People v. Kane CA2/5

Filed 7/6/23 P. v. Kane CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B319263

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA062376)
v.

MICHAEL KANE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Sally Patrone, under the 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 Michael Kane was convicted of
murder and two counts of extortion, along with his codefendant
Matthew Herrera.1 His conviction was affirmed on direct appeal.
Over 10 years later, defendant filed a petition for resentencing
under Penal Code section 1172.6.2 After an evidentiary hearing,
the trial court denied defendant’s petition for relief, on the
grounds that he acted with the intent to kill. Defendant appeals,
arguing (1) the trial court improperly relied on the appellate
opinion in his direct appeal; (2) the prosecutor committed
misconduct in arguing the evidence; and (3) there is insufficient
evidence of intent to kill. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes
Because we are concerned only with evidence of intent to
kill, we limit our discussion of related events. The story begins
with a marijuana sale interrupted by police, and ends with
defendant and Herrera killing the man they believed responsible
for the arrest of their friend.
A. The Marijuana Sale and Arrests
Jamie Rainer rented a room in a house in which any
number of other people also rented rooms; the house was located

1 Two additional codefendants, Paul Merino and Juan
Hernandez, were also tried with defendant and Herrera, but
charged only with the extortions.

2 The statute was originally number 1170.95; it was
renumbered effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
We use the current numbering. Unless otherwise indicated, all
undesignated statutory references are to the Penal Code.

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on Kelvin Avenue. Two of the other renters were Diane Vigil and
Esteban Arraya. Jamie and Diane had known each other and
defendant from their mutual prior residence, a sober living
home.3 They did not know Esteban before they moved to the
Kelvin house.
On June 15, 2009, Esteban asked Jamie if she could help
him obtain some marijuana. Jamie, in turn, called defendant,
asking if he could assist. Defendant could, but he repeatedly
asked if Esteban was a police informant. Eventually, defendant
agreed, and told Jamie to come to his house. Jamie then asked
Diane to drive them over to defendant’s place. In the car were:
Diane, Diane’s children, Jamie, Jamie’s dog, and Esteban.
At defendant’s house, defendant told Diane to drive to a
Jack-in-the-Box parking lot to do the deal with his associate.
Defendant stayed behind with Diane’s children, Jamie and
Jamie’s dog. Sandy Motta, a roommate of defendant’s, got in the
car to go to Jack-in-the-Box to get some food for her daughter.
Thus, in the car at this point were: Diane, Sandy, and Esteban.
In the Jack-in-the-Box parking lot, the buyers met
defendant’s associate, Abraham Nunez, who sold them a small
container of marijuana. Police had been watching the location
and saw the transaction. Abraham was arrested for sale of
marijuana; Diane and Esteban were arrested for possession.
Sandy, who had gone into the restaurant before the transaction,
was questioned and released. Later that night, Diane and
Esteban were also released; Abraham was not.

3 We use first names of victims and witnesses to simplify the
discussion; no disrespect is intended.

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 B. The Extortions
When Diane and Sandy did not immediately return, Jamie
telephoned them. Sandy picked up and reported that the others
had been arrested. Jamie told defendant.
Defendant telephoned codefendant Herrera, who came to
defendant’s house with others, including codefendants Marino
and Hernandez. Defendant asked Jamie to come into his
bedroom, where everyone was gathered.
Codefendant Herrera took the lead. He questioned Jamie
to see if she was an informant. He made her take off her clothes
to prove she was not wearing a wire; she complied. He repeatedly
asked how she knew Esteban and whether he was a rat.
Codefendants Herrera and Merino continued to ask her if
Esteban was an informant; she kept saying he was not.
Codefendant Herrera said that if she did not give him the
answers he wanted, they would find where she lived and “CPA”
would be after her; she believed that to be a gang. Codefendant
Merino repeated the questioning about Esteban; when Jamie
proclaimed his innocence, codefendant Merino said he did not
believe her. He asked defendant if he had a shovel; defendant
agreed and brought him one. Codefendant Merino told Jaime
that if she did not give him the answers he wanted to hear, he
would kill her and she would have to dig her own grave.
Codefendant Herrera told Jamie that she needed to help with
bail money to get their friend out of jail.
At this point, Sandy returned and came into the room.
When Sandy attempted to return Jamie’s cell phone to her,
codefendant Merino grabbed it and threw it against the wall.
Codefendant Herrera told Sandy that she, too, needed to come up

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with bail money for Abraham. After Herrera slapped Sandy in
the face, she agreed to try to get $75.
Codefendant Herrera struck Jamie twice, and kicked her in
the head. He took her dog from her lap and threw the dog
against the wall. He threatened to kill Jamie. Codefendant
Hernandez also hit Jamie. At some point, she offered $200; she
did not have the money, but feared for her life.
Once Diane was released by police, she returned to
defendant’s house (where her daughters were) and defendant
asked her to go into the bedroom. She witnessed codefendant
Herrera holding Jamie responsible for bringing Esteban to them,
and demanding Jamie and Sandy come up with bail money for
Abraham.
Diane then took Sandy and Jamie to various meeting
places to obtain the money they had promised defendant and his
codefendants. Ultimately, on Sandy and Jaime’s behalf, Diane
delivered $185 and a stereo (which they had obtained from
Esteban). Codefendant Herrera told Diane and Sandy over the
telephone that this was acceptable and they had done their part.
C. The Murder
Defendant and codefendant Herrera were not, however,
done with Esteban.
In the early morning hours of June 18, 2009, they went
together to the Kelvin house. Codefendant Herrera had a gun.
Angelina Frias, her husband Kiefer Ollivierre, and their
children lived in a room in the converted garage next to the main
house on Kelvin. That morning, the entire family was in the
kitchen of the main house readying breakfast. Antonio (Tony)
Araiza also had a room in the Kelvin house. When Angelina saw
the two men outside the house, she knocked on Tony’s door and

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told him about them. Then one of the two men knocked on the
door to the house. Tony opened it.
Codefendant Herrera looked at Kiefer and asked,
questioningly, “Esteban?” Kiefer said he was not. One or both of
the men then turned to Tony and asked him, in Spanish, if they
could go outside and talk to him for a minute. Tony nodded and
walked out with them, closing the door behind him.
Defendant and codefendant Herrera surrounded Tony and
walked him over to the converted garage – codefendant Herrera
was in front, Tony in the middle, defendant behind him. About “a
minute later,” inside the converted garage, someone shot Tony in
the chest.
Defendant and Herrera fled. Defendant had Angelina’s
computer, which she had left charging on her bed.
Norine Reed lived in a little room off the garage at the
Kelvin house. After the gunshot, she saw defendant and Herrera
running away. She testified one of them had a gun in his hand.
Critically, she identified Herrera at trial as one of the men she
saw running, but she testified that he was not the man with the
gun. She explained that the man with the gun was the shorter of
the two assailants. Defendant is 5-foot-9; codefendant Herrera is
6-foot-2. In other words, although Norine did not identify
defendant at trial, she did, effectively, testify that a gun was in
his hand when he fled the scene.4 Norine ran into the other room

4 We go into detail about Norine’s testimony because much of
defendant’s opening brief in this appeal is based on the premise
that there was no evidence that defendant had the gun. (E.g.,
“No witness saw appellant with a gun, . . .”; “There is no evidence
to suggest appellant took the gun from Herrera.”) But Norine

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in the garage and saw Tony on the floor, barely breathing. He
subsequently died from the gunshot wound.
2. Initial Trial and Appeal
Defendant was charged by information with two counts of
extortion (Jamie and Sandy) and one count of murder (Tony,
mistaken for Esteban). He was alleged to have suffered one prior
conviction, which qualified as a prior prison term, prior serious
felony, and prior strike within the meaning of the three strikes
law. (§ 667.5, subd. (b); 667, subd. (a)(1); 667, subds. (b)-(i).) As
to the murder, it was alleged that codefendant Herrera
personally used a firearm causing death. (§ 12022.53, subd. (d).)
Defendant was convicted of both counts of extortion and
first-degree murder. The trial court found the prior conviction
true. Defendant was sentenced to prison for 65 years to life,
calculated as the high term of 4 years, doubled for the strike, for
one count of extortion; plus 1 year (1/3 the middle term), also
doubled, for the other; consecutive to 25-life, doubled, for the
murder; plus five years for the prior serious felony.

saw the shorter man – the man who was not codefendant Herrera
– with the gun. At this stage of the case, identity is not at issue;
defendant was the second attacker that morning. Despite
defendant’s representations to the contrary, Norine’s testimony
put the gun in defendant’s hand after the shooting. After the
Attorney General pointed out Norine’s testimony to this effect in
its respondent’s brief, defense counsel, in her reply brief, made no
effort to address this evidence, but simply stated, again, that
defendant “was identified by witnesses as the person without the
gun.” While it is true that Angelina saw codefendant Herrera
with a gun before the shooting, Norine saw defendant with a gun
after it.

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 Codefendant Herrera was also convicted of first-degree
murder. The jury found the firearm enhancement not true.
Defendant, along with two of his codefendants, appealed
their convictions. In 2011, a different panel of this appellate
division affirmed, with minor irrelevant sentence modifications.
(People v. Hernandez (Nov. 4, 2011, B224527) [nonpub. opn.].)
Specifically, the court rejected defendant’s contentions that there
was insufficient evidence that: (1) he possessed the intent to kill;
(2) he premeditated and deliberated the murder; and (3) he
committed a burglary or robbery justifying conviction for felony-
murder.5
3. Section 1172.6 Motion and First Appeal
“Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015; Senate Bill 1437) eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule. (Pen.
Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by . . .
Senate Bill 1437.)” (People v. Lewis (2021) 11 Cal.5th 952, 957.)
Specifically, under the new law, an aider and abettor cannot be
convicted of felony murder unless the defendant acted with the
intent to kill or was a major participant who acted with reckless
indifference to human life. Senate Bill 1437 also added section
1172.6 to the Penal Code, which creates a procedure for convicted
murderers who could not be found guilty under the law as
amended to retroactively seek relief.

5 Our appellate record does not include the jury instructions
at defendant’s trial. It is apparent, however, that the prosecution
proceeded on two theories of first-degree murder: premeditated
and felony-murder.

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 On May 23, 2019, defendant, representing himself, filed a
petition for resentencing under section 1172.6. At defendant’s
request, the trial court appointed counsel. The prosecution
opposed the petition, arguing that defendant was ineligible for
relief on the basis that the Court of Appeal, in affirming
defendant’s conviction, found sufficient evidence of intent to kill.
The trial court agreed and denied the motion. On defendant’s
appeal, the prosecution conceded reversal was required. A
different panel of this appellate division reversed, stating, “There
is nothing in the record that indicates which theory the jury
espoused [direct liability or felony murder], or whether some
jurors relied on one theory while other jurors relied on the other.
Thus we cannot say, and the appellate court did not hold, that
[defendant] possessed the intent to kill as a matter of law.
Substantial evidence supports both theories, but at this point in
the proceedings pursuant to section [1172.6] the trial court may
not engage in fact-finding, and [defendant] is entitled to the
benefit of the doubt.” (People v. Kane (Jan. 19, 2021, B304451)
[nonpub. opn.], p. 10.)
4. Hearing and Denial
Upon receipt of the remittitur, the trial court found
defendant established a prima facie case for relief and set the
matter for a hearing. The prosecution recognized the trial court
was required to evaluate the “facts presented at trial” and
determine whether defendant was entitled to relief. The
prosecution argued that he was not, on the basis that the
evidence at trial demonstrated defendant was a direct aider and
abettor of the murder who acted with intent to kill. The
prosecution specifically argued that the court could rely on the

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entirety of the record of conviction, including the appellate
opinion affirming defendant’s conviction.
Defendant argued that counsel “will rely on the transcripts
from [defendant’s] trial, as well as the entire record of conviction,
in presenting the argument” for resentencing.
At the March 21, 2022, hearing, no witnesses were called.
After argument, the court made “an independent decision to deny
the defendant’s petition for resentencing and adopt[ed] the
appellate court’s decision,” particularly as related to defendant’s
intent to kill, as its own.
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant argues error in three respects:
(1) the trial court improperly relied on the prior Court of Appeal
opinion rather than its independent review of the evidence;
(2) the prosecutor committed misconduct in argument; and
(3) there is insufficient evidence of intent to kill.
1. The Trial Court Did Not Rely on the Appellate
Opinion
Initially, subdivision (d)(3) of section 1172.6 did not
specifically identify the evidence that could be used at the
hearing to determine entitlement to relief, and it was thought
that the record of conviction, including any prior appellate
opinion, could be used. (See People v. Clements (2022)
75 Cal.App.5th 276, 283 (Clements).) Senate Bill No. 775 (2021-
2022 Reg. Sess.), effective January 1, 2022, amended the statute
to set forth limitations on the evidence, providing, “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

10
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.” (Stats. 2021, ch. 551 (S.B. 775), italics
added.) This “specificity indicates the Legislature has decided
trial judges should not rely on the factual summaries contained
in prior appellate decisions when a section [1172.6] petition
reaches the stage of a full-fledged evidentiary hearing.”
(Clements, supra, 75 Cal.App.5th at p. 292.)
We agree that, under the law as the Legislature has
amended it, the trial court may not rely on the facts as set forth
in the prior appellate opinion. Instead, the court is required to
rely on the trial (and any other admissible) testimony.
Here, however, the trial court did not rely on the facts set
forth in the prior opinion. The court took great pains to explain
that, while it agreed with the facts and the analysis in the
appellate opinion, it made its determination independently: “And
I do think that the evidence does support [the finding of intent to
kill] beyond a reasonable doubt, and I want to make clear that I
make this finding as a fact finder for this hearing. [¶] I’m
relying on the record of conviction. I was the judge during the
trial and heard the evidence. So it’s an independent finding by
this court based on the evidence that was presented at trial,
although I will also note that the appellate court found the
evidence sufficient on the intent-to-kill-aiding-and-abetting
theory as well as they found evidence supported premeditation
and deliberation. I think they got it right, and I adopt their
findings and the facts recited by the appellate court as well. But
I made clear that this is an independent decision by this court.
But I think they got it right.”

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 On appeal, defense counsel suggests that “the court was
doing what it said it was not doing.” There is no evidence that
this is so; the court’s evaluation was, as it expressly stated,
independent of the appellate opinion.
2. There Was No Prosecutorial Misconduct
At the section 1172.6 hearing, the prosecutor argued,
“There was evidence that – at least one gun was at the location
being seen in Mr. Herrera’s possession at one point and
immediately after the shooting by the Defendant, Mr. Kane.”
Defendant assigns this as misconduct, claiming, “it was
misconduct for the prosecutor to argue at the evidentiary hearing
that appellant was armed because it was not supported by the
charging documents or the evidence presented at trial.”6 First,
we observe that defendant has forfeited the argument as
misconduct was not assigned at trial.7 Regardless, as we have

6 Defendant’s suggestion that the prosecutor’s argument is
inconsistent with the charging documents is based on the fact
that the operative information alleged a personal use firearm
enhancement against codefendant Herrera, which the jury
ultimately found not true. At the entitlement hearing, the
prosecutor argued that defendant’s possession of the gun after
the shooting supported the conclusion that he was a direct aider
and abettor; the prosecutor did not argue that defendant shot
Tony.

7 At the hearing, not only did defendant’s counsel fail to
object to the alleged misconduct, she said she “would embrace
every single one of the facts” that the prosecutor mentioned. She
specifically stated, “There was evidence that Mr. Kane had the
gun [when the two men ran away] and that he decided to tuck it
in his back. That was after the fact.”

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discussed, defendant is mistaken on the facts. Norine testified
that she saw him with the gun immediately after the shooting;
the prosecutor’s argument was a well-supported comment on the
evidence.
3. There is Sufficient Evidence of Defendant’s Intent to
Kill
Section 1172.6, subdivision (d)(3), as amended by Senate
Bill 775, provides, “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 . . . .” We review the trial court’s
findings for substantial evidence, viewing the evidence in the
light most favorable to the prosecution and presuming in favor of
the judgment every fact the trial court reasonably could have
deduced from the evidence. We resolve neither credibility issues
nor evidentiary conflicts. (People v. Owens (2022) 78 Cal.App.5th
1015, 1022.)
The trial court found beyond a reasonable doubt that
defendant had the intent to kill; we have reviewed the trial
transcripts and conclude, just as our prior panel did in 2011, that
substantial evidence supports this conclusion. Specifically, the
evidence demonstrates the following: defendant and his

On appeal, appellant argues that an objection would have
been futile at the section 1172.6 hearing because the prosecutor
pointed out that he, the prosecutor, had been the district attorney
at trial. The suggestion that the trial court would defer to the
prosecutor’s recollection and not make its own independent
finding runs contrary to the trial court’s statement and is an
inappropriate disparagement of the trial court.

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codefendant Herrera believed Esteban was responsible for the
arrest of their colleague, Abraham. They had originally
speculated Jamie was an informant, and their codefendant
Merino had threatened to kill Jamie if she did not give them the
right answers to their questioning. Far from disagreeing with
codefendant Merino, defendant obtained the shovel with which
Jamie would be forced to dig her own grave should she prove
disloyal. A few days later, defendant and codefendant Herrera
went to the Kelvin house, where Esteban lived. Codefendant
Herrera had a gun. They knocked on the door and asked for
Esteban. They saw a Hispanic man believed to be Esteban and
asked him outside. They then walked him away from the people
in the house – to an apparently deserted garage – and one of
them shot the victim in the chest about a minute later. Nothing
suggests that the victim even had the time to explain that he was
not Esteban. The two men fled, taking a computer with them.
Defendant was seen with a gun in his hand as they ran, leading
to the conclusion that either both men were armed, or both men
were working together to such a degree that they shared
possession of the gun. Neither stayed to assist the dying man as
he struggled to breathe. Taken together, these facts add up to an
execution: defendant and Herrera believed Esteban to have
ratted out their friend, and they went to his house to kill him.
Defendant argues that the evidence does not demonstrate
an intent to kill, but only an intent to commit an additional
extortion, in order to obtain more cash or assets to pay
Abraham’s bail. But there was a difference between the extortion
victims and Esteban: defendant knew Jamie and Sandy, and
believed they had sufficiently proven their innocence; defendant
did not know Esteban, and thought he was an informant. More

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than that, defendant approached the man he believed to be
Esteban far differently from how he approached his extortion
victims. With Jamie and Sandy, he obtained the help of his three
codefendants and other individuals as well, surrounding them
and frightening them with threats, while giving them time to
explain themselves and agree to pay. With Esteban, defendant
and Herrera alone approached the house, one or both of them
armed, took their victim to an apparently secluded location, and
almost immediately shot him.
That defendant extorted other victims does not mean he did
not intend to kill the man he thought was Esteban; substantial
evidence supports the conclusion that he did, in fact, intend to
kill.
DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.

RUBIN, P. J.
WE CONCUR:

MOOR, J.

KIM, J.

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