Filed 12/26/19 P. v. Jones CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALIJONDRO JONES,

Defendant and Appellant.

A154492

(Solano County

Super. Ct. No. FCR310886)

Appellant Alijondro Jones was convicted of first degree murder under a felony-murder theory based on his involvement in an attempted marijuana robbery that ended with the fatal shooting of Demetrius Ward. (Pen. Code, § 187, 189.) An allegation that he personally used a firearm during the commission of the crime was found not true. (§ 12022.53, sub. (b)–(d).) Appellant argues: (1) the judgment against him must be reversed because it was based on uncorroborated accomplice testimony; (2) the jury was improperly instructed it could convict based on the testimony of a single witness when the testimony of the primary witness was accomplice testimony requiring corroboration; (3) the flight instruction was unsupported by the evidence; (4) recent changes to the felony-murder rule with respect to aiders and abettors require reversal of the murder conviction; (5) the cumulative effect of the errors requires reversal; (6) the court’s imposition of a restitution fine without a finding of appellant’s ability to pay violated due process; and (7) the court must review in camera records which the trial court reviewed under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm.

I. BACKGROUND

At about 1:30 a.m. on October 6, 2014, Vacaville police responded to a 911 call about a shooting at the Canyon Creek Apartments. They found 18-year-old Demetrius Ward in the front seat of his truck, alive but not conscious, with a gunshot wound in his neck. A Ziplock bag with marijuana was found inside the truck, and a 45-caliber shell casing was found on the ground a few feet away from the truck. Ward was taken to the hospital where he died. The murder weapon was never found.

Kai Hughes, who was also 18 years old and had placed the 911 call, was holding Ward around the shoulders when police responded to the scene of the shooting. The police took Hughes to the police station, where she had a panic attack and passed out; she woke up in the hospital. When Hughes found out Ward had died, she tried to hang herself and was placed in a mental health facility for a few days. Hughes told conflicting stories about what had happened, but eventually told police that Ward had been shot by appellant during a botched marijuana robbery.

During the months preceding the shooting, Hughes had frequently associated with appellant, Dezmon Frazier, Toriano Byrd, Rhianna Cea and Rick Paraiso. They smoked marijuana, did other drugs. The group frequently congregated at the home of Aimee Sabedra and her four young children in the Canyon Creek Apartments. Hughes sold drugs for Frazier, who was on the run from the police. Hughes was also good friends with Ward, whom she used to date.

Before midnight on October 5, 2014, Hughes was at the home of her auntie, who lived about five minutes away from Sabedra. She received a message from Ward via Twitter asking “[w]ho needs weed.” Through text messages, Ward told her he had a high-quality strain of marijuana to sell and Hughes told him she wanted to buy it. Hughes did not have the money, but led him to think she did. Ward arranged to come pick her up.

Hughes made a series of phone calls to Frazier and Byrd saying she wanted them to steal Ward’s marijuana. Ward picked her up and she directed him to the Canyon Creek Apartments, falsely claiming she had left her purse with money there. Ward told her he would not sell his marijuana for less than $180. He pulled into the complex and waited, while Hughes went inside to Sabedra’s apartment.

When Hughes arrived, Sabedra was asleep with her son in the living room. Hughes went to the back bedroom and found appellant, Frazier and Byrd inside smoking marijuana and doing other drugs. Paraiso came into the room and the group discussed a plan to rob Ward. Hughes texted Ward and asked whether he would take $150; he indicated that $180 was the price. Byrd, who was carrying a gun in a shoulder holster, said he did not want to be involved. Appellant and Paraiso volunteered to do the robbery, and appellant grabbed Byrd’s gun. Byrd tried to take the clip out of the gun, but appellant said he would need it.

Appellant and Paraiso went outside and walked toward Ward’s truck, followed by Hughes. Hughes stayed back and ducked behind a bush. She heard “muffled” arguing, then heard a gunshot and saw a bright light. Paraiso came running, grabbed her shirt and told her to “come on.” Hughes followed him into Sabedra’s apartment and appellant walked in a few seconds later. They went back to the bedroom occupied by Frazier and Byrd and appellant said Ward “told me I needed to shoot him for his weed. I don’t know who he thought he was so I shot him.”

Appellant told the group he did not get the marijuana or the bullet casing. Hughes texted Ward, “Here I come,” and told the others she was going out to pick up the casing. When she found Ward injured in the truck, she called 911 and told them her “brother” had been shot. She did not disclose the robbery plan to police initially.

After the shooting, Sabedra was shaken awake on her mattress in the living room. She was “groggy” and “not really aware” of what was going on. Someone threw a heavy bundle on her lap and told her to hide it; she took the bundle to her upstairs neighbor’s apartment and placed it under the couch. Sabedra returned to her apartment, where Frazier seemed angry and appellant was joking around. She decided to go to the convenience store down the road and took appellant with her. She planned to drive her car, but yellow police tape blocked her car in the parking lot, so they walked. Appellant said he had “blasted that fool because he wouldn’t give it up,” then laughed. Five to ten minutes after they entered the store, appellant gave Sabedra a hug, got into a car driven by a woman and left. About 27 minutes had passed since police were dispatched to the Ward shooting. Appellant and Sabedra were captured on the store’s surveillance camera.

Frazier told Sabedra to get the object she had hidden. She retrieved the bundle and saw it was Byrd’s gun. When police interviewed Sabedra, she told them appellant was the shooter. She consistently told police appellant was the shooter, but initially told them she had hidden the gun in some bushes outside.

Police arrested Hughes for Ward’s murder and arrested Sabedra for being an accessory after the fact. (Pen. Code, §§ 187, 32.) Both agreed to testify against appellant and entered into immunity agreements. Hughes pled guilty to one count of attempted robbery and admitted a weapon use enhancement, the murder count against her was dismissed, and she was to be sentenced to a term of no more than four years. Sabedra pled guilty to one count of accessory after the fact with no jail time and the dismissal of an unrelated misdemeanor charge.

Appellant was charged by information with the murder of Ward and the personal use of a firearm was alleged. Hughes testified as the primary prosecution witness at appellant’s trial, and was the only percipient witness to the discussions concerning the marijuana robbery and to the shooting. Sabedra testified and denied being awake until after the shooting was committed, but she described hiding the gun and testified that appellant told her during their trip to the convenience store that he “blasted that fool because he wouldn’t give it up.” Appellant’s primary defense was that there was no physical evidence linking him to the shooting and that Hughes’s status as an accomplice to the murder and Sabedra’s status as an accessory after the fact rendered their testimony inherently unreliable.

The jury was instructed on first degree felony murder and told that appellant could be guilty under this theory if a coparticipant committed the fatal act. The jury convicted appellant of first degree felony murder but found not true an allegation that he had personally used a firearm in the commission of the offense. Appellant was sentenced to prison for 25 years to life, along with a consecutive three-year term for a separate case for which he was on felony probation at the time of the murder.

II. DISCUSSION

A. Sufficiency of the Evidence

Appellant argues the evidence against him was insufficient to support the murder count because Hughes’s testimony was the primary evidence linking him to the crime and it was insufficiently corroborated under section 1111. We disagree.

Section 1111 states, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” “Thus, for the jury to rely on an accomplice’s testimony about the circumstances of an offense, it must find evidence that ‘ “without aid from the accomplice’s testimony, tend[s] to connect the defendant with the crime.” ’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero and Self).) Section 1111 “is based on the Legislature’s determination that ‘ “because of the reliability questions posed by” ’ accomplice testimony, such testimony ‘ “by itself is insufficient as a matter of law to support a conviction.” ’ ” (Ibid.)

We apply well established principles of law to evaluate the corroboration of accomplice testimony. Corroborative evidence need not directly connect the accused with the offense but need only “tend” to do so. (Romero and Self, supra, 62 Cal. 4th at p. 32.) The requisite evidence “ ‘need not independently establish the identity of the [perpetrator]’ [citation], nor corroborate every fact to which the accomplice testifies.” (Romero and Self, supra, 62 Cal.4th at p. 32.) “ ‘The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.’ ” (Ibid.)

“ ‘ “The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.” ’ [Citation.] ‘ “The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime.” ’ [Citation.] ‘The evidence is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” ’ ” (People v. Williams (2013) 56 Cal.4th 630, 678–679; see People v. Dalton (2019) 7 Cal.5th 166, 245 (Dalton) [trier of fact’s determination of the issue of corroboration not binding on appeal if evidence does not tend to connect defendant with the crime].)

In this case, Hughes’s testimony was corroborated by Sabedra’s testimony that appellant confessed to shooting Ward. A defendant’s own admissions may corroborate an accomplice’s testimony. (Dalton, supra, 7 Cal.5th at p. 246.) The jury did not need to be convinced of the truth of the corroborative evidence beyond a reasonable doubt to consider it; corroborative evidence may be “ ‘slight and entitled to little consideration when standing alone.’ ” (People v. Avila (2006) 38 Cal.4th 491, 563.)

Appellant suggests the jury rejected Sabedra’s testimony about appellant’s admission of the shooting because it found the firearm enhancement was not true. But the rejection of a firearm enhancement “shows only that there was a reasonable doubt in the minds of the jurors that defendant specifically used a [firearm]. It does not show the reverse, that the jury specifically found defendant was an aider and abettor,” as opposed to a direct perpetrator. (People v. Santamaria (1994) 8 Cal.4th 903, 919, italics added.) The jury might well have credited Hughes’s testimony that appellant volunteered to steal Ward’s marijuana, left the apartment with Byrd’s gun, went out to Ward’s car with Paraiso and then returned to Sabedra’s apartment after the shooting, but still harbored a reasonable doubt that he (and not Paraiso) committed the shooting personally. (See People v. Thompson (2010) 49 Cal.4th 79, 119–120 [jury’s “not true” finding on gun use enhancement does not demonstrate defendant was convicted as an aider and abettor]; People v. Carter (2019) 34 Cal.App.5th 831, 844 [in context of § 654 claim, “not true” finding on enhancement did not mean jury had necessarily convicted defendant under a felony murder theory, which would have required stay of sentence on the underlying felony].) “The jury in defendant’s case likely believed defendant was guilty of murder either as the actual shooter or as an aider and abettor, but may have been uncertain as to the exact role he played. . . . The jury’s uncertainty as to the exact roles each [robber] played could explain its failure to sustain the gun use allegation.” (Thompson at p. 120.)

Hughes’s testimony was also corroborated by appellant’s presence at the convenience store near the scene of the shooting within half an hour of the shooting, which was memorialized by the store’s surveillance camera. Although evidence of mere presence at a crime scene may not in and of itself be sufficient corroboration under section 1111, here it was coupled with Sabedra’s testimony about appellant’s admission and her description about hiding a package that turned out to be a handgun corresponding to that used in the murder, at the request of a group that included appellant. (People v. Medina (1974) 41 Cal.App.3d 438, 465–466; see also see also People v. McDermott (2002) 28 Cal.4th 946, 986 [sufficient corroboration by evidence tending to show defendant’s motive, presence at scene, and friendship with accomplice]; People v. Gurule (2002) 28 Cal.4th 557, 628 [sufficient corroboration by independent evidence establishing, inter alia, defendant’s presence at scene of murder and that murder occurred as described by accomplice]; People v. Williams (1997) 16 Cal.4th 635, 648, 650, 681 [testimony of witness who saw defendant leaving residence at the time of the murders and defendant’s admission to police that he was present at scene of murders was sufficient corroborating evidence of accomplices’ testimony linking defendant to the murders].)

We note that the testimony of an accomplice is not inherently unreliable. (People v. Allen (1986) 42 Cal.3d 1222, 1251–1252.) The same rule applies when the accomplice has received a favorable plea agreement in exchange for her testimony. (People v. Jenkins (2000) 22 Cal.4th 900, 1010.) The jury in this case was instructed fully on the corroboration requirement and an assessment of Hughes’s credibility was within its province. (See People v. Hovarter (2008) 44 Cal.4th 983, 996 [testimony of immunized witness not excludable by trial court merely because he had a motive to lie; credibility was for jury to determine].) The corroboration requirement was satisfied and the evidence was sufficient.

B. Instruction on Testimony of a Single Witness

The court instructed the jury that the testimony of a single witness was sufficient to prove any fact. Appellant contends this instruction was prejudicially misleading because Hughes was an accomplice as a matter of law and her testimony could only be accepted by the jury if it was corroborated. We disagree.

CALCRIM No. 301 states, “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” The Bench Notes to CALCRIM No. 301 indicate that when any testimony requires corroboration to be considered, the instruction should be preceded by the bracketed paragraph, “[Unless I instruct you otherwise,].” Although Hughes was an accomplice and her testimony was subject to the corroboration requirement, the court read the jury a version of CALCRIM No. 301(without objection) that did not include the bracketed paragraph.

Appellant complains that the jury might have applied CALCRIM No. 301 to Hughes’s testimony despite her status as an accomplice. He relies primarily on People v. Chavez (1985) 39 Cal.3d 823, 830–832, in which the court noted that the instruction on the testimony of a single witness should be modified to explicitly refer to accomplice testimony when applicable, but found it was not misleading to omit such language in a case where accomplice instructions were also given.

The California Supreme Court rejected a claim similar to that raised by appellant in People v. Noguera (1992) 4 Cal.4th 599. There, the trial court had instructed the jury with CALJIC No. 2.17, which was substantially similar to CALCRIM No. 301 (testimony of a single witness is sufficient for the proof of any fact). (Noguera, supra, at p. 630.) The defendant argued this was misleading in a case where there was accomplice testimony requiring corroboration. The Noguera court stated, “We have encountered this claim repeatedly since our initial consideration of it in [Chavez, supra, 39 Cal.3d at

pp. 829–832 and] we concluded that ‘we must look to the entire charge, rather than merely one part, to determine whether error occurred. [Citation.]’ [Citation.] We have since refined the test formulated in Chavez to encompass determinations whether the jury ‘is instructed on the kind of evidence necessary to constitute corroboration, on the method of determining whether the accomplice’s testimony was corroborated, on viewing the accomplice’s testimony with distrust, and [whether] the parties proceed[ed] on the premise that corroboration is required.’ ” (Noguera, at p. 630.)

Assuming the claim was not forfeited on appeal because of appellant’s failure to request clarifying instructions, it fails on the merits. The trial court instructed the jury in detail regarding its treatment and consideration of accomplice testimony when a witness is an accomplice as a matter of law, giving CALCRIM No. 335: “If the crimes of attempted robbery and murder were committed, then Kai Hughes was an accomplice to those crimes. [¶] You may not convict the defendant of murder based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: One, The accomplice’s statement or testimony is supported by other evidence that you believe; Two, that supporting evidence is independent of the accomplice’s statement or testimony; and Three that supporting evidence tends to connect the defendant to the commission of the crime. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, [and it] does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows [that] a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice. Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after considering it with care and caution and in light of all of the other evidence.”

CALCRIM No. 335 qualifies for what the Noguera court called, “the full array of accomplice instructions.” (Noguera, supra, 4 Cal.4th at p. 631.) Thus, as in Noguera, “we conclude that nothing in the combined instructions suggested to the jurors that corroboration of [Hughes’s] testimony was not required: ‘A reasonable juror would have recognized [CALCRIM No. 301] as setting forth the general rule and the charge on accomplice testimony as an exception to it.” (Noguera, at p. 631.)

“It is axiomatic that ‘[j]urors are presumed able to understand and correlate instructions and are further presumed [to have] . . . followed the court’s instructions.’ ” (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.) Nothing in the record indicates the jury was confused about the need for corroboration before accepting accomplice testimony. Appellant argues he was prejudiced by the use of CALCRIM No. 301 in this case because by rejecting the personal firearm use allegation, the jury indicated that it did not believe the testimony by both Hughes (an accomplice) and Sabedra (a non-accomplice) to the effect that appellant had admitted being the shooter. Appellant reasons the jury could only have convicted him of felony murder by relying on Hughes’s uncorroborated testimony that appellant was seen walking toward Ward’s vehicle before the shooting. But as we explain in the preceding section of the Discussion, Hughes’s testimony that appellant participated in the attempted robbery, and was thus liable for felony murder as (at least) an aider and abettor was corroborated.

In light of the court’s thorough instruction on the issue of accomplice testimony, we presume the jury understood and applied the court’s instructions. There was no instructional error requiring reversal.

C. Flight Instruction

Appellant argues the trial court committed prejudicial error in giving a flight instruction over his objection. We disagree.

The court gave CALCIM No. 372, which provided, “If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” A trial court must instruct the jury on flight where the evidence of flight is “relied upon as tending to show guilt” (§ 1127c), and such evidence “ ‘ “shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt” ’ ” (People v. Bonilla (2007) 41 Cal.4th 313, 328 (Bonilla); People v. Bradford (1997) 14 Cal.4th 1005, 1055 (Bradford)).

“ ‘ “[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ [Citations.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ [Citation.]” (Bradford, supra, 14 Cal.4th at p. 1055; see also Bonilla, supra, 41 Cal.4th at p. 328.)

The evidence shows that after the attempted robbery and shooting in the parking lot, appellant returned to Sabedra’s apartment, discussed what to do next with his group of friends, was a part of the group that asked Sabedra to hide the gun (which she did), walked past an area that had been taped off by the police with Sabedra to a nearby convenience store, and was then picked up by a woman driving a car. This was sufficient to allow a reasonable trier of fact to infer that he left the scene to avoid detection. Appellant argues the evidence did not support a flight instruction because he did not leave the convenience store until almost 30 minutes after the shooting and made no attempt to conceal his identity, walking to the store “in plain view” of several police officers. It was for the jury to decide whether his conduct showed a consciousness of guilt. “Alternative explanations for flight conduct go to the weight of the evidence, which is a matter for the jury, not the court, to decide.” (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)

Even assuming it was error to give the flight instruction, there was no reasonable probability the instruction affected the jury’s verdict. (People v. Turner (1990) 50 Cal.3d 668, 695; People v. Watson (1956) 46 Cal.2d 818, 836.) CALCRIM No. 372 leaves the factual determination about whether flight occurred and the meaning of that flight to the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 60–61.) The jury was informed some of the instructions might not apply, the jurors should not assume the court was suggesting anything about the facts because a particular instruction was given, and the jurors should apply the instructions to the facts “as you find them.” (CALCRIM No. 200; People v. Barnett (1998) 17 Cal.4th 1044, 1153.) Additionally, the flight instruction emphasized that the evidence of flight from the police was not alone sufficient to establish guilt: “The cautionary nature of the [flight] instruction[ ] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)

We reject appellant’s claim that the flight instruction lowered the prosecution’s burden of proof and should therefore be evaluated under the more stringent harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, Courts have repeatedly rejected the claim that the flight instruction lowers the burden of proof. (People v. Boyce (2014) 59 Cal.4th 672, 691; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1159.)

D. Felony-Murder Rule; Senate Bill 1437

Appellant was tried in 2017 exclusively on a theory of felony murder. He argues that subsequent statutory changes to the felony murder rule, which limited the application of felony murder when the defendant is not the actual killer, should be applied in his case because the jury found a personal firearm enhancement not to be true and therefore convicted him as an aider and abettor. We conclude appellant must seek another avenue for any relief to which he is entitled.

Senate Bill 1437, which became effective January 1, 2019, was enacted to “ ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (People v. Martinez (2019) 31 Cal.App.5th 719, 723 [242 Cal.Rptr.3d 860, 862] (Martinez), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 accomplished that purpose by substantively amending Penal Code sections 188 and 189.

Under Penal Code section 188, subdivision (a)(3), as amended, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” Section 189, as amended, limits murder liability based on felony murder or a natural and probable consequences theory to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (Martinez, supra, at pp, 723–724; § 189, subd. (e).)

Senate Bill 1437 also added section 1170.95, which creates a procedure by which persons convicted of felony murder or murder under a natural and probable consequences theory may seek resentencing. Under subdivision (a) of section 1170.95, “[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts.” A petition may be filed if the following three conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) If the court determines the petitioner has made a prima facie showing of eligibility, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution does not sustain its burden of proof, then the prior conviction, including any allegation and enhancements, must be vacated and the petitioner resentenced on the remaining charges. (Ibid.) “The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Ibid.)

Appellant argues the amendments to the Penal Code enacted by Senate Bill 1437 apply retroactively to his conviction of murder under a felony murder theory. The Attorney General argues that appellant’s sole avenue of relief is section 1170.95. We agree with the Attorney General.

In Martinez, the Court of Appeal extensively analyzed the issue and concluded Senate Bill 1437 applies equally to persons whose sentences are final and those whose sentences are not. (Martinez, supra, 31 Cal.App.5th at pp. 722, 724–727.) The Martinez court concluded relief under Senate Bill 1437 in either case is not available by direct appeal; instead, the person seeking relief must file a petition in the sentencing court pursuant to section 1170.95. (Ibid.; accord In re Cobbs (2019) 41 Cal.App.5th 1073, 1079; People v. Munoz (2019) 39 Cal.App.5th 738, 749–753 (Munoz); People v. Lopez (2019) 38 Cal.App.5th 1087, 1113–1114 (Lopez), review granted Nov. 13, 2019 (S258175); People v. Carter (2019) 34 Cal.App.5th 831, 835; People v. Anthony (2019) 32 Cal.App.5th 1102, 1153 (Anthony).)

The Martinez court explained that section 1170.95 creates a statutory mechanism by which defendants may seek relief, and therefore operates in a similar fashion to Propositions 36 and 47, which created petitioning procedures held to be the exclusive avenues of seeking retroactive application of those new laws. (Martinez, supra, 31 Cal.App.5th at pp. 725–727, citing People v. Conley (2016) 63 Cal.4th 646, 661–662 and People v. DeHoyos (2018) 4 Cal.5th 594, 600, 603.) The Martinez court concluded: “The analytical framework animating the decisions in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. . . . That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.)

The Martinez court observed that section 1170.95 gives both the prosecution and the petitioner the opportunity to present new and additional evidence to support their respective positions. (§ 1170.95, subds. (b)(1)(A), (d)(3).) “Providing the parties with the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95’s resentencing process rather than avail themselves of Senate Bill 1437’s ameliorative benefits on direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 728; accord Munoz, supra, 39 Cal.App.5th at p. 752; Lopez, supra, 38 Cal.App.5th at p. 1114; Anthony, supra, 32 Cal.App.5th at p. 1153.)

In Anthony, supra, 32 Cal.App.5th at page 1153, the Court of Appeal agreed with and adopted the analysis of Martinez and rejected the argument the defendant was entitled to relief under Senate Bill 1437 on direct appeal. The Anthony court also addressed, and rejected, the argument that a defendant’s constitutional right to a jury trial would be violated if the petitioning procedure of section 1170.95 were the exclusive means of obtaining relief under Senate Bill 1437. “This argument is unpersuasive,” the court explained, “because the retroactive relief [defendants] are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature’s changes constituted an act of lenity that does not implicate defendants’ Sixth Amendment rights.” (Anthony, supra, 32 Cal.App.5th at p. 1156; accord Lopez, supra, 38 Cal.App.5th at pp. 1114–1115.)

We agree with and adopt the analyses of Martinez and Anthony. We conclude the amendments enacted by Senate Bill 1437 apply to appellant’s murder conviction, but he may not obtain relief by direct appeal. Instead, he must follow the procedure specified by the Legislature in section 1170.95. We express no view on the merits of such a petition.

E. Cumulative Error

Appellant contends the cumulative impact of the above errors deprived him of a fair trial. We have either rejected appellant’s claims of error or found that any errors, assumed or not, were not prejudicial. “Viewed as a whole, such errors do not warrant reversal of the judgment.” (People v. Stitely (2005) 35 Cal.4th 514, 560.)

F. Restitution Fine

The trial court imposed a $300 restitution fine, the minimum allowable under section 1202.4, subdivision (b), without objection. Appellant argues the court erred when it failed to first hold a hearing to determine appellant’s ability to pay this fine, in violation of the opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was issued after appellant’s sentencing in 2018. We reject the claim.

Some courts have criticized the holding in Dueñas, finding no due process impediment to imposing a minimum restitution fine as punishment without a prior determination of ability to pay. (People v. Hicks (2019) 40 Cal.App.5th 320, 326–329; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068–1069; People v. Caceres (2019) 39 Cal.App.5th 917, 923–929. We do not take this opportunity to enter into the fray, because any error in this respect was harmless. Appellant was sentenced to a lengthy prison term of 25 years to life plus three years consecutive, and it could be inferred that a sufficient amount to cover the fine would be deducted from prison wages over this time period. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 138–140.) We therefore need not decide in this case whether Dueñas should be embraced, rejected or limited to its facts.

G. Pitchess Hearing

Prior to trial, appellant filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531, seeking discovery of citizen complaints against Detective Dahl, who interviewed Hughes and Sabedra and was in charge of the investigation in this case. The trial court held an in camera hearing and concluded that Dahl’s police personnel files contained no discoverable information. Appellant requests that we independently examine the sealed reporter’s transcript of the in camera hearing, and respondent concedes that this request is appropriate. (People v. Mooc (2001) 26 Cal.4th 1216, 1228–1231.) We have reviewed the sealed transcript of the hearing and conclude that the trial court did not abuse its discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BURNS, J.

People v. Jones / A154492