People v. Ortega CA5

Opinion

Filed 8/25/26 P. v. Ortega 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F089007 Plaintiff and Respondent, (Super. Ct. No. CF02902077) v. DANIEL ORTEGA, OPINION Defendant and Appellant.

APPEAL from an order of the Superior Court of Fresno County. Arlan L. Harrell, Judge. James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION In 2004, a jury convicted defendant Daniel Ortega (and two co-participants, Stacey Dyer and Jesus Lopez) of first-degree murder of Donald Hunter and found true three felony-murder special-circumstance allegations pursuant to Penal Code section 190.21 that the murder was committed during the commission or attempted commission of robbery, kidnapping, and carjacking. The jury also convicted each defendant of robbery (count 2) and kidnapping (count 3) and found true an allegation Ortega was armed with a firearm during the commission of the murder and robbery. Following the passage of Senate Bill No. 1437, Ortega filed a petition for resentencing, asserting he was entitled to resentencing under the new laws. After the court held an evidentiary hearing, it denied the section 1172.6 petition, finding Ortega was a major participant who acted with reckless indifference to human life. The court cited various factors in support of its findings, including Ortega’s apparent leadership position in the group; that he brought a weapon to the scene; he drove the victim’s truck to the place where the murder occurred; and he started a fire to hide evidence. On appeal, Ortega asserts the trial court erred in permitting a witness, who had already been sentenced and served his time in relation to his participation in the crime, to refrain from answering questions pursuant to the Fifth Amendment. Relatedly, Ortega contends his counsel provided ineffective assistance in failing to introduce evidence of the same witness’s prior statement. We reject Ortega’s contentions and affirm the order denying the petition. FACTUAL AND PROCEDURAL HISTORY Ortega and two codefendants (Stacey Dyer and Jesus Lopez) were charged with first degree murder (§ 187; count 1) and three special circumstance allegations that they committed the murders during the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)(A)), kidnapping (id., subd. (a)(17)(B)), and carjacking (id., 1 Subsequent statutory references are to the Penal Code unless stated otherwise.

2. subd. (a)(17)(L)). Each defendant was also charged with second degree robbery (§ 211; count 2) and kidnapping (§ 207, subd. (a); count 3). It was also alleged that each defendant was armed with a firearm during the commission of the murder (count 1) and the robbery (count 2) pursuant to section 12022, subd. (a)(1). A jury convicted Ortega (and both codefendants) of all the charges and found true the three felony-murder special-circumstance allegations and the allegations each defendant was armed with a firearm during the commission of the murder and the robbery. The court sentenced Ortega to life imprisonment without the possibility of parole plus an additional year on the murder count; determinate sentences on counts 2 and 3 were ordered stayed pursuant to section 654. Our court affirmed Ortega’s conviction in an unpublished opinion. (People v. Lopez (Mar. 12, 2007, F045815).) Petition for Resentencing In June 2019, Ortega filed a petition for resentencing pursuant to section 1170.95, 2 hereinafter section 1172.6, using a preprinted form. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill No. 1437). He also checked a box stating, “I request that this court appoint counsel for me during this re-sentencing process.” The superior court denied the petition, concluding Ortega failed to make a prima facie showing he fell within the provisions of section 1172.6. The court held:

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 (Stats. 2022, ch. 58, § 10) with no substantive changes. For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion.

3. “[Ortega] 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. [Ortega] is not eligible for resentencing.” Our court initially affirmed the court’s order. (See People v. Ortega (Nov. 23, 2022, F080017) [nonpub. opn.].) However, the California Supreme Court transferred the case back with directions for our court to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698. (See People v. Ortega, supra, F080017.) Our court then reversed the court’s order and remanded the matter for the trial court to appoint Ortega counsel, issue an order to show cause, and hold further proceedings as provided for in section 1172.6. (Ibid.) Following issuance of the remittitur, the trial court appointed Ortega counsel and set the matter for a case status hearing. Evidentiary Hearing and Related Proceedings Castro’s Motion to Quash the Subpoena is Denied Before the evidentiary hearing, the People filed additional briefing. In their brief, the People asserted Ortega was ineligible for relief because he was a major participant who acted with reckless indifference to human life. The People requested that the trial transcripts from Ortega’s underlying jury trial be admitted as evidence at the evidentiary hearing. Counsel for Martin Castro filed a “Motion to Quash Subpoena and for Personal Appearance of Martin Castro.” He asked the trial court to quash the defense’s subpoena because “he did not witness the shooting, did not see a gun that night, and does not have any information as to who, in particular, shot Donald Hunter.” Castro’s counsel alleged that he informed defense counsel that “the events of March 2002 were particularly traumatic for Mr. Castro and that he did not want to revisit that evening[.]” He stated Castro was sentenced to life without the possibility of parole in March of 2003 for the events occurring that night and he was resentenced after an evidentiary hearing was held on July 27, 2020, in which it was determined that Castro was “a minor participant in the events of that evening.” Castro’s counsel stated that Castro reviewed documents 4. provided by defense counsel and Castro “maintained that he did not have any information to give because he did not witness the shooting and did not even see a gun that night.” Castro’s counsel further asserted Castro was 16 at the time of the murder and he “was ordered into the back of a van by older members of the same gang and told that he was going to help strip a truck.” He asserted that Castro “does not recollect leaving the van during the encounter,” “ever seeing a gun,” or “anyone handing a gun to another person.” Castro’s counsel stated he provided defense counsel with a complete transcript of Castro’s trial. Two police reports and a declaration by Castro were attached to the motion to quash the subpoena. A police report by Sergeant Patrick Hanson detailed that a confidential informant reported Castro spoke to her on March 23, 2002,3 after Hunter’s murder. The informant stated Castro was crying and reported he, Ortega, Ortega’s girlfriend, Lopez, Ponciano Carillo (“Rumpy”) and two of Lopez’s brothers-in-law were present the night of the murder. Rumpy hit Hunter first and “[e]veryone joined in and beat” Hunter. Castro had “hit and kicked the boy.” “The whole time they were beating up the victim, that he was crying[.]” Rumpy tied up the victim, they put him in the truck, and “Rumpy drove away in the truck with the girl and the victim”; the rest of them left in the van. When they got to a vineyard area, “Rumpy made that girl shoot the boy in the face four times with Rumpy’s gun.” In his declaration attached to the motion to quash the subpoena, Castro averred that he “was in the van that night,” but he “did not witness the shooting of Donald Hunter in March of 2002.” He also stated, “I did not see a gun that night. I do not have any information as to who, in particular, shot Donald Hunter. I was in the back of the van that night after being told that we were going to strip a truck. I did not get out of the 3 Subsequent references to dates are to dates in 2002 unless stated otherwise.

5. van.” Castro further averred that the events were “traumatic” for him and that he served 18 years of his sentence of 25 years to life before his sentence was reduced in 2020. Castro’s counsel appeared at a hearing on October 20, 2023, to argue the motion. He asserted he had provided defense counsel with trial transcripts and information, and he reiterated the points stated in the motion, arguing:

“My client was ordered into a van when he was 16 years old in 2002. He never left the van. And as a result, he wound up serving 18 years in prison. He initially had a life sentence, ultimately we were able to get him some relief. He’s actually in ongoing spiritual counseling twice a week. He sees a pastor to deal with this. It’s very traumatic for him to come in. He doesn’t have any evidence to support either side of the case. He didn’t see anything. We’ve included the declaration in our motion. We’ve reviewed all the reports [defense counsel] has provided. We reached out to [defense counsel] yesterday for a conference call that apparently didn’t take place. We’re happy to provide information. But the simple fact with respect to what [defense counsel] is seeking we don’t have, and as a result, I would just say that it’s unnecessarily burdensome, and frankly, almost a little cruel to have him come back and relive these events.” Defense counsel asserted the issue was whether Martin Castro was a material witness. He asserted Castro met with Stephanie G. the day after Hunter’s killing. According to Stephanie G., Castro “was shaking, he was … pale, and he stated to her we beat somebody and killed them.” “[H]e detailed what happened at the field where the killing had taken place,” providing details only a person at the scene could provide. Defense counsel asserted Castro stated they “were out there taking out the rims. [Castro] was helping. But we only got three because one of them we could not take it out, and the burnt truck had one wheel left. And he stated that … Ponce Carillo, who is known as Rumpy, gave the girl, Stacey Dyer, the shooter, [the] gun and told her to shoot him.” Defense counsel argued this statement was credible and the defense intended to impeach Castro with it. Additionally, he asserted Castro’s statement that Carillo gave Dyer the gun and told her to shoot the victim could be “enough to raise reasonable doubt whether or not [Ortega] was aiding and abetting with a specific intent to kill or he was [a] major 6. participant with a reckless disregard for human life. Those are the main issue[s].” The court ultimately denied Castro’s motion to quash the subpoena. Additional Proceedings and Evidence Presented at the Evidentiary Hearing At the outset of the evidentiary hearing, the court held a closed hearing regarding Castro’s claim of the Fifth Amendment privilege. Castro’s counsel explained that he advised Castro to invoke his Fifth Amendment right. He cited Gamble v. United States (2019) 587 U.S. 678 (Gamble) as the basis for the claim, asserting Gamble “stands for the proposition that immunity or any jeopardy associated with a state case [does] not apply to any possible federal offense that he may be facing.” Defense counsel asserted he was not informed Castro intended to declare the Fifth Amendment privilege and that the argument raised was “generic.” Castro’s counsel responded that this case involved a kidnapping and kidnapping is a federal crime. Defense counsel asserted “this is [a] 20-plus year old case,” and the witness has been convicted and served his time. Defense counsel asserted that he did not know “how this crime subjects him to federal criminal liability.” In a subsequent discussion, defense counsel explained:

“The proposed testimony by Castro would be that he identified who the person, other than [Ortega], known as Rumpy gave [the] gun to Stacey Dyer and told her to shoot Mr. Hunter. Now of course that was hearsay in terms of what … anticipated defense witness is going to testify, and that is Stephanie [G.]. However, if Mr. Castro’s going to invoke [the] Fifth, my understanding of the case law and [E]vidence [C]ode is I cannot bring Stephanie [G.’s] statement in. So I’m just going to defer to [the] Court’s decision regarding the issue. I’m sure [the] Court … also wants to make [a] decision as to Mr. Castro’s … proposed invocation of [the] Fifth Amendment privilege.” Defense counsel stated the defense wanted to call Castro as a witness “hoping to hear him tell the truth,” that someone else, not Ortega, gave Dyer the gun. Defense counsel acknowledged that Gamble held there is no double jeopardy towards sovereign jurisdiction, but he asserted, “This is 22 years later. I don’t know [who] is going to 7. charge Mr. Castro after he served already 20-some years in prison for [the] same incident. But theoretically I guess that’s possible.” The trial court stated that if Castro was going to invoke his Fifth Amendment privilege, the court would prefer he did so from the witness stand. Accordingly, the defense called Castro to the stand. Defense counsel asked Castro if he knew Ortega, Lopez, or Romero. In response to each question, Castro stated, “On the advice of counsel I want to invoke my Fifth Amendment right.” After defense counsel asked Castro if he was involved in the carjacking of Hunter’s truck and Castro asserted the same response, the court noted “that question clearly would implicate Mr. Castro.” The trial court stated it was going to honor Castro’s invoking of his Fifth Amendment privilege to questions “along those lines.” Defense counsel responded, “that’s the meat of the question[s] I want to ask him,” and that there was “really no use to ask any more questions about the incident” if Castro was going to invoke his Fifth Amendment privilege. The court found “the area of inquiry that counsel wishes to go into concerning Mr. Castro’s alleged involvement or any knowledge of the events which resulted in [Ortega’s] conviction would have [the] potential of incriminating him, at least based upon the Court’s reading of … Gamble …. So that area of inquiry would be inappropriate in light of his invocation of his Fifth Amendment right.” The court asked defense counsel if he had any more questions and defense counsel objected to the court’s finding. Defense counsel stated, “we object to [the] Court’s granting his invocation of right based on the fact that this is [a] 27-year-old case,” so there is “no possibility the fed would come after him after serving 21 years in prison for the same incident.” He also noted he asked the prosecution to offer Castro use immunity which the prosecution declined. He urged the court to compel the prosecution to grant Castro use immunity on the grounds that Castro’s testimony that Ponciano Carrillo gave Dyer the gun was a “crux core issue of this case[.]” The court stated it was not inclined to compel the prosecution to grant Castro use immunity.

8. The defense called Jesus Lopez to testify. The court noted Lopez was informed that he could have an attorney appointed to represent him and to advise him based on the questions that may be asked, so the Court would attempt to find him counsel. Accordingly, the court suspended testimony at that point. Lopez took the stand again after he was appointed counsel to assist with his testimony. He testified he was at Roman’s residence on March 21. Ortega, Castro, and Jose David Romero arrived in a blue van. Lopez denied seeing Ortega with a firearm when he came out of the “blue truck [sic]” or that he saw Ortega pass a firearm to Stacey Dyer, who was also present at the residence. Lopez denied seeing anyone with a firearm that night. Lopez testified that there were a lot of people at the residence and parts were being taken from a truck. Defense counsel then asked Lopez if they drove to a field with the pickup truck and which individuals arrived in the blue van. Lopez stated he “would like to plead the Fifth.” Lopez’s appointed counsel stated Lopez had taken “substantial steps to perfect his right to file for resentencing,” so he has “a Fifth Amendment privilege to invoke because his testimony into the particulars of the case may be relevant to his resentencing petition.” However, the court stated because Lopez had already been adjudicated in this case and the issue was whether his testimony would impact resentencing, it did not see that as the same issue as being subject to new criminal liability. Accordingly, the court ordered Lopez to answer the question. Lopez then testified he went to a field with Ortega after meeting him at Roman’s residence. Lopez saw a few different people, including Ortega, taking the wheels off the truck. The pickup truck had a lid on it that was closed the whole time. Lopez denied seeing anyone fire a firearm and he stated he was in the blue van when he heard gunshots “quite a distance away.” He could not see out of the van. Jose David Romero also testified on behalf of the defense. Romero testified he was tried with Martin Castro for the carjacking of Hunter’s truck. Romero spent 18 years in prison. On the night of March 22, Romero and Castro rode in a light blue van to a 9. house where Hunter’s truck was parked. Romero was 16 at the time. When asked if Ortega was in the blue van, Romero responded, “Maybe. I believe so. I don’t remember though.” Romero denied knowing Ponciano Carillo or “Rumpy.” Romero recalled there being several people at the house when they arrived, including Lopez. Romero denied seeing anyone taking a stereo out of the pickup truck or that he was involved in taking out the stereo. Someone told Romero to get back in the van, and they drove to the outskirts of Fresno. Romero was instructed to go to the corner about 100 yards away from where they parked to keep watch. He denied seeing Ortega when he was in the van and stated there were no windows in the van. Romero heard a whistle and was told to come back. He was “ordered to jump immediately back into the van,” and he heard several shots before they left. Romero denied seeing a firearm inside the van or that he saw “what [Ortega] did.” He also denied hearing anyone talk about shooting or killing someone. Ponciano Carillo also testified on behalf of the defense. He testified he did not recognize Ortega. He stated he did not know if he knew anyone named Martin Castro or Jose David Romero. He also testified he did not know that a man named Donald Hunter was killed in 2002 or that Hunter’s pickup truck was burned. Carillo testified he did not recall being involved in the theft of Hunter’s pickup truck, but he stated he knew he “was not involved in any kind of crimes like that.” When asked whether he knew Stacey Dyer and if he gave her a firearm on March 22, Carillo responded that he did not remember. However, he later testified “I did not give nobody nothing[.]” When asked if he told Dyer to shoot Hunter, Carillo responded: “I do not remember any of this. I don’t recall any of it whatsoever, sir. Sorry about that.” The court then asked Carillo if he ever told Dyer to shoot anyone. Carillo responded, “No, I don’t recall at all sir. I don’t believe I have done anything like that, sir.” Then, on cross-examination, the prosecutor asked, “So your testimony today is that you never told Stacey Dyer to kill somebody?” Carillo responded, “No, I have not.”

10. Detective Mark Chapman, the lead detective in the case, testified that, in an interview in 2002, Romero reported arriving in a light blue van to a house on North Street. He identified a few people who were in the van with him, though Chapman could not recall if Romero mentioned Ponciano Carrillo, a person of interest during the investigation who also went by “Rumpy.” Romero did not report participating in stealing the truck’s rims. He stated he was instructed to be a lookout when they arrived at the murder and truck burning scene. After reviewing a police report, Chapman testified that Romero stated Ortega, his Uncle Chuey (referring to Lopez), and a female who appeared to be Caucasian were present at the murder scene. Detective Chapman testified he arrested Ortega and Dyer on March 28. Chapman also explained that Ortega and Dyer were placed in holding cells next to one another and Ortega was heard educating Dyer on the justice system and telling her, “they don’t have anything, they’re going to say they have evidence, they don’t have anything, things of that nature.” Ortega was “threatening” to Dyer and they said they loved each other. Ortega testified on his own behalf. He testified he knew Carillo for a year or two from “casually meeting in the streets.” Ortega was in Dinuba around midnight on March 21 with David Romero, Martin Castro, Rumpy, and Gabriel Rojas. They were stealing car stereos and parts. Ortega received a couple of pages on his pager. The second page was from Dyer. Ortega called her and a male answered the phone; the call dropped. The group then went to Lopez’s mother’s house to drop off Castro and Romero. Castro told Ortega that a girl Ortega knew—referring to Dyer—wanted him to come to an address. Ortega asked Romero and Castro to come with him because he did not know the address or how to get there. The same group got back in the blue van and went to the address. When they arrived, Ortega saw a pickup truck. Ortega asked Dyer who the truck belonged to and she said, “it was some guy she knew.” “They said they had stole it from somebody, jacked somebody for it.” When Ortega asked where the guy was, Dyer said he was “in the back.” Ortega was not sure what Dyer meant; he assumed she meant the 11. back of the house because people had been coming from the back of the house when he arrived. A woman came out and started yelling that she was going to call the police. Ortega, Dyer, and Rumpy jumped in the truck. Ortega did not turn the lights on because he “didn’t want the guy, thinking he was in the back, to run out, so [he] immediately backed up and turned[.]” Lopez, Castro, Romero and Rojas followed Ortega in a blue van. They went to a field because the truck ran out of gas. Romero was down the street acting as a lookout and Lopez was in the back of the van and he did not get out. Ortega, Castro, Dyer, and Rumpy were outside. They did drugs and Ortega and Castro took the rims off the truck. Ortega heard Dyer ask the group, “What about the guy?” Ortega still thought “the guy” was back at the house. He told Dyer, “who cares about him. Call him a cab or something.” Dyer said, “what are you talking about? He’s in the back … of the truck.” Ortega “looked and he was there,” “laying down.” He was not tied up; he looked like he was asleep. At that point, Ortega “went back to the right side tires to get the last one off, but then [he] stopped because he started thinking …, I’m driving around with a guy in the truck. So [he] started wiping the steering wheel down, went in the passenger side, started wiping everything down with a rag.” He feared being “caught” or “arrested for all of this[.]” Ortega thought he would “get these rims and go” but, as he was wiping down the inside of the truck, he heard three gunshots. Ortega ducked and looked up, but the back window was covered “with the top being up.” Ortega got out of the truck. He saw Dyer with a gun and Hunter. Rumpy was standing next to Dyer and was taking the gun from her saying, “I didn’t think she was going to do it.” Ortega was “cussing,” saying “what the fuck?” He testified killing Hunter “was not part of no plan. There was no plan.” They all got back in the van and it was quiet. No one said anything. Ortega talked to Dyer about how it got to that point and why she did it. Dyer “said she wanted to know what it felt like,” meaning she wanted to know how it felt to kill someone. Ortega “figured who took the gun from her gave her the gun.” Ortega explained, “Rumpy gave 12. her the gun. There was no one else standing there.” Ortega knew Rumpy to carry a firearm and had seen him with one earlier that night in the van. Ortega denied giving Dyer the gun. He testified he “didn’t have no gun. I’m out stealing car parts. You don’t need a gun to steal car parts. I was a coward kid running around the streets waiting for people to go to sleep to break into cars.” Ortega admitted he started the fire with the rag he was wiping everything with and a lighter. He stated he did it because did not want to be a part of it and “would have covered whatever [he] could.” Ortega testified that nobody knew how Hunter got in the back of the truck. Dyer told him Hunter let her drive when they met at the store earlier and, when Hunter got out to get in the passenger side, Dyer took off and made him chase the truck. She told him she would let him back in, only if he got in the back of the truck. So, Hunter got in the back. Hunter would have had to lift the lid to get in the back. Detective Chapman testified he arrested Ortega and Dyer on March 28. Prosecution’s Evidence at Trial As discussed, the People submitted the trial transcript as evidence to be considered at the evidentiary hearing. The following is summary of relevant evidence presented at the trial. Hunter and Ortega’s Whereabouts Before the Crimes Occurred Carlos R. testified Donald Hunter was at his house the evening of March 21. Hunter left at around 1:00 a.m. The next morning Hunter’s mom called Carlos and Carlos was surprised that Hunter had not returned home. Paul B. testified he was friends with Hunter and had known him for most of his life. He was familiar with Hunter’s truck and recalled seeing it a little after 1:00 a.m. on March 22. Paul saw Hunter in the truck; the passenger window was half down. Paul waved to Hunter and flashed his high beams as a gesture to say, “see you later,” and then Paul continued on his way.

13. Deputy Sheriff Victor Alonzo pulled over a blue van for a broken taillight on March 21 at 4:47 p.m. Ortega was driving the van and Dyer was a passenger.4 Events Leading Up to and Including Hunter’s Murder Alfred Cruz testified he and Ramiro Roman drove around in Roman’s sister’s green car around 5:00 p.m. on March 21, before returning to Roman’s house on North Street. At some point, Roman left and told Cruz that somebody was outside. Cruz went outside and saw Jesus Lopez and a female, who Cruz identified at trial as Dyer, sitting on the back cover of a nice truck.5 Cruz asked Lopez where he got the truck and Lopez said he “just jacked it,” meaning he took it from someone. Lopez asked to use Cruz’s phone to call Martin Castro, so Cruz went inside to get it. Lopez told Castro to “[c]ome over here to [Roman]’s house. We’re over here waiting.” After he got off the phone, Lopez told Cruz, “the dude tried to rape home girl, so they beat him up and threw him in the back of the truck.” Cruz was surprised to hear there was a person in the back of the truck. Lopez told Cruz “to go talk to him,” referring to Hunter, the male in the truck bed. At Lopez’s direction, Cruz told Hunter that he was going to call the police. The male said, “why?” Cruz heard Hunter “[m]oaning,” “trying to gag for his breath.” At some point, Cruz told Hunter that he was going to kill him because Hunter “didn’t want to be quiet.” Roman returned with Cruz’s sister. Roman got in the truck and started playing with the switches that raised the car higher and lower. Cruz saw that Roman had a .357 revolver. Lopez said he wanted to move the truck to the side of the house because it was “hot,” so Roman moved it to a vacant lot. Roman said he was going to take out the truck’s stereo and keep it. Lopez said he did not want Roman to do that because “he 4 Alonzo also contacted Ortega in the same van the next day, March 22, at 5:53 p.m. Gabriel Rojas was driving and Ortega was a passenger. 5 Cruz testified Lopez arrived around 2:00 a.m. and did methamphetamine at around 3:00 a.m., which hyped Lopez up and made him mad.

14. wanted everything in there cause his homey was going to come.” Nevertheless, Roman took out the stereo and Cruz took out an amplifier and they took them to Roman’s room. Lopez told Roman “to hold everything,” meaning to hold onto the stereo system. Cruz brought his phone and a shotgun out to Lopez. Lopez directed Cruz to ask Hunter for his wallet. So, Cruz walked to the back of the truck and said, “[t]hrow your wallet out.” Hunter threw out his wallet and Cruz opened it. Lopez took the wallet from Cruz and took out Hunter’s identification, cards, and a receipt. Roman threw the items in a metal barrel that was in the vacant lot.6 Lopez asked Hunter where his money was and to throw it out. Cruz testified Lopez told Hunter that he was going to kill him. Lopez told Cruz they were going to tie up Hunter and throw him in a field. Cruz testified that a light blue van arrived and four people got out including Ortega and Martin Castro. Ortega had a black semiautomatic firearm that Cruz saw Ortega hand to Dyer. Ortega was laughing and said that they “were going to kill this mother fucker.” Dyer also said, “I’m going to kill him.” Jose David Romero told Cruz that he was going to take the rims off the truck, and he asked Cruz to come with him. Cruz told Romero that he did not want to go. Ortega got in the driver’s seat of the pickup truck and Dyer got in the middle seat. An individual referred to as “Rumpy” also got in the truck and they “took off.”7 Lopez drove off in the van with Jose David Romero and another person inside. Cruz spoke to Lopez on the phone the next day. Lopez told Cruz that “[t]he dude [k]new too much,” and “they had to do him.” Cruz understood Lopez to mean they had killed Hunter. That 6 Cruz testified that Roman wanted to burn the items the next day, so Cruz retrieved them from the barrel. 7 Cruz testified he “kept [Rumpy] out of it” because Rumpy said, “whoever snitches on me, he’s going to kill them and their family.”

15. night, Cruz saw the story on the news at Roman’s house. Lopez and Martin Castro were present and were laughing. Roman testified Cruz was at his house on March 21. At around 11:30 p.m. or 12 a.m., Roman left to pick up his girlfriend Delores, Cruz’s sister. As Roman was leaving, he saw Dyer. Dyer told Roman that Lopez needed him out front. Roman told Cruz to go outside and see what Lopez wanted. Roman noticed a grey Chevrolet truck out front that was lowered in the back and had rims. Roman asked Lopez where he got the truck and Lopez said he “jacked it.” Roman asked Lopez what he did with the owner of the truck and he responded, “He’s in the back.” Roman told Lopez he was leaving but he would be back. When Roman returned with Delores, he saw Lopez and Dyer near the bed of the truck. Roman told them they had to leave because his family was in the house and they could hear everything. Lopez said they were waiting for someone and then they would leave. Roman moved the truck to a vacant lot west of his house. Lopez, Dyer, and Cruz met him there and Roman told Lopez he was “going to get the radio.” Lopez did not want Roman to take it because “he didn’t want to mess it up.” Roman retrieved tools and gloves from his house. He told Lopez again that he was going to take the stereo. Lopez told Roman not to mess anything up and that he would be back for the speakers. Roman took out the stereo and put it in his room. At some point, Lopez gave Roman a wallet. Cruz told Roman that Lopez “opened up the bed,” Cruz “hit him,” and Lopez got the wallet. Roman put some paper from the wallet in a barrel and burned it the following day. He gave the wallet back to Lopez. About twenty to thirty minutes later, Ortega, Martin Castro, Jose David Romero, and another male arrived in a blue van that parked in the vacant lot. Ortega, Dyer, and the other male got in the truck. Ortega was in the driver’s seat, Dyer was in the middle, and the other male was in the passenger seat. During an interview with the prosecutor and Detective Chapman in August 2002, Roman stated the 16. other male looked like a guy named “Rumpy.” Ortega said, “let’s go.” About five minutes after the van arrived, the van and pickup truck left. Roman testified that at some point that evening, Cruz brought out a shotgun from Roman’s closet. Shortly after the van and pickup truck left, Roman went to bed. He testified Cruz put the shotgun in the tool shed to hide it “[b]ecause [Cruz] hit the guy with it” when “they opened up the bed.” Lopez called Roman at 6:00 a.m. the next day. Roman asked Lopez “what happened to that guy,” and Lopez responded that he “ate dirt.” Roman understood that to mean the guy died. Roman testified he was present on March 27 when the police executed a search warrant at his house. He entered a guilty plea to a felony charge of robbery and receiving stolen property on February 6, 2023, and admitted that someone was armed with a firearm during that period. His sentencing was continued to see if he fulfilled the terms of his contract. Investigation Into the Crimes At approximately 5:53 a.m. on March 22, Deputy Sheriff David Cunha was dispatched after receiving a call regarding possible gunshots. As Cunha approached the location, he saw smoke rising into the air. A pickup truck at the scene was “engulfed in flames.” Firefighters arrived and extinguished the fire. When they hit the bed of the truck with water, the cover on it collapsed. Hunter’s burned body was recovered from the rear of the pickup. Hunter was determined to have suffered three gunshot wounds to his head that caused his death. Hunter’s body was burned completely, except for his feet. Sergeant Patrick Hanson arrived at the scene a little after 7:30 a.m. and he was designated the chief crime scene investigator. He discovered a small scissor jack located near the rear portion of the truck. Arson investigator Rusty Souza arrived at the scene at 7:29 a.m. on March 22. He noticed a “burn pattern imprinted on the doors …. that is conducted when a flammable liquid is utilized to pour on a vehicle.” Souza’s investigation revealed “the stereo was 17. missing, there was no evidence of speakers, the tires had been removed.” He explained the situation was “very similar to many vehicle fires that … we call strip and burns that are stolen, taken out in the country, stripped of their personal property, and then set on fire to [d]estroy any evidence, fingerprints, etc., that may be left at the scene.” He concluded the fire was caused by an accelerant, such as a flammable liquid, that was used to facilitate the spread of the fire. Hunter’s truck was transported to a laboratory and secured and processed. A .38 shell casing from a semi-automatic handgun was recovered from the rear of the pickup truck at 5:05 a.m. on March 26. Hunter’s mother, Humiyo Wright, testified she last saw Hunter between 6:00 and 7:00 p.m. on March 21. He was supposed to be home by midnight during the week. When Hunter was not home before 7:00 a.m., Wright began calling his friends and law enforcement. A business owner, Beu V., found Hunter’s phone about ten feet away from the sidewalk at his automobile shop. A female called the telephone and said it was hers, so Beu told her the address to pick it up. Detectives Chapman and Toscano came to the shop and retrieved the phone; Beu showed them where he found it in the parking lot. Detective Mark Chapman was the primary investigator in the case. He received cellular phone activity records for Hunter’s phone from the phone company and issued search warrants for locations based on cellular phone activity occurring in those areas. The police detained Alfred Cruz, Ramiro Roman, and Jesus Lopez on March 26. In an interview the next day, Cruz reported that property from Hunter’s truck was in the basement of the North Street house. Detective Chapman dispatched Detective Jose Salinas to that location. When Salinas arrived, the owner of the residence consented to a search of the residence. A loaded .357 handgun, a loaded Remington .22 caliber handgun, a .38 caliber bullet, and two .357 bullets were recovered from a closet in a detached room that belonged to Ramiro Roman. A Crossman air gun was recovered from 18. underneath the bed and a metal glove was found in a cabinet in that same room. A .357 bullet casing was in a trash can in the backyard and a .22 caliber casing and .38 caliber shell were found on the ground in the backyard. Salinas directed a tech to photograph the basement and the items inside of it. He removed two pillowcases with items inside from the basement. The pillowcases contained a high performance, CD car audio system and three speaker boxes with “Jenson” written on them. The serial number on the stereo and subwoofers recovered from Roman’s basement matched the serial number on boxes for these items obtained from Hunter’s mother. Deputy Sheriff Patrick Oh assisted Detective Chapman in the execution of a search warrant at Martin Castro and Lopez’s home on Grant Street on March 26. Cartridge casings, four rounds of .380 caliber and four rounds of .40 caliber, were recovered from a yellow van on the property. Sergeant Patrick Hanson and Detective Chapman interviewed Lopez on March 26. Criminalist Michael Giberson compared four burnt cartridge casings taken from Hunter’s truck bed to four unfired cartridge casings found in the van parked at Castro and Lopez’s residence. He testified there were microscopic areas of comparison that matched between the burnt cartridge casings and the unfired ones. Giberson opined that the same bunter was used to make the bunter marks in three of the burnt casings as that used to make the bunter marks in three of the unfired casings. The fourth burnt cartridge case had the same bunter marks as another unfired cartridge casing taken from the same van. Giberson also examined two bullets recovered from Hunter’s body. After comparing the two bullets, Giberson concluded they had been fired from the same firearm. Ortega was taken into custody on March 29. While in custody and after his interview, he was placed in a holding cell next to Dyer. Their conversation was recorded and Ortega said, “You didn’t do it.” Dyer responded, “No, I didn’t.” Dyer said, “I don’t know no one.” And Ortega asked her what she was going to say. Dyer said, “They were 19. showing me pictures of … Rumpy.” And she stated, “I didn’t recognize anybody, though.” Ortega responded, “No, you do not.” And Dyer said, “No, I didn’t.” Court Denies Ortega’s Petition for Resentencing After the close of evidence at the evidentiary hearing, defense counsel argued that Ortega was not convicted of carjacking because the crime was committed before Ortega arrived at Roman’s house. He argued that Ortega knew “Rumpy” had a gun, but he did not know “this would end up in this way,” and he did not expect Dyer to kill anyone. He also asserted the fact that Ortega set the fire did not establish reckless disregard for human life because Hunter had already died. Counsel asserted it was clear Ortega was not the killer and he did not provide the firearm. The prosecutor asked the court to rely on Cruz and Roman’s trial testimony and asserted “everything kind of changed when [Ortega] showed up.” Ortega drove Hunter to “his ultimate resting place,” provided the gun to Dyer, and “he knew it was going to happen and he assisted in covering it up and continued to cover it up.” The court noted it reviewed the transcripts of the trial and the evidence presented at the evidentiary hearing. It concluded, “acting as an independent fact finder, based upon the evidence as presented, … that the People … met their burden of proof beyond a reasonable doubt that [Ortega] was a major participant in the crimes and in the murder and that he acted with indifference to the life of Mr. Hunter.” Accordingly, the court denied Ortega’s 1172.6 petition, finding he “continues to be guilty of murder despite the modifications to the California law of felony murder.” The court detailed the factors it considered in reaching its conclusion, including the role Ortega played in the planning of the criminal enterprise that led to death. The court explained:

“In this instance the vehicle had already been taken from Mr. Hunter by Miss Dyer and another. [Ortega] arrived and joined Miss Dyer and … Mr. Lopez. And when … [Ortega] arrived, he was armed. He then drove Mr. Hunter’s truck away with Miss Dyer and another while Mr. Lopez followed driving the van that [Ortega] had initially arrived to the location 20. in. [Ortega] testified that Dyer said that the owner of the truck was in the back, and he testified he understood her to mean that Mr. Hunter was in the rear of Ramiro Roman’s home. That testimony is completely incredible in light of what [Ortega] came into, who he was dealing with and what, how these individuals interacted as evidenced by the entire testimony presented at trial.

“The Court notes that the testimony included that when [Ortega] arrived and joined the others, he arrived with the firearm. He actually drove the truck from that scene to where Mr. Hunter was fatally shot with the gun that fit the description given by the witnesses at trial. There were casings located at the scene which showed it was a 38 caliber semiautomatic. [Ortega] was described to have arrived at the scene with a semiautomatic small handgun. It is clear that [Ortega] was in a position of leadership among this group. That’s evident, particularly evident by some of the information that was presented at trial of how he acted during these crimes and that everyone was waiting for him to arrive. And once he arrived, he drove the truck away after the incident. In communications with he and Miss Dyer he was talking about how he was controlling other witnesses who were in the Fresno County Jail who had been threatened and had been beaten. He was the one who was going to make sure that no one spoke about what happened that evening. ¶ So this factor weighs against [Ortega].

“Second, what role did [Ortega] have in supplying the lethal weapon? ¶ … [T]he evidence is that [Ortega] handed the weapon to Miss Dyer, contrary to [his] rather self-serving testimony at the evidentiary hearing. ¶ So that factor weighs against [him].

“Third, what awareness did [Ortega] have of the particular dangers posed by the nature of the crimes, the weapons used, and past experience or conduct with the other participants.

“[Ortega] substantially increased the risk to Mr. Hunter when he arrived with the firearm. He was with individuals that he knew very well. He was the leader of this group by all indications from the evidence presented at trial. He drove Mr. Hunter to the area where he was ultimately killed.”

“Was [Ortega] present at the scene of the killing in a position to facilitate or prevent the actual murder and did he, and did his own actions or inactions play a role in the death. ¶ Many of these factors overlap because, based on the same evidence [Ortega] brought the firearm, he’s the one who brought the lethal force to this crime spree. By his own account at 21. the evidentiary hearing and by his testimony, and by the testimony at trial, he was present at the scene. Now although he claimed that Miss Dyer did the killing and he didn’t know anything about it, actually he claimed that … Rumpy brought the firearm. That’s contrary to the evidence presented at trial. He was in a position to prevent the murder of Mr. Hunter, but he didn’t do so. In fact, he directed the murder. He is attributed with making the statement, quote, we are going to kill this M.F., unquote…. He was in a position to prevent the killing, but did not do so. In fact, he directed it.

“What did [Ortega] do after the fatal force was used? He made that pretty clear at his evidentiary hearing testimony. He started the fire. He tried to hide the evidence, burn the traces of what he and others had done to Mr. Hunter and to his vehicle. Then he got in the van and the group drove off with three rims from Mr. Hunter’s vehicle.

“So, in this Court’s mind, the evidence shows beyond a reasonable doubt that [Ortega] was a major participant in this incident.

“The second issue is whether [Ortega] acted with reckless indifference to human life. And again, under the case of [People v. Clark], the factors are whether he had knowledge of the weapons and the use, and that a weapon was used during the offense. He had knowledge of the weapons and he brought the weapon. That factor weighs against [Ortega].

“Whether he was present at the crime scene and had an opportunity to restrain the crime or to aid the victim, again, these factors overlap because it’s the same evidence. He was physically present by his own account and by the account of others who testified at the trial. According to [Ortega], Dyer asked, quote, what are we going to do about him referring, to Mr. Hunter. And according to [Ortega] at the evidentiary hearing, he made a remark about his not caring about Mr. Hunter and that someone should call him a cab. Only then [Ortega] said did he learn that Mr. Hunter was in the bed of the truck. That’s not credible. The Court finds that incredible, unbelievable. I do not believe that testimony in light of all the other testimony that was presented at the trial and the nature of the relationship between M[s]. Dyer, [Ortega], Mr. Lopez and the others who were involved. That’s not believable.

“[Ortega] testified that he looked up to see Miss Dyer with the gun. Testimony was [a]t the trial that [Ortega] gave, handed Miss Dyer the gun. And as stated earlier, he directed the fatal killing by announcing we’re going to kill the M.F. . . .

“The duration of the felonies.

22. “This lasted nearly four hours between the time Mr. Hunter was last seen driving his own truck on his way home from his friend’s house until his truck was found ablaze, him having been shot several times and placed in the bed of the truck. That’s based upon the testimony particularly of the coroner at the scene.

“[Ortega’s] knowledge of the likelihood of killing.

“[Ortega] was the leader. [Ortega] directed this killing by telling everyone they were going to kill Mr. Hunter.

“Court is to consider efforts to minimize the risk of violence. [Ortega] did nothing to minimize the risk of violence. He brought the firearm, he directed the shooting, he lit the vehicle on fire.” Based on these factors, the trial court found beyond a reasonable doubt that Ortega was a major participant who acted with reckless indifference to human life, and that he is still guilty of murder under current law. DISCUSSION Ortega now challenges the trial court’s findings at the evidentiary hearing, alleges various errors, and contends he is entitled to a remand. As discussed herein, we reject his contentions and affirm the court’s order. I. Senate Bill No. 1437 and Senate Bill No. 775 On September 30, 2018, the Governor signed Senate Bill No. 1437 (SB 1437), which became effective on January 1, 2019. SB 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.) Accordingly, section 188 now provides that “[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with 23. malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature’s intent that “[a] person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).) Additionally, former section 189 previously stated, “All murder … which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” SB 1437 amended section 189, in part, by adding subdivision (e), which provides:

“A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) 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. [¶] (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.” The legislation also added section 1172.6 (former § 1170.95), which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, section 1172.6 (former § 1170.95) permitted those “convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts[.]” (Stats. 2018, ch. 1015, § 4, subd. (a).)

24. In Senate Bill No. 775 (2021–2022 Reg. Sess.) (SB 775), effective January 1, 2022, the Legislature amended the language of this section to expand the scope of the petitioning procedure. (Stats. 2021, ch. 551, § 2.) Under the amended statute, if the petitioner has made a prima facie case for relief, the court “shall issue an order to show cause.” (§ 1172.6, subd. (c).) Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1172.6, subd. (d)(1).)

“At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. 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).)

25. II. The Court Did Not Err in Permitting Castro to Assert the Privilege Against Self-Incrimination Ortega first argues the court prejudicially erred in permitting Martin Castro to refuse to answer questions pursuant to the Fifth Amendment at the evidentiary hearing though Castro had already been convicted and sentenced for his involvement in the crime. Ortega argues the error violated his Sixth Amendment right to compulsory process and his constitutional right to due process. For the reasons that follow, we disagree. A. Standard of Review The California Supreme Court has held that, in reviewing a court’s ruling on a witness’s assertion of the privilege against self-incrimination, “[w]e review deferentially the trial court’s resolution of any factual disputes.” (People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas).) And “[w]hen, as here, the relevant facts are undisputed, an appellate court should review independently the trial court’s ruling permitting the witness to assert the privilege.” (Ibid.) B. Applicable Law 1. Right to Compulsory Process “The right of an accused to compel witnesses to come into court and give evidence in the accused’s defense is a fundamental one.” (People v. Jacinto (2010) 49 Cal.4th 263, 268 (Jacinto).) “ ‘The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.’ ” (Id. at p. 269, quoting Washington v. Texas (1967) 388 U.S. 14, 19.) Article I, section 15 of the California Constitution similarly guarantees as a matter 26. of state constitutional law that “[t]he defendant in a criminal cause has the right ... to compel attendance of witnesses in the defendant’s behalf[.]” “To prevail on a claim of prosecutorial violation of the right to compulsory process, a defendant must establish three elements. ‘ “ First, he must demonstrate prosecutorial misconduct, i.e., conduct that was ‘entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.’ ” [Citation.] Second, he must establish the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony. [Citation.] The defendant, however, “is not required to prove that the conduct under challenge was the ‘direct or exclusive’ cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify.” [Citation.] Finally, the defendant must show the testimony he was unable to present was material to his defense.’ ” (Jacinto, supra, 49 Cal.4th at pp. 269–270.) 2. Privilege Against Self-Incrimination “It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves. In an oft-cited case, the high court stated that this privilege ‘must be accorded liberal construction in favor of the right it was intended to secure.’ [Citation.] A witness may assert the privilege who has ‘reasonable cause to apprehend danger from a direct answer.’ [Citations] However, ‘The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.’ [Citation] The court may require the witness ‘to answer if “it clearly appears to the court that he is mistaken.” ’ [Citation] ‘To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, 27. that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” (Seijas, supra, 36 Cal.4th at p. 304, quoting Hoffman v. United States (1951) 341 U.S. 479, 486–487 (Hoffman); People v. Trujeque (2015) 61 Cal.4th 227, 267 (Trujeque).) “To deny an assertion of the privilege, ‘the judge must be “‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” ’ ” (Seijas, supra, 36 Cal.4th at pp. 304–305, quoting Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman, supra, 341 U.S. at p. 488; Trujeque, supra, 61 Cal.4th at p. 267.) “California’s Evidence Code states the test broadly in favor of the privilege: ‘Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.’ (Evid. Code, § 404, italics added.) We have said that this section incorporates the standard of Hoffman v. United States, supra, 341 U.S. 479.” (Seijas, supra, 36 Cal.4th at p. 305.) C. Analysis Ortega contends his Sixth Amendment right to compulsory process for obtaining witnesses in his favor and his due process rights were violated by the court permitting Castro to refuse to answer questions by claiming the privilege against self-incrimination. Relatedly, he asserts there was no reasonable probability Castro would incriminate himself. The People respond that there was no prosecutorial misconduct that interfered with Ortega’s right to compulsory process and he cannot show a reasonable probability that Castro’s testimony, if given, would have been both material and favorable. The People further assert that the court properly upheld Castro’s right against self- 28. incrimination because his testimony potentially subjected him to federal prosecution under federal kidnapping law. The People note that, though Hunter was not transported across state lines, federal kidnapping law applies where the offender uses “any means, facility, or instrumentality of interstate … commerce in committing or in furtherance of the commission of the offense,” such as a car or phone, even intrastate, citing 18 U.S.C. section 1201. Additionally, they contend kidnapping resulting in death is subject to capital punishment (18 U.S.C. § 1201, subd (a)), and so this crime is not subject to the five-year statute of limitation. Thus, Castro’s statements could potentially subject him to prosecution under federal law. For the reasons that follow, we cannot conclude the court erred in permitting Castro to invoke the privilege against self-incrimination. 1. Ortega’s Right to Compulsory Process Was Not Violated Initially, we reject Ortega’s claim his Sixth Amendment right to compulsory process was violated.8 Ortega concedes he is not alleging prosecutorial misconduct. There is no evidence that the prosecutor or anyone other than Castro’s counsel influenced Castro’s decision to invoke his Fifth Amendment privilege. Nevertheless, Ortega contends his Sixth Amendment right to compulsory process was violated when it was forced to yield to Castro’s invocation of his privilege against self-incrimination because Castro did not have a good faith reason for his invocation. Ortega relies upon United States v. Vavages (1998) 151 F.3d 1185 (Vavages), in support of his contention. But Vavages is inapposite. In Vavages, the defendant alleged the prosecutor coerced the defendant’s wife—his alibi witness—not to testify in his defense. (Id. at p. 1188.) The Court concluded “that the prosecutor substantially interfered with [the defendant’s wife’s] decision whether to testify,” by warning her attorney that the prosecutor would file perjury charges against her and seek to withdraw 8 Notably, the People do not discuss whether the Sixth Amendment right to compulsory process is cognizable during a section 1172.6 evidentiary hearing. For purposes of our analysis, we assume, without deciding, that it is.

29. her plea agreement in another case if she testified in support of the defendant’s alibi which was the “but for” cause of her refusal to testify. (Id. at p. 1191.) The Vavages court found the interference “especially prejudicial in light of the district court’s failure to scrutinize adequately [the defendant’s wife’s] basis for invoking the Fifth Amendment privilege against self-incrimination.” (Ibid.) The Court explained “a criminal defendant’s right to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive her Fifth Amendment privilege against self-incrimination[.]” (Ibid.) But the defendant’s wife “never established a good-faith belief that her testimony might incriminate her,” so “the district court should not have approved her blanket invocation of the Fifth Amendment.” (Id. at p. 1192.) Accordingly, the court reversed the defendant’s conviction and remanded for a new trial. (Id. at p. 1193.) Unlike in Vavages, here Ortega does not allege prejudicial governmental interference. Indeed, he admits he is not raising a claim of prosecutorial misconduct. Thus, he has not articulated a valid claim for a violation of his Sixth Amendment right to compulsory process.

2. The Court Did Not Err In Permitting Castro To Invoke His Privilege Against Self-Incrimination We also reject Ortega’s contention to the extent he is claiming the trial court erred in permitting Castro to invoke his privilege against self-incrimination. As the parties acknowledge, the “dual-sovereignty” doctrine permits the federal government to prosecute a defendant for conduct under a federal statute even if a state has prosecuted him for the same conduct under state law. (See Gamble, supra, 587 U.S. at p. 681.) And as the People discuss, there is a possibility that Castro’s testimony regarding his knowledge and involvement in the instant crime(s) could subject him to federal prosecution under federal kidnapping law when a death results if it could be shown he used an instrumentality of interstate commerce in committing or in furtherance of the 30. offense, such as a cellphone or car.9 (See e.g., United States v. Stackhouse (2024) 105 F.4th 1193, 1199–1202.) Here, Castro invoked the privilege against self-incrimination in response to defense counsel asking him whether he was involved in the carjacking of Hunter’s truck. The trial court stated it would permit Castro to invoke the privilege to questioning “along those lines,” and defense counsel stated this subject was “the meat” of his questioning. We agree with the court’s finding that it is “evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ ” (Seijas, supra, 36 Cal.4th at p. 304.) Said differently, because it did not “clearly appear[]” “that the proffered evidence [could not] possibly have a tendency to incriminate” Castro, the court did not err by permitting him to invoke the privilege. (Evid. Code, § 404; see also Seijas, supra, 36 Cal.4th at p. 305.)

3. Castro Did Not Waive His Right to Assert the Privilege Against Self-Incrimination Ortega next contends that Castro “waived any privilege he might have had by voluntarily submitting a declaration, executed under penalty of perjury, attached to his motion to quash [Ortega’s] subpoena.” Again, we disagree. “ ‘It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. [Citation.] The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant 9 While Ortega argues that Castro’s counsel did not specify that Castro could be prosecuted under federal law for kidnapping resulting in death, the record reflects that Castro’s counsel expressly stated he was advising Castro to invoke his privilege pursuant to Gamble because kidnapping is also a federal crime. Thus, his counsel asserted on the record that the basis for invoking the privilege was the possibility of federal prosecution for kidnapping.

31. cross-examination.” ’ ” (People v. Williams (2008) 43 Cal.4th 584, 615 (Williams).) But, “a witness’s failure to invoke the privilege against self-incrimination during one hearing within a proceeding does not necessarily constitute a waiver for the purpose of subsequent hearings. Thus the failure of a witness to claim the privilege at a preliminary hearing does not prevent the witness from refusing to testify regarding the same incriminating material at the trial. [Citations.] Similarly, a witness’s incriminating admission at an in limine hearing concerning the admissibility of evidence ordinarily does not prevent the witness from invoking the privilege against being compelled to give testimony regarding the matter at the trial.” (Ibid.) Here, Castro did not testify at the evidentiary hearing regarding his involvement in the events that occurred on March 22, 2022, and then invoke the privilege against self- incrimination when asked about details of the event. Rather, he invoked the privilege immediately upon being asked about this subject and continued to invoke it. While Castro submitted a declaration under penalty of perjury concerning the relevance of his testimony in support of his motion to quash the subpoena, we consider this more akin to a witness’s statements made at an in limine hearing regarding the admissibility of evidence which does not result in the waiver of the privilege against self-incrimination. (See People v. Lawrence (1959) 168 Cal.App.2d 510, 515–517 [witness’s testimony during voir dire examination during hearing for court to determine the admissibility of evidence did not preclude that witness’s ability to assert the privilege against self-incrimination during trial]; see also Williams, supra, 43 Cal.4th at p. 615 [“a witness’s incriminating admission at an in limine hearing concerning the admissibility of evidence ordinarily does not prevent the witness from invoking the privilege against being compelled to give testimony regarding the matter at trial”].) Thus, his declaration did not amount to a waiver of his right to invoke the privilege. (See generally Williams, supra, at p. 614 [“waiver of a nonparty witness’s privilege ‘is not to be lightly inferred’ ”].) Accordingly, we reject Ortega’s initial contentions.

32. III. Ortega Has Not Established Ineffective Assistance by His Counsel Ortega next argues his counsel provided ineffective assistance by failing to seek introduction of Castro’s prior statement. We cannot conclude Ortega has established ineffective assistance of counsel. A. Standard of Review and Applicable Law A defendant claiming ineffective assistance of counsel “must show that counsel’s representation fell below an objective standard of reasonableness” measured against “prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) In evaluating trial counsel’s actions, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” (Id. at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption the challenged action might be considered sound trial strategy under the circumstances. (Strickland, at p. 689; Dennis, at p. 541.) “Reasonableness must be assessed through the likely perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.) On direct appeal, when no explanation for counsel’s conduct can be found in the record, “we must reject the claim [of ineffective assistance of counsel] on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) It is settled that, “[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.” (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)

33. Evidence Code section 1230 provides for an exception to the hearsay rule for statements against interest:

“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” Evidence Code section 240, subdivision (a)(1) provides that a declarant is “unavailable as a witness” when he is “[e]xempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.” B. Analysis Ortega contends his counsel provided ineffective assistance by failing to seek admission of Castro’s prior statement to Stephanie G. Ortega asserts counsel mistakenly believed that Castro’s Fifth Amendment privilege precluded the defense from introducing this statement at the evidentiary hearing and the error was prejudicial. He contends the statement was a declaration against interest pursuant to Evidence Code section 1230 and the trial court’s finding of privilege rendered Castro statutorily unavailable pursuant to Evidence Code section 240, subdivision (a)(1), so such evidence was admissible pursuant to Evidence Code section 1230. The People respond that the alleged statement by Castro that Carillo (“Rumpy”) gave Dyer the gun “was not necessarily disserving of Castro’s interests, since it indicated that someone other than Castro was involved in the actual killing and providing the means to perform that killing.” And counsel may have decided Castro’s statement was more damaging than helpful. Alternatively, they contend Ortega was not prejudiced by his counsel’s failure to introduce Castro’s prior statement. We cannot conclude Ortega has established ineffective assistance of counsel.

34. First, even if Stephanie G.’s proposed testimony would have been admissible pursuant to Evidence Code sections 240 and 1230, counsel could have reasonably concluded the proposed testimony would have been more prejudicial than probative to Ortega to the extent it could suggest Ortega was involved in beating Hunter before he was killed. A reasonably competent defense attorney may have made the tactical decision not to introduce such evidence because it could further support a conclusion Ortega was a major participant in the underlying felony who acted with reckless indifference to human life. Thus, Ortega has failed to establish there was no rational tactical purpose for failing to introduce such evidence. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [“Whether to call certain witnesses is … a matter of trial tactics, unless the decision results from unreasonable failure to investigate.”].) We cannot conclude Ortega was prejudiced. We note he has not presented any offer of proof regarding what Stephanie G. would have testified to had her testimony been introduced at the hearing; thus, “ ‘without engaging in speculation, we cannot infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial.’ ” (People v. Wash (1993) 6 Cal.4th 215, 269.) Even had Stephanie G. testified consistently with the statements in Hanson’s report, we cannot conclude that it is reasonably probable Ortega would have obtained a more favorable result. The court relied upon multiple circumstances to conclude he was a major participant who acted with reckless indifference to human life. We cannot conclude it was reasonably probable that testimony from Stephanie G. regarding Castro’s alleged statements to her following the murder—which could have supported a finding that Ortega beat Hunter before he was killed—would have affected the court’s determination that Ortega was a major participant in the underlying crime who acted with reckless indifference to human life. This would be so, even had Stephanie G. testified Castro said Carrillo gave Dyer the gun.

35. In reaching this conclusion, we note that the court relied upon Ortega’s admission at the evidentiary hearing that he drove Hunter’s truck to the location where Hunter was ultimately killed, which was consistent with Cruz and Roman’s testimony at trial and inconsistent with Castro’s alleged statement to Stephanie G. Ortega also admitted he took the rims off the truck and continued to do so after seeing the victim laying down in the back of the truck. He further testified he wiped down the truck for fingerprints, and that he ultimately burned the body and the truck. We note the court did not find Ortega’s testimony at the evidentiary hearing credible that he did not know Hunter was in the back of the truck when he drove it. (See generally People v. Stewart (2000) 77 Cal.App.4th 785, 790 [“ ‘we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact’ ”].) In support of its findings, the court also relied upon evidence that the group was waiting for Ortega to arrive, supporting a conclusion he was a leader in the operation, and it discussed Cruz’s testimony from trial in which he stated Ortega was laughing and said that they “were going to kill this mother fucker.” In light of all of the other supporting evidence the trial court relied upon in reaching its findings, we cannot conclude it is reasonably probable Ortega would have obtained a more favorable result, even had counsel sought admission of Castro’s alleged statements to Stephanie G. Thus, we reject Ortega’s claim of ineffective assistance of counsel.

36. DISPOSITION The court’s order denying Ortega’s section 1172.6 petition for resentencing is affirmed.

SNAUFFER, J. WE CONCUR:

LEVY, Acting P. J.

DESANTOS, J.

37.