Filed 5/18/23 P. v. Velten CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JENNIFER ANN VELTEN,

 Defendant and Appellant.

2d Crim. No. B317248

(Super. Ct. No. 

F000464362002)

(San Luis Obispo County)

Jennifer Ann Velten appeals a postjudgment order denying 

her petition for resentencing under Penal Code section 1172.6.1

Velten contends, among other things, there was insufficient 

evidence she acted with reckless indifference to human life. We 

affirm the order.

1 Appellant sought resentencing under former section 

1170.95. Section 1170.95 was renumbered section 1172.6

effective June 30, 2022, with no changes in text. (Stats. 2022, ch. 

58, § 10). Unspecified statutory references are to the Penal Code. 
2

FACTUAL AND PROCEDURAL HISTORY

Murder Conviction

Victim Robert Uyeno worked in maintenance at the 

Farmhouse Motel in Paso Robles. He lived in an onsite bungalow

consisting of two small adjoining rooms, a bedroom and kitchen 

area. Velten knew Uyeno and once stayed with him for a couple 

of days when she was having problems with an ex-boyfriend. 

One evening in 2011, Velten and two other women were 

exchanging stories about Uyeno. Velten said he had once tied her 

up while she was sleeping and assaulted her. One of the women 

claimed Uyeno had raped her and molested children. They both 

claimed he had locked them in his room against their will. One of 

the women added that he had taken her laptop computer because 

she owed him some money. Velten’s boyfriend and another man 

who were in the room overheard them and grew angry. The 

group formed a plan to rob Uyeno. Velten would visit Uyeno at 

the Farmhouse Motel that evening on the pretext of exchanging 

sexual services for drugs. Once inside his bungalow, she would 

leave the door unlocked and then text the others to let them know 

when it was okay to enter. Velten’s boyfriend and another man 

would then “beat the crap” out of Uyeno and take the laptop 

computer and his drugs. 

Velten went to the Farmhouse Motel and knocked on the 

bungalow door. Uyeno let her in. He began using drugs while 

she smoked cigarettes and looked at a laptop. Velten sent the

text signaling the others to come. Velten’s boyfriend and a 

second man entered about 45 minutes later through the unlocked 

door. Velten saw them jump on Uyeno and tie him up. She also 

saw them attempt to choke him with a belt. The men beat and 

choked Uyeno before deciding to kill him. Velten waited in an 

adjoining room while her boyfriend stabbed Uyeno with an 
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icepick then slashed him with a kitchen knife. She could hear 

Uyeno screaming. As the group was leaving Velten’s boyfriend 

realized Uyeno was still alive so he asked Velten for something 

sharper. Velten directed him to a utility knife on a nearby table, 

which he grabbed and used to cut Uyeno’s neck. Velten’s 

boyfriend asked if she wanted to stab Uyeno but she declined. 

The group left with Uyeno’s drugs, the laptop, and some 

lottery tickets but Velten returned about 10 minutes later 

because she forgot her purse. She noticed Uyeno on the bed 

unconscious but still breathing. She left him unaided. The next 

morning she and her boyfriend disposed of their clothes at a truck 

stop and fled the area. At some point, Velten buried the ice pick 

in the ground. The manager of the Farmhouse Motel found

Uyeno dead after forcibly entering the bungalow.

The People charged Velten with murder (§ 187, subd. (a)) 

and other offenses after she admitted her role in Uyeno’s death. 

She agreed to plead no contest to second degree murder and

received a sentence of 15 years to life in state prison in 2012.

Petition for Resentencing

Velten petitioned for resentencing under section 1172.6 in 

2019. The trial court found she made a prima facie showing for 

relief and issued an order to show cause. It appointed counsel

and held an evidentiary hearing. The People opposed the 

petition, arguing Velten could presently be convicted of murder 

under amended section 189. Specifically, they argued she

committed felony murder as a major participant in Uyeno’s 

robbery and acted with reckless indifference to human life. 

(§§ 189, subd. (e)(3), 190.2, subd. (a)(17).)

A detective assigned to the original murder investigation 

testified at the evidentiary hearing. The People introduced 

interrogation transcripts in which Velten and her boyfriend gave 
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largely consistent accounts of Uyeno’s beating and murder. They 

also introduced the transcript of Velten’s preliminary hearing in 

2012 and her pre-sentence probation report. The court denied 

the petition, finding she helped plan Uyeno’s robbery and showed 

reckless indifference to life during and after the attack. 

DISCUSSION

Sufficiency of the Evidence

Velten contends substantial evidence does not support the 

trial court’s finding that she acted with a reckless indifference to 

human life. We do not agree.

The Legislature passed Assembly Bill 1437 in 2018 “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); People v. Gentile (2020) 10 Cal.5th 830, 842.) It enacted 

section 1170.95 (now section 1172.6) to provide a procedure by 

which persons convicted under the felony murder or natural and 

probable consequences doctrines could petition for resentencing 

under the new laws. (Gentile, at p. 853.)

At the evidentiary hearing on a petition for resentencing 

the prosecution bears the burden of proving beyond a reasonable 

doubt the petitioner is not entitled to resentencing. (Id., subd. 

(d)(3).) The trial court sits as a trier of fact at the hearing. It 

may consider “evidence previously admitted at any prior hearing 

or trial that is admissible under current law” and “[t]he 

prosecutor and the petitioner may . . . offer new or additional 

evidence to meet their respective burdens.” (Ibid.) We review its

findings for substantial evidence. (People v. Owens (2022) 78 

Cal.App.5th 1015, 1022.) Accordingly, “we review the evidence in 

the light most favorable to the prosecution and presume in 
5

support of the judgment the existence of every fact the [trier of 

fact] could reasonably have deduced from the evidence.” (People 

v. Zamudio (2008) 43 Cal.4th 327, 357; Owens, at p. 1022.)

“Reckless indifference to human life has a subjective and 

an objective element. [Citations.] As to the subjective element, 

‘[t]he defendant must be aware of and willingly involved in the 

violent manner in which the particular offense is committed,’ and 

he or she must consciously disregard ‘the significant risk of death 

his or her actions create.’ [Citations.] As to the objective 

element, ‘“[t]he risk [of death] must be of such a nature and 

degree that, considering the nature and purpose of the actor’s 

conduct and the circumstances known to him [or her], its 

disregard involves a gross deviation from the standard of conduct 

that a law-abiding person would observe in the actor’s situation.”’

[Citations.]” (In re Scoggins (2020) 9 Cal.5th 667, 677.) 

“Relevant factors include: Did the defendant use or know 

that a gun would be used during the felony? How many weapons 

were ultimately used? Was the defendant physically present at 

the crime? Did he or she have the opportunity to restrain the 

crime or aid the victim? What was the duration of the interaction 

between the perpetrators of the felony and the victims? What 

was the defendant’s knowledge of his or her confederate’s 

propensity for violence or likelihood of using lethal force? What 

efforts did the defendant make to minimize the risks of violence 

during the felony? [Citations.] ‘“[N]o one of these considerations 

is necessary, nor is any one of them necessarily sufficient.”’ 

[Citations.]” In re Scoggins, supra, 9 Cal.5th at p. 677 

Velten helped orchestrate a robbery that turned into a

killing. She gained access to Uyeno’s bungalow under false 

pretenses so others could physically assault him and steal 

predetermined items. She lingered for 30 minutes or more a few 
6

feet outside the bedroom and listened while the attackers beat, 

choked, and stabbed their victim. She pointed out a utility knife 

when her boyfriend requested a deadlier killing instrument. She 

was offered but declined an invitation to stab the victim. Lastly, 

she noticed Uyeno still breathing when she returned 10 minutes 

later for her purse and chose to leave him unaided. Substantial 

evidence supports the trial court’s findings that Velten was a 

major participant in the robbery and acted with reckless 

indifference to the victim’s life. (See Owens, supra, 78 

Cal.App.5th at p. 1023, quoting People v. Clark (2016) 63 Cal.4th 

522, 617 [“Reckless indifference ‘encompasses a willingness to kill 

(or to assist another in killing) to achieve a distinct aim, even if 

the [appellant] does not specifically desire that death as the 

outcome of his actions’”].)

Miranda Error

Velten next contends Miranda2 error occurred because the 

trial court based its decision on incriminating statements she 

made during her interrogation in 2011. We consider the issue 

waived because she did not raise it below. (Evid. Code, § 353; see 

People v. Polk (2010) 190 Cal.App.4th 1183, 1194 [“unless a 

defendant asserts in the trial court a specific ground for 

suppression of his or her statements to police under Miranda, 

that ground is forfeited on appeal, even if the defendant asserted 

other arguments under the same decision”].) We would reject the 

argument even if she had raised it. Wrongful admission of 

evidence at a section 1172.6 hearing does not implicate one’s 

rights against self-incrimination. (See People v. Myles (2021) 69 

Cal.App.5th 688, 706 [“Because a sentence modification under 

2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
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section [1172.6] is an act of lenity and not a criminal trial, the 

wrongful admission of evidence does not implicate defendant's 

constitutional rights under the Fifth Amendment”].) In addition, 

the interrogation transcript shows detectives admonished Velten

pursuant to Miranda and stopped asking questions when she 

requested an attorney. No violation occurred.3 

Remaining Contentions

Velten contends the trial court erred when it used an 

“imputed malice form of murder,” i.e., felony murder, as the basis 

for upholding her conviction for second degree murder. It did not 

err. Prosecutors may oppose resentencing by proving guilt under 

any theory encompassed by current sections 188 and 189. 

(§ 1172.6, subd. (d)(3).) This is not limited to theories raised 

originally. (See 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’”].) The People 

chose to oppose the petition on the theory Velten was a major 

participant in a felony in which a death occurred. (§ 189, subd. 

(e)(3).) The trial court properly based its ruling on the mental 

state required to prove guilt of this crime.

Lastly, the record contradicts Velten’s assertion that the 

trial court applied a “quasi-appellate” substantial evidence 

standard of proof. The court told the People they “should be 

3 These conclusions render moot Velten’s argument that

Senate Bill 775’s amendments to the resentencing statutes apply 

retroactively to her appeal and require reversing the trial court’s 

ruling on her petition.
8

prepared to prove [felony murder] beyond a reasonable doubt as 

to the elements of the crime.” When it denied the petition, the 

court stated the “best version” of the facts still showed Velten 

acted as a major participant who acted with reckless indifference 

to human life. 

DISPOSITION

The order denying the section 1172.6 petition is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P.J.

YEGAN, J.
9

Jesse J. Marino, Judge

Superior Court County of San Luis Obispo

______________________________

Wayne C. Tobin, 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, Steven D. Matthews, and J. Michael Lehmann, 

Deputy Attorneys General, for Plaintiff and Respondent.