Opinion
A166175
12-08-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH A. SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco City &County Super. Ct. No. 12025705.
MARGULIES, J.
Defendant appeals from resentencing on a Penal Code section 1172.6 petition. In 2013, defendant pled guilty to voluntary manslaughter while acting as a principal armed with a firearm during the commission of a felony and assault with a semiautomatic firearm with great bodily injury. He was sentenced to 17 years in prison.
All statutory references are to the Penal Code unless otherwise indicated.
In 2021, defendant filed a petition for resentencing under section 1172.6. The parties stipulated to vacate defendant's voluntary manslaughter conviction and the trial court redesignated that offense as a conviction for shooting at an occupied vehicle. Defendant was resentenced to prison for 13 years eight months.
Defendant challenges his resentencing, contending the trial court committed three errors: (1) it imposed an upper term sentence based on aggravating factors that had not been stipulated to by defendant, proven beyond a reasonable doubt to a jury or judge, or based on certified prior convictions; (2) it violated his rights to due process and against double jeopardy by selecting his conviction for assault with a firearm as the principal term; and (3) insufficient evidence supported redesignation of his vacated voluntary manslaughter conviction as the target felony of shooting at an occupied vehicle.
We agree with defendant's insufficiency of the evidence claim, but otherwise reject his arguments and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The summary of facts provided in this factual background is taken from the testimony at the preliminary hearing.
A. March 30, 2012 Shooting
On March 30, 2012, police responded to a report of a deceased man, Diondre Young, at 403 Main Street in San Francisco. He was discovered with multiple gunshot wounds and shards of auto glass covering his body.
An anonymous witness saw the shooting. She had been at a club known as "330 Ritch" (the club). When she left the club, she saw Young sitting in the passenger seat of a white BMW as it passed by. She saw someone run up along the passenger side of the car with a black automatic handgun and fire into the passenger side of the car five to seven times. She described the shooter as a Black male with dark hair, 30 to 40 years old, approximately five feet eight inches tall and 150 pounds, wearing a black coat ("a hoodie, . . . rain-type jacket"), black pants, and shoes with a red stripe.
A relative of Young's told police that the anonymous witness said defendant was the shooter. However, when the police showed the witness two photo spreads at two different times, both including defendant's photograph, she did not identify him. In the second photo spread she identified someone else as the shooter. The anonymous witness was the only eyewitness to the shooting the police were able to identify and interview.
Surveillance footage from a camera at 340 Ritch Street near the club showed the shooter was left-handed and wore a jacket similar to the one the anonymous witness said the shooter was wearing that night. Another surveillance video from a location on Townsend Street near the crime scene showed defendant was one of several individuals getting out of a dark sedan before the shooting.
When interviewed on October 3, 2012, defendant admitted to having been at the club on the night of the shooting, but he denied knowing anything about the shooting. Defendant denied owning a jacket like the one described by the anonymous witness or owning a shirt like the one depicted in the video of the shooting. An officer who observed the interview noted that defendant wrote with his left hand.
B. October 1, 2012 Shooting
On October 1, 2012, police officers responded to a report of shots fired on the corner of Plymouth Avenue and Broad Street in San Francisco. Officer Fortuno interviewed S.S., who told him that he had been hanging out on the corner when a silver van pulled up. S.S. said the driver of the van, later identified as defendant, was shouting at his friend T.S. and shot him.
C. Charges
In April 2013, an information was filed charging defendant with eight different counts in connection with the two shooting incidents. As to the March 30, 2012 incident, defendant was charged with first degree murder (§ 187, subd. (a); count I) and discharging a firearm at an occupied vehicle (§ 246; count II). As to both counts, it was alleged defendant personally discharged a firearm (§ 12022.53, subd. (d)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
As to the October 1, 2012 incident, defendant was charged with attempted murder (§§ 187, subd. (a), 664; count III), assault with a semiautomatic firearm (§ 245, subd. (b); count IV), and assault with a firearm (§ 245, subd. (a)(2); count V). As to all three counts, defendant was charged with, among other things, causing great bodily injury. (§ 12022.7, subd. (a).)
In other counts related to both incidents, defendant was charged with possession of a firearm and carrying a loaded and concealed firearm.
D. Plea and Original Sentence
On July 12, 2013, defendant entered into a negotiated plea agreement. He pled guilty to voluntary manslaughter (count I) and admitted an allegation that he was a principal armed with a firearm in the commission of a felony. (§§ 192, subd. (a), 12022, subd. (a)(1).) He also pled guilty to assault with a semiautomatic firearm as alleged in count IV, and admitted the great bodily injury allegation as to that count (§§ 245, subd. (b), 12022.7, subd. (a).) No aggravating factors were admitted by defendant.
The prosecution amended the information to make count I voluntary manslaughter (§ 192, subd. (a)), and added an allegation for principal armed with a firearm in the commission of a felony (§ 12022, subd. (a)(1)).
The parties stipulated defendant would be sentenced to the upper term of 11 years as to count I, plus one year for the firearm enhancement; the consecutive term of two years (one-third the middle term of six years) as to count IV; and an additional three years for the great bodily injury allegation. The total sentence imposed was 17 years in state prison.
In June 2019, the trial court conducted a hearing to correct the abstract of judgment to address the full term sentence imposed for the great bodily injury enhancement on count IV, which was an unlawful sentence. The court reduced the sentence for the great bodily injury enhancement to one year and reinstated the drive-by shooting enhancement on count IV (§ 12022.5) for an additional term of two years.
F. Section 1172.6 Petition and Resentencing
On January 10, 2022, defendant filed a petition for resentencing pursuant to former section 1170.95 (now section 1172.6). The trial court accepted the parties' stipulation that defendant was entitled to relief on his manslaughter conviction and related enhancements.
On August 15, 2022, the trial court-over defendant's objection- designated section 246 (shooting at an occupied vehicle, count 11) as the target offense in place of the vacated manslaughter conviction and designated the count IV, section 245 (assault with a semiautomatic firearm) conviction as the principal term. The court imposed the upper sentence of nine years for the principal term, the term of three years for the great bodily injury enhancement, and the term of one year eight months for the section 246 charge, for a total of 13 years eight months.
Defendant timely appealed.
II. DISCUSSION
A. Aggravated Sentence
Defendant first contends the trial court erred by imposing an upper term sentence because no aggravating factors were pled or proven as required by section 1170, subdivision (b). The Attorney General concedes the trial court abused its discretion by imposing an upper term based on a record of conviction that had not been certified, but argues the error was harmless because defendant failed to object to his criminal history and it is readily available from official records. We conclude a remand for resentencing is unnecessary.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b) to require that when a statute specifies three potential terms of imprisonment, a court must presumptively impose the middle term. (§ 1170, subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose the upper term unless aggravating circumstances "justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) Under section 1170, subdivision (b)(3), however, "the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury."
When the resentencing here took place, amended section 1170 was in effect. The trial court imposed an aggravated term of nine years on defendant's conviction for assault with a semiautomatic firearm (count IV). In imposing the upper term, the trial court gave the following explanation: "The Court [chooses] the aggravated term, primarily based on prior convictions that are set out in the presentence report, including at least one, if not two, prior felony convictions as a juvenile or sustained petitions. I should say then there was 2006, [Health and Safety Code section] 11350, then felony, now a misdemeanor. And then a 2008, [section] 245[, subdivision] (a)(1) conviction, for a three-year state prison sentence.
"The statutes indeed do discuss the record of conviction and says that the record of conviction may be shown by a certified copy of that conviction. I don't think that's the exclusive way of showing it. [¶] No. 1, it's in the presentence report, which wasn't objected to. [¶] No. 2, in reading the preliminary hearing, the underlying basis of a Penal Code Section 29800 felony was held to answer, underlying basis of that, that is the prior predicate felony, was the 2008 Penal Code Section 245[, subdivision] (a)(1) felony conviction.
"So the Court's satisfied that the proving up the prior convictions for [defendant] has been adequate for the purposes of sentencing. [¶] And given the other factors in aggravation and the facts and circumstances of this case, the Court's going to oppose [sic] the nine years in state prison."
Defendant asserts that the trial court erred by relying on the probation report and the preliminary hearing magistrate's holding order, because neither qualifies as a "certified record of conviction" under section 1170. The Attorney General concedes the error but argues it was harmless.
As an initial matter, we conclude defendant has forfeited any argument on appeal based on the failure to obtain certified records of the prior convictions. We recognize that under the new law, the presentence report would not suffice as evidence of defendant's prior sustained juvenile petitions, prior conviction, and prior prison term. "[A] probation report is not a certified record" (People v. Falcon (2023) 92 Cal.App.5th 911, 953 (Falcon), review granted Sept. 13, 2023, S281242), and therefore not within the section 1170, subdivision (b)(3) exception to the requirement of jury findings or proof beyond a reasonable doubt.
However, because defendant did not object to the trial court's reliance on the probation report in lieu of certified records of conviction, he has forfeited that issue on appeal. (Evid. Code, § 353, subd. (a); see People v. Achane (2023) 92 Cal.App.5th 1037, 1043-1044.) Nor has defendant asserted, either below or on appeal, that the probation report is inaccurate as to his criminal history.
" 'A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial.'" (People v. Scott (2015) 61 Cal.4th 363, 406 (Scott); People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [" 'Claims of error relating to sentences "which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" are waived on appeal if not first raised in the trial court.'" (italics omitted)].) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." '" '" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Defendant's resentencing took place eight months after the new law went into effect, and therefore the policy reasons underlying the forfeiture doctrine fully support its application with respect to the certified record of conviction requirement in this case. Defendant may not remain silent in the trial court when sentenced and then seek to rely on a requirement that was in effect at the time to obtain appellate relief.
Here, the record reflects that the parties and the trial court were well aware of the statutory requirements. First, defendant's resentencing memo to the court before the hearing expressly relied on amended section 1170. The trial court acknowledged at the hearing that section 1170 allows for proof by certified records of conviction, but indicated defendant's criminal history was contained in the presentence report, "which wasn't objected to." Further, though the Attorney General offered to obtain certified records of conviction if necessary, defendant's counsel objected to any further continuance. In light of these facts, we conclude defendant has forfeited any argument on appeal that his prior convictions had to be proven by certified records.
As defendant recognizes, the probation report shows three sustained juvenile petitions: one for robbery and assault with a deadly weapon in January 2003, one for assault with a firearm in November 2003, and one for possession of cocaine and marijuana in 2006, as well as a 2008 adult conviction for section 245, subdivision (a)(1), for which defendant served a three-year prison term. On this record, the trial court could properly rely on at least two aggravating factors in imposing an upper term sentence: (1) defendant's prior convictions as an adult or sustained juvenile delinquency petitions were numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), and (2) defendant had served a prior prison term (id., rule 4.421(b)(3)). (See Scott, supra, 61 Cal.4th at p. 405 [prior conviction exception extends to facts about numerosity or seriousness of prior convictions]; People v. Towne (2008) 44 Cal.4th 63, 75, 79-82 [findings that defendant's prior convictions are numerous or of increasing seriousness and prior prison term may be determined by record of prior convictions]; People v. Wiley (Nov. 29, 2023, A165613) Cal.App.5th [2023 Cal.App.Lexis 926 at p. *11; 2023 WL 8252049 at p. *5] [prior conviction exception under § 1170, subd. (b)(3) includes fact of prior conviction and" 'other related issues' "].)
As defendant notes, at the time the petitions were sustained the possession offenses were felonies but they are now misdemeanors. (Health & Saf. Code, § 11350.)
We also agree with defendant that the record reflects the trial court may have relied on impermissible factors. In addition to defendant's criminal history, the court indicated it was imposing an upper term sentence based on "the other factors in aggravation and the facts and circumstances of this case," but it gave no indication what the other aggravating factors or facts and circumstances were. To the extent the court was referring to statements in the probation report or the preliminary hearing testimony, neither would suffice as they were not stipulated to by defendant or found true beyond a reasonable doubt at trial. (§ 1170, subd. (b)(2).) And while defendant's counsel stipulated at the time of defendant's plea that the preliminary hearing transcript provided a factual basis for the elements of the crimes, that stipulation did not establish the truth of the testimony contained therein or admit to unidentified aggravating circumstances. (People v. French (2008) 43 Cal.4th 36, 50-52 [stipulation to factual basis for plea did not constitute admission to aggravating circumstance]; People v. Rivera (2021) 62 Cal.App.5th 217, 235 [stipulation to factual basis for plea is not binding admission for all purposes].)
The parties discuss a variety of harmless error approaches taken by appellate courts in recent cases when trial courts impose upper term sentences based on aggravating circumstances not properly determined under amended section 1170, subdivision (b), noting the issue is currently pending before the California Supreme Court. (People v. Lynch (May 27, 2022, C094174 [nonpub. opn.], review granted Aug. 10, 2022, S274942.) We need not weigh in on the split of authority, however, because all of those cases, unlike this one, involve retroactive application of the new law. (See People v. Lopez (2022) 78 Cal.App.5th 459, 464-465; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109; People v. Dunn (2022) 81 Cal.App.5th 394, 403, review granted Oct. 12, 2022, S275655; People v. Falcon, supra, 92 Cal.App.5th at pp. 921, 950-951, review granted Sept. 13, 2023, S281242.) As we have explained above, the amendments to section 1170 had already been in effect for eight months at the time of resentencing and the trial court was clearly aware of the change in the law. Because the trial court knew about the limits imposed on its sentencing discretion and relied on two proper factors, application of the state law standard for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836 is more straightforward here. (See, e.g., Falcon, at p. 950 [noting Watson harmless error test has been applied when a sentencing court considered improper sentencing factors under statutory scheme that had not changed in interim].)
"When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492.) A reasonable probability of a more favorable result exists where the improper factor was determinative for the sentencing court or where the reviewing court cannot determine whether the improper factor was determinative. (People v. Avalos (1984) 37 Cal.3d 216, 233; see People v. McDaniels (2018) 22 Cal.App.5th 420, 426 ["When a trial court has abused its discretion in choosing among available sentencing options, such as by relying on an improper sentencing factor, a reviewing court must still affirm unless 'the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.) In these situations, the trial court has revealed which sentencing choice it prefers, and the reviewing court must decide whether there is a reasonable probability that the trial court's lawful exercise of discretion on remand will lead it to make a different choice."]; In re F.M. (2023) 14 Cal.5th 701, 715 [Watson standard has been applied to sentencing error in adult criminal cases where trial court is aware of its discretion at sentencing].)
Here, the trial court indicated it was relying "primarily" on defendant's prior convictions in imposing the upper term sentence. As we have discussed, the trial court could properly rely on defendant's criminal history to support two aggravating factors. Because the trial court was aware of the new requirements at the time of resentencing, and gave primary weight to those proper sentencing factors, we conclude it is not reasonably probable defendant would obtain a more favorable result were we to remand for resentencing.
We reject defendant's other arguments of error with respect to imposition of the upper term. Defendant argues we should conclude an aggravated sentence was not justified "more than 14 years after the most recent conviction and in light of [defendant's] impressive achievements in the years since his arrest in this case," citing People v. Yanaga (2020) 58 Cal.App.5th 619, 625-627 for the proposition that at resentencing, the court must consider all information concerning defendant's behavior since the original sentencing. Here, however, the record reflects defendant's counsel submitted ample evidence of his postconviction programming and the court heard from both defendant and his counsel at the hearing regarding his rehabilitative efforts in prison. Nothing in the record indicates the court failed to consider this information in making its sentencing choices.
Defendant also contends this point is "underscored" by the new guidelines regarding prior conviction enhancements in section 1385, which discourage imposition of sentence on enhancements based on juvenile sustained petitions and prior convictions that are more than five years old. (§ 1385, subd. (c)(2)(G) &(H).) But defendant acknowledges this case does not involve imposition of sentence on prior conviction enhancements under section 1385. In any event, the trial court expressly declined to exercise any discretion under section 1385.
Finally, defendant contends the trial court improperly relied on People v. Howard (2020) 50 Cal.App.5th 727 and People v. Silva (2021) 72 Cal.App.5th 505 to justify imposition of an upper term sentence based on factors in aggravation that were never proven. But we agree with the Attorney General that the trial court relied on those cases as authority for redesignating defendant's vacated voluntary manslaughter conviction, not as authority for imposing an aggravated term.
In sum, because defendant forfeited his objection to the trial court's reliance on the probation report in lieu of obtaining certified records of his prior convictions and the trial court indicated it was relying "primarily" on proper factors to impose an aggravated sentence, we conclude it is not reasonably probable that the trial court would choose a lesser sentence on remand.
B. Due Process and Double Jeopardy
Defendant next contends that because he pled guilty to count IV as a subordinate term pursuant to his plea bargain, the trial court's redesignation of that count as the principal term violated his right to due process and the prohibition against double jeopardy under the California Constitution. Defendant asserts that he has relied on the terms of the plea agreement, and because he did not challenge the validity of the plea itself or the validity of count IV, its designation as the subordinate term must remain intact. By instead designating count IV as the principal term, the court effectively increased defendant's negotiated sentence of one year eight months to the upper term of nine years plus three years for the great bodily injury allegation, violating double jeopardy.
"Double jeopardy bars successive trials for the same offense but allows retrial of a defendant whose first conviction is set aside through direct appeal or collateral attack for reasons other than legal insufficiency of the evidence. (In re Cruz (2003) 104 Cal.App.4th 1339, 1344-1345; Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 714 [guilty plea bars subsequent prosecution for same offense].) A section 1172.6 petition, however," 'involves a resentencing procedure, not a new prosecution.'" (People v. Hernandez (2021) 60 Cal.App.5th 94, 111 (Hernandez).) "The retroactive relief provided by section [1172.6] is a legislative 'act of lenity' intended to give defendants serving otherwise final sentences the benefit of ameliorative changes to applicable criminal laws and does not result in a new trial or increased punishment that could implicate the double jeopardy clause." (Id. at p. 111; People v. Flint (2022) 75 Cal.App.5th 607, 618 (Flint) [rejecting defendant's double jeopardy claim under federal and state Constitutions].)
Under section 1172.6, a defendant eligible to have a manslaughter conviction vacated is resentenced "on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence . . . is not greater than the initial sentence." (§ 1172.6, subd. (d)(1); id., subd. (d)(3) [if prosecution fails to sustain burden of proof, the conviction is vacated and "the petitioner shall be resentenced on the remaining charges"].) Section 1172.6, subdivision (e) further requires that "[t]he petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged." Under that authority, the trial court appropriately vacated defendant's voluntary manslaughter conviction, redesignated it as a conviction for shooting at an occupied vehicle, and resentenced defendant, selecting his existing conviction on count IV as the principal term and his conviction for shooting at an occupied vehicle as the subordinate term. The new sentence, 13 years eight months, did not exceed the initial sentence of 17 years. (See § 1172.6, subd. (d)(1).)
We address below defendant's contention that the shooting at an occupied vehicle offense was not supported by substantial evidence.
Defendant cites authority not involving section 1172.6 in support of his argument that the prosecution is required to strictly adhere to the terms of a plea bargain made with a defendant, but defendant also acknowledges an exception to that rule when there is a change in the law, citing Doe v. Harris (2013) 57 Cal.4th 64, 71. Here, the statute effecting a change in law expressly states that it applies to petitioners convicted of manslaughter after "accept[ing] a plea offer in lieu of a trial" (§ 1172.6, subd. (a)(2)), and expressly allows the court to resentence the defendant on "any remaining counts in the same manner as if the petitioner had not previously been sentenced" after vacating the murder or manslaughter conviction (id., subd. (d)(1)). That is what the trial court did in this case.
Next, defendant relies on People v. Craig (1998) 66 Cal.App.4th 1444, People v. Jones (1994) 24 Cal.App.4th 1780, and People v. Price (1986) 184 Cal.App.3d 1405 , to argue that the redesignation of count IV as the principal term violated both double jeopardy and due process because it vindictively sought to increase defendant's sentence on count IV after defendant lawfully and successfully challenged his conviction. He contends the same concerns present in those cases apply here, where the increased sentence on a count he never challenged functionally penalizes his successful challenge to his voluntary manslaughter conviction. These cases are inapposite, however, because they concerned the prohibition under the California Constitution, article I, section 15, on imposition of a greater sentence on remand following an appeal. (See Craig, at p. 1448 [on reconviction following successful appeal defendant may not be subject to aggregate sentence greater than sentence imposed at first trial]; Jones, at p. 1785 [trial court could not impose increased restitution fine after successful appeal]; Price, at p. 1413 [on remand from successful appeal, trial court could not increase sentence on robbery count].) Here, defendant was not being resentenced on remand following a successful appeal, but invoked the process under section 1172.6, which expressly authorizes the trial court to resentence a defendant on remaining charges where a conviction was obtained by plea. (See Hernandez, supra, 60 Cal.App.5th at p. 111 [double jeopardy does not apply to resentencing under § 1172.6]; Flint, supra, 75 Cal.App.5th at p. 618 [same].) Defendant has failed to show that his constitutional rights were violated by the trial court's designation of count IV as the principal term.
C . Substantial Evidence
Defendant next contends that the redesignated target offense, shooting at an occupied vehicle (§ 246), is unsupported by sufficient evidence because it is based on the same facts as the voluntary manslaughter conviction, which the prosecution admitted could not be proven beyond a reasonable doubt. Accordingly, defendant contends, the section 246 violation must be dismissed for insufficient evidence.
As discussed previously, under section 1172.6, subdivision (e), if murder was charged generically in the information and the target offense was not charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes. (See People v. Silva (2021) 72 Cal.App.5th 505, 517 (Silva).) A target offense that was dismissed pursuant to a plea agreement at the original sentencing constitutes a target offense that was not charged for section 1172.6 resentencing purposes. (People v. Arellano (2022) 86 Cal.App.5th 418, 432, review granted Mar. 15, 2023, S277962.)
At resentencing, the burden is on the prosecution to prove any redesignated crimes because designation of a new crime in lieu of a murder conviction is analogous to a criminal conviction. (Silva, supra, 72 Cal.App.5th at pp. 526-527.) In In re I.A. (2020) 48 Cal.App.5th 767, the court concluded "[f]ull and effective appellate review" requires that redesignated offenses were "proven beyond a reasonable doubt" and "are supported by substantial evidence on appeal." (Id. at p. 775; see Silva, at pp. 533-534 (conc. opn. of Streeter, J.) [discussing why beyond a reasonable doubt standard is compelled both as a matter of constitutional due process and statutory interpretation]; but see id., at p. 527 (maj. opn. of Pollak, P. J.) [declining to decide which standard of proof-preponderance of the evidence, clear and convincing proof, or proof beyond a reasonable doubt-applies to redesignation of target offense];) The trial court sits as the trier of fact in section 1172.6 proceedings, and its findings will be upheld on appeal if supported by substantial evidence. (Silva, at pp. 529-530; People v. Del Rio (2023) 94 Cal.App.5th 47, 56 (Del Rio) [redesignated robbery conviction was not supported by substantial evidence based on hearsay in probation report].)
Both parties assume the application of the beyond a reasonable doubt standard in their briefing on appeal, and do not argue for a different standard.
"In reviewing for substantial evidence, we view the evidence in the light most favorable to the prosecution. [Citation.] To constitute substantial evidence, the evidence must be 'reasonable, credible, and of solid value.'" (Del Rio, supra, 94 Cal.App.5th at p. 56.) We review the evidence "in the light most favorable to the prosecution and presume in support of the [findings] the existence of every fact the [court] could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
As an initial matter, the Attorney General asserts that defendant is mistaken that the prosecutor conceded that the evidence could not prove defendant guilty beyond a reasonable doubt, and argues the "prosecutor merely stipulated that the evidence could not prove [defendant] was either the actual shooter or an aider and abettor who acted with the malice aforethought required to be convicted of the target offense of manslaughter." The Attorney General's argument is not supported by the record in this case. In its supplemental response to the petition for resentencing, the prosecution conceded not only that it could not prove that defendant was not the actual shooter or a major participant acting with reckless indifference, but also that it could not prove the section 246 violation. Specifically, the prosecution acknowledged that section 1172.6 would allow for redesignation of section 246 as the target offense or underlying felony, but stated: "The People do believe, however, that there must be evidence of that redesignated crime within the evidence before this Court, as is required of any enhancements and concede that we cannot prove such beyond a reasonable doubt upon current known evidence. [Defendant's] guilty plea stipulation of a factual basis was based upon the preliminary hearing transcript, without any other specifics provided." On this record, we agree with defendant that the prosecution conceded there was insufficient evidence to support redesignation of section 246 as the target offense or underlying felony to replace the vacated voluntary manslaughter conviction.
We also disagree with the Attorney General's suggestion that the trial court may have rejected the prosecution's concession as improvident. Nowhere in the transcript of the resentencing does the trial court mention the prosecution's concession that it could not prove the section 246 violation beyond a reasonable doubt, nor explain why such a concession would be inappropriate.
Our review in this case is also complicated by the fact that the trial court made no factual findings when resentencing defendant based on the section 246 violation. (See, e.g., Del Rio, supra, 94 Cal.App.5th at p. 56 [trial court failed to make factual findings at § 1172.6 hearing before convicting the defendant of robbery]; Silva, supra, 72 Cal.App.5th at p. 530 [where trial court redesignates offense based on underlying felony or target offense never charged, court must make factual findings on the defendant's guilt].) Nonetheless, on the record before us, we agree with defendant and the prosecution's concession below that there is insufficient evidence in the record of conviction to support redesignation of the section 246 offense as the target offense or underlying felony in place of the vacated voluntary manslaughter conviction.
The Attorney General contends that even if there is insufficient evidence from which to identify defendant as the shooter, there is evidence from which the trial court could have found beyond a reasonable doubt that defendant was guilty of aiding and abetting the perpetrator in shooting at an occupied vehicle. "Generally, to be convicted under an aiding and abetting theory, a defendant must '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.'" (People v. White (2014) 230 Cal.App.4th 305, 317, quoting People v. Beeman (1984) 35 Cal.3d 547, 560.) Because shooting at an occupied vehicle is a general intent crime, the Attorney General contends, defendant "need only knowingly and intentionally facilitate the direct perpetrator's commission of the crime, without intending some additional result or consequence not required for the crime." (White, at p. 317.) "Factors relevant to a determination of whether [a] defendant [is] guilty of aiding and abetting include: presence at the scene of the crime, companionship, and conduct before and after the offense." (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)
The only evidence the Attorney General relies on here is (1) the testimony of numerous police officers at the preliminary hearing that they had reviewed surveillance camera footage and identified defendant as one of four occupants of the suspect vehicle, (2) defendant's admission to being in the area on the night of the shooting, and (3) his guilty plea to being a principal armed with a firearm during the commission of a felony on the voluntary manslaughter charge.
As defendant notes, however, the testimony of the officers identifying defendant in the surveillance video is not from the video of the shooting, but video showing defendant emerge from the suspect vehicle at a different location at least a block away. Further, defendant's admission that he was in the area on the night of the shooting is not substantial evidence of his involvement because he admitted only that he was at the club that night, not that he was present during the shooting. In addition, the only eyewitness to the shooting was unable to identify defendant in two photo lineups, though she identified someone else who was not defendant. The Attorney General argues we may rely on defendant's admission to being a principal in possession of a firearm during the commission of the felony, but cites no authority in support of the contention that a guilty plea on an enhancement to a vacated conviction suffices as proof of guilt for redesignation. Because the Attorney General points us to no other evidence in the record, and the available evidence fails to show defendant was even present at the scene of the crime, we conclude insufficient evidence supports the redesignation of section 246 as the target offense and reversal is required.
D. Youth and Childhood Trauma
At the conclusion of his opening brief, defendant includes a section arguing that the maximum sentence that may be imposed in this case is nine years based on his contentions that the trial court erred in imposing the upper term on count IV and count 11 is unsupported by substantial evidence. In passing, defendant also states: "However, in light of [defendant's] childhood trauma, his youth, the great strides made during his time in custody and excellent reentry plan, as set forth in Petitioner's Resentencing Memorandum, the lower term of three years should be imposed." The Attorney General responds to this statement by asserting that defendant argued the trial court abused its discretion in failing to impose a mitigated term based on defendant's youth and childhood trauma under section 1170, subdivision (b)(6). We do not read defendant's brief to raise such a contention, let alone provide a fully developed argument with applicable points and authorities. Accordingly, we will not address it. (People v Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "]; Cal. Rules of Court, rule 8.204(a)(1)(B).)
We observe even in his reply brief, defendant does not assert that the trial court abused its discretion in declining to impose the lower term-only that there is an absence of evidence of aggravating circumstances in this case.
III. DISPOSITION
The judgment is modified to reverse defendant's count 11 conviction and the trial court is directed to vacate the one-year eight-month sentence on count 11. The trial court shall prepare an amended abstract of judgment reflecting the modified sentence and forward a copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.