Opinion
A163798
10-31-2022
THE PEOPLE, Plaintiff and Respondent, v. TREVOR JAMES CONLEY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. No. SCUK-CRCR-05-68381-02)
Banke, J.
In 2007, defendant Trevor James Conley pled guilty to second degree murder, and the trial court sentenced him to 15 years to life in prison.
Twelve years later, he filed a petition pursuant to Penal Code section 1172.6 (formerly section 1170.95), alleging he had been convicted of murder pursuant to the natural and probable consequences doctrine. After determining defendant had made a prima facie showing he might be entitled to relief and appointing counsel, the trial court issued an order to show cause and held an evidentiary hearing, at which defendant testified. After considering the court record and defendant's testimony, the court denied the petition, finding defendant's hearing testimony not credible and that the prosecution established beyond a reasonable doubt each of the elements of direct aider and abettor second degree murder.
Penal Code section 1170.95 has been amended and renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022; see Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) All further statutory references are to the Penal Code unless otherwise indicated.
On appeal defendant advances three basic contentions-(1) that to prove direct aider and abettor culpability for second degree murder the prosecution must prove the aider and abettor shared the perpetrator's intent to kill; (2) that the trial court erred in considering the transcript of the preliminary hearing; and (3) that the facts to which defendant stipulated as the basis for his plea are insufficient to prove beyond a reasonable doubt direct aider and abettor culpability for second degree murder. We affirm.
Background
The Conviction
Before trial on charges of premediated and deliberate murder, second degree robbery and kidnapping, and robbery and kidnapping enhancements, defendant reached a negotiated disposition and pled guilty to second degree murder on the basis of an extensive set of stipulated facts stating as follows:
In November 2005, a friend of the victim, Kevin Henry, reported him missing. A week and half later, the Mendocino County Sherriff's Department found the victim's body, "covered with a mat and firewood." The medical examiner identified the cause of death as "blunt force trauma wounds to the head, followed by two stab wounds to the chest and abdomen." The examiner concluded the victim was "probably unconscious when stabbed."
The day after deputies located the victim's body, they found the car he had been driving "at the bottom of an embankment" on Orr Springs Road "some 15-20 miles" away from where the body was discovered. A tip led the deputies to co-defendant Nathan McWilliams. McWilliams at first denied ever meeting the victim but subsequently admitted to using the victim's ATM card "to make a cash withdrawal." A search of McWilliams's apartment pursuant to a warrant yielded "a pair of jeans, tennis shoes, and a glove soaked with what appeared to be blood."
Deputies also searched defendant's home pursuant to a warrant. The search yielded a "folding knife," "a pair of tennis shoes that appeared like they were being cleaned, drug paraphernalia and [a] newspaper article describing recovery of the missing person's vehicle."
In a post-Miranda interview, defendant stated he and McWilliams had been driving around Lake Mendocino when they saw the victim sitting in a parked car. The victim asked if they "wanted to party with him." The two got into the victim's car, with McWilliams sitting in the passenger seat and defendant sitting in the back seat. Defendant and the victim "smoked marijuana and took cocaine, after which [defendant] and McWilliams drove back to [defendant's] house in Ukiah."
Miranda v. Arizona (1966) 384 U.S. 436
A few hours later, the victim called defendant and said "he had McWilliams's wallet and suggest[ed] they meet at a pub in Ukiah so he could return it." Defendant agreed, and he and McWilliams walked to the pub around 10:00 or 11:00 that night, where they met the victim in a parking lot.
"Thereafter, defendant . . . did aid and abet defendant Nathan Billy McWilliams in the murder of Kevin Henry . . . by encouraging and facilitating his death. The codefendants drove the victim to Tomki Road in a rural part of the County of Mendocino. Once the victim was outside of the vehicle, and with knowledge that defendant Nathan Billy McWilliams intended to kill the victim, defendant Trevor James Conley grabbed Kevin Henry and knocked him to the ground, thereby allowing codefendant . . . McWilliams to obtain a knife and stab the victim to death. Said actions by Trevor James Conley thereby aided and abetted codefendant . . . McWilliams in the murder of the victim, Kevin Henry."
Officers also interviewed defendant's girlfriend, who admitted being at defendant's house when McWilliams "showed up in a car that resembled" the one the victim had been driving. Defendant and his girlfriend got in another car and followed McWilliams to a location on Orr Springs Road. Defendant and McWilliams then got out of their vehicles. The girlfriend stated she looked away for a moment and then the victim's car "was gone."
The trial court accepted defendant's plea, and the People moved to dismiss the remaining counts and allegations. The trial court granted the motion and sentenced defendant to 15 years to life.
Petition for Resentencing
Twelve years later, after the passage of Senate Bill No. 1437 (20172018 Reg. Sess.), effective January 1, 2019 (Senate Bill 1437), defendant filed a section 1172.6 petition for resentencing. After determining defendant had made a prima facie showing that he might be entitled to relief, the trial court appointed counsel and issued an order to show cause.
At the evidentiary hearing, the prosecutor asked the court to take judicial notice of the preliminary hearing transcript, the information, the transcript of the felony plea, the settled statement of facts supporting defendant's plea, the sentencing transcript, the abstract of judgment, and any appended court minutes. Pointing out that these items were already in the record, the court stated there was no need to judicially notice the documents. But to "be clear," said the court, it was "going to consider the information that was filed . . . not only the substance of the charge but weighing the charges and-the way the charges and special allegations were pled." The court went on to state, "I think the same rules apply to the preliminary hearing transcript as the information in the abstract. [¶] The preliminary hearing transcript is the transcript of the sworn testimony and other evidence received in this matter by the court sitting as a magistrate."
Defense counsel made no objection to the court's consideration of these documents.
The court then heard from defendant who testified to a different version of events from that recited in the stipulated facts. While acknowledging he had hit the victim, defendant now claimed this did not occur at the time McWilliams killed him, but occurred earlier that night. According to defendant, the victim called him to see if he and McWilliams had his wallet because he had McWilliams's wallet. However, when he and McWilliams went to retrieve McWilliams's wallet, the victim made several sexual advances toward them. At one point, the victim grabbed defendant's shoulder and hip, and defendant "lost [his] temper" and turned around and hit him with his right hand. The victim apologized, stating "it was wrong of him." Nevertheless, defendant decided to stay and help the victim find his wallet. They then got into the victim's car, drove back to the lake, and found the victim's wallet. Instead of returning home, however, they drove, at McWilliams's direction, to a different location where they could smoke "marijuana and relax."
When they reached "a private place where we wouldn't be bothered," McWilliams and the victim got out of the car, and McWilliams "immediately jumped on [the victim]." Defendant could tell McWilliams was "punching him" and "hitting him pretty hard," but he had no idea McWilliams had a knife or that the victim was stabbed. Instead, defendant stood "there in shock." He assumed the victim was unconscious, when he helped McWilliams move him. He and McWilliams drove the victim's car back to defendant's house, where McWilliams threatened defendant and he saw the knife for the first time.
Defendant further testified he did not know McWilliams was going to kill the victim, he did not help McWilliams plan to kill or kill the victim, he did not bring a weapon to kill the victim, he did not encourage McWilliams to kill the victim, and he did not at any time intend to rob or kidnap the victim.
Defendant acknowledged he previously stipulated that he knocked the victim to the ground providing McWilliams the opportunity to stab him, that he did so with the understanding McWilliams intended to kill the victim, and that he assisted in the disposal of the victim's vehicle. He claimed he did so because he "didn't quite understand the law," he was "young and naive," he had "never been arrested before," and because his lawyer told him that was the" 'best he could do'" and "encouraged" him to sign the stipulation.
The court then heard argument by counsel.
The prosecutor asked the court to look at the preliminary hearing transcript, specifically the interview of McWilliams "beginning on page 108." McWilliams admitted to using an ATM card that had been in the victim's possession and said that defendant had given him the card. McWilliams gave "a very long and detailed interview as to what transpired . . . [a]nd the court can review that and take it for what you will." As to defendant's testimony at the evidentiary hearing, the prosecutor asserted it "defies logic," maintaining it "makes no sense" that the victim was at the pub "for the specific reason of giving the wallet back," but according to defendant, showed up without the wallet, necessitating a two-mile walk back to the victim's motel or that after being "offended or has just been sexually advanced upon" by the victim, defendant would then "end up staying out all night" with him.
The prosecutor further argued defendant's "own actions played a significant role in the death" of the victim, and there was "overwhelming evidence of . . . express malice but certainly implied malice that . . . defendant . . . was a major participant in this murder and he acted with a reckless indifference to human life."
Defense counsel argued there was an insufficient showing under Banks that defendant was a major participant in the crime. Counsel maintained there was no evidence of "knowledge, plan, any encouragement," or that defendant, who was 23 years old at the time, was in a "position to do anything at the time of the killing to stop it." Rather, defendant testified at the hearing that he was in "shock" and "never expected something like that" to happen. Counsel acknowledged defendant did "commit acts afterwards" such as helping to conceal the car and moving the body, but maintained he did so because he was "fearful and afraid of retaliation."
People v. Banks (2015) 61 Cal.4th 788.
The court denied the petition, ruling "respondent has established with proof beyond a reasonable doubt each of the elements of second-degree murder including that this defendant harbored the requisite mental state as an aider and abettor in killing Kevin Henry." The court cited to the stipulated facts supporting the guilty plea and found "[t]here [was] no credible evidence that he signed that statement under duress or anything but voluntarily with the obvious motivation to avoid a life sentence."
The court found defendant's testimony "lack[ed] credulity in several respects." First, his testimony came "with the background of [defendant] previously having lied to investigators." Second, over a decade had passed since his conviction, and "in no forum has [defendant] ever asserted his attorney forced or coerced him into signing the written stipulation or that he did so under any form of duress." Third, the evidence found at defendant's residence and "the coordinated effort at disposing of the victim's vehicle all support a finding that [the defendant] aided and abetted McWilliams in [the victim's] death," and his current testimony that he "had no idea McWilliams intended to kill [the victim] . . . is not believable."
Nor, continued the court, was "it believable . . . that . . . defendant and McWilliams started to feel sorry for the victim after he allegedly sexually propositioned" them and therefore decided to help him find his wallet. "[F]ar more plausible" was that defendant "was so angry at being propositioned, that he struck the victim, knocking him to the ground and that then he and McWilliams together drove [the victim] to the remote area to kill him," and then together "covered his body in a carpet and left him" taking his car "to hide their crimes."
In conclusion, the court recounted that in "2007 [defendant] admitted both in writing and orally before a judicial officer aiding [codefendant] McWilliams in the murder of Kevin Henry. There is no evidence undermining the reliability of those admissions. The evidence shows that [defendant] assisted in physically disabling the victim and allowing McWilliams to stab him to death. [Defendant] was not only present at the murder but facilitated it. After lethal force was used, [defendant] assisted in hiding the body, stealing the victim's car, and attempting to dispose of it at another location some miles away. (See People v. Banks[, supra,] 61 Cal.4th 788 describing factors to consider in determining a major participant.) [¶] Aiding and abetting in the unlawful killing of a human being remains a viable legal theory of liability for second degree murder. [Defendant's] petition for relief under Penal Code section 1170.95 is denied."
Discussion
The Law Pertaining to Aiders and Abettors
Senate Bill 1437 "changed the law relating to accomplice liability for murder to better align punishment with individual culpability. (Stats. 2018, ch. 1015, § 1(b), (f).)" (People v. Guillory (2022) 82 Cal.App.5th 326, 330.)
To that end, "Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): 'A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section190.2.'" (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile), superseded by statute on another ground as stated in People v. Hola (2022) 77 Cal.App.5th 362, 370; People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
"Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3). . .: 'Except [for felonymurder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principle in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.'" (Gentile, supra, 10 Cal.5th at pp. 842-843.)
Finally, Senate Bill 1437 "created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. (See Pen. Code, § 1172.6 . . .; People v. Lewis (2021) 11 Cal.5th 952, 959-960 . . .; People v. Gentile, supra, 10 Cal.5th at p. 843.)" (Strong, supra, 13 Cal.5th at p. 708.) A petitioning defendant must file a declaration stating that he or she meets all the requirements of eligibility and requesting appointed counsel. (People v. Turner (2020) 45 Cal.App.5th 428, 434.) "If the defendant makes a prima facie showing of eligibility, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence." (Ibid.; Strong, at pp. 708-709.)
"At that point, the statute shifts the burden to the People. The Legislature specified 'the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' (§ 1170.95, subd. (d)(3).) To sustain their burden, the People may rely on the record of conviction 'or offer new or additional evidence.' (Ibid.) The judge must determine whether the People sustained their burden of proof, and if they have not done so it directs, 'the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.' (Ibid.)" (People v. Clements (2022) 75 Cal.App.5th 276, 294 (Clements); accord, People v. Owens (2022) 78 Cal.App.5th 1015, 1022 (Owens).)
"Thus, taken together, the People [have] the burden to prove the record of conviction and any new or additional evidence the parties submit establish beyond a reasonable doubt that [the defendant] committed murder under the amended law. (§ 1170.95, subd. (d)(3).)" (Clements, supra, 75 Cal.App.5th at p. 294; Owens, supra, 78 Cal.App.5th at p. 1022.) "The question is whether the petitioner committed murder under a still-valid theory, and that is a factual question. The Legislature made this clear by explicitly holding the People to the beyond a reasonable doubt evidentiary standard and by permitting the parties to submit new or additional evidence at the hearing on eligibility. (§ 1170.95, subd. (d)(3).)" (Clements, at p. 294.)
On appeal from the denial of a petition after an evidentiary hearing, we review the trial court's findings for substantial evidence." 'We" 'examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.'" [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt.'" (Clements, supra, 75 Cal.App.5th at p. 298; People v. Mitchell (2022) 81 Cal.App.5th 575, 591 (Mitchell).) "We must accept factual inferences in favor of the trial court's ruling." (Mitchell, at p. 591.) And we are not confined by "the trial court's reasons for denying [a] petition, as we may affirm a ruling that is correct in law on any ground." (People v. Cortes (2022) 75 Cal.App.5th 198, 204 (Cortes).)
Second Degree Murder
As we stated at the outset, defendant advances three basic arguments on appeal. One, he maintains "[d]irect [a]iding and abetting" culpability for second degree murder requires "that the aider-and abettor share in the perpetrator's intent to kill." Two, he maintains the trial court erred in considering the preliminary hearing transcript. Three, he maintains the stipulated facts underlying his plea were "carefully limited to a second- degree, natural-and-probable consequence homicide" and because these facts do not include that he "intended" to kill the victim, they are insufficient to establish, beyond a reasonable doubt, direct aider and abettor culpability for second degree murder.
We turn first to defendant's contention that direct aider and abettor culpability for second degree murder requires that the aider and abettor act with intent to kill. As we explain, defendant is mistaken on this pivotal legal point.
While Senate Bill No. 1437 bars a conviction for second degree murder under the natural and consequences theory, it "does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought." (Gentile, supra, 10 Cal.5th at p. 848.)
"In Gentile . . . our Supreme Court described the law of aiding and abetting, including the natural and probable consequences doctrine, as follows: 'Our law recognizes two forms of liability for aiders and abettors. [Citation.] First, under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with "knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends." [Citation.] [¶] Second, under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the "natural and probable consequence" of the crime the accomplice aided and abetted (i.e., the nontarget offense).'" (People v. Langi (2022) 73 Cal.App.5th 972, 978, quoting Gentile, supra, 10 Cal.5th at p. 843.)
As the high court further explained, "Senate Bill No. 1437 limited the natural and probable consequences doctrine as follows: 'In [2014], we held that natural and probable consequences liability cannot extend to first degree premeditated murder [in accord with] "reasonable concepts of culpability." [Citations.] [¶] In 2018, the Legislature enacted Senate Bill No. 1437 . . . after [finding] further "need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." [Citation.] . . . Senate Bill 1437 amended . . . section 188 to provide that "[e]xcept as stated in [the felony-murder statute], in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." '" (Langi, 73 Cal.App.5th at pp. 978-979, quoting Gentile, supra, 10 Cal.5th at p. 838.) Thus, the high court held "Senate Bill 1437 bars a conviction for second degree murder under the natural and probable consequences theory." (Gentile, at p. 839.)
However, the Supreme Court went on to state that "an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." (Gentile, supra, 10 Cal.5th at p. 850, italics added.) "Current law thus provides that the actual killer, or a direct aider and abettor of the killing who knew that his (or her) conduct endangered the life of another and acted with conscious disregard for life, may be guilty of second degree murder." (Langi, supra, 73 Cal.App.5th at p. 979.)
Accordingly, as to either a perpetrator or an aider and abettor, the malice aforethought required for second degree murder can be either express or implied.
"It is express when there is a manifest intent to kill." (Gentile, supra, 10 Cal.5th at p. 844; see People v. Coley (2022) 77 Cal.App.5th 539, 546-547 (Coley) [where the only target crimes charged were murder and attempted murder, and the jury found defendant" 'knew that the perpetrator intended to commit the crime'" and the defendant" 'intended to aid and abet the perpetrator in committing the crime,'" he was convicted of "second degree murder with express rather than implied malice," italics added].)
Malice is implied if the accomplice "aided the perpetrator's commission of the life-endangering act while 'personally harbor[ing]' the mental state of implied malice. [Citation.] That mental state includes 'knowledge that the perpetrator intended to commit the [life-endangering] act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and . . . conscious disregard for human life.'" (Langi, supra, 73 Cal.App.5th at p. 983, quoting People v. Powell (2021) 63 Cal.App.5th 689, 713 (Powell).) "Thus, implied malice includes an objective component-an act that is dangerous to life-and a subjective component-the defendant's awareness of and disregard for the danger." (Clements, supra, 75 Cal.App.5th at p. 299.) "As both Gentile and Powell make clear, to commit implied malice murder as an aider and abettor one must personally harbor implied malice. This means the defendant' "knows that his conduct endangers the life of another and . . . acts with conscious disregard for life."' [Citations.] The natural and probable consequences doctrine that the Legislature sought to eliminate by enacting Senate Bill No. 1437 . . . did not require such a finding." (People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 503-504 (Valenzuela).)
Review granted on July 27, 2022, S274792, pending the court's decision in In re Lopez, (S258912).
Defendant insists, however, that direct aider and abettor second degree murder "requires" the aider and abettor to "shar[e] the killer's specific intent: to kill," citing People v. Beeman (1984) 35 Cal.3d 547 (Beeman). (Capitalization omitted.) In Beeman, two cohorts robbed the defendant's sister-in-law. (Id. at p. 551.) They testified defendant was extensively involved in the planning of the robbery, including by providing an address, a floor plan, and descriptions of valuable items. (Id. at p. 552.) The defendant did not deny providing this information. He claimed, however, to have had an innocent purpose for doing so and requested instructions that aiding and abetting required proof that he shared the perpetrators' intent. (Id. at pp. 553-554.) The trial court denied the request, and the jury found defendant guilty of robbery, burglary, false imprisonment, destruction of telephone equipment and assault with intent to commit a felony. (Id. at pp. 550-551.)
On review, the Supreme Court addressed an issue on which the appellate courts were divided-whether "an aider and abettor must have an intent or purpose to commit or assist in the commission of the criminal offenses" or whether it is "sufficient that the aider and abettor engage in the required acts with knowledge of the perpetrator's criminal purpose." (Beeman, supra, 35 Cal.3d at p. 556.) The court concluded "the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (Id. at p. 560.) And, "[w]hen the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator.... [A]n aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Ibid.)
In Gentile, however, the Supreme Court expressly stated that "an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." (Gentile, supra, 10 Cal.5th at p. 850, italics added.) Thus, the high court has clarified any ambiguity Beeman might arguably have created with respect to proving malice aforethought for direct aider and abettor culpability for second degree murder, i.e., the court made clear that malice aforethought may be express or implied.
Accordingly, the Courts of Appeal have uniformly concluded that the recent amendments to sections 188 and 189 do not preclude direct aider and abettor culpability for either express or implied malice second degree murder. (E.g., People v. Vizcarra (Cal. Ct.App., Oct. 19, 2022, No. D078869) 2022 WL 10869162, at pp. *5-7 (Vizcarra); People v. Glukhoy (2022) 77 Cal.App.5th 576, 590-591 (Glukhoy); Clements, supra, 75 Cal.App.5th at pp. 298-301; Cortes, supra, 75 Cal.App.5th at p. 205; Langi, supra, 73 Cal.App.5th at pp. 978-983; Valenzuela, supra, 73 Cal.App.5th at p. 499, 501-502; Powell, supra, 63 Cal.App.5th at pp. 709-714.)
Review granted on July 27, 2022, S274792, pending the Supreme Court's decision in In re Lopez, review granted January 15, 2020, S258912.
As the court observed in Powell, the reason why, prior to the recent amendments, there was "a dearth of decisional law on aiding and abetting implied malice murder may [have been] the heretofore availability of the natural and probable consequences doctrine for second degree murder, which was easier to prove." (Powell, supra, 63 Cal.App.5th at p. 711, fn. 26.)
In Powell, for example, the Court of Appeal explained "there is no authority for the proposition that an aider and abettor of second degree implied malice murder must intend to kill." (Powell, supra, 63 Cal.App.4th at p. 711.) Rather, "direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] 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." (Powell, supra, 63 Cal.App.5th at pp. 712-713, fns. omitted; accord, Vizcarra, supra, 2022 WL 10869162, at pp. *5-7; Glukhoy, supra, 77 Cal.App.5th at pp. 587-591; Valenzuela, supra, 73 Cal.App.5th at pp. 499, 501-502.)
" 'In the context of implied malice, the [act] required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the [act] 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 lifeendangering act, not the result of that act.'" (Valenzuela, 73 Cal.App.5th at p. 501, quoting Powell, supra, 63 Cal.App.5th at p. 713, fn. omitted.) With respect to intent," '[t]he aider and abettor of implied malice murder need not intend the commission of the crime of murder. Rather . . . he or she need only intend the commission of the perpetrator's act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.' (Powell, supra, 63 Cal.App.5th at p. 714.) The requisite intent is a subjective one-the defendant must have' "actually appreciated the risk involved."' (People v. Contreras (1994) 26 Cal.App.4th 944, 954....) Implied malice can exist even if the act results in an accidental death. (Ibid.)" (Valenzuela, at pp. 501-502, italics omitted.)
Accordingly, in Clements, the Court of Appeal stated "the critical question" with respect to the defendant's second degree murder conviction was "whether substantial evidence in the record of conviction show[ed] [the defendant's] act of requesting and coordinating the assault on her brother was deliberate and performed with knowledge of the danger to, and conscious disregard for, his life." (Clements, supra, 75 Cal.App.5th at p. 299.) The court concluded the defendant's "own trial testimony provided substantial evidence that she acted deliberately and with a conscious disregard for life." (Ibid.) The evidence thus "provide[d] a more than adequate basis for the trial judge's finding beyond a reasonable doubt that [the defendant] was aware recruiting [a cohort] to commit an aggravated assault of [the victim] endangered [his] life and that [defendant] acted in conscious disregard of that risk." (Id. at p. 301.)
The court went on to reject the defendant's assertion that finding an aider and abettor culpable for second degree murder on the basis of implied malice violated the amendment extending relief under section 1172.6 to defendants convicted under any" 'other theory under which malice is imputed to a person based solely on that person's participation in a crime.' (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)" (Clements, supra, 75 Cal.App.5th at p. 301 .) The court rejected the defendant's "attempt to present herself as a person convicted of implied malice based solely on her participation in a crime. On the contrary, [she] was an active participant in the solicitation and planning of the assault and the evidence, including her own testimony, establishes she acted with conscious disregard for human life." (Ibid.)
The court pointed to Langi as illustrating "the circumstances when the new language applies. In that case, the defendant was part of a group who accosted the victim with the purpose of robbing him. The confrontation ended in a fist fight, and the victim was killed by a blow to the head suffered after he was punched by one member of the group. (People v. Langi, supra, 73 Cal.App.5th at p. 975.) [The defendant] argued the jury could have found him 'guilty of murder if it found that (1) the killing resulted from the actual killer's intentional act; (2) appellant aided and abetted that intentional act; and (3) the killer "deliberately performed [the act] with knowledge of the danger to, and with conscious disregard for, human life"-whether or not [the defendant] knew of or consciously disregarded the danger to human life.' (Id. at p. 981.)" (Clements, supra, 75 Cal.App.5th at p. 301, italic added.) The instructions thus" 'permitted the jury to impute malice to appellant based solely on his participation in a crime, without having to find that he personally acted with malice" and "allowed the jury to convict him under a vicarious felony murder theory no longer permitted under the amended definition of murder." (Ibid.) The Court of Appeal accordingly reversed and remanded to the trial court for a hearing on whether Langi could be convicted under the amended definition of murder. (Ibid.)
The circumstances in Clements were different. As the court "explained, there was significant evidence that [the defendant] personally acted with knowledge of the danger to, and conscious disregard for, the life of her brother. (Clements, supra, 75 Cal.App.5th at p. 301, italics added.)
In sum, defendant's first claim on appeal-that a direct aider and abettor must intend to kill to commit second degree murder-has been resoundingly rejected by the appellate courts.
Preliminary Hearing Transcript
We therefore turn to defendant's second claim on appeal-that the trial court erred in considering the preliminary hearing transcript.
Forfeiture
At the evidentiary hearing, the prosecution asked the court to take judicial notice of the information, abstract of judgment, preliminary hearing transcript, the reporter's transcript of the felony plea, the settled statement of facts supporting defendant's plea, and any relevant court minutes. Defense counsel stated, "both parties presume that the court will be looking at the court file in this case," and that he did not "have any objection to that." When the court stated it thought the preliminary transcript was admissible, defense counsel did not object. Not only did defense counsel fail to object to use of the preliminary transcript, but as he acknowledges, his memorandum filed in support of his section 1170.95 petition "referenced portions of the preliminary hearing." Additionally, when the court later asked counsel at the evidentiary if "[t]he entire court file is anything in the court file that's a legitimate court document that I can review to determine his eligibility for relief, correct?" Counsel replied, "I believe yes, the court can review all of the documents in there. Some of them obviously-the probation officer's-if you were looking at the probation officer's report and the probation officer is making conclusions or assumptions, obviously that's not going to carry the same weight." The court interrupted, "I'm looking at . . . the statement your client wrote for sentencing." To which counsel replied, "Yes, the court can consider that. That's a statement from the defendant."
At no point did defendant make any objection to the court's consideration of the preliminary hearing transcript, let alone advance the arguments he now makes-that the preliminary hearing transcript is not part of the record of conviction and that the testimony constituted inadmissible hearsay evidence. Having failed to object, he may not now challenge the admissibility of the evidence on appeal. (Evid. Code, § 353, subd. (a) [error in admitting evidence may not serve as the basis for reversal of a judgment unless "an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion"]; see Owens, supra, 78 Cal.App.5th at p. 1027 [new evidentiary rules did not have "any impact" on outcome of appeal from denial of resentencing petition following evidentiary hearing, first, because defendant failed to object to court's consideration of hearsay in presentence report]; see also People v. Williams (1988) 44 Cal.3d 883, 906 ["While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility."].)
Admissibility
Even if defendant had preserved the issue, his claim that the trial court committed reversible evidentiary error lacks merit.
Defendant first contends the preliminary hearing transcript was not a part of the record of conviction, and he never stipulated to the transcript as providing the factual basis for his plea, citing to People v. Davenport (2021) 71 Cal.App.5th 476 (Davenport). Defendant's reliance on Davenport is misplaced in several respects.
In that case, Division Four of this court, considered the trial court's use of a preliminary hearing transcript in summarily denying a petition and not affording the defendant an evidentiary hearing. (Davenport, supra, 71 Cal.App.5th at pp. 479-480.) The court first rejected the defendant's contention that the preliminary hearing transcript "is never part of the record of conviction." (Id. at p. 481.) It agreed, however, that the "trial court engaged in 'impermissible factfinding' at the prima facie stage by relying on facts taken from the preliminary hearing transcript that were not stipulated to or admitted." (Id. at p. 482.) We are dealing here, of course, with factfinding following an evidentiary hearing.
Defendant next contends reversal is required in light of the recent amendments to section 1172.6 clarifying the evidentiary rules applicable to section 1172.6 hearings. (§ 1172.6, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.) As amended, the statute now provides in pertinent part: "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 court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule."
The Attorney General does not argue the amendment is not retroactive. Nor, as we shall explain, is this an issue we need to address. (See Owens, supra, 78 Cal.App.5th at p. 1026 [suggesting this new evidentiary rule is a nonretroactive procedural change].) He maintains, instead, that the amendment does not preclude consideration of all preliminary hearing testimony, but only inadmissible hearsay. He further asserts that the trial court did not rely on any inadmissible hearsay in denying defendant's petition and that the stipulated facts providing the basis for defendant's guilty plea and the trial court's resounding disbelief of defendant's testimony at the hearing more than support the trial court's findings and renders any comments by the court about the preliminary hearing transcript harmless.
We need not engage in an extended discussion of the recent amendments. As pertinent here, the amended language is clear on its face and forecloses consideration of "hearsay evidence that was admitted in a preliminary hearing . . . unless the evidence is admissible pursuant to another exception to the hearsay rule." (§ 1172.6, subd. (d)(3); see Mitchell, supra, 81 Cal.App.5th at p. 586 [amendment focuses on the admissibility of evidence, including hearsay; defendant's hearsay testimony at parole hearing was party admission and admissible].)
As we discuss in the next section of this opinion, we also agree with the Attorney General that the stipulated facts, alone, amply support the trial court's findings and defendant has not shown, and cannot show, that any reference to inadmissible hearsay in the preliminary hearing transcript amounts to prejudicial error.
In fact, defendant has not made a prejudicial error argument. Instead, he asserts that it is "unclear to what extent the court may have actually utilized [the] preliminary hearing testimony in fashioning its order" and therefore the matter should be remanded, as the trial court is in the best position to recognize to what extent it may have improperly relied on the transcript. In short, he posits that the court may have prejudicially erred, but since the record does not show that is so, we should remand to allow the trial court to explain itself in this regard. This argument turns the rules of appellate review on their head. To secure a reversal, any appellant claiming evidentiary error must show that such error is prejudicial. (See People v. Watson (1956) 46 Cal.2d 818, 836 [evidentiary error requires reversal only if it is prejudicial, that is, if a reasonable probability exists that, absent the errors, the defendant would have obtained a more favorable result].) Defendant has not done so and therefore cannot prevail on his claim of evidentiary error.
In any case, before addressing whether the stipulated facts, alone, support the trial court's findings that the prosecution proved the elements of direct aider and abettor second degree murder, we put into proper context the trial court's references to the preliminary hearing transcript. Although defendant claims the "court extensively relied on hearsay statements contained in the preliminary hearing transcript," the record shows otherwise. In its order, the court referred to the preliminary hearing transcript in describing the victim's cause of death. However, there was no dispute as to the cause of death, and defendant does not explain how this evidence, even assuming it was hearsay, was significant to the court's findings and in any way harmed him. The court also referred to defendant's own statements to police officers. However, this was not inadmissible hearsay. (People v. Horning (2004) 34 Cal.4th 871, 898 [defendant's own statements to officers not inadmissible hearsay]; Mitchell, supra, 81 Cal.App.5th at p. 586 [defendant's hearsay testimony at parole hearing was party admission and admissible].) Moreover, the substance of these statements appeared in the stipulated facts providing the factual basis for defendant's guilty plea.
The court stated the victim "suffered blunt force trauma to his face, head, and neck as well as seventeen stab wounds to his scalp, throat and body. The two fatal stab wounds were inflicted from opposite directions: one from front to back and the other from back to front. The latter was inflicted at the left posterior chest area. The knife had perforated [the victim's] left lung and the wound exited at the cervical spine. At the preliminary hearing, the medical examiner described this as a lethal wound upon infliction. The other wound entered the left anterior chest piercing the liver and entering the abdominal cavity. The medical examiner opined that this wound likely was not lethal upon infliction, but the victim would have bled to death without medical attention. Neither opinion was challenged in this case. The cause of [the victim's] death was a combination of blunt force trauma to the head and these stab wounds. The unlawful nature of [the victim's] death is not challenged in this proceeding."
Defendant asserts the court also relied on statements of his codefendant, McWilliams. For example, defendant complains that "it does appear that the finding that appellant struck [the victim] at Tomki Road" was made in reliance upon McWilliams' inadmissible statements to police. The stipulated facts, however, recite that "codefendants drove the victim to Tomki Road in a rural part of the County of Mendocino," and once the victim "was outside the vehicle and with [the] knowledge that defendant . . . McWilliams intended to kill the victim, defendant Trevor James Conley grabbed [the victim] and knocked him to the ground."
In short, the trial court's order shows the court's references to the preliminary hearing transcript were minimal and any references to inadmissible hearsay were even less so. Defendant has not shown, and cannot show, that any error in connection with the preliminary hearing transcript testimony was prejudicial.
Substantial Evidence
We now turn to defendant's third claim, which is essentially a challenge to the sufficiency of the evidence to support the trial court's findings.
He argues, specifically, that the stipulated facts supporting his plea were "carefully limited to a second-degree, natural-and-probable consequence homicide" and because these facts did not include that he intended to kill the victim, the prosecution did not carry its burden to prove beyond a reasonable doubt that defendant committed second degree murder under the current law.
To begin with, the stipulated facts were not "carefully limited" to a natural-and-probable-consequences theory of second degree murder. Indeed, there is no mention at all in the stipulation of natural and probable consequences. Furthermore, the fact the stipulated facts did not state expressly that defendant intended to kill the victim (a) does not foreclose an inference to the contrary if such an inference is supported by the stipulated facts (see Mitchell, supra, 81 Cal.App.5th at p. 591) and (b) does not, as we have discussed, preclude direct aider and abettor culpability for implied malice second degree murder.
The Attorney General contends the stipulated facts amply support aider and abettor culpability for implied malice second degree murder. We agree. In fact, the stipulated facts fully support direct aider and abettor liability for express malice second degree murder.
Defendant maintains the Attorney General should be barred from arguing implied malice second degree murder because the prosecutor assertedly failed to urge this theory in the trial court. However, as we have recited, the prosecutor argued in closing that there was "overwhelming evidence of . . . express malice but certainly implied malice that this defendant . . . was a major participant in this murder and he acted with a reckless indifference to human life."
Because of their importance, we again recite the facts as stipulated: In November 2005, a friend of the victim, Kevin Henry, reported him missing. A week and half later, the Mendocino County Sherriff's Department found the victim's body, "covered with a mat and firewood." The medical examiner identified the cause of death as "blunt force trauma wounds to the head, followed by two stab wounds to the chest and abdomen." The examiner concluded the victim was "probably unconscious when stabbed."
The day after deputies located the victim's body, they found the car he had been driving "at the bottom of an embankment" on Orr Springs Road "some 15-20 miles" away from where the body was discovered. A tip led the deputies to co-defendant McWilliams. McWilliams at first denied ever meeting the victim but subsequently admitted to using the victim's ATM card "to make a cash withdrawal." A search of McWilliams's apartment yielded "a pair of jeans, tennis shoes, and a glove soaked with what appeared to be blood." A search of defendant's home yielded a "folding knife," "a pair of tennis shoes that appeared like they were being cleaned, drug paraphernalia and [a] newspaper article describing recovery of the missing person's vehicle."
In a police interview, defendant stated he and McWilliams had been driving around Lake Mendocino when they saw the victim sitting in a parked car. The victim asked if they "wanted to party with him." The two got into the victim's car, with McWilliams sitting in the passenger seat and defendant sitting in the back seat. Defendant and the victim "smoked marijuana and took cocaine, after which [defendant] and McWilliams drove back to [defendant's] house in Ukiah."
A few hours later, the victim called defendant and said "he had McWilliams's wallet and suggest[ed] they meet at a pub in Ukiah so he could return it." Defendant agreed, and he and McWilliams walked to the pub around 10:00 or 11:00 that night, where they met the victim in a parking lot.
"Thereafter, defendant . . . did aid and abet defendant Nathan Billy McWilliams in the murder of [the victim] . . . by encouraging and facilitating his death. The codefendants drove the victim to Tomki Road in a rural part of the County of Mendocino. Once the victim was outside of the vehicle, and with knowledge . . . McWilliams intended to kill the victim, defendant . . . grabbed Kevin Henry and knocked him to the ground, thereby allowing codefendant . . . McWilliams to obtain a knife and stab the victim to death. Said actions by [defendant] thereby aided and abetted codefendant . . . McWilliams in the murder of the victim, Kevin Henry."
Officers also interviewed defendant's girlfriend, who admitted being at defendant's house when McWilliams "showed up in a car that resembled" the one the victim had been driving. Defendant and his girlfriend got in another car and followed McWilliams to a location on Orr Springs Road. Defendant and McWilliams then got out of their vehicles. The girlfriend stated she looked away for a moment and then the victim's car "was gone."
Thus, defendant stipulated that he aided and abetted McWilliams "in the murder" by "encouraging and facilitating [the victim's] death" (italics added). He "drove the victim to . . . a rural" locale. And knowing McWilliams "intended to kill the victim," defendant "grabbed [the victim] and knocked him to the ground, thereby allowing . . . McWilliams to obtain a knife and stab the victim to death" (italics added). He then helped McWilliams move the body, and then helped McWilliams dispose of the car the victim had been driving, leaving it at the "bottom of an embankment . . . some 15-20 miles" from where the victim's body was found. These stipulated facts amply support an inference that defendant, himself, acted with the intent to kill and, in turn, a finding that he is guilty as a direct aider and abettor of express malice second degree murder. (See Gentile, supra, 10 Cal.5th at p. 850 [contrasting express malice, where the aider and abettor" 'know[s] and share[s] the murderous intent of the actual perpetrator'" and implied malice, where the aider and abettor" 'knows that his conduct endangers the life of another and . . . acts with conscious disregard for life' "]; Coley, supra, 77 Cal.App.5th at pp. 542, 546-547.)
The stipulated facts also fully support a finding of direct aider and abettor culpability for implied malice second degree murder. The pivotal question in this regard is whether these facts support findings, beyond a reasonable doubt, that defendant's actions with respect to the victim were "deliberate," that he knew his actions "endangered" the victim's life, and that he acted "in conscious disregard for [the victim's] life." (See Clements, supra, 75 Cal.App.5th at pp. 299, 301.) They unquestionably do. They establish that defendant, "by words or conduct, aided the commission of a life endangering act, knew the perpetrator intended to commit the act, intended to aid the perpetrator in the commission of the act, knew the act was dangerous to human life, and acted in conscious disregard for human life." (Vizcarra, supra, 2022 WL 10869162, at p. *7.)
The trial court further found that there was no credible evidence that called the truth of the stipulated facts into question. As the court pointed out, defendant had never sought relief from his conviction. It also found defendant's new version of events at the evidentiary hearing utterly implausible.
In fact, defendant does not even attempt to argue that the stipulated facts, alone, are insufficient to support direct aider and abettor implied malice second degree murder. Rather, defendant's challenge to the sufficiency of the evidence rests on his claim that intent to kill is required for direct aider and abettor second degree murder and the stipulated facts do not include that he acted with intent to kill. However, as we have discussed, defendant is incorrect in both respects-intent to kill is not required for direct aider and abettor second degree murder, and the stipulated facts amply support a finding that he intended to participate in a murder.
Disposition
The judgment is affirmed.
We concur: Humes, P.J., Margulies, J.