People v. Jackson CA2/7

Opinion

Filed 9/24/26 P. v. Jackson CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B347766

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA020015) v.

ARTHUR DUANE JACKSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Affirmed. Law Office of Charles Carbone and Charles Carbone for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent. ________________________ INTRODUCTION In this appeal after an evidentiary hearing under Penal Code section 1172.6, we affirm the superior court’s order denying appellant Arthur Duane Jackson’s petition because substantial evidence supports the court’s finding Jackson is guilty of attempted murder under a currently valid theory.1 In 1994, Jackson committed a carjacking with his codefendant John Holani.2 The carjacking victim was Hugo Leiva, a tow truck driver who had come to assist Jackson and Holani with a flat tire on the freeway in the middle of the night. During the carjacking, Jackson put a gun to Leiva’s head, then Holani pulled Leiva out of his tow truck, ordered him to lay face down on the ground, then shot him in the back. Leiva was able to run away and survived. At trial, the jury was instructed on the natural and probable consequences doctrine, and it convicted Jackson and Holani of willful, deliberate, and premeditated attempted murder. In 2025, the superior court conducted an evidentiary hearing under section 1172.6. The superior court denied Jackson’s petition because it found he was a principal in the commission of an attempted murder who acted with the intent to kill. Jackson contends the court’s finding is unsupported by substantial evidence. We conclude the record contains substantial evidence supporting the court’s conclusion Jackson is ineligible for relief, including Leiva’s testimony at Jackson’s trial 1 Undesignated statutory references are to the Penal Code. 2 Holani is not a party to this appeal.

2 describing the carjacking and shooting, as well as Jackson’s statements during a parole assessment reflecting he had the requisite intent to kill Leiva. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Crime On April 28, 1994, at 1:32 a.m., a request for assistance was made from a freeway callbox on the 605 freeway at Whittier Boulevard. In response to the request, a California Highway Patrol (CHP) dispatcher contacted Hadley Tow Service, which sent a tow truck to the scene. At 2:08 a.m., Hadley informed CHP the requesting party had refused towing because he only wanted a spare tire replaced. At 2:10 a.m., a second assistance request was made from the same freeway callbox. In response, CHP contacted Freddie Mac Tow Service, which sent tow truck driver Hugo Leiva to the scene. Leiva arrived around 3:00 a.m. and saw a 1975 Chevrolet Monte Carlo parked on the shoulder of the northbound 605 freeway. Two people were asleep inside the car, and the car had a flat tire. Leiva knocked on the window, awakening Jackson and Holani. Holani told Leiva they had a flat tire but no spare and needed a tow to Long Beach. Leiva attached the Monte Carlo to his tow truck, and the three men entered Leiva’s tow truck, with Jackson sitting in the middle. At a certain point, Jackson asked Leiva to pull over so Holani could use the restroom, apparently as a ruse. Holani got out of the truck, took a few steps, reached toward his waist, pulled out a gun, pointed it at Leiva, and said “ ‘give me all your money.’ ” Jackson, still seated next to Leiva, also pulled out a 3 gun, pushed Leiva’s head down, placed the gun to Leiva’s head, and ordered Leiva to surrender his wallet. Holani reached across Jackson, grabbed Leiva by the neck, pulled Leiva over Jackson out of the truck, and ordered Leiva to lie on the ground. Leiva saw Jackson slide over to the driver’s seat of the tow truck. Holani told Leiva to turn face down on the ground. When Leiva complied and turned face down, Holani shot him in the back. Leiva got up and started running. He heard two more gunshots, but they did not hit him. Bleeding and feeling weak, Leiva fell. He saw Jackson and Holani drive his tow truck away with the Monte Carlo still attached. Leiva waved at other cars for help, but no one stopped. He eventually was able to get to the call box and ask for help. CHP officers arrived, followed by paramedics, who took Leiva to a hospital.3 B. Verdicts, Sentencing, and Direct Appeal The jury found Jackson and Holani guilty of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)) and carjacking (§ 215, subd. (a)), and it also found each defendant personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a)). The jury additionally found that Jackson sustained a prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced Jackson to a term of life imprisonment with the possibility of parole. In Jackson’s direct appeal, this court affirmed the judgment of conviction, but corrected the minimum parole eligibility. (People v. Jackson (1996) 46 Cal.App.4th 232, review granted 3 We omit the details surrounding Jackson and Holani’s subsequent arrest because they are not relevant to the issue presented in this appeal.

4 Mar. 28, 1996, S051863, review dism. and cause remanded Oct. 23, 1996.)

C. Prior Section 1172.6 Proceedings In 2019, Jackson filed a petition for resentencing under former section 1170.95 (now section 1172.6). The superior court denied the petition without appointing counsel, concluding the statute did not apply to attempted murder. This court affirmed. (People v. Jackson (July 24, 2020, B296340 [nonpub. opn.].) The Supreme Court granted Jackson’s petition for review and transferred the case to this court for reconsideration in light of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We reversed the order denying Jackson’s petition and directed the superior court to appoint counsel and proceed in accordance with section 1172.6, subdivision (c). (People v. Jackson (Mar. 2, 2022, B296340) [nonpub. opn.].) In 2022, the superior court appointed counsel after Jackson, representing himself, filed a declaration in support of his petition for resentencing under Senate Bill No. 775. In their opposition, the People acknowledged the jury was instructed on the natural and probable consequences doctrine, but argued Jackson was ineligible for relief because the jury found him guilty of attempted premediated murder with personal use of a firearm. Jackson, through counsel, filed a reply in which he argued he made a prima facie showing for relief. The superior court denied Jackson’s petition without issuing an order to show cause. The court emphasized the jury found Jackson “used a gun” to commit attempted murder with premeditation, “which by definition, requires the express intent to kill.” The court’s minute order 5 specified it was denying the petition because, “[b]ased on the charges for which he was convicted, [Jackson] had a specific intent to kill.” This court reversed. (People v. Jackson (Apr. 19, 2024, B329874) [nonpub. opn.].) We concluded the natural and probable consequences doctrine instruction left open the possibility the jury convicted Jackson of attempted murder based on imputed malice, and the jury’s premeditation and gun use findings did not foreclose that possibility as a matter of law. We remanded the case to the superior court with directions to issue an order to show cause and proceed under section 1172.6, subdivision (d).

D. Section 1172.6 Evidentiary Hearing At Jackson’s evidentiary hearing, the People introduced the reporter’s transcript of Jackson and Holani’s jury trial. That transcript contains Leiva’s testimony identifying Jackson and Holani as his assailants and describing the carjacking and shooting. The People also introduced Jackson’s parole board comprehensive risk assessment (CRA) report from 2020. According to that report, Jackson stated during his assessment that he and Holani intended to kill Leiva so they could “ ‘get away with the carjacking.’ ” The defense introduced codefendant Holani’s 2013 parole hearing. During that hearing, Holani stated that he shot Leiva out of anger because he “just snapped,” suggesting he decided on his own to shoot Leiva without participation from Jackson.

6 1. Jackson’s Inculpatory Statements During his Parole Evaluation In 2020, Jackson underwent a CRA as part of his parole evaluation. (See Cal. Code Regs., tit. 15, § 2240.) Jackson’s CRA was conducted by Dr. T. McGinley, a licensed forensic psychologist with the California Department of Corrections and Rehabilitation. Dr. McGinley informed Jackson the interview was not confidential and that Jackson had the right not to participate. Jackson stated he understood the contents of the interview would not be confidential and that he understood it was his right not to participate. During his CRA interview, Jackson gave the following account of the carjacking and attempted murder:

On this particular night, April 28th of 1994, I started out at my girlfriend’s house. I went to the Santa Fe complex to meet with John Holani. He asked me for money. I said, “No, we can go get money.” We had done robberies before. He said, “Ok.” . . . He knew of somebody we could rob. I didn’t actually know this guy. He sold [marijuana]. [That’s who] we [were] originally going to rob . . . We went to take my car. It got a flat. We called the tow truck. The first one came out. I sent him away. He didn’t have a spare tire. We called another. The second one comes with Mr. Leiva. [He] didn’t have a spare tire but could hook us up to take us to Long Beach. John asked him to pull over, to use the restroom. John pulled the gun. I pulled my gun. I told him to climb over my legs and get out of the truck. John had him lie on the ground. John shot him, and we got in 7 the truck and we drove off; and later John was arrested and I was arrested right after that.

Dr. McGinley asked Jackson if their intention was to kill Leiva, and Jackson answered, “Yes.” When asked why they wanted to kill Leiva, Jackson said “[t]o get away with the carjacking.” Jackson stated they intended to sell Leiva’s truck for parts and use the money to buy clothes and the tire for Jackson’s car. Jackson also stated he was the leader of the events that transpired during the crime. He took responsibility for what happened. Jackson expressed remorse for hurting Leiva, and as the interview drew to a close, he was close to tears.

2. Holani’s Parole Hearing Testimony In February 2013, Holani testified at his initial parole consideration hearing. Holani disputed the veracity of the factual summary contained in this court’s opinion resolving Jackson and Holani’s direct appeal. When asked to recount his recollection of what happened, Holani stated that he and Jackson called for a tow truck. Holani wanted to use the restroom, then, when Jackson began arguing with Leiva, Holani “just snapped.” Holani grabbed Leiva, pulled him out of the truck, told him to lie down, then shot him. Holani claimed he shot Leiva in his buttocks rather than in his back. According to Holani, his motive for shooting Leiva was anger. Holani was angry because Leiva did not let him use the radio when they were in the tow truck and also because he felt Leiva had been giving him attitude. Jackson and Holani were armed during the crimes, and Holani claimed Jackson had given him the gun he used to shoot Leiva. Holani also stated he had consumed beer and was drunk the night of the 8 crime. He asserted that he and Jackson had not planned to rob Leiva, and the shooting occurred in “the heat of the moment.” He claimed that he did not remember anything about robbing Leiva.

3. The Superior Court Denies the Petition Citing the evidence surrounding the attempted murder of Leiva, as well as Jackson’s statements during the CRA indicating he and Holani intended to kill Leiva, the superior court found the prosecution had satisfied its burden of proving beyond a reasonable doubt that Jackson was guilty of attempted murder under a currently valid theory because he was a principal who acted with the intent to kill. Jackson timely appealed.

DISCUSSION

A. Substantial Evidence Supports the Superior Court’s Finding Jackson Is Guilty of Attempted Murder under Current Law Because He Aided and Abetted Holani While Harboring the Intent To Kill 1. Governing Law and Standard of Review Effective 2019, the Legislature, through Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony murder rule, that a defendant act with malice to be convicted of murder. (§ 188, subd. (a)(3).) Effective 2022, through Senate Bill No. 775, the Legislature amended section 1172.6 to apply to persons convicted of 9 “attempted murder under the natural and probable consequences doctrine.” (§ 1172.6, subd. (a).) Upon receipt of a facially sufficient section 1172.6 petition, the court “shall appoint counsel” for petitioner if requested. (Id., subd. (b)(3).) The court then assesses whether the petitioner made a prima facie showing he is eligible for relief. (Id., subd. (c); Lewis, supra, 11 Cal.5th at p. 957.) If the court determines the petitioner made a prima facie showing, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of attempted murder under current law. (§ 1172.6, subds. (c) & (d).) At the evidentiary hearing, the court may consider evidence “previously admitted at any prior hearing or trial that is admissible under current law,” including witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may also offer new or additional evidence “to meet their respective burdens.” (Ibid.) In assessing Jackson’s appeal from the evidentiary hearing, we review the record in the light most favorable to the order below to determine if there is substantial evidence from which any rational trier of fact could find beyond a reasonable doubt that Jackson is guilty of attempted murder under current law. (People v. Reyes (2023) 14 Cal.5th 981, 988.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (People v. Navarro (2021) 12 Cal.5th 285, 339.) We “presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) Accordingly, we do not substitute our own evaluation of a witness’s credibility for that of the finder of fact. (People v. 10 Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) “Because we must draw all inferences in support of the judgment, [a] defendant ‘bears an enormous burden’ when challenging the sufficiency of the evidence.” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)4 2. Analysis As relevant here, a “principal” is defined as any person who aids and abets in the commission of a criminal offense. (§ 31.) “Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775.” (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).) “ ‘[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) The record from Jackson’s trial contains substantial evidence, including circumstantial evidence, that Jackson knew of Holani’s intent to kill Leiva, shared that intent, and aided and abetted Holani in the attempted murder. Leiva testified that, after he picked up Jackson and Holani and was driving to Long Beach, Jackson asked Leiva to pull over so Holani could use the 4 Jackson is incorrect that this appeal raises questions of law warranting de novo review. (See People v. Underwood (2024) 99 Cal.App.5th 303, 314 [“a trial court’s decision denying a petition under section 1172.6 following an evidentiary hearing is predominantly a question of fact” that warrants substantial evidence review on appeal].)

11 restroom. Holani did not use the bathroom, and instead after Holani exited the tow truck he pointed a gun at Leiva. Jackson then pulled out a gun, pushed Leiva’s head down, and put the gun to Leiva’s head. As Holani pulled Leiva from the truck, told him to lay face down on the ground, and shot him in the back, Jackson slid over to the driver’s seat of Leiva’s tow truck to drive away. Leiva’s testimony reasonably supports the inference that Jackson and Holani acted in concert with the shared intent to shoot and kill Leiva in order to get away with the carjacking without leaving a witness. (See Nguyen, supra, 61 Cal.4th at p. 1054 [relevant factors in determining whether an individual acted as an aider and abettor include presence at the scene of the crime, relationship to the direct perpetrator, and the individual’s conduct before and after the offense]; People v. Campbell (1994) 25 Cal.App.4th 402, 409 [substantial evidence supported a finding of aiding and abetting, in part, because two perpetrators’ actions in concert reasonably implies a common purpose]; see also People v. Player (2026) 119 Cal.App.5th 931, 965 (Player) [the testimony of one witness constitutes substantial evidence; affirming denial of section 1172.6 petition after evidentiary hearing].) “Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime.” (People v. Canizales (2019) 7 Cal.5th 591, 602.) In this case, however, the superior court also had before it direct evidence: Jackson’s own admission, during his parole evaluation, that he 12 intended to kill Leiva in order to get away with the carjacking.5 We conclude Jackson’s admission, along with Leiva’s testimony, are substantial evidence reasonably supporting the superior court’s finding that Jackson is guilty of attempted murder under a currently valid theory as a direct aider and abettor who harbored the intent to kill. (See Coley, supra, 77 Cal.App.5th at p. 548.) Jackson argues substantial evidence does not support the superior court’s finding because the court erred by giving too much weight to his statements during his parole evaluation that he and Holani intended to kill Leiva in order to get away with the carjacking. Jackson suggests his inculpatory statements should be disregarded because he had an incentive in his parole proceedings to admit culpability and show remorse. Jackson further contends Holani’s parole hearing testimony, which could support an inference that Jackson did not intend to kill Leiva, should be given more weight than his own statements that he intended to kill Leiva. We acknowledge that defendants, such as Jackson, who participate in parole proceedings may have an incentive to admit culpability and show remorse to increase their chances of being granted parole. (See In re Shaputis (2008) 44 Cal.4th 1241, 1257, 5 Jackson concedes that his statements at his parole assessment were admissible at his evidentiary hearing. “It is well settled that a defendant’s statements in a parole risk assessment report and testimony at a parole hearing fall within the ambit of ‘ “new or additional evidence[]” ’ ” that may be admitted at a section 1172.6, subdivision (d)(3) evidentiary hearing. (People v. Zavala (2024) 105 Cal.App.5th 366, 373 [collecting cases].)

13 fn. 16, citing Regs., § 2402, subd. (d) [parole suitability factors include signs of remorse].) We also acknowledge that unlike Jackson, Holani, during his parole proceedings, did not mention a shared intent to kill Leiva in order to accomplish the carjacking. But we cannot, on substantial evidence review, reweigh the evidence before the superior court, and we are bound by its finding that Jackson’s inculpatory statements were credible. (Ochoa, supra, 6 Cal.4th at p. 1206; Player, supra, 119 Cal.App.5th at p. 963 [in reviewing a section 1172.6 ineligibility finding for substantial evidence, we resolve all evidentiary conflicts and questions of witness credibility in favor of the ineligibility finding]; People v. Grandberry (2025) 116 Cal.App.5th 934, 946 [same].) Contrary to Jackon’s assertion, the superior court was not required to believe Holani’s testimony over that of Jackson because the court was permitted to weigh the evidence and make its own credibility determinations. (People v. Tyler (2026) 121 Cal.App.5th 724, 728 [“The [superior] court assumes the role of independent fact finder” at section 1172.6 evidentiary hearings]; People v. Davis (2024) 107 Cal.App.5th 500, 510-511 [credibility determinations are the “exclusive province” of the superior court at section 1172.6 evidentiary hearings].) Nor can we, as Jackson invites us to, disregard the evidence supporting the superior court’s finding that Jackson was an aider and abettor who had the requisite intent to kill and credit only the evidence that favors him. (See People v. Williams (2020) 57 Cal.App.5th 652, 664-665.)6 6 Jackson acknowledges the question on appeal is whether substantial evidence supports the superior court’s finding that he

14 DISPOSITION

The order denying Jackson’s section 1172.6 petition is affirmed.

MARTINEZ, P. J. We concur:

SEGAL, J. FEUER, J.

harbored the intent to kill. But, as the People observe, the primary focus of Jackson’s opening brief was whether the prosecution adequately proved in the superior court that Jackson was a major participant in the carjacking who acted with reckless indifference to human life under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. This is not the relevant inquiry. Under the felony murder rule, a participant in any one of several statutorily enumerated felonies is guilty of murder if the person was a major participant in the felony who acted with reckless indifference to human life. (§ 189, subd. (e)(3).) Attempted murder is not one of those statutorily enumerated felonies. (Ibid.; People v. Concha (2009) 47 Cal.4th 653, 661, fn. 2.) “California has no crime of attempted felony murder.” (People v. Billa (2003) 31 Cal.4th 1064, 1071, fn. 4.) Counsel appears to have conflated the felony murder inquiry of major participation/reckless indifference with the question presented here, namely whether Jackson aided and abetted attempted murder while harboring the intent to kill.