People v. Toscano CA1/1

── People v. Toscano CA1/1 ── Court: California Court of Appeal Date: April 22, 2026 Category: General Filed 4/22/26 P. v. Toscano CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A172182 v. BENJAMIN KAUKUKALA (Contra Costa County TOSCANO, Super. Ct. No. 05009211517) Defendant and Appellant. In 1992, defendant Benjamin Toscano pled guilty to second degree murder for a killing he committed when he was 17 years old. After being found unsuitable for commitment to a juvenile facility, he was sentenced to 15 years to life in prison. Nearly 30 years later, Toscano filed a petition for resentencing under Penal Code1 former section 1170.95, now section 1172.6, based on changes to the law of murder made by Senate Bill No. 1437 (2017–2018 Reg. Sess.). (See People v. Hin (2025) 17 Cal.5th 401, 441.) After an evidentiary hearing, the trial court denied the petition, finding that Toscano was still guilty of murder under current law as “the actual killer.” (§§ 189, subd. (e)(1), 1172.6, subd. (d)(3).) 1 All further statutory references are to the Penal Code.  Toscano appealed from the denial of his resentencing petition. His appointed appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216, 221–222 (Delgadillo) stating that there are no arguable issues. Under Delgadillo, we gave Toscano notice that he had a right to file a supplemental brief or his appeal could be dismissed. (See id. at pp. 231–232.) Toscano filed a supplemental brief raising numerous claims, including various evidentiary issues and ineffective assistance of counsel. We reject all of his claims and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts are drawn primarily from the challenged order’s summary of the evidence presented at the evidentiary hearing on the resentencing petition. On December 15, 1991, Toscano, 22-year old Harold Spiller, and two other acquaintances, all of whom were affiliated with the Norteño street gang, were in a car together in Richmond. Spiller was driving, and he and the other two men agreed that Toscano was sitting in the car’s right rear passenger’s seat. As the car approached a liquor store, several members of the rival Sureño street gang “exchange[d] . . . words” with the car’s occupants. Toscano produced a shotgun and fired it toward the other group, killing the victim, Alejandro Cervantes. Toscano then fled the scene. Before the police arrived, the three men remaining in the car “agreed to cover for Toscano by blaming the shooting on an ‘[a]lbino’ who was . . . with them.” During their police interviews, all three initially reported that an albino or white man was the shooter, but all three ultimately independently admitted that it was actually Toscano. Another eyewitness, who also knew Toscano, testified at the evidentiary hearing that he could not see anything because he was hiding. Soon after the killing, however, this witness told the 2 police that Toscano was the shooter, having seen him in the car’s back seat holding a shotgun when the shots were fired. A Richmond police officer, Terry Hudson, happened to be at the scene when the shooting occurred. He saw “a l