Filed 3/1/23 P. v. Smith CA2/1

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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.

RODNEY TOMMY SMITH,

Defendant and Appellant.

 B317371

 (Los Angeles County

 Super. Ct. No. A762389)

APPEAL from an order of the Superior Court of Los 

Angeles County, Shelly B. Torrealba, Judge. Affirmed.

Richard D. Miggins, 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, Daniel Chang and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
2

Defendant Rodney Tommy Smith was convicted in 1985 of 

second degree murder in connection with a gang related drive-by 

shooting. The conviction was later affirmed on direct appeal. In 

2019, defendant filed a petition to be resentenced under former 

Penal Code section 1170.95.1 The trial court appointed counsel 

for defendant, held an evidentiary hearing, and after hearing 

argument denied the petition.

Defendant now appeals the denial of his resentencing 

petition. Defendant contends the trial court applied an incorrect 

standard of proof, did not act as an “independent factfinder,” 

considered inadmissible evidence, and erred in using a theory of 

criminal liability not relied upon at his original trial. Defendant 

further argues substantial evidence does not support the trial 

court’s factual findings. We find no merit in any of defendant’s 

contentions and affirm the denial of the resentencing petition.

FACTUAL BACKGROUND

A. The Offense Conduct

We take the following facts from the transcript of 

defendant’s trial. In January 1985, defendant (who was also 

known as Snowman) was 19 years old and a member of the Crips 

street gang. On the afternoon of January 30, 1985, defendant 

1 Unspecified statutory references are to the Penal Code. 

After the proceedings in the trial court, the Legislature 

renumbered section 1170.95 as section 1172.6, with no change in 

the text of the statute (Stats. 2022, ch. 58, § 10, eff. June 30, 

2022). For the sake of clarity given that the law was codified at 

former section 1170.95 at the time of the trial court proceeding, 

we (as the parties likewise do in their briefs) refer to the statute 

by its former number.
3

was on foot in rival gang territory near the intersection of 46th 

Street and Crenshaw Boulevard in Los Angeles. Coming around 

the corner, defendant encountered Deradous Harris walking with 

some friends. Before Harris and his friends could react, 

defendant said, “Now what’s up” and fired four shots from a 

distance of 25 to 30 feet. A bullet struck Harris above the left 

ankle, passing through his leg.

Two days later, on the afternoon of February 1st, defendant 

was driving his car near the intersection of 48th Street and 9th 

Avenue in Los Angeles. This neighborhood was in territory 

claimed by a rival gang. While driving on 9th Avenue, defendant 

stopped the car and fired a single shot towards Willie Rubin, 

Andre West and Maurice McIntosh. No one was struck and 

defendant drove away.

On the night of February 2nd, Rubin and Marvin McIntosh

(Maurice McIntosh’s brother)

2 were outside a home on 9th 

Avenue when they saw a car turn onto the street. The car slowed 

down and its headlights were turned off. Because the car looked 

suspicious, Rubin and Marvin ducked behind a car parked in the 

driveway. The car drove past them and stopped. Rubin 

recognized defendant as the driver of the car. Two shots were 

fired from the car, after which Rubin heard someone from the car 

say “cuz”—a word indicating hostility to the Bloods gang 

members. One of the shots struck Marvin in the head; he died as 

a result of the gunshot wound. After the shots were fired 

defendant “just took off across 48th [Street]” and kept going.

2 Because Marvin and Maurice share the same surname, 

we use their first names to avoid confusion and not out of any 

disrespect.
4

Earlier that night, prior to the shooting, Ronnie Luke saw 

defendant and Rogelio “Loco Doc” Cordoba leave in defendant’s 

car. Defendant returned alone and told Luke that he and 

Cordoba had gone “riding” in the “Fifties’ hood,” referring to 

territory of the Fifties Blood gang, and that he and Cordoba “had 

just shot at some bloods down on 9th Avenue.” According to 

defendant, he and Cordoba “drove by on the street” and Cordoba 

yelled “Harlem Crips Rollin’ Thirties” before firing. Luke told 

defendant that it was “stupid to do that in his car and that he 

and Loco Doc [Cordoba] were going to get in trouble,” to which 

defendant responded, “Well, they shouldn’t be blasting at us all 

the time.”

After this conversation with defendant, Luke got in his car 

and drove by the neighborhood to which defendant had referred. 

When there, Luke saw “the ambulance and the police cars and 

stuff like that.” The next morning Luke was present when 

someone told defendant that “M Bone [Marvin] was dead,” to 

which defendant answered, “then Loco Doc [Cordoba] is in 

trouble.”

On the afternoon of February 6, 1985, Los Angeles Police 

Department Detective Jerry Johnson interviewed Cordoba at the 

77th Street Division station. In response to questions,3 Cordoba 

stated that he was riding with defendant in defendant’s car on 

the evening of February 2nd when they were fired on by rival 

gang members in the 4900 block of 9th Avenue. According to 

3 The court admitted Cordoba’s statements only as to 

Cordoba; the court sustained a hearsay objection to their 

admission as to defendant. We set forth these statements to help 

explain both parties’ closing arguments and defendant’s claim of 

self-defense.
5

Cordoba, defendant stopped the car, backed up a few feet, and 

told Cordoba to “buss on them,” meaning to “shoot at them,” with 

a .38 caliber revolver that defendant handed to Cordoba.

4 

Defendant encouraged Cordoba to shoot, telling him, “don’t be a 

mark”—that is, not to be a coward. Cordoba told Detective 

Johnson “that he leaned out or crawled partially out of the 

passenger window and fired the weapon over the top of the car in 

the direction of where the victim and persons were standing in 

front of the residence.”

B. Defendant’s Trial

Defendant was charged with one count of first degree 

murder (§ 187, subd. (a)) for the killing of Marvin and one count 

of assault with a deadly weapon for shooting at Rubin on 

February 2, 1985 (§ 245, subd. (a)(2)). In addition, defendant was 

charged with three counts of assault by means of force likely to 

produce great bodily injury for shooting at Harris on January 30, 

1985, and at Rubin and West on February 1, 1985. Cordoba was 

also charged.

Defendant and Cordoba waived a jury and the court tried 

them together. The People called as witnesses Luke, Harris, 

Maurice, Rubin and Detective Johnson, who all testified to the 

events summarized above. In addition, the parties stipulated 

4 Detective Johnson could not recall the exact point in the 

sequence of events when defendant gave Cordoba the revolver. 

Johnson testified that Cordoba told him “that after the group in 

front of the house fired at them, [defendant] stopped the car. And 

I don’t recall if he said at that point [defendant] gave him the 

gun, or if [defendant] backed up and then gave him the gun. I 

don’t recall. But, at some point, either before or after [defendant] 

backed the car up, Cordoba was given a gun by [defendant].”
6

that a forensic pathologist, Dr. Bolduck, performed an autopsy on 

Marvin and determined his cause of death was a gunshot wound 

to the head.

Neither defendant testified. The parties stipulated that the 

sole defense witness, Kendall Turner, would testify that he

“heard a pop, which he described as a small caliber gunshot,” 

followed by “two loud bangs, which he recognized as large caliber 

gunshots,” after which he saw defendant’s car leaving the scene.

Citing Turner’s testimony that Cordoba fired after being 

fired upon, defendant argued that the February 2, 1985 shooting 

was “a classic case of self-defense.” The People argued that 

defendant aided and abetted Marvin’s murder: “This is a 

planned hunt, in essence. They’ve turned the lights out as 

they’re cruising down the streets looking for a potential victim.” 

The prosecution also disputed the claim of self-defense: “Even if 

we accept . . . Cordoba’s statement that he was fired upon first, 

what happened in this case was that shots were fired, and . . .

defendant . . . stopped the car, put the car in reverse and backed 

it up to approach to get closer to the intended victims in this case. 

This was not a self-defense situation. What happened was they 

stopped the car and backed up so they could be closer to the 

victims.”

The trial court acquitted defendant of first degree murder, 

but found him guilty of second degree murder as well as guilty on 

the assault counts.5 The court also found true special allegations

relating to firearm use. For the murder of Marvin, the court 

sentenced defendant to 15 years to life in state prison plus an 

additional year for the use of a firearm, for a total of 16 years to 

5 The court also convicted Cordoba.
7

life. On the count of assault with a firearm on Rubin, the court 

sentenced defendant to the middle term of three years, to run 

consecutively with the life term. On the remaining counts, for 

shooting at Harris on January 30, and at Rubin and West on 

February 1, the court sentenced defendant to the middle term of 

three years, running concurrently with his sentence on the 

murder charge.

In an unpublished opinion, a panel of this court affirmed 

defendant’s conviction. (People v. Cordoba et al. (June 30, 1988, 

B019212).) Defendant later filed a habeas corpus petition in the 

Los Angeles Superior Court; that court denied the petition in 

2016. (In re Rodney Tommy Smith (Aug. 11, 2016, A762389.)

C. Defendant’s Petition for Resentencing

On January 4, 2019, defendant filed a petition for 

resentencing under former section 1170.95. Defendant’s petition

alleged that he had been convicted of second degree murder 

pursuant to the felony-murder rule or the natural and probable 

consequences doctrine and that he could not now be convicted of 

second degree murder because of changes made to sections 188 

and 189, effective January 1, 2019. At defendant’s request, the 

trial court appointed counsel to represent him.

The People opposed defendant’s petition. While the 

primary ground of opposition was that former section 1170.95 

was unconstitutional,6 the People also opposed relief because

6 Prior to the evidentiary hearing in this matter, our 

court—like other appellate courts that considered the issue—

determined that former section 1170.95 was constitutional. (See, 

e.g., People v. Bucio (2020) 48 Cal.App.5th 300, 308.) The People 
8

defendant was convicted under section 187 “as a direct aider and 

abettor to the killing rather than as an accomplice to an 

underlying crime under a felony murder theory or natural and 

probable consequences theory, rendering him ineligible for 

[former] section 1170.95 resentencing.” Specifically, the People 

argued that defendant “directly aided and abetted his codefendant in shooting a firearm at the victim and as such 

displayed implied malice, a basis for a second degree murder 

conviction which has not been restricted by the 2019 changes to 

sections 188 or 18[9].”

Defendant contended in reply that amendments to “section 

188 requiring that a principal in a murder ‘shall act with malice 

aforethought,’ combined with the prohibition against imputing 

malice from participation in a crime, . . . has eliminated imputing 

implied malice for second degree murder to an aider and abettor.” 

Defendant further asserted that addressing a “new theory of 

murder liability” at the resentencing hearing that is different 

than the one presented at trial, would violate the due process and 

double jeopardy clauses of both the federal and California 

constitutions.

D. Denial of Defendant’s Petition

The People conceded that defendant had made a prima

facie showing that he was entitled to relief, and the trial court 

held an evidentiary hearing on defendant’s petition on 

October 12, 2021.

Prior to the hearing the People filed five exhibits, including 

the unpublished Court of Appeal opinion affirming defendant’s 

abandoned this argument at the evidentiary hearing, and it is not 

an issue on appeal.
9

conviction, the complete transcript of defendant’s bench trial, a 

2009 comprehensive risk assessment prepared for the Board of 

Parole Hearings, a 2004 mental health evaluation for the Board 

of Prison Terms, and a 1990 psychological evaluation for the 

Board of Prison Terms (collectively, the assessments). Defendant 

offered no exhibits. On the day after the hearing, defendant filed 

a brief agreeing that both the trial transcript and the 1988 

appellate opinion were admissible at the evidentiary hearing; 

defendant objected to the admission of the 2009, 2004, and 1990 

assessments on hearsay related grounds.

At the hearing, the People argued that defendant was 

guilty of aiding and abetting as well as implied malice second 

degree murder and thus not entitled to relief. The prosecutor 

argued defendant committed a planned attack: “He went into 

rival gang territory. He wasn’t just sort of harmlessly minding 

his own business and found himself under some kind of an attack 

where self-defense was necessary. It’s not a self-defense 

situation. It was a drive-by gang shooting.” The prosecutor

agreed there was not “an intent to kill, per se, and that’s why 

we’re talking about implied malice. The idea was to shoot at 

these guys and to send a message or a warning,” but the 

defendant knew “drive-by shootings kill people and he proceeded 

in spite of that and someone got killed and it’s implied malice.”

Defense counsel stressed defendant was not the actual 

killer and argued he acted in self-defense. After defendant and 

Cordoba were shot at, Cordoba “took it upon themselves to fire 

upon them, not intending to kill anybody, but to scare them off, 

do something else [other] th[a]n inflict great bodily harm on 

somebody.” Defense counsel argued these facts “have to be 

considered by the court in determining whether or not 
10

[defendant]’s participation in this action, if it is participation, 

whether or not he was just simply the driver and not knowing 

that Cordoba planned to do anything serious.” Accordingly, 

counsel argued, defendant was not an aider and abettor, and was 

not a major participant who acted with reckless indifference to 

human life.

After argument, the trial court indicated it would prepare a 

written decision, provide it to counsel, and then hold a further 

hearing where both counsel could respond to the court’s written 

analysis. The hearing resumed on October 27, 2021. After 

presenting counsel its written ruling denying defendant’s 

petition, the court offered both sides an opportunity to present 

further argument. Counsel for both parties declined, and the 

court made its written ruling final.

In ruling, the trial court found “[defendant] admitted to 

‘riding in Fifties’ hood . . . and blasted some Fifties.’ This 

admission established [defendant]’s knowledge of Cordoba having 

a gun. His actions of driving his car with co-gang member 

Cordoba with a gun, in hostile territory, cruising slowly down the 

street with headlights on, turning off the headlights, and 

stopping as Cordoba shot at victims Rubin and [Marvin] establish 

active participation in planned aggression. Moreover, his actions 

during the three days immediately prior to the murder of driving 

the same car into hostile gang territory, yelling ‘Now what’s up’

and being the undisputed shooter in two assault convictions 

provide further corroboration. From this evidence, the trial court 

could reasonably infer [defendant]’s gang affiliation and 

knowledge of the ongoing rivalry with Fifties/Blood gang 

members. It was also reasonable for the trial court to infer 

[defendant] wanted the retaliatory drive-by shooting to occur 
11

based on his repetitive and close-in-time conduct. The evidence 

was more than sufficient to support the trial court’s conclusion 

that [defendant] aided and abetted the shootings.” The trial 

court concluded that “the People have established proof beyond a 

reasonable doubt in accord with . . . [former] section 1170.95 and 

the [defendant] is ineligible for resentencing in this matter.”

Defendant filed a timely notice of appeal. We have 

jurisdiction pursuant to section 1237, subdivision (b).

DISCUSSION

A. The Resentencing Statutes

“Effective January 1, 2019, the Legislature passed Senate 

Bill [No]. 1437 [(2017-2018 Reg. Sess.) (Senate Bill 1437)] ‘to 

ensure that murder liability is not imposed on a person who is 

not the actual killer, did not act with the intent to kill, or was not 

a major participant . . . who acted with reckless indifference to 

human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. 

Lewis (2021) 11 Cal.5th 952, 959.) Senate Bill 1437 amended 

section 188, subdivision (a)(3), to require that all principals to 

murder must act with either express or implied malice to be 

convicted of that crime, with the exception of felony murder 

under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) 

Senate Bill 1437 amended section 189, subdivision (e), to provide 

that for a felony murder conviction the defendant had to be the 

actual killer, an aider and abettor who acted with the intent to 

kill, or a major participant who acted with reckless indifference 

to human life in the underlying felony. (Stats. 2018, ch. 1015, 

§ 3.)

Senate Bill 1437 also added former section 1170.95, which 

provided a procedure for defendants convicted of murder to seek 

resentencing. (Stats. 2018, ch. 1015, § 4.) At the time of 
12

defendant’s evidentiary hearing, former section 1170.95, 

subdivision (a) provided that “[a] person convicted of felony 

murder or murder under a natural and probable consequences

theory may file a petition” for resentencing “when all of the 

following conditions apply: [¶] (1) A complaint, information, or 

indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine. [¶] 

(2) The petitioner was convicted of first degree or second degree 

murder following a trial or accepted a plea offer in lieu of a trial 

at which the petitioner could be convicted for first degree or 

second degree murder. [¶] (3) The petitioner could not be 

convicted of first or second degree murder because of changes to 

[s]ection 188 or 189 made effective January 1, 2019.”

Effective January 1, 2022—that is, after the trial court’s

decision denying defendant’s petition for resentencing, and 

during the pendency of this appeal—Senate Bill No. 775 (2021-

2022 Reg. Sess.) (Senate Bill 775) amended former section 

1170.95 to state that (1) the burden of proof at a resentencing 

hearing under this section is “on the prosecution to prove, beyond 

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

under California law as amended by [Senate Bill 1437],” and

(2) “[a] finding that there is substantial evidence to support a 

conviction for murder . . . is insufficient to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Fmr. § 1170.95, subd. (d)(3), as amended by

Stats. 2021, ch. 551, § 2.) Senate Bill 775 also clarified that the 

trial court’s role in a resentencing hearing is to act as an 

independent fact finder and determine, in the first instance, 

whether the petitioner committed murder under the law as 
13

amended by Senate Bill 1437. (People v. Clements (2022) 75

Cal.App.5th 276, 294, 297; see also People v. Garrison (2021) 73

Cal.App.5th 735, 745, fn. omitted [trial court acts as “an 

independent fact finder, to determine beyond a reasonable doubt 

whether [the] defendant is guilty of murder under a valid theory 

of murder”].)

The People do not concede the retroactive application of all 

these changes to defendant’s case but note that defendant could 

potentially file a new petition in the superior court under the 

amended provisions. As we find defendant’s arguments meritless 

regardless of which statutory version controls, we assume for the 

sake of argument, and without deciding, that the changes to 

former section 1170.95 at issue in this matter apply retroactively

to defendant’s case.

B. Standard of Review

The interpretation of the statutory language of former 

section 1170.95—that is, the correct standard to be applied by the 

trial court in evaluating eligibility for resentencing—is a question 

of law that we determine de novo. (People v. Prunty (2015) 62

Cal.4th 59, 71; People v. Drayton (2020) 47 Cal.App.5th 965, 981.) 

The trial court’s determination that defendant is ineligible for 

relief because he is guilty of murder, beyond a reasonable doubt, 

is a determination of fact. (People v. Clements, supra, 75 

Cal.App.5th at p. 294 [“The question is whether the petitioner 

committed murder under a still-valid theory, and that is a factual 

question”].) We review the trial judge’s factfinding for 

substantial evidence. (People v. Owens (2022) 78 Cal.App.5th

1015, 1022.)
14

C. The Trial Court, Acting as an Independent Fact

Finder, Applied the Correct Standard in Denying

Defendant’s Petition

Defendant first contends reversal is required because the 

trial court applied an incorrect standard when denying his

petition. At the time of the hearing, former section 1170.95, 

subdivision (d)(3) stated that the prosecution’s burden was “to 

prove, beyond a reasonable doubt, that the petitioner is ineligible 

for resentencing.” Unsurprisingly, the trial court looked to this 

language when denying the petition, stating the People had the 

burden to “prove [defendant]’s ineligibility for re-sentencing 

beyond a reasonable doubt” and had met that burden.

While this matter was on appeal, the Legislature amended 

former section 1170.95, subdivision (d)(3) to provide in pertinent 

part that “[a]t the hearing to determine whether the petitioner is 

entitled to relief, the 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 [s]ection 188 or 189 made effective January 1, 

2019.” (Fmr. § 1170.95, subd. (d)(3), as amended by Stats. 2021,

ch. 551, § 2.)

Defendant argues we should reverse because the trial court 

relied on the standard in effect at the time of the hearing, rather 

than the one currently in force. Defendant’s argument, however, 

ignores other statements made by the court while ruling. While 

the court made comments based on the then applicable standard 

of proof, it made further statements demonstrating that it found 

beyond a reasonable doubt that defendant had committed an 

offense that made him ineligible for relief. Specifically, in 

denying the petition the court found that “[t]he totality of the 
15

evidence presented established proof beyond a reasonable doubt 

for . . . defendant’s second degree murder conviction and he is 

ineligible for sentencing pursuant to . . . [former] section 

1170.95.” The court further found that the evidence was 

insufficient “to support [defendant]’s claim of unreasonable selfdefense.” Thus, when read in context, it is clear the trial court 

found the prosecution had proven beyond a reasonable doubt that 

defendant was guilty of murder “under California law as 

amended by the changes to [s]ection 188 or 189 made effective 

January 1, 2019” (fmr. § 1170.95, subd. (d)(3)), and we 

accordingly find no error in the legal standards applied by the 

court when it weighed the evidence.

Defendant argues we should not rely on these statements 

because the court elsewhere stated “there was sufficient evidence 

to convict [defendant] on an aider and abettor theory of liability,” 

and that “the evidence presented supports [defendant]’s 

conviction under a theory of implied malice.” Defendant argues 

these statements refer to the original trial court’s determination 

of guilt in 1985, and thus do not reflect independent fact finding 

by the court hearing the resentencing petition.

“The very settled rule of appellate review is a trial court’s 

order/judgment is presumed to be correct, error is never 

presumed, and the appealing party must affirmatively 

demonstrate error on the face of the record.” (People v. Davis

(1996) 50 Cal.App.4th 168, 172.) The record need not 

affirmatively demonstrate the trial court’s application of the 

correct legal standard; instead, we presume the court applied the 

correct standard unless there is evidence to the contrary. (Peake

v. Underwood (2014) 227 Cal.App.4th 428, 447.) Given the trial 

court’s statement that the totality of the evidence presented at 
16

the evidentiary hearing “established proof beyond a reasonable 

doubt for . . . defendant’s second degree murder conviction,” we do 

not read the other statements to which defendant refers as 

demonstrating a failure of independent factfinding. Indeed, the

resentencing trial court’s language elsewhere makes clear it was

describing its own determination based on the evidence and 

argument presented to it, and not parroting some finding by 

another judicial officer in a different proceeding. The court’s use 

of the present tense in describing its findings, the trial court’s 

reference to evidence introduced at the resentencing hearing that 

did not exist at the time of defendant’s bench trial, and the 

court’s rejection of arguments specifically made at the 

resentencing hearing all demonstrate this.

Nor do we find persuasive defendant’s claim that the trial 

court’s statements that it “concurs with the [a]ppellate [c]ourt’s 

finding there was sufficient evidence to convict [defendant] on an 

aider and abettor theory of liability” and that it “agrees with the 

1988 [a]ppellate [c]ourt decision” that defendant cannot claim 

self-defense demonstrate a lack of independent judgment. A

judicial officer does not “agree” or “concur” in another judicial 

officer’s opinion without first forming her own opinion. The order 

denying defendant’s petition shows that the trial court 

independently considered the issues raised by defendant’s 

petition and found guilt beyond a reasonable doubt; the fact the 

trial court reached the same conclusion as that reached by the 

judge at defendant’s trial, and by the panel that heard his appeal, 

does not demonstrate a failure of independent review.
17

D. The Trial Court Did Not Commit Reversible Error by 

Considering the Appellate Opinion Affirming 

Defendant’s Conviction

Defendant next argues the trial court erred by considering 

the entirety of the unpublished opinion affirming defendant’s 

conviction. As with his previous argument, this claim arises out 

of amendments to former section 1170.95 that took effect after 

the evidentiary hearing. At the time of the hearing at issue here, 

former section 1170.95, subdivision (d)(3) allowed “[t]he 

prosecutor and the petitioner [to] rely on the record of conviction 

or offer new or additional evidence to meet their respective 

burdens” at the evidentiary hearing. An appellate decision was 

considered part of the “record of conviction” admissible in 

posttrial proceedings. (See In re W.B. (2012) 55 Cal.4th 30, 57.) 

As noted above, given this law, defendant specifically agreed that 

the 1988 appellate opinion was admissible at the evidentiary 

hearing.

However, effective January 1, 2022, the Legislature limited 

use of prior appellate opinions in former section 1170.95 

proceedings to “the procedural history of the case recited.” (Id.,

subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.) Defendant 

argues that this amendment applies retroactively to limit the 

admissible portion of the appellate opinion to the procedural 

history of the case, and that the trial court committed prejudicial 

error here by straying beyond that limited permitted use.

The People first argue this objection was waived below and 

cannot be considered on appeal. We reject this argument. The 

issue of the admissibility of the facts recited in the prior appellate 

opinion only arises because of a change in law that took place 

after the evidentiary hearing in this matter. We do not fault 
18

defense counsel for not making an objection that would have had 

no merit at the time of the hearing. (People v. Harris (2013) 57 

Cal.4th 804, 840; People v. Pearson (2013) 56 Cal.4th 393, 461-

462.)

We find the People’s alternative argument that any error 

was harmless far more compelling. We need not decide whether 

any change in the admissibility of appellate opinions wrought by 

Senate Bill 775 applies retroactively,7 because even if this change 

applied retroactively any error in admitting the appellate opinion 

was harmless. The evidence at the evidentiary hearing included 

not only the 1988 appellate opinion, but also the compete 

transcript of defendant’s trial. Defendant does not identify any 

fact set out in the appellate opinion that is not also found in the 

trial transcript. Defendant suffered no prejudice by the trial 

court considering an appellate opinion containing the same facts 

as the indisputably admissible trial transcript. (People v. Owens, 

supra, 78 Cal.App.5th at p. 1027 [the “appellant suffered no 

prejudice by the court’s consideration of” inadmissible evidence 

because there was nothing unfavorable to the appellant in 

inadmissible documents that was not also contained in 

admissible evidence]; People v. Clements, supra, 75 Cal.App.5th

at pp. 292-293 [same].)

7 See People v. Owens, supra, 78 Cal.App.5th at pages 1026-

1027 (expressing doubt that changes in admissibility of evidence 

in Senate Bill 775 apply retroactively but declining to resolve the 

issue because any error in admitting evidence was harmless).
19

E. The Trial Court Did Not Commit Reversible Error by 

Admitting the Assessments

Defendant argues the trial court erred by admitting the 

assessments that the People offered in evidence. Defendant

bases his argument on an amendment to former section 1170.95, 

subdivision (d)(3) that took effect on January 1, 2022, providing 

in pertinent part that “[t]he admission of evidence in the 

[evidentiary] hearing shall be governed by the Evidence Code.” 

Relying on this language, defendant argues that the assessments

contained inadmissible hearsay, and their admission was 

prejudicial error requiring remand for a new evidentiary hearing. 

The People argue that the assessments were properly admitted 

as reliable hearsay, and that any error in admitting them was 

harmless.

We need not reach the issue of admissibility because we 

agree with the People that, regardless of whether the records in 

question were admissible, defendant has not shown that any 

error in admitting the records requires reversal. Article VI, 

section 13 of the California Constitution provides in pertinent 

part that “[n]o judgment shall be set aside, or new trial granted, 

in any cause, on the ground of . . . the improper admission or 

rejection of evidence, . . . unless, after an examination of the 

entire cause, including the evidence, the court shall be of the 

opinion that the error complained of has resulted in a 

miscarriage of justice.” This provision places the burden on 

defendant to show “that it is reasonably probable that a result 

more favorable to the appealing party would have been reached 

in the absence of the error.” (People v. Watson (1956) 46 Cal.2d

818, 836.)
20

Defendant fails to show how he was prejudiced by the 

admission of any portion of any of the three assessments offered 

by the People. Defendant argues that the statement attributed to 

him in the 2009 assessment, to the effect that he should have told 

Cordoba to fire into the air, is “the bedrock of evidence considered 

by the trial court in determining that [defendant] aided and 

abetted the shooting and acted with reckless disregard of human 

life.”8 We read the court’s decision very differently. Contrary to 

defendant’s contention, the trial court specifically noted that “a 

reasonable person would know participating in a drive-by 

shooting is conduct which is inherently dangerous to human life.” 

It supported that conclusion by noting that “the evidence 

demonstrated [defendant] knowingly participated in a drive-by 

shooting and his previous returns to the same area looking for 

rival gang members further buttresses the inference of his 

implied malice.” Only after making these points did the court 

hold that “[a]dditionally, [defendant] acknowledged the inherent 

dangerousness of his conduct in his 2009 parole board statement 

when he stated, ‘I should have told him (Cordoba) to just shoot in 

the air.’ ”

Far from being “the bedrock” of the trial court’s decision, 

defendant’s admission that he would be better off had he told 

Cordoba “to just shoot in the air” merely adds further 

corroboration to other evidence from which the trial court had

found that defendant knew that shooting at people was 

8 The only other statement relied upon by the prosecutor 

during the resentencing hearing from these documents was a 

statement by defendant that his sister was killed in a drive-by 

shooting in 1975. The trial court did not reference or rely on this 

statement, and defendant does not argue prejudice from it.
21

inherently dangerous. Thus, it is clear the trial court would have 

reached the same result even if the assessments had not been 

admitted at the evidentiary hearing.

F. The Resentencing Court Was Not Bound by the 

Original Basis for Conviction

Defendant’s penultimate contention is that the trial court 

erred in finding the evidence supported a finding of implied 

malice, when at the original bench trial the prosecution argued 

only an aiding and abetting theory. Defendant also argues that, 

because the matter was originally tried to the court and no jury 

instructions were given, it is possible the original trial court 

convicted defendant on a theory other than aiding and abetting. 

Because in defendant’s view the original grounds for the murder 

conviction are unclear, and may have included a theory under 

which he would be eligible for resentencing, the trial court 

abused its discretion in finding guilt on grounds that may have 

differed from the original basis of conviction to render him 

ineligible for relief.

A number of recent decisions have rejected this argument. 

(E.g., People v. Gentile (2020) 10 Cal.5th 830, 856 [“the 

Legislature authorized the parties to offer new or additional 

evidence during the [former §] 1170.95 process in order to allow 

the parties to explore issues they did not explore under the prior 

state of the law”]; People v. Schell (2022) 84 Cal.App.5th 437, 444-

445 [because a resentencing hearing “does not subject a 

defendant to the risk of additional punishment, is not a trial, 

permits both parties to present new evidence, and merely 

considers whether the defendant’s request for leniency meets the 

necessary criteria, there is no constitutional problem in allowing 

new theories of murder liability at that hearing”]; People v. Flint
22

(2022) 75 Cal.App.5th 607, 618 [rejecting contention “that the 

double jeopardy clauses of the federal and state constitutions 

preclude the prosecution from introducing new theories of [the 

defendant’s] guilt that it did not raise at trial”]; People v. Duchine

(2021) 60 Cal.App.5th 798, 813 [“By allowing new evidence and 

providing for an evidentiary hearing, the Legislature plainly 

intended that the issues concerning whether the defendant was 

guilty under theories of murder not previously or necessarily 

decided would be resolved anew, through a factfinding process 

affording a degree of due process to the petitioner”].) We join 

these courts in rejecting defendant’s argument.

G. Substantial Evidence Supports the Trial Court’s 

Findings

Defendant finally argues substantial evidence does not 

support the trial court’s decision that he was guilty of aiding and 

abetting the murder and acted with implied malice. “We 

‘ “examine the entire record in the light most favorable to the 

judgment to determine whether it contains substantial 

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

solid value that would support a rational trier of fact in finding 

[the defendant guilty] beyond a reasonable doubt.” ’ [Citation.] 

Our job on review is different from the trial judge’s job in 

deciding the petition. While the trial judge must review all the 

relevant evidence, evaluate and resolve contradictions, and make 

determinations as to credibility, all under the reasonable doubt 

standard, our job is to determine whether there is any 

substantial evidence, contradicted or uncontradicted, to support a 

rational fact finder’s findings beyond a reasonable doubt.

[Citation.]” (People v. Clements, supra, 75 Cal.App.5th at p. 298.) 

We presume in support of the decision of the trial court the 
23

existence of every fact reasonably inferable from that evidence. 

(People v. Boyer (2006) 38 Cal.4th 412, 480.)

The trial court first concluded that defendant was guilty 

“on an aider and abettor theory of liability.” To be liable as a 

direct aider and abettor, defendant must have, “by words or 

conduct, aid[ed] the commission of the life-endangering act . . . 

[with] knowledge that the act is dangerous to human life, and 

acting in conscious disregard for human life.” (People v. Powell

(2021) 63 Cal.App.5th 689, 713, fn. omitted.) “[A]n aider and 

abettor who does not expressly intend to aid a killing can still be 

convicted of second degree murder if the person knows that his or 

her conduct endangers the life of another and acts with conscious 

disregard for life.” (People v. Gentile, supra 10 Cal.5th at p. 850.)

The trial court’s order summarized the evidence that 

supported a finding that defendant was guilty beyond a 

reasonable doubt as an aider and abettor: “[Defendant] admitted 

to ‘riding in Fifties’ hood . . . and blasted some Fifties.’ This 

admission established [defendant]’s knowledge of Cordoba having 

a gun. His actions of driving his car with co-gang member 

Cordoba with a gun, in hostile territory, cruising slowly down the 

streets with headlights on, turning off the headlights, and 

stopping as Cordoba shot at victims Rubin and [Marvin] establish 

active participation in planned aggression. Moreover, his actions 

during the three days immediately prior to the murder of driving 

the same car into hostile gang territory, yelling ‘now what’s up’ 

and being the undisputed shooter in two assault convictions 

provide further corroboration.” All of this was substantial 

evidence supporting the court’s finding that defendant aided and 

abetted Marvin’s murder.
24

The trial court also found, in the alternative, that 

defendant was guilty beyond a reasonable doubt of implied malice 

murder. “[A] conviction for second degree murder, based on a 

theory of implied malice, requires proof that a defendant acted 

with conscious disregard of the danger to human life.” (People v.

Knoller (2007) 41 Cal.4th 139, 156.) This standard applies even

though defendant was not the actual shooter. (See, e.g., People v.

Mancilla (2021) 67 Cal.App.5th 854, 865 [“traditional principles

of implied malice” include a situation where “the defendant

intends to kill or intentionally commits acts that are likely to kill

with a conscious disregard for life . . . even though he uses

another person to accomplish his objective”].) Implied malice 

may be proved by circumstantial evidence (People v. Superior 

Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502; People v. 

Klvana (1992) 11 Cal.App.4th 1679, 1704), and may also be 

inferred from the circumstances of the murder itself (People v. 

Canizalez (2011) 197 Cal.App.4th 832, 842; People v. Harmon

(1973) 33 Cal.App.3d 308, 311).

The facts recited by the trial court demonstrate that

substantial evidence supports the court’s conclusion that 

defendant was guilty of implied malice murder: “[Defendant]’s 

claim he was simply the driver and had no knowledge of 

Cordoba’s intentions the night of the murder is unpersuasive 

based on the totality of his previously stated actions and 

admissions. Moreover, a reasonable person would know 

participating in a drive-by shooting is conduct which is inherently 

dangerous to human life. [(]See [People v.] Watson [(1981) 30 

Cal.3d 290.)] Here, the evidence demonstrated [defendant]

knowingly participated in a drive-by shooting and his previous 
25

returns to the same area looking for rival gang members further 

buttresses the inference of his implied malice.”

DISPOSITION

The order denying defendant’s resentencing petition is 

affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.