People v. Player

Filed 4/6/26
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


 THE PEOPLE,                          B342239

         Plaintiff and Respondent,    (Los Angeles County
                                      Super. Ct. No. A900447)
         v.

 LAVELL TYRONE PLAYER,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed.
      Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
                   ____________________________
      Defendant Lavell Tyrone Player appeals from the denial of
his petition for resentencing under Penal Code 1 former
section 1170.95, now renumbered section 1172.6. In defendant’s
last appeal, we held substantial evidence did not support the
resentencing court’s finding defendant aided and abetted murder,
and remanded for consideration of the alternative theories that
defendant was the actual killer or a major participant in the
underlying robbery acting with reckless disregard for human life.
Following an evidentiary hearing, the resentencing court found
defendant guilty beyond a reasonable doubt under both
alternative theories, and therefore ineligible for resentencing.
      On appeal, defendant argues the jury’s findings at his trial
collaterally estopped the resentencing court from finding he was
the actual killer. The jury found not true allegations that
defendant personally used a firearm, and also found not true a
robbery special circumstance that, as the jury was instructed,
required a finding that defendant personally killed the victim.
Defendant further argues substantial evidence did not support
either the actual-killer or major participant/reckless indifference
findings.
      Our Supreme Court in People v. Santamaria (1994)
8 Cal.4th 903 (Santamaria) held that a jury’s not-true finding on
a weapon use enhancement was not equivalent to an affirmative
finding the defendant was not guilty as the actual killer, and
therefore the not-true finding did not preclude the prosecution
from arguing or offering evidence on retrial the defendant
personally killed the victim. (Id. at pp. 917–920.) The high court
further held collateral estoppel did not apply to the jury’s not-


      1   Unspecified statutory citations are to the Penal Code.




                                     2
true finding because weapon use is not an “ultimate fact” of
murder. (Id. at p. 922.)
       In People v. Hart (2025) 113 Cal.App.5th 1099 (Hart),
Division One of the Fourth District Court of Appeal concluded
Santamaria’s collateral estoppel analysis applies to
section 1172.6 proceedings, and therefore a jury’s not-true finding
on a personal firearm use allegation did not preclude the
resentencing court from finding the defendant guilty as the
actual killer. (Hart, at p. 1115.) In so holding, Hart disagreed
with prior appellate opinions concluding a jury’s not-true findings
are preclusive in section 1172.6 proceedings.
       We agree with Hart that Santamaria controls, and
therefore hold the jury’s not-true findings on the weapon
enhancement and special circumstance did not preclude the
resentencing court from finding defendant was the actual killer.
We further find substantial evidence supported that finding. We
therefore do not reach defendant’s challenges to the resentencing
court’s finding that he was a major participant acting with
reckless indifference.
       Accordingly, we affirm.

                  FACTUAL BACKGROUND
      We summarize the witness testimony from defendant’s trial
relevant to the issues on appeal.

1.    Carolyn Spence’s testimony
      Around 3:00 a.m. on December 19, 1981, Toney Lewis and
Carolyn Spence arrived at a Denny’s parking lot in Lewis’s van.
As they were getting out of the van, two men approached. One,
who did not appear to be armed, demanded Spence’s purse. The




                                    3
second man, who was holding a gun, demanded Lewis’s wallet
and leather coat.
       The man who had taken Spence’s purse told the man with
the gun to take the van. The gunman pushed Lewis back and
snatched the gold chains from Lewis’s neck. The gunman said,
“That’s all right, mother-fucker. You are going to die, anyway.”
       The gunman pulled the key from the van’s ignition. When
Lewis protested, the gunman shot him. Lewis died from the
wound.
       At trial, Spence initially identified defendant as the
gunman. On cross-examination, however, she acknowledged that
in a prior photographic lineup, and in two in-person lineups, she
had identified defendant’s brother Marcus 2 as the gunman. She
also acknowledged on cross-examination that at the preliminary
hearing, at which both defendant and Marcus were present, she
first identified defendant as the gunman, but upon seeing
Marcus, identified him as the gunman and said she was mistaken
when she identified defendant.
       After acknowledging at trial these prior identifications of
Marcus as the gunman, Spence stated that Marcus was the
gunman and recanted her identification of defendant.
       Spence also testified that as a police sergeant was driving
her home after one of the lineups in which she had identified
Marcus, she told the sergeant one of the other people in the
lineup looked like someone she had seen before. The sergeant
asked if the person she recognized was present when Lewis was


      2 For clarity, we refer to defendant’s family members, who
share his last name, by their first names. By doing so, we mean
no disrespect.




                                   4
shot, and Spence said she did not think so. She later learned the
person she recognized was defendant.

2.   Walter Fonteno’s testimony
      Walter Fonteno admitted participating in the robbery of
Lewis and Spence, and testified in exchange for a plea
arrangement in which he would serve five years in prison.
      On December 18, 1981, Fonteno was at the apartment of
Andre Davis along with defendant and Marcus. Marcus
suggested they “go make some money,” and Fonteno and
defendant agreed. The four men went outside and Marcus
retrieved a gun from his car. Defendant asked if the gun worked.
Marcus fired the gun into a dirt field to demonstrate it was
functional. 3
      Defendant, Marcus, and Fonteno drove in Marcus’s car to a
gas station near the Denny’s. Marcus said, “Let’s go down there
by Denny’s, go down there; people got some bank down there.”
Defendant asked Marcus for the gun and Marcus gave it to him.
      When the men saw Lewis’s van pull into the Denny’s
parking lot, Marcus said, “Get them.” Defendant climbed over
the fence separating the gas station from the Denny’s parking lot
and said, “Come on.” At Marcus’s urging, Fonteno climbed over
the fence after defendant.
      Fonteno took Spence’s purse as defendant confronted
Lewis. Marcus shouted from the fence, “Take the van.”
Defendant told Lewis to get out of the vehicle. Lewis said no and

     3  Davis also testified, corroborating that Marcus had
suggested they “get some money,” retrieved a gun from his car,
and fired it. Davis went back to his apartment after Marcus
tested the gun and did not participate in the robbery.




                                   5
reached for the dashboard or glove compartment. Fonteno told
defendant to forget the van. Defendant told Lewis to stop moving
but he did not stop. Defendant shot Lewis. Fonteno asked why
he had done that, and defendant said Lewis was reaching for a
gun.
      Defendant and Fonteno ran away, eventually meeting up
with Marcus back at Davis’s apartment. Fonteno saw that
defendant had a gold chain in his hand.
      Months later, defendant told Fonteno that if the case went
too far, he would tell the authorities he shot Lewis, so that
Fonteno and Marcus could go free.
      Asked whether prior to the robbery there were any
discussions about killing anyone, Fonteno said no, and that he
did not think anyone would be killed. The shooting surprised
him.

3.   Annette Aldridge’s testimony
      Annette Aldridge was Marcus’s girlfriend and mother of his
children. Sometime after Lewis’s death, defendant told her
Marcus was not involved in a murder. On another occasion,
defendant said that everyone knew that “he did it.” Defendant
said he wanted to find Spence’s address so he could scare her and
let her know the wrong person (presumably Marcus) was in jail.
Aldredge told the police that defendant had told her, “I am the
one that killed the guy behind Denny’s.”

4.   Tylon Player’s testimony
      Tylon is defendant’s and Marcus’s sister. When Marcus
was arrested, defendant said he had to do something about it,
because Marcus was not the one who committed the murder. He
said he would scare “the girl” so she would not be a witness




                                   6
against Marcus. Defendant said he knew who committed the
murder, but did not say who. He said he was the only one who
knew what happened, and Marcus was not the killer.

                   PROCEDURAL HISTORY

A.    Conviction and direct appeal (Player I)
       The People charged defendant with Lewis’s murder, and
alleged the special circumstance that the murder was committed
during the commission of a robbery or attempted robbery. The
People further charged defendant with the robbery of Spence and
attempted robbery of Lewis. On all counts, the People alleged
defendant personally used a firearm and that a principal was
armed with a firearm.
       Defendant was tried in 1982. The jury was instructed,
inter alia, on aiding and abetting, murder, and felony murder
under then-current law. The jury further was instructed that to
find the robbery special circumstance true, it must find “the
murder was committed while the defendant was engaged in the
commission or attempted commission of a robbery,” “the murder
was committed in order to carry out or advance the commission of
the crime of [r]obbery or to facilitate the escape therefrom or to
avoid detection,” and “the defendant personally committed the
murder.” Echoing the last point, the instruction added that if the
jury found that “someone other than the defendant . . . personally
killed the victim, . . . you must find the special circumstance not
true.” 4


      4  The parties agree the robbery special circumstance
does not in fact require a finding the defendant personally killed
the victim, and the trial court erred in providing that instruction.




                                    7
       The jury convicted defendant of murder, robbery, and
attempted robbery, and found true the allegation that a principal
was armed with a firearm. The jury found not true the robbery
special circumstance and allegation of personal use of a firearm.
The trial court sentenced defendant to 26 years to life.
       On direct appeal, we held the murder verdict was
supported by substantial evidence. “[W]e find sufficient evidence
of [Player]’s knowledge of the unlawful purpose of the act
proposed by Marcus, namely to commit a robbery, and his
consent to participate as evidenced by his affirmative response to
Marcus’ suggestion to go make some money. [¶] [Player was]
obviously aware that one of [the assailants] was armed with a
weapon which had been test fired.” (People v. Player (May 22,
1984, 2d. Crim. No. 43957) [nonpub. opn.] at p. 10 (Player I).)
“[Player’s] intentional presence in a situation in which he was
part of a planned armed robbery, where one of the assailants told
the victim ‘you’re going to die, anyway,’ coupled with his
knowledge that the threat could be carried out with an operable
weapon, shows his knowledge of the intent and purpose of killing
the victim Lewis.” (Id. at pp. 11–12.) “[T]he inescapable
conclusion is that the jury decided that [Player] was present,
participated in the robbery and the shooting and therefore [is]
guilty of murder, at least as an aider or abettor.” (Id. at p. 15.)
       We acknowledged the jury had received an aider and
abettor instruction held erroneous under People v. Beeman (1984)
35 Cal.3d 547. Specifically, the jury had been instructed an aider
and abettor must have knowledge of the perpetrator’s unlawful
purpose, but had not been additionally instructed that the aider
and abettor must also act with the intent or purpose of
committing, encouraging, or facilitating the commission of the




                                    8
offense. Because defendant had not put his intent at issue at
trial, however, and therefore “there was no conflicting evidence
presented as to appellant’s intent,” we held any instructional
error was harmless. (Player I, supra, 2d Crim. No. 43957 at
pp. 15–16.)
       We further held the trial court properly denied motions to
suppress Fonteno’s extrajudicial statements and trial testimony.
Because the verdict did not specify the degree of murder, we
deemed the crime to be second degree. On remand, defendant
was resentenced to 16 years to life.

B.    Resentencing petition and Player II
       On December 31, 2018, defendant filed a petition for
resentencing pursuant to former section 1170.95, claiming that
he was convicted of murder based on a felony-murder theory.
The People filed an opposition supported by our opinion on direct
appeal, the preliminary hearing, trial transcripts, and the jury
instructions.
       The resentencing court held a hearing on whether
defendant made a prima facie showing that he fell within the
provisions of former section 1170.95. The prosecutor argued, in
part, that Player I concluded defendant was an aider and abettor.
The court agreed and quoted Player I’s conclusion that Player
had knowledge of the intent to kill the victim. The court then
stated that it was “very clear from the facts as outlined not just
in the trial transcripts but in the Court of Appeal’s opinion” that
“there’s more than ample evidence here to . . . find he was the
aider and abettor at the very least with a stated purpose and
intent to kill.”
       Defendant appealed and we reversed. (People v. Player
(June 25, 2021, B303259) [nonpub. opn.] (Player II).) We



                                    9
disagreed with the resentencing court’s reading of Player I: “We
did not conclude [in Player I] that Player had the specific intent
to kill. Rather, our holding suggests that the facts supported a
verdict based on application of the felony-murder rule or the
natural and probable consequences doctrine.” (Player II, supra,
B303259.) We further held that because the jury had received an
erroneous instruction under Beeman, “[W]e cannot rely on the
instructions to conclude the jury found Player guilty under a
valid theory of direct aider and abettor liability. Thus, nothing in
the record of conviction indicates that Player was necessarily
convicted of murder based on a theory that he was the actual
shooter, harbored the intent to kill, or was a major participant in
the robbery and acted with reckless indifference to human life.”
(Ibid.)
       We continued, “In arriving at its conclusion that our
opinion and the trial transcripts showed that Player was
convicted as a direct aider and abettor, the resentencing court
necessarily engaged in factfinding at the prima facie stage, which
it was not authorized to do.” (Player II, supra, B303259.) We
remanded for the resentencing court to issue an order to show
cause and hold an evidentiary hearing.

C.    Evidentiary hearing and Player III
       On remand, the parties submitted additional briefing to the
resentencing court. The prosecutor argued defendant was guilty
either as the actual killer, a direct aider and abettor, or as a
major participant in the robbery who acted with reckless
indifference to life.
       Following a hearing at which the parties presented
argument but no additional evidence, the resentencing court
issued a written order denying the resentencing petition. The



                                    10
court quoted extensively from the factual summary and legal
discussion in Player I, culminating with Player I’s statement that
the evidence “ [‘]show[ed defendant’s] knowledge of the intent and
purpose of killing the victim, Lewis[’] ” (boldface & italics
omitted), and “ ‘[t]he inescapable conclusion is that the jury
decided that Player was present, participated in the robbery and
the shooting and therefore [is] guilty of murder, at least as an
aider or abettor.’ ” The resentencing court then stated, “Based on
the record of conviction, Petitioner is clearly guilty of murder as
an aider and abettor. The court finds beyond a reasonable doubt
that Petitioner is not entitled to have his murder conviction
vacated under section 1170.95(d)(3).”
      Defendant appealed again, and we reversed. (People v.
Player (Dec. 28, 2023, B321656) [nonpub. opn.] (Player III).) We
held the record lacked substantial evidence that defendant was a
direct aider and abettor, the theory on which the resentencing
court relied. In particular, we concluded there was no evidence
defendant intended to encourage or facilitate the shooting, or
shared the shooter’s intent to kill. We further concluded, to the
extent the resentencing court read Player I to hold there was
substantial evidence of aiding and abetting, our decision in
Player II foreclosed that reading.
      We remanded for the resentencing court to consider the
alternative theories advanced by the prosecution, namely that
defendant was guilty as the actual shooter or as a major
participant in the robbery acting with reckless indifference to life.

D.    Second evidentiary hearing
      The parties filed additional briefs on remand. Defendant
argued that because the jury had not found true the robbery
special circumstance or the allegation defendant personally used



                                    11
a firearm, principles of collateral estoppel precluded the
prosecution from arguing defendant was the actual killer of
Lewis. Defendant further argued the evidence did not support
the alternative theory that defendant was a major participant in
the robbery who acted with reckless indifference to life.
       In its brief, the prosecution observed Player III did not
foreclose the possibility defendant could be convicted as the
actual killer. The prosecution was uncertain, however, how this
court might rule on the preclusive effect of the jury’s not-true
finding on the weapon enhancement. The prosecution therefore
opted to focus on the theory that defendant was a major
participant acting with reckless indifference. As to that theory,
the prosecution argued the evidence supported it.
       The resentencing court held an evidentiary hearing on
October 21, 2024. The parties presented no new evidence,
instead making arguments based on the trial transcript.
       The resentencing court issued an oral ruling on
November 1, 2024. On the issue of collateral estoppel, the
resentencing court found the Supreme Court’s decision in
Santamaria to be on point. Under that authority, the court
concluded the jury’s verdict did not preclude the resentencing
court from finding defendant was the actual killer.
       Turning to the evidence, the court found Fonteno’s
testimony credible. The court found Spence likely was in shock
at the time of the crime and was confused about what she saw
and heard.
       The court found beyond a reasonable doubt that defendant
could be convicted under current law either as the actual killer or
as a major participant acting with reckless indifference.
Accordingly, the court denied defendant’s resentencing petition.




                                   12
      Defendant timely appealed.

                          DISCUSSION

A.    Senate Bill No. 1437
       “Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189 of
the Penal Code to ‘eliminate[ ] natural and probable
consequences liability for murder as it applies to aiding and
abetting, and [to] limit[ ] the scope of the felony-murder rule.’
[Citation.]” (People v. Lee (2023) 95 Cal.App.5th 1164, 1173
(Lee).)
       Relevant to this appeal are Senate Bill No. 1437’s
amendments to the felony murder rule. “[U]nder the felony-
murder rule as it existed prior to Senate Bill No. 1437, a
defendant who committed a statutorily enumerated felony such
as robbery could be convicted of murder for a killing during the
felony without further examination of their mental state.”
(People v. Garcia (2022) 82 Cal.App.5th 956, 964–965.) After
Senate Bill No. 1437, however, “[a] participant in the
perpetration or attempted perpetration of [an enumerated felony,
including robbery] in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] [or] (3) The person
was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e); see Garcia, at p. 965.)
       Assembly Bill No. 1437 also added former section 1170.95,
now numbered section 1172.6, “which creates a procedure for




                                   13
convicted murderers who could not be convicted under the law as
amended to retroactively seek relief.” (People v. Lewis (2021)
11 Cal.5th 952, 957.) “If a petitioner makes a prima facie
showing of relief under section 1172.6 — that is, a showing that
the petitioner was convicted of murder, attempted murder, or
manslaughter under a theory no longer valid under the amended
Penal Code — the resentencing court must issue an order to show
cause for an evidentiary hearing. [Citations.] At that hearing,
the prosecution must prove beyond a reasonable doubt that the
petitioner remains guilty of murder or attempted murder despite
the amendments to sections 188 and 189.” (Lee, supra,
95 Cal.App.5th at p. 1174; see § 1172.6, subds. (c), (d)(3).) “If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
       At the evidentiary hearing, “[t]he admission of evidence . . .
shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing
or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,”
with exceptions not relevant here. (§ 1172.6, subd. (d)(3).) “The
prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens.” (Ibid.)

B.    The Jury’s Verdict Did Not Preclude the
      Resentencing Court From Finding Defendant Was
      the Actual Killer
      Defendant argues, as he did below, that the jury’s not-true
findings on the allegation he personally used a firearm and on
the robbery special circumstance, which included as an element
that defendant personally killed the victim, barred the




                                    14
resentencing court under principles of collateral estoppel from
finding him guilty as the actual killer. We review de novo a lower
court’s application of collateral estoppel. (People v. Jimenez
(2024) 103 Cal.App.5th 994, 1004.) We agree with the
resentencing court that the Supreme Court’s Santamaria
decision defeats defendant’s argument.
      We begin by summarizing the applicable case law on which
we base our holding. This includes the two Supreme Court cases
addressing collateral estoppel in the context of section 1172.6,
People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v.
Curiel (2023) 15 Cal.5th 433 (Curiel), as well as Santamaria and
Hart. We then explain why we conclude those authorities control
here. Finally, we address the contrary authority cited by
defendant, as well as defendant’s arguments, and explain why we
do not find them persuasive.

      1.    Applicable case law

            a.    Strong
       Strong concerned the preclusive effect in a section 1172.6
proceeding of a jury’s true finding on a felony murder special
circumstance, which requires a finding the defendant was a
major participant in the underlying felony who acted with
reckless indifference to human life. (Strong, supra, 13 Cal.5th at
p. 703; see § 190.2, subd. (d).) Strong argued the true finding in
his case should not preclude relief under section 1172.6, because
his conviction predated the Supreme Court’s decisions in People
v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522, “which for the first time provided substantial
guidance on the meaning of” “major participant” and “reckless
indifference to human life.” (Ibid.)




                                   15
       Our high court rejected arguments that the text of
section 1172.6 itself resolved the preclusion question. (Strong,
supra, 13 Cal.5th at pp. 711–712, 714–715; see id. at p. 715 [“the
text of section 1172.6 does not speak in any direct way to the
issue before us”].) It therefore “turn[ed] to background principles
for guidance,” namely “the doctrine of issue preclusion, also
known as collateral estoppel.” (Strong, at p. 715.) The court
explained, “This common law doctrine is ‘grounded on the
premise that “once an issue has been resolved in a prior
proceeding, there is no further factfinding function to be
performed.” ’ [Citation.] The doctrine ‘ “has the dual purpose of
protecting litigants from the burden of relitigating an identical
issue with the same party or his privy and of promoting judicial
economy by preventing needless litigation.” ’ [Citation.]” (Id. at
pp. 715–716.)
       The high court reiterated the “ ‘threshold requirements’ ”
for issue preclusion: “ ‘First, the issue sought to be precluded
from relitigation must be identical to that decided in a former
proceeding. Second, this issue must have been actually litigated
in the former proceeding. Third, it must have been necessarily
decided in the former proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the
party against whom preclusion is sought must be the same as, or
in privity with, the party to the former proceeding.’ [Citation.]”
(Strong, supra, 13 Cal.5th at p. 716.)
       The court emphasized these threshold requirements, while
“necessary,” “are not always sufficient: ‘Even if the[ ] threshold
requirements are satisfied, the doctrine will not be applied if such
application would not serve its underlying fundamental
principles’ of promoting efficiency while ensuring fairness to the
parties.” (Strong, supra, 13 Cal.5th at p. 716.)




                                   16
      Applying these principles to the case at hand, our high
court concluded a jury’s special circumstance findings “can have
preclusive effect.” (Strong, supra, 13 Cal.5th at p. 716.)
Collateral estoppel did not apply under the circumstances of the
case, however, because of the “well-settled equitable exception to
the general rule . . . that preclusion does not apply when there
has been a significant change in the law since the factual findings
were rendered that warrants reexamination of the issue.” (Ibid.)
“Banks and Clark represent the sort of significant change that
has traditionally been thought to warrant reexamination of an
earlier-litigated issue.” (Strong, at p. 717.)

            b.    Curiel
       Curiel addressed “the effect of the jury’s true finding on the
gang-murder special circumstance, specifically its finding that
Curiel intended to kill, on his ability to state a prima facie case
for relief under Senate Bill 1437.” (Curiel, supra, 15 Cal.5th at
pp. 440–441.) In light of Strong, the parties in Curiel “frame[d
their] argument in terms of issue preclusion.” (Curiel, at p. 451.)
Our high court declined to “decid[e] whether this doctrine applies
wholesale to criminal resentencing proceedings generally, or even
section 1172.6 proceedings specifically.” (Curiel, at p. 451.)
Nevertheless, “we continue to believe its contours are informative
in this context and rely on them again here.” (Ibid.)
       Evaluating the elements of collateral estoppel, our high
court held “Curiel’s intent to kill was actually litigated and
necessarily decided.” (Curiel, supra, 15 Cal.5th at p. 452.) “The
prosecution alleged the gang-murder special circumstance, which
included an intent to kill element, and Curiel put all elements of
the special circumstance at issue by pleading not guilty.” (Ibid.)
The jury found the special circumstance true, “necessarily




                                    17
f[inding] beyond a reasonable doubt that Curiel intended to kill.”
(Ibid.)
       The Supreme Court therefore “conclude[d] the jury’s intent
to kill finding meets the traditional threshold requirements for
issue preclusion.” (Curiel, supra, 15 Cal.5th at p. 453.) Unlike in
Strong, there was no “change in the law [of the gang-murder
special circumstance] that would justify a departure from the
general rule of issue preclusion.” (Curiel, at p. 455.) Thus, the
resentencing court “properly g[ave]” “the jury’s intent to kill
finding . . . preclusive effect in the resentencing proceedings
below, i.e., Curiel was bound by the jury’s finding for purposes of
assessing his petition.” (Id. at p. 441.)
       The Supreme Court observed its holding “is consistent with
our observation in Strong that a relevant jury finding is generally
preclusive in section 1172.6 proceedings, i.e., it ‘ordinarily
establish[es] a defendant’s ineligibility for resentencing under
Senate Bill 1437 and thus preclude[s] the defendant from making
a prima facie case for relief.’ [Citation.] Indeed, it is difficult to
foresee a situation in which a relevant jury finding, embodied in a
final criminal judgment, would not meet the traditional elements
of issue preclusion.” (Curiel, supra, 15 Cal.5th at pp. 453–454.)
       The high court nonetheless concluded that, although the
jury’s finding was determinative as to the defendant’s intent to
kill, that finding “does not itself conclusively establish that a
petitioner is ineligible for relief.” (Curiel, supra, 15 Cal.5th at p.
461.) This is because intent to kill is “only one element” of
murder, and “does not by itself establish any valid theory of
liability.” (Id. at p. 463.)

            c.     Santamaria
      Santamaria, issued two decades before Senate Bill
No. 1437 was enacted, did not involve collateral estoppel in a




                                    18
resentencing proceeding, but in a retrial following reversal of a
conviction on appeal. (Santamaria, supra, 8 Cal.4th at p. 908.)
       Santamaria was charged with murder and robbery, with
allegations of a robbery-murder special circumstance and that
Santamaria personally used a knife in committing the offenses.
(Santamaria, supra, 8 Cal.4th at p. 908.) The main prosecution
witness, Anthony Nubla, had pleaded guilty to accessory to
murder and agreed to cooperate with the prosecution. (Id. at
pp. 908–909.) Nubla testified he saw Santamaria “hugging [the
victim’s] neck and stabbing him” while Santamaria and the
victim were sitting in Nubla’s car. (Id. at p. 909.) Santamaria
then took the victim’s money and jewelry and drove Nubla’s car
twice over the victim’s body. (Ibid.) Nubla and Santamaria
cleaned the car, and a week later pawned the victim’s jewelry.
(Ibid.)
       The jury convicted Santamaria of murder and robbery, and
found true the robbery-murder special circumstance, but found
not true the allegation Santamaria personally used a knife.
(Santamaria, supra, 8 Cal.4th at p. 909.) On appeal, the Court of
Appeal reversed the judgment, concluding an 11-day continuance
during jury deliberations was prejudicial error. (Ibid.)
       On remand, the People filed a new information that
omitted the knife allegation. (Santamaria, supra, 8 Cal.4th at
p. 909.) “Defendant promptly moved, ‘based on double jeopardy
clause, to prohibit retrial of defendant for use of dangerous
weapon, to limit evidence and preclude prosecution’s reliance on
theory adjudicated in defendant’s favor at first trial.’ ” (Ibid.)
The trial court “largely granted the motion,” and “precluded the
prosecution ‘from retrying the defendant on the theory that he
personally used the knife during the killing.’ ” (Ibid.) The court
further ruled the jury would “ ‘be instructed at appropriate
intervals throughout the case that the defendant did not




                                   19
personally use a knife during the killing of the victim.’ ” (Ibid.)
The prosecution “stated it was unable to proceed in light of the
ruling,” and the trial court dismissed the case. (Id. at p. 910.)
The People appealed, and the Court of Appeal affirmed, “finding
that ‘the negative enhancement finding precludes the People
from retrying defendant on the theory he personally killed the
victim with a knife.’ ” (Ibid.)
       Our Supreme Court granted review and reversed the Court
of Appeal. (Santamaria, supra, 8 Cal.4th at p. 908.) Quoting the
United States Supreme Court, our high court explained collateral
estoppel “ ‘means simply that when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.’ ” (Id. at p. 912, quoting Ashe v. Swenson (1970) 397 U.S.
436, 443.) “ ‘[T]he rule of collateral estoppel in criminal cases
is not to be applied with the hypertechnical and archaic approach
of a 19th century pleading book, but with realism and
rationality.’ ” (Santamaria, at p. 912, quoting Ashe, at p. 444.)
       Our Supreme Court acknowledged “the jury’s ‘not true’
finding on the knife-use enhancement allegation precludes retrial
of that allegation.” (Santamaria, supra, 8 Cal.4th at p. 910.) As
to the murder change, however, “[c]ollateral estoppel does not
apply for two reasons: (1) the issue sought to be precluded in the
murder trial is not identical to any issue necessarily decided by
the weapon enhancement verdict; and (2) whether defendant
used a knife is not an ‘ultimate issue’ of the murder charge.” (Id.
at p. 917.)
       As for why the issue sought to be precluded was not
necessarily decided in the first trial, the high court observed that
the jury acquitted Santamaria of the knife allegation while
convicting him of the robbery and murder charges, and “[t]he




                                   20
pertinent issue decided by each verdict was quite different.”
(Santamaria, supra, 8 Cal.4th at p. 917.)
       The court noted that under California law, “as long as each
juror is convinced beyond a reasonable doubt that defendant is
guilty of murder as that offense is defined by statute, it need not
decide unanimously by which theory he is guilty. [Citations.]
More specifically, the jury need not decide unanimously whether
defendant was guilty as the aider and abettor or as the direct
perpetrator.” (Santamaria, supra, 8 Cal.4th at p. 918.) Although
the jury unanimously found the knife allegation not true, this
“shows only that there was a reasonable doubt in the minds of
the jurors that defendant specifically used a knife. It does not
show the reverse, that the jury specifically found defendant was
an aider and abettor.” (Id. at p. 919.) “The jury may merely have
believed, and most likely did believe, that defendant was guilty of
murder as either a personal knife user or an aider and abettor
but it may have been uncertain exactly which role defendant
played.” (Ibid.) “There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he
was the aider and abettor, but no such doubt that he was one or
the other.” (Ibid.) “To go further and conclude that the jury
specifically found defendant did not use the knife would not apply
the collateral estoppel rule with ‘realism and rationality.’
[Citation.]” (Id. at p. 920.)
       The court continued, “Although defendant claims he merely
seeks to preclude the theory that he used the knife, he
necessarily is claiming more; he seeks to preclude the theory, and
evidence to support the theory, that he either used the knife or
aided and abetted the one who did. This, however, is not the
issue decided regarding the enhancement allegation. Whether
defendant specifically used a knife is one question; we may
assume the prosecution did not prove that beyond a reasonable




                                   21
doubt, which explains the not true enhancement verdict.
Whether defendant committed murder by either using a knife or
aiding and abetting the one who did is quite a different question;
the prosecution did prove that to the jury’s satisfaction.”
(Santamaria, supra, 8 Cal.4th at p. 920.)
       The court acknowledged it was “theoretically possible the
jury concluded defendant was specifically the aider and abettor,”
“[b]ut that is not the test. Setting the inquiry ‘ “in a practical
frame” ’ and viewing it ‘ “with an eye to all the circumstances of
the proceedings” ’ [citation], we conclude the jury did not
‘ “necessarily decide[ ]” ’ [citations] that defendant was the aider
and abettor, only that it had doubts as to his exact role.”
(Santamaria, supra, 8 Cal.4th at p. 920.)
       Turning to the second reason collateral estoppel did not
apply — that knife use was “not an ultimate fact of murder” —
the high court relied on federal case law holding that an acquittal
has preclusive effect in a retrial or subsequent prosecution only
“ ‘when the relevant issue is “ultimate” in the subsequent
prosecution, i.e., when the issue must be proven beyond a
reasonable doubt.’ ” (Santamaria, supra, 8 Cal.4th at pp. 921,
922.) “Evidence that defendant personally used a knife was
highly relevant to show that he was guilty of murder as that
offense is defined by statute. That evidence, together with the
evidence that if he did not use a knife, he was guilty as the aider
and abettor, combined to permit the murder conviction. But the
specific fact of personal use does not have to be proven beyond a
reasonable doubt to find defendant guilty of murder. Hence,
personal use is not an ‘ultimate fact’ of murder.” (Id. at p. 922.)
       In summary, our Supreme Court stated, “The first jury,
having heard and considered all the evidence, properly convicted
defendant of murder even though it had a reasonable doubt who
actually wielded the knife. The second jury should be allowed to




                                    22
do the same. A reasonable doubt that defendant used the knife
precluded the use enhancement; it did not prevent conviction of
murder at the first trial on the combined theory that he either
used the knife or aided and abetted the one who did. It should
not preclude conviction at retrial on the same basis.”
(Santamaria, supra, 8 Cal.4th at p. 926.)

            d.    Hart
      Hart, a defendant in a section 1172.6 proceeding, argued
his jury’s not-true finding on an allegation he personally used a
firearm precluded the resentencing court from relying on a theory
that he was the shooter. (Hart, supra, 113 Cal.App.5th at
p. 1104.) The resentencing court disagreed, and concluded Hart
was the actual shooter, relying, inter alia, on a comprehensive
risk assessment Hart underwent while incarcerated in which he
admitted to shooting the victim. (Id. at p. 1105.)
      The Court of Appeal affirmed. The court focused on
Santamaria’s “ultimate fact” requirement “because it most
clearly dictates the result.” (Hart, supra, 113 Cal.App.5th at
p. 1110.) In line with Santamaria, the court concluded Hart’s
“personal use of [a] gun is not an ‘ultimate fact’ that has to be
proven beyond a reasonable doubt to find him guilty of murder.”
(Hart, at p. 1109.) The court explained, “At an evidentiary
hearing in a section 1172.6 proceeding, the question before the
court is the same as it would be at a retrial for the murder:
whether the petitioner is guilty of murder beyond a reasonable
doubt under current law. [Citation.] Under current law, a
participant in a robbery may be guilty of felony murder as the
‘actual killer’ without using a firearm [citation], or alternatively,
as either an aider and abettor who acted with intent to kill and
assisted the actual killer in committing the murder [citation] or a
major participant who acted with reckless indifference to human




                                    23
life [citation]. Because ‘the specific fact of personal use does not
have to be proven beyond a reasonable doubt to find defendant
guilty of murder’ under any of these theories, ‘personal use is not
an “ultimate fact” of murder’ and ‘collateral estoppel does not
apply.’ [Citation.]” (Id. at pp. 1111–1112.)
        The court further observed, “A contrary result would
effectively give section 1172.6 petitioners greater double jeopardy
protection by way of issue preclusion than criminal defendants on
trial for murder. If this were a retrial rather than a
section 1172.6 proceeding, the jury’s not true finding on the
firearm use enhancement would not preclude reliance on an
actual killer theory under the holding of Santamaria. But it
would make little sense to afford section 1172.6 petitioners
greater protection against a redetermination of factual issues
than they would enjoy in a criminal trial. Double jeopardy
concerns are not even implicated in a section 1172.6 proceeding
because the relief provided is a legislative act of lenity designed
to give convicted defendants the benefit of ameliorative changes
in the law of murder, and it does not result in a new trial or
increased punishment.” (Hart, supra, 113 Cal.App.5th at
p. 1112.)
        The Hart court disagreed with prior appellate decisions
applying preclusive effect to acquittals and not-true findings in
section 1172.6 proceedings, largely because those courts had not
considered Santamaria’s ultimate fact requirement. (Hart,
supra, 113 Cal.App.5th at p. 1115.)

      2.    Analysis
      We agree with Hart that Santamaria applies to
section 1172.6 proceedings. Strong and Curiel establish that
when determining the preclusive effect of jury findings on
section 1172.6 proceedings, courts are guided by general




                                   24
principles of collateral estoppel. Santamaria is binding Supreme
Court authority applying those general principles to a jury’s not-
true findings.
       We recognize that Curiel, unlike Santamaria, afforded
preclusive effect to a jury finding. Strong similarly held jury
findings could have preclusive effect, albeit not in that case
because of a significant change in the law. Defendant suggests
these cases indicate Santamaria does not apply to section 1172.6
proceedings. We discern no tension among these authorities.
       In Curiel and Strong, the findings at issue were true
findings, meaning the juries had found beyond a reasonable
doubt Curiel intended to kill the victim and Strong was a major
participant acting with reckless indifference to human life.
Santamaria, in contrast, concerned a not-true finding. That
finding, as explained by our Supreme Court, did not prove the
jury found the alleged knife use did not happen — that is, that
Santamaria was not the actual killer but only an aider and
abettor. This is because it was possible the jury, though
convinced of Santamaria’s guilt for murder, simply could not
decide whether he personally killed the victim or aided and
abetted the actual killer. (Santamaria, supra, 8 Cal.4th at
p. 919.) The distinction between true and not-true findings
explains why the jury findings were not preclusive in Santamaria
but were in Curiel and Strong.
       Like Hart, we do not think Santamaria can be
distinguished on the basis that Santamaria concerned a retrial
rather than a resentencing proceeding under section 1172.6. As
Hart correctly reasons, “At an evidentiary hearing in a section
1172.6 proceeding, the question before the court is the same as it
would be at a retrial for the murder: whether the petitioner is
guilty of murder beyond a reasonable doubt under current law.”
(Hart, supra, 113 Cal.App.5th at p. 1111.)




                                  25
       We are additionally persuaded by Hart’s observation that,
were we to conclude Santamaria, which unquestionably applies
to criminal trials, does not also apply to section 1172.6
proceedings, we would be “afford[ing] section 1172.6 petitioners
greater protection against a redetermination of factual issues
than they would enjoy in a criminal trial.” (Hart, supra,
113 Cal.App.5th at p. 1112.) This “would make little sense” when
section 1172.6 defendants are, as a general matter, entitled to
fewer constitutional protections than defendants in criminal
trials. (Ibid.; see People v. Hill (2024) 100 Cal.App.5th 1055,
1068 [§ 1172.6 petitioners have no constitutional right to jury or
protection from double jeopardy].)
       Accordingly, under Santamaria and Hart, we hold the
jury’s not-true finding on the firearm enhancement did not
preclude the resentencing court from finding defendant was the
actual killer. We reach the same conclusion as to the jury’s not-
true finding on the robbery special circumstance containing an
actual-killer requirement. Under Santamaria, that not-true
finding, like the not-true finding on the firearm enhancement,
does not establish the jury necessarily found defendant did not
personally kill the victim. Akin to Santamaria, the jury might
simply have been unsure what role defendant played in the
killing, and found the special circumstance not true on that basis.

      3.    Contrary authority
      As Hart recognizes, several cases have held jury acquittals
and not-true findings have preclusive effect in section 1172.6
proceedings — indeed, it appears Hart is the first published
decision concluding otherwise. (See Hart, supra, 113 Cal.App.5th
at pp. 1112–1115.) As we explain, we do not find these contrary
authorities, and their attempts to distinguish Santamaria,
persuasive. People v. Cooper (2022) 77 Cal.App.5th 393 (Cooper)




                                   26
requires the most discussion, and we devote a section to it and
the authorities on which it relies. We follow that with a section
discussing the other authorities cited by defendant.

            a.    Cooper
       Cooper addressed whether a defendant’s acquittal of
possession of a firearm by a felon precluded the resentencing
court under section 1172.6 (then numbered 1170.95) from basing
a finding of major participant/reckless indifference “on its belief
that Cooper possessed and fired a gun.” (Cooper, supra,
77 Cal.App.5th at pp. 397–398.) Cooper predated Strong and
Curiel, and the Court of Appeal expressed uncertainty whether
principles of collateral estoppel applied. (Cooper, at p. 413.) The
court nonetheless agreed the jury’s acquittal had preclusive effect
under “established case law in the analogous context of petitions
for resentencing under the Three Strikes Reform Act of 2012,”
also known as Proposition 36. (Cooper, at p. 413.) In support,
Cooper cited People v. Arevalo (2016) 244 Cal.App.4th 836
(Arevalo) and People v. Piper (2018) 25 Cal.App.5th 1007.
(Cooper, at p. 413.)
       Hart interpreted Cooper as “appl[ying] a theory of
preclusion derived from Proposition 36 case law rather than issue
preclusion.” (See Hart, supra, 113 Cal.App.5th at p. 1114.) As
we explain, in our view, Arevalo and Piper, the cases Cooper cites,
do not establish a doctrine of preclusion distinct from traditional
issue preclusion.5 Further, Arevalo and Piper are inapposite


      5 Even if arguendo Arevalo and Piper had established a
doctrine of preclusion distinct from collateral estoppel, applying
that doctrine to section 1172.6 arguably would be in tension with
Strong and Curiel, which applied traditional principles of




                                   27
because the factual questions at issue in those cases differ from
those in the instant case.

                  i.    Proposition 36
       Proposition 36 amended the Three Strikes law to reduce
the penalty for defendants whose third strike offense is neither
serious nor violent, subject to certain exceptions. (Arevalo, supra,
244 Cal.App.4th at p. 844.) Proposition 36 also enacted
section 1170.126, which allows defendants already serving a
third strike sentence for a felony that is neither serious nor
violent to seek resentencing under the new rules. (Arevalo, at
p. 845.) Defendants are disqualified from resentencing if, inter
alia, the defendant was armed with a firearm during commission
of the third strike. (Ibid.) In determining whether the defendant
was armed, the resentencing court is not limited to what was
specifically pleaded and proved at trial, but may make its own
findings based on the record of conviction. (Id. at pp. 847–848.)
       The question in Arevalo was whether Arevalo’s acquittal in
a bench trial for possession of a firearm by a felon, along with a
not-true finding that Arevalo was armed with a firearm,
precluded the resentencing court in a section 1170.126 proceeding
from finding Arevalo ineligible based on evidence in the trial
record he was armed during the commission of his third strike
offenses. (Arevalo, supra, 244 Cal.App.4th at pp. 841–842.) The
resentencing court answered this question in the negative, in
part because it believed resentencing courts were subject to the
lower preponderance of the evidence standard rather than the
trial standard of beyond a reasonable doubt. (Id. at p. 853 [“the
resentencing court relied on the disparity between ‘beyond a

collateral estoppel to section 1172.6 proceedings. (See Hart,
supra, 113 Cal.App.5th at p. 1114.)




                                   28
reasonable doubt’ and ‘preponderance of the evidence’ standards
to find Arevalo ineligible for resentencing on the basis of an
arming allegation that had been pled and disproved at his earlier
trial”].)
       The Court of Appeal disagreed with the resentencing court.
The appellate court held ineligibility determinations under
section 1170.126 must be beyond a reasonable doubt. (Arevalo,
supra, 244 Cal.App.4th at p. 852.) The court reasoned that
Proposition 36 set forth a “ ‘parallel structure’ ” between its
sentencing and resentencing provisions, a structure that
“ ‘appears to contemplate identical sentences in connection with
identical criminal histories,’ ” regardless of whether those
sentences are imposed in the first instance or in a section
1170.126 resentencing. (Arevalo, at p. 853, italics omitted.) If a
resentencing court were subject to a lesser standard of proof than
the finder of fact at trial, “nothing would prevent the
[resentencing] court from disqualifying a defendant from
resentencing eligibility consideration by completely revisiting an
earlier trial, and turning acquittals and not-true enhancement
findings into their opposites.” (Ibid.) The court held this result
would violate the parallel structure of Proposition 36, “leaving
Arevalo ineligible for resentencing while a newly convicted
defendant with an identical criminal history would be found
eligible for a [lesser] prison sentence.” (Ibid.)
       The Arevalo court concluded, “Under the applicable beyond
a reasonable doubt standard, Arevalo’s acquittal on the weapon
possession charge and the not-true finding on the allegation of
being armed with a firearm, preclude a finding that he is
ineligible for resentencing consideration.” (Arevalo, supra,
244 Cal.App.4th at p. 853.)
       In People v. Frierson (2017) 4 Cal.5th 225 (Frierson), our
Supreme Court agreed with Arevalo that reasonable doubt was




                                   29
the correct standard of proof under section 1170.126, but did not
have occasion to address the preclusive effect of trial findings.
(Frierson, at p. 230.) Frierson rejected the People’s argument the
reasonable doubt standard put the prosecution at an unfair
disadvantage “ ‘merely because of the happenstance that the
prosecution, having no need to prove [the ineligibility] factor
years ago, made a less than complete record.’ ” (Id. at p. 238.)
The high court stated, “[N]othing in [Proposition 36’s] language
suggests the electorate contemplated that a lower standard of
proof should apply at resentencing to compensate for any
potential evidentiary shortcoming at a trial predating
[Proposition 36].” (Frierson, at p. 238.)
      Piper, similar to Arevalo, held a jury’s acquittals on firearm
possession offenses and not-true findings on arming
enhancements precluded the resentencing court in a
section 1170.126 proceeding from finding the defendant was
armed while committing his third-strike offenses. (Piper, supra,
25 Cal.App.5th at pp. 1010, 1015–1016.) Piper reasoned, “Under
Frierson and Arevalo, on a resentencing petition, the trial court
may not make an eligibility determination contrary to the jury’s
verdict and findings. To do so would allow the People, contrary to
[Proposition 36], to ‘compensate for any potential evidentiary
shortcoming at a trial predating [Proposition 36].’ [Citation.] It
also would allow a trial court . . . to ‘turn[ ] acquittals and not-
true enhancement findings into their opposites.’ [Citation.]”
(Piper, at p. 1015, quoting Frierson, supra, 4 Cal.5th at p. 238,
and Arevalo, supra, 244 Cal.App.4th at p. 853.)6


      6 Piper observed that some weapon enhancements require
proof that the defendant not only possessed the weapon while
committing the offense (a “temporal nexus”) but also used the




                                   30
                  ii.   Cooper’s application of Arevalo and Piper
       The Court of Appeal in Cooper found the analysis of
Arevalo and Piper applicable in the section 1172.6 context
because Senate Bill No. 1437, like Proposition 36, “created a
‘parallel structure’ [citation] between its amendments to existing
law (§§ 188 and 189 governing liability for murder) and its
resentencing provisions [citation].” (Cooper, supra,
77 Cal.App.5th at p. 415.) “Thus, Senate Bill 1437 also ‘reflects
an intent that sentences imposed on individuals with the same
criminal history be the same, regardless of whether they are
being sentenced or resentenced.’ [Citation.]” (Cooper, at p. 415.)
       Following Arevalo and Piper, the Cooper court articulated
its inquiry as “whether, in light of the evidence and arguments at
trial, Cooper’s acquittal of the firearm-possession count
‘constituted [a] finding[ ] inconsistent with’ the trial court’s
theory that he was a major participant in the kidnapping who
acted with reckless indifference to human life.” (Cooper, supra,
77 Cal.App.5th at pp. 416–417.) The court summarized the
prosecution’s arguments at trial that Cooper possessed a firearm
during the underlying offenses. (Id. at p. 417.) “The acquittal
establishes that the jury rejected these arguments and was not


weapon (a “facilitative nexus”). (Piper, supra, 25 Cal.App.5th at
p. 1015.) Piper acknowledged not-true findings on such
allegations would not necessarily preclude a finding the
defendant was armed for purposes of ineligibility under
section 1170.126, a finding that requires only a temporal nexus.
(Ibid.) Piper concluded, however, that on the facts of the case
“the jury’s acquittals constituted findings inconsistent with either
a facilitative or temporal nexus between appellant and any
firearm.” (Ibid.) Piper’s discussion of facilitative and temporal
nexuses is not pertinent to our analysis.




                                   31
convinced beyond a reasonable doubt that Cooper possessed a
firearm, much less fired one. Yet the trial court, also applying
the reasonable-doubt standard and considering the same
evidence . . . , found that Cooper did possess and fire a firearm,
and explicitly relied on this finding to determine he was a major
participant. Thus, in contravention of Arevalo and Piper, the
court effectively turned Cooper’s acquittal “into [its] opposite[ ].’
[Citation.]” (Cooper, at p. 417.)
      The Cooper court remanded the matter for the resentencing
court to hold a new evidentiary hearing. (Cooper, supra,
77 Cal.App.5th at pp. 418–419.) The Court of Appeal instructed,
“In doing so, the [resentencing] court shall not rely on any
evidence admitted during the trial that contradicts the jury’s
finding that the prosecution failed to prove beyond a reasonable
doubt that Cooper possessed a firearm.” (Id. at p. 419.)

                  iii.   Analysis
       The problem with reading Cooper to suggest that Arevalo
and Piper provide a basis for preclusion distinct from collateral
estoppel is that those cases do not, in fact, articulate a new basis
for preclusion.
       Arevalo devoted almost its entire discussion to the question
of the appropriate standard of proof in a Proposition 36
resentencing hearing. This is understandable, because the
resentencing court justified its departure from the trial findings
by applying, erroneously, a lesser standard of proof than the trial
court had. It was in the context of explaining why the reasonable
doubt standard applies that Arevalo referred to the “ ‘parallel
structure’ ” of Proposition 36’s sentencing and resentencing
provisions, and the concern that if the resentencing court were
subject to a lower standard of proof, it could “revisit[ ] an earlier




                                    32
trial[ ] and turn[ ] acquittals and not-true enhancement findings
into their opposites.” (Arevalo, supra, 244 Cal.App.4th at p. 853.)
       Having established the proper standard of proof, Arevalo
held, without further explanation, “Under the applicable beyond
a reasonable doubt standard, Arevalo’s acquittal on the weapon
possession charge and the not-true finding on the allegation of
being armed with a firearm, preclude a finding that he is
ineligible for resentencing consideration.” (Arevalo, supra,
244 Cal.App.4th at p. 853.) Arevalo articulated no basis for this
conclusion. Again, Arevalo’s discussion of “parallel structure”
and “turning acquittals and not-true enhancement findings into
their opposites,” on which Cooper relied, pertained to the
standard of proof, not issue preclusion. (See Arevalo, at p. 853;
Cooper, supra, 77 Cal.App.5th at pp. 415, 417.)
       There is no reason to think, therefore, the Arevalo court
was applying anything other than standard principles of
collateral estoppel. That is, it implicitly found that the trial
court’s acquittals and not-true findings necessarily decided the
issue of Arevalo’s weapon possession, and that issue was identical
to the question before the resentencing court, i.e., was Arevalo
armed when he committed his offenses. Certainly there is no
indication the Arevalo court intended to break new ground in
developing a theory of preclusion.
       Piper justified its preclusion holding by quoting Frierson’s
statement that voters did not intend, through Proposition 36, to
allow the prosecution to “ ‘compensate for . . . evidentiary
shortcoming[s] at . . . trial,’ ” and Arevalo’s concern that
resentencing courts would “ ‘turn[ ] acquittals and not-true
enhancement findings into their opposites.’ [Citation.]” (Piper,
supra, 25 Cal.App.5th at p. 1015.) Those statements in Frierson
and Arevalo, however, were in support of those cases’ holdings
that the resentencing court should apply the same standard of




                                   33
proof as the trial court, and did not pertain to the question of
preclusion. Again, apart from the standard of proof issue,
Arevalo did not explain its preclusion holding, and Frierson
did not address preclusion at all. Thus, as in Arevalo, there is
nothing in Piper suggesting a new theory of preclusion distinct
from traditional collateral estoppel.
       In short, nothing in Arevalo or Piper suggests courts in
section 1172.6 proceedings may evade the traditional
requirements of collateral estoppel, requirements articulated and
illustrated in Santamaria, as well as Strong and Curiel.
       Further, we disagree with Cooper that Arevalo’s and Piper’s
preclusion analysis applies to section 1172.6 proceedings. The
questions confronting the resentencing courts in Arevalo and
Piper differ from those in section 1172.6 cases, and therefore the
collateral estoppel analysis differs accordingly. In Arevalo and
Piper, the question before the resentencing court was whether the
defendant was armed during the commission of the offense. This
was effectively the same question put to the finder of fact at trial
when deciding whether to convict the defendant of firearm
possession charges or to find firearm enhancement allegations
true. Thus, the very question before the resentencing court in
Arevalo and Piper had necessarily been litigated and decided at
trial, precluding the resentencing court from reaching a contrary
conclusion.7 This is consistent with Santamaria, which noted the
jury’s not-true finding on a weapon enhancement precluded the



      7 This is not to say there cannot be circumstances in which
the questions at issue in deciding a weapons charge or
enhancement differ sufficiently from the question of whether a
defendant was armed that preclusion would not apply, as Piper
acknowledged (see fn. 6, ante).




                                   34
prosecution from realleging the enhancement on retrial.
(Santamaria, supra, 8 Cal.4th at p. 910.)
      In Cooper and the instant case, however, the question
before the resentencing court was not whether the defendant was
armed, but whether he was guilty of murder under current law.
Santamaria held a jury’s not-true finding on a weapon
enhancement does not, in a future proceeding, preclude murder
theories requiring weapon use. Thus, the bases for preclusion in
Arevalo and Piper are absent in the instant case.
      Cooper does not discuss Santamaria apart from quoting it
when explaining the relationship between double jeopardy
protection and collateral estoppel. (Cooper, supra,
77 Cal.App.5th at p. 412.) Cooper itself therefore does not
explain why Santamaria should not apply. For all these reasons,
we decline to follow Cooper.

            b.    Other contrary authority
       People v. Henley (2022) 85 Cal.App.5th 1003 relied on
Cooper to hold a jury’s not-true finding on a firearm use
enhancement precluded the resentencing court in a section
1172.6 proceeding from finding defendant was armed. (Henley, at
p. 1020.) The only significant difference between Henley and
Cooper is that in Henley, the parties introduced new evidence at
the resentencing hearing. (Henley, at p. 1019.) The Henley court
held this did not distinguish the case from Cooper because none
of the new evidence pertained to the question of whether the
defendant was armed. (Henley, at pp. 1019–1020.) Henley
does not cite or discuss Santamaria. We decline to follow Henley
for the same reasons we decline to follow Cooper.
       In People v. Arnold (2023) 93 Cal.App.5th 376 (Arnold), a
witness at trial testified she saw five men hitting the victim. (Id.
at p. 380.) The victim broke free and ran, and defendant Arnold




                                   35
chased him down. (Ibid.) The witness saw Arnold “hit the victim
in the stomach several times.” (Ibid.) The witness did not see
anything in Arnold’s hand. (Ibid.) The victim died from 13 stab
wounds. (Ibid.) A jury convicted Arnold of second degree murder
but found the allegation that he personally used a knife not true.
(Id. at p. 381.) During a later section 1172.6 proceeding, the
resentencing court found Arnold guilty as the actual killer and
denied resentencing. (Id. at pp. 381–382.)
       The Court of Appeal reversed, holding the jury’s not-true
finding on the knife use enhancement precluded the resentencing
court from finding Arnold was the actual killer. (Arnold, supra,
93 Cal.App.5th at p. 379.) Arnold declined to resolve the parties’
dispute as to whether Cooper or collateral estoppel applied,
because “both compel the same result.” (Arnold, at p. 385.) The
court found, as in Cooper, the resentencing court’s knife use
finding “undoubtedly contradicted the jury’s prior finding.”
(Arnold, at p. 385.) The court further found collateral estoppel
applied: “The jury found the knife use allegation not true. Per
the instructions given, it had to assess whether the prosecution
proved beyond a reasonable doubt that defendant ‘intentionally . .
. str[uck]’ the victim with a knife. The [resentencing] court
considered the exact same issue at the section 1172.6 hearing,
where it determined ‘beyond a reasonable doubt that [defendant]
stabbed the victim.’ ” (Id. at pp. 386–387.)
       The Arnold court concluded Santamaria was
distinguishable. (Arnold, supra, 93 Cal.App.5th at p. 388.) The
court explained, “[T]he issue sought to be precluded in
Santamaria differs significantly from the issue defendant seeks
to preclude here. In this appeal, defendant argues that the prior
not true finding on the knife use allegation precludes the trial
court from finding, beyond a reasonable doubt, that he stabbed
the victim. Conversely, the Santamaria defendant tried to




                                  36
preclude the prosecution from retrying him on any theory
involving his potential use of a knife.” (Arnold, at p. 388.) “In the
former scenario, the issue sought to be precluded is identical to
the issue the jury decided in its not true finding. In the latter, it
is not.” (Ibid.)
       We do not agree the issue sought to be precluded in
Santamaria differed from that in Arnold. In both cases the
prosecution charged the defendants with murder and alleged a
knife use enhancement. In both cases there was evidence of more
than one possible direct perpetrator of the killing — Santamaria
or Nubla in Santamaria and Arnold or one or more of the other
men striking the victim in Arnold. In both cases juries convicted
the defendants of murder but found the knife use enhancements
not true. In both cases the defendants argued the not-true
finding precluded the prosecution from asserting in a future
proceeding the defendant had killed the victim with a knife.
       On these facts, Santamaria rejected the defendant’s
argument and held a jury’s not-true finding on a weapon use
enhancement did not preclude the prosecution from arguing on
retrial the defendant was guilty of murder either as the actual
killer or an aider and abettor. In other words, all theories of
murder remained on the table during retrial despite the not-true
findings in the first trial. This means the jury on retrial was not
precluded from convicting the defendant on the theory the
defendant stabbed the victim. By analogy, the resentencing court
in Arnold, sitting as the finder of fact just as a jury would on
retrial, would not be precluded from finding the defendant guilty
as the actual killer, despite the jury’s not-true finding on the
knife use enhancement.
       Further, as noted by Hart, Arnold did not address
Santamaria’s holding that weapon use is not an ultimate fact of
murder. (Hart, supra, 113 Cal.App.5th at p. 1112.)




                                    37
       In People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227
(Lopez-Barraza), a jury convicted the defendant of murder and
robbery, but acquitted him of conspiracy to commit robbery. (Id.
at pp. 1231–1232.) In a later section 1172.6 proceeding, the
resentencing court found the defendant was a major participant
in the robbery and acted with reckless indifference to life. (Lopez-
Barraza, at p. 1237.) The resentencing court based this
conclusion in part on findings that the defendant “knew about
and participated in planning the robbery” that led to the killing.
(Ibid.) The Court of Appeal reversed, relying on Cooper to hold
defendant’s acquittal of conspiracy to commit robbery precluded a
finding the defendant planned the robbery. (Lopez-Barraza, at
pp. 1250–1251.)
       Lopez-Barraza distinguished Santamaria. (Lopez-Barraza,
supra, 110 Cal.App.5th at p. 1247.) The Court of Appeal read
Santamaria to “reflect[ ] concern with fairness to the prosecution
where a defendant is being retried for the same offense due to
procedural errors at the first trial.” (Lopez-Barraza, at p. 1247.)
In contrast, “[t]he determinations a resentencing court is
required to make under section 1172.6 are meant to ‘ “give
defendants the benefit of amended sections 188 and 189 with
respect to issues not previously determined.” ’ [Citation.]”
(Lopez-Barraza, at p. 1247.) “[S]ection 1172.6 envisions that
defendants entitled to resentencing will be subject to the same
liability requirements as they would face if being tried for the
first time under the new law — which requires the resentencing
court to consider issues that were not relevant under prior law
and therefore not decided.” (Lopez-Barraza, at p. 1247.)
“[S]ection 1172.6 is not meant to provide for relitigation of issues
that were decided at the prior trial, however, [and therefore] the
resentencing court is precluded from deciding the new issues
based on factual findings that are inconsistent with facts




                                   38
necessarily found by the jury.” (Lopez-Barraza, at pp. 1247–
1248.)
       Lopez-Barraza acknowledged that Strong and Curiel
“discussed issue preclusion in the context of findings made in
favor of the People.” (Lopez-Barraza, supra, 110 Cal.App.5th at
p. 1251, fn. 18.) The Court of Appeal discerned no reason “the
same principles should not be applied to findings made in favor of
a defendant.” (Ibid.)
       We have no quarrel with Lopez-Barraza’s conclusion that
section 1172.6 does not permit relitigation of issues necessarily
found by the jury, a conclusion consistent with Strong and Curiel.
Santamaria provides guidance, however, as to what it means for
a jury to have necessarily made a finding for purposes of issue
preclusion. Specifically, Santamaria held that, when a jury
convicts a defendant of murder but finds a weapon use allegation
not true, the jury has not necessarily found the defendant
was not the actual killer. (Santamaria, supra, 8 Cal.4th at
p. 919.) Thus, although the not-true finding precludes imposition
of a weapons enhancement, it does not preclude the finder of fact
in a future proceeding from concluding the defendant was the
actual killer. Lopez-Barraza does not justify departure from
Santamaria in the circumstances of the case before us. Lopez-
Barraza also does not address Santamaria’s “ultimate fact”
holding, apart from acknowledging that holding in a footnote.
(Lopez-Barraza, supra, 110 Cal.App.5th at p. 1246, fn. 16.)
       This is not to say a defendant in a section 1172.6
proceeding may never benefit from collateral estoppel. We agree
with Lopez-Barazza there is no reason the principles of issue
preclusion articulated in Strong and Curiel should not apply
equally to findings made in favor of a defendant. In the case
before us, however, the jury’s not-true findings on the weapon
enhancement and special circumstance do not satisfy the




                                  39
elements for collaterally estopping the resentencing court from
finding defendant to be the actual killer.
       People v. Harrison (2021) 73 Cal.App.5th 429 (Harrison)
is not a case about collateral estoppel, but instead section 1172.6,
subdivision (d)(2). 8 That subdivision provides, in relevant part,
“If there was a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or was not a
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” (§ 1172.6,
subd. (d)(2).)
       In Harrison, the resentencing court denied Harrison’s
section 1172.6 petition at the prima facie stage. (Harrison,
supra, 73 Cal.App.5th at p. 436.) The Court of Appeal held this
was error because the record of conviction did not conclusively
establish ineligibility. (Id. at p. 438.)
       As for disposition, the Court of Appeal held Harrison’s
acquittal at trial of a special circumstance requiring major
participation and reckless indifference satisfied section 1172.6,
subdivision (d)(2) and entitled Harrison to immediate
resentencing without need for an evidentiary hearing. (Harrison,
supra, 73 Cal.App.5th at pp. 435, 442.) The appellate court
rejected the argument that under Santamaria, the not-true
finding on the enhancement did not preclude the resentencing
court from finding Harrison guilty as a major participant who
acted with reckless indifference, reasoning that Santamaria
concerned traditional collateral estoppel rather than section
1172.6, subdivision (d)(2). (Harrison, at p. 442.) The appellate

      8  At the time Harrison was decided the statute was
numbered section 1170.95, subdivision (d)(2), but the relevant
language in that former subdivision remains in the current
version.




                                    40
court further distinguished Santamaria because, unlike the “split
jury verdict” in Santamaria, the trial court in Harrison, ruling
following a bench trial, “specifically found that Harrison was not
the actual killer, did not have the intent to kill [the victim], did
not act with reckless indifference to human life, and was guilty of
murder as an accomplice to robbery under the felony-murder
rule.” (Harrison, at p. 442.) “The trial court ascertained
precisely what Harrison did and rendered in no uncertain terms
its view of the legal consequences that followed.” (Ibid.)
       The trial findings that defendant here argues are
preclusive do not concern whether defendant was a major
participant acting with reckless indifference, but rather whether
he personally used a weapon or personally killed the victim.
Thus, section 1172.6, subdivision (d)(2) and Harrison interpreting
that section are not controlling or instructive here.

      4.    Defendant’s arguments
      In an attempt to distinguish Santamaria, defendant
argues: “The issue here is not what theory the jury must have
relied upon for the initial conviction. Rather, the issue is what
specific fact was necessarily decided by the ‘not true’ finding on
the personal use allegation. The ‘not true’ finding here
necessarily decided that appellant did not personally use a
firearm. This is a concrete, negative factual finding, not merely
an ambiguity about a general verdict.” Defendant analogizes to
the trial court’s findings in Harrison, which “eliminated all
possible bases for conviction under current law.”
       We see no difference between the not-true finding in
Santamaria and the not-true finding here. In both cases, juries
did not find beyond a reasonable doubt the defendant used a
weapon in committing the offense. Santamaria held this did not
mean the jury necessarily decided the defendant was guilty solely




                                   41
as an aider and abettor, and therefore the prosecution was not
collaterally estopped from arguing an actual-killer theory on
retrial. On this point, the instant case is indistinguishable. The
jury’s not-true finding on the firearm enhancement is not
comparable to the findings in Harrison, in which the court in a
bench trial did not merely find the special circumstance not true,
but affirmatively stated its finding that Harrison was not the
actual killer. (See Harrison, supra, 73 Cal.App.5th at p. 442.)
       Defendant states, “The prosecution in Santamaria had
proven the defendant’s guilt to the first jury’s satisfaction, and
the reversal resulted from trial error unrelated to the sufficiency
of the evidence. In contrast, section 1172.6 embodies a legislative
determination that certain prior convictions are no longer valid
under ameliorative changes to the law of murder.”
       To the extent procedural differences between proceedings
could potentially affect how collateral estoppel applies in each,
that is not the case here, as we have explained. In both
Santamaria and the instant case, the finder of fact — either a
jury on retrial or a resentencing court — must determine anew if
the defendant is guilty of murder beyond a reasonable doubt,
limited by whatever ultimate facts the jury necessarily decided in
the original trial. Santamaria establishes a jury’s not-true
finding on a weapon enhancement does not limit the theories the
finder of fact may consider in a future proceeding, because the
jury in reaching that not-true finding has not necessarily decided
the defendant was not the actual killer, and weapon use is not an
ultimate fact of murder.
       Defendant argues that although Santamaria held weapon
use is not an ultimate fact to prove murder, “personal use
becomes an ultimate fact when it is the sole basis for a particular
theory of guilt.” Defendant contends knife use was not an
ultimate fact in Santamaria because the defendant in that case




                                   42
could be convicted under multiple theories, some of which did not
require that the defendant used a knife. Here, in contrast, “the
prosecution’s actual killer theory depends entirely on appellant
being the shooter. There is no evidence that anyone other than
the shooter killed the victim. Personal use of the firearm is
therefore not merely an evidentiary fact but the essential element
of the prosecution’s actual killer theory.”
       This argument echoes Justice Mosk’s dissent in
Santamaria, which defendant urges us to follow. Justice Mosk
stated, “[P]ersonal use of a knife is a necessary fact for the
unlawful-act element of the crime of murder insofar as guilt is
predicated on a theory dependent thereon.” (Santamaria, supra,
8 Cal.4th at p. 932 (dis. opn. of Mosk, J.).) Justice Mosk
concluded from this that, although the jury’s not-true finding
did not preclude the prosecution on retrial from attempting to
prove Santamaria was the direct perpetrator of the killing, it did
preclude the prosecution “from attempting to prove that he was
guilty as a principal under the theory that he was a direct and
active perpetrator solely by personally using a knife.” (Ibid.)
       We are bound by the majority opinion in Santamaria. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) We may presume the majority rejected Justice Mosk’s
position in dissent, because the majority held “collateral estoppel
does not apply,” and placed no limits on the evidence or
arguments the prosecution could offer on retrial of the murder
charge. This means the majority also placed no limits on the
theories under which the jury could convict Santamaria of
murder. Similarly, in the instant case, the not-true findings at
trial neither precluded the prosecution from arguing defendant
was the actual killer nor the resentencing court from convicting
on that basis.




                                   43
       Defendant argues the fact the parties did not introduce new
evidence at the evidentiary hearing distinguishes this case from
Santamaria. Defendant explains, “The absence of new evidence
demonstrates that the [resentencing] court is simply relitigating
an issue the jury decided based on a different assessment of the
same evidence — precisely what issue preclusion is designed to
prevent.” Defendant is incorrect that the parties here are
“relitigating an issue the jury decided,” because under
Santamaria’s reasoning, the not-true findings on the weapon
enhancement and robbery special circumstance are not
equivalent to a finding defendant was not the actual killer. The
question for collateral estoppel purposes is not whether the
resentencing court is relying on different evidence than that
before the jury, but whether the resentencing court is deciding
different questions than the jury necessarily decided. Under
Santamaria, defendant’s jury never necessarily decided he was
not the actual killer.
       Defendant argues the jury “unanimously found that
[defendant] was not the person who pulled the trigger and killed
Toney Lewis,” and it “would violate principles of fundamental
fairness” to allow a resentencing court, on a cold record 40 years
after the fact, to reach a contrary conclusion. Defendant’s
premise is incorrect. Again, under Santamaria, the jury’s not-
true findings on the weapon enhancement and robbery special
circumstance are not equivalent to a unanimous finding
defendant was not the actual killer, and therefore the
resentencing court’s finding that defendant personally killed the
victim is not a contrary conclusion to that reached by defendant’s
jury.
       In sum, neither the authorities cited by defendant nor
defendant’s arguments persuade us not to follow Santamaria and
Hart.




                                  44
C.    Substantial Evidence Supports the Resentencing
      Court’s Finding Defendant was the Actual Killer
      Having concluded the jury’s verdict did not preclude the
resentencing court from finding defendant was the actual killer,
the next question is whether the record supports that finding.
We hold it does.

      1.    Standard of review
       We review a resentencing court’s denial order following a
section 1172.6 evidentiary hearing for substantial evidence. (See
People v. Vargas (2022) 84 Cal.App.5th 943, 951.) Under that
standard, “we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence — that is, evidence that is reasonable, credible, and of
solid value — from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v.
Grandberry (2025) 116 Cal.App.5th 934, 946 (Grandberry).) “We
resolve all evidentiary conflicts and questions of credibility in
favor of the judgment. [Citation.] We cannot reweigh the
evidence or reassess witness credibility on our own.” (Ibid.)
       Defendant acknowledges case law holding the substantial
evidence standard applies. (See People v. Underwood (2024)
99 Cal.App.5th 303, 313–314 (Underwood) [collecting cases]).
Defendant argues these cases were wrongly decided, and we
should instead independently review the evidence. Defendant
contends deference to the resentencing court’s findings is
unwarranted because the court relied entirely on a cold trial
record, which defendant argues this court is equally competent to
review.
       In support, defendant cites People v. Vivar (2021)
11 Cal.5th 510 (Vivar), which concerned the standard of review




                                   45
for grants or denials of motions under section 1473.7. (Vivar, at
pp. 523–524.) That statute requires trial courts to “vacate a
conviction or sentence upon a showing, by a preponderance of the
evidence, of ‘prejudicial error damaging the moving party’s ability
to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere.’ (§ 1473.7, subds. (e)(1), (a)(1).)”
(Vivar, at p. 523.)
       Our Supreme Court concluded decisions on section 1473.7
motions are subject to independent review: “Whether counsel’s
advice regarding immigration was inadequate and whether such
inadequacy prejudiced the defense, while mixed questions, are
predominantly questions of law. [Citation.] Accordingly, we
review such rulings independently [citation], and rightly so, given
the profound and substantial consequences of a prejudicial
misadvisement on a defendant’s life.” (Vivar, supra, 11 Cal.5th
at p. 524, fn. omitted.)
       The Supreme Court further reasoned that the Courts of
Appeal historically had applied independent review to
section 1473.7 decisions, and the Legislature, in subsequently
amending the statute, did not “ ‘signal an intent to supersede’ the
standard of review the Court of Appeal had already articulated.”
(Vivar, supra, 11 Cal.5th at p. 525.) The high court also noted
section 1473.7 motions “are ordinarily brought many years after
the plea,” and thus “the judge adjudicating the resulting motion
may never have participated in any of the underlying proceedings
and must rely entirely on a cold record.” (Vivar, supra, at
pp. 526–527.) “So our embrace of independent review in this
context is a product of multiple factors with special relevance
here: the history of section 1473.7, the interests at stake in a
section 1473.7 motion, the type of evidence on which a section
1473.7 ruling is likely to be based, and the relative competence of




                                     46
trial courts and appellate courts to assess that evidence.” (Vivar,
at p. 527.)
       Defendant argues the factors relied upon by the high court
in Vivar similarly support independent review here. Defendant
contends the interests at issue in a section 1172.6 proceeding are
even greater than in a section 1473.7 proceeding, because
deportation “pales in comparison with spending one’s entire life
in prison.” Further, section 1172.6 rulings, like section 1473.7
rulings, are likely to be decided on documentary evidence as
opposed to live testimony, “and trial and appellate courts are in
the same position to evaluate them.”
       We disagree that independent review is the appropriate
standard. As other Courts of Appeal have observed, Vivar
“emphasized that the questions raised by a section 1473.7
motion, ‘while mixed questions, are predominantly questions of
law’ [citation],” whereas the question whether a defendant
committed murder beyond a reasonable doubt is largely a factual
determination. (See People v. Clements (2022) 75 Cal.App.5th
276, 301–302 (Clements); see also Underwood, supra,
99 Cal.App.5th at p. 314.) Indeed, as already discussed, the
resentencing court serves a purpose very much like that of a jury
in a retrial, and jury findings are reviewed for substantial
evidence. (See People v. Alvarez (2025) 18 Cal.5th 387, 470.)
       In holding substantial evidence review applies to
section 1172.6 evidentiary findings, courts also have observed the
Supreme Court has mandated substantial evidence review in the
analogous context of resentencing under Proposition 36, even
though Proposition 36 resentencing courts “ ‘do not have an
advantage over appellate courts in determining eligibility based
on the record of conviction.’ [Citation.]” (See People v. Oliver
(2023) 90 Cal.App.5th 466, 479, quoting People v. Perez (2018)
4 Cal.5th 1055, 1066.) As our Supreme Court explained




                                   47
regarding Proposition 36, “[E]ven if the [resentencing] court is
bound by and relies solely on the record of conviction to
determine eligibility, the question whether a defendant was
armed with a deadly weapon during his or her current offense
remains a question of fact, and we see no reason to withhold the
deference generally afforded to such factual findings.” (Perez, at
p. 1066; see Oliver, at p. 479.) We similarly see no reason not to
afford deference to the resentencing court’s findings under
section 1172.6.

      2.    Analysis
       Substantial evidence supports the resentencing court’s
finding defendant was the actual killer. Fonteno testified
defendant shot Lewis, and the resentencing court found that
testimony credible. (See People v. Barnwell (2007) 41 Cal.4th
1038, 1052 [“Even when there is a significant amount of
countervailing evidence, the testimony of a single witness that
satisfies the [substantial evidence] standard is sufficient to
uphold the finding”]; accord, People v. Werntz (2023)
90 Cal.App.5th 1093, 1117, fn. 9.)
       Supporting Fonteno’s testimony was the testimony of
Annette Aldrige, Marcus’s girlfriend, and Tylon Player,
defendant’s and Marcus’s sister. Aldrige testified defendant told
her Marcus was not involved in the murder, and defendant also
told her everyone knew that defendant had done it. Aldrige also
told police defendant had told her he was the killer. Tylon
testified defendant told her Marcus was not the killer.
       Defendant argues Spence was “[t]he only eyewitness to the
shooting,” and the resentencing court erred in rejecting her
testimony. Defendant notes Fonteno received a favorable plea for
his testimony, and “had every incentive to shift blame to
[defendant] rather than Marcus, with whom [Fonteno] was




                                   48
apparently closer.” Defendant observes the jury, who had the
opportunity to assess the witnesses’ demeanor, “clearly harbored
reasonable doubt about Fonteno’s account, hence the not true
finding on personal firearm use.” Defendant challenges Aldrige’s
credibility, and contends defendant’s statements to Tylon were
ambiguous and consistent with “a brother’s protectiveness.”
       We are unclear why defendant claims Spence was the only
eyewitness to the shooting when Fonteno was there as well. The
remainder of defendant’s arguments go to witness credibility,
which, under the substantial evidence standard, is the province
of the finder of fact, in this case the resentencing court.
(Grandberry, supra, 116 Cal.App.5th at p. 946 [“We cannot
reweigh the evidence or reassess witness credibility on our
own.”].)
       Because we conclude substantial evidence supports the
finding defendant was the actual killer, and he therefore remains
guilty of felony murder under current law (see § 189, subd. (e)(1)),
we do not reach the question whether substantial evidence
supported the finding that defendant was a major participant in
the robbery and acted with reckless indifference to human life.




                                   49
                       DISPOSITION
     The order denying resentencing is affirmed.
     CERTIFIED FOR PUBLICATION.




                                        BENDIX, J.


We concur:




             ROTHSCHILD, P. J.




             WEINGART, J.




                                 50