People v. Jackson CA1/4

Filed 9/28/22 P. v. Jackson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A161383
v.
GREGORY JACKSON, (Alameda County
Super. Ct. No. 62885)
Defendant and Appellant.

Defendant Gregory Jackson appeals from the denial of his petition to
vacate his convictions for first degree murder and for resentencing. We find
no error and affirm.
Background
On March 16, 1977, a jury found defendant guilty of two counts of first
degree murder and one count of first degree burglary. Defendant was
sentenced to two terms of life in prison, with the sentence stayed on the
burglary count. His convictions and sentence were affirmed by this court.
(People v. Jackson (May 10, 1978, 1 Crim. No. 16903) [nonpub. opn.].)
In 2018, Senate Bill No. 1437 was enacted to “amend the felony murder
rule . . . 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(f).) Senate Bill No. 1437 amended

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Penal Code section 1881 to require that a principal act with express or
implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and
amended section 189 to state that a person can be liable for felony murder
only if the person (1) “was the actual killer”; (2) with an intent to kill, was an
aider or abettor in the commission of murder in the first degree; or (3) “was a
major participant in the underlying felony and acted with reckless
indifference to human life . . . .” (§ 189, subd. (e), as amended by Stats. 2018,
ch. 1015, § 3.) Senate Bill No. 1437 also added a provision authorizing a
petition to have a felony murder conviction vacated and to be resentenced on
any remaining counts if the petitioner could not presently be convicted of
murder under the changes to section 188 or 189. (Former § 1170.95,
subd. (a).)2
On January 7, 2019, defendant filed a petition seeking to vacate his
murder convictions and for resentencing. His petition alleges that he was
convicted of two counts of first degree felony murder, was not the actual
killer, did not act with an intent to kill, was not a major participant in the
felony, and did not act with reckless indifference to human life during the
commission of the crimes. The superior court appointed counsel and set a
briefing schedule.
The prosecution opposed the petition, arguing that defendant was a
major participant in the burglary during which two persons were murdered
and that he acted with reckless indifference to human life during the
commission of the crimes. In addition to defendant’s signed written

1 All statutory references are to the Penal Code unless otherwise noted.
2 Defendant’s petition was filed under former section 1170.95. Section
1170.95 was renumbered as section 1172.6 effective June 30, 2022.
(Stats. 2022, ch. 58, § 10.)

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confession, the prosecution submitted the following documents with the
opposition: the September 27, 1976 information; this court’s 1978
nonpublished opinion in People v. Jackson; the prosecutor’s section 1203.01
statement;3 handwritten notes by the original prosecutor and the detective
who interviewed defendant in 1976; and transcripts of 1976 police interviews
with defendant.
The superior court issued an order to show cause, heard argument, and
denied the petition for resentencing. The court found that defendant was a
major participant in the burglary and had exhibited reckless indifference to
human life. As the trial court observed, because this case is old we do not
have the benefit of full transcripts from which to draw a factual record.
Nonetheless, the court considered defendant’s signed confession to police,
which was admitted into evidence at trial, to provide an adequate factual
history.
Defendant’s statement reads in relevant part: “I was at my house last
Saturday night. I was having a party . . . . It was at about 12:30-1:00 a.m.
Sunday morning when Jody Toussaint came over. . . . [¶] Jody ask me to come
outside. I did and he asked me who was at home next door. I said ‘I guess not’
cuz only one light was on and no cars were in the driveway. Jody said let’s go
make some money. . . . [¶] Jody and I both had gloves on. We hopped the
fence and went into the garage. I looked into the freezer and closed it. I guess
the lady heard us and we tried to hide under the pool table. She told us to get

3 Section 1203.01 authorizes the district attorney to file with the clerk of
the court “a brief statement of their views respecting the person convicted or
sentenced and the crime committed, together with any reports the probation
officer may have filed relative to the prisoner” which is then to be forwarded
by the clerk to “the Department of Corrections and Rehabilitation at the
prison or other institution to which the person convicted is delivered.”

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away from there. [¶] I told Jody that we should get out of there. Jody said to
me ‘Greg, I’m going to kill her.’ He snatched a wrench from somewhere by the
back wall as you walk in. He broke the window out of the door and went into
the house. I followed him in. [¶] The lady was screaming ‘get out of my house,
get out of my house.’ She was right between the kitchen and the hallway. She
started backing up into the hallway trying to get away. Jody caught her in
the hallway and hit her with the wrench 4 or 5 times. [¶] While he was
hitting her I went into Linda’s room. I didn’t find nothing in there. Jody came
into the room and asked what did I find. Then he went into the kitchen and
got a knife. I went into the mother’s room looking for money. Jody went back
into the old man’s room and stabbed him. [¶] I saw them struggling in the
bedroom and Jody had the man by the head. Jody held his face down with the
glove and stuck him in the head with the knife. [¶] The woman just screamed
real loud when Jody stuck him. The man didn’t make no noise and he fell
down between the beds. [¶] I took a radio, [seven $1] bills, and a $2 bill that
was torn in half. Jody came back in the room and asked if I found anything.
The lady started screaming again and Jody started beating her again.
[¶] Jody thought she was dead because she was laying in the hall. Jody
started searching around in the mother’s room and got a red and black
jewelry box. [¶] Then we left together and hopped the fence back to my house.
We were at the other house [in] about 10 min.”
Based on defendant’s statement, the trial court found that defendant
was “a major participa[nt] in this burglary and that he acted with reckless
indifference to human life because he knew before he went in the house the
plan was to kill the woman,” he “witnessed both killings, did nothing to
render aid to either victim” and “[i]nstead continued to ransack the house,
looking for valuables to steal.”

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 Defendant timely filed a notice of appeal.
Discussion
1. Substantial evidence supports the court’s finding that defendant is
ineligible for resentencing.
Section 1172.6, subdivision (d)(3) reads in relevant part: “At the
hearing to determine whether the petitioner is entitled to relief, the burden of
proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under California law
as amended by the changes to Section 188 or 189 made effective January 1,
2019. 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 prosecutor and the
petitioner may also offer new or additional evidence to meet their respective
burdens. A finding that there is substantial evidence to support a conviction
for murder . . . is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. If the prosecution fails to sustain its
burden of proof, 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.”
Defendant contends the court erred in relying on inadmissible evidence
to deny his petition. Although he challenges the admissibility of all of the
documents submitted by the prosecution, he focuses his appellate argument

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on just two documents: the prosecutor’s section 1203.01 statement and his
written confession. We need not consider the admissibility of the prosecutor’s
statement under section 1203.01 because defendant’s confession was properly
considered and amply supports the court’s findings. Any error with regard to
the admission of the other documents was harmless.
Defendant acknowledges that his confession would likely be admissible
as a statement against penal interest (Evid. Code, § 1230), or under another
applicable hearsay exception, if a proper foundation for admission of the
statement had been laid. He argues that “[p]erhaps such a foundation could
have been laid, since it was asserted that the detective who took the
statement was then an Inspector with the District Attorney’s Office[, but] . . .
no foundation has been laid thus far.”
As the Attorney General notes, at the hearing on the instant petition
defendant did not object to the admissibility of the confession. The parties
dispute whether the failure to object forfeited defendant’s challenge on
appeal. The Attorney General cites the general rule that a defendant may not
challenge the admissibility of evidence on appeal if he or she failed to raise a
proper objection on those grounds in the trial court. (See Evid. Code, § 353,
subd. (a) [error in admitting evidence may not be basis for reversal of
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”]; People v. Anderson (2001) 25 Cal.4th 543,
586 [“a challenge to the admission of evidence is not preserved for appeal
unless a specific and timely objection was made below”].)
Defendant contends the general rule is not applicable where, as in this
case, the law at the time of the ruling did not allow for an objection based on
lack of foundation. (See People v. Black (2007) 41 Cal.4th 799, 810 [“We long

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have applied the rule that although challenges . . . to the admission of
evidence normally are forfeited unless timely raised in the trial court, ‘this is
not so when the pertinent law later changed so unforeseeably that it is
unreasonable to expect trial counsel to have anticipated the change.’ ”].) He
argues that, as of the time of the hearing on his petition, former section
1170.95, subdivision (d)(3) had been interpreted by Division Three of this
court as giving “the superior court unfettered discretion to consider ‘evidence’
without any restriction at the subdivision (d)(3) hearing to determine the
petitioner’s eligibility for resentencing.” (People v. Williams (2020) 57
Cal.App.5th 652, 661.)
Whether or not there has been a forfeiture, the statement was properly
admitted under the current version of the statute. Section 1172.6, subdivision
(d)(3), quoted in full above, expressly authorizes the trial court to “consider
evidence previously admitted at any prior . . . trial that is admissible under
current law.” As acknowledged by defendant, a defendant’s statements to the
police are admissible under various exceptions to the hearsay rule recognized
under current law. We do not read section 1172.6 to require the prosecution
to reestablish the admissibility of evidence previously admitted at the
defendant’s trial. To the contrary, previously admitted evidence is an express
exception to the rule that the admission of evidence at the hearing is
otherwise governed by the Evidence Code. Because the statement was
admitted at defendant’s trial, a proper foundation presumably was laid at
that time. Nothing in the record suggests otherwise. 4

4 Defendant’s confession was marked as trial exhibit No. 255. The exhibit
tag, signed by the superior court clerk, indicates that the exhibit was marked
for identification on March 14, 1977, and admitted into evidence on March
15, 1977.

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 Defendant does not dispute that what he acknowledged in the
confession is sufficient to negate his eligibility for resentencing. The
confession demonstrates that he was aware the burglary posed a grave risk of
death—when his codefendant told him he was “going to kill” the “lady” who
appeared in the garage—and reckless indifference to human life, when he
observed both killings without attempting to intervene or assist the victims.
To the extent that additional details cited by the court may have been
drawn from the prosecutor’s statement, any potential error was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 836.) Details regarding the female
victim’s age, weight and height were not critical to the court’s determination.
The trial court’s description of her beating as “horrible” and an “awful violent
horrendous” beating are fully supported by defendant’s confession, without
regard to the prosecutor’s statement. There is no reasonable likelihood that
the result would have been more favorable to defendant had the prosecutor’s
statement, or any of the evidence other than defendant’s confession, been
excluded.
2. Defendant’s age at the time of the offense was properly considered by the
court.
Defendant contends the trial court did not give any consideration to the
fact that he was a minor at the time of the offenses.5 He requests a remand to
allow the court to consider his youth in evaluating whether he acted with
reckless indifference to human life. (See People v. Ramirez (2021) 71
Cal.App.5th 970, 991 [“A juvenile’s immaturity and failure to appreciate the
risks and consequences of his or her actions bear directly on the question
whether the juvenile is subjectively ‘ “aware of and willingly involved in the

5 Although the record does not reveal defendant’s precise age at the time
of the offenses, it is clear he was then a minor.

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violent manner in which the particular offense is committed” ’ and has
‘consciously disregard[ed] “the significant risk of death his or her actions
create.” ’ ”]; In re Moore (2021) 68 Cal.App.5th 434, 454 [“defendant’s youth is
a relevant factor in determining whether the defendant acted with reckless
indifference to human life”].)
The record demonstrates, however, that the court was fully aware that
defendant was a minor at the time of the offenses. As the Attorney General
notes, the superior court file contained numerous statements referencing
defendant’s youth at the time of the crimes and the court expressly stated
that it had read the case file. In addition, defendant’s youth was raised by the
prosecutor at an early hearing on the resentencing petition. In discussing the
limited factual record on which to rely the prosecutor stated, “My issue with
this one -- I mean, he's been in custody since 1976, and he was a kid at the
time, but he’s been eligible for parole since the early '80s because he was
sentenced under the old scheme, and so if this were a case [where he] had
been [sentenced to life without the possibility of parole] as a kid in the '70s, I
might be willing to discuss something where he could at least have the
opportunity for parole, but he has had the opportunity for parole for like 37,
38 years and has not been able to do what he needs to do to get released, and
so that’s -- you know, that’s not our issue. That’s his issue with the parole
board, but I don't think that just because he hasn’t been able to work his way
out on parole that that means that I'm willing to say, oh, I don't think what
he did here qualifies as a murder under this rule. I don't think he’s entitled to
relief under section 1170.95.”
The court’s failure to expressly address defendant’s youth in its ruling
does not require remand. The court’s implicit finding that defendant’s youth
did not preclude a finding that he acted with reckless disregard is supported

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by substantial evidence. In In re Moore, supra, 68 Cal.App.5th at page 454,
the court observed that “the ‘hallmark features’ of youth—‘among them,
immaturity, impetuosity, and failure to appreciate risks and consequences’ ”
are “arguably more germane to a juvenile’s mental state than to his or her
conduct.” The facts of that case were critically different. There, the defendant
participated in the theft of a car and was present when a codefendant got out
of the car and robbed a couple in a parking lot. (Id. at p. 440.) After the
couple handed over their valuables, the codefendant without provocation shot
and killed one of the victims. (Ibid.) The court reasonably found that the 16-
year-old defendant “lacked ‘ “the experience, perspective, and judgment” ’ to
adequately appreciate the risk of death posed by his criminal activities.” (Id.
at p. 454; see also People v. Ramirez, supra, 71 Cal.App.5th at p. 991
[defendant’s “age may well have affected his calculation of the risk of death
posed by using the firearm in the carjacking, as well as his willingness to
abandon the crime”].) Here, however, defendant admitted that his friend told
him he was going to kill the female victim and that he observed him grab a
wrench before they entered the house. His youthfulness had nothing to do
with his appreciation of the risk of death under these circumstances. (See In
re Harper (2022) 76 Cal.App.5th 450, 471–472 [defendant’s youth did not
undermine finding that defendant acted with reckless disregard for human
life where facts establish that defendant “willingly participated in the
robbery despite knowing there was a very high risk—if not a certainty—the
victim would die”].)
Disposition
The order denying defendant’s petition is affirmed.

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 POLLAK, P. J.

WE CONCUR:

STREETER, J.
BROWN, J.

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