Filed 9/1/22 P. v. Hildahl CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD DWAYNE HILDAHL,

Defendant and Appellant.

 D079016

 (Super. Ct. No. SCD107630)

APPEAL from an order of the Superior Court of San Diego County, 

Joan P. Weber, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

Recent amendments to California’s homicide statutes significantly limit 

the circumstances in which a defendant who did not actually kill the victim 

can be convicted of murder. Former Penal Code section 1170.95 (now 

§ 1172.6)1 provides an avenue for those convicted before these statutory 

changes became effective to receive the benefits of the new legislation.

Richard Dwayne Hildahl invoked section 1172.6 in seeking to vacate 

his first degree murder conviction from 1995, claiming he could not be 

convicted of murder under existing law. Because his petition made a prima 

facie showing of entitlement to relief, he was afforded an evidentiary hearing.

At that hearing, the court, acting as an independent factfinder, concluded 

that he was still guilty beyond a reasonable doubt of first degree murder 

under the current statutes. 

Hildahl appeals that order, arguing: (1) there was insufficient evidence 

to support a finding beyond a reasonable doubt that he would still be 

convicted of first degree murder, and (2) the trial court impermissibly 

considered the original appellate opinion and jury’s verdicts from his trial.

As we explain, we find that there is sufficient evidence to support the trial 

court’s ruling. And although the trial court briefly mentioned the appellate 

opinion and jury verdicts in its discussion with counsel, its analysis reflected 

no consideration of inappropriate or inadmissible evidence. Accordingly, we 

affirm the order denying relief.

1 Undesignated statutory references are to the Penal Code. Effective 

June 30, 2022, section 1170.95 was renumbered without substantive change 

to section 1172.6. (See Legis. Counsel’s Dis., Assem. Bill No. 200 (2021‒2022 

Reg. Sess.) Stats. 2022, ch. 58, § 10.) We cite to the current version, section 

1172.6.
3

FACTUAL AND PROCEDURAL BACKGROUND2

In 1993, Deserie LaBastida hosted a party at her home in Clairemont. 

Hildahl, Phillip S. (a minor), Alex Ponce, Wiebe DeBoer, Ian Duarte, and 

Hector Peterson were among the attendees. They drank alcohol, smoked 

marijuana, and snorted methamphetamine. 

During the party, LaBastida said that her friend, Michelle D., had “a 

large sum” of money and was showing it off the night before. Someone 

suggested that Michelle also had guns. Hildahl proposed that they rob 

Michelle, and they ultimately decided they would use Phillip’s gun to 

accomplish their plan. Either Phillip or Hildahl repeatedly asked Peterson 

for a ride to Michelle’s house. Peterson reluctantly agreed and, after driving 

Hildahl, LaBastida, and Phillip S. to Michelle’s house, returned to the party 

alone. 

Around 3:30 a.m., LaBastida and Hildahl went to Michelle’s apartment 

while Phillip S. waited outside. Michelle was not home, but her ex-husband 

Charles let them into the apartment. LaBastida went into Michelle’s room, 

supposedly looking for a pencil and paper, and left a note saying they had 

dropped by. Although the precise details of how they found Michelle and how 

the initial robbery took place are unclear, what followed was supported by 

testimony from multiple witnesses.

Approximately 90 minutes after leaving the party, Hildahl, LaBastida, 

and Phillip returned in Michelle’s car.3 LaBastida entered first and told 

2 Because Hildahl challenges the sufficiency of the evidence, the facts are 

recited in the light most favorable to the prosecution. (See People v.

Williams (2020) 57 Cal.App.5th 652, 663 (Williams).)

3 Hildahl’s primary defense was that he was not involved in the robbery, 

kidnapping, torture, or murder of Michelle. Phillip, the main defense 
4

everyone to turn off the lights and cover their faces because Michelle was

with them. Ponce and DeBoer crouched in the corner. Phillip and LaBastida 

brought Michelle into the house with a beanie over her head and her hands 

tied behind her back. Phillip pushed her up against a bookshelf, breaking 

her necklace, and then put her on the couch with Hildahl’s help. 

The three of them repeatedly demanded money from Michelle, 

threatened her, called her a “bitch,” and punched her. Phillip pointed a gun 

at Michelle. Hildahl beat her after saying they were going to find her family 

and kill them. Michelle was crying and asking why they were doing this to 

her. One of the men gave her a line of methamphetamine. Hildahl told 

Michelle, “I want you to suck my homie’s dick,” but Michelle repeatedly

refused. After a while someone said, “[S]ee, you can never tell anybody we 

weren’t nice to you.” Then Ponce, who at this point had moved to the kitchen,

testified he heard laughter from some of the girls at the party as if they had 

“come out of the room and seen something.”

The beating and threats continued for hours. Hildahl came into the 

kitchen and said that Michelle didn’t have any money, but they couldn’t 

release her because she would tell the police what they had done, so they had 

to kill her.4 Phillip dragged Michelle into the bedroom by her feet and

strangled her with a rope. Hildahl then announced to the group, “[I]t is

witness, plead guilty to murdering Michelle, and claimed DeBoer, not 

Hildahl, was his accomplice.

4 In the preliminary hearing, DeBoer testified that Hildahl and Phillip 

were talking together in the hallway when Hildahl suggested they had to kill 

Michelle. However, the trial testimony was less clear. Ponce testified that 

Hildahl told him they would have to kill Michelle in the kitchen, but made no 

indication that Phillip was present at the time of the statement.
5

done.” He discussed with Phillip and LaBastida what to do with Michelle’s 

purse and her body.

LaBastida got some window cleaner and towels, which Hildahl and 

Phillip used to wipe down the car to remove fingerprints. Hildahl and Phillip

went back into the house; Hildahl told Ponce to close his eyes because they 

were going to bring the body out. As they carried Michelle through the living 

room wrapped in a sheet, it became apparent that she was still alive. Hildahl 

and Phillip placed Michelle in the trunk of her car and returned to the house 

to discuss what to do. Phillip went back outside and stabbed Michelle in the 

neck. 

Returning to the house with blood on his hands, Phillip said, “Don’t 

nobody move, don’t nobody touch me.” After washing the blood off, Phillip

and Hildahl left in Michelle’s car. Phillip testified that they drove looking for 

somewhere to burn the car but couldn’t find any secluded place.

When a police car pulled up two cars behind them, Phillip abandoned 

the plan and drove to Landeros’s house instead. They arrived there around 

6:00 or 7:00 a.m. Landeros awoke to the men throwing Michelle’s purse, her 

jacket, and a blanket through his first floor bedroom window. Hildahl and 

Phillip told Landeros that they needed him to get rid of the items because 

they had killed someone. Initially, Landeros did not believe them, so they 

showed him Michelle’s body in the trunk, tied up by her legs and wrists. 

Hildahl warned, “Don’t say nothing.” The men asked Landeros to help 

dispose of the car, but he refused. 

After leaving Landeros’s apartment, Hildahl and Phillip wiped the car 

down and abandoned it at an apartment complex. Later, they told Ponce and 

Peterson that Michelle was not dead when they left LaBastida’s apartment 
6

and they could hear her kicking in the trunk. Hildahl joked about how they 

could hear “kick, gurgle, kick, kick, gurgle, gurgle” from the trunk. 

A few days later, San Diego police found Michelle’s bound and 

blood-stained body in the trunk of her car. She had four stab wounds to the 

neck, one of which severed her jugular vein. Overall, she had more than 35 

wounds. She died from a combination of strangulation and stab wounds to 

the neck. 

A jury found Hildahl guilty of first degree murder (§ 187, subd. (a)), and 

for that offense he was sentenced to 25 years to life in prison.5 This court 

later affirmed his convictions. (People v. Hildahl (Nov. 4, 1997, D026525) 

[nonpub. opn.].)

More than 20 years later in 2019, Hildahl filed a section 1172.6 petition 

for resentencing with the superior court claiming he could no longer be 

convicted of first degree murder under changes made to sections 188 and 189 

effective January 1, 2019. The petition stated he could not be currently 

convicted because he: (1) was not the actual killer, (2) did not aid and abet 

the actual killer in the commission of the crime with intent to kill, and (3)

was not a major participant in the underlying felony who acted with reckless 

indifference to human life. The trial court issued an order to show cause, 

received additional briefing, and held an evidentiary hearing. After hearing 

arguments from counsel it denied the petition, finding beyond a reasonable 

doubt that Hildahl was guilty of murder as either a direct aider and abettor 

who acted with the intent to kill, or alternatively as a major participant in a 

felony murder in which he acted with reckless indifference to human life. 

5 Hildahl was also convicted of conspiracy to commit robbery (§§ 182, 

subd. (a)(1), 211), kidnapping during a carjacking (§ 209.5, subd. (a)), 

kidnapping to commit robbery (§ 209, former subd. (b)), torture (§ 206), and 

robbery (§ 211). 
7

DISCUSSION

A. Section 1172.6 Framework

Effective January 1, 2019, Senate Bill No. 1437 amended the 

felony-murder rule by adding section 189, subdivision (e). It provides that a 

participant in the qualifying felony is liable for felony murder only if the

person: (1) was the actual killer; (2) was not the actual killer but, with the 

intent to kill, acted as a direct aider and abettor; or (3) was a major 

participant in the underlying felony and acted with reckless indifference to 

human life. (See People v. Gentile (2020) 10 Cal.5th 830, 842.) The 

Legislature also amended the natural and probable consequences doctrine by 

adding subdivision (a)(3) to section 188, which states that “[m]alice shall not 

be imputed to a person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)

Under section 1172.6, persons convicted of felony murder or murder 

based on the natural and probable consequences doctrine may petition the 

sentencing court to vacate their convictions and be resentenced on any 

remaining counts if they could not have been convicted of murder because of 

these statutory changes. (See People v. Lewis, 11 Cal.5th 952, 959–960

(Lewis).) A section 1172.6 petition must show that: “(1) A complaint, 

information, or indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder, murder under the 

natural and probable consequences doctrine or other theory under which 

malice is imputed to a person based solely on that person’s participation in a 

crime, . . . (2) [t]he petitioner was convicted of murder . . . following a 

trial . . . [,] [and] (3) [t]he petitioner could not presently be convicted of 

murder . . . because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1172.6, subd. (a)(1)–(3).)
8

Where, as here, the petition states a prima facie case for relief, the 

superior court is required to conduct a hearing under subdivision (d)(1) of 

section 1172.6. At the hearing, the prosecution bears the burden of proving 

beyond a reasonable doubt that the petitioner is ineligible for resentencing. 

(§ 1172.6, subds. (c), (d)(1)–(3); see Lewis, supra, 11 Cal.5th at p. 960; People 

v. Ramirez (2021) 71 Cal.App.5th 970, 984.) “If the prosecution fails to 

sustain its burden of proof, the prior conviction . . . shall be vacated and the 

petitioner shall be resentenced on the remaining charges.” (§ 1172.6, subd. 

(d)(3); see People v. Lamoureux (2019) 42 Cal.App.5th 241, 249.)

At the time of the hearing in this case, the parties could “rely on the 

record of conviction” or “offer new or additional evidence to meet their 

respective burdens.” (Former § 1170.95, subd. (d)(3), added by Stats. 2018, 

ch. 1015 (Sen. Bill No. 1437) § 4, eff. Jan. 1, 2019.) Former section 1170.95, 

subdivision (d)(3) was subsequently amended by Senate Bill No. 775. (Stats. 

2021, ch. 551, § 2.) On June 30, 2022, the statute was renumbered and 

amended to section 1172.6, which now states: 

“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 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), as amended and renumbered by 

Stats. 2022, ch. 58 (Assem. Bill No. 200) § 10.)
9

B. The Amendment to Former Section 1170.95, Subdivision (d)(3) Is 

Retroactive

Hildahl’s evidentiary hearing took place in 2021. The amendments in

Senate Bill No. 775 did not become effective until January 1, 2022. Citing In 

re Estrada (1965) 63 Cal.2d 740, at pages 744 to 745, Hildahl contends that 

these amendments apply retroactively and thus prohibited the trial court 

from considering the prior appellate opinion (apart from procedural history)

and the jury’s verdicts. In contrast, the Attorney General maintains that the 

evidentiary restrictions do not apply retroactively because the process itself is 

a procedural mechanism and not part of the original judgment, which is 

already final. 

In People v. Basler (2022) 80 Cal.App.5th 46, a different panel of this 

court held that Senate Bill No. 775 applies retroactively to defendants whose 

cases are not yet final. (Basler, at p. 56; see also People v. Porter (2022) 73 

Cal.App.5th 644, 652.) Discerning no compelling reason to depart from 

Basler, we agree with Hildahl that the changes made in former section 

1170.95 subdivision (d)(3) by Senate Bill No. 775 apply in his case. (See 

People v. Bolden (1990) 217 Cal.App.3d 1591, 1598.) 

C. Substantial Evidence Supports the Trial Court’s Finding that Hildahl 

is Ineligible for Relief Under Section 1172.6

Hildahl contends that the evidence is insufficient to prove first degree

murder on either an aiding and abetting or felony murder theory. As to the 

former, he contends that because LaBastida was the one who mentioned that 

Michelle had money, she directed the robbery. Moreover, Hildahl points out 

that Phillip is the one who strangled Michelle, and there is no evidence that 

Hildahl stabbed her afterwards or supplied any of the weapons. 

These are all reasonable arguments to make to a trial court. But on 

appeal from an order denying a petition under section 1172.6, we review the 
10

trial judge’s factfinding for substantial evidence. (People v. Clements (2022) 

75 Cal.App.5th 276, 298.) The test is not whether we believe the People met 

their burden of proving beyond a reasonable doubt that Hildahl is ineligible 

for resentencing, but rather, whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

“The record must disclose substantial evidence . . . —i.e., 

evidence that is reasonable, credible, and of solid value—

such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citation.] In applying 

this test, we review the evidence in the light most favorable 

to the prosecution and presume in support of the [order] the 

existence of every fact the [trial court] could reasonably 

have deduced from the evidence. [Citation.] ‘Conflicts and 

even testimony . . . subject to justifiable suspicion do not 

justify the reversal of a judgment.’ ” (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.)

1. Direct Aiding and Abetting First Degree Murder

An aider and abettor is considered a principal in the crime. (§ 31.) 

“A person aids and abets the commission of a crime when he or she, (i) with 

knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent 

or purpose of committing, facilitating or encouraging commission of the 

crime, (iii) by act or advice, aids, promotes, encourages or instigates the 

commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)

Factors to consider when determining whether a person aided and abetted 

the commission of a crime “ ‘include presence at the scene of the crime, failure 

to take steps to attempt or prevent the commission of the crime, 

companionship, flight, and conduct before and after the crime.’ ” (People v. 

Garcia (2008) 168 Cal.App.4th 261, 273.)

Here, the trial court found that “[t]he evidence at trial clearly shows 

[Hildahl] was intricately involved in each stage of the planning and the 
11

killing of the victim.” Substantial evidence supports this determination. 

Hildahl was the architect of the plan to rob Michelle. He helped transport 

her to the house, demanded money from her, participated in beating her, and 

ordered Michelle to orally copulate one of his cohorts. Hildahl is also the one 

who said they had to kill Michelle to prevent her from going to the police. 

This evidence alone would support a finding he had the requisite intent to 

kill. (See People v. Smith (2005) 37 Cal.4th 733, 741 [intent to kill may be 

inferred from the defendant’s acts and circumstances of the crime].) 

Evidence of Hildahl’s conduct after Michelle was strangled further 

supports the trial court’s conclusion that he aided and abetted the murder. 

(See People v. Garcia (2008) 168 Cal.App.4th 261, 273.) Believing Michelle 

was dead, Hildahl announced, “It is done”—and when to his apparent 

surprise Michelle was still alive, Hildahl discussed with Phillip what to do 

next, and was in a position where he could have seen and heard Phillip stab

Michelle in the neck. After carefully considering the evidence, the trial court 

stated, “to me, that is textbook direct aiding and abetting of premeditative 

murder.” We agree. Taken together, these facts support the trial court’s 

finding that Hildahl knew and shared Philip’s intent to commit the murder, 

and he engaged in conduct to achieve that goal.

In asserting otherwise, Hildahl argues there is insufficient evidence 

Phillip heard him say that Michelle needed to be killed, and in any event it 

cannot be concluded beyond a reasonable doubt that he encouraged Phillip to 

kill Michelle. But as an appellate court, “[w]e resolve neither credibility 

issues nor evidentiary conflicts; we look for substantial evidence.” (People v. 

Maury (2003) 30 Cal.4th 342, 403.) “[I]t is the exclusive province of the trial 

judge . . . to determine the credibility of a witness and the truth or falsity of 

the facts upon which a determination depends.” (Ibid.) Here, the trial court
12

determined that the evidence showed Hildahl’s “intent to kill” and that he 

was “obviously directing [Phillip] as to what to do.” These are reasonable 

inferences from the evidence that we do not second guess. (See Williams, 

supra, 57 Cal.App.5th at p. 663 [we presume in support of the order facts the 

superior court could reasonably have deduced from the evidence].)

2. Major Participant Felony Murder

Substantial evidence of either theory found true by the trial court 

would require that we affirm the court’s order denying Hildahl’s petition. 

But even if we determined that the direct aiding and abetting theory was 

insufficiently supported, we would still be obligated to affirm based on the 

felony murder theory if there was substantial evidence that Hildahl was a 

major participant in the robbery who acted with reckless indifference to 

human life. Two cases are central to the analysis of these requirements:

People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 

Cal.4th 522 (Clark).

In the last decade, the Supreme Court has substantially narrowed the 

meanings of the terms “major participant” and “reckless indifference to 

human life” as they appear in section 190.2, subdivision (d) and were more 

recently incorporated into section 189, subdivision (e)(3). The court held in

Banks that to assess whether a defendant’s participation in activities known 

to carry a grave risk of death was sufficiently significant to be deemed 

“major,” courts must consider the defendant’s role in planning the criminal 

enterprise and supplying or using lethal weapons; defendant’s awareness of 

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

experience or conduct of the participants; whether the defendant was at the 

scene of the killing, in a position to facilitate or prevent the actual murder, 

and by action or inaction played a particular role in the death; and what the 
13

defendant did after lethal force was used. (Banks, supra, 61 Cal.4th at 

p. 803.) As the court explained in Clark, similar factors, both subjective and 

objective, inform whether a defendant acted with reckless indifference to 

human life, including a defendant’s knowledge that weapons would be used 

and/or personal use of weapons; his or her knowledge of an accomplice’s 

propensity to kill; the defendant’s physical presence at the scene and 

opportunity to restrain the killer or aid the victim; any efforts taken to 

minimize the risk of violence in committing the felonies; and the duration of 

the felony. (Clark, supra, 63 Cal.4th at pp. 618–623.)

The trial court thoroughly analyzed each of these factors and concluded 

that Hildahl was both a major participant in the robbery and acted with 

reckless indifference to Michelle’s life. For example, the trial court observed:

“[W]hat role did [Hildahl] have in planning the 

enterprise[?] As I’ve indicated, critical role. [‘]Let’s rob 

her. We’ve got to kill her. Here’s how we’re going to do it. 

Let’s get rid of the evidence. Let’s wipe down the car,[’] et 

cetera. [¶] . . . [¶]

“What awareness did he have of the particular danger 

posed by the nature of this crime? He was well aware of his 

co-defendant, [Phillip]. He was right there with him 

throughout all of these activities. . . . [¶]

“[W]as he present at the scene of the killing, in a position to 

facilitate or prevent the actual murder? . . . [H]e was there 

every second of this multiple-hour torture of the victim. [¶]

“Did his own actions or inactions play a particular role? 

Absolutely. . . . [A]ll of these witnesses are saying it was

primarily [Hildahl] who was directing the actions, and then 

[Phillip] carried them all out. . . . [¶]

“[W]hat did [Hildahl] do after the lethal force was used? . . . 

[T]hat was . . . pretty calculated . . . dragging her out to the 

car, getting her in the trunk, stabbing her. [Phillip] did the 

stabbing, but it was both of them together: [‘]She’s not 

dead. We’ve got to make sure she’s dead.[’] [¶]
14

“Getting rid of her purse, her various items, her car, all of 

these things were factors showing that [Hildahl] had a very 

important role in every stage of this murder. . . . [¶]

“And then when we look at . . . reckless indifference . . . [,] 

what was the defendant’s knowledge of the weapons? . . . 

[H]e knew [Phillip] had that gun. He talked to all of his codefendants about Smith strangling her. He was present 

when the screwdriver was used to . . . stab her. [¶]

“[W]as he physically present at the crime with an 

opportunity to aid the victim or keep the crime from 

occurring? No question. He was there every single second, 

could have stopped this at any point in time. When the 

police officer came by the car, he could have said, 

‘Somebody is gurgling in the trunk.’ . . . [H]e did not aid in

any capacity the victim in this case. The duration . . . was 

a very long involved torture, beating, and murder of the 

victim. [¶]

“His knowledge of the cohort’s likelihood of killing . . . [—]

he was close friends with [Phillip]. He’d been involved in 

committing crimes with [Phillip] before. So he knew that 

[Phillip] would be a reliable co-conspirator in this . . . . [¶]

“[W]hat steps did he take to minimize the risk of violence? 

He took zero steps.”

Substantial evidence supports these determinations. Thus, even 

disregarding the trial court’s findings on aiding and abetting, the order 

denying Hildahl’s petition would be affirmed on this felony murder theory.

D. The Trial Court Did Not Impermissibly Base Its Findings on the Prior

Appellate Opinion or Jury Verdict

In ruling on Hildahl’s petition, the trial court repeatedly mentioned

that it had read and considered the reporter’s transcript from his trial. 

Indeed, immediately before issuing the ruling, the court noted, “And again, I 

will state I reviewed the trial transcript.” While explaining the ruling, the 
15

court remarked, “The evidence at trial clearly shows [Hildahl] was intricately 

involved in each stage of the planning and the killing of the victim.” 

Nevertheless, focusing on some isolated remarks that indicate the court 

at one point also referred to analysis from the prior appellate opinion and 

inferences from the jury’s verdict, Hildahl contends that the trial court 

considered improper material leading to a prejudicially erroneous ruling. 

Before addressing the argument, some additional background is necessary to 

provide context.

At the hearing, defense counsel questioned the credibility of testimony 

from Ponce, who was not charged, but counsel asserted could have been. The 

court interjected to ask how Ponce could have been charged given the facts 

and mentioned that “the Court of Appeal dealt with that in its decision.” 

Significantly, defense counsel recognized that by referring to something 

other than the procedural history in the prior appellate opinion, the court 

was veering off target. Counsel redirected the court to consider only the trial 

testimony, stating, “the Court . . . has to put itself back into that position 

again. The Court becomes the jury that was sitting at that particular time.” 

Later during the hearing in addressing whether Phillip’s trial 

testimony was credible, the court commented that the jury’s verdict indicated 

they did not believe him, stating:

“[I]n reviewing the trial testimony, the closing arguments 

of counsel, the instructions given to the jury at trial, it 

appears to me quite clear that they [the jury] rejected 

[Phillip’s] testimony and they found [him] to be not 

credible.” [¶] . . . [¶]

“So I’m left with what I believe to be the conclusions made 

by the trier of fact in the trial. . . . I believe the jury rejected 

[Smith’s testimony]. So what do I do with that . . . ?” 
16

Answering the court’s question, “So what do I do with that,” defense counsel 

again correctly directed the court to disregard the jury’s credibility 

determination and instead decide credibility issues itself as trier of fact in a 

1172.6 hearing:

“I understand the court’s position. And I think that the 

court, as the [factfinder] now . . . has to look at the 

testimony of the percipient witnesses. [¶] . . . [¶]

“Obviously, the court feels that Mr. Ponce had some 

credibility. And so, . . . that’s the court’s role as the 

[factfinder] to determine the credibility of the witnesses. [¶]

“[T]he court isn’t sitting as an appellate reviewing court to 

see if there is a sufficiency of the evidence to convict.”

(Italics added.) 

In making its ultimate decision after hearing arguments from both 

parties, the trial judge thoroughly analyzed the murder theories. 

Significantly, at no point did she make any reference to the prior appellate 

opinion, the jury’s verdicts, or the jury’s credibility determinations. Rather, 

the court expressly stated she was relying on the trial testimony. 

Like we would do when interpreting any other type of writing, we must 

look at the transcript as a whole—and not isolated parts—to ascertain its 

meaning. (See Chin v. Namvar (2008) 166 Cal.App.4th 994, 1009.) Here, 

each time the court appeared poised to stray from the correct standard, 

defense counsel quite commendably corrected the judge and emphasized the 

court’s role as an independent trier of fact. In issuing her ruling, the judge 

then hewed to her proper role. She cited trial testimony and did not defer to 

the jury’s findings or its credibility determinations, but instead made her 

own. Based on the record as a whole, we are confident that the trial court 

understood and applied the appropriate legal standard. (See People v. 

Cartier (1960) 54 Cal.2d 300, 313 [“where a judge’s statements as a whole 
17

disclose a correct concept of the law and its application, no secondary 

remarks should be deemed to have impeached [her] determination”].)

DISPOSITION

The order is affirmed.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

BUCHANAN, J.