Filed 3/28/22 P. v. Telea CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SIKAI FANO TELEA,

Defendant and Appellant.

 A160734

 (San Mateo County

 Super. Ct. No. SC55569A)

Defendant Sikai Fano Telea appeals from a postjudgment order 

denying his petition for resentencing under Penal Code1 section 1170.95. The 

trial court found defendant ineligible for relief because it concluded he was a 

major participant who acted with reckless indifference to human life. The 

court also concluded defendant’s attempted murder convictions were 

ineligible for resentencing under section 1170.95.

On appeal, defendant contends he is entitled to resentencing because

the trial court failed to require the prosecution to carry its burden of proof, 

prevented defendant from presenting additional evidence, and improperly 

relied on its recollection of the evidence. He further asserts he was deprived 

of due process due to judicial bias. We conclude the trial court erred in 

refusing to allow defendant to present evidence, and remand for the court to 

1 All statutory references are to the Penal Code.
2

conduct a new evidentiary hearing under section 1170.95, subdivision (d). 

We also reverse the trial court’s order denying defendant’s petition as to 

certain attempted murder convictions, and remand to the trial court for 

further proceedings in accordance with section 1170.95. We deny defendant’s 

claim of judicial bias.

I. 

BACKGROUND

A. Factual Background

The following facts were set forth in this court’s prior nonpublished 

opinion, People v. Telea (Nov. 25, 2008, A110926) (Telea I): “[Defendant] and 

the codefendants robbed a Wells Fargo bank branch in Burlingame on 

October 11, 2002. In the course of the robbery, codefendant Seti Scanlan shot 

and killed one bank employee, and defendant shot, but did not kill, a second 

employee. On November 1, 2002, a man robbed a Carl’s Jr. restaurant in 

Mountain View at gunpoint. Soon after on the same night, two men robbed a 

Mountain View market. A police officer responding to the robbery report 

from Carl’s Jr. encountered and began to follow an SUV that was leaving the 

area. As the officer pulled the SUV over, a man emerged and shot at the

officer, shattering the car windshield and striking the officer in the face. 

Other responding officers began a high-speed chase of the SUV. During the 

chase, persons inside the SUV, including defendant, fired shots at various 

pursuing officers. After the vehicle came to a stop, two of the codefendants 

were caught, but the remainder of the occupants escaped. Defendant was not 

among those caught that night, but he later admitted his involvement in all 

three robberies.”
3

B. Procedural Background

Defendant was charged by amended information with murder (§ 187, 

subd. (a); count 1), attempted murder (§§ 187, subd. (a), 664; count 2), seven 

counts of robbery (§ 212.5, subd. (c); counts 3–7, 12–13), and four counts of 

attempted murder of a police officer (§§ 187, subd. (a), 664; counts 8–11). The 

information also asserted a robbery-murder special circumstance (§ 190.2, 

subd. (a)(17)(A)) as to count 1, and various personal gun use and great bodily 

injury allegations (§§ 12022.53, subds. (b), (c), (d), 12022, subd. (a)(1), 

1203.06, subd. (a)(1)) as to counts 2–7, 8–13). A jury convicted defendant of 

counts 1 through 12. The court sentenced defendant to life without parole. 

Defendant’s convictions were upheld by this court in Telea I, supra, A110926.

Defendant subsequently filed a petition for resentencing pursuant to 

section 1170.95. Following appointment of counsel and briefing, the trial 

court concluded defendant had established a prima facie case for relief and 

set the matter for an evidentiary hearing. 

In advance of the evidentiary hearing, defendant argued he was 

convicted under a theory of felony murder, and the jury was instructed with 

an outdated definition of “major participant.” Defendant also argued the 

court should set aside his attempted murder convictions related to the 

shootings during a police chase (counts 8–11) because those were likely based 

on the natural and probable consequences doctrine. Defendant asserted he 

was entitled to introduce new evidence on these issues. Defendant filed a 

separate motion seeking to introduce evidence of his codefendant’s statement 

to an investigator in which the codefendant stated he had forced defendant to 

participate in the robbery. 

At the beginning of the evidentiary hearing, the trial court announced 

its tentative ruling in which it framed the question as whether defendant was 
4

a major participant who acted with reckless indifference to human life, which 

would preclude resentencing under section 1170.95. The trial court also 

informed the parties it would not consider resentencing on the attempted 

murder convictions because attempted murder was not part of 

section 1170.95. During argument, defendant’s counsel requested that the 

court allow testimony from his investigator regarding whether defendant was 

forced to commit the robbery. The court declined to allow such evidence at 

the hearing. 

Following the hearing, the trial court denied defendant’s 

section 1170.95 petition. The court concluded defendant was a major 

participant who acted with reckless indifference to human life. Defendant 

timely appealed. 

II. 

DISCUSSION

A. Denial of Petition for Resentencing

1. Statutory Background

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Senate Bill 1437) amended “the felony murder rule and the natural and 

probable consequences doctrine, as it relates to murder, 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 in the 

underlying felony who acted with reckless indifference to human life.” (Stats. 

2018, ch. 1015, § 1, subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842.) 

Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be 

convicted of murder, a principal must act with malice aforethought; malice 

can no longer ‘be imputed to a person based solely on his or her participation 

in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G. (2019) 35 Cal.App.5th 141, 144.) 
5

Senate Bill 1437 also “amended section 189, which defines the degrees of 

murder, by limiting the scope of first degree murder liability under a felonymurder theory. (§ 189, subd. (e).)” (People v. Turner (2020) 45 Cal.App.5th 

428, 433.)

Senate Bill 1437 also added section 1170.95, which permits a person 

convicted of murder under a now-invalid felony-murder or natural and 

probable consequences theory to petition the superior court to vacate the 

murder conviction and to be resentenced on any remaining counts. (People v. 

Lewis (2021) 11 Cal.5th 952, 959; People v. Gentile, supra, 10 Cal.5th at 

p. 843.) A petitioner is eligible for relief if he or she (1) was charged with 

murder by means of a charging document that allowed the prosecution to 

proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine; (2) was convicted of first or second degree 

murder; and (3) could no longer be convicted of first or second degree murder 

due to the changes to sections 188 and 189 effectuated by Senate Bill 1437. 

(§ 1170.95, subd. (a).)

In October 2021, the Governor signed into law Senate Bill No. 775 (Reg. 

Sess. 2021–2022) (Senate Bill 775). Senate Bill 775 amended section 1170.95 

to make relief available to those convicted of attempted murder or 

manslaughter. (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (a).) The 

Legislature enacted Senate Bill 775 in part to clarify “that persons who were 

convicted of attempted murder or manslaughter under a theory of felony 

murder and the natural [and] probable consequences doctrine are permitted 

the same relief as those persons convicted of murder under the same 

theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) 
6

2. Analysis

Defendant identifies three alleged grounds for error. First, he contends 

the trial court erred by not requiring the prosecution to offer new evidence to 

support their burden of proof.2 Second, defendant contends the trial court 

erred by refusing to allow him to present evidence because the court 

concluded such evidence was (1) previously presented, (2) could have been 

previously presented, or (3) not relevant. Finally, defendant argues the court 

erred by solely relying on its recollections of trial rather than any review of 

the evidence. 

a. The Prosecution’s Offer of Evidence

While the prosecution was required to establish beyond a reasonable 

doubt at the postorder to show cause evidentiary hearing that defendant was 

a major participant in the robbery and acted with reckless indifference to 

human life (§ 1170.95, subd. (d)(3)), the prosecution was not required to 

introduce any evidence at the evidentiary hearing. Subdivision (d)(3) 

provides: “The admission of evidence in the hearing shall be governed by the 

Evidence Code, except that the court may consider evidence previously 

admitted at any prior hearing or trial that is admissible under current law, 

including witness testimony, stipulated evidence, and matters judicially 

noticed. . . . The prosecutor and the petitioner may also offer new or 

additional evidence to meet their respective burdens.” (§ 1170.95, 

subd. (d)(3), italics added.) 

Here, the prosecution opted to rely on the evidence presented at 

defendant’s trial. Whether that evidence is sufficient to meet the 

2 It is unclear whether defendant contends the trial court employed the 

wrong standard of proof. However, the record clearly indicates the trial court 

properly applied the “beyond a reasonable doubt” standard. 
7

prosecution’s burden of proof is an issue for the trial court to decide in light of 

all the evidence introduced at the evidentiary hearing. But the prosecution’s 

decision to not offer new or additional evidence does not automatically 

indicate any failure to meet its burden.

b. Defendant’s Right to Offer Evidence

Conversely, we agree with defendant that he had a statutory right to 

offer new or additional evidence at the section 1170.95, subdivision (d)(3) 

hearing and to have the trial court consider that evidence. (§ 1170.95, 

subd. (d)(3); People v. Anthony (2019) 32 Cal.App.5th 1102, 1152–1153.) A 

defendant is entitled to present live witness testimony, documentary 

evidence, and reliable hearsay. (People v. Williams (2020) 57 Cal.App.5th 

652, 661, review den. Feb. 10, 2021 [“the rules of evidence governing a 

section 1170.95[,] subdivision (d)(3) hearing should be no different than those 

applied at other analogous postconviction resentencing proceedings”].)

At the evidentiary hearing, the defendant sought to offer evidence of a 

codefendant’s declaration against penal interest, in which he stated he had 

forced defendant to participate in the robbery against defendant’s will, and 

evidence that the handgun used by defendant was supplied by the 

codefendant, was unfamiliar to defendant, and had a hair trigger. Because 

the codefendant had since died, defendant sought to offer the evidence 

through testimony of an investigator who spoke to the codefendant in the 

weeks preceding the trial. Defendant asserted the statements were relevant 

to the court’s consideration of the Banks/Clark3factors when assessing 

3 People v. Banks (2015) 61 Cal.4th 788 set forth a nonexclusive list of 

factors bearing on whether an aider and abettor of felony murder was a 

“major participant”: “What role did the defendant have in planning the 

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

defendant have in supplying or using lethal weapons? What awareness did 

the defendant have of particular dangers posed by the nature of the crime, 
8

whether defendant was a major participant who acted with reckless 

indifference to human life. While defendant had testified at trial that he was 

coerced to participate in the robbery, he argued that testimony was evaluated 

under a different standard of proof and definition than currently applies. 

The trial court declined to consider the evidence. It identified three 

“problems” with the proposed testimony. First, the trial court noted the 

evidence was duplicative of defendant’s trial testimony. Second, the trial 

court expressed concerns about the reliability of the evidence because it was 

not used at trial. The court speculated, “There was probably a tactical reason 

for that. We don’t know because [the public defender] is not present to tell 

us. And the proponent of this evidence is deceased now, so he can’t tell us 

. . . . And there’s an interesting issue about whether any of this is even 

against [the codefendant’s] penal interest.” Finally, the court concluded even 

if it accepted the evidence and found defendant had been forced to 

participate, it was “irrelevant”in determining whether defendant was a 

major participant. 

Here, the trial court abused its discretion in refusing to consider the 

proposed testimony. Pursuant to the statutory language, a petitioner is 

weapons used, or past experience or conduct of the other participants? Was 

the defendant present at the scene of the killing, in a position to facilitate or 

prevent the actual murder, and did his or her own actions or inaction play a 

particular role in the death? What did the defendant do after lethal force was 

used?” (Id. at p. 803, fn. omitted.) People v. Clark (2016) 63 Cal.4th 522 

provided a nonexclusive list of factors bearing on the “reckless indifference to 

human life” element. These factors are the “defendant’s knowledge of 

weapons used in the crime, and their actual use and number; [the] 

defendant’s proximity to the crime and opportunity to stop the killing or aid 

[the victim or victims]; the duration of the crime; [the] defendant’s knowledge 

of [the actual killer’s] propensity to kill; and [the] defendant’s efforts to 

minimize the possibility of violence during the crime.” (In re Miller (2017)

14 Cal.App.5th 960, 975, citing Clark, at pp. 618–621.)
9

entitled to offer “new or additional evidence.” (§ 1170.95, subd. (d)(3).) “It is 

generally said that ‘[o]ur task in interpreting these statutes is “to ascertain 

and effectuate legislative intent.” [Citation.]’ [Citation.] The search for 

intent, however, takes a specific form. ‘ “ ‘Because statutory language 

“generally provide[s] the most reliable indicator” of [legislative] intent 

[citations], we turn to the words themselves, giving them their “usual and 

ordinary meanings” and construing them in context [citation].’ [Citation.] If 

the language contains no ambiguity, we presume the Legislature meant what 

it said, and the plain meaning of the statute governs.” ’ ” (Witt Home Ranch, 

Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 555.) The plain 

language of subdivision (d)(3) states such evidence need not be new. Rather, 

it may be new or additional. As the court noted, the codefendant’s 

statements were not introduced at trial, and thus qualify as additional 

evidence.

While a defendant is generally entitled to offer evidence at the 

evidentiary hearing, courts may properly exclude evidence, such as hearsay, 

if it is not admissible under the Evidence Code. (See § 1170.95, subd. (d)(3).) 

With regard to alleged statements by the codefendant, “ ‘ “[t]he proponent of 

such evidence must show ‘that the declarant is unavailable, that the 

declaration was against the declarant’s penal interest, and that the 

declaration was sufficiently reliable to warrant admission despite its hearsay 

character.’ ” [Citation.] “The focus of the declaration against interest 

exception to the hearsay rule is the basic trustworthiness of the 

declaration.” ’ [Citations.] [¶] ‘ “There is no litmus test for the determination 

of whether a statement is trustworthy and falls within the declaration 

against interest exception. The trial court must look to the totality of the 

circumstances in which the statement was made, whether the declarant 
10

spoke from personal knowledge, the possible motivation of the declarant, 

what was actually said by the declarant and anything else relevant to the 

inquiry.” ’ [Citation.] ‘ “In determining whether a statement . . . is 

sufficiently trustworthy to be admissible, the court may take into account not 

just the words but the circumstances under which they were uttered, the 

possible motivation of the declarant, and the declarant’s relationship to the 

defendant.” ’ ” (People v. Smith (2017) 10 Cal.App.5th 297, 303–304, fn. 

omitted.)

Here, the trial court failed to adequately analyze whether the evidence 

was sufficiently trustworthy to be admissible. The court did not identify any 

specific circumstances, such as any conflicting statements made by the 

codefendant or any special relationship between defendant and the 

codefendant, that raised questions regarding credibility. Instead, the trial 

court questioned the credibility of the evidence solely on the fact that it had 

not been offered at trial. But there are various reasons why the public 

defender may not have utilized the evidence apart from issues of credibility. 

We are unaware of any authority that would support excluding such evidence 

merely based on speculation as to the public defender’s trial strategy. 

Likewise, while the trial court questioned whether the statement was 

actually against penal interest, it failed to identify the basis for this concern. 

Accordingly, the court abused its discretion by excluding such evidence 

without fully assessing its admissibility. (See Katiuzhinsky v. Perry (2007) 

152 Cal.App.4th 1288, 1294 [“While trial judges ordinarily enjoy broad 

discretion with respect to the admission and exclusion of evidence . . . , a 

court’s discretion is limited by the [applicable] legal principles . . . . ‘ “ . . . 

Action that transgresses the confines of the applicable principles of law is 
11

outside the scope of discretion and we call such action an ‘abuse’ of 

discretion.” ’ ”].)

Finally, the Attorney General argues any such error is harmless. We 

disagree. Because the trial court disallowed defendant from presenting 

evidence, it is not part of the record and we are left with a void from which to 

guess as to what that evidence may contain and how it may impact 

defendant’s petition. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 

[“Argument of counsel is not evidence.”].) “We are a court of review, not a 

tribunal of speculation.” (In re Armando L. (2016) 1 Cal.App.5th 606, 621.) 

Accordingly, we decline to find the error harmless and remand to the trial 

court to conduct a new evidentiary hearing pursuant to section 1170.95, 

subdivision (d). 

3. Attempted Murder

Defendant also requested the trial court vacate his attempted murder 

convictions under section 1170.95. At the time of the evidentiary hearing, the 

trial court correctly concluded section 1170.95 did not apply to attempted 

murder convictions. (See People v. Sanchez (2020) 48 Cal.App.5th 914, 917, 

abrogated by statute in § 1170.95, subd. (a).) However, passage of Senate 

Bill 775 altered that analysis.

On February 8, 2022, this court requested the parties submit letter 

briefs addressing whether Senate Bill 775 requires this court to reverse the 

order denying defendant’s petition for resentencing as to his attempted 

murder convictions. In response, the Attorney General acknowledged the 

trial court’s order should be reversed and remanded for further proceedings 

in the trial court as to counts 8 through 11. 

We agree. Accordingly, we reverse the trial court’s order denying 

defendant’s petition for resentencing under section 1170.95 as to counts 8 
12

through 11 (attempted murder of a police officer), and remand for further 

proceedings pursuant to section 1170.95. 

B. Due Process

Finally, defendant argues he was deprived of due process because the 

trial judge was “so invested and committed to a belief that [defendant] was 

guilty as previously charged, convicted, and sentenced, that he was unable to 

act as an impartial fact-finder at the resentencing hearing.” To support his 

claim, defendant points to comments by the court that a jury found defendant 

guilty, the conviction was upheld by the Court of Appeal, and that facts were 

developed at a lengthy trial that was “meticulously tried by both sides.” He 

asserts these comments, along with the court’s refusal to consider new 

evidence, demonstrates the judge was “invested in the correctness of the 

outcome of the original trial.” 

To establish a due process violation, actual bias need not be proved; 

however, “based on an objective assessment of the circumstances in the 

particular case, there must exist ‘ “the probability of actual bias on the part of 

the judge . . . [that] is too high to be constitutionally tolerable.” ’ ” (People v. 

Freeman (2010) 47 Cal.4th 993, 996.) Under this objective standard, “only 

the most ‘extreme facts’ would justify judicial disqualification based on the 

due process clause.” (Ibid.) The due process clause does not require judicial 

disqualification based on the mere appearance of bias. (Id. at pp. 1000, 

1006.) 

Here, the judge did not make any comments on the record that would 

lead a reasonable person to conclude he was biased or that he had already 

made up his mind, and that he could not come to a different conclusion after 

conducting a full evidentiary hearing. The comments at issue merely reflect 

the outcome of the original trial, and note the extensive evidence developed 
13

during that trial—evidence that is permissibly part of the evidentiary record 

that a court may consider. (See § 1170.95, subd. (d)(3).) Likewise, the trial 

court’s error in not allowing defendant to offer new evidence does not justify 

disqualification. (See People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079 

[“Mere judicial error does not establish bias and normally is not a proper 

ground for disqualification.”].) Generally, the power of appellate courts to 

order removal of a trial judge from a case must be used sparingly. (People v. 

Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.) Because we conclude there 

was no evidence of judicial bias, we deny defendant’s request to remove the 

trial judge without prejudice to any action defendant may take to raise any 

concerns about judicial bias in the trial court. 

III. 

DISPOSITION

The order denying defendant’s section 1170.95 petition is reversed and 

remanded for the trial court to conduct a new evidentiary hearing pursuant 

to section 1170.95, subdivision (d).
14

MARGULIES,J.

WE CONCUR:

HUMES,P. J.

EAST, J.

A160734

People v. Telea

 Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.