Filed 12/27/22 P. v. Thimbrel CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN THIMBREL,

Defendant and Appellant.

 B317779

 (Los Angeles County

 Super. Ct. No. BA032307)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Renee F. Korn, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Nima Razfar, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

Defendant Sean Thimbrel appeals from an order denying 

his petition for resentencing pursuant to Penal Code section 

1172.6.

1 We affirm.

II. BACKGROUND

A. Underlying Conviction

On January 14, 1991, at around 5:30 p.m., defendant 

borrowed a Monte Carlo in exchange for rock cocaine about half a 

mile from Olympic Boulevard and La Brea Avenue. (People v. 

Larranaga, et al. (Apr. 19, 1993, B060628) [nonpub. opn.] 

(Larranaga).) Defendant was alone at the time he borrowed the 

car and told the car owner that he needed it to pick up his 

girlfriend. (Ibid.)

Two hours later, Anthony Stephenson and Kerry O’Neal 

were driving westbound on Olympic Boulevard in Stephenson’s 

Mustang. (Larranaga, supra, B060628.) Neither man was a 

gang member. (Ibid.) As they approached Olympic and 

Sycamore, O’Neal noticed defendant’s car traveling faster than 

they were. (Ibid.) The Monte Carlo initially maneuvered as 

though to turn left, but instead drove behind the Mustang. 

(Ibid.) At a red light on La Brea Avenue, the Monte Carlo pulled 

1 Further statutory references are to the Penal Code. 

Effective June 30, 2022, the Legislature renumbered section 

1170.95 to 1172.6 with no change in text. (Stats. 2022, ch. 58, 

§ 10.) We will refer to the statute by its current section number 

only.
3

into the left turn lane next to the Mustang. (Ibid.) The Monte 

Carlo’s closeness caught O’Neal’s attention. (Ibid.)

O’Neal exchanged a glance with Stephenson. (Larranaga, 

supra, B060628.) O’Neal looked again at the Monte Carlo and 

saw the front seat passenger, Jerome Larranaga, hanging out of 

the window, holding a gun with both hands, and pointing it at the 

Mustang. (Ibid.) Stephenson and O’Neal ducked when they saw 

the gun. (Ibid.) O’Neal heard two quick shots, and after a pause, 

a third shot. (Ibid.)

O’Neal waited a second before sitting up. (Larranaga, 

supra, B060628.) Stephenson was lying down with his face on 

O’Neal’s lap. (Ibid.) The Mustang drifted into the intersection 

but O’Neal, who was in the passenger seat, was able to stop the 

car. (Ibid.) Stephenson was unconscious, had a faint heartbeat, 

and had been shot in the face. (Ibid.) O’Neal asked two people to 

call the police. (Ibid.) Stephenson died of a gunshot wound to the 

head. (Ibid.) He also had a gunshot wound to the left shoulder. 

(Ibid.)

The police arrived at 7:45 p.m., and paramedics treated 

Stephenson in the Mustang. (Larranaga, supra, B060628.) The 

police searched the Mustang and found no weapons. (Ibid.) 

There was a bullet hole in the driver’s door. (Ibid.)

A Los Angeles Police Department officer was on duty near 

Olympic and La Brea between 7:30 and 7:40 p.m. on January 14, 

1991. (Larranaga, supra, B060628.) The officer heard two 

gunshots in rapid succession, followed by a third gunshot. (Ibid.) 

He then saw the Monte Carlo screech around the corner from 

westbound Olympic to southbound La Brea. (Ibid.) The officer 

pursued the Monte Carlo, which approached speeds of 50 to 60 

miles per hour in a residential neighborhood. (Ibid.) A police 
4

helicopter also joined in the pursuit. (Ibid.) The Monte Carlo 

continued to flee until it reached Pico Boulevard. (Ibid.) After 

traveling five to six blocks on Pico, the Monte Carlo stopped. 

(Ibid.) Both defendant, who had been driving the Monte Carlo,

and Larranga, who was in the passenger seat, were dressed in 

blue. (Ibid.) The two men surrendered to the police. (Ibid.)

Larranaga and defendant were members of the Schoolyard 

Crips, a criminal street gang whose gang color was blue. 

(Larranaga, supra, B060628.) The Schoolyard Crips were 

enemies of the Mansfield Hustler Crips. (Ibid.) A Schoolyard 

Crip had been murdered shortly before the shooting here, in what 

police believed was a gang-related shooting. (Ibid.) The 

Mansfield Hustler Crips were known to drive Mustangs with a 

similar appearance as Stephenson’s. (Ibid.) The shooting 

occurred in Mansfield Hustlers’ territory. (Ibid.)

A detective spoke with Larranaga and defendant on the 

night of their arrest. (Larranaga, supra, B060628.) Larranaga 

asked the detective what charges were pending against him and 

the detective responded that the two could talk about it later. 

(Ibid.) Larranaga then said, “‘Is the dude dead, yet?’” to which 

the detective responded, “‘Not yet.’” (Ibid.)

The detective later testified as a gang expert, opining that 

gang members would steal or trade narcotics in order to obtain 

cars to use in drive-by shootings. (Larranaga, supra, B060628.) 

He added that gang members participated in drive-by shootings 

with other gang members for purposes of gang recognition. 

(Ibid.) When two members participated, one could serve as a

witness for the other. (Ibid.) In addition, one could act as a 

driver and the other as a shooter, making it easier to commit a 

drive-by shooting. (Ibid.) The detective had never known a 
5

driver in an inter-gang drive-by shooting to be ignorant of what 

was about to happen. (Ibid.) Gang members were aware of rival 

gang territories and therefore would know what would happen 

when gang members drove into a rival gang’s neighborhood. 

(Ibid.)

On May 10, 1991, a jury convicted defendant of the first 

degree murder of Stephenson (count 1), the attempted 

premeditated murder of O’Neal (count 2), and shooting at an 

occupied vehicle (count 3). (Larranaga, supra, B060628.) The 

jury found true that a principal was armed with a firearm. 

(Ibid.) The trial court sentenced defendant to a term of 26 years, 

4 months to life. (Ibid.) On April 19, 1993, this court modified 

defendant’s sentence by staying the four-month term for the 

firearm enhancement, but otherwise affirmed the judgment. 

(Ibid.)

B. Section 1172.6 Petition

On April 4, 2019, defendant filed a petition for resentencing 

pursuant to section 1172.6. On June 4, 2019, the trial court 

appointed counsel to represent defendant.

On August 12, 2019, the District Attorney filed an 

opposition to the petition.

On March 23, 2021, the trial court issued an order to show 

cause and set the matter for an evidentiary hearing.

On January 7, 2022, defense counsel filed a supplemental 

brief in which he objected to “the factual rendition from the 

appellate decision.”
6

C. Evidentiary Hearing

On January 12, 2022, the trial court conducted the section 

1172.6, subdivision (d)(3) evidentiary hearing. Neither party 

introduced new or additional evidence. The court explained that 

it would consider the appellate opinion in Larranaga, supra, 

B060628, the clerk’s and reporter’s transcripts from trial, and the 

filings pertaining to the petition. The court overruled defendant’s 

objection to the use of the gang expert’s testimony at trial.

Following argument by counsel, the trial court stated that 

it found “beyond a reasonable doubt that [defendant] is guilty of 

count 1 as an aider and abettor.” It continued, “This court finds 

there is evidence to prove [defendant] guilty beyond a reasonable 

doubt that he committed the crime with malice aforethought.” 

The court made certain findings of fact that, in the court’s view,

demonstrated defendant acted with the intent to kill and with 

implied malice. It added, “Further, there is evidence to prove 

[defendant] guilty beyond a reasonable doubt as to second degree 

implied malice murder as well.”

As to count two, the trial court stated, “the jurors had a 

panoply of choices as to what . . . defendant was guilty of. They 

found he was guilty of first degree attempted murder. The court 

believes and finds that the record of conviction demonstrates that 

there is evidence beyond a reasonable doubt that [defendant]

directly aided and abetted in the attempted murder of [O’Neal]. 

[D]efendant had the intent to kill, not only . . . [Stephenson], but 

also . . . [O’Neal], and, accordingly, the court finds that 

[defendant] was convicted of first degree attempted murder under 
7

current law.” The court then stated that it denied defendant’s 

petition and also later issued a written decision to that effect.

Defendant timely appealed.

III. DISCUSSION

A. Section 1172.6

Section 1172.6 “creates a procedure for convicted murderers 

[and attempted murderers] who could not be convicted under the 

law as amended to retroactively seek relief.” (People v. Lewis

(2021) 11 Cal.5th 952, 957 (Lewis).) “If the petitioner makes a 

prima facie showing that the petitioner is entitled to relief, the 

court shall issue an order to show cause.” (§ 1172.6, subd. (c).) 

Within 60 days of issuance of the order to show cause, the trial 

court shall hold an evidentiary hearing “to determine whether 

the petitioner is entitled to relief.” (Id., subds. (d)(1) & (d)(3).)

“[T]he burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is guilty of murder 

or attempted murder under California law as amended by the 

changes to Section 188 or 189 made effective January 1, 2019. 

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. The court 

may also consider the procedural history of the case recited in 

any prior appellate opinion. However, hearsay evidence that was 

admitted in a preliminary hearing pursuant to subdivision (b) of 

Section 872 shall be excluded from the hearing as hearsay, unless 
8

the evidence is admissible pursuant to another exception to the 

hearsay rule. The prosecutor and the petitioner may also offer 

new or additional evidence to meet their respective burdens.” 

(§ 1172.6, subd. (d)(3).)

B. Reliance on Prior Appellate Opinion

Defendant argues that the trial court erred by relying upon 

the factual summary of the case set forth in our prior appellate 

opinion. According to defendant, the Legislature, by specifying 

that a trial court could “consider the procedural history of the 

case recited in any prior appellate opinion” (§ 1172.6, subd. 

(d)(3)), implied that the factual recitation from the appellate 

opinion was not admissible for purposes of a section 1172.6 

hearing. We will assume without deciding that the court erred by 

relying upon the factual recitation in the appellate opinion. (See 

People v. Clements (2022) 75 Cal.App.5th 276, 292 [stating in 

dicta that section 1172.6’s language limiting use of prior 

appellate opinions “indicates the Legislature has decided trial 

judges should not rely on the factual summaries contained in 

prior appellate decisions when a section [1172.6] petition reaches 

the stage of a full-fledged evidentiary hearing”].)

We thus consider whether the assumed error was harmless

under a Watson2 standard of review. (See Lewis, supra, 11 

Cal.5th at p. 973.) Here, the trial court not only relied upon the 

appellate opinion’s factual recitation in reaching its ruling, but 

also considered the clerk’s and the reporter’s transcript from the 

trial and made its own factual findings. Further, as defendant 

concedes, there is nothing that is “wrong or improper” about the 

2 People v. Watson (1956) 46 Cal.2d 818.
9

appellate opinion’s description of the trial evidence. On this 

record, we conclude that defendant has not met his burden of 

demonstrating prejudice. (People v. Clements, supra, 75 

Cal.App.5th at p. 293.)

C. Failure to Reduce Count 1 to Second Degree Murder

Defendant next argues that the trial court, having found 

that he was also guilty of second degree implied malice murder, 

should have reduced his conviction in count 1 from first to second 

degree murder. We review this issue de novo. (Lewis, supra, 11 

Cal.5th at p. 961.)

As an initial matter, defendant’s contention ignores that 

the trial court expressly found, beyond a reasonable doubt, that 

defendant was guilty of first degree murder and only made its 

finding regarding second degree murder as an alternative ruling. 

Moreover, section 1172.6 provides no mechanism for a trial court 

to reduce a murder conviction. Rather, “[i]f the prosecution fails 

to sustain its burden of proof, the prior conviction, and any 

allegations and enhancements attached to the conviction, shall be 

vacated and the petitioner shall be resentenced on the remaining 

charges.” (Id., subd. (d)(3); see also id., subd. (e) [“The 

petitioner’s conviction shall be redesignated as the target offense 

or underlying felony for resentencing purposes if the petitioner is 

entitled to relief pursuant to this section, murder or attempted 

murder was charged generically, and the target offense was not 

charged”].)3

3 We have denied defendant’s writ petition in which he 

contended that his conviction for first degree murder in count 1 

should be reduced to second degree murder pursuant to People v. 
10

D. Trial Court’s Duty at Evidentiary Hearing

Finally, defendant contends that the trial court erred by 

failing to perform its statutory duty during the evidentiary 

hearing. We disagree.

According to defendant, the record is not clear as to

whether the jury convicted him as a direct aider and abettor or 

under a natural and probable consequences theory. Defendant’s 

observation, however, is not relevant to whether the trial court 

erred during the evidentiary hearing. It is only relevant to 

whether defendant made a prima facie case for relief under 

section 1172.6, and the trial court correctly concluded that he 

had.

Defendant also argues that the trial court failed to act as 

an independent factfinder during the section 1172.6 evidentiary 

hearing. (People v. Garrison (2021) 73 Cal.App.5th 735, 745.)

Defendant cites to portions of the clerk’s and reporter’s transcript 

in which the court appears to suggest that defendant was, 

meaning at the time of the criminal trial, convicted of first degree 

murder and attempted premeditated murder under current law.

4 

Chiu (2014) 59 Cal.4th 155, 166. (See In re Thimbrel (B321150) 

[nonpub. order].)

4 Defendant specifically cites two portions of the written 

order in which the court wrote “[t]his court finds that [defendant]

was convicted of first and second-degree murder under current 

law” and “[t]his court finds that [defendant] was convicted of 

first[]degree attempted murder under current law . . . .” 

Defendant also cites the reporter’s transcript of the evidentiary 

hearing, at which the court stated, “[T]he jurors had a panoply of 
11

We disagree with defendant’s characterization of the record. The 

record amply demonstrates that the court acted as an 

independent factfinder during the evidentiary hearing. As noted, 

the court specifically stated that it relied upon the clerk’s and 

reporter’s transcripts of the trial proceedings when reaching its 

decision. Further, the court stated numerous times that it found 

defendant guilty of murder beyond a reasonable doubt and made 

specific factual findings that supported its ruling. (See People v. 

Stowell (2003) 31 Cal.4th 1107, 1114 [“[W]e apply the general 

rule ‘that a trial court is presumed to have been aware of and 

followed the applicable law’”].) The court therefore did not err by 

denying defendant’s section 1172.6 motion.

choices . . . [and] the court finds that [defendant] was convicted of 

first degree attempted murder under current law.”
12

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.