Filed 11/17/23 P. v. Martinez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and 

Respondent,

v.

SANTOS MARTINEZ,

Defendant and 

Appellant.

B325280

(Los Angeles County

Super. Ct. No. BA361997)

APPEAL from an order of the Superior Court of Los 

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

Joanna McKim, under appointment by the Court of Appeal, 

for Plaintiff and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Santos Martinez (defendant) 

appeals the order denying his petition for vacatur of his murder 

conviction and resentencing under Penal Code section 1172.6 

(formerly section 1170.95)1 entered after an evidentiary hearing 

held pursuant to subdivision (d) of that statute. Defendant 

contends substantial evidence did not support the trial court’s 

finding that he directly aided and abetted the killing with intent 

to kill. We conclude substantial evidence does support the trial 

court’s order and thus affirm.

BACKGROUND

The 2013 murder conviction

In 2013 defendant and his codefendant Francisco Gutierrez 

were convicted of first degree murder, with true findings that a 

principal personally used and intentionally discharged a firearm 

causing great bodily injury or death and that the crime was 

committed for the benefit of a criminal street gang. Defendant 

was sentenced to a term of 50 years to life in prison. On direct 

appeal we affirmed the judgment in People v. Martinez (Dec. 10, 

2014, B253468) (nonpub. opn.).

Trial evidence

On August 31, 2007, between 10:00 and 11:00 p.m., Angel 

Bautista, an associate of the Drifters gang, and Abdon Solis were 

waiting outside Best Buy Markets, when an SUV drove into the 

driveway and stopped, facing a nearby alley. Defendant emerged 

1 All further unattributed code sections are to the Penal 

Code, and we henceforth refer to former section 1170.95 solely by 

its renumbered section 1172.6.
3

from the driver’s side,2 approached and asked Bautista, “Where 

you from?”3 When Bautista replied, “Drifters,” defendant 

punched him. Bautista returned the blow, and the two men 

fought. Within about 30 seconds Bautista appeared to get the 

better of defendant, and Gutierrez got out of the passenger side of 

a nearby black or dark-colored SUV wearing black clothing and a 

ski mask, carrying a shotgun. Gutierrez approached and fired 

the shotgun three times, with the third and fatal shot directly to 

Bautista’s head. Gutierrez got back into the SUV, which 

defendant drove quickly away.

The SUV was later found abandoned and crashed into a 

wall in the alley near the Best Buy Markets. DNA taken from 

blood and items left in the SUV was identified as belonging to 

defendant and Gutierrez and indicated defendant was in the 

driver’s seat and Gutierrez in the backseat. A shotgun found in a 

garage about a quarter mile away from the market contained a

spent 12-gauge Schonebeck shell. Two such shells were found 

near Bautista’s body. Gutierrez’s DNA was found on the 

shotgun.

The medical examiner who performed the autopsy opined 

that while lying on the ground, Bautista was struck by shotgun 

slugs twice from within three or four feet before the shotgun 

2 As neither party challenges the trial court’s finding that 

defendant was the man who approached and Gutierrez was the 

actual shooter, we refer to them without summarizing 

identification evidence in depth.

3 “Where you from” is the “ultimate challenge” in gang 

culture according to the testimony of gang expert Los Angeles 

Police Department Officer Shane Bua.
4

barrel touched or nearly touched Bautista’s head and was fired a 

third time, removing half his head.

Defendant was located and arrested nearly two years later, 

charged with an unrelated crime and interviewed by Detective 

Gilbert Alonso, the investigating officer in this case. Defendant 

told the detective he knew the police were looking for him since 

the day after his car had been stolen by members of a different 

gang, who beat him and took the car. Defendant admitted he 

never reported the car theft or the beating.

In recorded conversations with cellmates defendant said he 

knew he was “fighting a murder case” and the police had 

obtained his DNA and his car after he crashed it and bled. 

Defendant explained it was the “same day that I did . . . that I 

pulled the job, fool, the cops were following me. So I crashed my 

car, fool, but I was able to get the fuck outta there, but I left blood 

in the car and they just caught me.” Defendant acknowledged he 

was a member of the Playboys gang. Defendant said the police 

did not have the gun so he told detectives some guys took his car 

and beat him up, and maybe some blood was left in the car. In 

another conversation, defendant said he was “screwed,” that the 

police had the car he had driven and his blood. He added the 

only thing the police did not have was the gun used in the 

murder.

Officer Bua testified as the prosecution’s expert on gang 

culture with particular expertise regarding the Playboys and 

Drifters gangs,

4 describing the Playboys’ territory, and its 

4 As the validity of the gang enhancement is not at issue in 

this appeal, we summarize only those portions of Officer Bua’s 

testimony relevant to state of mind and of motive, as “evidence of 
5

importance to gangs. He explained that because other gangs 

were afraid to enter its territory, it elevated the home gang’s 

status and prevented narcotics sales by anyone not affiliated with 

that gang. On August 31, 2007, there were over 600 documented 

members of the Playboys gang and its cliques, and at least 200 of 

them were then considered active or semi-active. Based on their 

many Playboys gang-themed tattoos and Officer Bua’s 

acquaintance with both defendants, it was his opinion that at the 

time of the murder, defendant and Gutierrez were active 

members of the Playboy gang.

The Drifters gang was one of the Playboys gang’s main 

rivals, and the two gangs had never gotten along. Bautista’s 

murder was committed in Drifters’ territory. Also at that time, 

Playboys’ territory was vast compared to the Drifters’ territory 

and the Playboys gang was dominating the Drifters. At the time 

of the shooting the two gangs were in a struggle over control of 

schools in the area where students from both territories attended 

and where the gangs recruited members. This resulted in fights 

designed to make students want to join the stronger gang and 

afraid to join the weaker gang. Officer Bua estimated that there 

had been five attacks by Playboys on Drifters for every attack by 

Drifters on Playboys.

In Officer Bua’s expert opinion, the Playboys gang’s 

primary activities were narcotics sales, robberies, assaulting 

rivals, witnesses and others, extortion, tagging, assaults with a 

deadly weapon, murder, and coming together to intimidate the 

motive is often probative of intent to kill.” (People v. Smith

(2005) 37 Cal.4th 733, 741.)
6

community. Among weapons commonly used were handguns, 

shotguns, and rifles.

Officer Bua explained that generally in gang culture,

committing crimes with other gang members to benefit the gang, 

such as tagging or physically assaulting an enemy in rival 

territory, may be called “going on a mission” and “putting in 

work.” Each gang member would be given a specific job on the 

mission, such as getaway driver, tagger, robber, or keeper of the 

firearm with the responsibility to protect others on the mission. 

Anyone on the mission who failed to “step up” could suffer great 

consequences within the gang. Gang members on missions in 

rival gang territory would go in groups for backup and 

camaraderie, and to be more intimidating to their victims.

Because gang members generally take weapons with them 

on missions in rival territories it would be unlikely for anyone in 

the car not to know when someone was armed. Officer Bua 

added that he had been told by many different gang members it 

was a matter of respect to inform a fellow gang member of the 

presence in the car of a concealed firearm, a large amount of 

narcotics, or anything else that could create trouble with the 

police if stopped. It would then be up to the individual to decide 

whether he wanted to be in the car.

The important concept of respect in gang culture was also 

explained. Gang members equated fear with respect, and thus 

earned respect by committing crimes and by dominating and 

victimizing rival gangs. Individual gang members earned the 

respect of their gang by committing crimes. The more hardcore 

the crimes, the greater the respect for the gang and the 

individual member within the gang. Losing a fight to a rival 

gang member would cause the loser’s gang to appear weak, 
7

resulting in the member’s loss of respect and requiring retaliation 

by any means necessary in order gain back the gang’s respect.

It was Officer Bua’s opinion that the following hypothetical 

facts would describe an activity that would benefit a gang: 

“[T]wo or more gang members from Playboys went into territory 

for Drifters and one of the occupants of that car had a shotgun 

and a ski mask going into that rival territory, one of the 

occupants of the car got out and said to a young man on the 

sidewalk, ‘Where are you from?’ The young man responds, 

‘Drifters,’ and a fistfight follows in which the Drifter gang

member is winning the fistfight and another occupant of the car 

gets out with a shotgun and shoots and kills the Drifters gang

member . . . .” Going on a mission to challenge a rival in his 

territory, particularly if armed with a visible weapon such as a 

shotgun and then killing the rival to prevent him from winning 

the fight, would demonstrate to the rival gang and the 

community that the Playboys gang was incredibly bold and to be 

feared. This enhanced reputation would benefit the gang by 

enabling its members to get away with committing more crimes. 

The shooter’s status would also be elevated within the gang by 

showing his willingness to commit murder to protect his fellow 

gang member.

Petition for resentencing

Effective 2019, the Legislature enacted Senate Bill 

No. 1437, which eliminated murder liability under the natural 

and probable consequences doctrine and amended the 

requirements for murder liability in sections 188 and 189. 

(People v. Gentile (2020) 10 Cal.5th 830, 849; see Stats. 2018, ch. 

1015, § 1, subd. (f).) The Legislature also provided a procedure 

for those convicted of murder to seek retroactive relief if they 
8

could not be convicted under sections 188 and 189 as amended 

effective January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952, 

957; see § 1172.6.)

In February 2020, defendant filed a petition for 

resentencing pursuant to section 1172.6. On April 16, 2020, after 

reviewing the court’s file, including our appellate opinion in 

People v. Martinez, supra, B253468, the trial court found 

defendant ineligible for relief and summarily denied the petition 

without having appointed counsel for defendant. We reversed 

that order and remanded the matter to the superior court for the 

issuance of an order to show cause and further proceedings in 

accordance with subdivision (d) of section 1172.6. (See People v. 

Martinez (Aug. 18, 2021, B306140) [nonpub. opn.].)

On remand, the trial court appointed counsel for defendant, 

ordered the prosecution to file a response to the petition, issued 

an order to show cause why relief under section 1172.6 should not 

be granted, and scheduled briefing. Prior to the hearing the trial 

court read the transcripts of defendant’s 2013 trial. At the 

hearing the court heard the argument of counsel, who did not 

submit new or additional evidence. The trial court denied the 

petition and issued a memorandum of decision on August 26, 

2022. The court found the evidence established beyond a 

reasonable doubt that defendant directly aided and abetted the 

murder by his codefendant, and the evidence established both 

express and implied malice beyond a reasonable doubt.

Defendant filed a timely notice of appeal from the order of 

denial.
9

DISCUSSION

Defendant contends substantial evidence does not support 

the trial court’s decision that defendant could be convicted under 

current law of either first or second degree murder.

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.” (§ 1172.6, subd. (d)(3).) 

As the trial court sits as an independent fact finder (People v. 

Vargas (2022) 84 Cal.App.5th 943, 951), the court must “‘review 

all the relevant evidence, evaluate and resolve contradictions, 

and make determinations as to credibility, all under the 

reasonable doubt standard . . .’” (People v. Oliver (2023) 90 

Cal.App.5th 466, 480, quoting People v. Clements (2022) 75 

Cal.App.5th 276, 298). Either party may present new evidence. 

(§ 1172.6, subd. (d)(3).) If the evidence shows beyond a 

reasonable doubt that petitioner could still be convicted of 

murder under current law, the petitioner is not entitled to 

resentencing. (People v. Guillory (2022) 82 Cal.App.5th 326, 333.)

Under current law and with exceptions not relevant here, 

“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).) “For a defendant to be liable as a direct 

aider and abettor, ‘the prosecution must show that the defendant 

aided or encouraged the commission of the murder with 

knowledge of the unlawful purpose of the perpetrator and with 

the intent or purpose of committing, encouraging, or facilitating 

its commission. [Citation.] . . . [Citations.] ‘An aider and 

abettor who knowingly and intentionally assists a confederate to 

kill someone could be found to have acted willfully, deliberately, 
10

and with premeditation, having formed his own culpable intent. 

Such an aider and abettor, then, acts with the mens rea required 

for first degree murder.’” (In re Lopez (2023) 14 Cal.5th 562, 

579.)

Second degree implied malice murder remains a valid 

theory of murder liability (although it may not be based upon the 

natural and probable consequences theory). (People v. Gentile, 

supra, 10 Cal.5th at pp. 850-851.) “‘Malice is implied when the 

killing is proximately caused by “‘an act, the natural 

consequences of which are dangerous to life, which act was 

deliberately performed by a person who knows that his conduct 

endangers the life of another and who acts with conscious 

disregard for life.’” [Citation.] In short, implied malice requires a 

defendant’s awareness of engaging in conduct that endangers the 

life of another . . . .’” (People v. Cravens (2012) 53 Cal.4th 500, 

507.) “‘Current law thus provides that the actual killer, or a 

direct aider and abettor of the killing who knew that his (or her) 

conduct endangered the life of another and acted with conscious 

disregard for life, may be guilty of second degree murder.’”

(People v. Glukhoy (2022) 77 Cal.App.5th 576, 588, quoting People 

v. Langi (2022) 73 Cal.App.5th 972, 979.)

On appeal from the denial of a petition after hearing, we

review the ruling for substantial evidence. (People v. Reyes

(2023) 14 Cal.5th 981, 988.) We do so by applying the usual 

substantial evidence standard of review. (See People v. Sifuentes

(2022) 83 Cal.App.5th 217, 233-234.) We thus view the evidence 

in the light most favorable to the court’s order to determine 

whether any reasonable trier of fact could have made the same 

determination beyond a reasonable doubt. (People v. Reyes, 

supra, at p. 988.) We “presume in support of the judgment the 
11

existence of every fact the trier could reasonably deduce from the 

evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The 

same standard applies when the conviction rests primarily on 

circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 

1053.) “An appellate court must accept logical inferences that the 

[trier of fact] might have drawn from the circumstantial 

evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “The 

standard is deferential, but the evidence in support of the 

judgment must be reasonable, credible, and of solid value; ‘a mere 

possibility’ or ‘[s]peculation is not substantial evidence [citation].” 

(People v. Brooks (2017) 3 Cal.5th 1, 120.) Reversal on a 

substantial evidence ground “is unwarranted unless it appears 

‘that upon no hypothesis whatever is there sufficient substantial 

evidence to support [the conclusion of the trier of fact].’” (People 

v. Bolin (1998) 18 Cal.4th 297, 331.)

“[B]ecause ‘we must begin with the presumption that the 

evidence . . . was sufficient,’ it is defendant, as the appellant, who 

‘bears the burden of convincing us otherwise.’” (People v. Hamlin

(2009) 170 Cal.App.4th 1412, 1430.) Here, defendant has failed 

to “[p]rovide a summary of the significant facts limited to matters 

in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C).) The 

trial court based its decision on the evidence given at defendant’s 

2013 trial. The significant facts are found in the reporter’s 

transcripts of that trial. However, defendant merely purports to 

incorporate by reference the summary of facts set forth in the 

appellate opinion in People v. Martinez, supra, B253468.5 

5 Defendant also summarizes facts contained in the 

arguments of counsel at the evidentiary hearing on the petition. 

“‘[I]t is axiomatic that the unsworn statements of counsel are not 

evidence.’” (People v. Wallace (2004) 33 Cal.4th 738, 754, fn. 3.)
12

Although it is his burden to demonstrate the trial evidence was 

insufficient to support the court’s decision, defendant’s briefs fail 

to refer to that evidence, as required by rule 8.204(a)(1)(C) and 

(2)(C).

As defendant has not set forth in his opening brief all the 

material evidence in the light most favorable to the decision of 

the trier of fact, he cannot prevail on a sufficiency of the evidence 

argument. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 

1574.) “The focus of the substantial evidence test is on the whole 

record of evidence presented to the trier of fact, rather than on 

‘“isolated bits of evidence.”’” (People v. Cuevas (1995) 12 Cal.4th 

252, 261, quoting People v. Johnson (1980) 26 Cal.3d 557, 577.)

Furthermore, a defendant “does not show the evidence is 

insufficient by citing only his own evidence, or by arguing about 

what evidence is not in the record, or by portraying the evidence 

that is in the record in the light most favorable to himself.” 

(People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.) This is 

precisely what defendant has done here.

In essence, defendant points out that it was Gutierrez who 

was in possession of the ski mask and gun, while there was no 

evidence showing defendant was armed, that defendant asked 

Gutierrez to shoot the victim or for help, that defendant and 

Gutierrez had previously discussed killing the victim, or that 

defendant and Gutierrez had a motive based upon some prior 

experience with the victim. Finally, defendant argues neither 

knowing that Gutierrez was armed nor defendant’s gang 

membership alone can prove intent to kill.6 From these facts and 

6 To illustrate the point that gang membership alone cannot 

prove intent to kill, defendant cites to the facts of several cases in 

which the evidence of malice was found insubstantial, but he does 
13

argument, defendant draws inferences contrary to those 

supporting the court’s decision and concludes the evidence was 

insufficient to prove defendant shared Gutierrez’s intent to kill, 

necessary for liability as a direct aider and abettor.

Defendant has failed to meet his burden on appeal. We 

have read the transcripts of the trial evidence (summarized 

above), and the People have provided a thorough summary of 

that evidence, all of which amply supports the trial court’s 

finding defendant harbored an intent to kill at the time he and 

Gutierrez drove into Drifters’ gang territory with a shotgun in 

order to hunt down a Drifters gang member.

“Evidence of a defendant’s state of mind is almost 

inevitably circumstantial, but circumstantial evidence is as 

sufficient as direct evidence to support a conviction.” (People v. 

Bloom (1989) 48 Cal.3d 1194, 1208.) Direct evidence of intent to 

kill rarely exists, but often may be inferred from the 

circumstances of the crime and the defendant’s act (People v. 

so without showing those facts were comparable to the facts here,

except gang members were involved and the defendant was with 

fellow gang members at the time of the shooting. (See, e.g.,

People v. Reyes (2023) 14 Cal.5th 981, 988 [defendant rode bicycle 

with fellow gang members close to rival gang territory without 

knowing one was armed]; Juan H. v. Allen (9th Cir. 2005) 408 

F.3d 1262, 1266-1267, 1277 [minor defendant was near his 

brother when the brother shot the victim outside their home in a 

trailer park].) A comparison of the facts of different cases to 

demonstrate the insufficiency of evidence is not useful, as each 

case necessarily depends on its own facts. (People v. Thomas

(1992) 2 Cal.4th 489, 516.) This is especially so when the issue is 

the defendant’s state of mind. (See People v. Mendoza (2011) 52 

Cal.4th 1056, 1075.)
14

Sanchez (2016) 63 Cal.4th 411, 457), and “evidence of motive is

often probative of intent to kill” (People v. Smith, supra, 37 

Cal.4th at p. 741).

Motive in gang shootings is reasonably inferred from 

hatred felt for rival gang members. (People v. Sanchez (2001) 26 

Cal.4th 834, 849.) Here, Officer Bua testified that the Drifters

gang was one of the Playboys gang’s main rivals, that the two 

gangs had never gotten along, and at the time of the shooting the 

two gangs were in a struggle over control of recruitment in the 

local schools, which had resulted in fights, most of them 

instigated by Playboys gang members.

Defendant’s apparently decisive and purposeful actions 

suggest he was searching for and intending to shoot a rival gang 

member. He drove his fellow gang member into rival territory 

probably knowing Gutierrez was armed with a shotgun, as a 

shotgun carried by his only passenger would be hard to miss and 

defendant does not claim the evidence was insufficient to show he 

knew the shotgun was in the car. Defendant approached 

Bautista immediately upon arrival at the market in Drifters gang

territory and issued the ultimate gang challenge by asking, 

“Where you from?” When Bautista replied, “Drifters,” defendant 

punched him, beginning the fight. Within just 30 seconds,

Gutierrez emerged and shot Bautista three times with the 

shotgun.

Substantial evidence that defendant’s intent to kill was 

premeditated may be demonstrated by categories of evidence 

suggested by the California Supreme Court in People v. Anderson 

(1968) 70 Cal.2d 15, 26-27, such as planning activity, preexisting 

motive, and manner of killing. (People v. Mendoza, supra, 52 

Cal.4th at p. 1069.) There is no requirement that all three 
15

factors be established or that any factor must be shown by direct 

evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124-1125.)

Planning may be reasonably inferred from evidence the 

defendants armed themselves before the shooting. (See, e.g.,

People v. Caro (1988) 46 Cal.3d 1035, 1050; People v. Villegas

(2001) 92 Cal.App.4th 1217, 1224.) The gang expert testified

gang members are generally armed for missions in rival territory, 

which are inherently dangerous, and inform one another when 

there is a firearm in the car. In addition to motive, discussed 

above, the presence of the ski mask and the shotgun, along with 

defendant’s jailhouse conversation about a “job” he did with a 

gun, also gave rise to a reasonable inference that the shooting 

was planned. Defendant also aided his accomplice by driving him 

into rival territory prior to the shooting and demanding a rival 

gang member identify himself and his gang. That defendant did 

so knowing that Gutierrez was armed strongly suggests they had 

planned the shooting.

In sum, substantial evidence demonstrates that with the

motive to seek out and commit violence upon a Drifters gang 

member, defendant drove his accomplice into Drifters’ territory 

with a shotgun and a disguise, issued a challenge to the victim, 

assaulted him when he identified his gang as Drifters, and then, 

just 30 seconds later, the accomplice emerged and shot the victim 

three times, delivering the third and fatal wound to the head 

before fleeing in defendant’s car. These facts do not suggest a 

rash reaction to a random encounter with a rival gang member, 

and the timing does not reasonably support a conclusion that a 

more innocent encounter was planned but unexpectedly escalated 

once the two Playboys members began to execute the plan. 

Considering the facts in the context of all the trial evidence, we 
16

conclude substantial evidence supports the finding that 

defendant directly aided and abetted the murder by his 

codefendant, and he did so with express or implied malice, such 

that any reasonable trier of facts would so find beyond a 

reasonable doubt.

As an alternative to outright vacatur of his murder 

conviction, defendant suggests that because the trial court made 

no express finding he premeditated and deliberated the murder, 

his conviction should be reduced to second degree murder. He 

concludes from the lack of an express finding of premeditation 

that the prosecution failed to prove first degree murder beyond a 

reasonable doubt.

“In the context of first degree murder, ‘“premeditated” 

means “considered beforehand . . .’.” (People v. Lee (2011) 51 

Cal.4th 620, 636.) The trial court implicitly found premeditation 

as demonstrated by its statement, “Applying the law to the facts 

in this case illustrates that Petitioner intended to kill when he 

and Codefendant drove into Drifters gang territory . . . . 

Petitioner and Codefendant took a shotgun and a ski mask and 

went to find a Drifters gang member.” We have found 

substantial evidence to support the court’s finding that defendant 

harbored a premeditated intent to kill prior to entering Drifters’

gang territory and that he and Gutierrez planned their “job.” 

“‘“[D]eliberate” means “formed or arrived at or determined upon 

as a result of careful thought and weighing of considerations for 

and against the proposed course of action.”’” (Ibid.) Providing 

transportation into rival gang territory to an armed accomplice 

with a disguise and then confirming the identity of a rival gang 

member for him moments before the accomplice shoots him, 

suggests a carefully considered plan.
17

Defendant cites no authority for his apparent underlying 

assertion, that the trial court’s finding of implied malice somehow 

vitiates the finding of the elements of first degree murder beyond

a reasonable doubt. Moreover, “[r]educing a first degree murder 

conviction to second degree murder is not an option under section 

1172.6.” (People v. Gonzalez (2023) 87 Cal.App.5th 869, 881.)7

We conclude that the trial court did not err in denying the

petition.

DISPOSITION

The August 26, 2022 order denying defendant’s petition is 

affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.

7 As we reject defendant’s contentions regarding second 

degree murder, we need not reach the People’s forfeiture 

argument.