People v. Tracchia CA2/2

Filed 1/18/23 P. v. Tracchia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B315752

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA033116)
v.

GLENN MATTHEW
TRACCHIA, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Glenn Matthew Tracchia, Jr.
(defendant), appeals from the order denying his petition filed
pursuant to Penal Code former section 1170.95 (now § 1172.6).1
Defendant contends the trial court erred by treating the
evidentiary hearing held pursuant to section 1172.6, subdivision
(d) as a trial de novo, and certain of the trial court’s findings are
subject to issue preclusion under the principles of res judicata
and collateral estoppel. Defendant also contends the trial court
applied an erroneous standard of proof at the evidentiary
hearing, and this court should conduct its own independent
review of the record to determine whether the prosecution met its
burden of proof. We find no merit to defendant’s contentions and
thus affirm the order.

BACKGROUND
In 1997 defendant and his codefendant Steve Erenesto
Mejico were each convicted by a jury of the second degree murder
of Robert Imperial with true findings that a principal was armed
with a firearm and that the murder was committed for the
benefit of, at the direction of, and in association with a criminal
street gang with the specific intent to promote and assist in
criminal conduct by gang members. Defendant was sentenced to
16 years to life in prison. We affirmed the judgment in People v.
Tracchia (B117379, Oct. 19, 1998) (nonpub. opn.).

1 Effective June 30, 2022, Penal Code former section 1170.95
was renumbered section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.) For the sake of simplicity, we will refer to the
section by its new number.
All further unattributed code sections are to the Penal Code
unless otherwise stated.

2
Relevant 1997 trial evidence2
The parties stipulated at trial that the Dogpatch gang is a
criminal street gang. The prosecution’s gang expert, Los Angeles
County Sheriff’s Deputy Tommy Harris, testified that he was
familiar with the Dogpatch gang, which committed crimes such
as robberies, burglaries, narcotics offenses, and assaults. He
added that crimes against other gang members were usually
assaultive. David Valdez, who was also convicted of Imperial’s
murder, was an admitted member of the gang, as were defendant
and Mejico. Deputy Harris testified that respect in gang culture
is important, and if the member of one gang disrespects another
gang or one of its members, it can precipitate a rivalry.3 It is
common when a gang or one of its members is disrespected that
other members of that gang will try to regain respect by fighting
with members of the rival gang, leading to greater violence.
Regaining respect can range from “fighting or jumping somebody,
all the way to murder.” It is also common for gang members to
carry weapons, mostly handguns.
On July 15, 1996, Imperial, his cousin Thomas Fierro and
his cousin’s friend Tom Bushnell went to Valdez’s house.
Bushnell was a tattoo artist and Valdez a client. Neither
Bushnell nor Fierro belonged to a gang. When Bushnell
introduced his companions, Valdez said to Imperial, “This is
Dogpatch. Where are you from?” Imperial replied he was from
La Mirada, meaning the Varrio La Mirada gang. After drinking

2 We summarize the evidence from our own review of the
1997 transcripts in order to add context to our discussion.
3 Deputy Harris explained that the question, “Where are you
from?” is intended to mean “what gang do you belong to?”

3
beer and smoking marijuana outside the house for approximately
45 minutes, they went inside. At some point Valdez called
Bushnell into another room and asked whether Fierro and
Imperial were both from La Mirada. Bushnell replied only
Imperial was from La Mirada and offered to leave if there was a
problem. Valdez told him not to worry, to “go ahead and kick
back.” About a half hour later first Valdez telephoned someone
and then Imperial made a call, after which Valdez again used the
telephone.
About half hour after the phone calls, a car arrived. Valdez
opened the door, and defendant, Mejico, and an unidentified man
entered the house. They introduced themselves to Fierro and
Bushnell and identified themselves as Dogpatch gang members.
Imperial told them he was “Porky” from La Mirada. Valdez,
Mejico, and the unidentified man went into the kitchen and spoke
among themselves, while defendant sat on the couch in the living
room next to Imperial and Fierro.
When Valdez, Mejico, and the unidentified man came out of
the kitchen, Mejico asked Imperial, “Where are you from again?”
When Imperial again said, “Porky from La Mirada,” Mejico
replied, “Oh, we have to talk,” or “Oh. Oh. We have to talk.”
Defendant, Mejico, Valdez, and the unidentified man positioned
themselves two in front of Imperial and two behind him and
“escorted” him outside to the front yard. One of them tried to
shut the door behind them, but Fierro kept it open and sat on the
corner of the couch so that he could watch as they stood in a
semicircle surrounding Imperial for approximately 20 minutes.
Defendant, Mejico, Valdez, and the unidentified man appeared to
be trying to explain something to Imperial, and on about four
occasions the four men would huddle together and talk, then

4
return to Imperial. At some point Fierro became concerned
because of the look on Imperial’s face, and he and Bushnell went
outside to ask what was happening. Imperial said not to worry,
that it was “just bull shit.” At Imperial’s request, Fierro and
Bushnell went back inside but kept the door open.
Valdez came inside after about 10 minutes and went into
his bedroom. Three to five minutes later he came out with a
thick jacket and returned outside. Defendant and Mejico,
followed by Imperial and then Valdez, walked toward a gray or
blue car that had not been there when Fierro had arrived at the
house. The car was later identified as the blue Buick Regal
owned by defendant’s grandmother, which defendant regularly
drove. Fierro ran outside and asked, “[W]here are you going?”
Imperial told Fierro to go back inside and Valdez said they were
going to buy beer and marijuana. Imperial got into the back seat
of the car with Valdez, while defendant and Mejico got into the
front seat, and the car sped away. The unidentified man
remained behind and appeared to be watching Fierro and
Bushnell.
About 10:00 or 10:30 that evening, Eduardo Segoviano was
walking down Wing Lane when he heard loud, angry voices and
saw two men pushing Imperial against a fence near a flood
control channel. One man was pushing Imperial, and the other
was striking him. Imperial broke away and ran in Segoviano’s
direction as the assailants chased him, and then one of the
assailants fired a gun. Segoviano hid in a yard and heard more
gunshots in quick succession. He saw flashes, but did not see the
gun or which man had the gun. After the gunfire stopped,
Segoviano heard tires spinning and the sound of a car driving

5
away. When Segoviano emerged from hiding, the men were gone.
He then saw Imperial lying in a yard.4
Another witness was in his nearby driveway when he heard
a sound “like a backfire or a gunshot.” When he looked in the
direction of the sound, he saw a Buick Regal in the middle of the
intersection with its headlights off. The witness heard two more
gunshots before he saw the car speed away.
About 15 to 20 minutes after defendant and his companions
had left with Imperial, the Buick Regal screeched to a stop in
front of Valdez’s house. (B117379 1 RT 96-97, 160)~ As Valdez
got out, the unidentified man ran outside and got into the car,
which sped away with its headlights off. Valdez hurried into the
house sweating and looking shocked. He went to the bathroom,
washed his face and hands before going into his bedroom, then
went to his roommate’s bedroom. When he came out he told
everyone to get out. Both Fierro and Bushnell asked several
times where Imperial was, but Valdez kept telling everyone to
leave without answering them.
Fierro and Bushnell went outside, where they saw Valdez
come out, go to the side of the garage, and retrieve something
wrapped in a piece of clothing. Bushnell approached and saw
that Valdez was carrying a gun wrapped in a red rag. Valdez
ordered Bushnell to “just fucking leave” and took the gun inside
the house.

4 Imperial was pronounced dead at the scene. He died from a
single gunshot wound that penetrated his back, perforated a
lung, and pierced his heart before lodging in the muscles of his
chest. The path of the bullet was consistent with being shot
while Imperial was running away.

6
 The next morning Valdez telephoned Bushnell and said,
“[H]e’s gone, huh?” Bushnell asked him, “[W]hy did you have to
kill him?” Valdez replied that he had to shoot Imperial because
“La Mirada was talking smut about Dogpatch.”
During a search of Valdez’s house a .38-caliber revolver and
ammunition were recovered from Valdez’s bedroom. An
expended bullet found at the scene of the shooting and the bullet
recovered from Imperial’s body were determined to have been
fired by Valdez’s gun. Prior to defendant’s trial Valdez pled
guilty to second degree murder. Valdez claimed defendant and
Mejico got out of the car with Imperial, and he remained in the
car, where he heard a gunshot before defendant and Mejico
returned to the car without Imperial.
Section 1172.6 proceedings
In 2018, the Legislature passed Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Senate Bill 1437), which amended the laws
pertaining to felony murder and murder under the natural and
probable consequences doctrine, “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).) The Legislature also
added what is now section 1172.6, which provides a procedure for
those convicted of murder to seek retroactive relief if they could
not be convicted under sections 188 and 189 as amended effective
January 1, 2019. (Stats. 2022, ch. 58, § 10; Stats. 2018, ch. 1015;
People v. Lewis (2021) 11 Cal.5th 952, 957.)
On January 7, 2019, defendant filed a petition for vacatur
of his murder conviction and resentencing pursuant to section
1172.6. As relevant here, the petition alleged that he had been

7
charged with murder, that he was convicted pursuant to the
natural and probable consequences doctrine, and that he could
not now be convicted of murder because of the changes made to
sections 188 and 189, effective January 1, 2019. After the trial
court summarily denied defendant’s petition, this court reversed
the order and remanded for further proceedings in People v.
Tracchia (Feb. 17, 2021, B300730) (nonpub. opn.).
On remand, the superior court received briefing from both
sides, issued an order to show cause, and held an evidentiary
hearing pursuant to subdivision (d) of section 1172.6. As
defendant presented the trial court with a facially adequate
petition, the court issued an order to show cause why relief
should not be granted and scheduled an evidentiary hearing.
(See § 1172.6, subds. (c), (d); People v. Lewis, supra, 11 Cal.5th at
p. 971.) At such an evidentiary hearing the prosecution is
required to prove beyond a reasonable doubt that defendant is
guilty of murder, attempted murder, or manslaughter under
amended sections 188 and 189. (§ 1172.6, subd. (d)(3).) The
prosecution and the petitioner are permitted to offer new or
additional evidence, and “the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law [except hearsay admitted at
preliminary hearing], including witness testimony, stipulated
evidence, and matters judicially noticed.” (§ 1172.6, subd. (d)(3).)
The trial court acts as an independent factfinder and determines
whether the prosecution has met its burden. (People v. Ramirez
(2021) 71 Cal.App.5th 970, 984 (Ramirez).) Here, neither the
prosecution nor the defense offered new evidence.
The trial court indicated it had considered the documents
submitted by the parties, selected portions of the trial testimony,

8
the appellate opinion and the argument of counsel. The court
issued a memorandum of opinion setting forth the following
factual findings:
“There is no doubt that Petitioner was present
when the decedent was killed. . . . [¶] Although it is
possible that the only thing Petitioner thought was
going to take place at this remote location was the
assault of the decedent, said interpretation of the
circumstantial evidence is not reasonable for the
following reasons.
“Upon arriving at the Valdez residence, the
decedent was immediately challenged as to his gang
affiliation. In response to Valdez’ question he stated
he was from the ‘La Mirada’ street gang. Thereafter
two phone calls followed, with Petitioner and the
other two arriving about an hour later. They went
into the kitchen and spoke. Petitioner again asked
the decedent what gang he claimed, and after the
decedent responded, he stated ‘Oh . . . we have to talk
homey.’ The discussion moved outside, and it
appeared that the decedent was trying to explain
something and had a concerned look on his face.
During the discussion the gentlemen huddled
together and spoke amongst themselves away from
the decedent.
“Immediately thereafter, Valdez went inside
the house and came out holding a jacket. The
circumstantial evidence points strongly to the fact
that Valdez went to retrieve the gun. They then
drove the decedent to a remote location where he was
killed. Valdez told Tom Bushnell shortly after the
shooting that he had killed the decedent because he
had been ‘talking smut about Dogpatch’.
“At trial Sgt. Harris testified as follows:

9
 “Q: ‘How is disrespect by one gang or one
gang member or another gang towards another gang
member answered by the gang or gang member
disrespected?’ . . .
“A: ‘Well, they’re going to go and try to
regain that respect. It could be as little as fighting or
jumping somebody, all the way to murder’.
“There appears to be no logical reason for
taking the decedent to a remote location if the intent
was simply to assault him. They were at Valdez’
private residence and the assault could have taken
place right there and then. Furthermore, there
appears to be no logical reason for the various
separate discussions that took place prior to driving
the decedent from the residence. Finally, the
decedent was outnumbered 4 to 1. There appears to
be no logical reason to retrieve a gun if the intent was
only to assault. The circumstantial evidence strongly
points to the conclusion that during the course of the
various discussions the decision was made to kill the
decedent. That explains why, prior to driving away
from the location, Valdez went inside the residence to
retrieve the gun.
“As the prosecutor stated during her argument
at the eligibility hearing ‘the decedent was never
going to come back alive once he got into the car with
Petitioner and the others’. The court agrees with this
conclusion.
“Lastly, the evidence established that only two
of the individuals exited the car and chased the
decedent. The other individual, who was most likely
the Petitioner as the vehicle was his, remained with
the car and it is possible that he may have not been
aware that the other two were going to kill the
decedent. The circumstantial evidence, however,

10
 strongly points to the conclusion that the decision to
kill the decedent was made prior to the decedent
entering the car and that by virtue of the various
discussions, all were aware what was going to happen
to [him].”
The trial court concluded from its findings “that the
prosecution has proven each element of first or second degree
murder beyond a reasonable doubt and that Petitioner is
ineligible to have his sentence recalled and to be re-sentenced.”
On September 10, 2021, the trial court denied the petition.
Defendant filed a timely notice of appeal from the order.

DISCUSSION
I. Trial de novo
Defendant contends that the trial court erred by treating
the evidentiary hearing as a trial de novo. He asserts that the
parties should have been bound by the jury’s prior verdict, and
approaching the hearing as a trial de novo resulted in a violation
of principles of collateral estoppel because the trial court opined
that defendant could be guilty of first degree murder as well as
second degree murder.
Defendant mischaracterizes the proceedings as a trial de
novo, as the trial court relied on its review of the same evidence
admitted at defendant’s trial. Furthermore defendant remains
convicted of second, not first degree murder. “‘[I]t is the [trial]
court’s responsibility to act as independent fact finder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 and is thus
ineligible for resentencing under section [1172.6], subdivision
(d)(3).’” (Ramirez, supra, 71 Cal.App.5th at p. 984.)

11
 Second degree implied malice murder was not eliminated
by Senate Bill 1437. (People v. Gentile (2020) 10 Cal.5th 830,
850.) “‘Perhaps the most fundamental rule of appellate law is
that the judgment challenged on appeal is presumed correct, and
it is the appellant’s burden to affirmatively demonstrate error.’”
(People v. Gonzalez (2021) 12 Cal.5th 367, 410, quoting People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We thus begin
with the presumption that the trial court correctly found that
defendant remained guilty of second degree murder. Defendant
disagrees, asserting that the jury returned a verdict of not guilty
as to first degree murder and that verdict binds the parties and
the court.
Defendant makes this claim although the only verdict
returned by the jury was a general verdict of murder of the
second degree. Such a verdict “shows only that the jury had a
reasonable doubt as to his guilt on the degree of the murder [and]
does not amount to a factual finding that appellant did not
premeditate or deliberate the killing.” (People v. Prock (2014) 225
Cal.App.4th 812, 818.) Moreover, it does not “establish that any
or all of the specific elements of the offense are not true[, and]
unless specific findings are made, ‘the jury cannot be said to have
“necessarily rejected” any facts when it returns a general
verdict . . . .’” (In re Coley (2012) 55 Cal.4th 524, 554, citations
omitted, quoting United States v. Watts (1997) 519 U.S. 148, 155;
see People v. Prock, at pp. 818-819.)
In denying the petition, the trial court ruled that the
prosecution had proven beyond a reasonable doubt the elements
of first or second degree murder. Defendant recognizes that
second degree murder can be committed in several ways. In
addition to the natural and probable consequences doctrine,

12
defendant’s jury was instructed with second degree murder as
follows: CALJIC No. 8.30, unpremeditated express malice
murder; and CALJIC No. 8.31, implied malice murder. Thus, the
court’s opinion that the evidence also supported first degree
murder does not affect the issue here as the court ruled in
essence, that defendant remained guilty of second degree murder
as defined under the 2019 amendments to sections 188 and 189.
“Our task is to review the trial court’s ruling, not its reasoning.”
(People v. Turner (2020) 10 Cal.5th 786, 807.)
Arguing that second degree murder can be committed only
with an unpremeditated intent to kill or with implied malice,
defendant insists that the trial court’s finding that the evidence
showed planning meant that the court found premeditation,
which is inconsistent with unpremeditated second degree
murder. Defendant concludes that because premeditation and
implied malice are mutually exclusive, his trial jury and the court
reviewing his petition “simply got it wrong.”5 We disagree. The
trial court found it was most probably defendant who remained in
the car and was thus not the actual killer. Defendant’s
arguments appear to suggest that one cannot aid and abet an
implied malice murder, particularly with evidence of
premeditation. However, aiding and abetting an implied malice
murder is a valid theory of culpability for second degree murder.

5 Defendant relies on People v. Swain (1996) 12 Cal.4th 593.
In that case, the California Supreme Court held that it was error
to instruct the jury on the contradictory principles of implied
malice second degree murder in connection with conspiracy to
commit murder. (Id. at pp. 602-603, 607.) Defendant was not
charged with conspiracy, and we found no conspiracy instructions
in the trial record.

13
(People v. Gentile, supra, 10 Cal.5th at p. 850.) Implied malice
murder is committed “‘when the killing is proximately caused by
“‘an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’”’” (People v. Cravens (2012) 53
Cal.4th 500, 507.) “‘In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the
life of another . . . .’” (Ibid.)
As the trial court commented, it is possible that defendant
thought that only a beating was planned when he drove his
codefendants to the remote location. Without aggravating
circumstances, a beating with fists is ordinarily not considered
life-endangering conduct. (People v. Cravens, supra, 53 Cal.4th
at p. 508.) However, a conscious indifference to human life may
be inferred where a defendant who may have intended only to
assault the victim with his fists or even just to argue with the
victim, first arms himself with a deadly weapon. (See People v.
Nieto Benitez (1992) 4 Cal.4th 91, 107-110, citing People v.
Rosenkrantz (1988) 198 Cal.App.3d 1187 [see pp. 1191-1192,
1203-1204], In re Russell H. (1987) 196 Cal.App.3d 916 [see
pp. 918-920], People v. Summers (1983) 147 Cal.App.3d 180 [see
pp. 184-185] & People v. Love (1980) 111 Cal.App.3d 98 [see
pp. 107-108].) Thus in this case, Valdez may have intended only
to argue with the victim or to beat him, but malice may be
implied from his retrieval of the murder weapon just before
defendant drove him, Mejico and Imperial to the remote location.
To be liable for an implied malice murder as a direct aider
and abettor, defendant must have, “by words or conduct, aid[ed]
the commission of the life-endangering act [with] knowledge that

14
the act is dangerous to human life, and acting in conscious
disregard for human life.” (People v. Powell (2021) 63
Cal.App.5th 689, 712-713, citing People v. McCoy (2001) 25
Cal.4th 1111, 1122.) “Though [Senate Bill 1437] abolished the
natural and probable consequences doctrine, it maintained the
viability of murder convictions based on implied malice, and the
definition of implied malice remains unchanged. (§ 188.)”
(People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements).)
“Therefore, notwithstanding Senate Bill 1437’s elimination of
natural and probable consequences liability for second degree
murder, an aider and abettor who does not expressly intend to
aid a killing can still be convicted of second degree murder if the
person knows that his or her conduct endangers the life of
another and acts with conscious disregard for life.” (People v.
Gentile, supra, 10 Cal.5th at p. 850.)
We conclude from these authorities that where, as here, the
evidence shows that the direct perpetrator harbored implied
malice, that is, he armed himself with a firearm in conscious
disregard of the danger to the victim, the person who aids and
abets a planned assault knowing that the perpetrator is armed
may be found to have shared the perpetrator’s conscious
disregard for the victim’s life and is therefore guilty of implied
malice murder, regardless of the trial court’s opinion that the
evidence also supports first degree murder.
II. Standard of review
Defendant acknowledges that in general the trial court’s
ruling is reviewed for substantial evidence but argues that, here,
we should undertake an independent or de novo review of the
trial evidence to determine whether the prosecution met its
burden of proof. Relying on People v. Vivar (2021) 11 Cal.5th 510

15
(Vivar), defendant contends that, because the trial court’s factual
determinations were based solely on the “cold record” with no live
testimony, this court should conduct an independent review,
without giving deference to the trial court’s findings as is usual in
a substantial evidence review. Defendant concludes that with no
witnesses to observe, the court had no occasion for the court to
make any credibility determinations.
We disagree. Vivar is an inapt comparison as it did not
involve section 1172.6, but a ruling on whether there had been a
sufficient showing of prejudice to vacate a conviction by those
facing negative immigration consequences, and presented issues
that “while mixed questions, are predominantly questions of law.”
(Vivar, supra, 11 Cal.5th at pp. 517, 524.) Like the defendant in
People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591, which
rejected a similar argument, defendant “ignores Vivar’s footnote 7
[at p. 528], which expressly cautioned against extensions of the
type [he] urges.”
A similar argument in reliance on Vivar was also rejected
in Clements, supra, 75 Cal.App.5th at page 302, which noted that
“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.’ (Vivar, supra, 11 Cal.5th at p. 527.) The same
factors don’t support applying independent review in the context
of reviewing a trial judge’s ruling after a full hearing under
section [1172.6,] subdivision (d)(3).”

16
 Clements held that the better comparison is found in People
v. Perez (2018) 4 Cal.5th 1055, in which “our Supreme Court . . .
held in the context of a Proposition 36 petition for recall of
sentence 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.’” (Clements, supra, 75 Cal.App.5th at p. 302, quoting
People v. Perez, at p. 1066; accord, People v. Sifuentes (2022) 83
Cal.App.5th 217, 232-233; People v. Mitchell, supra, 81
Cal.App.5th at p. 591; People v. Richardson (2022) 79
Cal.App.5th 1085, 1090.) We agree with these authorities that
“[t]he proper standard of review thus defers to the trial court’s
factfinding[, and] [w]e review the trial court’s findings for
substantial evidence.” (People v. Mitchell, at p. 591.)
That being said, we note that defendant does not contend
the trial court’s determination is unsupported by substantial
evidence. As it is defendant’s burden to demonstrate the
determination was unsupported by substantial evidence but
makes no attempt to do so, we presume the evidence was
sufficient. (See People v. Hamlin (2009) 170 Cal.App.4th 1412,
1430.)
III. Standard of proof
Defendant contends the trial court failed to hold the
prosecution to its burden to prove beyond a reasonable doubt that
the petitioner committed murder pursuant to a theory of the case
that remains valid under current law. “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

17
murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).)
Defendant bases his contention that the court did not
comply with this requirement on comments made under the
heading “Legal Principles” in the memorandum of decision. The
court’s statement of the underlying legal principles showed an
understanding of the prosecution’s burden. The court noted the
prosecution had “the burden ‘to prove, beyond a reasonable doubt,
that the petitioner [was] ineligible for resentencing,’” by
disproving at least one of the conditions to eligibility listed in
section 1172.6, subdivision (a), including subdivision (a)(3). The
court explained that subdivision (a)(3) states the petitioner is
eligible if he could not presently be “convicted of first or second-
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” The trial court then observed, “[t]he
prosecutor must prove beyond a reasonable doubt each element of
first or second-degree murder under current law . . . .”
While defendant does not disagree with the above quoted
statement, he takes issue with the court’s comments that
followed. The court stated: “The prosecutor’s burden is to prove
that the state would be able to prove the petitioner’s guilt of first
or second-degree murder under current law. In that context,
‘would’ expresses ‘a possibility or likelihood’—namely, the
possibility or likelihood that the state can prove the petitioner’s
guilt of first or second-degree murder under current law. [¶] It is
the court’s responsibility to act as independent factfinder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 and is thus
ineligible for resentencing . . . .”

18
 Defendant calls the comments a “confusing mish-mash of
different standards.” He construes them as ruling that the
prosecutor was required only to show that there was a possibility
that defendant was ineligible for relief While the court’s
explanation may be ambiguous, we do not agree that any
ambiguity is susceptible to defendant’s suggestion that it must be
resolved by concluding that the trial court applied a lower
standard of proof than the reasonable doubt standard required by
section 1172.6. “If a judgment or order is ambiguous, it is subject
to construction by a reviewing court.” (Yarrow v. State of
California (1960) 53 Cal.2d 427, 436.) The trial court sufficiently
clarified the procedure it followed under the memorandum’s
“Legal Principles” not only by stating that “[t]he prosecutor must
prove beyond a reasonable doubt each element of first or second-
degree murder under the current law . . . ,” but also by noting the
prosecution bore the burden “to prove, beyond a reasonable
doubt, that the petitioner [was] ineligible” because he could still
be convicted of murder under section 188 or 189 as amended
effective January 1, 2019. The court thus required the
prosecution to prove that the trial evidence established beyond a
reasonable doubt that defendant remains guilty of murder under
current law.
Defendant refers only to the ambiguous comments under
“Legal Principles” as the court’s ruling, but it was not. The
ruling appears under the heading “Disposition” as follows: “For
the foregoing reasons, the court finds that the prosecution has
proven each element of first or second-degree murder beyond a
reasonable doubt and that Petitioner is ineligible to have his
sentence recalled and to be re-sentenced.” As previously
explained, we “review the trial court’s ruling, not its reasoning.”

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(People v. Turner, supra, 10 Cal.5th at p. 807.) Also, the trial
court’s opinion that the evidence also proved first degree murder
beyond a reasonable doubt does not negate the ruling that
defendant remains guilty of second degree murder.

DISPOSITION
The order denying the petition is affirmed.

___________________________
CHAVEZ, Acting P. J.

We concur:

_______________________________
HOFFSTADT, J.

_______________________________
BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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