People v. Flint CA2/1 ( 2024 )

Filed 10/31/24 P. v. Flint CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B333482
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071779)
v.
JUSTIN ASHLEY FLINT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel J. Lowenthal, Judge. Reversed with
directions.
David Andreasen, 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, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General for Plaintiff and Respondent.
In 2006, appellant Justin Ashley Flint acted as a lookout
for his associate Frank Gonzalez as Gonzalez attempted to
rob Maria Cecilia Rosa, an off-duty Los Angeles County Sheriff ’s
Deputy. During the attempt, Gonzalez shot Rosa, killing her. In
2007, a jury convicted Flint of first degree murder and attempted
robbery.1
In 2019, Flint filed a petition for resentencing under
the predecessor to Penal Code section 1172.6.2 The court held
an evidentiary hearing to determine whether, for purposes of
section 189, subdivision (f), Flint knew or reasonably should
have known at the time of the murder that Rosa was a peace
officer engaged in the performance of her duties. The court
found beyond a reasonable doubt that Flint had such knowledge,
and denied his petition for resentencing. Flint appealed.
Flint contends: (1) Rosa was a peace officer described
in subdivision (c) of section 830.1 and was not, therefore, acting
in the course of her duties when Gonzalez shot her; and (2) The
court erred in admitting certain hearsay statements made by
Gonzalez while in custody. For the reasons given below, we
remand the matter for a further evidentiary hearing to determine
1 Gonzalez was tried separately and received the death
penalty, which the Supreme Court has affirmed. (People v.
Gonzalez (2021) 12 Cal.5th 367.)
2 Subsequent unspecified statutory references are to the
Penal Code.
Flint filed his petition under the predecessor to
section 1172.6, which was originally codified as section 1170.95.
(See Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) For
the sake of consistency and to avoid confusion, we will refer
only to the current statutory designation.
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whether Rosa was, at the time of her murder, acting “in the
course of [her] duties” as a peace officer. We further conclude
that the court did not abuse its discretion in allowing the
challenged statements by Gonzalez into evidence.
FACTUAL AND PROCEDURAL SUMMARY
A. Background
In the early morning of March 28, 2006, Gonzalez and Flint
broke into residential garages and yards from which they stole
property, including two bicycles. Flint was aware that Gonzalez
possessed a gun. At some point, Gonzelez told Flint, “ ‘I’m going
to go snatch someone’s purse.’ ”
Shortly before 6:00 a.m., they were riding the stolen
bicycles in a residential area of Long Beach and came upon
Rosa, a Los Angeles County Sheriff ’s Deputy. Rosa had just left
her home to drive to the Los Angeles County Inmate Reception
Center, where she worked. She was not in uniform. Her
unmarked car was in her driveway facing away from the street.
As Rosa stood near the open trunk of her car, Gonzalez got off his
bicycle and approached her from behind. Flint remained on his
bicycle and watched from a distance that he described at different
times as “about two car lengths away,” “a house away,” and about
27 feet away. Flint heard Gonzalez say something to Rosa about
her purse. Rosa’s response is the subject of conflicting evidence,
discussed below. Gonzalez started to run away from Rosa, then
pulled the gun from his waistband and shot her twice, causing
her death.
Officers responding to the scene examined and
photographed the trunk of Rosa’s car. A car key was in the
keyhole on the trunk door. Inside the trunk, they found the
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following items: A gym bag, Rosa’s purse, her 9 millimeter
semiautomatic pistol, her sheriff ’s deputy badge holder with her
badge inside, her gun holster, and boots. An officer described the
items in the truck as having been “scattered” or strewn about.
Rosa’s purse was upright, unzipped, and open. It
contained her handcuffs, keys, and miscellaneous personal items.
According to a detective, the purse “was relatively empty” and
had enough room to carry her firearm, badge, and wallet, none
of which was in the purse.
Rosa’s firearm was found on the right side of the trunk,
partially covered by the gym bag, and separated from her holster.
Rosa’s holster was between a plastic grocery bag and a boot.
Her wallet was near the back of the trunk, underneath the gym
bag, a boot, and an envelope. Rosa’s badge holder was closed—
thereby concealing the badge—and lying on top of, and partially
inside, a plastic grocery bag on the left side of the trunk near
the trunk opening. According to a detective, it appeared as if
the badge holder had fallen or been dropped there. The detective
explained that officers respect their badges and “don’t normally
just toss them in the trunk of the car.”
Rosa ordinarily kept her firearm in her purse or in a
holster clipped to her waistband. Based on the clothes Rosa was
wearing that morning, a detective opined that Rosa would not
have been wearing her firearm in a holster or on her waistband.
Particles of lint found in the gun barrel of Rosa’s firearm
indicated that it had not been fired recently. Indeed, the gun
had what a firearms expert described as a “failure to eject”
malfunction. This malfunction occurs when someone attempts
to manually eject a cartridge from the gun’s chamber, but fails
to pull back the slide far enough to eject the cartridge completely.
4
The partially ejected cartridge prevents another cartridge
from loading into the chamber. An attempt to manually eject
a cartridge requires one hand to hold the gun and a second hand,
or some other object, to pull the slide back.
After shooting Rosa, Gonzalez went to the home of Glenn
Gosnell. Gosnell described the visit to detectives about three
months later. Gosnell told the detectives that Gonzalez was
“freaking out, about how he shot a cop.” Gonzalez told Gosnell
that he was going to rob Rosa, and Rosa “started reachin’ for
somethin’.” Gonzalez said he thought Rosa was reaching for
a gun. He felt threatened, and shot her. After shooting Rosa,
Gonzalez ran “up to her” and “looked in” and saw “the badge”
inside the car. Gonzalez was not more specific as to where in the
car he saw the badge. A detective asked Gosnell if Gonzalez said
he saw a gun, and Gosnell responded: “He didn’t say. He just
kept sayin’ a badge.” When the detective asked if Gonzalez had
said why he selected Rosa to rob, Gosnell said: “She was there.”
Gonzalez also told Gosnell that Flint was “down the street” when
the shooting occurred and “he didn’t know nothing.”
About two days after the murder, Gonzalez spoke to Jessica
Rowan about the murder. Rowan testified about the conversation
during a preliminary hearing in March 2007. According to
Rowan, Gonzalez told her, “ ‘We did something, we did something
in Long Beach,’ ” and showed her a newspaper article about the
murder, which described Rosa as a deputy sheriff. When Rowan
questioned Gonzalez about the matter, Gonzalez told her that “he
tried to rob [Rosa] because he wanted dope,” and he “tried to rob
her, take her purse” and “her money,” but Rosa “didn’t want to
give it to him.” Gonzalez told Rowan that “[b]oth of them” tried
to rob Rosa, but Gonzalez “was the one that said[,] ‘give me your
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money.’ ” Rosa then started “fighting with him.” Gonzalez told
Rowan he had seen a badge “in the back seat” of Rosa’s car as he
left the scene.
In the days following the shooting, Flint told at least four
people about the crime. On one occasion, within a day or two
after the murder, Flint went to the home of Eddie Zogg. Eric
O’Brien and Mark Smith were also there. According to Flint, he
told them that he and Gonzalez were trying to “take lawn mowers
or something and [Gonzalez] ended up shooting somebody.”
The others told him they had heard about the murder and said
the victim was a deputy. When a detective asked Flint if he
already knew that fact, he responded, “[n]ot [until] they showed
me that flyer.” The “flyer” is a bulletin about the crime that
law enforcement published on April 7, 2006, 10 days after the
murder.
According to Zogg, Flint came to his house a day or two
after the shooting. Eric O’Brien was there at the time. Flint told
Zogg and O’Brien that he and a friend “tried to rob some lady”
and that “she fought back” or “put up a struggle.” Flint said
he “heard a gunshot” and “took off running.” A detective asked
Zogg if Flint had said anything about the victim “being a cop or
anything like that,” and Eddie responded that Flint “didn’t say
anything like that.”
At some point, Zogg saw the flyer about the murder posted
on a bulletin board at his place of work. He took the flyer and
showed it to O’Brien.
According to O’Brien, Flint came to Zogg’s house and said
that Gonzalez “tried to rob somebody,” that Flint “heard shots,”
and then “they took off.” At some point, maybe “a couple weeks
after” the murder, Flint saw the flyer about the murder and
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acknowledged to O’Brien that he was involved in the crime.
Flint told O’Brien that the victim “was a cop,” and she had “a
gun.” Flint also told O’Brien that he “saw the victim’s badge.”
Flint did not tell O’Brien where Rosa had the gun or badge.
In August 2006, Flint and Gonzalez were in custody
on unrelated robbery charges. They were initially placed in
different holding cells, each with undercover officers posing
as fellow inmates—a so-called Perkins3 operation. Later, Flint
and Gonzalez were placed together in a cell. Their conversations
with the undercover officers and each other were audio and video
recorded. When an undercover officer asked Flint why Gonzalez
shot Rosa, he replied: “[The] bitch pulled out a gun” and it was
“a bigger caliber gun than the one we had.” Although Flint made
many statements during the Perkins operation incriminating
himself and Gonzalez in the attempted robbery of Rosa and
incriminating Gonzalez in Rosa’s murder,4 Flint did not say to
the ostensible inmates that he ever saw Rosa’s badge.
Gonzalez told the undercover officers that Rosa had “tried
to sneak up on [him].” An officer asked, “What did she pull
out a gun?” Gonzalez responded, “Badge.” When asked, “What
was she trying to do? You were tryin’ a jack her or something?”
Gonzalez responded, “No. She just came up straight for it,”
called him by his gang moniker, Grumpy, and told him, “Come
here.” As he said this, Gonzalez held his right hand in the air,
appearing to mimic an officer holding up a badge. At another
3 Illinois v. Perkins (1990) 496 U.S. 292.
4 Evidence of statements Flint made during the Perkins
operation are summarized in People v. Flint (July 6, 2010,
B205374) [nonpub. opn.] (Flint I).
7
point, Gonzalez said: “[S]he was just flashing her badge at me.
That’s all I remember. I just let loose.”5
In September 2006, detectives interviewed Flint. According
to Flint, Gonzalez told him he wanted to snatch someone’s purse,
and Flint understood that he was to look out for the police. Flint
said he was about “a house away” when he saw Gonzalez tell
“some lady[,] like give me your purse or something.” The woman
said, “[H]old up, hold up,” and “pulled out a gun.” Gonzalez
started running, then “shoots her.” Rosa remained standing,
leaning against her car. Flint and Gonzalez then “ran off.”
Flint testified at his 2007 trial. As he stated in his police
interview, he saw Gonzalez approach Rosa, say something to
her, and heard Rosa say, “Hold on, hold on,” or “hold up, hold up.”
He saw Rosa “coming up with . . . a gun,” holding it with a two-
handed grip. Gonzalez started running, took five or six steps,
then reached back and shot Rosa. Flint thought he heard two or
three shots. After Rosa was shot, Flint saw her still standing by
the trunk of the car. He denied that he had seen Rosa’s badge.
B. Procedural History
Flint’s jury was instructed on aiding and abetting, the
natural and probable consequences doctrine, and the felony
murder rule. The jury convicted Flint of first degree murder
(§ 187) and attempted robbery (§§ 211, 664). The jury also found
true an allegation that a principal in the crime was armed with
a firearm (§ 12022, subd. (a)(1)), and found not true a felony
5 The evidence of Gonzalez’s statements was admitted at
Flint’s section 1172.6 evidentiary hearing over defense objection.
8
murder special circumstance allegation (§ 190.2, subd. (a)(17)).
The court sentenced Flint to 29 years to life in prison.
In Flint’s direct appeal, we modified the judgment
by reducing his sentence to 26 years to life, and affirmed the
judgment as modified. (Flint I, supra, B205374.)
In January 2019, Flint filed a facially sufficient petition
for resentencing under section 1172.6. Among other allegations,
Flint alleged: “The victim of the murder was not a peace officer
in the performance of his or her duties, or I was not aware
that the victim was a peace officer in the performance of his or
her duties and the circumstances were such that I should not
reasonably have been aware that the victim was a peace officer
in the performance of his or her duties.”
In November 2020, the court found that Flint had failed
to establish a prima facie case for relief under section 1172.6
and denied the petition without issuing an order to show cause
or holding an evidentiary hearing. Flint appealed.
We reversed. (People v. Flint (2022) 75 Cal.App.5th 607,
618 (Flint II).) The trial court reached its conclusion, we
explained, by weighing the evidence and exercising discretion,
which the court could not engage in at the prima facie stage. (Id.
at p. 612.) We directed the court to issue an order to show cause
and hold further proceedings in conformance with our opinion.
(Id. at p. 618.)
Following remand, the court issued an order to show
cause and held an evidentiary hearing. Flint asserted, and the
prosecution and the court agreed, that the issue to be decided was
whether, for purposes of section 189, subdivision (f), Flint knew
or reasonably should have known that Rosa was a peace officer
9
engaged in the performance of her duties at the time Gonzalez
shot her.
The prosecution introduced the reporter’s transcript from
the 2007 trial, certain exhibits from the trial, and the clerk’s
transcript on appeal from Flint’s direct appeal. The court heard
testimony from a detective involved in the undercover Perkins
operation, an investigating detective, a sheriff ’s deputy who was
living with Rosa at the time she was killed, and Sergeant Daniel
Inez, a Los Angeles County Sheriff ’s Department (sheriff ’s
department) firearms trainer.
With the exception of part of Inez’s testimony, our factual
statement above summarizes the evidence admitted at the
evidentiary hearing. Inez further testified to the following.
Inez supervises firearms trainings for the sheriff ’s
department. Rosa attended the sheriff ’s department academy
in 2000 and became a deputy that year.
Inez stated that sheriff ’s deputies are permitted to carry
a firearm while off duty. When they do, they must also carry
their identification and badge. Deputies are trained that when
they draw their firearm or take other police action, they should
verbally identify themselves as deputies and hold up their badge
“in a manner so that anyone around has the ability to see it.”
There is no policy or regulation, however, that requires deputies
to display their badge before drawing a firearm.
The prosecutor showed Inez a photograph of Gonzalez,
excerpted from a video recording during the Perkins operation
where Gonzalez appears to be mimicking Rosa’s response to
his attempted robbery. Inez stated that the manner in which
Gonzalez held up his hand is consistent with the way deputies
are trained to present their badge.
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Inez opined that if Rosa carried a firearm and badge in
her purse, she would be following the sheriff ’s department policy.
And if Rosa identified herself and attempted to use her firearm
to prevent herself from being the victim of an attempted robbery,
she would be acting in the course of her duties and in accordance
with her training.
C. The Court’s Ruling
In ruling from the bench, the court stated that Rosa
presented her badge and she was acting in the performance
of her duty because a peace officer, “even when off-duty, is on
duty,” and has “the authority to make an arrest 24 hours a day.”
The court concluded that it found “beyond a reasonable doubt
that Flint knew that Deputy Rosa was a peace officer engaged
in the performance of her duties at the time that Gonzalez shot
her.” He therefore denied the petition.
In a written ruling, the court stated that “Rosa, although
off-duty, was engaged in the performance of her duties at
the time that she was killed. An off-duty Los Angeles County
Sheriff ’s Deputy possesses a continuing status as a peace
officer. ( . . . § 830.1.) In section 830.1, the Legislature has
clearly empowered peace officers to make arrests while off-duty.
Deputy Rosa, in attempting to apprehend a robbery suspect, was
indisputably acting in the scope of her employment at the time
that she was killed.”
The court pointed to Sergeant Inez’s testimony that Rosa
was trained that when confronted with criminal activity while
off-duty, to respond by presenting her badge above her head
and identifying herself as a police officer. The court explained
that the evidence showed that Rosa acted in conformity with
this training as shown by the fact that her badge was found in
11
the open trunk of her car. The court stated that the “most
plausible scenario, for the badge to have been transported from
the purse to its resting place, is that Deputy Rosa removed it
from her purse, presented it to the assailants, and then dropped
it after being shot. [¶] Deputy Rosa’s weapon was found, in
the trunk, roughly three feet to the right of the badge. This
positioning suggests that she presented the badge in her left
hand while holding the gun in her right and, upon collapsing
against the trunk, dropped both items into the trunk a
shoulder’s width apart. The physical evidence indicates, beyond
a reasonable doubt, that Deputy Rosa presented her badge and
identified herself as a peace officer.”
The court also relied on Gonzalez’s statement to an
undercover officer during the Perkins operation that he saw
Rosa’s badge, and O’Brien’s testimony that Flint told him he
saw the badge and was aware she was a peace officer.
The court concluded that, “[b]ased on the totality of the
evidence, [the prosecution] has proven, beyond a reasonable
doubt, that Flint was aware, before the shooting, that Deputy
Rosa was a peace officer who was engaged in the performance
of her duties.”
Flint appealed.
DISCUSSION
A. Rosa’s Peace Officer Status and Authority
1. Legal Background
Section 189 defines first degree murder to include murder
that is committed in the perpetration of, or attempt to perpetrate,
certain crimes, including robbery. (§ 189, subd. (a).) Prior to the
enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
12
Bill No. 1437), liability under this felony murder rule attached
to “any killing in the perpetration of or attempt to perpetrate [a]
robbery” “regardless of whether it was intentional or accidental.”
(People v. Coefield (1951) 37 Cal.2d 865, 868; see generally
1 Witkin et al., Cal. Criminal Law (5th ed. 2024) Crimes Against
the Person, § 57.) In Senate Bill No. 1437, the Legislature added
subdivision (e) to section 189, which requires, generally, that a
defendant will be liable under the felony murder rule only if
(1) the defendant “was the actual killer,” (2) the defendant “with
the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer,” or (3) that
the defendant “was a major participant in the underlying felony
and acted with reckless indifference to human life.” (§ 189,
subd. (e)(1)–(3); see People v. Sifuentes (2022) 83 Cal.App.5th
217, 228.)
The Legislature also created a single exception to
the section 189, subdivision (e) felony murder requirements.
(Flint II, supra, 75 Cal.App.5th at p. 610.) Under subdivision (f)
of section 189, when “the victim is a peace officer who was killed
while in the course of [the peace officer’s] duties, where the
defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of [the
peace officer’s] duties,” “the felony-murder doctrine applies as
it did before the enactment of Senate Bill No. 1437.” (Flint II,
supra, 75 Cal.App.5th at p. 610.) Thus, “[i]f the defendant is a
participant in one of the designated crimes and while committing
the felony a peace officer is killed, the defendant may be
convicted of first degree felony murder” without any additional
showing of malice or premeditation and “without proof the
defendant was the actual killer, that the defendant, with the
13
intent to kill, assisted in the commission of the killing, or that the
defendant was a major participant in the underlying felony and
acted with reckless indifference to human life.” (Couzens et al.,
Sentencing California Crimes (The Rutter Group 2024) § 23:48,
citing People v. Hernandez (2021) 60 Cal.App.5th 94, 105–109.)
Senate Bill No. 1437 “also created a special procedural
mechanism for those convicted under the former law to seek
retroactive relief under the law as amended.” (People v. Strong
(2022) 13 Cal.5th 698, 708.) This mechanism, now codified in
section 1172.6, allows “defendants previously convicted of felony
murder who ‘could not be convicted of first or second degree
murder because of changes’ in the law to petition to vacate their
convictions and be resentenced.” (Flint II, supra, 75 Cal.App.5th
at p. 610.) When, as here, the defendant has established a prima
facie claim for relief, the defendant is entitled to an evidentiary
hearing. (§ 1172.6, subds. (c) & (d)(1); Strong, supra, at p. 708.)
At that hearing, the prosecution has “the burden . . . to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder under California law as amended by the
changes to [the law of murder].” (§ 1172.6, subd. (d)(3).)
When the trial court holds an evidentiary hearing on
a section 1172.6 petition, it acts as an independent factfinder
to determine whether the defendant is guilty of murder beyond
a reasonable doubt under current law. (People v. Guiffreda
(2023) 87 Cal.App.5th 112, 123; People v. Garrison (2021) 73
Cal.App.5th 735, 745.) “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).)
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2. Further Proceedings Are Required To
Determine Whether Rosa Was Acting
in the Course of Her Duties
Section 189, subdivision (f) has three elements: (1) the
“victim is a peace officer”; (2) the victim “was killed while in the
course of the peace officer’s duties”; and (3) “the defendant knew
or reasonably should have known that the victim was a peace
officer engaged in the performance of the peace officer’s duties.”
(§ 189, subd. (f).) There is no dispute that Rosa was a deputy
sheriff, and thus a “peace officer,” as statutorily defined. (See
§ 830.1, subd. (a) [a deputy sheriff is a peace officer].) Flint
contends, however, that the prosecution failed to prove the second
element: at the time Rosa was shot, she was acting in the course
of her duties as a peace officer when Gonzalez killed her.
Flint does not dispute that, under subdivision (a) of
section 830.1, the authority of a peace officer ordinarily extends
to any place in the state “[a]s to a public offense committed . . .
in the peace officer’s presence, and with respect to which there
is immediate danger to person or property” or that Gonzalez’s
attempted robbery constituted such a “public offense.” (See
§ 830.1, subd. (a)(3).) He argues, however, that Rosa was
a deputy described in subdivision (c) of section 830.1, which
created “a new lower-tier category of custodial peace officer,”
with “limited custodial duties, more limited training than other
sheriff ’s deputies, and limited peace officer powers.” (People v.
Orosco (2022) 82 Cal.App.5th 348, 356 (Orosco).)
Peace officers described in subdivision (c) of section 830.1
are “employed to perform duties exclusively or initially relating to
custodial assignments with responsibilities for maintaining the
operations of county custodial facilities, including the custody,
care, supervision, security, movement, and transportation of
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inmates.” (§ 830.1, subd. (c).) Such deputies are not required to
complete “the full course of training required for regular sheriff ’s
deputies by the Commission on Peace Officer Standards and
Training (POST).” (Orosco, supra, 82 Cal.App.5th at p. 357.)
The scope of authority of deputies described in
section 830.1, subdivision (c) is narrower than the authority
of deputies described in subdivision (a); it “extends to any place
in the state only while engaged in the performance of the duties
of the officer’s respective employment and for the purpose of
carrying out the primary function of employment relating to
the officer’s custodial assignments, or when performing other
law enforcement duties directed by the officer’s employing
agency during a local state of emergency.” (§ 830.1, subd. (c),
italics added.) When not so engaged, the deputy is “without
peace officer status during that time.” (85 Ops.Cal.Atty.Gen.
130, 131 (2002).)
Flint points to evidence that Rosa worked at the
Los Angeles County Inmate Reception Center and had never
“worked the street.” Therefore, Flint argues, Rosa was a deputy
described in subdivision (c) of section 830.1, and, as such, had
no peace officer authority while off-duty; and because she was
off-duty at the time Gonzalez killed her, she was not “killed
while in the course of [her] duties,” for purposes of section 189,
subdivision (f).
As the Attorney General argues, Flint did not raise this
argument below. Indeed, through counsel, he informed the court
prior to the hearing that “[t]he sole issue in [the evidentiary
hearing] is what Flint knew or reasonably should have known
at the time of the shooting.” In its response to the petition
for resentencing, the prosecution adopted Flint’s position,
16
stating that the evidentiary hearing is “for the sole purpose
of determining whether . . . Flint knew or reasonably should
have known that . . . Rosa was a peace officer engaged in the
performance of her duties at the time she was murdered.” At
the outset of the hearing, the court accepted the representations
of counsel for both sides, and stated that “the issue in this case is
whether Mr. Flint knew, or reasonably should have known, that
Deputy Rosa was a peace officer engaged in the performance of
her duties when Gonzalez killed her.” And during the hearing,
after it appeared that the question of what Flint knew or should
have known would turn on the narrower question whether he had
seen Rosa’s badge before or during the crime, the court stated:
“We all agree, the only issue in this proceeding is whether or not
Flint saw the badge.” Flint’s counsel never gave any indication
that he had changed his position as to the issues or that he
disagreed with either the prosecutor’s or the court’s framing of
the issue.
The prosecutor, in her closing argument, reiterated that
the “only question at this hearing is: Did Justin Flint know
or reasonably should have known . . . Rosa was a peace officer
engaged in the performance of her duties when she was killed.”
In his closing, Flint’s counsel did not disagree with the
prosecutor’s statement of the issue and raised no question
regarding Rosa’s authority as a peace officer or whether she was
acting in the course of her duties at the time she was killed.
The Attorney General argues that the forfeiture rule
applies here because, if Flint had raised the question whether
Rosa’s authority was limited under section 830.1, subdivision (c),
the prosecutor “could have admitted additional evidence that
could have quickly cleared up the concern, such as Deputy Rosa’s
17
POST certificate or additional testimony from Sergeant Inez
regarding her designation and/or certification.” The Attorney
General further argues that if Flint did not forfeit the issue and
we do not reject his argument on the merits, we should remand
the matter so that the trial court can address “whether Deputy
Rosa was acting within the scope of her duties for purposes of
the section 189, subdivision (f ), peace officer exception.”
Flint, anticipating the Attorney General’s forfeiture
argument, points out that a challenge to the sufficiency of the
evidence can be raised for the first time on appeal. (See People v.
Kiger (2022) 76 Cal.App.5th 1147, 1150; People v. Butler (2003)
31 Cal.4th 1119, 1126 (Butler).) Flint further argues that, if his
appointed counsel forfeited the issue by failing to argue it below,
the failure deprived him of his right to effective assistance of
counsel.
Prior to the date set for oral argument, we informed
the parties that “they may wish to address the applicability
of People v. Peters (1950) 96 Cal.App.2d 671, 675–678” (Peters)
to this issue. In response, Flint filed a motion for leave to file
a supplemental brief to address Peters. We granted the motion
and allowed the Attorney General to file a response. We have
read and considered the supplemental briefs submitted by both
parties.
In Peters, the defendant, during a confrontation with one
person unintentionally stabbed a different person, named Cole.
(Peters, supra, 96 Cal.App.2d at p. 674.) Cole was treated at a
hospital for his injury but later died. The defendant was charged
with involuntary manslaughter. At his trial, no evidence of the
cause of Cole’s death was admitted. (Id. at p. 675.) On appeal,
the defendant argued that the absence of evidence of the cause
18
of death constituted a failure to prove that fact. The Court
of Appeal rejected the argument. The court explained: “In
a criminal case a defendant is not called upon to make [an]
explanation, to deny issues expressly (his plea of not guilty does
that for him), nor is he required to point out to the prosecution
its failure to make a case against him or to prove any link in the
required chain of guilt. On the other hand, he cannot mislead
the court and jury by seeming to take a position as to the issues
in the case and then on appeal attempt to repudiate that position.
A reading of the proceedings at the trial, including defendant’s
statement at the opening of his case and his argument to the
jury at the end of the case, clearly shows that at no time was
he questioning either that the knife wound caused Cole’s death,
or that that fact had not been established or was an issue to be
resolved by the jury. It also shows that defendant was conceding
the cause of death.” (Id. at p. 676.)
The Peters court further stated: “It would be a miscarriage
of justice to set aside a verdict found by the jury on all issues
which defendant at the trial believed necessary to be submitted
to the jury. After all, a criminal case or court proceeding is not
a game in which participants may be misled by a defendant’s
attitude and conduct at the trial, and then the verdict be set
aside on appeal, because defendant contends there was no proof
of a fact which he had conceded, not by express word, but by
conduct.” (Peters, supra, 96 Cal.App.2d at p. 677; see People v.
Pijal (1973) 33 Cal.App.3d 682, 697 [it is “well established that
the defendant . . . cannot mislead the court and jury by seeming
to take a position on issues and then disputing or repudiating the
same on appeal”]; accord, In re Francis W. (1974) 42 Cal.App.3d
892, 903.)
19
In his supplemental brief regarding Peters, Flint relies on
Butler, supra, 31 Cal.4th 1119. In that case, a jury convicted the
defendant of committing lewd and lascivious acts with a minor
under the age of 14 (§ 288, subd. (a)), sexual battery (§ 243.4,
subd. (d)), and attempted sexual penetration (§§ 289, subd. (i),
664). In sentencing the defendant, the court ordered that he
submit to a blood test for AIDS. (See § 1202.1, subd. (a).) The
court did not, however, make a required finding “ ‘that there is
probable cause to believe that blood, semen, or any other bodily
fluid capable of transmitting HIV has been transferred from the
defendant to the victim.’ ” (Butler, supra, 31 Cal.4th at p. 1125.)
Although the defendant did not object to the testing order in the
trial court, he argued on appeal that the evidence was insufficient
to support an implied finding of probable cause. The Supreme
Court held that the defendant had not forfeited the argument
based on the general rule that challenges to the sufficiency of the
evidence can be asserted on appeal notwithstanding the failure to
raise the issue below. (Id. at pp. 1126–1128.)
In considering the remedy, the Butler court observed that,
“ ‘in the absence of an objection at trial, the prosecutor had no
notice that such evidence would be needed to overcome a defense
objection.’ ” (Butler, supra, 31 Cal.4th at p. 1129.) If “evidence
exists to support a testing order,” the court stated, striking the
testing order for lack of substantial evidence “would be unfair
to both the victim and the public.” (Ibid.) The court therefore
agreed with the Court of Appeal that the appropriate remedy
was to remand the matter “for further proceedings to determine
whether the prosecution has additional evidence that may
establish the requisite probable cause.” (Ibid.)
20
A similar analysis and remedy are appropriate here.
As in Butler, we apply the general rule that a challenge to
the sufficiency of the evidence is not forfeited by failing to raise
the issue below. In light of that failure and defense counsel’s
representations as to the issues to be decided in the evidentiary
hearing, however, the prosecutor reasonably saw no need to
introduce evidence as to whether Rosa’s authority was limited
by section 830.1, subdivision (c), and the court had no reason to
consider or make a finding on that point. Reversing the court’s
order based on insufficiency of the evidence would thus be unfair
to the People and the court if, as the Attorney General asserts,
there is evidence that would support the necessary finding. (See
Butler, supra, 31 Cal.4th at p. 1129.) Therefore, the appropriate
remedy is to direct the court to hold a further evidentiary hearing
to determine whether Rosa was, at the time of her murder, acting
“in the course of [her] duties” as a peace officer. (§ 189, subd. (f);
see § 830.1, subds. (a) & (c); see also People v. Jones (2022) 86
Cal.App.5th 1076, 1093 [where trial court apparently failed to
consider relevant issue in denying resentencing petition, Court
of Appeal remanded the case “in the interest of justice” to give
the court “a meaningful opportunity to consider” the issue].)
B. Admission of Gonzalez’s Perkins Operation
Statements
Prior to the evidentiary hearing, Flint objected to the
introduction of Gonzalez’s statements made during the Perkins
operation that Rosa had displayed her badge prior to him firing
the shots that killed her. The court allowed the statements into
evidence, stating that the concerns about their trustworthiness
go “to the weight, not the admissibility of [the evidence].” Flint
21
contends that the ruling was erroneous and prejudicial. We
disagree.
Gonzalez’s hearsay statements were admitted as a
statement against penal interest under Evidence Code
section 1230.6 We review a trial court’s decision whether a
statement is admissible under Evidence Code section 1230 for
abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711.)
We will not disturb the court’s ruling “ ‘ “except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 585 (Geier).)
Flint does not dispute that Gonzalez was unavailable for
purposes of Evidence Code section 1230 or that his statements
were against his interest in that they “subjected him to the risk
of . . . criminal liability.” (Evid. Code, § 1230.)7 He challenges
only the court’s determination that they are sufficiently
trustworthy to be admissible.
“ ‘In determining whether a statement is truly against
interest within the meaning of Evidence Code section 1230, and
6 Evidence Code section 1230 provides: “Evidence of a
statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of civil or criminal
liability . . . that a reasonable man in his position would not
have made the statement unless he believed it to be true.”
7 As Flint acknowledges, his trial counsel did not challenge
Gonzalez’s unavailability or that the statements were against
Gonzalez’s penal interest. His challenge below, and on appeal, is
limited to the argument that the statements are not trustworthy.
22
hence is sufficiently trustworthy to be admissible, the court may
take into account not just the words but the circumstances under
which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’ ” (Geier,
supra, 41 Cal.4th at p. 584.)
The finding that the statements are sufficiently
trustworthy to be admissible is supported by the degree to
which the statements were against Gonzalez’s penal interest.
As the Attorney General asserts, at the time Gonzalez made
the statements he was in custody on charges unrelated to the
murder of Rosa, and there is no evidence that he believed he
was being investigated for that crime. The admission that he
saw Rosa’s badge, even though he wasn’t asked that question
but rather asked if Rosa pulled a gun on him, is particularly
weighty because shooting Rosa in response to her pulling a gun
on him might support a self-defense argument; shooting her after
seeing her badge, however, is evidence that not only weakens or
defeats a self-defense claim, but supports a special circumstance
warranting a death sentence. (§ 190.2, subd. (a)(7).) The court
could reasonably conclude that a reasonable person in Gonzalez’s
position would not have made such an admission “unless he
believed it to be true.” (Evid. Code, § 1230.)
Flint contends that Gonzalez’s statements regarding a
badge are not trustworthy because they conflict with statements
he made to Gosnell and Rowan shortly after the murder. He
informed both of them that he saw the badge after he shot
Rosa. He further asserts that the circumstances of Gonzalez’s
statements—being in a jail cell with other ostensible inmates
and his inclusion of false statements in his description of the
incident—suggest that he made his statements about a badge
23
as a way of bragging about the crime. Although these are
valid considerations in evaluating the trustworthiness of the
statements, they are not so weighty as to render the court’s
ruling an abuse of discretion. Accordingly, the court did not err
in allowing the statements into evidence.
DISPOSITION
The order denying Flint’s petition for resentencing is
reversed. The court shall conduct further proceedings in
accordance with the views expressed in this opinion.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
24