Opinion
B330062
09-25-2024
The PEOPLE, Plaintiff and Respondent, v. Filiberto OCOBACHI, Jr., Defendant and Appellant.
Bess Stiffelman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. Jeffrey F. Rosen, District Attorney (Santa Clara), and Alexandra W. Gadeberg, Deputy District Attorney, for the County of Santa Clara as Amicus Curiae on behalf of Plaintiff and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BA320049)
Bess Stiffelman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Jeffrey F. Rosen, District Attorney (Santa Clara), and Alexandra W. Gadeberg, Deputy District Attorney, for the County of Santa Clara as Amicus Curiae on behalf of Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Filiberto Ocobachi, Jr. (defendant), appeals from the order denying his petition for vacatur of his manslaughter conviction and for resentencing pursuant to Penal Code section 1172.6, entered after an evidentiary hearing. Defendant contends the trial court erred in admitting the transcript of grand jury proceedings into evidence and the ruling was not supported by substantial evidence. Defendant also contends the trial court failed to appropriately apply the elements of direct aiding and abetting implied malice murder. Defendant requests any remand include an order to transfer to juvenile court for resentencing. The People concede the trial court’s reliance on the grand jury transcript was error, but claim the order was nevertheless supported by substantial evidence and that the court properly applied the appropriate elements.
All further unattributed code sections are to the Penal Code unless otherwise stated.
We allowed the Santa Clara County District Attorney to file an amicus curiae brief and to participate in oral argument regarding the admissibility of grand jury transcripts.
We conclude the grand jury transcripts were inadmissible, and the remaining evidence presented was insufficient to support the order. We thus reverse the order and remand for a new evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). As we remand the matter for a new evidentiary hearing, we find it premature at this time to address defendant’s petition to transfer this matter to juvenile court.
BACKGROUND
2007 conviction
In 2006 defendant and five codefendants were accused of murder based on a shooting during a fight in a pool hall. Ail were indicted for murder, and codefendant Joseph Bonilla was alleged to have personally and intentionally discharged a firearm, proximately causing great bodily injury and death to the victim, Alfredo Briano. Defendant and the other four codefendants were not accused of firing the gun. The indictment alleged pursuant to section 182.22, subdivision (b)(1) that count 1 was committed to benefit a gang, and pursuant to section 12022, subdivisions (d) and (e)(1) that a principal used a firearm in the commission of the crime.
In 2007, defendant and his codefendants (except Joseph Bonilla) entered into a plea agreement to an amended indictment and each pled no contest to voluntary manslaughter in violation of section 192, subdivision (a) (count 1) and an added count, assault by means of force likely to produce great bodily injury in violation of section 245, former subdivision (a)(1) (count 2). In addition, they each admitted the gang allegation and the allegation that a principal used a firearm in the commission of the crime. Defendant and codefendants agreed, and counsel stipulated to a factual basis for the plea consisting of statements in "the police reports and the indictment hearing," that each was "involved in an assault that resulted in the death of Alfredo Briano," and that none of these defendants was the shooter. Defendant was sentenced to 18 years in prison.
The codefendants entering a plea along with defendant were Guillermo Huerta, Erik Perez, Rudy Fernandez, and Oscar Bonilla.
See now section 245, subdivision (a)(4); Statutes 2011, chapter 183, section 1.
Petition for resentencing
In February 2022, defendant filed a petition for vacatur of his manslaughter conviction and for resentencing pursuant to section 1172.6. Section 1172.6 provides a procedure to petition for retroactive vacatur and resentencing for those who could not be convicted of murder under sections 188 and 189 as amended effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th 952, 957, 281 Cal.Rptr.3d 521, 491 P.3d 309.) Sections 188 and 189, the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, were amended "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).) Effective January 1, 2022, the resentencing procedure was extended to those convicted of manslaughter. (Stats. 2021, ch. 551, § 2; see § 1172.6, subd. (a).)
Defendant’s petition alleged the three section 1172.6, subdivision (a) conditions. Once a petitioner makes a prima facie showing of eligibility for relief, an evidentiary hearing is held pursuant to section 1172.6, subdivision (d), "at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) ‘A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’ (Ibid.) ‘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.’ (Ibid.)" (People v. Strong (2022) 13 Cal.5th 698, 709, 296 Cal.Rptr.3d 686, 514 P.3d 265.)
As relevant here, those conditions are as follows: an indictment was filed against him that "allowed the prosecution to proceed under a theory of felony murder, 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"; he was convicted of "manslaughter [after he] accepted a plea offer in lieu of a trial at which [he] could have been convicted of murder"; and, he "could not presently be convicted of murder … because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
Here, the prosecution filed a response to the petition and did not oppose the issuance of an order to show cause. The trial court appointed counsel for defendant, the parties filed briefs, and the evidentiary hearing was held April 21, 2023. (See § 1172.6, subds. (c) & (d).)
Evidence presented at hearing
Prosecution evidence
The trial court announced its ruling was based on all the evidence before the court, including the transcript of the grand jury testimony, a video shown to the grand jury, and the plea and sentencing transcripts. Defendant objected to the inclusion of the grand jury testimony in his hearing brief and again at the evidentiary hearing. The objection was overruled.
The People concede the trial court erred in admitting the grand jury testimony. We therefore do not summarize it in depth, but refer to it as necessary to the parties’ arguments.
Defendant also successfully objected to the admission of testimony from codefendant’s trial.
The grand jury testimony transcript included narration of the video by Detective Joseph Martinez, an investigating officer in the case. The video contains no audio and shows different clips of the pool hall incident, with some clips showing the same action from different camera angles. The transcript includes Detective Martinez’s explanation of the action.
The video essentially shows a group of young men and women entering the pool hall, and during the next approximately four minutes a fight breaks out between them and another group of people. At 4:35 to 4:39 minutes into the video, a person in a white T-shirt is seen going from the left side of the screen to the right, carrying a pool stick and then striking another person with it once, apparently causing the person to fall to the floor. At 5:07 a person in a patterned shirt is seen striking someone on the floor several times with a pool stick. Between 5:34 and 5:46 people are seen leaving the area, appearing to duck behind pool tables momentarily and then get up and start walking around. Between 6:07 and 6:20 a highlighted person comes into view behind two men in white T-shirts, reaches for his waistband, pulls out a gun and points it at a person out of view. The gunman then goes in the direction of the pointed gun, until he is almost out of view with his back to camera, turns back, puts the gun down to his side, and faces a person in dark shirt. Between 6:20 and 6:23 the highlighted person runs to the middle of the aisle between pool tables holding the gun with two hands close to the middle of his abdomen, with one hand on the top, and then runs away.
At the hearing, over defense objection, defendant identified the interior of the pool hall at about two minutes into the video and testified it appeared to be the area where the incident took place. At four minutes, 36 seconds, defendant identified himself wearing a white T-shirt and blue jeans, holding a pool stick and testified the video showed what happened that night. The parties stipulated that the highlighted person in the video was not defendant.
On cross-examination defendant denied he had seen anyone holding a gun or that he knew who had fired it at the time he heard a gunshot. Defendant testified he had been in the bathroom when the fight broke out and came out to see two people attacking his cousin, but did not know how it started. His cousin was not the shooter, and defendant did not know who was. On redirect examination, defendant ultimately acknowledged he told the parole board he was gang-affiliated, explaining he was referring to his gang affiliation while he was in prison.
Defendant later explained that when he spoke of his family life to the parole board he was explaining the time before prison when he associated with his cousin and others, some of whom he knew were gang members and some he did not know were gang members. It was in prison that defendant formally became a member of a gang.
Defense evidence
Dr. Francesca Lehman, a clinical and forensic psychologist, and an expert in child and adolescent development and the impact of trauma over their lifespan, testified that defendant was 17 years old at the time of the shooting, at a stage of adolescence when an adolescent’s ability to appreciate risks and consequences are not fully developed, which is "particularly important to consider when it’s a heated situation, what is sometimes called a hot cognition, a time when emotions are high." Dr. Lehman explained research has demonstrated that this phenomenon is enhanced in the presence of peers causing adolescents to act more on impulse and emotion and unable to weigh the risk and benefits of their behavior, adding stress and trauma can further impact the development process. Dr. Lehman identified a number of increased risk factors for slower brain development in defendant’s records, including exposure to domestic violence, parental separation, and drug abuse.
The ruling
After hearing the testimony and counsel’s arguments, the trial court denied the petition. The court explained it found defendant’s no contest plea, and particularly defendant’s agreement to the factual basis, to be an admission to having been an aider and abettor to murder.
The trial court did not believe any of defendant’s testimony or statements made to the investigating officer as recounted in the grand jury hearing and suggested that it was unnecessary for defendant to have known the perpetrator intended to shoot the victim.
The court concluded: "I find based upon the totality of the evidence I have before me, including the grand jury transcript and the plea transcript, which nobody addressed, that the People have proved beyond a reasonable doubt that the petitioner in this matter is guilty of aiding and abetting implied malice murder."
Defendant filed a timely notice of appeal from the order denying the petition.
DISCUSSION
I. Grand jury transcript
[1] The trial court based some of its factual findings on the transcript of the grand jury proceedings. Defendant contends the trial court erred in considering the grand jury transcript as it was not admissible evidence under the provisions of section 1172.6, subdivision (d)(3). The People concede the trial court erred in admitting the grand jury testimony, resulting in this issue being no longer in controversy.
Section 1172.6, subdivision (d)(3) identifies what evidence may be admitted in the hearing.
As relevant here Evidence Code 1291, subdivision (a) provides that "former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] … [¶] (2) The party against whom the former testimony is offered was a party to the action or proceed- ing in which the testimony was given and had the right and opportunity to cross-examine the declarant …."
Amicus curiae argues that a grand jury transcript is admissible under the plain language of section 1172.6, subdivision (d)(3) to the same extent as a preliminary hearing transcript. Amicus curiae relies on People v. Davenport (2023) 95 Cal.App.5th 1150, 314 Cal.Rptr.3d 167 (Davenport), which considered the admissibility of the petitioner’s preliminary hearing transcript, and People v. Cody (2023) 92 Cal.App.5th 87, 309 Cal.Rptr.3d 26 (Cody), which considered testimony from the trial that led to the petitioner’s conviction. Both cases find a hearsay exception in the language of section 1172.6, subdivision (d)(3) to Evidence Code section 1291, subdivision (a), which requires showing that a witness is unavailable before admitting former testimony against a party to a former proceeding. (Davenport, supra, at p. 1158, 314 Cal.Rptr.3d 167; Cody, supra, at pp. 103-104, 309 Cal.Rptr.3d 26.)
Amicus curiae would have us find an exception in the language of section 1172.6, subdivision (d)(3) not only to the witness unavailability prerequisite of Evidence Code section 1291, subdivision (a), but also to the requirement of subdivision (a)(2) of section 1291 that "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant …. "
[2–4] Here, defendant was not a party to the grand jury proceeding. A grand jury proceeding is an investigation. (See § 923.) "[T]he grand jury serves as part of the charging process of criminal procedure, not the adjudicative process that is the province of the courts or trial jury." (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026, 13 Cal.Rptr.2d 551, 839 P.2d 1059.) The person investigated is not a party but a grand jury "target." (See, e.g., United States v. Washington (1977) 431 U.S. 181, 189, 97 S.Ct. 1814, 52 L.Ed.2d 238; People v. Petrilli (2014) 226 Cal. App.4th 814, 823, 172 Cal.Rptr.3d 480.) And "the person under investigation by a grand jury has no right to appear or offer evidence." (People v. Brown (1999) 75 Cal. App.4th 916, 932, 89 Cal.Rptr.2d 589.)
Citing People v. Silva (2021) 72 Cal. App.5th 505, 520, 287 Cal.Rptr.3d 376, and People v. James (2021) 63 Cal.App.5th 604, 606, 277 Cal.Rptr.3d 796, amicus curiae argues that because a section 1172.6 evidentiary hearing is a statutory act of lenity, a petitioner does not enjoy rights under the Sixth Amendment to the United States Constitution, and thus does not have a constitutional right to confrontation in a section 1172.6 evidentiary hearing. Amicus curiae then expands this argument to conclude that section 1172.6, subdivision (d)(3) permits the admission of prior testimony given in a proceeding to which the petitioner was not a party and had no right to cross-examine witnesses against him.
[5–8] Amicus curiae cites Davenport, supra, 95 Cal.App.5th at page 1160, 314 Cal.Rptr.3d 167 to support its suggestion that a petitioner can always simply subpoena grand jury witnesses to be examined in the section 1172.6 hearing. Davenport is an inapt comparison, as it involved a preliminary hearing, at which the petitioner had at least the right and opportunity to cross-examine witnesses, and the complaint rejected there was that cross-examination at preliminary hearing had not been conducted with the same " ‘motive and interest.’ " (Davenport, at p. 1160, 314 Cal.Rptr.3d 167.) Amicus curiae has cited no authority directly on the point at issue here, but asks we address this question anyway, as a matter of first impression under the Sixth Amendment and the due process clause of the United States Constitution. " ‘ "Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered [citations]." ’ " (Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814, 187 Cal.Rptr. 310.) "It is settled that ‘the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ " (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924.) "The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court." (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912, 83 Cal. Rptr. 670, 464 P.2d 126.) Moreover, " ‘we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.’ " (Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31, 233 Cal.Rptr.3d 77, 417 P.3d 725.) We thus decline the request by amicus curiae to carve out a new exception to Evidence Code section 1291.
See footnote *, ante.
DISPOSITION
The order is reversed, and the matter remanded for a new evidentiary hearing pursuant to section 1172.6, subdivision (d)(3) in accordance with the views expressed in this opinion.
We concur:
ASHMANN-GERST, Acting P. J.
HOFFSTADT, J.