Opinion
A167030
01-22-2024
THE PEOPLE, Plaintiff and Respondent, v. IAN BOOKER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 600814)
Richman, J.
Defendant Ian Booker, who was convicted of second degree murder (Pen. Code, § 187, subd. (a)), appeals from an order denying his petition for resentencing under former section 1170.95, now section 1172.6, following an evidentiary hearing. Defendant argues the denial must be reversed because (1) the evidence was insufficient to support the trial court's finding he could still be convicted of murder even after legislative amendments made to the murder statutes, and (2) the original sentencing judge did not rule on the petition. We affirm.
Undesignated statutory references that follow are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer simply to section 1172.6.
BACKGROUND
The Facts
At defendant's preliminary hearing in August 2016, the trial court (Judge Jeffrey Horner) heard testimony from Tito Dawkins, the sole witness of the shooting in this case, and several police officers who responded to the scene.
We granted defendant's motion to augment the record to include a transcript of the preliminary hearing.
Dawkins testified that in 2014 he was in jail for about two months. During that time, he met and befriended defendant, who was also in jail. When Dawkins got out of jail, he was homeless. He kept clothes at defendant's apartment in Oakland and had been there approximately 10 times. On those occasions, defendant told Dawkins not to let anyone in the apartment and not to go in defendant's bedroom or the closet in the hallway.
On November 2, 2014, about a month and a half after Dawkins was released from jail, he called defendant to say that he was going over to his apartment to shower and change his clothes. When Dawkins arrived at the apartment, defendant was not there, but Rondell Johnson was. Johnson let Dawkins in, saying, "I shouldn't be doing this" and "the only reason I am letting you in is because I remember you [from] a couple of days ago," meaning that he was letting Dawkins in because he was defendant's friend.
Dawkins and Johnson then sat on the couch in the living room and watched a football game on TV. While they were watching the game, Dawkins bought heroin from Johnson and used it. The heroin was not very potent, and so Dawkins complained to Johnson that "it wasn't no good."
After about one hour, defendant arrived. Defendant seemed surprised to see Dawkins there. Defendant told Johnson," 'I thought I told you something before I left,'" or" '[W]hat I tell you when I left?'" Johnson replied," '[W]hat you talking about?'" Defendant, however, did not appear angry; he was calm.
Defendant went to the kitchen to get something to drink and then sat down on the couch to watch the game. Johnson was also sitting on the couch and talking on the phone.
After a few minutes, while defendant and Johnson were still sitting on the couch, Dawkins got up to go to the bathroom. Before Dawkins got to the bathroom, he heard four or five gunshots. He turned around after hearing the first gunshot and saw defendant standing about 10 feet in front of, and pointing a gun at, Johnson, who was still sitting on the couch. Johnson had one or both of his hands in his coat pocket.
Between the moment that he got up to go to the bathroom and the moment he heard the first gunshot, Dawkins did not hear defendant or Johnson yell at each other. Nor did Dawkins hear sounds of a struggle or fight. Before the shooting, Dawkins saw defendant's eyes, which looked like defendant "was gone....[I]t was like no, he wasn't there or something, something wasn't right." After defendant shot Johnson, defendant's demeanor "was calm. . . [,] . . . too calm ...."
Dawkins did not know if defendant was going to turn around and shoot him also, so he ran toward defendant and tackled him. Dawkins grabbed defendant's right arm to make sure defendant could not aim the gun at him and took the gun out of defendant's hand.
Dawkins then asked defendant," 'What happened? Why did you do that?'" He replied," 'he was trying to rob me or something.'" Defendant then pulled out his cell phone and said," 'I got the [sic] call the police.'" Dawkins saw and heard defendant make the call to the police.
Dawkins did not feel safe and wanted to get as far away from defendant as possible, so he left the apartment. He ended up seeing a friend and told him what happened. His friend advised him to tell the police about the shooting and turn in the gun. Dawkins followed his friend's advice, called 911, and reported the shooting. He then went to an Oakland Police Department station, told officers about the incident, and turned over the gun. A police officer swabbed Dawkins's hands for gunpower residue.
At the time he testified at the preliminary hearing, Dawkins was in custody for commercial burglary and a parole violation. He had more than 10 convictions for theft. However, he did not have a conviction for any gun-related crime, and he had never been arrested with a gun. Dawkins never fired a gun. Dawkins denied that he shot Johnson.
One of the police officers who was dispatched to defendant's apartment testified that defendant flagged the officers when they arrived, told them that Johnson was his roommate and appeared to be dead, and led the officers into the apartment. Defendant appeared calm. The officers found Johnson's body slumped over the couch.
The parties stipulated that Johnson was killed by multiple gunshot wounds.
The Charges and the Plea
In August 2016, the Alameda County District Attorney filed an information charging defendant with murder (§ 187, subd. (a)) (count one) and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count two). The information also alleged as enhancements that defendant personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)); personally and intentionally discharged a firearm in the commission of murder (§ 12022.53, subds. (a), (c)); personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)); and personally inflicted great bodily injury (§ 12022.7).
In September 2017, defendant pled no contest to second degree murder (§ 187, subd. (a)) and to the enhancement that he used a firearm in the commission of a felony (§ 12022.5, subd. (a)). In exchange, count two and the remaining enhancements were dismissed. The trial court (Judge C. Don Clay) accepted the plea and sentenced defendant to a prison term of 15 years to life for the murder, and to a consecutive term of 10 years for the firearm enhancement.
The Petition for Resentencing
In January 2022, defendant filed, in pro per, a petition to have his murder conviction vacated and obtain resentencing under section 1172.6. In his petition, defendant checked boxes stating that he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code [sections] 188 and 189, effective January 1, 2019" and that he "was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and [he] could not now be convicted of murder because of changes to [section] 188."
The trial court (Judge Morris Jacobson) appointed counsel for defendant and ordered the People to file a response to the petition.
The People filed their response, arguing that defendant failed to establish a prima facie case for relief. But assuming he did, and the court were to proceed with an order to show cause (§ 1172.6, subd. (c)) and an evidentiary hearing (§ 1172.6, subd. (d)(3)), the People argued the petition should nonetheless be denied. The People asserted that at such hearing, they "will prove beyond a reasonable doubt [defendant] is ineligible for resentencing, as the transcript of the preliminary hearing will be offered as evidence to prove he shot his roommate while he sat on the couch with another witness present ...." Defendant subsequently filed a reply.
The People also relied on evidence from the preliminary hearing that defendant "confessed to the police" he had shot Johnson. One of the arresting officers testified at the preliminary hearing he had interviewed defendant after the shooting and recorded the interview. Although the recording and transcript of the interview were admitted into evidence and played at the hearing, neither is included in the record on appeal. Also, the officer never testified as to what defendant said in the interview. In any event, in ruling on the petition the trial court did not mention or rely on the purported confession. Neither do the parties in their briefs on appeal. We thus do not consider such evidence here.
On December 12, the court held a hearing at which defendant appeared with counsel. The court found defendant made a prima facie showing of eligibility of relief. Then, apparently with the parties' agreement, the court proceeded with an evidentiary hearing. The parties did not introduce new evidence and presented only arguments. Relying on Dawkins's preliminary hearing testimony regarding the circumstances of the shooting, the prosecutor argued, "I think that is the necessary proof that we need to prove that [defendant] could still be convicted of murder today, despite the changes to Penal Code Section[s] 188 and 189, that this is not an instance of malice being imputed to [defendant] based on participation in another crime, but rather he was the actual shooter and the actual killer."
In response, defense counsel argued "that the district attorney has not met the burden of proving beyond a reasonable doubt all the elements." The court also heard from defendant himself, who argued among other things that Dawkins "never seen me pull the trigger....He just heard the gunshots."
Following this argument, the court announced its decision, beginning by stating it had reviewed the case file including the preliminary hearing transcript. The court then recounted Dawkins's preliminary hearing testimony as follows: "Dawkins . . . got up to use the restroom, and before he could make it to the bathroom, he heard a gunshot, turned around, and saw [defendant] pointing a gun at the victim, who at this point had been shot. He heard some more gunshots.
"And I think [defendant] is right, which is that Mr. Dawkins did not indicate that he actually saw the shooting, but he was immediately present when it occurred. There were three people in the apartment.
"Mr. Dawkins indicated that he was not the person who did the shooting. It was [defendant], and [Dawkins] so testified at the preliminary hearing. I think he indicated that he ran up and grabbed [defendant] because he was afraid [defendant] was going to shoot him as well.
"In any event, those are the events that were testified to at the preliminary hearing, and then as I said, following that, at the point that they arrived in the trial court, [defendant] chose to resolve the case by no contest plea."
The court then stated: "I do find that this evidence proves beyond a reasonable doubt that [defendant] continues to be guilty of murder despite the changes made in Penal Code Section[s] 1188 and 1189 [sic]. I'm finding that he is not eligible for relief because [defendant] is the actual killer." Accordingly, the court denied the petition.
The minute order for the hearing states, "The court finds a prima facie case has not been made and is not eligible for relief." As the People note, this conflicts with the court's oral ruling that it found a prima facie case. We agree with the People that the court's oral statements control over the minute order. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) We also note that an appellate court has the authority to correct errors in the latter. (See People v. Gobert (2023) 89 Cal.App.5th 676, 689, citing People v. Mitchell (2001) 26 Cal.4th 181, 185.) As such, we order the minute order be corrected to reflect the court's rulings as orally pronounced at the December 12, 2022 hearing.
This appeal followed.
DISCUSSION
General Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 839 (Gentile).)
To amend the felony murder rule, Senate Bill 1437 added section 189, subdivision (e), which provides that a participant in the perpetration of a qualifying felony is liable for felony murder only if the person (1) actually killed the victim; (2) aided, assisted, or induced the murder with the intent to kill; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of section 190.2. (Gentile, supra, 10 Cal.5th at p. 842.)
To amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3), which states: "Except as stated in subdivision (e) of [s]ection 189, 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." (Gentile, supra, 10 Cal.5th at pp. 842-843.)
Senate Bill 1437 also added former section 1170.95, now section 1172.6, which sets forth a procedure for persons convicted of felony murder or murder under a natural and probable consequences theory to petition for retroactive relief. (Stats. 2018, ch. 1015, § 4; People v. Lewis (2021) 11 Cal.5th 952, 959; Gentile, supra, 10 Cal.5th at p. 843.) The petition must be filed with the court that sentenced the petitioner. (§ 1172.6, subd. (b)(1).) "If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition." (Ibid.) If the trial court determines that the petitioner has made a prima facie showing for relief, it must issue an order to show cause (§ 1172.6, subd. (c)) and hold an evidentiary hearing (§ 1172.6, subd. (d)).
At the evidentiary hearing, the parties may rely upon evidence in the record of conviction or new evidence to show whether the petitioner is eligible for resentencing. (§ 1172.6, subd. (d)(3).) "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." (Ibid.) At this stage of the proceedings, the prosecution bears the burden of proving, "beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Sections 188 or 189 ...." (Ibid.)
Sufficiency of the Evidence
After finding defendant made a prima facie showing of relief and holding an evidentiary hearing, the trial court concluded the People proved beyond a reasonable doubt that defendant could still be convicted of second degree murder under the current law. Defendant argues the evidence was insufficient to support the court's finding. We first address the applicable standard of review, and then turn to the merits.
At the December 12, 2022 hearing, the court did not expressly issue an order to show cause after finding a prima facie case was shown. (§ 1172.6, subd. (c).) Nevertheless, the court held the evidentiary hearing that section 1172.6, subdivision (d)(3) requires.
The Applicable Standard of Review Is Substantial Evidence
Relying on People v. Vivar (2021) 11 Cal.5th 510 (Vivar), defendant contends the denial of his petition is reviewed independently, because the trial court's inquiry was limited to a "cold record" consisting solely of documentary evidence with no live testimony. We disagree.
In Vivar, our Supreme Court endorsed the independent standard of review when evaluating a trial court's decision under section 1473.7 regarding whether to vacate a conviction due to negative immigration consequences stemming from the conviction. (Vivar, supra, 11 Cal.5th at pp. 524-527.) "A successful section 1473.5 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected [a] defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea." (Vivar, at p. 517; § 1473.7, subds. (a)(1), (e)(1).) In choosing independent review in this context, the court reasoned that analogous prejudice determinations in ineffective assistance of counsel claims were reviewed independently as predominantly legal questions. (Vivar, at p. 524.)
We do not find Vivar's reasoning salient here. As explained by the Fourth District, Division Two in People v. Clements (2022) 75 Cal.App.5th 276 (Clements), unlike a section 1473.7 prejudice determination, the trial court's inquiry during the second stage of a section 1172.6 proceeding is predominantly factual in nature. (See Clements, at p. 301.) Additionally, "the Supreme Court emphasized in Vivar that the 'embrace of independent review in this context is a product of multiple factors with special relevance here: the history of section 1473.7, the interests at stake in a section 1473.7 motion, the type of evidence on which a section 1473.7 ruling is likely to be based, and the relative competence of trial courts and appellate courts to assess that evidence.'" (Clements, at p. 302, citing Vivar, at p. 527.) However, "[t]he same factors don't support applying independent review in the context of reviewing a trial judge's ruling after a full hearing under [former] section 1170.95, subdivision (d)(3)." (Clements, at p. 302.)
Finding Vivar distinguishable on these grounds, Clements found the Supreme Court's decision in People v. Perez (2018) 4 Cal.5th 1055 (Perez) more persuasive. (Clements, supra, 75 Cal.App.5th at p. 302.) In Perez, our Supreme Court held that the substantial evidence standard of review applies in the context of Proposition 36, which narrowed the class of third-strike felonies for which an indeterminate sentence can be imposed and permits inmates convicted of nonserious, nonviolent felonies under the Three Strikes law to petition for resentencing (§ 1170.126, subd. (f)). (Perez, at p. 1066.) The high court noted that "even if the trial court is bound by and relies solely on the record of conviction to determine eligibility, [where] the question . . . remains a question of fact . . . we see no reason to withhold the deference generally afforded to such factual findings." (Ibid.)
We join the Fourth District in recognizing that Perez, rather than Vivar, is the more persuasive authority and in choosing the substantial evidence standard. As have other courts, including Divisions One and Four of this District. (E.g., People v. Njoku (2023) 95 Cal.App.5th 27, 41-42 [Third District]; People v. Oliver (2023) 90 Cal.App.5th 466, 479-480 [First District, Division One]; People v. Sifuentes (2022) 83 Cal.App.5th 217, 232-233 [First District, Division Four]; People v. Mitchell (2022) 81 Cal.App.5th 575, 590- 591 [Second District, Division Eight].) And recently, our Supreme Court recognized: "Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence." (People v. Reyes (2023) 14 Cal.5th 981, 988.)
Despite acknowledging that case law has uniformly endorsed the substantial evidence standard when reviewing the denial of a section 1172.6 petition, defendant maintains that Vivar controls. He contends that Perez is inapposite because "it did not concern review of the denial of the petition for relief under the statute, but rather review of the granting of a petition, i.e., an appeal by the prosecution." But defendant does not explain, and we fail to see, how this distinction matters in determining the applicable standard of review.
Defendant also argues that assuming Perez applies here, "it is irreconcilable with the court's reasoning in Vivar, which is the more recent case, and for this reason also Vivar is controlling." We disagree that Vivar and Perez are "irreconcilable." Our Supreme Court in Vivar expressly limited its holding, stating, "Our decision addresses only the independent standard of review under section 1473.7." (Vivar, supra, 11 Cal.5th at p. 528, fn. 7.) And as noted, the court in Vivar emphasized that its holding was "a product of multiple factors with special relevance" in that context and reaffirmed the "familiar postulate" that" 'an appellate court should defer to the factual determinations made by the trial court,'" regardless of" 'whether the trial court's ruling[s are based] on oral testimony or declarations.'" (Vivar, supra, 11 Cal.5th at pp. 527, 528, fn. 7.)
Therefore, we conclude the proper standard of review of the trial court's factual findings in this case is substantial evidence.
Substantial Evidence Supports The Trial Court's Ruling
In reviewing the trial court's findings for substantial evidence, we examine the evidence in the light most favorable to the People, presume in support of the trial court's ruling the existence of every fact that can be reasonably be deduced from the evidence, and accept factual inferences in favor of the court's ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) In this process, we do not reweigh the evidence or reevaluate a witness's testimony. (Ibid.; accord, People v. Nelson (2011) 51 Cal.4th 198, 210.) "If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them." (Zamudio, supra, 43 Cal.4th at p. 342.) These same principles apply to cases in which the prosecution relies primarily on circumstantial evidence. (Id. at p. 357.) Reversal on a substantial evidence ground "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conclusion of the trier of fact].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151.) "Malice may be express or implied." (Ibid.) Malice is express when a person has the intent to kill. (People v. Beltran (2013) 56 Cal.4th 935, 942.)" 'Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.' [Citation.]" (Id. at pp. 941-942.) "[I]ntent to kill or express malice . . . may in many cases be inferred from the defendant's acts and the circumstances of the crime." (People v. Smith (2005) 37 Cal.4th 733, 741.) For example, our Supreme Court has held that "the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." (Id. at p. 742.)
As noted, the trial court found that defendant was the person who shot and killed Johnson and thus remained guilty of murder under current law. From this, we infer the court necessarily and impliedly found that defendant had the requisite state of mind of malice, specifically intent to kill or express malice. (See People v. Francis (2002) 98 Cal.App.4th 873, 878 [on appeal, we" 'imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings' "].)
The record contains substantial evidence from which the court could reasonably conclude defendant was the actual shooter who acted alone with the intent to kill. As the court observed, Dawkins testified at the preliminary hearing that while walking to the bathroom in defendant's apartment, he heard four or five gunshots. After hearing the first gunshot, Dawkins turned around towards the living room and saw defendant standing about 10 feet in front of, and pointing a gun at, Johnson, who was sitting on the couch. Further, it was stipulated that Johnson died from gunshot wounds. Although, as the court noted, Dawkins may not have seen defendant actually fire the gun, a reasonable factfinder could infer from the circumstances surrounding the shooting that defendant was the person who shot Johnson. This evidence in turn is sufficient to support the inference that defendant harbored an intent to kill. (See People v. Smith, supra, 37 Cal.4th at p. 741.)
Defendant nonetheless argues there is insufficient evidence to establish that he was the actual killer, positing "[t]here are reasons to believe Dawkins . . . was the killer." Defendant points to Dawkins's testimony that defendant called the police immediately after the shooting; that defendant let the officers into his apartment when they arrived; that Dawkins left the apartment after the shooting; and that Dawkins took the gun with him when he left. Defendant's arguments essentially ask us to reweigh the evidence in his favor and draw inferences adverse to the trial court's ruling, in violation of the principles of substantial evidence review. (See Zamudio, supra, 43 Cal.4th at p. 357.) We decline to do so. And regardless, we do not find defendant's inferences that Dawkins was instead the killer to be reasonable.
Defendant also challenges Dawkins's "veracity and his ability to remember were suspect," thus suggesting his testimony cannot be trusted as the basis for the court's finding that defendant was the actual killer. We disagree. The trial court impliedly found the relevant portions of Dawkins's testimony credible, and we cannot second-guess that conclusion. (See Zamudio, supra, 43 Cal.4th at p. 357.) Moreover," '[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.'" (People v. Panah (2005) 35 Cal.4th 395, 489.)
Additionally, defendant contends "[n]ot only was there reason to doubt [he], rather than Dawkins[,] had been the shooter, there also was evidence to support the inference that defendant had been engaged in aiding and abetting and/or conspiring to commit the felony of selling heroin" (Health and Saf. Code, § 11352, subd. (a)). Specifically, defendant asserts: "the evidence supported the inference that [he] was providing Johnson a place from which to sell heroin, and further that he had facilitated that activity by inviting Dawkins to come to the apartment, which resulted in Dawkins purchasing heroin from Johnson in the apartment. [¶] A fatal shooting arising from this transaction could render defendant liable for felony murder." Defendant thus concludes "[t]he evidence does not remotely constitute proof beyond a reasonable doubt [that] this was not in fact what occurred."
This argument is a red herring. At the evidentiary hearing, the People did not argue defendant was guilty of felony murder. In fact, the People argued, "this is not an instance of malice being imputed to [defendant] based on participation in another crime, but rather he was the actual shooter and the actual killer." Consequently, the trial court did not find defendant was guilty of felony murder. We thus are not concerned with whether there was sufficient evidence to support a finding that defendant could have been found guilty under an unargued, alternative theory of vicarious murder liability. Accordingly, we reject defendant's argument.
Were the roles reversed and the People, rather than defendant, raised for the first time on appeal that defendant could have been found guilty of felony murder, a determination by this court that there may be substantial evidence to support this theory of murder liability would not satisfy the statutory requirement of guilt beyond a reasonable doubt and, therefore, would not be sufficient to deny defendant's petition. (See People v. Strong (2022) 13 Cal.5th 698, 720 ["a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing," and an "after-the-fact" court review does "not involve a determination beyond a reasonable doubt"].)
Lastly, defendant contends that even assuming he fired the fatal shots, there is no substantial evidence that he did so with malice aforethought. Instead, defendant claims, he shot Johnson in self-defense, imperfect selfdefense, or heat of passion, citing Dawkins's testimony that when asked why he had shot Johnson, defendant replied that Johnson" 'was trying to rob [defendant] or something.' "
Initially, we note that defendant did not raise the issue of self-defense, imperfect self-defense, or heat of passion in the trial court. "As a general rule, a party who does not raise an argument below forfeits the argument on appeal. [Citation.]" (In re Abram L. (2013) 219 Cal.App.4th 452, 462.)
However, because the People do not assert defendant's claim is forfeited, we will consider, and ultimately reject, it. As discussed, because the trial court found that defendant was the actual killer and that he could still be convicted under murder under the current law, we imply it found defendant had the requisite state of mind of malice. (See People v. Francis, supra, 98 Cal.App.4th at p. 878.) Specifically, we conclude the court impliedly found that defendant's statement that Johnson was trying to rob him-the only evidence suggesting self-defense-was not credible and should not be afforded any weight.
Substantial evidence supports this implied finding. Dawkins testified that immediately before the shooting, he did not hear Johnson say anything to defendant. Nor did he hear any yelling or sounds of a struggle between defendant and Johnson. Dawkins also testified that right after the shooting defendant's demeanor "was calm . . . [,] too calm." Based on this, the court could reasonably find a lack of credible evidence that defendant shot Johnson in response to being robbed and, therefore, that he shot Johnson in selfdefense, imperfect self-defense, or heat of passion.
In sum, substantial evidence supports the trial court's finding the People proved beyond a reasonable doubt that defendant could still be convicted under a viable theory of murder and was thus ineligible for relief.
Resentencing Judge
Defendant claims that the denial of his petition must also be reversed because the trial court did not comply with section 1172.6, subdivision (b)(1), which, as noted, provides: "If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition." In People v. Santos (2020) 53 Cal.App.5th 467 (Santos), the Second District, Division Five held this provision requires "the individual public official" who sentenced the petitioner to rule on the petition unless the record shows the presiding judge of the superior court determined that person was "not available" to do so. (Id. at p. 474.) Citing Santos, defendant argues the trial court committed reversible error in assigning Judge Jacobson to rule on his petition absent a showing in the record that Judge Clay, the sentencing judge, was unavailable.
The People counter that defendant forfeited this contention by failing to raise it below. We agree. (See People v. Anderson (2020) 9 Cal.5th 946, 961 ["[A] criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal"]; see, e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 429 [challenge to the improper substitution of judge in criminal trial forfeited by defendant's failure to object].) "This case perfectly exemplifies the basis for the forfeiture doctrine, for, had defendant objected, either the record would reflect why Judge [Clay] was unable to preside or Judge [Clay] would in fact have presided. Were the rule otherwise, defendants 'would be discouraged from making timely objections since, if the ultimate judgment were unfavorable, the defendant "would receive a second 'bite at the apple' ...." [Citation.]' [Citation.]" (Ibid.)
We also agree with the People that even if the contention had been preserved for appeal, defendant has not shown that any possible error was prejudicial. (See Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 837 (Watson); see also People v. Daniel (2020) 57 Cal.App.5th 666, 679 [applying harmless error analysis to claim that the wrong judge ruled on resentencing petition under former § 1170.95].) "[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error." (People v. Mena (2012) 54 Cal.4th 146, 162, citing Watson, supra, 46 Cal.2d at p. 836; accord, People v. Beltran, supra, 56 Cal.4th at p. 955.) Here, defendant makes no attempt to identify any prejudice by the fact Judge Jacobson ruled on his petition. In fact, he suggests in his reply brief that he need not show prejudice at all. We deem defendant's silence on the issue a tacit acknowledgment that no prejudice exists. (See, e.g., People v. Johnson (1980) 26 Cal.3d 557, 574 ["defendant by his silence on this issue [of violation of a statutory right to a speedy trial tacitly] concedes the absence of prejudice, urging that we . . . reverse his conviction without proof of prejudice"].)
We are unable to discern any prejudice in any event. In Santos, the court stated the same judge requirement acknowledges that "a judge who is familiar with the facts, evidence, and law already part of the record is better equipped to rule on a [section 1172.6] petition than a different judge, unfamiliar with the case, who is reviewing a cold record." (Santos, supra, 53 Cal.App.5th at p. 474.) Thus, "[t]he Legislature's intent is best served when the outcome of the petition is determined by a judge who is particularly well placed to take all the facts and circumstances of the underlying case into account." (Ibid.) Here, it is true that Judge Clay, having sentenced defendant, would have been acquainted with the case by the time the petition was filed. At the same time, however, it is uncertain on this record that he was necessarily "better equipped" than Judge Jacobson to decide critical factual questions raised in the petition. The two judges stood in the same shoes insofar as both only had access to a cold record. Neither had presided over the preliminary hearing. Thus, neither had the benefit of hearing and observing the only live testimony presented in this case. Because Judge Clay's vantage point, like Judge Jacobson's, would have been based on a review of a cold record, their familiarity of the evidence in this case was, arguably, equal. In short, defendant has failed to show "reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 837.)
DISPOSITION
We direct the trial court to correct the December 12, 2022 minute order to accurately reflect its rulings on the section 1172.6 petition as orally pronounced on December 12, 2022. In all other respects, the order denying the petition is affirmed. The trial court shall prepare a corrected minute order and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Stewart, P.J., Miller, J.