People v. Velten CA2/6 ( 2023 )

Filed 5/23/23 P. v. Velten CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B317248
(Super. Ct. No.
Plaintiff and Respondent, F000464362002)
(San Luis Obispo County)
v.
ORDER MODIFYING
JENNIFER ANN VELTEN, OPINION
[No Change in Judgment]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on May 18, 2023,
be modified as follows:
1. On page 4, second paragraph under DISCUSSION, the
sentence beginning “The Legislature passed Assembly Bill 1437
. . . ,” the word “Assembly” is changed to “Senate” so the sentence
reads:
The Legislature passed Senate Bill 1437 in 2018 “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); People v. Gentile (2020) 10 Cal.5th 830, 842.)
There is no change in the judgment.
____________________________________________________________
GILBERT, P.J. YEGAN, J. CODY , J.
2
Filed 5/18/23 P. v. Velten CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B317248
(Super. Ct. No.
Plaintiff and Respondent, F000464362002)
(San Luis Obispo County)
v.
JENNIFER ANN VELTEN,
Defendant and Appellant.
Jennifer Ann Velten appeals a postjudgment order denying
her petition for resentencing under Penal Code section 1172.6.1
Velten contends, among other things, there was insufficient
evidence she acted with reckless indifference to human life. We
affirm the order.
Appellant sought resentencing under former section
1
1170.95. Section 1170.95 was renumbered section 1172.6
effective June 30, 2022, with no changes in text. (Stats. 2022, ch.
58, § 10). Unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Murder Conviction
Victim Robert Uyeno worked in maintenance at the
Farmhouse Motel in Paso Robles. He lived in an onsite bungalow
consisting of two small adjoining rooms, a bedroom and kitchen
area. Velten knew Uyeno and once stayed with him for a couple
of days when she was having problems with an ex-boyfriend.
One evening in 2011, Velten and two other women were
exchanging stories about Uyeno. Velten said he had once tied her
up while she was sleeping and assaulted her. One of the women
claimed Uyeno had raped her and molested children. They both
claimed he had locked them in his room against their will. One of
the women added that he had taken her laptop computer because
she owed him some money. Velten’s boyfriend and another man
who were in the room overheard them and grew angry. The
group formed a plan to rob Uyeno. Velten would visit Uyeno at
the Farmhouse Motel that evening on the pretext of exchanging
sexual services for drugs. Once inside his bungalow, she would
leave the door unlocked and then text the others to let them know
when it was okay to enter. Velten’s boyfriend and another man
would then “beat the crap” out of Uyeno and take the laptop
computer and his drugs.
Velten went to the Farmhouse Motel and knocked on the
bungalow door. Uyeno let her in. He began using drugs while
she smoked cigarettes and looked at a laptop. Velten sent the
text signaling the others to come. Velten’s boyfriend and a
second man entered about 45 minutes later through the unlocked
door. Velten saw them jump on Uyeno and tie him up. She also
saw them attempt to choke him with a belt. The men beat and
choked Uyeno before deciding to kill him. Velten waited in an
adjoining room while her boyfriend stabbed Uyeno with an
2
icepick then slashed him with a kitchen knife. She could hear
Uyeno screaming. As the group was leaving Velten’s boyfriend
realized Uyeno was still alive so he asked Velten for something
sharper. Velten directed him to a utility knife on a nearby table,
which he grabbed and used to cut Uyeno’s neck. Velten’s
boyfriend asked if she wanted to stab Uyeno but she declined.
The group left with Uyeno’s drugs, the laptop, and some
lottery tickets but Velten returned about 10 minutes later
because she forgot her purse. She noticed Uyeno on the bed
unconscious but still breathing. She left him unaided. The next
morning she and her boyfriend disposed of their clothes at a truck
stop and fled the area. At some point, Velten buried the ice pick
in the ground. The manager of the Farmhouse Motel found
Uyeno dead after forcibly entering the bungalow.
The People charged Velten with murder (§ 187, subd. (a))
and other offenses after she admitted her role in Uyeno’s death.
She agreed to plead no contest to second degree murder and
received a sentence of 15 years to life in state prison in 2012.
Petition for Resentencing
Velten petitioned for resentencing under section 1172.6 in
2019. The trial court found she made a prima facie showing for
relief and issued an order to show cause. It appointed counsel
and held an evidentiary hearing. The People opposed the
petition, arguing Velten could presently be convicted of murder
under amended section 189. Specifically, they argued she
committed felony murder as a major participant in Uyeno’s
robbery and acted with reckless indifference to human life.
(§§ 189, subd. (e)(3), 190.2, subd. (a)(17).)
A detective assigned to the original murder investigation
testified at the evidentiary hearing. The People introduced
interrogation transcripts in which Velten and her boyfriend gave
3
largely consistent accounts of Uyeno’s beating and murder. They
also introduced the transcript of Velten’s preliminary hearing in
2012 and her pre-sentence probation report. The court denied
the petition, finding she helped plan Uyeno’s robbery and showed
reckless indifference to life during and after the attack.
DISCUSSION
Sufficiency of the Evidence
Velten contends substantial evidence does not support the
trial court’s finding that she acted with a reckless indifference to
human life. We do not agree.
The Legislature passed Assembly Bill 1437 in 2018 “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); People v. Gentile (2020) 10 Cal.5th 830, 842.) It enacted
section 1170.95 (now section 1172.6) to provide a procedure by
which persons convicted under the felony murder or natural and
probable consequences doctrines could petition for resentencing
under the new laws. (Gentile, at p. 853.)
At the evidentiary hearing on a petition for resentencing
the prosecution bears the burden of proving beyond a reasonable
doubt the petitioner is not entitled to resentencing. (Id., subd.
(d)(3).) The trial court sits as a trier of fact at the hearing. It
may consider “evidence previously admitted at any prior hearing
or trial that is admissible under current law” and “[t]he
prosecutor and the petitioner may . . . offer new or additional
evidence to meet their respective burdens.” (Ibid.) We review its
findings for substantial evidence. (People v. Owens (2022) 78
Cal.App.5th 1015, 1022.) Accordingly, “we review the evidence in
the light most favorable to the prosecution and presume in
4
support of the judgment the existence of every fact the [trier of
fact] could reasonably have deduced from the evidence.” (People
v. Zamudio (2008) 43 Cal.4th 327, 357; Owens, at p. 1022.)
“Reckless indifference to human life has a subjective and
an objective element. [Citations.] As to the subjective element,
‘[t]he defendant must be aware of and willingly involved in the
violent manner in which the particular offense is committed,’ and
he or she must consciously disregard ‘the significant risk of death
his or her actions create.’ [Citations.] As to the objective
element, ‘“[t]he risk [of death] must be of such a nature and
degree that, considering the nature and purpose of the actor’s
conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the actor’s situation.”’
[Citations.]” (In re Scoggins (2020) 9 Cal.5th 667, 677.)
“Relevant factors include: Did the defendant use or know
that a gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present at
the crime? Did he or she have the opportunity to restrain the
crime or aid the victim? What was the duration of the interaction
between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s
propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence
during the felony? [Citations.] ‘“[N]o one of these considerations
is necessary, nor is any one of them necessarily sufficient.”’
[Citations.]” In re Scoggins, supra, 9 Cal.5th at p. 677
Velten helped orchestrate a robbery that turned into a
killing. She gained access to Uyeno’s bungalow under false
pretenses so others could physically assault him and steal
predetermined items. She lingered for 30 minutes or more a few
5
feet outside the bedroom and listened while the attackers beat,
choked, and stabbed their victim. She pointed out a utility knife
when her boyfriend requested a deadlier killing instrument. She
was offered but declined an invitation to stab the victim. Lastly,
she noticed Uyeno still breathing when she returned 10 minutes
later for her purse and chose to leave him unaided. Substantial
evidence supports the trial court’s findings that Velten was a
major participant in the robbery and acted with reckless
indifference to the victim’s life. (See Owens, supra, 78
Cal.App.5th at p. 1023, quoting People v. Clark (2016) 63 Cal.4th
522, 617 [“Reckless indifference ‘encompasses a willingness to kill
(or to assist another in killing) to achieve a distinct aim, even if
the [appellant] does not specifically desire that death as the
outcome of his actions’”].)
Miranda Error
Velten next contends Miranda2 error occurred because the
trial court based its decision on incriminating statements she
made during her interrogation in 2011. We consider the issue
waived because she did not raise it below. (Evid. Code, § 353; see
People v. Polk (2010) 190 Cal.App.4th 1183, 1194 [“unless a
defendant asserts in the trial court a specific ground for
suppression of his or her statements to police under Miranda,
that ground is forfeited on appeal, even if the defendant asserted
other arguments under the same decision”].) We would reject the
argument even if she had raised it. Wrongful admission of
evidence at a section 1172.6 hearing does not implicate one’s
rights against self-incrimination. (See People v. Myles (2021) 69
Cal.App.5th 688, 706 [“Because a sentence modification under
2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
6
section [1172.6] is an act of lenity and not a criminal trial, the
wrongful admission of evidence does not implicate defendant's
constitutional rights under the Fifth Amendment”].) In addition,
the interrogation transcript shows detectives admonished Velten
pursuant to Miranda and stopped asking questions when she
requested an attorney. No violation occurred.3
Remaining Contentions
Velten contends the trial court erred when it used an
“imputed malice form of murder,” i.e., felony murder, as the basis
for upholding her conviction for second degree murder. It did not
err. Prosecutors may oppose resentencing by proving guilt under
any theory encompassed by current sections 188 and 189.
(§ 1172.6, subd. (d)(3).) This is not limited to theories raised
originally. (See People v. Schell (2022) 84 Cal.App.5th 437, 444-
445 [because a resentencing hearing “‘does not subject a
defendant to the risk of additional punishment, is not a trial,
permits both parties to present new evidence, and merely
considers whether the defendant’s request for leniency meets the
necessary criteria, there is no constitutional problem in allowing
new theories of murder liability at that hearing’”].) The People
chose to oppose the petition on the theory Velten was a major
participant in a felony in which a death occurred. (§ 189, subd.
(e)(3).) The trial court properly based its ruling on the mental
state required to prove guilt of this crime.
Lastly, the record contradicts Velten’s assertion that the
trial court applied a “quasi-appellate” substantial evidence
standard of proof. The court told the People they “should be
3 These conclusions render moot Velten’s argument that
Senate Bill 775’s amendments to the resentencing statutes apply
retroactively to her appeal and require reversing the trial court’s
ruling on her petition.
7
prepared to prove [felony murder] beyond a reasonable doubt as
to the elements of the crime.” When it denied the petition, the
court stated the “best version” of the facts still showed Velten
acted as a major participant who acted with reckless indifference
to human life.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
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