Opinion
E077806
04-03-2023
THE PEOPLE, Plaintiff and Respondent, v. MALVERN NEWSOME, Defendant and Appellant.
Marcia R. Clark, by appointment of the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alan Amann and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct.No. RCR16650. Jon D. Ferguson, Judge. Reversed with directions.
Marcia R. Clark, by appointment of the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alan Amann and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS, J.
I. INTRODUCTION
In 1990, a jury convicted defendant and appellant Malvern Newsome of first-degree murder (count 1; Pen. Code, § 187, subd. (a)) and attempted robbery (count 2; §§ 664, 211). He was sentenced to 26 years to life in state prison, and his conviction was affirmed on direct appeal.
Undesignated statutory references are to the Penal Code.
In 2019, defendant filed a petition for resentencing pursuant to section 1172.6.The trial court held an evidentiary hearing on defendant's petition pursuant to section 1172.6, subdivision (d)(3), at which time the prosecution presented additional evidence from defendant's record of conviction, including a preliminary hearing transcript, a trial transcript that included a summation of evidence by the prosecutor during closing argument, and a probation report. Relying in part on this evidence, the trial court denied defendant's petition, finding that defendant was as a major participant in an underlying felony who acted with reckless indifference to human life.
Defendant brought his motion under former section 1170.95, which was renumbered as section 1172.6 without substantive change on June 30, 2022. (Stats. 2022, ch. 58, § 10.) As such, we refer to the statute by its current number throughout this opinion whenever possible, except when discussing substantive legislative changes to former section 1170.95 before it was renumbered as section 1172.6.
Shortly after the denial of defendant's petition, Senate Bill No. 775 (SB 775) (2021-2022 Reg. Sess.) was enacted. As relevant to this appeal, SB 775 amended the procedural provisions applicable to a petition for resentencing by specifying that the Evidence Code shall apply to any evidentiary hearing on an order to show cause.
On appeal, the only argument advanced by defendant is that the evidentiary provisions enacted by SB 775 should apply retroactively to his case. As a result, defendant argues we should conclude that the trial court erred by relying on evidence now deemed inadmissible, find that the remaining evidence in the record is insufficient to sustain the trial court's factual findings, reverse the trial court's order denying his petition, and direct the trial court to grant the petition and to proceed to resentencing on the remaining charge upon remand.
While the opening brief concludes only by requesting we remand the matter, defendant concludes his reply brief by requesting that the case be "remanded for resentencing on one count of attempted robbery."
We decline to resolve the retroactivity issue raised by defendant because we conclude that the appropriate disposition in this case is to reverse and remand the matter for the trial court to conduct a new evidentiary hearing, regardless of whether the evidentiary provisions enacted by SB 775 apply retroactively.
II. FACTS & PROCEDURAL HISTORY
In 1989, defendant and his cohort obtained a firearm and developed a plan to use the firearm in order to steal a car. During the execution of their plan, defendant's cohort discharged the firearm, killing the driver of the vehicle they were attempting to steal. Defendant was convicted by a jury of one count of first degree murder and one count of armed robbery arising from this incident.
In 2019, appellant filed a petition for resentencing pursuant to section 1172.6. In September 2021, the trial court held an evidentiary hearing on an order to show cause. At the time of the hearing, the prosecution presented additional evidence contained in appellant's record of conviction, including a preliminary hearing transcript, a summation of evidence contained in the prosecutor's closing arguments during trial, and a probation report. Defendant did not object to this evidence, and the trial court expressly relied on some of this evidence to find that appellant was a major participant who acted with reckless indifference to human life in the commission of an underlying felony. As a result, the trial court denied defendant's petition for resentencing. Appellant appeals from this order.
The trial court initially struck the petition. However, defendant appealed, and we reversed and remanded the matter for further proceedings in case No. E073206. (People v. Newsome (Sept. 4, 2020, E073206) [nonpub. opn.].)
III. DISCUSSION
On appeal, defendant argues the trial court erred in denying his petition for resentencing because it relied on evidence that should now be considered inadmissible under the evidentiary provisions enacted by SB 775. According to defendant, the evidentiary provisions enacted by SB 775 apply retroactively and, as a result, we should find he was prejudiced by the consideration of inadmissible evidence; that insufficient evidence supports the trial court's findings once inadmissible evidence is excised from the record; and that we must reverse and remand the matter with directions for the trial court to proceed directly to resentencing on only one count of attempted robbery. We decline to do so. As we explain, we believe, instead, that the appropriate disposition in this case is to remand the matter for a new evidentiary hearing under the procedural and evidentiary rules now in effect.
A. Legal Background
Effective January 1, 2019, the Legislature passed Senate Bill 1437 (2017-2018 Reg. Sess.)" 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.' [Citation.] . . . Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 959; Stats. 2018, ch. 1015, § 4.)
"Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.'" (People v. Lewis, supra, 11 Cal.5th at pp. 959-960.)
"Where the petition complies with section 1170.95, subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made a 'prima facie showing' for relief. [Citation.] [¶] If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing 'to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts . . . . 'The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.'" (People v. Lewis, supra, 11 Cal.5th at p. 960.) If, based upon this evidence, the trial court finds that the defendant was the actual killer, acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life, then resentencing under section 1172.6, formerly section 1170.95, is unavailable. (People v. Strong (2022) 13 Cal.5th 698, 710.)
In 2021, "the Legislature modified section 1170.95 both substantively and procedurally by the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) . . . ." (People v. Owens (2022) 78 Cal.App.5th 1015, 1026.) Among other things, SB 775 modified section 1170.95 to specify that the Evidence Code shall apply to evidentiary hearings on an order to show cause, and "[t]his may mean that, absent some exception, hearsay contained in probation, presentence reports, appellate opinions/orders, and other documents, are not now admissible at a section 1170.95 hearing." (Owens, at p. 1026.) SB 775 became effective January 1, 2022 (Stats. 2021, ch. 551, § 2), and section 1170.95 was subsequently renumbered as 1172.6 without substantive change (Stats. 2022, ch. 58, § 10).
B. Reversal and Remand for a New Evidentiary Hearing Is the Appropriate Remedy Regardless of Whether the Evidentiary Provisions of SB 775 Apply Retroactively
The primary issue raised by defendant in this appeal is that the evidentiary provisions enacted by SB 775 apply retroactively. The People disagree with this proposition but urge us to look past the issue of retroactivity to resolve the appeal on other grounds in the interests of justice.
More than one published decision has addressed the retroactive application of the substantive provisions enacted by SB 775. (People v. Porter (2022) 73 Cal.App.5th 644, 651-652 [provision expanding the list of offenses eligible for resentencing applies retroactively]; People v. Langi (2022) 73 Cal.App.5th 972, 978 [same].) However, with respect to the procedural changes enacted by SB 775, published decisions have made conflicting statements regarding retroactive application. (Compare People v. Basler (2022) 80 Cal.App.5th 46, 55-56 ["procedures within [section 1172.6] apply retroactively"] with People v. Owens, supra, 78 Cal.App.5th at pp. 1026-1027 [observing changes in criminal procedural rules are not generally applied retroactively but declining to "definitively rule" on the issue]; see id. at p. 1028 (conc. opn. of Tangeman, J.) [The evidentiary portions of SB 775 "may come within the rule that legislative clarification of existing law applies to conduct that precedes its enactment."].) In each of these cases, the statements regarding retroactive application of the procedural changes enacted by SB 775 were unnecessary to the disposition, and we have found no published decision that has actually considered and decided the issue.
Nevertheless, for the reasons set forth below, we believe that a remand to conduct a new evidentiary hearing under the statutory rules now in effect is the appropriate disposition regardless of whether the evidentiary provisions of SB 775 operate retroactively. Thus, we need not decide the retroactivity issue as it is unnecessary to the disposition of this case.
1. Remand for a New Hearing Is the Appropriate Remedy If SB 775 Applies Retroactively
Both parties argue that if SB 775 is applied retroactively, this court should determine the admissibility of the challenged evidence in the first instance, reevaluate the hypothetical record created by this process, and then determine if substantial evidence supports the trial court's ruling based upon this hypothetical record. We disagree with the suggested approach. Assuming, without deciding, that the procedural provisions of SB 775 apply retroactively, we conclude that the appropriate disposition would be a remand to the trial court to conduct a new evidentiary hearing.
First, we observe that in analogous situations in which criminal defendants are given the retroactive benefit of a new statutory procedure, the accepted remedy is to remand the matter for a new proceeding consistent with the new procedure. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 310, 313 [retroactive application of new statute required remand for trial court to conduct a transfer hearing]; People v. Frahs (2020) 9 Cal.5th 618, 637-640 [retroactive application of new statute required limited remand for trial court to conduct a mental health diversion hearing]; People v. Whitmore (2022) 80 Cal.App.5th 116, 131-132 [retroactive application of statute providing new procedures for determining truth of aggravating circumstances required remand for new trial on that issue]; People v. Padilla (2022) 13 Cal.5th 152, 158-159 [retroactive application of proposition 57 entitling a juvenile defendant to a transfer hearing required remand to the trial court to conduct such a hearing under present law].) Thus, even if we were to hold that the evidentiary provisions of SB 775 apply retroactively, we see no reason why this retroactive application would warrant a different approach. We note that, as occurs from time to time, additional or different evidence may be submitted at that subsequent hearing. This approach allows for that possibility.
Second, even assuming the evidentiary provisions of SB 775 apply retroactively, we disagree with both parties' suggestion that the next analytical step is for this court to resolve their competing claims regarding the admissibility of the challenged evidence. "Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717; see People v. Duran (2022) 84 Cal.App.5th 920, 927-928 [trial court's admission of evidence at an evidentiary hearing on petition for resentencing reviewed for abuse of discretion].) "[I]t is not the function of an appellate court to make . . . evidentiary rulings in the first instance . . . ." (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235.) Otherwise, "appellate courts are left with the nebulous task of determining whether the ruling that was purportedly made was within the authority and discretion of the trial court and was correct." (Ibid.; see Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 630.)
In this case, the trial court never had the opportunity to consider evidentiary objections based upon the amendments made by SB 775. Nor did the trial court consider whether the challenged evidence might be admissible under alternative provisions of the Evidence Code as the People now argue. Neither party has explained why this court should take the extraordinary step of assuming the role of a trial court in order to resolve contested evidentiary issues in the first instance based upon an undeveloped record. The very nature of the parties' dispute regarding the admissibility of evidence also leads us to conclude that the appropriate remedy is a remand to the trial court so that evidentiary rulings can be made and a full record can be developed on the issue subject to subsequent review by this court if an appeal is taken.
Finally, even if we were to conclude that defendant was prejudiced by the consideration of inadmissible evidence, we disagree with his contention that the appropriate course is to excise the inadmissible evidence and to consider whether the remaining evidence is sufficient to support the trial court's findings. Typically, when the erroneous admission of evidence requires reversal, the appropriate remedy is to remand the matter for a new trial or hearing. (People v. Shirley (1982) 31 Cal.3d 18, 71 [prosecutor permitted to retry defendant after conviction reversed for erroneous admission of evidence]; People v. Cooper (2007) 149 Cal.App.4th 500, 522 [" 'The double jeopardy clause does not bar retrial after a reversal based on the erroneous admission of evidence if the erroneously admitted evidence supported the conviction.' "].) This is true even when the admitted evidence is rendered inadmissible as the result of a subsequent change in the law. (People v. De Santiago (1969) 71 Cal.2d 18, 22-23, 30 [admission of evidence later deemed inadmissible by subsequent decisional law warranted granting a new trial].)
We recognize the possibility that the inadmissible evidence may be deemed not prejudicial under the Watson standard. (People v. Myles (2021) 69 Cal.App.5th 688, 706.) However, the traditional approach of remanding for a new proceeding is particularly appropriate given the unique procedural posture of this case. The trial court's determination that defendant was a major participant who acted with reckless indifference to human life requires weighing numerous factors and consideration of the totality of the circumstances. (In re Harper (2022) 76 Cal.App.5th 450, 459-460.) Where the balance of factors may change on appeal, it is "in the interest of justice" for "the trial court to have a meaningful opportunity to consider . . . the totality of the circumstances germane to determining whether [a defendant] was a major participant who acted with reckless indifference to human life." (People v. Jones (2022) 86 Cal.App.5th 1076, 1093 [remand appropriate to permit court to reconsider the totality of the circumstances where the law regarding consideration of one factor was unclear at time of hearing on petition for resentencing].) Further, nothing in the record suggests that the People would not or could not attempt to offer alternative evidence to prove the same facts if an evidentiary objection had been made and sustained in the trial court. "Where . . . evidence is not introduced at trial because the law at the time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence." (People v. Figueroa (1993) 20 Cal.App.4th 65, 72.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Given these considerations, we decline defendant's invitation to resolve evidentiary conflicts in the first instance and then determine whether sufficient evidence supports the verdict based upon a hypothetical record not before the trial court. Assuming, without deciding, that the evidentiary provisions of SB 775 apply retroactively, the appropriate disposition would be to reverse and remand the matter for a new proceeding consistent with the statutory provisions now in effect.
2. Remand for a New Hearing Is the Appropriate Remedy If SB 775 Is Not Applied Retroactively
We also conclude that, even if the evidentiary provisions of SB 775 only apply prospectively, the appropriate disposition would still be to reverse and remand to the trial court to conduct a new evidentiary hearing under the statute now in effect.
It is true that the only claim of error raised in this appeal is that the trial court denied appellant's petition for resentencing based, in part, upon evidence that appellant now contends is inadmissible under section 1172.6. Thus, if we were to conclude that the evidentiary provisions set forth in SB 775 only operate prospectively, we could affirm the trial court's order on this basis alone.
However, on an appeal from a proceeding subsequent to a final judgment, this court has wide latitude in selecting an appropriate disposition, and our authority includes the ability to "remand the cause to the trial court for such further proceedings as may be just under the circumstances." (§ 1260; see People v. Rocha (2019) 32 Cal.App.5th 352, 360 [Remand is appropriate under section 1260 where "[t]he trial court's order sheds no light on how it might rule on [the] issue, and neither the People nor defendant had an opportunity to present arguments relating to the amended provisions."].) As the People concede, if we affirmed the trial court's order on the basis that the procedural provisions of SB 775 do not apply retroactively, defendant is free to file a new petition for resentencing, at which time he would be entitled to a hearing under the rules now in effect. (People v. Farfan (2021) 71 Cal.App.5th 942, 949-951 [petitioner is not barred from filing successive petitions for resentencing relief under section 1172.6 as the result of statutory or decisional changes in the law].) Under these circumstances, it would be a waste of judicial resources to affirm the order and require the parties to start the petition process anew, only to end up back in the same procedural posture.
Thus, even if we could affirm the trial court's order on the basis that the procedural provisions enacted by SB 775 do not apply retroactively, the most appropriate disposition would still be for us to remand the matter for a new evidentiary hearing to be conducted under the statutes now in effect. Because we would conclude that remand for a new evidentiary hearing is the appropriate disposition regardless of whether the evidentiary provisions of SB 775 apply retroactively, we need not definitively decide the retroactivity issue to resolve this case.
C. We Cannot Find Any Error Harmless on This Record
The People also suggest that we can affirm the trial court's order on the basis that any purported error in considering inadmissible evidence was harmless. We disagree. The parties concede, and we agree, that the Watson standard of harmlessness applies in this case, and reversal is not required unless it is reasonably probable defendant would have obtained a more favorable outcome absent the alleged error. (People v. Myles, supra, 69 Cal.App.5th at p. 706 [Watson standard applies to erroneous admission of evidence at hearing on a petition for resentencing].)
Here, the People argue that any error in the admission of evidence was harmless because, even if the challenged evidence was disregarded, the record still contains independently admissible evidence in support of the trial court's findings. However, this argument conflates the issue of sufficiency of the evidence to support the findings with that of prejudicial error. The erroneous admission of evidence "does not affect the sufficiency of the evidence to convict. Instead, the question . . . is whether the error in admitting that evidence was prejudicial." (People v. Navarro (2021) 12 Cal.5th 285, 311.) Thus, the erroneous admission of evidence can be prejudicial even if that evidence was unnecessary to establish the ultimate facts necessary for a conviction. (People v. Avitia (2005) 127 Cal.App.4th 185, 194-195 [An erroneous admission of evidence on an uncontested issue still prejudicial because it could have impacted the trier of fact's determination regarding the credibility of other evidence.].)
As we have already explained, the trial court's factual finding that defendant was a major participant who acted with reckless indifference to human life is the product of weighing numerous factors in considering the totality of the circumstances. (In re Harper, supra, 76 Cal.App.5th at pp. 459-460.) The trial court expressly acknowledged this at the time of the hearing, stating that it "found this to be a very difficult decision" and stressed that its analysis was "very fact-intensive" and "fact-specific." The trial court acknowledged that it believed some factors weighed against a finding that defendant acted with reckless indifference. Given this record, there is a reasonable probability that the trial court might reach a different conclusion if it was required to disregard some of the evidence it had previously relied upon. It is also possible that, even if some or all of the facts could be established through alternative evidence, the trial court may not find such evidence as compelling, credible, or convincing as the evidence upon which it previously relied.
On this record, we cannot affirm the trial court's order on the basis that any error was harmless. Thus, we conclude that reversal and remand for a new evidentiary hearing is warranted under the unique circumstances of this case.
IV. DISPOSITION
The trial court's order denying appellant's petition for resentencing is reversed, and the matter is remanded for the trial court to conduct a new evidentiary hearing pursuant to the provisions of section 1172.6 currently in effect.
We concur: MILLER, Acting P. J. RAPHAEL, J.