Filed 8/30/21 P. v. Blocker CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

LINNETTE O. BLOCKER,

Defendant and Appellant.

 B309642

 (Los Angeles County

 Super. Ct. No. YA018677)

APPEAL from an order of the Superior Court of 

Los Angeles County, Nicole C. Bershon, Judge. Affirmed.

Robert D. Bacon, 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, Assistant 

Attorney General, Michael R. Johnsen and David W. Williams, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________________
2

Defendant and appellant Linnette O. Blocker challenges 

the trial court’s denial of her petition under Penal Code1

section 1170.95 for resentencing on her murder conviction. 

She argues that the trial court erred by applying an incorrect 

standard of proof and by finding after an evidentiary hearing 

that she was a major participant in the underlying burglary that 

was the basis of her felony-murder conviction. We disagree and 

affirm on two grounds. First, the jury in Blocker’s trial found

true a felony-murder special circumstance, making her ineligible 

for relief as a matter of law. Second, even assuming that the 

special circumstance finding did not disqualify her, there was 

substantial evidence to support the trial court’s rejection of her 

petition after a final eligibility hearing.

FACTUAL AND PROCEDURAL SUMMARY

In 1994, Blocker took part in a burglary in which one 

of her cohorts killed a victim, and another cohort attempted to 

kill a second victim. A jury convicted her of one count of murder

(§ 187, subd. (a)), one count of attempted murder (§§ 187, 664),

one count of residential burglary (§ 459), and one count of felony 

child abuse (former § 273a, subd. (a)(1)). On the murder count, 

the jury found true a felony-murder special circumstance 

allegation. (§ 190.2, subd. (a)(17).) The trial court sentenced 

Blocker to life in prison without the possibility of parole, plus 

an additional 10 years 4 months. We affirmed the convictions 

in Blocker’s direct appeal. (People v. Blocker (Oct. 2, 1996, 

B099624) [nonpub. opn.].)

1 Subsequent statutory references are to the Penal Code.
3

In our prior opinion, we described the facts of the case 

as follows: “T[airree] Lynne West (West) lived in a small 

apartment in El Segundo with her infant daughter, Carlie, and 

with 12-year-old Ashley L[.], whom West was adopting. Erica

Olsen (Olsen) had lived with West for approximately two months. 

She left at West’s request in late November or early December 

1993. Olsen had a key to the apartment. While Olsen was living 

with West, her boyfriend, Robert Foster (Foster), occasionally 

visited and spent the night.

“Foster and Olsen were living in room 401 of the Hollywood 

YMCA in early February 1995. Marcus Brewington (Brewington) 

lived in room 414. At approximately 2:30 p.m. on February 8, 

1994, Foster asked the YMCA residence director for permission 

to bring a visitor to his room to discuss business. The director 

gave permission, after which Foster and Olsen walked toward the 

rooms with [Blocker]. The desk supervisor saw these three and 

Brewington leave the YMCA later that night; they walked toward 

the bus stop. Their demeanor appeared to be uncharacteristically 

serious; they were all wearing dark clothing and bandannas.

[Blocker] was wearing gloves. 

“West, the baby and Ashley arrived home at approximately 

midnight on the night of February 8. After Ashley finished her 

homework, they retired for the night. The baby, Carlie, was ill 

with bronchitis and therefore was sleeping with her mother.

“Foster, Olsen, Brewington and [Blocker] had taken a bus 

to West’s apartment, arriving at approximately 11:00 p.m. They 

waited in a nearby park for approximately one hour until West 

and the children returned home. As they waited, Foster, Olsen 

and Brewington discussed entering West’s apartment to steal 

her belongings and then killing the family. Foster, who had a 
4

butcher knife, said he would break West’s neck. Brewington said 

he would ‘take care of the baby.’

“Shortly after they saw West drive up in her Nissan Pulsar 

and enter the apartment, the quartet left the park and went to 

the apartment. Foster used Olsen’s key to open the door. As the 

others entered the apartment, Foster went to West’s bedroom. 

He attacked her with the knife, inflicting a number of stab 

wounds. She also was struck forcefully 15 to 20 times. She 

died from strangulation. 

“Aware that West was struggling for her life, [Blocker] 

entered the kitchen. Finding Carlie, clad only in a diaper, lying 

in the sink, she picked her up. [Blocker] carried Carlie to the 

living room; she placed the baby on the sofa. At this point, 

[Blocker] saw Brewington wrestling with Ashley. He called to 

[Blocker] to come and hold down Ashley. [Blocker] did so briefly. 

When she left the room, Brewington still was struggling with 

Ashley. According to Ashley, Foster attempted to strangle her, 

after which Brewington punched her and she passed out.

“As the quartet gathered West’s property, they heard 

Ashley moan. Foster went into Ashley’s bedroom briefly. When 

he emerged, the quartet left with a radio, West’s spoon collection, 

a large number of compact discs, a stereo and West’s Nissan 

Pulsar. They also took a jacket of West’s and her pager. 

“Ashley regained consciousness some time later. After 

discovering that her neck was bleeding, she crawled to the 

telephone and called 911. As she passed West’s bedroom, she 

could see West’s legs and a great deal of blood. 

“El Segundo Police Officer Louis Kutil found the panicstricken and terrified Ashley holding a bloody towel to her neck. 

West was lying on her bed, covered with blood. She had been 
5

strangled with a black scarf. There was a broken knife in the 

bedroom. The living room had been ransacked. Officer Calvin 

Smith found Carlie lying face down on the living room sofa 

underneath pillows and towels. She had been gagged with a 

light blue bandanna; she was extremely cold, pale and tired; her

diaper was abnormally saturated.

“Foster, Olsen, Brewington and [Blocker] returned to the 

YMCA at approximately 2:30 a.m. on February 9, 1994. After 

cleaning up, they discussed the venture. Foster acknowledged 

stabbing and choking West. Brewington said he tried to choke 

Ashley, but she simply would not succumb; Foster went into her 

room and slashed her throat. 

“[Blocker] initially denied knowing anything about the 

killing. She stated, however, that she spent the entire night 

with Foster. While talking to [Blocker], Detective Bart Langley 

noticed a pager hanging from [Blocker’s] waistband; the pager 

was West’s. He arrested [Blocker] and Brewington. Shortly 

thereafter, Foster and Olsen returned to the YMCA in West’s 

automobile. Officer Rudy Kerkoff arrested them. They had 

pawned most of the property taken from West’s apartment. 

“Defense

“In early February 1994, Thomas Semblower (Semblower)

met Foster, Brewington and Olsen at the Teen Canteen. Foster 

asked Semblower to help with a burglary in El Segundo; he 

intended to burglarize a place he and Olsen knew. They had a 

key to the apartment. Semblower’s role would be to help restrain 

the boyfriend; the other participants would be Foster, 

Brewington, Olsen and [Blocker]. Olsen and [Blocker] would 

restrain the children. Semblower agreed to participate in the 

burglary. 
6

“Semblower met Foster and the others at the YMCA on 

the following day to discuss the matter further. Foster took 

Semblower aside; he said he had changed plans. Rather than 

restraining the burglary victims, they would kill them. [Blocker] 

was not present when this conversation took place. Semblower 

refused to participate under these circumstances.” (People v. 

Blocker, supra, B099624.)

•••

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished 

the natural and probable consequences doctrine in cases 

of murder, and limited the application of the felony-murder 

doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843

(Gentile).) Under the new law, a conviction for felony murder 

requires proof that the defendant was either the actual killer, 

acted with the intent to kill, or “was a major participant in 

the underlying felony and acted with reckless indifference to 

human life.” (§ 189, subd. (e)(3).) The legislation also enacted

section 1170.95, which established a procedure for vacating 

murder convictions for defendants who could no longer be 

convicted of murder because of the changes in the law and 

resentencing those who were so convicted. (Stats. 2018, ch. 1015,

§ 4, pp. 6675–6677.)

Blocker filed a petition for resentencing on January 7, 

2019. The trial court found that Blocker had established a 

prima facie case for relief, appointed counsel to represent her, 

and issued an order to show cause why the petition should not 

be granted. After a hearing on the order to show cause, the trial 

court found that the prosecution proved beyond a reasonable 
7

doubt that Blocker was ineligible for resentencing and denied 

the petition.

DISCUSSION

A. Background on Senate Bill No. 1437

Senate Bill No. 1437 includes both prospective and 

retrospective provisions. Prospectively, the law amended

section 188 to provide that “[e]xcept as stated in subdivision (e) 

of 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 effect of this amendment is 

to “eliminate[ ] natural and probable consequences liability for 

first and second degree murder.” (Gentile, supra, 10 Cal.5th at 

p. 849.) In addition, Senate Bill No. 1437 enacted section 189, 

subdivision (e), which restricted felony-murder liability to cases 

in which the defendant was the actual killer, acted with the 

intent to kill, or was a major participant in the underlying felony 

and acted with reckless indifference to human life. (See Gentile, 

supra, at pp. 842–843.)

The retroactive component of Senate Bill No. 1437 is

codified in section 1170.95. (See Gentile, supra, 10 Cal.5th 

at p. 853 [“the Legislature intended section 1170.95 to be 

the exclusive avenue for retroactive relief under Senate Bill

[No.] 1437”].) This section allows a defendant “convicted of felony

murder or murder under a natural and probable consequences 

theory [to] file a petition” for resentencing under the new law. 

(§ 1170.95, subd. (a).) To be eligible for resentencing, a defendant 

must show that he or she “could not be convicted of first or second 

degree murder because of changes to Section 188 or 189 made
8

effective” as a part of Senate Bill No. 1437. (§ 1170.95, 

subd. (a)(3).)

The first step for a defendant to obtain relief under 

section 1170.95 is to file a declaration affirming that he or she 

is eligible for resentencing under the new law. (See § 1170.95, 

subd. (b)(1).) The trial court reviews the petition, and if the

petition is incomplete, “the court may deny the petition 

without prejudice to the filing of another petition and advise 

the petitioner that the matter cannot be considered without 

the missing information.” (Id., subd. (b)(2).)

If the defendant’s petition is facially sufficient, the 

trial court “shall appoint counsel to represent the petitioner.” 

(§ 1170.95, subd. (c).) The prosecutor must file a response within 

60 days of service of the petition, and the petitioner may file 

a reply. (Ibid.) At this stage, the trial court must determine 

whether the petitioner has made a prima facie case for relief, 

under a standard of review “analogous” to the “prima facie 

inquiry in habeas corpus proceedings.” (People v. Lewis (2021) 

11 Cal.5th 952, 971 (Lewis).) In this review, “ ‘ “the court takes 

petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled 

to relief if his or her factual allegations were proved. If so, the 

court must issue an order to show cause.” ’ [Citations.] ‘[A] court 

should not reject the petitioner’s factual allegations on credibility 

grounds without first conducting an evidentiary hearing.’

[Citations.] ‘However, if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.” ’ ” (Ibid.)
9

As part of its review, the court may consult the record of 

conviction in the case, including any prior appellate opinions, 

subject to the caveat that “the probative value of an appellate 

opinion is case-specific, and ‘it is certainly correct that an 

appellate opinion might not supply all answers.’ ” (Lewis, supra,

11 Cal.5th at p. 972.) The “trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise 

of discretion’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 

980 . . . )” (Lewis, supra, 11 Cal.5th at p. 972) in recognition of the 

fact that “the ‘prima facie bar was intentionally and correctly set 

very low.’ ” (Ibid.)

If the trial court determines that the defendant has 

met this burden, “the court shall issue an order to show cause.” 

(§ 1170.95, subd. (c).) If the court issues an order to show cause, 

it must hold a hearing within 60 days to determine whether to 

vacate the murder conviction. (§ 1170.95, subd. (d)(1).) At this 

final stage of the proceeding, the prosecution has the burden 

of proving “beyond a reasonable doubt[ ] that the petitioner is 

ineligible for resentencing.” (Id., subd. (d)(3).)

B. The Trial Court Did Not Err in Denying 

Blocker’s Petition

In this case, the trial court denied Blocker’s petition at 

the final stage of review, finding beyond a reasonable doubt after 

a hearing pursuant to section 1170.95, subdivision (d)(1) that 

Blocker was ineligible for resentencing because she was a major 

participant in the burglary and acted with reckless indifference 

to human life. She contends that the trial court erred by failing 

to apply the correct standard of proof at the hearing, and by 

finding that she was a major participant in the burglary. We

disagree, both because the jury’s special circumstance finding at 
10

Blocker’s original trial made her ineligible for resentencing as 

a matter of law, and because, even if the special circumstance 

finding did not disqualify her, the trial court did not err in 

describing the legal standard for deciding her petition or in 

finding that she was a major participant in the underlying 

burglary.

1. The jury’s felony-murder special 

circumstance finding renders Blocker 

ineligible for resentencing as a matter 

of law

To be eligible for resentencing, Blocker must show that she 

“could not be convicted of first or second degree murder because 

of changes to Section 188 or 189 made effective” in Senate Bill 

No. 1437. (§ 1170.95, subd. (a)(3).) As we have described above,

Senate Bill No. 1437 amended section 189 to require, in all 

felony-murder cases, proof that the defendant was the actual 

killer, acted with the intent to kill, or “was a major participant 

in the underlying felony and acted with reckless indifference to 

human life.” (§ 189, subd. (e)(3); see Gentile, supra, 10 Cal.5th 

at pp. 842–843.) These requirements are identical to those for a 

felony-murder special circumstance. (See § 190.2, subds. (b)−(d); 

People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison).) The 

special circumstance finding thus establishes as a matter of 

law that Blocker could still be convicted of murder despite the 

amendments in Senate Bill No. 1437, and that she is ineligible 

for resentencing.

Blocker disagrees with this conclusion. She argues that 

the jury’s special circumstance finding does not preclude her from 

relief under section 1170.95 because, in the years following her 

conviction, the Supreme Court clarified the definition of major 
11

participation and reckless indifference to human life in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark). Because no court has considered whether 

she was a major participant who acted with reckless indifference 

under the Banks/Clark standard, she contends that the jury’s 

special circumstance finding does not alone render her ineligible 

for resentencing.

We have considered this argument in three separate 

published opinions, and on each occasion, we have held that 

a defendant with a pre-Banks/Clark felony-murder special 

circumstance finding is ineligible for resentencing under 

section 1170.95, although she may seek review by way of habeas 

corpus. (See People v. Galvan (2020) 52 Cal.App.5th 1134, review 

granted Oct. 14, 2020, S264284 (Galvan), People v. Murillo (2020) 

54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978

(Murillo), and Allison, supra, 55 Cal.App.5th 449.) We stand by 

our reasoning in those opinions, and we see no need to repeat 

them here. 

2. Substantial evidence supported the trial 

court’s decision to deny Blocker’s petition

We recognize that other courts have disagreed with our 

conclusion regarding pre-Banks/Clark special-circumstance 

findings,

2 and that the issue is currently pending before the 

2 See People v. Torres (2020) 46 Cal.App.5th 1168, review 

granted June 24, 2020, S262011; People v. Smith (2020) 49 

Cal.App.5th 85, review granted July 22, 2020, S262835; People v. 

York (2020) 54 Cal.App.5th 250, review granted November 18, 

2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939, 

review granted April 28, 2021, S267802; People v. Secrease (2021)
12

California Supreme Court. In the interest of judicial economy, 

we will assume Blocker is correct that the special-circumstance 

finding does not preclude her from resentencing as a matter of 

law, and we will consider her arguments against the trial court’s 

decision to deny her petition at the final stage of review.

At the final eligibility hearing, the prosecution must “prove, 

beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1170.95, subd. (d)(3).) Blocker contends that 

the trial court erred by implying that the prosecution need show 

only that there was substantial evidence to support the trial 

court’s conviction. In another prior opinion, People v. Duke (2020) 

55 Cal.App.5th 113, review granted January 13, 2021, S265309

(Duke), we held that the standard of review at the final eligibility 

hearing is indeed “essentially identical to the standard of 

substantial evidence.” (Id. at p. 123.) Thus, if the trial court had

applied this standard, it would not have erred.

Once again, however, we recognize that other courts 

have disagreed with our opinion in Duke,

3 and that the issue is 

63 Cal.App.5th 231, review granted June 30, 2021, S268862;

People v. Pineda (2021) 66 Cal.App.5th 792; People v. Gonzalez 

(2021) 65 Cal.App.5th 420; People v. Arias (2021) 66 Cal.App.5th 

987. On the other hand, several other Court of Appeal opinions 

have agreed with our conclusion, including People v. Nunez

(2020) 57 Cal.App.5th 78, review granted January 13, 2021, 

S265918; People v. Gomez (2020) 52 Cal.App.5th 1, review 

granted October 14, 2020, S264033; People v. Jones (2020) 56 

Cal.App.5th 474, review granted January 27, 2021, S265854;

and People v. Simmons (2021) 65 Cal.App.5th 739.

3 See People v. Lopez (2020) 56 Cal.App.5th 936, 949–951, 

review granted February 10, 2021, S265974 (Lopez); People v. 
13

currently pending before the California Supreme Court. In the 

interest of judicial economy, we will assume that the substantial 

evidence standard does not apply, and that instead, “ ‘[i]t is the 

burden of the prosecution to show, beyond a reasonable doubt, 

that the petitioner is guilty of murder under the law’ ” effective 

following the enactment of Senate Bill No. 1437. (People v. Lopez, 

supra, 56 Cal.App.5th at p. 950, review granted.)

Contrary to Blocker’s assertion, the trial court did not 

apply a substantial evidence standard to the review of her

petition. Although the court mentioned the substantial 

evidence standard in a different context earlier in the hearing,

when it came time to render a decision, the court did not

cite that standard. Instead, the court followed the language 

of section 1170.95, subdivision (d)(3), and found that “the 

prosecution has proved beyond a reasonable doubt that the 

petitioner is ineligible for resentencing.” In explaining its 

decision, the court did not indicate that it was rejecting 

Blocker’s petition because a jury could have found her guilty 

under a still-valid theory. Instead, the court found that the 

evidence was unequivocal: “I don’t think there’s a clearer 

example of a non-gun related . . . major participant, but more 

importantly reckless indifference to human life,” than Blocker’s 

case.

We also disagree with Blocker’s contention that, because 

there was no live testimony or new evidence introduced at the 

hearing, we should conduct an independent review of the factual 

Rodriguez (2020) 58 Cal.App.5th 227, 240–244, review 

granted March 10, 2021, S266652; People v. Clements (2021) 

60 Cal.App.5th 597, 613–618, review granted April 28, 2021, 

S267624.
14

findings. Blocker cites cases in which reviewing courts in other 

contexts have not deferred to the trial court’s factual findings 

when those findings are based on a purely written record rather 

than live testimony. (See, e.g., People v. Ogunmowo (2018) 23 

Cal.App.5th 67, 79–80; In re Cox (2003) 30 Cal.4th 974, 998, fn. 2; 

In re Cudjo (1999) 20 Cal.4th 673, 687–688.) But these cases are 

contrary to the general rule of “apply[ing] a deferential standard 

of review in determining whether the evidence supports any 

of the superior court’s factual findings.” (People v. Rodriguez, 

supra, 58 Cal.App.5th at p. 238, review granted.) Substantial 

evidence review “is not reserved for the review of jury findings; 

it has been applied to postjudgment orders involving judicial 

factfinding.” (Lopez, supra, 56 Cal.App.5th at p. 954, review 

granted.) Section 1170.95 establishes a multi-stage review 

process for the trial court to determine a defendant’s eligibility.

The statute does not indicate that, when we review the trial 

court, we should repeat the final stage of that process with no 

deference to the trial court’s findings. We join the other courts 

that have considered this question in holding that it applies 

to the review of final eligibility hearings under section 1170.95

as well. (See Lopez, supra, at pp. 953–954; People v. Clements, 

supra, 60 Cal.App.5th at p. 618, review granted.)

When reviewing for substantial evidence, “ ‘ “the court 

‘must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and 

of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ [Citations.]” ’ ” 

(Lopez, supra, 56 Cal.App.5th at p. 950.)
15

Under this standard, there was substantial evidence 

to support the trial court’s finding that Blocker was a major 

participant in the burglary.4 In Banks, the Supreme Court 

set out a series of factors relevant to determining whether a 

defendant’s participation in a felony “was sufficiently significant 

to be considered ‘major.’ ” (Banks, supra, 61 Cal.4th at p. 803.) 

These factors are: “What role did the defendant have in planning 

the criminal enterprise that led to one or more deaths? What role 

did the defendant have in supplying or using lethal weapons? 

What awareness did the defendant have of particular dangers 

posed by the nature of the crime, weapons used, or past 

experience or conduct of the other participants? Was 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 inaction play a particular role in the death? What 

did the defendant do after lethal force was used?” (Ibid.)

Blocker argues that some of these factors point in her favor. 

She did not plan the burglary, nor did she supply the weapons. 

She notes that a detective in the case described her as “probably 

the least culpable of the four defendants.” But these factors pale 

in comparison to other circumstances of the case. This was no 

“garden-variety [burglary], where death might be possible but not 

probable.” (Banks, supra, 61 Cal.4th at p. 802.) Blocker’s cohorts 

planned not merely to steal from West, but also to kill her and 

anyone else in the apartment. Blocker admitted to police that 

she overheard her three cohorts discussing this plan beforehand.

In cases like Banks where a court overturned a finding of major 

participation, the defendant typically acted as a getaway driver 

4 Blocker does not contend that the trial court erred by 

finding that she acted with reckless indifference to human life.
16

or otherwise was not present at the scene of the killing. (See id.

at pp. 804–805.) In this case, Blocker admitted that she entered 

the apartment with her cohorts and remained there throughout 

the burglary. She admitted that she was nearby when Foster 

stabbed and strangled West, that she saw him jump on West’s 

bed, and heard them struggle. She admitted that she assisted 

Brewington in holding down 12-year-old Ashley while he was 

struggling with her.

After listing the relevant factors to determining whether a 

defendant was a major participant, the Supreme Court in Banks

cautioned that “[n]o one of these considerations is necessary, nor

is any one of them necessarily sufficient. All may be weighed 

in determining the ultimate question, whether the defendant's 

participation ‘in criminal activities known to carry a grave risk 

of death (Tison v. Arizona [(1987)] 481 U.S. [137,] 157) was 

sufficiently significant to be considered ‘major.’ ” (Banks, supra,

61 Cal.4th at p. 803.) In this case, Blocker’s conduct met the 

requirements for major participation under any standard of 

review. The trial court did not err in denying her petition for 

resentencing.
17

DISPOSITION

The trial court’s order denying the petition for resentencing 

is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.