Filed 9/4/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, E084088 v. (Super.Ct.No. RIF1406144) JOSEPH CHICO SOLIS, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi P. Semitsu and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
2
Defendant and appellant Joseph Chico Solis appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1172.6. 1 He also seeks habeas corpus relief, claiming that, contrary to the trial court’s minutes, he was absent from the evidentiary hearing at which the court denied his petition. Defendant’s habeas contention is that his constitutional right to be present at the hearing was violated in the absence of a valid waiver of his presence. As we briefly explain post, however, defendant’s habeas claim is not cognizable under longstanding precedent that the trial court’s minutes may not be contradicted or altered except by amendment in proper proceedings below. His habeas claim, premised on disputing the minutes regarding his presence, therefore fails.
On appeal, defendant challenges the sufficiency of the evidence to support the trial court’s conclusion that he was barred from resentencing relief because he was the victim’s actual killer. As we explain, the evidence sufficed for the trial court to reach this conclusion by inference, including by reasonable inference from defendant’s plea admission to use of knife in the commission of voluntary manslaughter, when there was no evidence his codefendant had or used a weapon. As we also highlight, the evidence— and proper inferences therefrom—need not be conclusive to support the trial court’s factual findings under the beyond a reasonable doubt standard at a section 1172.6 evidentiary hearing. We therefore distinguish, but do not disagree with, People v. Garrison (2021) 73 Cal.App.5th 735 (Garrison), where the evidence supported a conclusive determination that the defendant was the actual killer. Substantial evidence to
1 All further statutory references are to the Penal Code, unless otherwise specified.
3
support a judgment includes both circumstantial evidence and reasonable, logical inferences from the evidence. We therefore affirm the trial court’s order denying defendant’s resentencing petition.
BACKGROUND
On June 17, 2015, the Riverside County District Attorney, in a three-count, first amended information, charged defendant and his codefendant, Alfred Solis, with the murder of Jovany Romero. (§ 187, subd. (a); count 1.) The information alleged both men committed the murder with special circumstances by intentionally killing Romero while they were both active participants in a criminal street gang (§ 190.2, subd. (a)(22)) and that both did so for the benefit of, at the direction of, and in association with the gang (§ 186.22, subd. (b)(1)(A)). The information alleged that defendant only, and not also the codefendant, personally used a deadly weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
The information also charged both men in counts 2 and 3 respectively with assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) and active participation in a criminal street gang (§ 186, subd. (a)), with a gang benefit penalty enhancement (§ 186.22, subd. (b)(1)(A)) attached to the assault count. The information further alleged defendant committed residential burglary with a firearm in 2003, which qualified as a prior serious, strike offense (§§ 667, subds. (a), (c), & (e)(1), 1170.12, subd. (c)(1)) and had resulted in defendant serving a recent prior prison term (§ 667.5, subd. (b)).
4
At a hearing on November 30, 2016, following plea negotiations, the trial court granted the prosecutor’s motion to add a fourth felony count to the information, alleging defendant committed voluntary manslaughter (§ 192, subd. (a); count 4), with a personal- use weapon enhancement (§ 12022, subd. (b)(1)) alleged on that count.
The transcript of the hearing indicates the amendment was in substitution for the murder count, as the prosecutor explained: “We’re asking to amend Count 1 from a 187 to … ,” with the court completing the sentence, “I’ll add a Count 4.” The court confirmed: “Count 4 you want it to be a 192(a)?” and the prosecutor answered affirmatively. Defendant entered his plea of “Guilty” to, as stated by the court, “the charge in Count 4, a violation of 192 sub (a) of the Penal Code, a felony.”
The court’s minutes reflect that defendant waived formal arraignment on the added count, was rearraigned, withdrew his not guilty plea to the count, and was advised of his rights, which he waived, before he pled guilty to count 4. The minutes record that defendant admitted the weapon-use enhancement (§ 12022, subd. (b)(1)) on the voluntary manslaughter count and further admitted that the priors allegations were true. The minutes also state that the court found a “factual basis for the plea[,] based on Oral Statement from Defendant on the record.”
At the plea hearing, in response to the prosecutor’s query, “Is it true that on October 13, 2013, in the county of Riverside, under the meaning of section 192, you killed another person, another human being,” defendant answered, “Yes.” The court’s minutes also record “incorporat[ion] herein” of defendant’s “Felony Plea form,” which
5
included as the stated “Factual Basis” for his guilty plea that “I agree that I did the things that are stated in the charges that I am admitting.”
Defendant’s plea agreement stipulated a 28-year prison sentence. The transcript of the plea hearing indicates a slight discrepancy in the manner in which defendant’s sentence was calculated. The written plea form indicates the parties thought they could get to the 28-year figure via: the upper term of 11 years for voluntary manslaughter, doubled to 22 years by defendant’s prior strike admission, plus 5 years for his prior serious felony, and 1 year for the prison prior. The trial court, however, noted a problem at the plea change hearing, observing, “I think that the law is that when you have a prison prior, a strike, and a 667(a), you can only use two out of three.”
Defense counsel responded, “That is correct,” and, at the court’s invitation (“I’ll let you guys check that out”), the parties agreed to the prosecutor’s suggested resolution. The prosecutor stated: “I think what we can do, Your Honor, is on Count 4 add a 12022.1 [see footnote No. 3] for an additional year for personal use of a knife. Because that is the way the homicide took place.” 2 After confirming with defense counsel that the admission was to personal use of a knife, the court turned to defendant with the following query. The court asked: “So the People are adding a special allegation under 12022.1
2 The prosecutor misspoke in identifying the code section as 12022.1, which deals with felonies committed on bail release; instead, it is clear that the “1” was intended as reference to subsection (1) of section 12022, subdivision (b). That subsection provides for an additional, consecutive term of 1 year for personal use of “a deadly or dangerous weapon in the commission of a felony” (§ 12022, subd. (b)(1)), which was the enhancement defendant admitted in his plea form and at the plea hearing.
6
[sic: § 12022, subd. (b)(1)], knife, during the commission of that voluntary manslaughter case. Do you admit you had a knife?” Defendant answered, “Yes, sir.”
At sentencing on February 3, 2017, the trial court imposed the agreed-upon 28-
year prison sentence. The court dismissed the balance of the information.
Five years later, on February 2, 2022, defendant filed a petition for resentencing under former section 1170.95 (now section 1172.6). The parties and the trial court agreed that defendant’s petition stated a prima facie case for relief, resulting in an order to show cause and an evidentiary hearing on whether to grant the petition.
At the evidentiary hearing, the trial court considered the transcript of defendant’s change of plea hearing. In a brief morning session, the parties referenced the factual basis for defendant’s “admission for killing another human being,” including his “admission that he killed another human being within the meaning of Penal Code section 192,” and his admission to personally using a knife “in the commission of that voluntary manslaughter.” Asking, “[W]ere there codefendants,” the court added that “I obviously took his plea, but I don’t remember everything about his case just yet.” When the prosecutor answered the court’s codefendant question affirmatively, the court summarized that the issue of whether defendant qualified for resentencing relief came down to the following: “Well, that all depends on who did the killing, who did it, so it will take a little more research.” The court adjourned the hearing until the afternoon.
At the afternoon session, the court reviewed the plea change transcript, including that the factual basis for defendant’s plea included admitting that he admitted “kill[ing] another person, another human being,” and that “he personally used a knife.” The court
7
concluded based on the circumstances that “that is the kind of admission which makes him the actual killer.” The court ruled on that basis, “I’m convinced that he is not eligible” for resentencing under section 1172.6. 3 DISCUSSION
Defendant challenges the sufficiency of the evidence to support the trial court’s finding that he was—as the victim’s actual killer—excluded from resentencing relief under section 1172.6. The evidence supports the trial court’s determination.
A. GOVERNING LAW Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the law of murder “ ‘ “to more equitably sentence offenders in accordance with their involvement in homicides.” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 986.) “Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) To this end, the new legislation limited the scope of the traditional felony murder rule and eliminated the natural and probable consequences doctrine as a valid basis to support a murder conviction. (People v. Lewis (2021) 11 Cal.5th 952, 957.) As a result, murder liability can no longer be “ ‘imposed on a person who [was] not the actual killer, did not act with
3 The trial court noted in reference to taking defendant’s plea when there was a codefendant in a homicide that “I did a lot of these kind of cases, and if a person was an assistant or a helper, I’d really spell that out myself.” Defendant on appeal does not mention this remark, and we do not consider it in resolving defendant’s challenge to the sufficiency of the evidence to support the court’s ruling denying him resentencing relief under section 1172.6.
8
the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (Id. at p. 959.)
Senate Bill No. 1437 also created “a special procedural mechanism for those convicted under the former law to seek retroactive relief.” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) The relief mechanism is codified in section 1172.6. (See former § 1170.95, added by Stats. 2018, ch. 1015, § 4, subsequently renumbered as § 1172.6 by Stats. 2022, ch. 58, § 10.) Consistent with the changes in substantive law: “Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or ‘was a major participant in the underlying felony and acted with reckless indifference to human life.’ ” (Strong, at p. 708.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) expanded the changes made by Senate Bill No. 1437 to reach defendants convicted of attempted murder and manslaughter. (Stats. 2021, ch. 551, § 2; see 1172.6, subd. (a).) Relevant here, the relief mechanism afforded in “section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice. (§ 1172.6, subd. (a).)” (People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.)
Under section 1172.6, a person may file a petition in the trial court “to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts.” (§ 1172.6, subd. (a).)
9
If the petitioner’s averments for relief meet an initial, prima facie threshold (§ 1172.6, subds. (a)-(c)), as the parties and the trial court agreed was the case here, “the court shall issue an order to show cause.” (Id., subd. (c).) In that event, the trial court must hold, as it did here, an evidentiary hearing. (§ 1172.6, subd. (d)(1).) The purpose of the hearing is for the court to determine whether to recall the petitioner’s sentence, vacate the applicable conviction, and resentence the petitioner. (§ 1172.6, subds. (a), (d)(1), (d)(3).)
At the hearing, the prosecution bears “the burden of proof . . . to prove, beyond a reasonable doubt, that the petitioner is guilty” of his or her murder, attempted murder, or manslaughter conviction offense “under California law as amended by” Senate Bill No. 1437. (§ 1172.6, subd. (d)(3).) In other words, the prosecutor may not rely on any now- barred “theory under which malice is imputed to [the] person.” (Id., subd. (a)). The court “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law.” (Id., subd. (d)(3).) Either party may also present “new or additional” evidence. (Ibid.)
“Senate Bill No. 775 clarified that the trial court’s role in a section 1172.6 proceeding is to act as an independent fact finder.” (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.) Specifically, the court redetermines “in the first instance” whether the petitioner is guilty of the conviction offense. (Ibid.) Similarly, on questions such as whether the petitioner was the actual killer, the trial court “acts as an independent fact finder” in determining whether the People have met their beyond a reasonable doubt burden. (Garrison, supra, 73 Cal.App.5th at pp. 745, 747-748.) Findings such as
10
whether the defendant was the actual killer “is a factual question.” (People v. Clements (2022) 75 Cal.App.5th 276, 294 (Clements).)
On appeal after an evidentiary hearing, “the questions we face on a review from a court’s denial of a section 1172.6 motion are primarily factual.” (People v. Werntz (2023) 90 Cal.App.5th 1093, 1109.) The deferential substantial evidence standard therefore applies. (Clements, supra, 75 Cal.App.5th at p. 298 [“We review the trial judge’s fact finding for substantial evidence”]; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591 [reviewing court “defers” to trial court’s findings at § 1172.6 evidentiary hearing]; see also generally, e.g., In re Michael G. (2012) 203 Cal.App.4th 580, 589 [sufficiency of the evidence challenge “is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts”].) Because an appellate court must “give due deference to the trier of fact and not retry the case ourselves,” an appellant challenging the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Under the governing standard, 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.” ’ ” (Clements, supra, 75 Cal.App.5th at p. 298.) We presume, in support of the ruling, the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) “ ‘[R]eversal for insufficient evidence “is unwarranted
11
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the [fact finder]’s verdict.’ ” (People v. Davis (2024) 107 Cal.App.5th 500, 509-510 (Davis).)
“ ‘ “Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” ’ ” (Davis, supra, 107 Cal.App.5th at p. 510.)
B. ANALYSIS 1. PRECEDENT
As defendant concedes, “resentencing relief under section 1172.6 is not available to an ‘actual killer.’ ” (People v. Garcia (2022) 82 Cal.App.5th 956, 973; see, e.g., Strong, supra, 13 Cal.5th at p. 710 [“Senate Bill [No.] 1437 relief is unavailable if the defendant was . . . the actual killer”].) We therefore turn to defendant’s contention that the evidence does not support a finding that he was the victim’s actual killer.
The Legislature has not defined the term “actual killer” in the context of section 1172.6 resentencing, but courts have looked to section 190.2, subdivision (b)’s “actual killer” basis for felony murder special circumstance liability. (See People v. Garcia (2020) 46 Cal.App.5th 123, 151 (Garcia).) In that context, our Supreme Court has used the phrase “personally killed” to describe an actual killer’s actus reus. (Ibid.; see, e.g., People v. Jennings (1988) 46 Cal.3d 963, 979; People v. Taylor (2010) 48 Cal.4th 574, 661; see also People v. Belmontes (1988) 45 Cal.3d 744, 794 [“The United States Supreme Court has made clear that felony murderers who personally killed may properly be subject to the death penalty in conformance with the Eighth Amendment
12
... even where no intent to kill is shown”], overruled on other grounds in People v. Cortez (2016) 63 Cal.4th 101.)
Thus, “the meaning of ‘actual killer’ . . . is literal. The actual killer is the person who personally kills the victim, whether by shooting, stabbing, or [other means].” (Garcia, supra, 46 Cal.App.5th at p. 152.) In Garcia, the actual killer’s means of personally killing the victim consisted of “taping his mouth closed, resulting in death by asphyxiation.” (Ibid.)
Whether defendant actually killed the victim was a factual question for the trial court to determine at the evidentiary hearing below. (Garrison, supra, 73 Cal.App.5th at pp. 745, 747-748.) Likewise, whether a personal use of a weapon finding establishes that a defendant was the actual killer is similarly a factual question. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1205 (Young); People v. Jones (2003) 30 Cal.4th 1084, 1120 (Jones).) The answer is for the trial court to determine, depending on the particular facts of the case. (Garrison, at pp. 745, 747-748.)
In Jones, the Supreme Court recognized that while a personal-use finding alone does not “in itself” prove a defendant is the actual killer (Jones, supra, 30 Cal.4th at p. 1120), the facts of a particular case may support, as Garrison phrased it, “only that conclusion.” (Garrison, supra, 73 Cal.App.5th at p. 743.) The high court explained that personal use does not inevitably establish the defendant is the actual killer because a firearm or other weapon may be used in different ways. Thus: “If two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though
13
only one is the actual killer.” (Jones, at p. 1120, italics added.) But when the record shows only one perpetrator displayed a gun and the evidence indicates it was the defendant, “not the second robber,” a personal-use enhancement supports finding the “defendant to be the actual killer.” (Ibid.)
The Supreme Court in Jones was unswayed by the defendant’s “conjectures that maybe both Domino’s Pizza robbers had guns, that the second robber displayed his during the robbery and murdered [the] restaurant manager . . . , but that defendant drew his gun only as he fled to [the getaway] car.” (Jones, supra, 30 Cal.4th at p. 1120.) The court observed, “It is, of course, far more likely that the man who displayed the gun at Domino’s Pizza and shot [the manager] is the same person who displayed a gun as the robbers fled the scene.” (Ibid.) Because “[a]ll evidence point[ed] to defendant . . . as the one with the gun,” the jury there, on death penalty charges, properly “found defendant to be the actual killer.” (Ibid.)
Young followed Jones. In Young, the high court acknowledged that a finding of personal use does not necessarily or automatically demonstrate that a defendant was the actual killer. (Young, supra, 34 Cal.4th at p. 1205.) Where, however, there was “no evidence that anyone else who may have been present at the ... residence displayed in a menacing manner, or otherwise used, a gun,” “all evidence points to defendant as the one who actually shot and killed [the victim].” (Ibid.)
In Garrison, on appeal following a section 1172.6 evidentiary hearing, the reviewing court concluded the evidence showed that “one robber only,” of two, “used a handgun.” (Garrison, supra, 73 Cal.App.5th at p. 744.) The relevant evidence included
14
the defendant’s recounting of “events as follows: either [the defendant] or his brother ‘took the gun from Verna’ and ‘pushed Verna’ causing her to fall to the ground. The man then left the room and ‘[i]mmediately after the man left the room, Verna heard shots fired.’ ” (Ibid.) The Garrison court noted in reviewing the evidence: “According to [the defendant]’s own version of the facts of the offense, the only ‘use’ of the handgun in the course of the murder was to kill Otto. There was no evidence that anyone used the gun just for intimidation.” (Ibid.) The reviewing court concluded on this evidence that “[the defendant]’s admission to use of a handgun in the course of the murder thus necessarily was an admission that he was the shooter.” (Ibid., italics added.)
2. CONCLUSIVE EVIDENCE NOT REQUIRED AT SECTION 1172.6 EVIDENTIARY HEARING
Notably, the Garrison court found the evidence there, “including [the defendant]’s plea to personally using a firearm, supported only the conclusion that [the defendant] was the actual killer,” and thus the defendant’s firearm use admission “necessarily” amounted also to admitting he was the sole shooter. (Garrison, supra, 73 Cal.App.5th at pp. 738, 743-744, italics and boldface added.) We pause to observe that a conclusive showing the defendant was the actual shooter is not necessary or required at a section 1172.6 evidentiary hearing. Rather, that is the requisite proof to deny a defendant’s resentencing petition at the prima facie stage. (See People v. Harden (2022) 81 Cal.App.5th 45, 59 [section 1172.6 petition properly denied at prima facie stage only when “record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that [the defendant] was the actual killer”].)
15
In contrast, once the matter proceeds to an evidentiary hearing, to establish that the defendant is ineligible for resentencing—for instance as the victim’s actual killer—the familiar beyond a reasonable doubt standard applies. (§ 1172.6, subd. (d)(3).) The trial court’s role as fact finder at the evidentiary hearing is to “review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard.” (Clements, supra, 75 Cal.App.5th at p. 298.) A fact finder tasked with holding the People to the reasonable doubt standard “must impartially compare and consider all the evidence that was received” and determine whether that “proof . . . leaves you with an abiding conviction that the charge is true.” (CALCRIM No. 220.) Stated conversely: Reasonable doubt “is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors [or the trial court as fact finder] in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (§ 1096.)
3. EVIDENTIARY RULES CONCERNING INFERENCES In considering and weighing the evidence as the fact finder, the trial court may draw reasonable inferences. “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) “An inference is ‘not evidence but rather the result of reasoning from evidence.’ ” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1286.) If the reasoning leads to “a conclusion [that] reasonably and logically follows from proof of the preliminary facts,” “the conclusion is a permissible inference within the
16
exclusive province of the trier of fact.” (People v. Massie (2006) 142 Cal.App.4th 365, 374 (Massie).)
A jury or other fact finder is not limited to drawing a valid, permissible inference only “when the supporting evidence is so strong the inference must be found as a matter of law. … Even ‘slight evidence’ in support of the fact to be inferred has been held to be sufficient. It is up to the [fact finder] to assess the credibility and judge the weight of the evidence proffered in support of and in opposition to the fact it is asked to infer.” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1150, fn. omitted; see Massie, supra, 142 Cal.App.4th at p. 374 [“The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally [but adequately] support the conclusion”].)
If the evidence “could, but not necessarily would, lead a reasonable trier of fact to infer” the ultimate fact in question, then the evidence and resulting inference are sufficient to withstand appeal. (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, supra, 117 Cal.App.4th at p. 1150.) On appeal, “ ‘[w]e review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom.’ ” (Massie, supra, 142 Cal.App.4th at p. 373.) The “judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial.” (Ibid.)
17
4. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S ACTUAL-KILLER FINDING
With the foregoing principles in mind, we conclude that the evidence before the trial court at the section 1172.6 evidentiary hearing supports the inference that defendant was Romero’s actual killer. The court considered at the hearing the record of defendant’s conviction, including his plea change. To resolve charges that he and his codefendant murdered Romero, with the further allegation that defendant alone—and not also his codefendant—personally used a knife “in the commission of” the offense, defendant pled guilty to a charging amendment that added voluntary manslaughter in lieu of murder. He also admitted the corresponding personal-use enhancement. Defendant also expressly “agree[d]” as the factual basis for his plea that “I did the things that are stated in the charges that I am admitting.” Taken together, the essential facts established by defendant’s admissions were that he committed voluntary manslaughter in slaying Romero and that he personally used a knife in doing so.
Conspicuous by its absence was any suggestion in the evidence that anyone besides defendant used a knife or other weapon “in the commission of” killing Romero. Nor was there any evidence that the manslaughter was by means other than the knife defendant admitted using to commit the offense. In this sense, the record is similar to Young, Jones, and Garrison. In those cases, while coperpetrators may have been present at a homicide, only the defendant wielded the means by which to kill the victim; these facts, coupled with the fact finder’s personal-use finding solely against the defendant, supported a reasonable inference that the defendant was the actual killer. (Young, supra,
18
34 Cal.4th at p. 1205; Jones, supra, 30 Cal.4th at p. 1120; see Garrison, supra, 73 Cal.App.5th at p. 747 [trial court’s actual killer “conclusion consistent with [the defendant’s] admission that he personally used a handgun in the commission of the murder”].) In these circumstances, the fact finder’s actual killer determination “reasonably and logically follows from proof of the preliminary facts,” and “the conclusion is a permissible inference within the exclusive province of the trier of fact.” (Massie, supra, 142 Cal.App.4th at p. 374.)
5. ADDITIONAL EVIDENTIARY CONSIDERATIONS Two other core evidentiary considerations bolster our determination that the evidence was sufficient to support finding defendant was the actual killer here. The first is a caveat to the general rule that not all conceivable or available evidence must be presented to determine guilt. (See CALCRIM No. 300 [“Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant”].) This general principle is constrained by the limitation that willful suppression of evidence by the government constitutes a denial of due process. (People v. Noisey (1968) 265 Cal.App.2d 543, 549-550, cited in Jud. Council, Advisory Comm. on Crim. Jury Instr., “Related Issues” note foll. CALCRIM No. 300.) Thus, while in criminal matters “[t]here is no compulsion on the prosecution to call any particular witness or to make any particular tests” or otherwise to fortify its case, this proviso applies “so long as there is fairly presented to the court the material evidence bearing upon the charge for which the defendant is on trial.” (People v. Tuthill (1947) 31 Cal.2d 92, 97-98, italics added, overruled on other grounds as noted by People v.
19
Balderas (1985) 41 Cal.3d 144, 182.) Given this due process requirement prohibiting the suppression of evidence, the trial court in section 1172.6 proceedings may rely on the prosecutor’s decisions at the evidentiary hearing to present evidence—for example, evidence that only one defendant personally used a weapon—to be a fair picture of the material evidence known to the prosecutor.
More specifically, there is a second safeguard expressly enacted by the Legislature to ensure the trial court can rely on the evidence presented at a section 1172.6 hearing as a full and fair picture of the material evidence. Subdivision (d)(3) of the statute grants both the petitioner and the prosecutor the opportunity to present “new or additional evidence” at the evidentiary hearing. (See Pen. Code, § 1172.6, subd. (d)(3) [each side “may . . . offer new or additional evidence to meet their respective burdens”]; see generally Evid. Code, § 550 [burden of producing evidence may shift back and forth between the parties].) The “clear legislative intent” of subdivision (d)(3)’s broad provision for admission of evidence is to “allow both parties to locate and introduce evidence they did not have a chance to present in the original guilt proceeding.” (People v. Myles (2021) 69 Cal.App.5th 688, 698.) Thus, while “requiring judges to decide the critical factual questions” at Penal Code section 1172.6 evidentiary hearings, including “at least in some cases ... on a cold record,” the Legislature has afforded the parties wide latitude to present evidence as they see fit. (Clements, supra, 75 Cal.App.5th at p. 297.) “[I]f either party believes it’s important to put on live testimony to allow the trial judge to make credibility determinations based on cues other than consistency and plausibility, the statute expressly allows them that opportunity.” (Ibid.)
20
The opportunity to present additional evidence may be meaningful to determining whether or not a petitioner seeking resentencing was the actual killer—or otherwise is barred from or eligible for relief. As one court has observed, “the primary purpose of introducing evidence at a section 1172.6 hearing is to determine a petitioner’s role in the crime of which he or she was convicted.” (People v. Robinson (2024) 106 Cal.App.5th 854, 870 [finding grand jury testimony “assists in accomplishing that purpose”].) The hearing “is not a trial, criminal prosecution, or subsequent retrial.” (Ibid.) Instead, “[i]t is a postconviction collateral proceeding, the scope of which is limited to the issues made relevant by the amended law of murder” (ibid.), which includes whether the defendant may be ineligible for resentencing relief as the victim’s actual killer. (See, e.g., Strong, supra, 13 Cal.5th at p. 710; People v. Garcia, supra, 82 Cal.App.5th at p. 973.) “Should a petitioner wish to challenge th[e] evidence [presented by the prosecutor], section 1172.6 allows him or her to do so by offering new or additional evidence at the evidentiary hearing.” (Robinson, at p. 870.)
6. SUFFICIENCY OF THE EVIDENCE REVISITED, AND AFFIRMED
These considerations bring us full circle to the sufficiency of the evidence here.
Whether or not the parties present new evidence in the form of live testimony, the trial court’s factfinding role and authority remain the same. (See, e.g., Clements, supra, 75 Cal.App.5th at p. 297 [trial judge at a section 1172.6 evidentiary hearing “reviews the record, hears the testimony [if any], and decides as a factual matter whether the petitioner committed murder under the current law”].) The trial court’s role and authority include
21
determining whether the defendant is ineligible for resentencing as the victim’s actual killer. (Garrison, supra, 73 Cal.App.5th at pp. 745, 747-748.) This is a factual question (Clements, at p. 294), as to which the trial court is entitled to draw all reasonable and logical inferences from the evidence. (Davis, supra, 107 Cal.App.5th at p. 510; Massie, supra, 142 Cal.App.4th at pp. 373-374.)
In evaluating the evidence, the trial court was not required to eliminate all possible doubt before concluding defendant was the victim’s actual killer. (See CALCRIM No. 220 [“the evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt”].) Hence, the prosecutor did not have to categorically negate every possible scenario in which defendant was not the actual killer, such as suggested by the defense in Jones that “maybe” both codefendants “had guns, [and] that the second [one] displayed his . . . and [killed the victim]” with it. (See Jones, supra, 30 Cal.4th at p. 1120.) There was no evidence of a second weapon here nor of any weapons use whatsoever by the codefendant. Nor was it necessary to exclude the theoretical possibility that, having no knife or gun, the codefendant here asphyxiated the victim, as the killer in Garcia did. (Garcia, supra, 46 Cal.App.5th at p. 152.) There was no evidence here remotely suggesting as much. Hypothetically, it is of course possible to speculate that a third, uncharged coperpetrator could have killed Romero in exactly this fashion or some other way, rather than defendant or his codefendant. But unlike at the prima facie stage, neither the trial court nor the reviewing court deal in hypotheticals; instead, only the evidence actually presented by the parties—and reasonable inferences from the evidence—is determinative.
22
Here, in sum, a reasonable fact finder could conclude that defendant’s voluntary manslaughter plea to resolve murder charges, coupled with the fact that he alone was charged with use of a weapon in the commission of killing Romero, which he admitted, meant that he was the victim’s actual killer. In particular, where no evidence was presented of use of a weapon by anyone but defendant, nor of use of defendant’s knife in any manner but to kill Romero, nor of any other means or method by which anyone took Romero’s life, the trial court as fact finder could draw as a reasonable and logical inference from this evidence that defendant was Romero’s actual killer. (Accord, Young, supra, 34 Cal.4th at p. 1205; Jones, supra, 30 Cal.4th at p. 1120; Garrison, supra, 73 Cal.App.5th at p. 747.)
7. NO DISAGREEMENT WITH GARRISON We express no opinion that this was the only conclusion the trier of fact could reach on the evidence presented. We avoid stating as much not because we disagree with the Garrison court’s evaluation of the facts there, but only because—once the matter proceeded beyond the prima facie stage to an evidentiary hearing—the reasonable doubt standard controls, and that is the fact finder’s province. “[I]t is the [fact finder], not the appellate court, which must be convinced of . . . guilt beyond a reasonable doubt.” (Massie, supra, 142 Cal.App.4th at p. 374; see also ibid. [“It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference”].) Of course, where the actual killer inference is inescapable and conclusive, as the Garrison court determined there, the evidence necessarily supports a trial court’s denial of section 1172.6 resentencing relief. We thus do not disagree with Garrison. We
23
simply highlight that the fact that an appellate court could draw different inferences or conclusions from the evidence in a particular case, or might desire conclusive certainty, is of no moment. (See Massie, at p. 374 [“An appellate court will not interfere with the decision of the trier of fact, even if the court believes that a contrary conclusion would have been reasonable”]; see also, e.g., People v. Bertsch (2026) 19 Cal.5th 183, 1190 [guilt conclusion to a “ ‘moral certainty’ ” or on “ ‘moral evidence’ ” standard not necessary]; accord, Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [“An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof”].)
8. PEOPLE V. BURGESS DOES NOT AID DEFENDANT Finally, defendant’s reliance on People v. Burgess (2023) 88 Cal.App.5th 592 is misplaced. There, the codefendant was the actual killer. The defendant’s felony participation in the events leading to the victim’s slaying was limited to theft by false pretenses, which is not a predicate for application of the felony murder rule (§ 189, subd. (a)), as clarified by changes in case law following the enactment of Senate Bill No. 1437. (See Burgess, at pp. 603-605.) The evidence therefore did not support the trial court’s conclusion that the defendant was guilty of murder under current law. (Id. at pp. 605-606.) As such, the defendant qualified to have his conviction set aside for resentencing. (§ 1172.6, subd. (d)(3).)
Defendant seeks the same result here, arguing there was no evidence he participated in a qualifying underlying felony that would expose him to a murder conviction under a theory of felony murder. (§ 189, subd. (a).) Nor, we observe, was
24
there evidence defendant personally harbored malice aforethought, the other valid alternative for a murder conviction under current law, after the enactment of Senate Bill No. 1437. (§ 188, subd. (a)(3); see People v. Gentile (2020) 10 Cal.5th 830, 842-843.)
But these considerations are beside the point for two reasons. First, by his plea defendant was convicted of voluntary manslaughter, not murder. The issue at the evidentiary hearing was thus “whether to vacate [his] … manslaughter conviction” (§ 1172.6, subd (d)(1)), not whether the evidence may have supported a felony murder conviction as defendant suggests by reference to Burgess. Second, as the Supreme Court explained in Strong, Senate Bill No. 1437 was adopted to afford a potential avenue to resentencing relief “for those who,” as relevant here, “were n[ot] the actual killers.” (Strong, supra, 13 Cal.5th at p. 707.) The trial court’s actual killer finding precluded defendant from relief, and Burgess says nothing to the contrary.
9. HABEAS CLAIM
Defendant also seeks habeas relief, which we consider with his appeal.
Attempting to create a conflict in the record, defendant attests in his habeas filing that he was not present at the section 1172.6 evidentiary hearing, contrary to the trial court’s minutes of the hearing. Defendant contends his absence, which he also says he did not waive, violated his right to be present at the hearing, a “critical stage” in the proceedings “ ‘akin to a plenary sentencing hearing.’ ” (People v. Quan (2023) 96 Cal.App.5th 524, 532-534; see People v. Basler (2022) 80 Cal.App.5th 46, 51 [defendant has “a constitutional right to be present at his section [1172.6] evidentiary hearing”]; U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, § 15.)
25
Defendant’s habeas claim fails. As the People’s informal response correctly points out, there is nothing in the reporter’s transcript to contradict the court’s minutes, nor anything else in the trial court record to support defendant’s new absence contention. In these circumstances, the court’s minutes “import absolute verity unless and until amended.” (Shellhaas v. Petrolane, Ltd. (1950) 98 Cal.App.2d 171, 174.) “No proof is admissible to show facts contrary to those which appear in the records and minutes of judicial proceedings.” (Ibid.; see also Govea v. Superior Court of Merced County (1938) 26 Cal.App.2d 27, 33 [“The petitioner’s remedy, if any, is first, in the trial court, upon motion for the correction of its minutes. The affidavit of the petitioner cannot be considered”].) We will therefore deny the petition. 4 DISPOSITION
The trial court’s order denying defendant’s petition for resentencing under section 1172.6 is affirmed.
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
McKINSTER Acting P. J.
LEE J.
4 Defendant’s habeas petition is resolved by separate order.