Opinion
H049769
11-17-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CAMPBELL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 75162)
LIE, J.
Defendant Richard Campbell filed a petition for resentencing pursuant to former Penal Code section 1170.95 (now section 1172.6), seeking vacatur of his conviction by guilty plea to the second degree murder of Kathlene Shea. The trial court denied the petition.
Unspecified statutory references are to the Penal Code.
We use the spelling of Shea's name as it appears in the complaint, but we note instances in the record where Shea's given name is instead spelled "Kathleen."
We conclude that the evidence is insufficient to support the trial court's determination that Campbell could be convicted of murder under recent amendments to sections 188 or 189: the sparse record does not establish that Shea was killed in the perpetration of a qualifying predicate felony (robbery) or that Campbell was the "actual killer" or acted with a reckless indifference to human life. Accordingly, we reverse and remand with directions to grant the petition.
I. BACKGROUND
In 1980, the Santa Clara County District Attorney filed a complaint charging Campbell and a co-defendant, Vernon Steele, with four counts of robbery and one count of murder. Each robbery count named a different victim, one of whom was Shea, the named victim in the murder count as well. Early in the proceedings, Campbell pleaded guilty to the second degree murder of Shea prior to any preliminary examination, and the district attorney dismissed the four robbery counts. Later that year, the trial court sentenced Campbell to prison for an indeterminate term of 15 years to life.
Steele was also charged in the same complaint with an additional robbery against a fifth victim, but the charge was amended by interlineation to allege a violation of sections 484-487.2. Steele appears to have pleaded guilty to all counts other than the murder of Shea.
Effective January 1, 2019, "Senate Bill 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.' [Citations.] Penal Code section 189, as amended, now limits liability under a felony-murder theory principally to 'actual killer[s]' [citation] and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree' [citation]. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life ...." (People v. Strong (2022) 13 Cal.5th 698, 707-708.)
Under current law, "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts." (§ 1172.6, subd. (a).) Upon a petitioner's prima facie showing of entitlement to relief, the prosecution has the burden to establish, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under a legally valid theory. (§ 1172.6, subd. (d)(3).) "If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3).)
Accordingly, in 2019, Campbell petitioned for resentencing: the district attorney received Campbell's petition in February of that year, but the petition was not filed with the court until February 2021 (the reason for this delay is not apparent from the record). Campbell filed an amended petition in June 2021. The court appointed counsel and issued an order to show cause why the petition should not be granted.
At the evidentiary hearing on the order to show cause, the court noted that the evidence before it was "so very limited," a consequence of both Campbell's early plea and the intervening time, during which certain documents (the reporter's transcript of Campbell's guilty plea and police reports) had been lost. The evidence before the court consisted of the complaint, a minute order showing Campbell's plea to second degree murder, the reporter's transcript of Campbell's sentencing hearing, the medical examiner's report of his autopsy of Shea, and the probation report. According to the autopsy report, the cause of Shea's death eight days after the charged offense was bilateral pulmonary emboli, which resulted from thrombophlebitis of the left popliteal veins, which in turn was due to a fractured left clavicle. Campbell did not address the court at his sentencing hearing. According to the probation report, Campbell declined to speak about the instant offense in the presentence interview, because he intended to move to withdraw his plea; nonetheless, the report further indicates that Campbell "doubted if [Shea] actually died from his knocking her to the ground, stating 'who knows if she was injured later.'" Also according to the report, Campbell "admit[ted] to committing several purse snatches in the Palo Alto area during the time in question."
As the trial court observed prior to the evidentiary hearing, however, Campbell's petition supplied no reason to dispute "that [Shea] died during the commission or attempt to commit either a felony for which Mr. Campbell was a participant or as a result -- or the natural and probable consequences of a crime that Mr. Campbell aided and abetted."
The trial court concluded that Campbell "could be convicted of murder today under the law as it exists"-finding that Shea was killed in Campbell's perpetration of a robbery, but rejecting the prosecution's alternative theory that Campbell killed Shea with express or implied malice-and therefore denied the petition. Specifically, the court held: "In a situation where the defendant has admitted that he used force upon that victim, I believe that that proves beyond a reasonable doubt that he was the actual killer, for purposes of current murder liability[,] who killed another human being in the commission of or attempt to commit a felony robbery, to wit, robbery. Therefore, I am going to deny the petition."
Campbell timely appealed.
II. DISCUSSION
Section 189, subdivision (a) provides that a murder that is "committed in the perpetration of . . . robbery . . . is murder of the first degree." Subdivision (e) of section 189 further specifies that "[a] participant in the perpetration . . . of a [robbery] in which a death occurs is liable for murder only if"-as pertinent here-"[t]he person was the actual killer" or "a major participant in the [robbery] and acted with reckless indifference to human life." Campbell argues that the prosecution did not meet its burden to prove beyond a reasonable doubt that he was convicted under a legally valid theory of felony murder, because he could have been convicted under the now-invalid theory that he participated in a felonious assault (§ 245, subd. (a)(4)), the natural and probable consequences of which was death. The Attorney General, however, characterizes the evidence as establishing that, "[i]n 1979, appellant knocked 64-year-old Kathleen Shea to the ground during a purse-snatching robbery. Shea suffered a fracture to her left clavicle [as a result] and died a week later from a pulmonary embolism that developed from the shoulder injury." Although we have no reason to question the facial plausibility of the prosecution's theory of robbery-murder liability, the competent evidence necessary to support that theory is absent from the record.
We therefore conclude that the trial court's finding that Campbell was guilty under a valid theory of felony murder was unsupported by substantial evidence.
A. Standard of Review
On review of the denial of a petition for resentencing, we review the trial court's factual findings for substantial evidence and the court's application of the law to those facts de novo. (People v. Wilson (2023) 90 Cal.App.5th 903, 916.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" '" the trier of fact's determination. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) We review the evidence "in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) But our review of the sufficiency of the evidence is necessarily informed by the standard of proof governing the trier of fact's determination. (Cf. Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000.) Accordingly, "[t]o assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt." (Zamudio, supra, 43 Cal.4th at p. 357, citing People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial evidence must be reasonable, credible, and of solid value. (Ibid.)
Although" 'a defendant challenging the sufficiency of the evidence to support her conviction "bears a heavy burden" [citation]'" (People v. Powell (2011) 194 Cal.App.4th 1268, 1287), a combination of circumstances here severely curtailed the record evidence that Campbell shared Steele's intent to rob Shea or that he was the actual killer.
B. Campbell's Conviction
Reliant on Campbell's statement to the probation officer in the course of the presentence investigation, the Attorney General claims "evidence against [Campbell] consisted in part of his own statements to [the probation officer] wherein [Campbell] acknowledged his participation in the robbery." We discern no such acknowledgement in the record. Thus, a conclusion that Campbell was involved in Shea's robbery, or that Shea's injury was incurred during the commission of a robbery involving Campbell, would be based not on inference but on speculation. (People v. Waidla (2000) 22 Cal.4th 690, 735 [" 'speculation is not evidence, less still substantial evidence' "].)
1. Robbery
The felony-murder rule applies only if death occurs during the perpetration of certain enumerated felonies, such as a robbery. (§ 189, subds. (a) &(e).) Thus, for the felony-murder rule to apply, it was the prosecution's burden to prove as a threshold matter that Shea's death occurred during the perpetration of a robbery. (See § 1172.6, subd. (d)(3) [prosecution bears burden of proof at evidentiary hearing].) At the outset, we observe that the Attorney General cannot rely on a dismissed count of a complaint to establish Campbell committed a robbery, and the Attorney General presents no competent evidence of Campbell's participation in a robbery of Shea. And given the absence of a trial record or a record of the plea colloquy, there was no admissible evidence before the trial court beyond the bare record of conviction, Campbell's statement to the probation officer, and the autopsy report. None of these provide substantial evidence to support a determination beyond a reasonable doubt that Campbell's admitted assault on Shea was in the perpetration of a robbery.
First, we conclude that the record of conviction contains no substantial evidence that Shea's death was the result of a robbery or that Campbell was involved in Shea's robbery. The Attorney General argues that the complaint-even its dismissed counts-is part of the record of conviction that may establish the factual basis of Campbell's conviction, citing People v. Gonzales (2005) 131 Cal.App.4th 767, 773. Not so. It is true that "[t]he 'record of conviction' includes the charging document and court records," but this is only insofar as these records "reflect[] [a] defendant's admission, no contest plea, or guilty plea." (Id. at p. 773.) In identifying what facts may properly be derived from the fact of a conviction, however, the California Supreme Court has recognized- following Shepard v. U.S. (2005) 544 U.S. 13 and Descamps v. U.S. (2013) 570 U.S. 254-that the Sixth Amendment prohibits courts from "add[ing] extra punishment based on factfinding that goes 'beyond merely identifying a prior conviction' by 'try[ing] to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.'" (People v. Gallardo (2017) 4 Cal.5th 120, 135, italics added.) It held that the court's role is "limited to identifying those facts that . . . the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136, fn. omitted.)
The district attorney charged Campbell with five counts, of which two related to Shea: murder (count 2) and robbery (count 3). Under the terms of the plea agreement, Campbell pleaded guilty only to count 2; all robbery counts were dismissed as to Campbell; and although "[m]urder committed 'in the perpetration of . . . robbery (or) burglary . . . is murder of the first degree" (see People v. Avalos (1979) 98 Cal.App.3d 701, 718; § 189, subd. (a)), the parties agree that Campbell's plea to section 187 was to second degree murder. We are unable to fathom any principled basis to deviate from well-established federal constitutional authority by imputing to Campbell an admission to any count dismissed in consideration of his plea.
Of course, in a section 1172.6 evidentiary hearing, the court is not limited to the record of conviction (or, where available, evidence admitted at any prior hearing or trial): subject to the Evidence Code, "[t]he prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (§ 1172.6, subd. (d)(3).) We therefore address the significance of Campbell's statement to the probation officer in the presentence investigation.
"[A] defendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted.'" (People v. Trujillo (2006) 40 Cal.4th 165, 179 (Trujillo).) From Trujillo, Campbell argues that the prosecution may not rely upon his post-plea statements in a hearing under section 1172.6, subdivision (d)(3). The Attorney General argues that the trial court's admission of Campbell's statements from the presentence interview was squarely authorized by Evidence Code section 1220 and People v. Sledge (2017) 7 Cal.App.5th 1089, because "there [was] a substantial basis for believing the hearsay information [was] reliable." (Id. at p. 1095.) We need not resolve the parties' disagreement as to whether the trial court properly admitted the probation report into evidence. Even assuming the trial court permissibly considered statements the probation report attributed to Campbell, at no point did Campbell acknowledge participation in a robbery of Shea. Although he admitted knocking Shea to the ground, he did not admit robbing her or taking anything from her, or intending to rob or to assist Steele in robbing her, nor did he admit any nexus between his action and any action by Steele. And Evidence Code section 1101, subdivision (a) prevents reliance on Campbell's commission of other robberies to establish that he likewise participated in a robbery of Shea.
We observe that a probation report is "not part of the record of conviction." (People v. Burnes (2015) 242 Cal.App.4th 1452, 1459.)
Campbell "advised he did not wish to discuss the instant offense" but disputed in the interview that his knocking Shea to the ground caused her death. Although Campbell objected in the trial court to the admission of his statements to the probation officer, he made no assertion that it was improperly obtained.
One can of course gather from the original charges against Campbell, and the original election to charge Campbell and Steele together, that the district attorney's opinion in 1979, as now, was that Campbell and Steele shared the intent to rob Shea; one can also surmise that the district attorney's opinion had in 1979 been supported by ample evidence not in this record. But "[a] reasonable inference may not be based solely upon suspicion, imagination, speculation, supposition, surmise, conjecture, or guesswork." (People v. Wright (2016) 4 Cal.App.5th 537, 546.) The limited evidence in the record is insufficient to support a conclusion beyond a reasonable doubt that Campbell robbed Shea (or shared Steele's intent to do so), such that robbery could therefore serve as the predicate felony to support a felony-murder conviction under current law.
2. Actual Killer
Even if we were to conclude the record sufficiently contained evidence of Campbell's participation in a robbery, that would not be enough by itself to subject him to liability for murder. As is relevant here, section 189 provides that "[a] participant in the perpetration or attempted perpetration of a [robbery] in which a death occurs is liable for murder only if . . . [t]he person was the actual killer." (§ 189, subd. (e)(1).) Here again, the paucity of record evidence prevented the prosecution from carrying its burden: just as the record of conviction by plea is less illuminating than the record of conviction following a trial, the record where the plea is entered prior to preliminary hearing necessarily supplies even less "evidence previously admitted at any prior hearing" for the trial court's consideration under section 1172.6, subdivision (d)(3).
The autopsy report attributes Shea's death to an embolism caused by thrombophlebitis secondary to a fractured clavicle, but has no information regarding how (or by whom) the clavicle injury was inflicted, beyond the conclusion that Shea's death was a homicide. Campbell relies upon People v. Lopez (2022) 78 Cal.App.5th 1, 4 (Lopez), where the court "conclude[d] the term 'actual killer' as used in the revised felony-murder rule of section 189, subdivision (e)(1) refers to someone who personally killed the victim and is not necessarily the same as a person who 'caused' the victim's death." Lopez in part relied on People v. Garcia (2020) 46 Cal.App.5th 123, 152. In Garcia, the court concluded that "[t]he actual killer is the person who personally kills the victim," albeit in the context of section 190.2, which concerns the death penalty and life imprisonment without parole. As did the court in Lopez, we find no reason to distinguish between the definition of "actual killer" for purposes of the two statutes. (Lopez, supra, 78 Cal.App.5th at p. 19.)
Therefore, "the term 'actual killer' means someone who personally killed the victim, not someone who merely commits an act that is a proximate cause of the victim's death." (People v. Vang (2022) 82 Cal.App.5th 64, 91; see also People v. Garcia, supra, 46 Cal.App.5th at pp. 149-155 [distinguishing one who only proximately causes death from an "actual killer"].) Evidence the defendant committed "an act that caused the death of another person" is insufficient. (People v. Garcia, supra, 46 Cal.App.5th at p. 155.) Under the felony-murder rule, there must be "proof beyond a reasonable doubt that the felony and murder were part of one continuous transaction." (People v. Wilkins (2013) 56 Cal.4th 333, 340; see also People v. Cavitt (2004) 33 Cal.4th 187, 193 ["the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death"].)
Here, the lack of competent evidence as to the total number of perpetrators and their respective roles in the presumed robbery of Shea forecloses a determination beyond a reasonable doubt that it was Campbell's act of knocking Shea to the ground that caused the fractured clavicle, the ensuing thrombophlebitis, and ultimately the fatal embolism. And assuming Steele was the only other participant, the record would nonetheless not permit the exclusion of Steele as the perpetrator who inflicted the clavicle injury. The extremely limited record evidence is insufficient to establish what we can only surmise the district attorney might have established at trial in 1979. Even "[a] finding that there is substantial evidence to support a conviction for murder" under current law would be "insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3).)
The Attorney General argues that, even if we were to define "actual killer" as the person who personally killed the victim, reversal is not required because the evidence shows Campbell committed physical acts against Shea that directly contributed to her death. In the trial court, the prosecution argued: "[T]he nature of the injury to this victim which the coroner used to determine cause of death and manner of death, and the coroner determined the manner of death was homicide, this clavicle injury suggests to us the force with which the defendant acted." The fallacy of this argument is that it assumes the truth of its own conclusion-that Campbell was the only actor who used force on Shea- in an effort to show that Campbell was the actual killer.
Assuming the admissibility of Campbell's statement to the probation officer, the statement establishes no more than that Campbell pushed Shea. It does not, however, constitute "evidence that is reasonable, credible, and of solid value" (People v. Jackson (2014) 58 Cal.4th 724, 749) from which the trial court could have concluded that it was Campbell's push-as opposed to some action by Steele or an unidentified third participant-that directly caused Shea to break her clavicle. The only potential evidence in the record regarding any physical contact between Campbell and Shea is the statement attributed to Campbell-that "he doubted if the victim actually died from his knocking her to the ground." To the extent this statement can be considered an admission by Campbell that he pushed Shea, it does not establish that the push resulted in Campbell's broken clavicle.
Even assuming the trial court could consider the summary of Campbell's statements in the probation report as an admission that Campbell knocked down Shea, the statements fall well short of establishing that it was this act that caused Shea's death, as opposed to the act of another perpetrator. Although the trial court could reasonably infer from Campbell's admission that Shea may have suffered some type of injury from Campbell having knocked her down, the evidence is too sparse and the causal chain too attenuated to establish Campbell personally inflicted the fatal injury or was more than the proximate cause of Shea's death: it provides no facts on which the trial court could rule out someone other than Campbell as the perpetrator who caused the particular injury that in turn produced thrombophlebitis and the fatal emboli. We acknowledge that Steele's plea to lesser offenses suggests that the prosecution was persuaded that, at least as between these two, it was Campbell who was the more culpable. But the supposition about the reasons for the prosecution's settlement position is not a substitute for competent evidence of what every participant actually did and intended vis-a-vis Shea.
The Attorney General cites People v. Garcia (2022) 82 Cal.App.5th 956 (Garcia) to support its contention that Campbell was the "actual killer." In Garcia, the defendant "physically assaulted and stole money from an 82-year-old man, who died about an hour later from lethal cardiac arrhythmia, i.e., irregular beating of the heart." (Id. at p. 959.) The appellate court affirmed the denial of the defendant's petition for resentencing, rejecting the argument that there is no" 'actual killer'" "when death results from a preexisting medical condition aggravated by the stress of the underlying felony." (Id. at pp. 966-967.) But Garcia does not aid the attorney general, because there, "the record of conviction demonstrated that defendant, acting alone, committed the acts against [the victim] that directly contributed to [the victim's] lethal cardiac arrhythmia." (Id. at p. 970.)
3. Major Participant with Reckless Indifference to Life
Under section 189, a defendant can also be found liable for murder if "[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3).) Although this was not the prosecution theory in the trial court, the Attorney General argues that substantial evidence demonstrates defendant's liability in this manner.
We observe that the trial court rejected implied malice as a theory in the case. Bearing some similarities to the "reckless indifference to human life" theory, "[m]alice is implied when the killing is proximately caused by' "an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." '" (People v. Knoller (2007) 41 Cal.4th 139, 143.)
"Reckless indifference to human life 'requires the defendant be "subjectively aware that his or her participation in the felony involved a grave risk of death." '" (People v. Banks (2015) 61 Cal.4th 788, 807.) "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a "grave risk of death" satisfies the constitutional minimum." (Id. at p. 808.) For example, "[a]lthough 'there are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life,' such as' "the manufacture and planting of a live bomb,"' armed robbery is not among them." (People v. Guiffreda (2023) 87 Cal.App.5th 112, 124.) The record supplies no evidence of any armed crime or of any awareness Campbell may have had that his actions created a foreseeable risk of death. There is no evidence in the record that could lead to the conclusion that Campbell would be liable for murder based on section 189, subdivision (e)(3).
III. DISPOSITION
The trial court's order denying Campbell's Penal Code section 1172.6 petition is reversed and remanded with directions to grant the petition, vacate the murder conviction, and resentence Campbell pursuant to Penal Code section 1172.6, subdivision (e).
I CONCUR: GREENWOOD, P.J.
BAMATTRE-MANOUKIAN, J., Concurring.
I agree the trial court erred in denying defendant's Penal Code section 1172.6 petition. The trial court concluded beyond a reasonable doubt that defendant was ineligible for relief under section 1172.6 because the prosecution proved "beyond a reasonable doubt that [defendant] was the actual killer, for purposes of current murder liability[,] who killed another human being in the commission of or attempt to commit a felony robbery, to wit, robbery." In reaching this conclusion, the trial court relied on defendant's statement in a presentencing report that he doubted the victim actually died from his knocking her to the ground, concluding that "the evidence of [defendant's] statement, that he shoved the victim or laid hands on the victim, establishes that he was the actual killer in combination with the evidence that was presented from the autopsy and the medical examiner describing the victim named in the charging document as having been the victim of a homicide in a matter in which the defendant had previously suffered a legitimate conviction for murder." The trial court admitted defendant's statements because it found the statements admissible under the Evidence Code, concluding: "I would say in terms of reliability and trustworthiness the fact that it is a statement attributed to an opposing party, a party who has the opportunity to testify and rebut anything within it if he chooses, creates sufficient trustworthiness and reliability and overcomes traditional hearsay rules to allow the Court to consider the statement attributed to [defendant] for whatever weight it may be entitled to regarding the facts that are pertinent to this resentencing hearing." However, defendant was not present at the five sessions of the evidentiary hearing, and the record does not support that defendant voluntarily, knowingly, and intelligently waived his right to be personally present. Because defendant had a constitutional and statutory right to be present, because defendant was deprived of his right to be present, and because this error was not harmless, I would reverse and remand this matter to the trial court to conduct a new evidentiary hearing. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Basler (2022) 80 Cal.App.5th 46, 59 (Basler); People v. Quan (2023) 96 Cal.App.5th 524, 536 (Quan).)
All further unspecified statutory references are to the Penal Code.
I. Background
Defendant was charged by complaint in January 1980 with murder and four counts of robbery. (§§ 187, 211.) The murder count alleged defendant killed Kathlene Shea on or about December 31, 1979, and one of the robbery counts alleged defendant robbed Shea on or about that same day. The complaint also charged Vernon Steele with the same offenses, plus one additional count of robbery. All the robberies by defendant were alleged to have taken place on or about December 31, 1979, except for one count alleging a robbery two days later. Defendant pleaded guilty to the second degree murder of Shea pursuant to a plea agreement and waived his right to a preliminary hearing. In accordance with this agreement, the prosecutor dismissed the four robbery counts against defendant.
Defendant filed a petition for resentencing under section 1172.6 in February 2021. Defendant declared under penalty of perjury in his petition that the following statements were true: (1) "A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine"; (2) "I pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine"; and (3) "I could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
The trial court issued an order to show cause and conducted an evidentiary hearing that took place over five days from August to November 2021. At the first hearing, a transcript was not provided but a minute order notes defendant was not present and his appearance was waived. At the second hearing, defense counsel stated defendant was "not present" and asked that "the Court and counsel waive his presence for the purposes of today's hearing." The trial court replied, "Mr. Campbell's presence will be waived for purposes of today's proceedings." At the third hearing, defense counsel stated, "I'd waive his presence for purposes of today's hearing," and the trial court replied, "[s]o waived." At the fourth hearing, defense counsel similarly stated that defendant was not present. Counsel asked "the court to waive his appearance for purposes of this hearing," and the trial court again replied, "[s]o waived." At the final hearing, defense counsel stated defendant "is not present, but I would ask the Court to excuse his and waive his appearance for purposes of today's hearing, pursuant to [Emergency Rule] 5." The trial court replied: "Yes, I will." Defense counsel did not state at any of the hearings whether he advised defendant of his right to be present or whether defendant consented to waive his presence at the proceedings.
The facts before the trial court concerning defendant's criminal conduct were limited, for several reasons. Defendant pleaded guilty and waived his right to a preliminary hearing. The transcript of the hearing at which defendant entered his guilty plea could not be located. Police reports relevant to this matter were located, but the prosecutor could not determine which records were provided to the trial court in defendant's original case; therefore, the prosecutor did not seek to introduce any police reports as evidence in the hearing on defendant's petition.
The trial court did receive some documents contained in defendant's record of conviction. The complaint outlined the charges against defendant and Steele. A minute order stated defendant pleaded guilty to second degree murder, but it did not specify what the factual basis for the plea was. A transcript of defendant's sentencing hearing was also presented. The sentencing hearing transcript demonstrated Steele pleaded guilty to the robbery counts and the prosecutor dismissed the murder count against him. The sentencing hearing transcript also demonstrated that defendant pleaded guilty to the second degree murder of Shea pursuant to a plea agreement, that defense counsel asserted defendant's actions took place in "one course of conduct," and that the prosecutor dismissed the robbery counts against defendant.
The trial court also received the report of an autopsy of Shea that took place on January 8, 1980, eight days after the charged murder and robberies on December 31, 1979. The report documented that Shea appeared to be her stated age of 64 years old, and that she had contusions on her left shoulder and elbow, along with a fracture of her left shoulder extending completely through the left clavicle with a hemorrhage overlying the structure and additional hemorrhages. The autopsy report also observed "thromboemboli in the smaller branches of the left popliteal vein." The autopsy report listed Shea's cause of death as "Bilateral pulmonary emboli," due to: (1) "Thrombophlebitis, left popliteal veins"; due to (2) "Contusion of left shoulder with fracture of clavicle." The autopsy report classified the manner of the death as homicide.
The trial court also received a portion of a presentencing report summarizing statements defendant made to a probation officer before he was sentenced. Following argument, the trial court determined this portion of the presentencing report was admissible in these proceedings. The trial court ruled that defendant's statements to the probation officer were admissible as a statement of a party under Evidence Code section 1220, while the probation officer's relaying of defendant's statements qualified as an official record under Evidence Code section 1280. The trial court stated: "I believe that the People's argument regarding hearsay satisf[ies] any hearsay concerns in that the statement attributed to [defendant] is a statement by a party under the Evidence Code if that were to apply at this hearing, but at least I would say in terms of reliability and trustworthiness the fact that it is a statement attributed to an opposing party, a party who has the opportunity to testify and rebut anything within it if he chooses, creates sufficient trustworthiness and reliability and overcomes traditional hearsay rules to allow the Court to consider the statement attributed to [defendant] for whatever weight it may be entitled to regarding the facts that are pertinent to this resentencing hearing."
In this report, defendant stated that he "did not want to discuss the instant offense" and that he intended to withdraw his plea. The report then stated, "defendant did admit to committing several purse snatches in the Palo Alto area during the time in question." The report contained a statement from the probation officer that defendant "does not feel he killed Mrs. Shea and further does not feel the charge against him should be Second Degree Murder." The report also stated the following: "Further, the defendant indicated he doubted if the victim actually died from his knocking her to the ground, stating 'who knows if she was injured later.'" One of the probation officers who signed this report testified that he did not remember defendant's case, but that most of this section of the report represented paraphrases of defendant's statements to the probation officer, except for the "who knows if she was injured later" statement, which was a direct quote from defendant.
After considering this evidence and arguments from the parties, the trial court denied defendant's petition. The trial court acknowledged that it found this matter "particularly challenging" because the evidence was "so very limited." However, the trial court concluded beyond a reasonable doubt that defendant was still guilty of murder under section 189, subdivision (e)(1) because defendant participated in a robbery and was the actual killer of Shea. The trial court determined that Shea "was killed in the course of or in the attempt to commit a robbery. I cannot see of any other way that the original murder conviction could have existed if there was not the minimum element of causation established." The trial court then stated: "I believe that the evidence of [defendant's] statement, that he shoved the victim or laid hands on the victim, establishes that he was the actual killer in combination with the evidence that was presented from the autopsy and the medical examiner describing the victim named in the charging document as having been the victim of a homicide in a matter in which the defendant had previously suffered a legitimate conviction for murder. In a situation where the defendant has admitted that he used force upon that victim, I believe that that proves beyond a reasonable doubt that he was the actual killer, for purposes of current murder liability who killed another human being in the commission of or attempt to commit a felony robbery, to wit, robbery. Therefore, I am going to deny the petition."
At the hearing, the prosecutor also asserted that defendant could be guilty of murder not as Shea's actual killer in a felony murder, but based on defendant's own actions under an implied malice theory. The trial court did not base its denial of defendant's petition on this theory, and it said it was "not persuaded" by this argument. The Attorney General does not challenge this aspect of the trial court's decision.
II. Analysis
"A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043. [Citations.]" (People v. Concepcion (2008) 45 Cal.4th 77, 81.) This constitutional right to personal presence at trial extends to "all critical stages of the criminal prosecution, i.e., 'all stages of the trial where [the defendant's] absence might frustrate the fairness of the proceedings' [citation], or 'whenever [the defendant's] presence has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge.' [Citation.]" (People v. Rodriguez (1998) 17 Cal.4th 253, 260, superseded by statute on other grounds as stated in People v. Luna (2003) 113 Cal.App.4th 395, 397.) "Sentencing is considered to be one such critical stage [citations], and, because the trial court has discretion to reconsider the entire sentence on remand, resentencing is another critical stage. [Citations.]" (People v. Cutting (2019) 42 Cal.App.5th 344, 348.) Thus, the right to be personally present also extends to section 1172.6 evidentiary hearings because such proceedings are a type of resentencing proceedings. (Quan, supra, 96 Cal.App.5th at p. 532; Basler, supra, 80 Cal.App.5th at p. 58.) "A defendant may waive her [or his] constitutional rights to be present for sentencing 'as long as [her or his] waiver is voluntary, knowing and intelligent.' [Citation.]" (People v. Nieves (2021) 11 Cal.5th 404, 508.) Where a defendant was not present at a section 1172.6 evidentiary hearing and the defendant did not validly waive the right to be present, the reviewing court must determine "whether his [or her] absence was harmless beyond a reasonable doubt." (Basler, supra, at p. 59, citing Chapman, supra, 386 U.S. at p. 24.)
Defendant was not physically present for the five days of the evidentiary hearing, and the record does not demonstrate that he voluntarily, knowingly, and intelligently waived his right to be present. Defense counsel asked the trial court to waive defendant's presence, but defense counsel did not state that he had discussed the right to be present with defendant and that defendant consented to his absence. The baseline requirement for a valid waiver of the right to be present is" 'some evidence that the defendant understood the right he [or she] was waiving and the consequences of doing so.' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 899.) No such evidence was introduced here, and thus the record does not support that defendant waived his constitutional and statutory right to be present at the evidentiary hearing.
The Attorney General notes that at the time of defendant's evidentiary hearing, the Judicial Council had issued emergency rule 5 in response to the COVID-19 pandemic, which provided additional authority for a court to accept a defendant's waiver of his or her appearance at proceedings. (California Rules of Court, Appendix I, emergency rule 5, effective Apr. 6, 2020.) While defense counsel did cite this rule in discussing defendant's absence from one of the evidentiary hearing sessions, the requirements for the emergency rule do not appear to have been met, in part because defense counsel did not represent that he fully discussed the waiver and its implications with defendant.
Defendant's absence from the evidentiary hearing was not harmless under the Chapman standard. The trial court's ruling admitting the statements attributed to defendant in the presentencing report was specifically based on defendant having the opportunity to testify and rebut the probation officer's largely paraphrased summary of defendant's statements. The trial court stated that it considered the report reliable and trustworthy because "it is a statement attributed to an opposing party, a party who has the opportunity to testify and rebut anything within it if he chooses ...." Defendant's absence deprived him of the ability to testify and rebut the statements attributed to him in the presentencing report, if he chose to do so. In addition, defendants are guaranteed the right to be present at critical stages of criminal proceedings for other reasons besides presenting evidence, such as consulting with their attorneys and assisting in their defense. (Basler, supra, 80 Cal.App.5th at p. 60.) Given the passage of time that occurred between defendant's conviction and his evidentiary hearing, defendant was particularly situated to understand what occurred in his case and to provide perspective to his counsel. Because defendant did not have the opportunity to testify and rebut the statements in the presentencing report, because the trial court relied on defendant's statements in the presentencing report in concluding that defendant was Shea's actual killer, and because defendant did not have the opportunity to assist in his defense, defendant's absence from the evidentiary hearing was not harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
In Quan, the defendant - like defendant here - challenged the trial court's denial of his section 1172.6 petition on several bases, arguing that the trial court erred in determining he was guilty of murder under amended murder law. (Quan, supra, 96 Cal.App.5th at p. 526.) The Court of Appeal determined that it did not need to address these issues, instead concluding that the defendant's right to be personally present at the section 1172.6 evidentiary hearing was violated and the error was not harmless beyond a reasonable doubt. (Quan, supra, at p. 527.) Thus, the reviewing court reversed the trial court's order denying defendant's petition and remanded for a new evidentiary hearing. (Ibid.)
As in Quan, remand for a new evidentiary hearing is appropriate here based on defendant's absence from the five-day evidentiary hearing without a voluntary, knowing, and intelligent waiver. The trial court admitted defendant's statements in the presentencing report in defendant's absence and relied on them to determine the prosecution proved "beyond a reasonable doubt that [defendant] was the actual killer, for purposes of current murder liability[,] who killed another human being in the commission of or attempt to commit a felony robbery, to wit, robbery." The trial court did not have the opportunity to consider defendant's statements in the presentencing report with the benefit of any testimony and rebuttal that defendant would choose to offer. Defendant also did not have the opportunity to assist his counsel through his presence at the evidentiary hearing. In this situation, defendant is entitled to a new evidentiary hearing. Therefore, I would reverse and remand for a new evidentiary hearing at which defendant shall either be present or his voluntary, knowing, and intelligent waiver shall be placed on the record, so the trial court can consider whether to admit defendant's statements in the presentencing report and if so, what weight to give these statements. (See Quan, supra, 96 Cal.App.5th at p. 527; Basler, supra, 80 Cal.App.5th at p. 51.)
California Courts of Appeal have held that prior statements by defendants in parole hearings are admissible in section 1172.6 proceedings. (People v. Duran (2022) 84 Cal.App.5th 920, 930-932; People v. Mitchell (2022) 81 Cal.App.5th 575, 586-590; People v. Anderson (2022) 78 Cal.App.5th 81, 89-93; People v. Myles (2021) 69 Cal.App.5th 688, 703-704; cf. People v. Trujillo (2006) 40 Cal.4th 165, 179 ["[A] defendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted.' [Citation.]"].)
III. Conclusion
Therefore, I would reverse the trial court's order denying defendant's section 1172.6 petition and remand this matter to the trial court to conduct a new evidentiary hearing in accordance with Penal Code section 1172.6, subdivision (d), at which defendant shall either be present or his voluntary, knowing, and intelligent waiver shall be placed on the record.