Filed 10/2/24 P. v. Hillmon CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE

,

Plaintiff and Respondent,

v.

CARLTON KERGE HILLMON,

Defendant and Appellant

. B3 30675

(Los Angeles County

Super. Ct. No. A 790968 )

APPEAL from a n order of the Superior Court of Los

Angeles County, Gustavo N. Sztraicher , Judge. Affirmed

.

Valerie G. Wass

, under appointment by the Court of

Appeal, for Defendant and Appellant

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

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Kenneth C. Byr ne, Supervising

Deputy Attorney General, and Allison H. Chung , Deputy

Attorney General, for Plaintiff and Respondent

.

### 2 Defendant Carlton Kerge Hillmon appeals the order

denying his petition for resentencing under Penal Code former

section 1170.95 (now section 1172.6) 1 following an evidentiary

hearing

. Defendant argues substantial evidence did not support

the trial court’s finding he directly aided and abetted murder

with implied malice , or a lternatively, that the matter must be

remanded for the court to consider his youth at the time of the

murder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shooting of Richard Lewis

On July 30, 1985, Richard Lewis was shot and killed at

101st Street and Figueroa Street in Los Angeles County

. I n

October 1986, defendant was arrested for a parole violation :

possession of a firearm by a felon. Two days later, Los Angeles

Police Department Detective Aaron Martin interviewed

defendant about the Lewis shooting. Detective Martin read

defendant his rights under Miranda v. Arizona (1966) 384 U.S.

436 , and defendant waived them. D efendant admitted to the

detective that he was involved in the shooting

.

B. Preliminary Hearing

At defendant’s preliminary hearing i n December 1986

, the

parties stipulated to the following facts: (1) Lewis was shot and

killed at 101st Street and Figueroa Street on July 30, 1985, (2) an

1 All subsequent undesignated statutory references are to the

Penal Code. Effective June 30, 2022, the Legislature renumbered

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There

were no substantive changes to the statute. All further references to

the statute will be to the new section number.

### 3

autopsy determined the cause of death was multiple gunshot

wounds, and (3) the autopsy report would be made part of the

preliminary hearing transcript and considered as evidence for

purposes of the preliminary hearing

.

Detective Martin testified about his interview of defendant.

The following facts are taken from Detective Martin’s testimony.

On the evening of July 30, 1985, defendant and his

companion, Michael Johnson, along with their respective

girlfriends, drove to a hamburger stand at Florence and Vermont

Avenue s

. As defendant went to order, there was an “ exchange of

looks ” between defendant and Lewis. Defendant was a member

of the Eight Tray Hoover Crips gang . Lewis was a member of the

9

- 0 Hoover Crips gang. There was animosity between the gangs.

D efendant told Johnson about Lewis and that he was a 9

- 0

Hoover Crip. Defendant also told Johnson he overheard Lewis

and his friends discussing going to a nother hamburger stand at

101st Street and Figueroa Street.

Defendant drove his companions to 1022 West 84th Street

and dropped off his and Johnson’s girlfriends. Defendant and

Johnson got into a different car registered either to defendant or

someone in his family. Defendant then drove to Johnson’s house

,

and Johnson retrieved a handgun. Defendant and Johnson

returned to the original hamburger stand

, but Lewis and his

friends were no longer there. Defendant assumed Lewis went to

101st Street and Figueroa Street based on what defendant

previously overheard

. Defendant drove himself and Johnson

there

. Defendant drove past the location , made at least two right

turns , and then drove up an alley in the back of the hamburger

stand, where they located Lewis’s car. Defendant pulled up

### 4

be side Lewis’s car, and Johnson fired more than 10 shots

. Lewis

sustained seven gunshot wounds and died.

After the shooting, defendant drove back to Johnson’s

house , and Johnson dropped off the handgun. They returned to

1022 West 84th Street and had their girlfriends follow them in a

separate car. Defendant then drove to a shopping center where

he parked the car used in the shooting, wiped it clean of

fingerprints, and left it.

Detective Martin initially testified that defendant said he

“planned” the killing with Johnson

, but d uring his cross

examination by defense counsel

, the detective was asked whether

defendant used the word “planned

. ” Detective Martin did not

recall if defendant used the word “ planned ” and could not say

“exactly what the words were,” but he said they “ implied that it

was definitely discussed what was going to occur.” The detective

also stated his written summary of the interview did not include

any mention of the discussion between defendant and Johnson.

However, Detective Martin explained that “the actual wording

was somewhat to the effect of [defendant] knew what was going

on

. It was at one point in the confession, he stated that as they

drove up, ‘ he knew what time it was, ’ as to the victim, that he

knew he was going to be shot

. ”

C. Information, Plea, and Sentence

By information , defendant was charged with murder (§ 187,

subd. (a) )

, and it was further alleged a pri ncipal was armed with

a firearm in the commission of the murder (§ 12022, subd. (a))

.

In December 1988, defendant ple ade d guilty to second degree

murder

. In January 1989, defendant was sentenced to 15 years

### 5

to life

. On the People’s motion, t he firearm allegati on under

section 12022, subdivision (a), was stricken.

D. Defendant’s Resentencing Petition and Evidentiary

Hearing

In January 2021, defendant filed a resentencing petition

under section 1172.6. T he trial court determined defendant made

a prima facie showing that he was entitled to relief under section

1172.6 and issued an order to show cause

. Defendant filed a brief

and objections to the admission of the preliminary hearing

transcript at the evidentiary hearing

. T he People filed a

memorandum of admissibility regarding its evidence, which

included defendant’s preliminary hearing transcript and Lewis’s

autopsy report. The People argued the preliminary hearing

transcript was admissible under section 1172.6,

subdivision (d)(3)

, and that defendant’s statements in the

transcript relating to the murder fell under the hearsay exception

for party admissions under Evidence Code section 1220

. 2

The trial court heard argument from the parties at t he

evidentiary hearing and took the matter under submission.

2 Regarding an evidentiary hearing, section 1172.6,

subdivision (d)(3), provides in part, “[H]earsay evidence that was

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

[s] ection 872 shall be excluded from the hearing as hearsay, unless the

evidence is admissible pursuant to another exception to the hearsay

rule.” Evidence Code section 1220 states, “Evidence of a statement is

not made inadmissible by the hearsay rule when offered against the

declarant in an action to which he is a party in either his individual or

representative capacity, regardless of whether the s tatement was

made in his individual or representative capacity.”

### 6

E. Order Denying Defendant’s Resentencing Petition

The trial court issued its memorandum of decision in May

2023 , denying defendant’s petition

. The court found the

statements made by defendant to Detective Martin in the

preliminary hearing transcript were admissible under Evidence

Code section 1220.

The trial court recognized Detective Martin could not recall

whether defendant said the word “planned” during the interview.

However, the court also found Detective Martin’s testimony was

sufficiently consistent to establish what defendant said, and thus,

it was unnecessary to corroborat e defendant’s statements with

other evidence

. 3

T he trial court found defendant “aided in the shooting of

Lewis at every step,” thereby aid ing and abett ing the commission

of the life

- endangering act. Furthermore, the court found

defendant shared “ Johnson’s intent to kill [Lewis], or at the very

least, was aware of and consciously disregarded the dangers of

shooting a rival gang member.” The court concluded the People

proved beyond a reasonable doubt that defendant acted with

implied malice. Defendant timely appealed.

DISCUSSION

A. Governing Law and Standard of Review

The Legislature enacted Senate Bill No. 1437 (2017

– 2018

Reg. Sess.) to clarify the felony

- murder rule and eliminate the

natural and probable consequences doctrine “to ensure that

murder liability is not imposed on a person who is not the actual

3 Detective Martin tape recorded and memorialized the interview

in writing. Neither the recording nor written statement were produced

for the evidentiary hearing.

### 7

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

participant in the underlying felony who acted with reckless

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd

. (f);

accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952,

957, 959 .) The Legislature also added what is now section

1172.6

, providing a procedure for individuals convicted of felony

murder or murder under the natural and probable consequences

doctrine to seek retroactive relief by petitioning the sentencing

court to vacate the conviction and resentence on any remaining

counts. (§ 1172.6, subd. (a).)

If a petitioner makes a prima facie showing of entitlement

to relief, the resentencing court must issue an order to show

cause and hold a hearing to determine whether to vacate the

relevant conviction, recall the sentence, and resentence the

petitioner on any remaining counts

. ( § 1172.6, subds. (c), (d)(1).)

At the evidentiary hearing, “ 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 Section 188 or 189

made effective January 1, 2019.” (§ 1172.6, subd. (d)(3 ).) The

court may consider evidence admitted at any prior hearing or

trial that is admissible under current law, or any new or

additional evidence submitted by the parties. ( Ibid. ) The trial

court acts as an independent factfinder and determines whether

the prosecution has met its burden. ( People v. Ramirez (2021) 71

Cal.App.5th 970, 984.)

We review the trial court’s denial of a section 1172.6

petition following an evidentiary hearing for substantial

evidence. ( People v. Reyes (2023) 14 Cal.5th 981, 988 ( Reyes ).)

“[W]e review the record ‘in the light most favorable to the

### 8

judgment below to determine whether it discloses substantial

evidence

– that is, evidence which is reasonable, credible, and of

solid value

– s uch that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.’” ( People v.

Westerfield (2019) 6 Cal.5th 632, 713.)

B. Substantial Evidence Supports the Trial Court’s

Finding Defendant Aided and Abetted Implied

Malice Murder

Defendant argues the trial court’s finding that defendant

acted with implied malice is unsupported by substantial

evidence

. We disagree.

Murder is the unlawful killing of a human being with

malice aforethought. (§ 187, subd. (a).) Malice “may be express

or implied.” (§ 188, subd. (a).) Express malice is the

manifestation of intent to kill. (§ 188, subd. (a)(1).) Malice is

implied when no considerable provocation appears or when the

circumstances attending the killing show an abandoned or

malignant heart. (§ 188, subd. (a)(2); see People v. Soto (2018) 4

Cal.5th 968, 976 [“[t]he primary difference between express

malice and implied malice is that the former requires an intent to

kill but the latter does not”].)

“When a person directly perpetrates a killing, it is the

perpetrator who must possess

. . . malice. [Citations.] Similarly,

when a person directly aids and abets a murder, the aider and

abettor must possess malice aforethought.” ( People v. Gentile

(2020) 10 Cal.5th 830, 844

– 845

, superseded by statute on other

grounds as stated in People v. Glukhoy (2022) 77 Cal.App.5th

576, 584 .) “Guilt as an aider and abettor is [thus] ‘based on a

combination of the direct perpetrator ’ s acts and the aider and

### 9

abettor ’ s own acts and own mental state.’” ( People v. Powell

(2021) 63 Cal.App.5th 689, 710.)

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.)

Courts may consider various factors when determining whether a

person is an aider and abettor, including “‘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 ( Garcia ) .)

“‘In the context of implied malice, the actus reus required of

the perpetrator is the commission of a life

- endangering act. For

the direct aider and abettor, the actus reus includes whatever

acts constitute aiding the commission of the life

- endangering act.

Thus, to be liable for an implied malice murder, the direct aider

and abettor must, by words or conduct, aid the commission of the

life

- endangering act

, not the result of that act. The mens rea,

which must be personally harbored by the direct aider and

abettor, is knowledge that the perpetrator intended to commit the

act

, intent to aid the perpetrator in the commission of the act

, knowledge that the act is dangerous to human life, and acting in

conscious disregard for human life.’” ( Reyes

, supra

, 14 Cal.5th at

p. 991.)

In this case, all factors probative of aiding and abetting the

murder of Lewis are present. As the trial court found, t he

### 10

evidence shows defendant aided Johnson in the shooting of Lewis

“at every step

, ” before, during, and after the crime.

D efendant identified Lewis as a rival gang member at the

original hamburger stand and informed Johnson of Lewis being

there

. Defendant also informed Johnson he overheard Lewis and

his friends discussing go ing to the hamburger stand at 101 st

Street and Figueroa Street

. Defendant then drove to 1022 West

84th Street to drop off his and Johnson’s girlfriends and change

into the car they would later abandon

. Thereafter, defendant

drove to Johnson’s house where Johnson retrieved the gun used

in the shooting. ( See People v. Wright (1985) 39 Cal.3d 576, 593,

fn. 5 [obtaining a deadly weapon in advance of killing can support

inference of planning activity].) Defendant then drove back to

the origina l hamburger stand

. Because Lewis and his friends

were not there

, defendant assumed they went to the hamburger

stand at 101st Street and Figueroa Street

, so defendant drove

there

. When he and Johnson arrived, defendant circled the

location search ing for Lewis. Defendant drove up to Lewis’s car

after finding it in the alley

, bringing Johnson and his gun near

enough to shoot Lewis

. According to his confession to Detective

Martin

, d efendant “knew what time it was” ; in other words, he

knew Lewis was going to be shot before the murder occurred

.

After the shooting, defendant drove Johnson away from the

scene to Johnson’s house to drop off the gun. From there,

defendant drove himself and Johnson back to where they dropped

off their girlfriends and had them follow in a separate vehicle.

Defendant drove the vehicle used in the shooting to a shopping

center, parked it, wiped it clean of fingerprints, and left it.

( People v. Medina (2009) 46 Cal.4th 913, 924 [evidence

defendants fled after the shooting was treated as an additional

### 11

factor suggesting aiding and abetting liability]; see also People v.

Bonilla (2007) 41 Cal.4th 313, 329 [flight and failure to seek

assistance imply consciousness of guilt].)

In sum

, all probative factors indicate defendant knew

Johnson intended to commit the shooting, intended to aid

Johnson in the commission of the act, aided the shooting, knew

the act of shooting a person wa s dangerous to human life, and

acted in conscious disregard for human life

. ( Reyes

, supra

, 14

Cal.5th at p. 991; see People v. Swanson

- Birabent (2003) 114

Cal.App.4th 733, 743

– 744 [aider and abettor can be “‘one who is

present

. . . to take charge of an automobile and to keep the

engine running, or to drive the “getaway” car and to give direct

aid to others in making their escape from the scene of the

crime’”].)

Defendant argues his admission that “he knew what time it

was” does not show he knew Johnson would shoot Lewis because

he thought Johnson would only confront Lewis with the gun

. 4

However, the trial court was entitled to credit Detective Martin’s

testimony that defendant meant he knew Lewis was going to be

shot. ( People v. Penunuri (2018) 5 Cal.5th 126, 142 [ “ ‘“ Conflicts

and even testimony [that] is subject to justifiable suspicion do not

justify the reversal of a judgment, for it is the exclusive province

of the trial judge or jury to determine the credibility of a witness

and the truth or falsity of the facts upon which a determination

depends ”’ ” ].) Furthermore, the court could reasonably conclude

based on defendant’s involvement in the many steps leading up to

4 Defendant also asserts there was no evidence he knew the gun

was loaded, but a defendant does not show the evidence is insufficient

by arguing about what evidence is not in the record. ( People v.

Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

### 12

the murder that his statement meant he knew Johnson was going

to shoot Lewis.

Defendant also cites Reyes in arguing there is insufficient

evidence to sustain a finding he aided and abetted Lewis’s

shooting. In Reyes

, gang members

, including Reyes, rode their

bicycles “ to an area on the edge of territory belonging to a rival

gang. ” ( Reyes, supra

, 14 Cal.5 th at p. 98 5 .) One of them had a

gun, and it was used to shoot a passing driver. ( Ibid

. ) In

assessing Reyes ’s mental state, t he trial court considered

whether the act of travel ing in the group that had the gun to

rival gang territory was done with implied malice

. ( Id

. at p. 991.)

The Supreme Court found this was error. The trial court failed to

recognize “that implied malice murder requires, among other

elements, proof of the aider and abettor ’ s knowledge and intent

with regard to the direct perpetrator ’ s life endangering act

. ” In

Reyes

, the life endangering act was shooting the victim

, not

traveling with the group to rival territory

. ( See Id. at p p

. 991

–

992. )

T o the extent defendant suggests Reyes ’s facts are

analogous to this matter, comparison with other cases “is of

limited utility” in deciding issues of sufficiency of evidence

because “each case necessarily depends on its own facts.” ( People

v. Thomas (1992) 2 Cal.4th 489, 516 .) Indeed, d efendant

acknowledges “[ his ] conduct went beyond that of Reyes because

he drove Johnson to retrieve the firearm, told Johnson where the

victim would likely be, and then drove Johnson to the victim’s

location and pulled the vehicle alongside the victim’s vehicle .”

We conclude the re was substantial evidence to support the trial

court ’s finding that defendant aided and abetted Lewis’s

shooting

.

### 13

C. Defendant is N ot Entitled to Remand for the Trial

Court to Consider His Youth at the Time of the

Shooting

Defendant asserts the order denying his petition must be

vacated and the matter remanded for the trial court to consider

the impact of his youth on his conduct and mental state at the

time of the murder

. D efendant was 19 years old at the time of

the shooting

.

Defendant cites People v. Pittman (2023) 96 Cal.App.5th

400 ( Pittman ), in support of his argument

. In Pittman

, the

defendant

, who was 21 years old at the time of the offense,

argued for the first time on appeal from the denial of a section

1172.6 petition that his youth was “ relevant to whether he acted

with implied malice and therefore could be found guilty of second

degree murder.” ( Id. at p. 416.) Pittman found “policy interests

underlying the felony murder cases

– that youth is relevant to a

criminal defendant ’ s ability to perceive risk and consequences,

and therefore to the level of culpability

– apply equally in the

context of implied malice murder.” ( Id. at p. 417.) The Pittma n

court then looked to f

elony murder cases “ to determine whether

there [was] a reasonable possibility that the failure to consider

[the defendant’s] youth impacted the trial court ’ s decision

. ”

( Ibid. ) Pittman noted “[t]he cases discussing the role of youth in

relation to criminal culpability ‘ stress two areas ’ : youthful

offenders’ ‘ relative impulsivity ’ and ‘ their vulnerability to peer

pressure. ’” ( Id. at p. 418 .) The circumstances of the offense in

Pittman and the evidence suggested “ some of these ‘hallmark

features of youth’ may have been at play.” ( I bi d. ) Pittman

concluded the trial court’s failure to consider the defendant’s

youth was not harmless, given there was trial evidence indicating

### 14

“ [the defendant] and his peers acted impulsively and under the

influence of ‘transient rashness

, ’” used weapons that appeared to

be “spontaneous,” and the motivation for the crime was

“happenstance.” ( Ibid. )

In this case, the parties did not address defendant’s

youthfulness in the trial court

, and t he court did not specifically

state whether it considered defendant’s youth in making its

ruling

. 5 But e ven if the trial court was required to consider

defendant’s youth in addressing whether defendant acted with

implied malice

, any error was harmless.

D efendant does not present any evidence indicating his

youth impeded his ability to appreciate the risks associated with

his own conduct or that of Johnson. ( People v. Oliver (2023) 90

Cal.App.5th 466, 4 90 [ “Oliver has failed to present on appeal or

in the court below any specific support for the proposition that his

level of maturity somehow lessened his culpability for this

murder”].) Defendant merely speculates that Johnson was also

young, based solely on the fact he was “hanging out” with

defendant, and implies that youth “likely impacted” defendant’ s

decision to pursue Lewis. While youth “can distort risk

calculations,” the “fact of youth cannot overwhelm all other

5 Pittman was decided months after the trial court issued its

ruling in this case. Defendant does not contend he asked the court to

consider his youth when determining whether he acted with implied

malice. (See People v. Partida (2005) 37 Cal.4th 428, 435 [“A party

cannot argue the court erred in failing to conduct an analysis it was

not asked to conduct”].) However, the People do not argue defendant

forfeited the argument by not raising it. We exercise our discretion to

consid er defendant’s argument regarding whether the matter must be

remanded for the court to consider his youth at the time of the

shooting.

### 15

factors” bearing on the assessment of defendant ’ s mental state.

( People v. Mitchell (2022) 81 Cal.App.5th 575, 595 [“ every 18 year

old understands bullet wounds require attention ”] .)

Based on the trial court’s finding that defendant “aided in

the shooting of Lewis at every step

, ” and evidence that defendant

“shared Johnson’s intent to kill the victim, or at the very least,

was aware of and consciously disregarded the dangers of shooting

a rival gang member ,” we find no reasonable possibility the

failure to consider his youth impacted the court ’ s decision.

( Pittman

, supra

, 96 Cal.App.5th at p. 417; accord, Oliver

, supra

,

90 Cal.App.5th at p. 489, fn. 8.)

DISPOSITION

The order is affirmed

.

MORI , J

.

We concur:

COLLINS

, Acting P. J.

ZUKIN , J.