Opinion
B303372
04-22-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS CASTRO, Defendant and Appellant.
Orrick, Herrington & Sutcliffe, James E. Thompson, Lauren M. Kessler, Adrienne Knecht Tierney and Sarah Kate Mullins for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A375846) APPEAL from an order of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Reversed and remanded. Orrick, Herrington & Sutcliffe, James E. Thompson, Lauren M. Kessler, Adrienne Knecht Tierney and Sarah Kate Mullins for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Thirty-seven years ago, appellant Carlos Castro was charged along with three other men in the robbery-murder of Arturo Hernandez-Guerrero. In 1983, he pled guilty to second degree murder. In 2019, he filed a petition to vacate that conviction pursuant to Penal Code section 1170.95. The trial court found appellant made a prima facie case that he was entitled to relief, issued an order to show cause, and then, following a hearing which the court limited solely to argument by the prosecutor and defense counsel, denied the petition. The trial court found the record of conviction established appellant was a major participant in the robbery of the victim and knowingly engaged in criminal activities which he knew carried a great risk of death.
Further undesignated statutory references are to the Penal Code.
Defendant appeals from the trial court's order denying his petition, contending the People failed to offer any evidence at the hearing on the order to show cause. Alternatively, defendant contends 1) the trial court violated his due process rights by limiting the evidentiary hearing to oral argument; 2) if the trial court considered the documents submitted as part of the initial pleading process the trial court erred because key documents contained unreliable and inadmissible hearsay; and 3) even if all the evidence was properly admitted, it is insufficient to prove beyond a reasonable doubt that he was a major participant in the robbery who acted with reckless indifference to human life.
After briefing was complete in this matter, respondent filed a letter brief alerting us to the newly decided case of People v. Lopez (2020) 56 Cal.App.5th 936 (Lopez), which respondent explains "is relevant to the instant case, as it discusses the standard for eligibility under Penal Code section 1170.95, subdivision (d)(3)." Several of defendant's claims relate to the standard for proving eligibility for resentencing at the evidentiary hearing held pursuant to subdivisions (d)(3). We agree with the reasoning of Lopez, and remand this matter for a new hearing at which the trial court must act as an independent fact-finder to determine whether the prosecutor has established beyond a reasonable doubt that, under current law, defendant was a major participant in the robbery who acted with reckless disregard for human life.
The California Supreme Court granted review in Lopez on February 10, 2021, S265974.
BACKGROUND
The Legislature passed Senate Bill No. 1437 in 2018 to "amend the felony murder rule and the natural and probable consequences doctrine, . . . 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).) Senate Bill No. 1437 amended section 188 to require that a principal "shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The record in this case does not contain the complaint filed against defendant or a transcript of his plea. As we discuss in more detail below, the trial court stated that it was deciding defendant's petition on the basis of the record of conviction. It is not entirely clear what the trial court believed was included in the record of conviction as the trial court never named the specific evidence upon which it relied. However, the trial court's memorandum of decision suggests it considered at least the preliminary hearing transcript and defendant's pre-plea probation report. Accordingly, we set forth the facts as shown in those two documents.
Testimony at the preliminary hearing in this matter showed that the victim was shot and stabbed in the foyer of an apartment building on 9th Street in downtown Los Angeles. Two witnesses living nearby heard gunshots and looked out their windows to see either two or three men getting into a light colored sedan which was in front of the building with its engine running. The car drove away. One of the witnesses, Benadino Diaz, testified that one of the men was carrying a rifle and another man had something shiny in his hand. Diaz also testified that the car did not have a rear license plate.
Los Angeles Police Department Officer William Cymbalsky was on patrol with a partner in Hollywood when he noticed a brown four-door Chevette with no rear license plate. His partner pulled in the lane behind the car, and the officers noticed that the Chevette was lane straddling. Believing that the car might be stolen or its driver under the influence of alcohol, the officers activated their overhead lights. The Chevette sped away and the officers pursued. After the Chevette made a right turn, Officer Cymbalsky observed a rifle protruding from the left rear door, and someone in the car began firing the rifle at the officers.
As the pursuit continued, the rifle and a bandana, which appeared to contain objects, was thrown out of the car. At some point, the patrol car "t-boned" the Chevette. Defendant Frank Owen remained in the driver's seat and defendant Luis Gomez in the left rear passenger seat. The right front and right rear passengers exited the car and fled. The rear passenger, defendant Robert Ramos was caught almost immediately. Appellant, who was identified by Officer Cymbalsky as the front seat passenger, was later located by a K-9 unit.
The bandana was retrieved and found to contain three knives. The rifle, a .22 with a sawed-off barrel, was also recovered. The victim's wallet was found on the front seat of the Chevette.
Further details of the events surrounding the crimes are contained in defendant's pre-plea probation report. The probation officer summarized defendant's oral statement to her as follows: Defendant was in the Aliso Village neighborhood drinking with Ramos and Gomez when Owen came by in his car. "Gomez suggested that they go cruising to Hollywood. He does not know who got the gun and had it when they got in the car. He sat in the front with Owen. He and all the others have knives because it is 'dangerous' to be on the street. They drove looking for a store to buy beer when Gomez said 'Stop'. They saw a man walking. Gomez and Ramos got out of the car. Gomez had the gun, although he is not sure since he was wearing a trench coat. He did not know what they were going to do but then thought they would probably rob the man. Defendant 'wanted to see' and followed them. Ramos had the gun. Gomez had a knife and told victim to give him his money. Victim had gone in a hallway. Ramos opened the door and shot inside. Defendant heard the victim yell. Gomez came out 'real quick'. Owen came by in the car. Gomez had victim's wallet. Ramos had the gun. They all 'took off.' Defendant states that . . . he 'didn't do anything', he was 'messed up'[.]"
We quote this probation report with some reluctance. Although a probation report is an official record and presumed reliable, we note that there are some problematic aspects to the unauthenticated copy of the report offered by the prosecutor. On the page following page 8 of the report, in the middle of a sentence summarizing appellant's oral statement to the probation officer, the font of the report abruptly changes, and the lines of text in the new font are at a slight diagonal to the earlier text and are not lined up with the line numbers on the left-hand side of the page. Although the preceding pages are clearly numbered in the lower left hand side of the page, the page with the font change is not numbered, nor are the subsequent pages in the report (which are also in the new, changed font). The font-changing page ends with the non-sequitur: "His girl friend visits". At a minimum, this raises a question about whether this is a draft version of the report or a final copy. We leave this question to be resolved on remand if the People choose to offer the report again.
Considerably more documentation was presented to the court before it issued the order to show cause. In support of his petition, defendant submitted a declaration and accompanying letter from co-defendant Ramos in which Ramos stated he was the shooter, he left the car without announcing his attentions, and Castro reached him only after he had shot the victim. In its opposition, the People attached three documents which were part of the record of conviction: the preliminary hearing transcript, the autopsy report which was part of an exhibit offered at the preliminary hearing, and an undated but apparent pre-plea probation report for defendant. The People also attached five additional documents (Exhibits 4 through 8), all of which appear to be prepared by police personnel as part of their investigation of the crimes in this matter. In reply, Castro submitted a declaration giving his own account of events on the night of the crime, properly authenticated pre-plea probation reports for Ramos and co-defendant Owen, and a transcript of the 2015 parole hearing for co-defendant Gomez. Gomez testified at the parole hearing that he was the person who stabbed the victim. Other aspects of Gomez's testimony were less helpful to defendant, as the People later highlighted at the subdivision (d)(3) hearing.
The memorandum of points and authorities state that the exhibits "attached hereto" are "true and correct" copies of the documents. The record does not contain a declaration authenticating the documents. There is nothing to indicate Exhibits 4 through 8 were part of the court file in this matter.
On August 14, 2019, after briefing on the initial petition was complete, the trial court issued an order to show cause why defendant's petition should not be granted, and indicated its intent to hold a hearing pursuant to section 1170.95, subdivision (d)(1). The hearing was held on October 16, 2019.
The trial court began the hearing by asking the prosecutor if he would like to be heard. When the prosecutor began making a factual argument about the events in this matter, defense counsel objected that "these facts are not in the record. The documents—I believe most of the records that the District Attorney is relying on here, are impermissible hearsay. They don't have any reliability. This includes police reports and things like that." The court replied: "Your objection is noted for the record. I am going to deem this to be argument. I have gone through the pleadings. I will allow counsel to make his argument regarding the issue." The prosecutor then cited People v. Hall (2019) 39 Cal.App.5th 831 in support of admissibility. The court responded: "That is noted for the record. I would imagine I will be looking at that case." When it was defense counsel's turn to argue, he began by discussing the Hall case, contending that under Hall and evidentiary rules in general, the prosecutor's documents would not be admissible.
At the end of argument, the court simply stated that it would take the matter under submission and review the factual arguments and the cases cited by both counsel. Defense counsel stated: "One of the arguments I raised at the beginning is the evidentiary issues. Here we made an objection to the District Attorney's office relying on certain evidentiary issues. We also submitted declarations [and] a parole hearing transcript. I just wanted to know, since those things have not come into evidence, if I could put on the various witnesses live." The court replied: "Everything that counsel has submitted is part of the record for these purposes. That is all coming in. That is part of the things I will be considering in making my ruling."
On October 24, 2019, the trial court denied defendant's petition without ruling on any evidentiary issues. In the memorandum, the court referred to the "record of conviction" but not to any evidence proffered by appellant.
It is not clear whether the trial court viewed the police documents as part of the record of conviction and so considered them in ruling on the petition. There is nothing in the record on appeal to suggest that these documents were used in any prior court proceedings or were ever seen by the court or defense counsel in the original proceedings in this matter.
In denying the petition the trial court wrote a memorandum of decision: "The record of conviction in this case establishes that: 1) all of the participants including the petitioner were involved in, and executed a plan to rob the victim in this case; 2) the victim in this case was stabbed with a knife and the petitioner was armed with a knife at the time of the crime at issue in this case; 3) the petitioner was aware of the fact that other participants in the crimes in this case were armed, including the fact that at least one other participant who was armed with a firearm; and 4) the petitioner fled the scene of the crime, and additionally fled the getaway vehicle after being approached by police officers. Unlike the defendants in [People v. Banks] or [People v. Clark], the petitioner's conduct in this case demonstrated that he was not [simply] a planner or organizer of the robbery at issue in this case, who had no role in the immediate events leading up to the murder of the victim in this case. To the contrary, the record of conviction in this case established that the petitioner was a major participant in the robbery of the victim in this case, and that he knowingly engaged in criminal activities which he knew carried a grave risk of death. [People v. Estrada ] (1995) 11 Cal.4th 568."
DISCUSSION
Appellant's claims of error, as a whole, arise from the trial court's decision not to treat the hearing held after the order to show cause as an evidentiary hearing. Rather, the trial court limited the parties to arguing about the evidence proffered in their original briefing, completed before the trial court issued its OSC. Ultimately, the trial court expressly based its denial of the petition on the "record of conviction", indicating that it did not consider the evidence in the documents proffered by appellant in his pre-OSC briefing.
I. The People May Stand on the Record of Conviction
We agree with appellant that the People were required to establish beyond a reasonable doubt at the post-OSC evidentiary hearing that appellant was a major participant in the robbery and acted with reckless indifference to human life. (§ 1170.95, subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230-231, review granted Mar. 10, 2021, S266652 (Rodriguez).)
We do not agree that the People were required to introduce any evidence at all at the evidentiary hearing. Subdivision (d)(3) provides: "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (§ 1170.95, subd. (d)(3), italics added; People v. Drayton (2020) 47 Cal.App.5th 965, 981.) Here, the prosecutor properly relied on the record of conviction.
The prosecutor clearly offered police investigative documents to support its original opposition to the petition, but did not argue they were part of the record of conviction. Police reports "[do not] ordinarily form part of the record of conviction." (Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1523.) There is no reason to believe the trial court found the investigative reports in this case to be an exception to that rule. None of the facts which the court stated were established by the record of conviction are found in the investigative reports alone, and none of the facts found in the investigative reports alone are mentioned in the memorandum of decision.
To be clear, it is possible, if not likely, that mere reliance on the record of conviction will not be sufficient to establish beyond a reasonable doubt that the defendant was a major participant in the underlying felony who acted with reckless indifference to human life. That is an issue for the trial court to decide in light of all the evidence introduced at a post-OSC evidentiary hearing.
II. The Defense is Entitled to Offer New and Additional Evidence and to Challenge the People's Evidence
We agree with appellant that he had at least a statutory right to offer new and/or additional evidence at the subdivision (d)(3) hearing, and to have the trial court consider that evidence. (§ 1170.95, subd. (d)(3); People v. Anthony (2019) 32 Cal.App.5th 1102, 1153.) We agree that a defendant is not limited to presenting only the (new and additional) evidence which has been presented in pre-OSC briefing, which is what appears to have happened here. A defendant is entitled to present live witness testimony, documentary evidence, and reliable hearsay. (People v. Williams (2020) 57 Cal.App.5th 652, 661 (rev. den. Feb. 20, 2021) [The "rules of evidence governing a section 1170.95 subdivision (d)(3) hearing should be no different than those applied at other analogous postconviction resentencing proceedings."].) However, the trial court's limitation had no practical import, as the court's memorandum of decision indicates the trial court, in any event, did not consider the pre-OSC evidence at all.
III. The Trial Court's Did Not Act as Independent Fact-Finder at the Evidentiary Hearing
The trial court offered no explanation for its decision to limit the parties to oral argument on the evidence submitted in their pre-OSC briefing, or its subsequent failure to rule on the hearsay objections which it took under submission, or its refusal to consider the new and additional evidence concerning which it entertained oral argument. The memorandum of decision indicates the court did not understand that it was required to act as an independent factfinder and determine whether the prosecution had established beyond a reasonable doubt that petitioner was guilty of murder under the law as of January 1, 2019.
At the time the trial court decided this matter, there were no published opinions addressing the analysis to be undertaken by a trial court in connection with a section 1170.95, subdivision (d)(3) evidentiary hearing. The parties offered different perspectives on that standard. The People argued for the trial court to treat the petition as it would a section 1118.1 motion, that is, to undertake a substantial evidence review. The prosecutor stated: "In other words, if the People can prove that the petitioner could be convicted of first or second degree murder, that makes them ineligible and, therefore, the petition should be denied. [¶] I looked at this similar to [a section] 1118 motion in the People's case in chief. If the court finds there is insufficient evidence for a conviction in this case, at that point the court basically pulls the rug on the case, dismisses the charge or the entire case, and the jury never gets to hear the evidence. I equated this similar to [a section] 1118.1 motion when it comes to the analysis." (Italics added.) A section 1118 motion is analyzed using a standard similar to "the standard employed in reviewing the sufficiency of the evidence to support a conviction." (See People v. Houston (2012) 54 Cal.4th 1186, 1215.)
In his closing argument, the prosecutor stated: "At a minimum, Your Honor, the evidence in this case shows that he is a major participant and acted with reckless indifference. [¶] Again, from the People's perspective, it is not whether or not—the question is could he be convicted of first or second degree murder under current law? I think based on the evidence that has been presented to this court, he certainly could be convicted of first degree felony murder, robbery being the felony."
In written briefing, defense counsel contended: "To disqualify Mr. Castro from resentencing under the 'major participant' theory, the People must prove, beyond a reasonable doubt, both that Mr. Castro acted as a major participant in the robbery, and that he acted with reckless indifference to human life. They do neither." At oral argument, defense counsel repeatedly reminded the court that the People had the burden of proof.
Since the evidentiary hearing, we now have the benefit of various appellate opinions setting out the duties of the trial court after a section 1170.95, subdivision (d)(3) hearing. In People v. Duke (2020) 55 Cal.App.5th 113, review granted January 13, 2021, S265309, Division One of this District stated the prosecution need only prove "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 [under current law]. This is essentially identical to the substantial evidence standard, in which the reviewing court asks ' "whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt . . . ." ' " (Id. at p. 123.)
A different duty is dictated by Lopez, which held the plain language of section 1170.95 requires "the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law in order to establish ineligibility . . . ." (Lopez, supra. 56 Cal.App.5th at p. 942, rev. granted.) The court explained the substantial evidence standard is applied "by an appellate court on appeal of a judgment of conviction. It is not a standard of proof to be employed by a fact finder." (Id. at p. 950.)
Rodriguez reached the same conclusion. The court explained that the legislative goal of section 1170.95 is "best effectuated by resentencing . . . if the evidence, whether from the record of conviction alone or with new and additional evidence introduced at the subdivision (d)(3) hearing, fails to establish beyond a reasonable doubt [petitioners], in fact, acted during the crime with the now-required mental state. To deny resentencing simply because a jury could have found that they may have acted with express malice would frustrate the legislation's purpose." (Rodriguez, supra, 58 Cal.App.5th at p. 240, rev. granted.) The court further noted that "beyond a reasonable doubt" is the standard of proof considered by the independent factfinder in a criminal trial. (Id. at p. 242)
The Rodriguez court also noted that, just two months before the introduction of Senate Bill No. 1437, the California Supreme Court held a prosecutor must prove beyond a reasonable doubt a petitioner is ineligible for resentencing under Proposition 36, the Three Strikes Reform Act of 2012. (See People v. Frierson (2017) 4 Cal.5th 225, 236.) In light of this context, the Rodriguez court found it unlikely the Legislature would have used "beyond a reasonable doubt" language in Senate Bill No. 1437 had it "intended only an appellate-type review of the sufficiency of the evidence of the petitioner's guilt on a still-viable theory, rather than requiring the prosecutor to actually establish the petitioner's guilt under the newly amended statutes." (Rodriguez, supra, 58 Cal.App.5th at p. 242, rev. granted.)
We find the reasoning in Lopez and Rodriguez persuasive and agree with their conclusions that a trial court must act as an independent factfinder and determine whether the prosecution has established beyond a reasonable doubt the petitioner is guilty of murder under the law as of January 1, 2019. Our conclusion is also consistent with the Supreme Court's recent decision in People v. Gentile (2020) 10 Cal.5th 830, in which the high court explained "section 1170.95 requires the superior court to determine on an individualized basis, after considering any new or additional evidence offered by the parties, whether the defendant is entitled to relief." (Id. at p. 855.)
The trial court never expressly discussed its role in evaluating the petition following a subdivision (d)(3) hearing. In its memorandum of decision denying the petition, as set out above, the court simply summarized the facts it gleaned from the record of conviction and then concluded: "[T]he record of conviction in this case established that the petitioner was a major participant in the robbery of the victim in this case, and that he knowingly engaged in criminal activities which he knew carried a grave risk of death."
The trial court's statement is ambiguous, but suggests it did not act as an independent fact-finder to determine whether the People had established beyond a reasonable doubt that defendant was a major participant in the robbery who acted with reckless disregard for human life. The trial court twice states that it is relying on the record of conviction, and twice uses the verb "establish" without the modifier "beyond a reasonable doubt." The court does not appear to have looked beyond the record of conviction to consider any of the new or additional evidence offered by the defense as it would have done if it were ruling as an independent fact-finder. The court's narrow reference to the record of conviction suggests that the court adopted the prosecutor's argument that the petition should be treated like a section 1118.1 motion, and that the petition should be denied if the prosecutor's evidence "could" result in a murder conviction under current law.
Without wading into issues which need not be decided on this appeal, we note that appellant submitted a declaration providing a substantially different account of the crimes than the account attributed to him in the probation report. Appellant was present in the courtroom and could have testified if the trial court found his declaration to be inadmissible hearsay. Thus, the trial court's failure to look beyond the record of conviction cannot be attributed to a lack of any evidence beyond that record.
Because, as we have just explained, the trial court did not clearly act as an independent fact-finder and did not afford appellant the opportunity to present new and/or additional evidence or to obtain rulings on its challenges to the evidence that was presented, we remand this matter to the court to conduct a new section 1170.95, subdivision (d)(3) hearing under the standard set forth in this opinion. In light of this remand, we need not and do not reach any remaining claims on appeal.
DISPOSITION
The trial court's order denying defendant's section 1170.95 petition is reversed and this matter is remanded for a new hearing pursuant to subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.