factfinder hearing in California

2021We need not consider which standard of review is the proper one for the evidentiary hearing, an issue currently before the Supreme Court (People v. Duke (2020) 55 Cal.App.5th 113 , review granted Jan. 13, 2021, S265309), because here the court applied the independent factfinder standard, as the defendant requested. 8 person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Although the bill amended the felony murder rule to ensure that murder liability would be imposed only

2021In People v. Duke (2020) 55 Cal.App.5th 113 , 123, rev. granted Jan. 13, 2021, S265309, the court concluded, “To carry its burden, the prosecution must . . . prove beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law—in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder.

2022The People contend that, even assuming the trial court erred by applying the wrong statutory standard, any error is harmless “because the trial court would have denied [Tapia’s] petition under an independent factfinder standard in light of the overwhelming evidence that [he] acted with implied malice.” Tapia counters that the trial court’s failure to follow the proper statutory procedure and apply the correct standard of proof constitutes a miscarriage of justice regardless of whether the 11 evidence against him was overwhelming because “‘the wrong entity judged the defendant guilty.’ (Rose v.

2021(People v. Perez (2005) 35 Cal.4th 1219, 1225 ; People v. McCoy (2001) 25 Cal.4th 1111, 1117 .) The defendant must not only know the direct perpetrator’s intent, he must share that intent.

2021(Id. at p. 618; People v. Gregerson (2011) 202 Cal.App.4th 306, 320 ; see People v. Lopez (2020) 56 Cal.App.5th 10 936, 953–954, review granted Feb. 10, 2021, S265974 [even if the independent factfinder standard applies at the evidentiary hearing, the standard of review on appeal is substantial evidence].) We analyze the record in the light most favorable to the trial court’s finding and determine if there is sufficient substantial evidence to find the defendant guilty beyond a reasonable doubt.

2021(People v. Perez (2005) 35 Cal.4th 1219, 1225 ; People v. McCoy (2001) 25 Cal.4th 1111, 1117 .) The defendant must not only know the direct perpetrator’s intent, he must share that intent.

2021(People v. Gentile (2020) 10 Cal.5th 830, 844 (Gentile).) Express malice exists “when there is a manifest intent to kill.” (Ibid., citing § 188, subds. (a)(1) and (a)(2).) It is shown when the defendant either desires the victim’s death or knows to a substantial certainty that death will occur. (§ 188, subd. (a)(1); People v. Saille (1991) 54 Cal.3d 1103, 1114 .) Implied malice exists if “someone kills with ‘no considerable provocation . . . or when the circumstances attending the killing show an abandoned and malignant heart.’ ” (Gentile, at p. 844, citing § 188, subd. (a)(2).) Implied malice

2021(Clements, at p. 618; People v. Bascomb (2020) 55 Cal.App.5th 1077 , 1087.) C.

1977These factors include: (1) the nature of the prior conviction, i.e., whether the crime in question involved "dishonest conduct," as opposed to crimes of violence or passion, noting that "generally" the latter do not bear on credibility; (2) the temporal proximity or remoteness of the prior conviction; (3) the similarity of the prior conviction to the offense or offenses presently charged; and (4) the likelihood that admission of the prior conviction *126 would inhibit the defendant from testifying, thus depriving the factfinder of hearing defendant's version of events. ( Beagle, supra, at p. 4

1977These factors include: (1) the nature of the prior conviction, i.e., whether the crime in question involved "dishonest conduct," as opposed to crimes of violence or passion, noting that "generally" the latter do not bear on credibility; (2) the temporal proximity or remoteness of the prior conviction; (3) the similarity of the prior conviction to the offense or offenses presently charged; and (4) the likelihood that admission of the prior conviction *126 would inhibit the defendant from testifying, thus depriving the factfinder of hearing defendant's version of events. ( Beagle, supra, at p. 4

1977These factors include: (1) the nature of the prior conviction, i.e., whether the crime in question involved "dishonest conduct," as opposed to crimes of violence or passion, noting that "generally" the latter do not bear on credibility; (2) the temporal proximity or remoteness of the prior conviction; (3) the similarity of the prior conviction to the offense or offenses presently charged; and (4) the likelihood that admission of the prior conviction *126 would inhibit the defendant from testifying, thus depriving the factfinder of hearing defendant's version of events. ( Beagle, supra, at p. 4

1977These factors include: (1) the nature of the prior conviction, i.e., whether the crime in question involved "dishonest conduct," as opposed to crimes of violence or passion, noting that "generally" the latter do not bear on credibility; (2) the temporal proximity or remoteness of the prior conviction; (3) the similarity of the prior conviction to the offense or offenses presently charged; and (4) the likelihood that admission of the prior conviction *126 would inhibit the defendant from testifying, thus depriving the factfinder of hearing defendant's version of events. ( Beagle, supra, at p. 4