F087986_20250821

Filed 8/21/25 P. v. Palafox CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge.

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2010, appellant and defendant Luis William Palafox (appellant) and codefendant Kyle Hoffman (Hoffman) were convicted after a jury trial of the first degree murders of Joseph and Dorothy Parrott, and three special circumstances were found true. The victims were killed by both sharp- and blunt-force injuries to their heads and necks. Both appellant and Hoffman were 16 years old when they committed the offenses. (People v. Palafox (2014) 231 Cal.App.4th 68, 73 (Palafox).) They were each sentenced to two consecutive terms of life in prison without the possibility of parole (LWOP). In their joint direct appeal, this court affirmed the convictions and remanded for resentencing. After remand, the trial court again sentenced both appellant and Hoffman to two consecutive LWOP terms, and this court affirmed the trial court’s resentencing decision. (Palafox, supra, 231 Cal.App.4th at p. 73.)

In 2024, appellant filed a petition for recall and resentencing pursuant to Penal Code¹ section 1170, subdivision (d), which states in relevant part that “[w]hen a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing,” if the defendant meets additional statutory requirements. (§ 1170, subd. (d)(1)(A).) For recall eligibility, the trial court also must find by a preponderance of the evidence that the defendant met his burden to establish one of four circumstances stated in section 1170, subdivision (d)(2)(A)–(D). As relevant to appellant’s petition, these circumstances include that he did not have prior juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims before committing the life offense; and he has performed acts that tend to indicate rehabilitation or the potential for rehabilitation. (§ 1170, subd. (d)(2)(B), (D) & (d)(5).) If a defendant meets the eligibility criteria, the court shall recall the LWOP sentence and conduct a hearing “to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170, subd. (d)(5).) Section 1170, subdivision (d) states several factors the court “may” consider when exercising its discretion whether to impose a lesser sentence, and the court retains discretion to again impose the LWOP term. (§ 1170, subd. (d)(5)–(11).)

The trial court’s ruling

The trial court summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation (CDCR) for at least 15 years as required by section 1170, subdivision (d)(1)(A). The court also found appellant failed to prove by a preponderance of the evidence his claims that he satisfied two of the recall eligibility circumstances defined in section 1170, subdivision (d)(2)(B) and (d)(2)(D)—that he did not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall, and he had performed acts tending to indicate his rehabilitation or potential for rehabilitation.

Briefing order

After the initial briefing in this case, this court filed an order advising the parties it was considering whether to take judicial notice of the record and nonpublished opinion in appellant’s direct appeal, People v. Hoffman et al. (July 5, 2012, F061127) as modified July 30, 2012 (Hoffman), which affirmed his convictions and remanded for resentencing; and the record in Palafox, supra, 231 Cal.App.4th 68 (F067413), that affirmed the trial court’s resentencing order on remand.

This court also ordered the parties to file supplemental briefs and address the impact of statements in Palafox, supra, 231 Cal.App.4th at page 80, and the records in Hoffman, F061127, and Palafox, F067413, that appellant did not have a prior criminal record, as relevant to the recall eligibility circumstance described in section 1170, subdivision (d)(2)(B), and whether the trial court’s alleged errors in denying the petition are harmless in light of the trial court’s finding he failed to meet his burden to prove the rehabilitation circumstance for recall eligibility in section 1170, subdivision (d)(2)(D), because it is identical to one of the factors the court may consider after recall when deciding whether to exercise its discretion to impose a sentence less than LWOP.

The parties’ contentions

Appellant argues the trial court erroneously denied his petition and he satisfied the eligibility requirements for recall because: (1) the trial court’s interpretation of “incarcerated” was legally erroneous and he meets the 15-year requirement when preconviction detention is included; (2) although he objects to taking judicial notice of certain records and parts of the opinion in Hoffman, supra, F061127, he argues the probation report, the opinion in Palafox, supra, 231 Cal.App.4th 68, and other judicially noticed records in Hoffman, F061127, and Palafox, F067413, support his statement in the petition that he had no prior criminal record; but he acknowledges these records were not before the trial court or filed in support of his petition; and (3) he met the rehabilitation circumstance for recall based on the documentary evidence he filed in support of his petition. He argues the trial court’s errors are not harmless because section 1170, subdivision (d)(6) states additional factors for the trial court to consider at a resentencing hearing. In the alternative, he asserts remand is required so he can file an amended petition supported by the probation report and the judicially noticed evidence that he did not have a prior record, which would establish his eligibility for recall and require the trial court to recall his LWOP terms and remand the matter to the juvenile court for resentencing.

The People acknowledge the trial court’s custodial finding was erroneous and appellant had been incarcerated for at least 15 years when he filed his petition. However, the People assert the trial court’s other findings are supported by the record that was before the court, the judicially noticed records cannot be considered since they were not before the trial court, appellant failed to meet his burden of proving his eligibility, and any errors are harmless given the trial court’s negative finding on the rehabilitation circumstance, which would apply to the identical resentencing factor.

As will be explained, we take judicial notice of this court’s records in Hoffman, F061127, and Palafox, F067413, and the nonpublished opinion in Hoffman, supra, F061127. The following factual and procedural summaries are from the judicially noticed records and Palafox, supra, 231 Cal.App.4th 68.

We find the trial court’s ruling on the calculation of appellant’s period of incarceration was error, and appellant’s preconviction custody should have been included to find he had been incarcerated for 15 years when he filed his petition.

We also find that the record before the trial court did not support appellant’s statement in his petition that he did not have a prior criminal record. However, this court’s published opinion in Palafox, supra, 231 Cal.App.4th 68, and the records in Hoffman, F061127, and Palafox, F067413, stated he did not have a prior criminal record, and would have supported remand for appellant to file an amended petition to obtain recall.

Finally, we conclude the trial court’s errors in denying appellant’s petition and failing to conduct a resentencing hearing are harmless, given the court’s additional finding that he failed to perform acts that tend to indicate rehabilitation or the potential for rehabilitation. The court’s finding on the rehabilitation circumstance is supported by the record and demonstrates that even if the court had recalled appellant’s sentence, it would not have imposed a lesser sentence so that remand would be an idle act.

FACTS

Evidence Heard by Both Juries²

“Early on the morning of August 6, 2008,³ Bakersfield Police Officer Woessner was investigating an abandoned stolen vehicle when he heard a car alarm coming from the 4400 block of Belle Terrace. He saw [appellant] walking away from the vehicle that was emitting the alarm; when Woessner identified himself and asked him to stop, [appellant] ran. Woessner caught and detained [appellant]. [Appellant] had a dagger with a four-inch-long, double-sided blade in his sock. [Appellant] was arrested for having the knife, which was seized and booked into the police department’s property room.

“Later that morning, Richard [P.], the son of Joseph and Dorothy Parrott, received a telephone call from his cousin saying Dorothy had not shown up as scheduled to take Richard’s aunt to an appointment.^[4] Richard was unable to make telephonic contact with his parents, whom he had last seen on the morning of August 4. As a result, he went to their Bakersfield home. As he approached, he saw that a window had been dislodged from the door on the side of the house. Richard yelled inside the house but, getting no response, went back out front and called his cousin, Gerald [G.], and asked him to come over.

“[Gerald] arrived a short time later and went to the back of the house, where he found the sliding door open. He and Richard telephoned again and heard the phone ringing inside, but there was no answer despite the fact both cars were in the garage. At that point, Richard called 911.

“Officer Knutson and his partner arrived at about 1:45 p.m. After contacting Richard outside, the officers entered through the open rear sliding glass door and conducted a protective sweep of the residence. Knutson observed a small wooden box in the middle of the hallway, with jewelry on the floor next to it. There was nobody in the first bedroom off the hallway. In the second bedroom, he found an elderly male, subsequently identified as Joseph, lying dead on the bed. There was dry blood on his face, the blankets, and the pillow. The pillow was covering his face, and it appeared someone had pushed it down in that position. There were also what appeared to be lacerations to his neck. In the master bedroom, Knutson found an elderly female, subsequently identified as Dorothy, lying dead on the bed. A pillow with dried blood on it was covering her face. Her skull was partially crushed in.

“There was extensive blood spatter in the rooms in which the bodies were found, especially the one in which Dorothy was located. The cast-off blood stains and arch patterns in both rooms indicated a striking of multiple blows. There was also impact spatter on and above the headboard in the room in which Dorothy was found. Impact spatter results from an object striking a source of exposed blood. There was no trail of blood between the two bedrooms or out of the room in which Dorothy was found. There was no drip trail from the implement used.

“Shoe tracks were found in the tile hallway that connected the kitchen, laundry room, garage, and living room area on one end, with the bedrooms and office on the other end. It appeared someone had gone through dressers, nightstands, a file cabinet, jewelry boxes, and a jewelry armoire in various rooms.

“Joseph’s autopsy revealed that he had eight individual sharp-force injuries along the left side of his neck, ranging in depth from one and a half to three and a quarter inches. Although the stab wounds appeared to have been made by a single-edged implement, this could not be determined with certainty, because the body was going through the stages of decomposition and so the wounds were somewhat dried. Dried edges can make what was caused by a double-edged blade appear to have been made by a single-edged blade. Joseph also had possible defensive wounds on his left hand. The left side of his jaw was fractured, and he suffered a subarachnoid hemorrhage (bleeding between the brain and the skull). Bruising on his left shoulder was linear, suggesting he was struck with a linear object. Death, which was caused by sharp[-] and blunt-force injuries, was not instantaneous.

“Dorothy’s autopsy revealed that she had trauma to her face and both sides of her head. The left side of her face showed blunt[-]force trauma with linear bruising. The entire right side of her face basically was crushed. She had a large laceration, and her right eye was pushed backwards into her cranial vault. She had numerous skull fractures, two of which were in a circular pattern, meaning there was an actual impact by an object. That sort of fracture could be consistent with being struck by a linear object such as a baseball bat. Because of the skull fractures, there was tearing of the brain itself. Such crushing of the skull required a significant amount of force. Dorothy also had linear contusions from blunt[-]force trauma to her abdomen, left flank to left shoulder, and right shoulder. The linear bruising observed on Dorothy was similar to that noted on Joseph, and the blunt[-]force injuries to both could be consistent with being caused by the same or a similar type of weapon. Because all of the bruises corresponded to extensive hemorrhaging into the soft tissues of the fat of Dorothy’s back, it meant her heart was still beating when she received those injuries. In addition, Dorothy had multiple contusions to the upper left arm, just below the shoulder. Some were linear abrasions, but two were in the shape of an inverted C. They could be consistent with the knob end of a baseball bat. The cause of death was blunt[-]force head trauma.

“Dr. Wallis-Butler, the forensic pathologist who performed both autopsies, could not give an exact time of death because so many factors came into play. She estimated though that, depending on the environment and based on the bodies’ degree of decomposition, death occurred 12 to 36 hours earlier.

“On November 23, a search warrant was executed at an apartment in the 4400 block of Belle Terrace in which Hoffman resided. Joseph’s state quarter collection was found in one of the bedrooms. Seized from a closet in the same bedroom were a pair of shoes that, although they could not be positively identified as the ones that made the tracks in the Parrotts’ hallway, were the same size, had the same or a very similar tread pattern, and had a similar wear pattern.

“Also on November 23, a search warrant was executed at the Moreno Valley residence of [appellant’s] mother. Some of Joseph’s rings were found in two of the bedrooms. [Appellant] was located in Whittier and arrested. The knife seized from him on August 6 (the morning the bodies were discovered) was examined. DNA analysis showed that a 15-loci genetic profile developed from blood found where the blade met the hilt matched Joseph’s genetic profile. The probability of selecting the DNA profile from a population of random unrelated individuals was estimated to be one in 670 quadrillion Caucasians, one in 2.1 quintillion African-Americans, and one in 7.3 quintillion Hispanics.” (Hoffman, supra, F061127.)

Evidence Heard Only by Appellant’s Jury

“K.M., Hoffman’s sister, testified under a grant of immunity. During August through November, [appellant] lived in Moreno Valley. In August, [appellant] stayed with her family, including Hoffman, in an apartment on Belle Terrace. At the time, K.M. had a full-sized Dodgers baseball bat.

“At some point, K.M. was around [appellant and Hoffman] when the two were talking about going into someone’s house and stealing. On August 4, the two left the apartment around 11:00 p.m. or midnight and did not return until 3:00 a.m. or later. They took the bat with them and returned with it. Around that same time frame, K.M. was in her room with [appellant and Hoffman] and she touched the bat. [Appellant and Hoffman] both reacted, and [appellant] told her not to touch it. After that, [appellant] took the bat away and she never saw it again. At some point at the beginning of August, K.M. looked into Hoffman’s backpack. In it, she saw jewelry and a couple hundred dollars. [Appellant] said they had gotten the money and jewelry when they were out breaking into cars.

“In September or October, K.M. spoke to [appellant] by telephone and asked him if he was involved in a murder that occurred during a break-in at a house. [Appellant] said something like she should not be talking about it with him over the phone.

“[A law enforcement officer] interviewed K.M., who was not in custody, at the Bakersfield Police Department in November. K.M. volunteered that she had called [appellant] and asked him about his involvement in the murders. [Appellant] denied, more than once, knowing what she was talking about. When K.M. became more ‘blunt,’ basically telling him, ‘like murder, retard,’ [appellant] paused, then replied ‘yeah.’ [Appellant] directed her not to talk about it on the phone.” (Hoffman, supra, F061127.)

PROCEDURAL BACKGROUND

On February 17, 2009, an information was filed in the Superior Court of Kern County charging appellant and Hoffman with two counts of murder, with multiple murder, robbery, and burglary special circumstances.⁵ As noted above, the trials for appellant and Hoffman were consolidated and separate juries were impaneled.

On August 24, 2010, the respective juries convicted appellant and Hoffman of two counts of first degree murder (§ 187, subd. (a)), and found true the multiple murder (§ 190.2, subd. (a)(3)), robbery/murder (§ 190.2, subd. (a)(17)(A)), and burglary/murder (§ 190.2, subd. (a)(17)(G)) special circumstances.⁶

On September 22, 2010, the court sentenced appellant to two consecutive LWOP terms. Hoffman received the same sentence.⁷

Direct appeal

In the joint direct appeal of appellant and Hoffman, this court filed a nonpublished opinion that rejected Hoffman’s evidentiary and instructional challenges, rejected the arguments of appellant and Hoffman that imposition of LWOP on a juvenile violated the federal and state Constitutions, ordered the parole revocation fines stricken, and affirmed the judgment as modified. (Hoffman, supra, F061127; accord, Palafox, supra, 231 Cal.App.4th at p. 74.)

Both appellant and Hoffman filed a petition for rehearing on the imposition of the LWOP terms. This court filed a modified opinion on denial of rehearing, and addressed Miller v. Alabama (2012) 567 U.S. 460, 465 (Miller), which held the Eighth Amendment prohibits sentencing schemes that mandate LWOP sentences for juvenile offenders convicted of certain homicide offenses. This court “found the trial court did not abuse its discretion under the law as it stood when it sentenced [appellant] and Hoffman. Nevertheless, we concluded that because the ‘characteristics discussed in Miller were not at the forefront of the factors considered by the trial court when exercising its discretion . . . , [appellant and Hoffman were] entitled to have the trial court reconsider its decision under section 190.5, subdivision (b) in light of Miller, and to be resentenced accordingly.’ [Citation.] As a result, we affirmed the judgments of conviction, but vacated the sentences and remanded the matters to the trial court ‘to exercise its discretion under . . . section 190.5 in light of Miller’ and to resentence [appellant] and Hoffman. [Citation.]” (Palafox, supra, 231 Cal.App.4th at pp. 74–75; see Hoffman, supra, F061127.)

Resentencing on remand

On May 24, 2013, Judge Somers, who had presided over the joint jury trial, conducted the resentencing hearing for both appellant and Hoffman. Appellant did not present any witnesses at the hearing. The trial court granted appellant’s request to take judicial notice “of the evidence adduced at trial; the evidence presented in support of the motions (including statements made by [appellant] and Hoffman), and the rulings, that resulted in two juries hearing the case; and [appellant’s] submissions and arguments at the original sentencing hearing.” (Palafox, supra, 231 Cal.App.4th at p. 75, fn. 4, italics added.)

The trial court also considered a written report introduced by appellant, and written by Angela Mason, a licensed clinical social worker; the prosecution waived any evidentiary objections. (Palafox, supra, 231 Cal.App.4th at p. 75.)⁸ According to Mason’s report, Hoffman was appellant’s uncle, appellant’s mother used drugs, and his father was a gang member. After appellant’s parents split up, appellant’s mother lived with another gang member. (Palafox, at pp. 75–76.) Mason reported that appellant’s family “ ‘suffered from multigenerational abject poverty.’ Research has shown ‘poverty damages children’s dispositions, blunts their brains, and causes permanent brain damage from excessive exposure to toxic stress.’ Mason surmised a ‘ “blunted brain” ’ may have made defendant appear cold and distant to doctors and probation officers, when in reality he may have been showing the signs of poverty and its effects.” (Id. at p. 76.)

Mason concluded appellant had “ ‘nearly every imaginable risk factor for violence and delinquency,’ while lacking protective buffering factors other than the positive influence of one of his aunts. She also listed the various factors that shaped [appellant’s] life and influenced his involvement in the instant offense. She ended her report by observing that [appellant’s] mother left [him] with his grandmother in Bakersfield. Because of her long history of drug addiction and poor parenting skills, the grandmother could not supervise or comfort [appellant], who was emotionally distraught over his mother’s and [her boyfriend’s] violence and separation. Mason surmised Hoffman ‘likely took advantage of his younger nephew [appellant] by encouraging his involvement in the instant offense.’ ” (Palafox, supra, 231 Cal.App.4th at p. 78.) “Mason related that [appellant] felt sorry for the Parrotts’ deaths, and wished things were different. He knew he did wrong and felt he belonged in prison. He wanted to be a better person.” (Id. at p. 77.) “Other than conveying [appellant’s] expression of remorse and desire to be a better person, however, the report did not address any potential for rehabilitation.” (Id. at p. 92, fn. 17.)

In argument to the trial court, appellant’s counsel “acknowledged [appellant] was a full participant in the Parrott murders, which counsel termed ‘horrible’ and ‘inexcusable,’ and that [appellant] and Hoffman were mature, intelligent, and articulate. Counsel argued [appellant] was 16 when these crimes were committed, people change and grow over time, and [he] was going to be severely punished even without an LWOP sentence.” (Palafox, supra, 231 Cal.App.4th at p. 78.) The prosecutor asserted “the murders were ‘about as bad as it gets,’ and pointed out the Parrotts ‘[did not] have to die.’ ” (Ibid.)

The trial court stated this case involved “brutal homicides” and was “one of the worst homicide situations that I had seen in nearly 30 years.” The court again imposed two consecutive LWOP terms for both appellant and Hoffman:

“ ‘[W]hen I weigh these factors [in Miller], the one that is by far the greatest weight to me is the circumstances of the offences [sic] that were committed in this particular case and not just the severity and brutality of the crimes involved, but the fact that there is absolutely no question that the potential consequences to the Parrotts, who were doing nothing other than sleeping in their own home, were unaware prior to the assaults at the beginning, as far as anyone can tell presence, certainly outside their home as the discussion is taking place that [appellant] and Mr. Hoffman were calculating and considering violating their rights and perhaps even inflicting harm on them, and the fact that there was discussion of the fact and the presence of the weapon, at least one weapon, ultimately more, to for lack of a better term execute the Parrotts if in fact their presence became or was perceived to be a problem in terms of Mr. Hoffman and [appellant] carrying out their objectives of taking what property they wished to be found inside. [¶] I find almost more chilling than . . . what happened . . . when the offences [sic] were committed the fact two individuals in question stood outside at some point and had a discussion about what to do to the people inside if they were located. That to me is almost a very definition of premeditated murder.’ ” (Palafox, supra, 231 Cal.App.4th at pp. 80–81.)⁹

Appellant’s appeal after resentencing

Appellant filed an appeal from the trial court’s resentencing decision; Hoffman did not join. In Palafox, supra, 231 Cal.App.4th 68, we granted appellant’s request to take judicial notice of the entirety of the appellate record and opinion in Hoffman, supra, F061127, which the trial court had also considered at the resentencing hearing. (Palafox, at p. 73, fn. 1.) We noted the trial court found appellant “had no previous criminal history” but this factor was not dispositive. (Id. at p. 80.)

“[W]e have subjected the constitutionality of the sentence to our independent review, taking into consideration [appellant]’s age and its hallmark features [citations], record information regarding [appellant]’s family and home environment [citations], and record evidence and information regarding the circumstances of the murders, including whether substance abuse played a role [citations]. We have considered whether [appellant]’s youth had any effect on how he was charged or whether he was somehow disadvantaged in the criminal proceedings [citations], but find no evidence or information suggesting this factor is applicable to [appellant]’s case. Finally, we have examined the record for any evidence or other information bearing on the possibility of rehabilitation. [Citations.] Other than [appellant]’s age and lack of past criminal history, we find none—only speculation. Speculation is insufficient to render unconstitutional a sentence that otherwise passes constitutional muster.” (Palafox, supra, 231 Cal.App.4th at pp. 91–92, fn. omitted.)

We concluded the trial court properly considered relevant evidence as required by Miller, it did not abuse its discretion when it again imposed consecutive LWOP sentences, and appellant’s aggregate sentence did not violate the federal or state Constitution. (Palafox, supra, 231 Cal.App.4th at pp. 80, 91–92.)¹⁰

APPELLANT’S PETITION FOR RECALL

The instant appeal is from the trial court’s summary denial of appellant’s petition, filed on or about January 3, 2024, for recall of his two consecutive LWOP terms and certification of his case to juvenile court for disposition, pursuant to section 1170, subdivision (d). Appellant filed his petition, points and authorities, and supporting documentary exhibits in propria persona.

Appellant’s arguments

In his supporting points and authorities, appellant stated he was eligible for recall and resentencing because he met the statutory requirements of section 1170, subdivision (d)(1) and (2): he was born in March 1992, and he was 16 years old when the offenses were committed in August 2008; he was sentenced to two consecutive LWOP terms in 2010; he had been in custody since November 24, 2008, and had been incarcerated for at least 15 years; he filed supporting statements and documents about his remorse and work toward rehabilitation; and his petition was filed with the court and a copy served on the prosecutor’s office.

Recall eligibility circumstances stated in section 1170, subdivision (d)(2)(A)–(D)

Appellant’s petition next addressed section 1170, subdivision (d)(2)(A)–(D), which require the trial court to find by a preponderance of the evidence that he met one of four enumerated circumstances to mandate recall of his sentence.

Appellant stated he satisfied two of those circumstances: he “had never been convicted of any felony assault crimes” prior to committing the LWOP offenses, as stated in section 1170, subdivision (d)(2)(B); and he performed acts that tended to indicate his rehabilitation or the potential for rehabilitation, as stated in section 1170, subdivision (d)(2)(D).¹¹

In a handwritten “Statement of Qualifying Factors,” which appellant did not sign, he “affirm[ed]” his birthdate, he was under the age of 18 years at the time of the offenses, he did not have any juvenile adjudications or adult felony convictions for assaultive offenses prior to the murders, and he had performed acts that tended to show his rehabilitation or the potential for rehabilitation.

Appellant filed numerous documents supporting his statement about rehabilitation, and asserted he “engaged in many wide-ranging rehabilitative activities,” including earning his GED and AA degree, learning cognitive behavior skills to deal with anger management, working as a tutor and inmate peer educator, and receiving laudatory reports from CDCR and his various programs.

Statements of remorse and rehabilitation

In support of his petition, appellant filed separate, typewritten documents entitled “Statement of Remorse” and “Statement of Rehabilitation” as required by section 1170, subdivision (d)(2). In these documents he stated that he murdered the two victims and did not care about his conduct; starting in 2014, he began participating in numerous classes and programs in prison that made him understand the harm he inflicted upon the victims, their family, and the community; and he felt shame and remorse for what he had done and worked to understand and improve his behavior. Appellant did not sign these documents. Appellant also filed plans to avoid relapses for situations involving anger management, substance abuse, and domestic violence, and certificates and commendations for his successful completion of programs and classes.

Request for certification to juvenile court

Appellant’s petition concluded that he satisfied the provisions of section 1170, subdivision (d)(1) and (2) for mandatory recall of his LWOP terms and remand was required. Instead of a resentencing hearing, appellant asserted that, since the judgment would no longer be final, the trial court should certify his case to juvenile court for further appropriate proceedings pursuant to Proposition 57.¹²

THE COURT’S DENIAL OF THE PETITION

On March 29, 2024, Judge Wolf, who did not preside over appellant’s trial or his resentencing hearing, filed a lengthy order that stated appellant was 16 years old when he “murdered an elderly couple . . . while they slept in their home,” he was convicted of two counts of first degree murder with three special circumstances, and he was sentenced to two LWOP terms. That order extensively addressed the provisions of section 1170, subdivision (d), and found appellant satisfied some of the statutory requirements for recall: he was under 18 years old when he committed the murders; he was sentenced to two LWOP terms; he served the current petition on the Kern County District Attorney’s Office, which prosecuted the case; and his petition included statements describing his remorse and work toward rehabilitation.¹³

However, the court denied appellant’s petition and found he was ineligible for recall because he failed to satisfy three statutory requirements.

First, the trial court stated appellant filed his petition in 2024, but he had not been “incarcerated” for at least 15 years as required by section 1170, subdivision (d)(1)(A). “[Appellant] contends that he has been ‘detained’ or ‘in custody’ since November 24, 2008,” when he was taken into custody for the murders, but he was not received by CDCR until October 8, 2010, after his conviction and sentence.

“[T]his Court finds that this time of detention in jail is not to be included when calculating the time [he] has been ‘incarcerated’. [¶] The Court views the requirement of having to been incarcerated as having been under the supervision of the CDCR post-conviction without reference to the pre-conviction credits if the inmate had been detained prior to the conclusion of the proceeding against him.” (Italics added.)

The trial court concluded that calculation of the 15-year period did not include “pre-conviction time detained in jail,” and appellant was ineligible for recall in 2024.

Second, the trial court found appellant’s petition failed to prove by a preponderance of the evidence that he met one or more of the four circumstances stated in section 1170, subdivision (d)(2)(A)–(D). It held that appellant’s statement in his petition, that he did not have any prior record before committing the murders, did not meet his burden to satisfy the circumstance in section 1170, subdivision (d)(2)(B).

“[Appellant] provides no evidence of such an assertion is true. With no evidence in support [appellant] has failed to prove by a preponderance of the evidence that [appellant’s] claim to have never been adjudicated of a juvenile felony or other felony crimes with a significant potential for personal harm to victims.” (Italics added.)

Third, the court rejected appellant’s statement that he satisfied the rehabilitation circumstance stated in section 1170, subdivision (d)(2)(D):

“Although very laudable behavior is documented in this evidence, in the opinion of this Court, it fails to prove by a preponderance of the evidence that [appellant] has performed acts that tend to indicate rehabilitation or the potential for rehabilitation.”

DISCUSSION

I. This court’s judicial notice order

This court advised the parties that it was considering taking judicial notice of the record before this court and the nonpublished opinion filed in Hoffman, supra, F061127, appellant’s direct appeal, and the record before this court in appellant’s appeal after remand for resentencing, Palafox, supra, 231 Cal.App.4th 68 (F067413).¹⁴ The People did not object but appellant raised several objections.

In his supplemental brief, appellant asserts that since this court did not identify which portions of the record and nonpublished opinion in Hoffman, supra, F061127, were going to be within the judicial notice order, he has a general objection to taking judicial notice of any matters in the record and nonpublished opinion that are not relevant to this appeal and/or constitute hearsay.

Appellant raises specific objections to the following matters in the record in Hoffman, F061127: all pretrial motions and hearings, the record for the evidentiary portions of the joint jury trial that were only heard by codefendant Hoffman’s jury, the jury instructions, and the parties’ arguments. As to the nonpublished opinion in Hoffman, supra, F061127, appellant only objects to the section that summarized the evidence heard only by Hoffman’s jury “as representing ‘hearsay’ and being ‘reasonably subject to dispute.’ ”

Appellant does not object to taking judicial notice of the record in Hoffman, F061127, consisting of the trial transcript of evidence heard by both juries, the evidence heard only by his separate jury, the verdicts, abstract of judgment, and the transcript of appellant’s sentencing hearing. Appellant does not object to this court taking judicial notice of its own records in Palafox, F067413, including the records that support the trial court’s finding at the resentencing hearing that he did not have a prior record.

A. Judicial notice

“A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Moreover, judicial notice should be taken only of those matters which are relevant to the issue at hand. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301; see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262, 1276; Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.)

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. [Citation.] This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. [Citation.] Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. [Citation.]” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, supra, 91 Cal.App.4th at p. 882, original italics; see Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 382, disapproved on other grounds by Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 648.)

B. Analysis

Appellate courts routinely take judicial notice of the records of their own cases under Evidence Code sections 452, subdivision (d) and 459. (See, e.g., Estate of Kempton (2023) 91 Cal.App.5th 189, 193, fn. 2 [taking judicial notice of prior nonpublished opinion in the same case on court’s own motion]; Rel v. Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 886 [“On our own motion, we take judicial notice of [two prior opinions in same case] as well as the underlying appellate records. (See Evid. Code, § 452, subd. (d).)”]; People v. Bilbrey (2018) 25 Cal.App.5th 764, 769, fn. 7 [taking judicial notice of related appeal in writ proceeding]; People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1 [“We take judicial notice of the record on appeal filed in this court” in the defendant’s prior appeal, “as well as of this court’s unpublished opinion in that matter. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)”]; see also Cal. Rules of Court, rule 8.1115(b) [“An unpublished opinion may be cited or relied on: [¶] . . . [¶] (2) When the opinion is relevant to a criminal . . . action because it states reasons for a decision affecting the same defendant or respondent in another such action.”].)

For purposes of this appeal, we take judicial notice of the entirety of this court’s own records and our nonpublished opinion in appellant’s direct appeal from the judgment in Hoffman, F061127, and this court’s own records in his appeal from the resentencing judgment in Palafox, F067413.

As for the trial evidence that was heard only by Hoffman’s separate jury, appellant’s current argument is that such evidence is not relevant to the instant appeal. This argument is inconsistent with his judicial notice requests when this court vacated his original LWOP terms and remanded the matter for another sentencing hearing in light of Miller. (Hoffman, supra, F061127; Palafox, supra, 231 Cal.App.4th at p. 75.) At the resentencing hearing on remand, the trial court granted appellant’s request to take judicial notice of the trial evidence, including “the evidence presented in support of the motions (including statements made by [appellant] and Hoffman), and the rulings, that resulted in two juries hearing the case; and [appellant]’s submissions and arguments at the original sentencing hearing.” (Palafox, supra, 231 Cal.App.4th at p. 75, fn. 4.) On appeal from the reimposition of the LWOP terms, this court granted appellant’s request to take judicial notice of the entirety of the trial record and nonpublished opinion in Hoffman, supra, F061127; appellant did not request to exclude any part of the trial record or the evidence heard only by Hoffman’s jury, and this evidence was summarized in the published opinion in Palafox. (Palafox, supra, 231 Cal.App.4th at p. 73, fn. 1.)

In any event, while we have taken judicial notice of the entirety of the records in Hoffman, F061127, and Palafox, F067413, we need not rely on inadmissible hearsay or matters that are not relevant to the issues raised herein. We also decline to rely on the trial record of the inculpatory evidence heard only by Hoffman’s separate jury, as summarized in the Hoffman and Palafox records and opinions. In doing so, we note that similar evidence was already before the trial court, and is also before this court, as part of the instant petition and independent of the records in Hoffman and Palafox.

When the trial court denied appellant’s petition for recall, it was clearly aware of the nature and circumstances of the crimes in this case because it stated appellant “murdered an elderly couple . . . while they slept in their home.” The trial court also reviewed the documents that appellant filed in support of his petition, including the “Statement of Remorse” where he admitted, “I murdered both Joseph and Dorothy,” he did not care “about the life I was taking or the lifetime of harm and trauma my callous acts would cause to their family,” and “Joseph and Dorothy did not deserve for me to inflict my cowardly act of murder upon them. . . . Imagining the level of fear and confusion they were experiencing in their final moments has left me changed in a way that the prison system alone could have never hoped to accomplish.” (Italics added.)

Also in his “Statement of Remorse,” appellant apologized to first responders who were at the scene of the murders because “[o]ne thing said during a first responder’s testimony in my trial was that in all the years he had worked in his field, this murder was the worst he had ever witnessed. This is a horrible image for anyone to have to see let alone carry with them for life. All these years later, the knowledge that I’m responsible for such a horrible scene still turns my stomach, filling me with disgust and shame.” He acknowledged the pain he caused to the jury, who heard the “horrible details” of “the crimes I committed,” to the prosecutor and judge, who had “to listen and learn all the gruesome details of my crime against Joseph and Dorothy Parrott,” and to his parents and family, who “heard of the terrible crimes I committed.” (Italics added.) In his separate “Statement of Rehabilitation,” appellant again admitted, “I murdered both Joseph and Dorothy Parrott,” he previously refused to accept responsibility and denied culpability “at every turn,” and he could not “stand the fact” that he was such a “coward” and “monster.”

Thus, while we decline to rely on the evidence heard by Hoffman’s separate jury for purposes of this appeal, the record before the trial court contained appellant’s admissions that he killed both victims, the murders involved “gruesome details,” and he left behind a “horrible scene.”

II. Section 1170, subdivision (d)

Turning to the merits, the recall and resentencing provisions of section 1170, subdivision (d), were enacted by Senate Bill No. 9 (2011–2012 Reg. Sess.). (In re Kirchner (2017) 2 Cal.5th 1040, 1049; People v. Gibson (2016) 2 Cal.App.5th 315, 323.) “In Graham v. Florida (2010) 560 U.S. 48 . . . , our nation’s high court held the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. [Citation.] In response to Graham, the Legislature enacted section 1170[, subdivision ](d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms. [Citation.]” (People v. Sorto (2024) 104 Cal.App.5th 435, 442.)

Senate Bill No. 9 (2011–2012 Reg. Sess.) was introduced in the legislation in 2010, it was enacted in 2012, and it went into effect on January 1, 2013. (People v. Gibson, supra, 2 Cal.App.5th at pp. 322–323.)

A. Eligibility for recall

Section 1170, subdivision (d) states in relevant part that “[w]hen a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.” (§ 1170, subd. (d)(1)(A).)

“The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case.” (§ 1170, subd. (d)(2).) “The petition shall include the defendant’s statement that the defendant was under 18 years of age at the time of the crime and was sentenced to [LWOP], the defendant’s statement describing their remorse and work towards rehabilitation . . . .” (Ibid.)

The petition also must include “the defendant’s statement that one of the following is true . . . .” (§ 1170, subd. (d)(2).)

“(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.

“(B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.

“(C) The defendant committed the offense with at least one adult codefendant.

“(D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.” (§ 1170, subd. (d)(2)(A)–(D).)

“If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. . . .” (§ 1170, subd. (d)(5), italics added.) Recall is mandatory if the court finds the defendant has met the statutory requirements. (In re Kirchner, supra, 2 Cal.5th at p. 1050.)¹⁵

B. Filing an amended petition

In determining a defendant’s eligibility for recall, “[i]f any of the information required in [section 1170, subdivision (d),] paragraph (2) is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the defendant and advise the defendant that the matter cannot be considered without the missing information.” (§ 1170, subd. (d)(3).)¹⁶

On appeal, we review statutory interpretations de novo. (People v. Walker (2024) 16 Cal.5th 1024, 1032.) In reviewing the trial court’s factual findings, we determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence. (People v. Millard (2009) 175 Cal.App.4th 7, 26.)

III. Incarcerated for 15 years

Section 1170, subdivision (d)(1)(A) states that a defendant is eligible for recall and resentencing if he or she “has been incarcerated for at least 15 years” at the time the petition is filed, but does not define the term “incarcerated.” (People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031 (Ruiz).)

In his petition, appellant stated he satisfied one of the preliminary eligibility requirements for recall because he had been in custody since November 24, 2008, and he had been incarcerated for 15 years when he filed his petition.

The trial court held appellant had not been “incarcerated” for at least 15 years within the meaning of section 1170, subdivision (d)(1)(A) because he had not been “under the supervision of the CDCR post-conviction without reference to the pre-conviction credits,” and held preconviction detention could not be included in calculating the 15-year period.

On appeal, appellant contends, and the People agree, the trial court erroneously interpreted section 1170, subdivision (d)(1)(A) to limit the calculation of the 15-year period to postjudgment incarceration in CDCR.

A. Ruiz

In Ruiz, the trial court held calculation of the 15-year period did not include prejudgment detention. The trial court concluded the defendant was ineligible for recall, even though he had been held in preconviction detention since 2008, because he was sentenced to CDCR in 2010, he filed his petition in 2023, and he could not file a petition until at least 2025. (Ruiz, supra, 104 Cal.App.5th at pp. 1029–1031.)

On appeal, Ruiz held that “ ‘[a]bsent “a specific statutory definition of [that term,] we may ‘look to [its] plain meaning . . . as understood by the ordinary person, which would typically be a dictionary definition.’ ” ’ [Citation.]” (Ruiz, supra, 104 Cal.App.5th at p. 1031.) The Court of Appeal reasoned that the “statute’s plain meaning” was “clear” and rejected the trial court’s interpretation. (Id. at p. 1032.) It explained, “the Legislature did not use the word ‘sentenced’ in section 1170, subdivision (d)(1)(A). Instead, it used the word ‘incarcerated.’ ” (Ibid.) “Based on the plain meaning of ‘incarcerated,’ [the defendant’s] period of incarceration for purposes of a section 1170, subdivision (d)(1)(A), began to run on January 29, 2008. On that date, [the defendant] was placed in jail, i.e., incarcerated, for the relevant charges and has remained in jail since then. By the time he was formally sentenced in August 2010, he had already been incarcerated for over two-and-a-half years.” (Ibid.) Ruiz explained, “[p]rior to January 1, 2017, the statute allowed defendants to petition for resentencing when they ‘ha[d] served at least 15 years of [their] sentence.’ [Citations.] However, effective January 1, 2017, this language was changed by Senate Bill No. 1084 (2015–2016 Reg. Sess.) (Senate Bill [No.] 1084) so a defendant could petition for resentencing after being ‘incarcerated for at least 15 years.’ A legislative report of Senate Bill [No.] 1084 explains this revision was intended to ‘clarif[y] language that has caused some confusion in the courts in the following ways: [¶] “Clarif[y] that the person convicted for a crime committed while under the age of 18 and sentenced to LWOP can submit a petition after he or she has been incarcerated at least 15 years.” ’ [Citation.]” (Ibid., original italics.)

B. Analysis

Ruiz was decided nearly six months after the trial court’s ruling on appellant’s petition. On appeal, both parties agree with Ruiz’s definition of “incarcerated” to include preconviction detention.

We agree as well. Appellant met this eligibility requirement for recall because he had been in custody since November 24, 2008, and he had been “incarcerated” for at least 15 years when he filed the petition on or about January 3, 2024, within the meaning of section 1170, subdivision (d)(1)(A).¹⁷

IV. Evidence appellant did not have a prior record

As explained in part II., ante, after meeting the initial eligibility requirements stated in section 1170, subdivision (d)(1) and (2), appellant had the burden to prove by a preponderance of the evidence one of the circumstances enumerated in section 1170, subdivision (d)(2)(A)–(D), and if he met his burden, the trial court would have been required to recall his LWOP terms. (§ 1170, subd. (d)(2), (5).)

In his petition, appellant asserted he met the circumstance defined by section 1170, subdivision (d)(2)(B), that states: “The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.” The trial court found appellant provided “no evidence of such an assertion is true” and failed to prove this circumstance by a preponderance of the evidence.

On appeal, appellant contends section 1170, subdivision (d)(2) only requires the petition to contain his “statement” that one of the four enumerated circumstances is true, his petition contained the required “statement” that he did not have a prior record, and he met his burden. In the alternative, appellant argues remand is required so he can file an amended petition supported by the probation report and the judicially noticed records that show he did not have a prior record.

The People assert appellant’s bare “statement” about his record carried “no evidentiary value” because it was not supported by documentary evidence or a sworn declaration. The People acknowledge the probation report stated appellant did not have a prior record and appellant did not file that report to support his petition, and concede remand may be appropriate for appellant to file an amended petition with the appropriate supporting evidence. The People acknowledge the statements in the judicially noticed evidence, that he did not have a prior record, but argue such evidence was not before the trial court and cannot be relied on to file an amended petition.

A. The record before the trial court

As previously stated, appellant filed his petition in propria persona. In his handwritten, unsigned, “Statement of Qualifying Factors,” appellant “affirm[ed]” that he did not have any juvenile adjudications or adult felony convictions for assaultive offenses prior to the murders. Appellant did not file a signed declaration or official documents to support his statement that he did not have a prior record.

B. The probation report

The probation report has a file stamp of October 1, 2010, and was prepared after appellant’s convictions for murder and prior to his first sentencing hearing. It stated that appellant “has no prior record of criminal conduct” and cited a review of certain federal and state databases, but did not include any supporting documents. There are notations in the report indicating it was reviewed by the trial court at appellant’s resentencing hearing in 2013.

The probation report was filed in this court as part of the record of this appeal. It was not filed in support of appellant’s petition before the trial court, and appellant appears to concede the probation report was not before the trial court when it considered his petition.

C. The judicially noticed records and published opinion

The record in Hoffman, F061127, shows that on September 22, 2010, the trial court conducted appellant’s first sentencing hearing and made lengthy findings, including that appellant “has no prior record of criminal conduct,” and sentenced him to two consecutive LWOP terms.

The record in Palafox, F067413, shows that on May 24, 2013, the trial court conducted the resentencing hearing on remand and made extensive findings, including that for appellant, there was a “lack of a previous record of criminal conduct.” The court again imposed two consecutive LWOP terms.

In Palafox, supra, 231 Cal.App.4th at page 80, this court affirmed the trial court’s sentencing decision on remand, and stated that at the resentencing hearing, “the [trial] court noted [appellant] had no previous criminal history.”

D. Analysis

In the trial court, appellant failed to meet his burden of proving by a preponderance of the evidence the circumstance defined in section 1170, subdivision (d)(2)(B). Appellant did not file the probation report in support of his petition and, while the report was filed as part of the instant appellate record, it is not clear whether the probation report was before the trial court when it considered appellant’s petition.

Judge Wolf, who denied appellant’s petition, did not preside over appellant’s trial or the resentencing hearing, but his order stated facts about the murders beyond the nature of the charges and special circumstances, that two elderly people were killed in their sleep, thus indicating some familiarity with the case. (Palafox, supra, 231 Cal.App.4th at p. 73.) The record herein does not indicate whether the court stated these facts after reviewing the probation report, the nonpublished opinion in Hoffman, the published opinion in Palafox, or some other documents about this case.¹⁸

Appellant argues the judicially noticed records in Hoffman, F061127, and Palafox, F067413, support his statements in the petition and the probation report, prove he did not have a prior record, and remand is required so he can either file an amended petition with appropriate supporting evidence, or for the court to order recall and resentencing.

Section 1170, subdivision (d)(3) states that when the trial court makes the initial determination of whether a defendant is eligible for recall, “[i]f any of the information required in [section 1170, subdivision (d),] paragraph (2) is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the defendant and advise the defendant that the matter cannot be considered without the missing information.” (Ibid., italics added.)

While the People did not object to this court’s proposal to take judicial notice of the records in Hoffman, F061127, and Palafox, F067413, the People assert that appellant had the burden to establish he did not have a prior record and was eligible for recall under section 1170, subdivision (d)(2)(B), and there is no statutory provision for a court to “research, seek, or obtain information that is not part of the record before it.” The People assert remand cannot be based on the judicially noticed records because “[t]here is no indication” the statements contained in those records were part of the record before the court below, and they cannot be the subject of an amended petition filed under section 1170, subdivision (d)(3) since they were not “missing” within the meaning of that subdivision.

At the very least, however, the statement in Palafox, supra, 231 Cal.App.4th at page 80, indicates appellant did not have a prior record before he committed the murders, and remand would have been appropriate for appellant to file an amended petition with Palafox as supporting evidence that was missing from his initial petition, pursuant to section 1170, subdivision (d)(3). The People are correct the court did not have a duty to independently research appellant’s petition. However, we decline to ignore the published opinion in appellant’s appeal from the resentencing judgment, where the trial court stated he “had no previous criminal history.” (Palafox, supra, 291 Cal.App.4th at p. 80.)¹⁹

Given the Palafox published opinion, we could remand for appellant to file an amended petition pursuant to section 1170, subdivision (d)(3), with evidence to support his assertion in the petition that he did not have a prior record before he committed the murders which, in turn, would have satisfied his burden of proof by a preponderance of the evidence to establish one of the circumstances stated in section 1170, subdivision (d)(2), and mandated recall of his LWOP terms for a resentencing hearing. We decline to do so, however, because the trial court’s additional finding in denying the petition, that appellant failed to meet his burden on the rehabilitation circumstance, conclusively shows remand for recall and resentencing would be futile. The court would not have imposed a sentence less than the LWOP terms.

V. The rehabilitation circumstance and harmless error

In his petition, appellant asserted he satisfied a second recall eligibility circumstance, defined in section 1170, subdivision (d)(2)(D), that he had “performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse,” and filed supporting statements about his efforts at rehabilitation and remorse, and documents and certificates about the programs and classes he had taken in prison.

The trial court found appellant’s supporting documents failed to prove the rehabilitation eligibility circumstance by a preponderance of the evidence.

In this court’s briefing order, we ordered the parties to address whether the trial court’s alleged error in denying the petition was harmless in light of the court’s finding appellant failed to meet his burden on the rehabilitation circumstance for recall eligibility in section 1170, subdivision (d)(2)(D), because it is identical to the rehabilitation circumstance in section 1170, subdivision (d)(6)(F), which is one of the factors for the court to consider when deciding whether to exercise its resentencing discretion.

In his supplemental briefing, appellant renewed his argument that his petition and supporting documents met his burden to prove the rehabilitation circumstance as a separate factor to establish his eligibility for recall under section 1170, subdivision (d)(2)(D). Appellant further argued that even if the evidence did not support the rehabilitation circumstance for recall eligibility, that finding cannot be relied upon for a harmless error analysis because section 1170, subdivision (d)(6)(A)–(H) lists eight other circumstances the court may consider at a resentencing hearing, so that it cannot be said remand would be futile or the trial court’s failure to order recall was harmless.

The People assert appellant failed to meet his burden to establish the rehabilitation circumstance for purposes of recall, which meant that he also failed to satisfy the identical rehabilitation circumstance for purposes of resentencing, and the trial court’s findings indicate remand would be futile because the trial court would not have resentenced appellant to lesser terms.

A. The court’s resentencing discretion after recall

Section 1170, subdivision (d)(5) states that if the trial court finds a defendant has met his burden of proof for recall, the court shall recall his sentence and conduct a resentencing hearing. (In re Kirchner, supra, 2 Cal.5th at p. 1050.) At the resentencing hearing, the court “may” consider several factors enumerated in section 1170, subdivision (d)(6) through (11) in exercising its discretion whether to sentence a defendant to a term less than LWOP.

Section 1170, subdivision (d)(6)(A)–(H) lists eight factors the court “may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole,” and states the court is not limited to considering these factors. (§ 1170, subd. (d)(6), italics added.)

These eight resentencing factors include the same four factors listed as the recall eligibility circumstances in section 1170, subdivision (d)(2)(A)–(D): the defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law; the defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the defendant was sentenced to life without the possibility of parole; the defendant committed the offense with at least one adult codefendant; and the identical rehabilitation circumstance, that the defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse. (§ 1170, subd. (d)(2)(A)–(C), (F).)

The remaining four resentencing factors that the court “may” consider are: “[p]rior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma or significant stress”; “[t]he defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense but influenced the defendant’s involvement in the offense”; “[t]he defendant has maintained family ties or connections with others through letter writing, calls, or visits or has eliminated contact with individuals outside of prison who are currently involved with crime”; and “[t]he defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor.” (§ 1170, subd. (d)(6)(D)–(E), (G)–(H).)

Subdivision (d)(7) of section 1170 states the trial court “shall have the discretion to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. The discretion of the court shall be exercised in consideration of the criteria in paragraph (6) [of section 1170, subdivision (d)]. Victims, or victim family members if the victim is deceased, shall be notified of the resentencing hearing and shall retain their rights to participate in the hearing.” (§ 1170, subd. (d)(7), italics added.)

Section 1170, subdivision (d)(8) states that “[n]otwithstanding paragraph (7), [of section 1170, subdivision (d),] the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense,” and identifies three factors: (1) “[t]he person experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence”; (2) “[t]he person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense”; and (3) “[p]rior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.” (§ 1170, subd. (d)(8)(A)–(C), italics added.)²⁰ “Paragraph (8) [of section 1170, subdivision (d)] does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence, even if none of the circumstances listed in paragraph (8) are present.” (§ 1170, subd. (d)(9).)

In addition to the factors in section 1170, subdivision (d)(6), “the court may consider any other criteria that the court deems relevant to its decision, so long as the court identifies them on the record, provides a statement of reasons for adopting them, and states why the defendant does or does not satisfy the criteria.” (Id., subd. (d)(11), italics added; see In re Kirchner, supra, 2 Cal.5th at p. 1050.)

At the resentencing hearing, the court has discretion to reimpose an LWOP term, after which “the defendant may submit another petition for recall and resentencing to the sentencing court when the defendant has been committed to the custody of the department for at least 20 years.” (§ 1170, subd. (d)(10).) Upon filing the subsequent petition, if the defendant’s sentence is not recalled or the court again imposes an LWOP term at a resentencing hearing, “the defendant may file another petition after having served 24 years.” (Ibid.) “The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant’s sentence.” (Ibid.)

B. Gibson, harmless error, and the rehabilitation factor for resentencing

In Gibson, supra, 2 Cal.App.5th 315, the court applied a harmless error analysis to the trial court’s erroneous eligibility findings in denying a section 1170, subdivision (d) petition for recall and resentencing. The defendant was tried as an adult and convicted of first degree murder with special circumstances for offenses committed when he was 17 years old, and he was sentenced to LWOP. In 2014, he filed a petition for recall and resentencing pursuant to section 1170, subdivision (d). (Gibson, at pp. 320, 322.)

At the time the defendant in Gibson filed his petition, former subdivision (d)(2)(E) of section 1170 “require[d] the court to conduct a hearing to consider whether to recall the sentence. There are several factors to be considered by the court in determining whether to recall and resentence. [Citation.] [¶] These provisions authorize a court to recall the sentence and to resentence defendant under certain conditions, but the language is permissive, not mandatory. The court has the discretion to recall the sentence previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, providing that any new sentence is no greater than the original sentence. [Citation.] [¶] The statute thus confer[red] broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence.” (Gibson, supra, 2 Cal.App.5th at p. 324, italics added.)

The trial court in Gibson conducted an evidentiary hearing as required at that time by former subdivision (d)(2)(E) of section 1170, and denied the defendant’s petition because it held the recall and resentencing provisions only granted relief to “juvenile defendants who did not actually kill the victim.” (Gibson, supra, 2 Cal.App.5th at p. 320.) The trial court also held defendant failed to meet his burden of proof that he had been rehabilitated or that he felt remorse. (Id. at p. 328.)

Gibson held section 1170, subdivision (d)’s recall and resentencing provisions were not limited to juveniles who were convicted as nonkiller accomplices, the trial court’s finding was erroneous, and the defendant was not ineligible for recall on this basis. (Gibson, supra, 2 Cal.App.5th at p. 327.)

However, Gibson held the trial court’s error was harmless because the court relied on other reasons to deny the petition, including that defendant failed to prove the rehabilitation and remorse circumstance, and that finding was supported by the record. (Gibson, supra, 2 Cal.App.5th at p. 328.) While the defendant presented “numerous certificates and documents” to support his claims about rehabilitation and remorse, including some that he prepared himself, “the great majority of them were created after the enactment of Senate Bill [No.] 9” and section 1170, subdivision (d)’s recall and resentencing provisions, and “[t]here is thus a self-serving quality to much of the information submitted in support of the petition.” (Gibson, at p. 328, italics added.) Gibson held the trial court’s finding that the defendant failed to prove the rehabilitation and remorse circumstance was supported by the evidence because “the majority of [the] defendant’s efforts at rehabilitation, as evidenced by the exhibits submitted in support of his petition, postdate the enactment of Senate Bill [No.] 9” and section 1170, subdivision (d), so that “[a] trier of fact could reasonably conclude that [the] defendant’s efforts were not reflective of genuine remorse or rehabilitation.” (Gibson, supra, 2 Cal.App.5th at pp. 328–329, italics added.)

C. Appellant’s evidence of rehabilitation or potential for rehabilitation

In his petition, appellant stated he was eligible for recall because he filed supporting evidence to show he satisfied the rehabilitation circumstance as defined by section 1170, subdivision (d)(2)(D). Appellant’s supporting documents consisted of plans to avoid relapses for situations involving anger management, substance abuse, and domestic violence; and numerous certificates and commendations for good behavior, and his successful completion of programs and classes.

As explained in part I., ante, appellant also filed statements of remorse and rehabilitation in support of his petition. Appellant admitted he murdered the two victims, he left behind a “horrible scene,” a first responder at his trial testified “this murder was the worst he had ever witnessed,” there were “gruesome details” about the murders that he committed, and acknowledged “the level of fear and confusion [the victims] were experiencing in their final moments.” Appellant admitted he previously refused to accept responsibility for what he had done, and “minimized, rationalized, justified, blamed, avoided, and denied culpability at every turn.”

“It wasn’t until I had already spent some time in prison that I actively sought to understand myself. This isn’t something that happened over night, but over years of work and introspection. I began to see how I became a person capable of murder. . . . [¶] It was in the year 2014 when I made the decision to not only understand myself but to also make a change. With all the insight I’ve gained during my incarceration I knew exactly where real change was needed. I made the active choice to participate in self-help classes that were tailored to combating the character defects I’ve identified within myself.” (Italics added.)

Appellant stated that since that time, he participated in classes in anger management, domestic violence, narcotics anonymous, insight, peer mentorship, motivation, education, and youth diversion. As a result of the guidance from the teachers and counselors, he developed a value system to rely on to make the right choices. “In no way am I saying that gaining this insight and working towards becoming the better version of myself has been easy,” and there had been “pitfalls and missteps,” but it was the “constant reminders of the harm” he caused the victims’ family that kept him on the right track.

“With the shame, guilt, and remorse I have for everything I’ve done came the realization that in order to accept full accountability for the damage my actions have caused I must destroy the person I once was. [¶] While I am no longer . . . the person who committed those heinous crimes, I know that my journey is not nearly over. Today I’ve dedicated my days to the service of others. I work to help other inmates find their own ways towards the life changing insights that I have acquired. Whether it be through self-help programs or education, I fulfill my rehabilitation cycle by being of service.” (Italics added.)

D. The trial court’s findings

In denying his petition, the trial court stated appellant had been convicted of two counts of first degree murder with three special circumstances, and sentenced to two LWOP terms, because he “murdered an elderly couple . . . while they slept in their home.” The court stated appellant claimed he introduced evidence to satisfy the rehabilitation circumstance and was eligible for recall under section 1170, subdivision (d)(2)(D).

“In support of this assertion, [appellant] includes a number of program completion certificates and notes of praise for [appellant] gleaned from his prison central file. Although very laudable behavior is documented in this evidence, in the opinion of this Court, it fails to prove by a preponderance of the evidence that [appellant] has performed acts that tend to indicate rehabilitation or the potential for rehabilitation.”

E. Analysis

As previously stated, the trial court’s interpretation of the 15-year incarceration requirement for recall was erroneous. In addition, appellant could have filed an amended petition based on the statement that he did not have a prior record, in Palafox, supra, 231 Cal.App.4th at page 80, and the trial court would have been required to recall his sentence upon his proof of one circumstance defined in section 1170, subdivision (d)(2).

We find, however, the trial court’s ultimate denial of appellant’s petition and failure to conduct a resentencing hearing is harmless. (Gibson, supra, 2 Cal.App.5th at p. 328.) The trial court held appellant failed to meet his burden to prove the rehabilitation circumstance for recall eligibility as stated in section 1170, subdivision (d)(2)(D). As stated in section 1170, subdivision (d)(6)(F), the trial court may consider the identical rehabilitation factor at a resentencing hearing, when deciding whether to exercise its discretion to impose a lesser sentence.

The trial court’s finding that appellant failed to prove the rehabilitation factor is supported by the evidence, and establishes that if the court had ordered recall, it would have relied on this same factor to exercise its discretion not to resentence appellant to a lesser term. Appellant committed the double murders in August 2008, and he was taken into custody in November 2008. He was convicted and sentenced to two consecutive LWOP terms in 2010. The recall and resentencing provisions of section 1170, subdivision (d) went into effect on January 1, 2013. Appellant admitted in his petition’s supporting statements that he did not decide to “make a change” and “understand myself” until 2014, when he began taking classes and engaging in programming. Appellant filed his petition for recall and resentencing in or about January 2024, shortly after he met section 1170, subdivision (d)’s 15-year incarceration requirement, and admitted in his supporting statements there had been “pitfalls and missteps,” and “I know that my journey is not nearly over.”

Appellant argues his showing as to rehabilitation and remorse “was more than sufficient.” As in Gibson, however, the record shows appellant did not engage in any rehabilitative efforts until after section 1170, subdivision (d) went into effect, that presented him with the possibility that he could obtain recall and resentencing of his two consecutive LWOP terms for the double murders. He admitted he was still on his “journey,” even though he filed his petition as soon as he met the 15-year eligibility requirement. The trial court could reasonably conclude that appellant’s delayed initiation of rehabilitative efforts, engaged in for a relatively short period of time, was insufficient compared with the seriousness of appellant’s crimes.

Appellant argues it is inappropriate to conduct a harmless error analysis based on the trial court’s summary denial of his petition for recall. Instead, appellant asserts the trial court should have followed the same procedure used by the trial court in Gibson, and conducted an evidentiary hearing on whether the evidence as to his recall eligibility was sufficient, “with the assistance of counsel and the potential for testimony and other evidence.”

Appellant argues if the trial court held an evidentiary hearing on recall and resentencing as in Gibson, appellant could have called Mason, the licensed clinical social worker, introduced her report as summarized in Palafox, supra, 231 Cal.App.4th at pages 75 through 78, or called another expert to address the additional sentencing factors specified in subdivision (d)(6) of section 1170.²¹ Appellant further argues it is inappropriate to rely on Gibson because at the time of appellant’s petition for recall, former section 1170, subdivision (d) stated that a trial court only had discretion to grant recall if the defendant satisfied the enumerated requirements, whereas the current version of subdivision (d) mandates recall if appellant meets his burden of proving the eligibility requirements for recall. Appellant asserts that based on these circumstances, a harmless error analysis is inappropriate because at a resentencing hearing after recall, he would have presented his evidence of his rehabilitation and remorse achieved in CDCR, as filed with his petition.

Appellant is correct about the subsequent amendments to section 1170, subdivision (d), but fails to acknowledge the entirety of the changes to the recall and resentencing provisions. When the defendant in Gibson filed his petition, former subdivision (d)(2)(E) of section 1170 stated: “ ‘If the court finds by a preponderance of the evidence that the statements in the petition are true, the court shall hold a hearing to consider whether to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. . . .’ ” (In re Berg (2016) 247 Cal.App.4th 418, 434, italics added.) This former subdivision required the trial court to conduct a recall and resentencing hearing as in Gibson, and also stated the trial court had discretion to decide whether to recall and resentence.

The subsequent amendments to section 1170, subdivision (d) resulted in eliminating the language in former subdivision (d)(2)(E), that recall was a discretionary decision, and the court was required to conduct a hearing to make the recall and resentencing determinations. (See Stats. 2016, ch. 867, § 2.1, eff. Jan. 1, 2017, operative Jan. 1, 2022 (Sen. Bill No. 1084).) As a result of these amendments, section 1170, subdivision (d)(5) now states that if the trial court finds by a preponderance of the evidence that a petitioner met his burden of proof on recall eligibility, “the court shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. . . .” (Italics added.) As a result, the trial court in this case was not required to conduct the same evidentiary hearing that was held in Gibson, when it determined appellant’s eligibility for recall.

While it is not clear whether the trial court reviewed the probation report or the two prior appellate opinions, the court was clearly aware of the circumstances of appellant’s crimes. Appellant’s supporting statements of remorse and rehabilitation were also before the court, where he admitted murdering the two victims, and felt compelled to apologize to first responders, the jury, and his own family, for leaving behind a gruesome and horrible murder scene. The record that was before the court supports its conclusion that appellant’s rehabilitation efforts of less than 10 years, while serving two consecutive LWOP terms for his admitted commission of two horrific murders, was simply insufficient to constitute sufficient rehabilitation.

The trial court’s finding that appellant failed to meet his burden of proof on the rehabilitation circumstance for recall eligibility is overwhelmingly supported by the record. As a result, any error committed by the trial court in failing to recall appellant’s sentence and conduct a resentencing hearing is harmless because the record shows the court would have reached the same conclusion upon resentencing, so that remand for a resentencing hearing would be a futile and idle act. (See, e.g., People v. Jefferson (2019) 38 Cal.App.5th 399, 409; People v. Tuggles (2009) 179 Cal.App.4th 339, 388.)

DISPOSITION

The trial court’s denial of appellant’s petition for recall and resentencing on March 29, 2024, is affirmed.

DETJEN, J.

WE CONCUR:

HILL, P. J.

FRANSON, J.