. Khan and Mr. Trujillo acted with reckless indifference to human life."
The trial court was spot on.
We easily conclude from the court's thorough and thoughtful analysis above that substantial evidence supports its finding that Khan was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e)(3).) On this basis, the court properly found Khan ineligible for relief.
Given our conclusion, we need not consider whether the evidence also was sufficient to support the court's additional findings that defendants were the actual killers or that they aided and abetted the actual killer with the intent to kill. (§ 189, subd. (e)(1), (2).)
Trujillo's Appeal
Trujillo makes two arguments himself: first, that the trial court "prejudicially violated section 1170.95, subdivision (b)(1) when a judge other than the one that sentenced [him] evaluated the merits of [his] petition"; and second, that the court "erred in denying [his] section 1170.95 petition after an evidentiary hearing because it made critical witness credibility findings to conclude the prosecution met its beyond-a-reasonable-doubt burden despite only receiving evidence in the form of dry record transcripts." We reject both arguments, which we view as two sides of the same coin.
The Assignment of the Petition to Judge Jacobson Does Not Require Reversal
Section 1170.95, subdivision (b)(1) provides, in relevant part, that the "petition shall be filed with the court that sentenced the petitioner . . . . If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition." Trujillo argues it was error under section 1170.95 to have a judge other than the original sentencing judge to rule on his petition absent a showing in the record that the sentencing judge was unavailable.
The People counter that Trujillo forfeited this claim of error by failing to raise any objection on this point in the trial court. We agree. (People v. Anderson (2020) 9 Cal.5th 946, 961 ["[A] criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal"]; People v. Halvorsen (2007) 42 Cal.4th 379, 429 [challenge to the improper substitution of judge in criminal trial forfeited by defendant's failure to object].)
Trujillo's attempt in his reply brief to overcome forfeiture is unavailing. He relies on People v. Bueno (2019) 32 Cal.App.5th 342, a case declining to apply forfeiture to a claim that the defendant had a right under People v. Arbuckle (1978) 22 Cal.3d 749 to be sentenced by the same judge who accepted his guilty plea. We are not persuaded by the analogy to the Arbuckle context because a plea agreement is not involved in this case.
Even if Trujillo's claim was not forfeited, we also agree with the People that any error in not assigning the petition to the sentencing judge was harmless in light of his retirement prior to the evidentiary hearing. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The People have asked us to take judicial notice of the Judicial Directory and Assignments of the Alameda County Superior Court posted on the court's website as of March 19, 2019 and September 4, 2020, as well as Judge Rolefson's profile page on Ballotpedia.com. The documents indicate that by the time the evidentiary hearing was held on April 20, 2021 and May 5, 2021, Judge Rolefson was no longer listed as a judge on the court's directory and had retired. We granted the motion for judicial notice, which Trujillo did not oppose. (Evid. Code, §§ 451, subd. (f), 452, subds. (g), (h), 459, subd. (a).) Indeed, Trujillo concedes that Judge Rolefson retired sometime after he filed his petition but before the evidentiary hearing was held.
Despite this concession, Trujillo argues in his reply brief that Judge Rolefson's retirement did not make him unavailable to rule on his petition because California provides a program that issues temporary judicial assignment orders to retired judges. Trujillo, however, does not offer any evidence that Judge Rolefson participated in such a program. In the absence of such evidence, there could be no reasonable dispute that Judge Rolefson was unavailable to rule on Trujillo's petition, having retired. Therefore, the People correctly assert that "[b]ecause it is apparent that even had Trujillo's petition initially had been assigned to Judge Rolefson, it would ultimately have been reassigned to another judge, any error was necessarily harmless."
Trujillo insists that assignment of his petition to Judge Jacobson was "prejudicial error." He compares his case to People v. Daniel (2020) 57 Cal.App.5th 666 (review dism. Dec. 1, 2021, S266336) (Daniel), in which Division One of our First District found harmless any error in assigning the defendant's section 1170.95 petition to a judge other than the sentencing judge-in that case, also Judge Jacobson-with no indication that the sentencing judge was unavailable. Trujillo contends that whereas in Daniel, Judge Jacobson found the defendant was ineligible for relief as a matter of law at the prima facie stage, here, he had to make credibility determinations at the hearing stage. (Daniel, at pp. 671, 679.) Based on this distinction, he suggests we should reach the opposite conclusion from Daniel and conclude that the assignment of his petition to Judge Jacobson was prejudicial. Trujillo then seizes on a statement in Daniel that in turn quotes People v. Santos (2020) 53 Cal.App.5th 467, 473-474 (Santos) stating, "Although both the petitioner and the prosecution are permitted to present additional evidence beyond that introduced at the time of conviction, a judge who is familiar with the facts, evidence, and law already part of the record is better equipped to rule on a petition than a different judge, unfamiliar with the case, who is reviewing a cold record. . . . The Legislature's intent is best served when the outcome of the petition is determined by a judge who is particularly well-placed to take all the facts and circumstances of the underlying case into account." (Santos, supra, 53 Cal.App.5th at p. 474.)
Trujillo takes the quoted statements from Santos out of context. At issue in Santos was whether, as the People there asserted, "section 1170.95, subdivision (b)(1) requires that a petition be heard by the judge presiding in the Department where the petitioner had previously been sentenced, regardless of whether that judge was the same person who sentenced the petitioner." (Santos, supra, 53 Cal.App.5th at p. 472.) In support of this interpretation, the People argued" 'the original sentencing judge's familiarity with the underlying facts is of marginal importance' and 'has no import to' a petitioner's resentencing." (Id. at p. 474.) The court rejected these arguments and concluded section 1170.95, subdivision (b)(1) requires that the petition be heard by the actual judge who sentenced the petitioner unless that judge was unavailable. (Santos, supra, 53 Cal.App.5th at pp. 473-474.) In so holding, the court made the observations quoted by Trujillo concerning the significance of having a judge familiar with the facts of a case rule on a section 1170.95 petition over a judge who is not. (Santos, at p. 474.) We acknowledge the distinction. However, Trujillo incorrectly reads into the Santos court's statements a requirement that, in ruling on a section 1170.95 petition, witness credibility determinations can be made only by a judge who has personally observed the testimony. Such a proposition is untenable.
As the Fourth District in Clements recently observed, "It's true that it's unusual to ask the trial judge to sit as the fact finder and (in some cases) make factual determinations on a cold record, as the judge did in this case. While that is not the ideal position for a fact finder, it is possible to review a trial transcript and reach an opinion about what actually happened. The Legislature landed on that compromise as a way of extending the ameliorative benefits of its redefinition of murder to people previously convicted under prior law, which they judged to be too harsh. They could have directed that qualifying offenders receive a new trial by a new jury on the critical factual questions. But that was impractical for many reasons; the expense would have been enormous and the chances of obtaining live testimony from witnesses who remembered the events from years or decades earlier is small. The Legislature also could have simply refused to make the benefits of the new law available to people already validly convicted under the old law. They chose the middle course of requiring trial judges to decide the critical factual questions based-at least in some cases-on a cold record. While the Legislature's compromise is not perfect, it is adequate. And if either party believes it's important to put on live testimony to allow the trial judge to make credibility determinations based on cues other than consistency and plausibility, the statute expressly allows them that opportunity." (Clements, supra, 75 Cal.App.5th at p. 297.)
Though not directly on point, our Supreme Court's resolution of an analogous issue also supports our conclusion. (See People v. Espinoza (1992) 3 Cal.4th 806 (Espinoza).) In Espinoza, a second trial judge was substituted midway through the guilt phase of a murder case because the first judge had become too ill to continue. (Id. at pp. 827-831.) The defendant objected to the substitution on the grounds that the second judge could not properly rule on the motion to modify the jury's death verdict. (Id. at pp. 828-829.) The defendant argued that, because the second judge did not personally hear the testimony of a crucial material witness, he could not possibly evaluate the witness's credibility and thus "could not fully exercise his independent judgment of the evidence" for purposes of ruling on the motion. (Id. at p. 829.)
The Supreme Court disagreed. (Espinoza, supra, 3 Cal.4th at p. 830.) It acknowledged that, when ruling on a motion to modify a death judgment, the trial court conducts an "independent judgment" of the evidence; the judge must" 'assess the credibility of the witnesses, determine the probative force of the testimony, and weigh the evidence.'" (Ibid.) Notwithstanding this procedure, the court rejected the defendant's contention that "the requisite assessment can be made only by a judge who has personally heard the testimony presented at the guilt phase of the trial." (Ibid.) "As we have acknowledged in cases that were reversed and remanded for reconsideration of an application for modification of a death verdict, it is not always possible that the judge who conducted the penalty phase in a capital case be the one to reconsider the application on remand; in that event, 'the matter may be heard before another judge of the same court.' [Citation.]" (Ibid.) Noting that the replacement judge had "reviewed the transcripts of the trial proceedings before his substitution and presided over the remainder of the guilt phase and the entire penalty phase," the court rejected the contention that he could not fully exercise his independent judgment in ruling on the modification application. (Ibid.)
We reach the same conclusion under the circumstances of this case, in which Judge Jacobson reviewed the transcripts of the trial proceedings before ruling on the petitions. "As the court implied in . . . Espinoza . . ., when the original trial judge is unavailable, necessity requires the replacement judge to evaluate the credibility of the witnesses as best he or she can from the written record." (People v. Lewis (2004) 33 Cal.4th 214, 226.) That is what occurred here. We thus reject Trujillo's contention that Judge Jacobson's assignment over his petition "resulted in prejudicial error" simply because his "evaluation of witness credibility was based only upon the trial record."
There Was Sufficient Evidence
Trujillo's second argument is that the prosecution did not present substantial evidence to prove beyond a reasonable doubt he was ineligible for relief because it did not call live witnesses at the evidentiary hearing. Consequently, he argues the trial court's denial of his petition was not supported by sufficient evidence. This argument is essentially a variation of his first, as it also relies on the premise that Judge Jacobson had no "viable way to evaluate" witness credibility because he did not personally observe the testimony at trial. We already rejected that premise.
Trujillo's argument also suggests that the People were obligated to call witnesses at the evidentiary hearing in order to meet its burden "to prove, beyond a reasonable doubt, that the petitioner is guilty of murder" under the new law. (§ 1170.95, subd. (d)(3).) Such an argument cannot be squared with the plain language of section 1170.95, subdivision (d)(3). That provision, as Trujillo acknowledges, stated that "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.) Thus, the prosecution was not required to call live witnesses at the evidentiary hearing in order to meet its burden of proof. As the People note, were we to adopt Trujillo's suggestion otherwise, we effectively would be "insert[ing] additional language into the statute" that the prosecution must present new live testimony at the hearing. We decline to do so, as it would" 'violate the cardinal rule of statutory construction that courts must not add provisions to statutes.'" (People v. Guzman (2005) 35 Cal.4th 577, 587.) Accordingly, the trial court did not lack sufficient evidence from which to deny the petition merely because it was not presented with live testimony at the hearing.
Other than arguing about what evidence is not in the record, Trujillo, like Khan, makes no attempt to analyze whether the evidence that was before the court was sufficient. And, as with Khan, Trujillo's failure to do so allows us to disregard the point. (Sanghera, supra, 139 Cal.App.4th at p. 1573; Daniels, supra, 85 Cal.App.2d at p. 185.) In any event, for the same reasons discussed above with respect to Khan, we conclude substantial evidence supports the court's finding that Trujillo was a major participant in the underlying felony and acted with reckless indifference to human life. He was thus ineligible for relief.
In sum and in short, the trial court properly denied Khan's and Trujillo's petitions under section 1170.95.
DISPOSITION
The orders denying Khan's and Trujillo's petitions are affirmed.
We concur: Miller, J., Mayfield, J. [*] --------- Notes: [*]Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.