People v. Keaton CA2/3

Filed 6/30/22 P. v. Keaton CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B311716
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A373350)
v.
ANTONIO KEATON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kerry R. Bensinger, Judge. Affirmed.
Edward H. Schulman, 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, Scott Taryle, Heidi Salerno and Daniel C.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Antonio Keaton appeals from the denial of his petition for
resentencing pursuant to Penal Code1 section 1170.95. After an
evidentiary hearing, the superior court denied Keaton’s petition,
finding that the People had proved beyond a reasonable doubt
that Keaton was the actual killer. The superior court also found,
alternatively and independently, that the People proved beyond a
reasonable doubt that Keaton was a major participant who acted
with reckless indifference to human life. Keaton timely appealed.
On appeal, Keaton makes numerous contentions that the
superior court erred in denying his petition because the court
relied on inadmissible evidence. His main contention asserts
that Sixth Amendment rights attach to a section 1170.95
evidentiary hearing. In related contentions, Keaton specifically
challenges the admission of the eyewitness testimony, autopsy
report, analyzed evidence report, lab report, fingerprint evidence,
police report narrative, and probation report because they were
admitted in violation of Crawford and Melendez-Diaz.2 In
another related contention, Keaton challenges the admission of
the preliminary hearing transcripts on the basis that he did not
have an opportunity to cross-examine on the issues of major
participant and reckless indifference to human life with an
interest and motive similar to that at trial. In supplemental
briefing, Keaton asserts his contentions of error are further
supported by recent legislative changes made by Senate Bill
No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2; Senate
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 Crawfordv. Washington (2004) 541 U.S. 36 and Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305.
2
Bill 775), clarifying the scope of admissible evidence at a section
1170.95 hearing. Keaton also argues that the evidence was
insufficient to support the superior court’s finding of his
ineligibility for section 1170.95 relief.
As we discuss, we reject Keaton’s main and related
contentions that the Sixth Amendment applies at a
section 1170.95 evidentiary hearing, we find that Keaton has
forfeited his argument regarding the preliminary hearing
transcripts, and we find that there is sufficient evidence to
support the superior court’s finding that Keaton is ineligible for
relief pursuant to section 1170.95. Therefore, we do not reach the
claims of evidentiary error as they relate to Senate Bill 775.
Accordingly, we affirm the superior court’s judgment denying
Keaton’s petition.
BACKGROUND
I. Keaton’s plea
In 1983, Keaton pleaded guilty to a single count of first
degree murder and was sentenced to 25 years to life. As part of
the plea agreement, a robbery-murder special circumstances
allegation was dismissed. The murder charge arose from a 1981
residential burglary during which 70-year-old Lawrence Mason
was robbed and severely beaten. Mason was in a coma for four
months before succumbing to his injuries.
II. The section 1170.95 petition and proceedings
About 36 years later, in 2019, Keaton filed a petition for
resentencing pursuant to section 1170.95. In support of his
petition, Keaton filed several briefs, attaching, as relevant here, a
partial transcript of the August 1981 preliminary hearing
3
transcript3 containing testimony of Detective Addison Arce and
Officer Michael Albanese, the December 1981 preliminary
hearing transcript containing the testimony of Manuel
Hernandez, a medical doctor, and Mary Mason4, the autopsy
report, and declarations from Keaton.
The superior court held an evidentiary hearing over several
dates from November 2020 to March 2021. At the evidentiary
hearing, the following live witnesses testified: Keaton, retired
Officer Burton Franks, retired Detective Arce, Detective John
Lamberti, and fingerprint examiner Jerome Frietz. In addition
to live testimony, the People submitted 33 exhibits and the
defense submitted seven exhibits. The superior court reserved
ruling on the evidence until after the hearing.
III. The evidentiary hearing
The following is a summary of the evidence presented at
Keaton’s evidentiary hearing.5
A. The robbery-murder
In 1981, Mason was robbed, his home was burglarized, and
he was critically injured, dying from multiple blunt force injuries
3 There were two preliminary hearings conducted below.
At the first hearing, Keaton was held to answer on attempted
murder. After Mason died, Keaton was held to answer on
murder.
4 Mary Mason was Lawrence Mason’s wife.
5 This
factual summary is based on the superior court’s
memorandum of decision issued March 25, 2021 and our
independent review of the record.
4
four months later. Keaton, Hernandez, and Steven Green were
charged with the crimes.
1. Handwritten notes of eyewitness
observations
Three neighbors witnessed the initial events: A.M., A.B.,
and M.R. Detective Arce interviewed the witnesses in the hours
after the crimes, took contemporaneous notes, and preserved his
handwritten notes. The evidence gathered at the section 1170.95
hearing regarding these neighbors’ observations was based on
these notes.
A.M. was entering his apartment when he heard loud
voices coming from an adjacent apartment. He looked in that
direction and saw a Black male, wearing a dirty tan cap, a grey or
blue long sleeve shirt, and blue denim pants. He also saw a
Latino male. The two men were removing louvered windowpanes
from the apartment. A.M. asked what they were doing. The
Black male responded that his brother was inside, and they
wanted to talk to him. A.M. remarked that their way of entering
was unusual, to which the Black male responded again that his
brother was in there, and that he was probably sleeping. A.M.
returned to his apartment, and the Black male directed an
epithet at him. A.M. continued to watch the men from his
apartment. He saw another man approach the other two men.
The third man was a Black male, taller and heavier than the
other Black male. This taller, heavier Black male pushed the
other two men aside and crawled through the apartment
window.6 A.M. then called the police. A.M. then saw the Latino
6 Keaton testified that Green, who is a Black male, about
6 feet 10 inches tall, “big,” and “husky.”
5
male enter the apartment through the window. The taller,
heavier Black male left the apartment, through the window, after
three minutes, and ran off. The shorter Black male entered the
apartment through the window. The Latino male also exited the
apartment after three minutes. The Latino male acted as if he
were the lookout. A.M. never saw the shorter Black male leave
the apartment.
A.B. was on his apartment porch when he looked across the
street and saw a man removing the louvered windowpanes from
an apartment. A.B. described the man as Black, wearing a blue
cap, and no shirt. He saw a Latino man standing by. Another
man approached, who was Black, taller than the other Black
male, and thin. The shorter Black male pushed his way into the
apartment through the window. The other two men entered the
apartment, stayed inside a few minutes, and left. When the
police arrived, A.B. told them the shorter Black man was still
inside the apartment.
M.R. saw two men removing windowpanes from the
apartment beneath her. One man was Latino. The other man
was Black, wearing black pants and a navy blue shirt. The Black
man was taking windowpanes out from the window and the
Latino man was walking back and forth. The Black man entered
the apartment through the window. She heard a scream and a
crash from within the apartment. The Latino man left. She did
not see anyone else.
2. Officer Franks’s live testimony
At the section 1170.95 hearing, Officer Franks testified
that he arrived at Mason’s apartment in response to a call of a
6
burglary in progress.7 When the officer was approaching the
front door, he saw the door open and a Black male inside. The
two men looked at each other and the Black male slammed the
door shut. Officer Franks heard the lock engage and was unable
to open the door. SWAT team officers set up a perimeter around
the apartment to prevent anyone inside from exiting.
3. Preliminary hearing transcript: Officer
Albanese
Officer Albanese testified at the first preliminary hearing
that for about three hours, a negotiating team tried to contact the
intruder by telephone and by bullhorn, but no one responded.
About three hours after police arrived, Officer Albanese entered
the apartment. When he got inside, the apartment looked
ransacked. Mason was lying on the bedroom floor, shaking,
bleeding and nonresponsive. Keaton was “lying unconscious, or
appeared to be unconscious, next to the victim.” Officer Albanese
then handcuffed Keaton, who appeared to regain consciousness.
B. Keaton’s booking and interview with Detective
Arce
Detective Arce also testified at the section 1170.95 hearing
that he interviewed Keaton at the station and took notes.
Detective Arce testified regarding these statements in part from
memory. In addition, the superior court found that Detective
Arce laid the foundation for admission of his handwritten notes of
7 OfficerFranks testified that he still recalled this case
after almost 40 years because it was so unusual.
7
that interview pursuant to Evidence Code section 1237, past
recollection recorded.
1. Detective Arce’s present recollection
Detective Arce testified from memory that Keaton said he
met Hernandez and Green at a burger stand. They were
drinking whiskey together. The three of them drove around in
Green’s car. At one point, Green got out of the car and took
someone’s purse. Green also bought marijuana cigarettes and
the three continued to drink and smoke. Green asked if Keaton
wanted to make some money, and Keaton said he wanted to
work. Hernandez also asked Keaton, “You want to make money
real quick?” They drove over to an apartment. Green went to the
door and knocked on the door. Green hit the resident and then
entered the apartment. Keaton was forced into the apartment.
Detective Arce also testified from memory that he went into
the apartment shortly after the SWAT team entered, and that
Keaton and Mason were alone together in the apartment for
three hours.
Detective Arce was present during the prebooking search of
Keaton at which two gold metal chains and one ring were found
in Keaton’s underwear. Later, Keaton told Detective Arce he had
been tied up with a four-foot rope.
2. Detective Arce’s past recollection
recorded
Keaton told Detective Arce he was at a burger stand when
he met two men: a l7 to 18-year-old Latino man named Manuel
Lupes and a 23 to 25-year-old Black man named Slim.8 They
8 Keaton referred to Green as “Slim” and Hernandez as
“Manuel.”
8
offered to help Keaton find a job. Keaton had never seen these
two men before. After drinking whiskey together, all three men
got into a car and drove around for 30 minutes. During this time,
Slim took someone’s purse. They returned to the burger stand
where they smoked marijuana and continued drinking. They got
back in the car and drove around Hollywood. According to
Keaton, at some point, Manuel asked him, “You want to make
money, real quick?” They drove to an apartment. Slim went to
the apartment and knocked on the door. A person answered,
they spoke, and Slim went inside. Manuel pushed Keaton inside
the apartment. A lady was watching. Keaton said he was going
to leave, but Slim and Manuel told him to sit down. Slim started
hitting the old man. Slim and Manuel were both throwing
punches at the old man. Keaton started to leave but Slim started
hitting Keaton. Slim grabbed Keaton around the neck and threw
him to the floor. Slim and Manuel took Keaton into a room and
started punching him. Keaton saw that the old man was lying
down with his eyes shut. Keaton said Slim and Manuel told
Keaton to lie down on the bed. They tied Keaton’s hands with a
four-foot rope. They told Keaton not to say anything or they
would kill him. Slim and Manuel left. Keaton rolled off the bed
onto the floor. He rubbed his hands together and got free.
Keaton said he tried to talk to the old man. As Keaton was about
to leave, he fell down. Keaton said he was yelling for help.
Keaton did not know if Slim or Manuel took anything.
Keaton further explained that when the three men
approached the apartment, Slim grabbed Keaton and told him to
take out the windows. Keaton said, “No, I don’t want to.” Slim
said they would kill Keaton if he did not remove the windows.
They pushed Keaton through the window. Keaton saw Manuel
9
and Slim grab the old man. They asked the man for money and
started hitting him. Keaton also told Detective Arce he had been
hit on the head. Detective Arce felt some lumps on the top of
Keaton’s head, but Keaton did not request medical attention.
Keaton also said that Manuel had a bag of jewelry, grabbed
Keaton’s hand, and put a couple of necklaces in it. Keaton put
the necklaces in his pants. At another point, Keaton said he did
not take the jewelry, and he did not know how the jewelry got
into his pants.
C. Forensic evidence
At the section 1170.95 hearing, Detective Arce testified he
arrived at the scene after Keaton was arrested.9 Detective Arce
observed blood on the sofa, in the living room, on the bed in the
bedroom, and on the hallway floor between the bedroom and the
bathroom. He also observed “blood splatters throughout the
house.” Window panels were missing from a window near the
kitchen and a window in the bathroom. The window panels were
not shattered. He determined the burglar entered the apartment
through a louvered window near the kitchen area. There was no
rope found.
In preparation for the section 1170.95 hearing, Frietz, an
LAPD forensic print specialist, compared latent fingerprints that
were recovered from Mason’s bathroom area to Keaton’s palm
print and Keaton’s fingerprints from the automated fingerprint
identification system. At the hearing, Frietz positively identified
eight of the latent fingerprints from Mason’s bathroom area as
being Keaton’s fingerprints.
9 Detective Arce also testified that he still recalled the case.
10
D. Hernandez’s testimony at the preliminary
hearing
The second preliminary hearing transcript contained
Hernandez’s testimony. At that hearing, Hernandez testified
that on the day of the crimes, he met Keaton at the burger stand.
Hernandez had seen Keaton at the restaurant before. Keaton
was drunk and asked Hernandez if he was interested in robbing
a house. Hernandez agreed and the two of them walked a couple
of blocks to a nearby house. When they arrived, the front wooden
door was open, but the outside screen door was closed and locked.
Keaton used a pen to tear the screen door. While Keaton was
tearing the screen, an older White man closed the inside wooden
door and said, “Go away.” Hernandez and Keaton left. Sometime
later, Hernandez and Keaton returned to the house. As they
were standing in front of the house, they ran into Green, a friend
of Hernandez’s. Green and Keaton talked about going into the
house; then Keaton approached the house and knocked on the
door. The older man said, “Go away or I am going to call the
police.”
Instead of going away, Keaton went around to the window.
Using his hands, Keaton took out some window panels and broke
others, leaving blood on his hands. Keaton went inside the house
through the window. While Keaton was inside the house,
Hernandez paced outside the house. When Hernandez got closer
to Mason’s front door, he heard hitting noises. He heard the
older man say, “Help me! Help me!” and Keaton said, “Shut up.”
Then, Green went inside the house through the window. After
Green was inside for three minutes, Green opened the front door
and took off running. Hernandez stood by the open front door for
about three minutes. He saw Keaton kick the man in the face,
11
hit the man in the face with his fist, and ask the man for money.
Keaton gave Hernandez a watch and asked Hernandez to help
him find money. Keaton approached the man again, hit him on
the face, and said, “[T]ell me where the money is or I am going to
kill you.” At that point, Hernandez left with the watch.
Hernandez maintained that he stood by Mason’s front door
during the crime and never went inside the house.
During cross-examination, Hernandez admitted that he
gave a statement to the police, lied about his age, and lied about
the number of watches he took. Hernandez told the police he was
16 years old and took two watches when in reality he was 14
years old and took one watch. Hernandez testified that he lied
about the watches because he believed that he had to talk to the
police, or some harm would come to him. An officer told him that
if he did not admit to taking and selling two watches, as Green
had told the officer, Hernandez “was going to get into more
problems.”
E. Mary Mason’s testimony at the preliminary
hearing
The second preliminary hearing transcript also contained
Mary Mason’s testimony. At that hearing, Ms. Mason testified
that her husband had hip surgery about a year before the crime,
that he was able to get around their apartment by holding on to
things, and sometimes used a walker. When she eventually went
inside her home after the crime, she discovered two of her
husband’s watches, chains, and a ring were missing. She
identified the chains and ring recovered form Keaton’s underwear
as her husband’s jewelry. She also discovered “a hat with a little,
like a golf thing and a furry thing” in her garbage disposal.
12
F. Keaton’s probation report
In 1983, a probation officer interviewed Keaton in
preparation for sentencing and prepared a written report.
Keaton told the probation officer that he met Green at the
burger stand on the day of his arrest. He also met Hernandez for
the first time that day. On the day of the incident, Keaton was
walking down the street when Hernandez called his name.
Keaton and Hernandez started eating and talking. Green came
over and said, “[L]et’s go to work.” They got into a car with
Green. Previously they had taken some PCP. During the drive,
Green got out of the car and returned with a purse. Then
Keaton, Green, and Hernandez arrived at a house, and all three
exited the car. Green put a knife to Keaton’s neck, said, “[B]e
cool,” and ordered Keaton to remove some windows from the
house. Keaton asked if he could leave, but Green refused. Then
Keaton and Green entered the house through the window. Green
opened the front door and let Hernandez in. Green started
hitting the old man. Keaton tried to leave, but Green grabbed
him and struck him. The next thing Keaton knew was that “the
police came in.”
G. Keaton’s statement to the parole board
In 2016, Keaton appeared before the parole board and gave
a statement about the crime.
At that hearing, Keaton explained that he met Hernandez
at the burger stand a couple of days before the crime. Hernandez
offered to help Keaton find work. A couple days later, on the day
of the crime, Keaton met Hernandez at the burger stand.
Hernandez said, “Hey, let’s go to my brother’s house.” The two of
them walked to an apartment complex. They were not under the
influence of any drugs or alcohol. When they arrived, Hernandez
13
told Keaton that his brother was not home and asked for Keaton’s
help getting inside. Keaton went over to a window and as he was
inspecting it, a neighbor looked at him. In response, Keaton told
the neighbor that Hernandez’s brother lived there, and he was
just helping Hernandez get in.
Keaton then proceeded to take the louvered windows out.
He crawled through the window near the dining room and got
inside the apartment. As he walked towards the front door to let
Hernandez in, an elderly man said, “What are you doing here?
Get out of here.” Then Keaton opened the front door and tried to
leave, but Hernandez and Green, whom he had never seen before,
were at the front door, so Keaton tried to exit through the
window, but someone grabbed him from the back and hit him on
the head, knocking him unconscious. He woke up in a police car.
He did not know how the jewelry got into his underwear.
H. Keaton’s declaration
Keaton submitted a declaration for the section 1170.95
hearing that included the same facts that he provided at the
parole board hearing.
I. Keaton’s testimony at the evidentiary hearing
Keaton testified at his section 1170.95 evidentiary hearing.
On direct examination, he testified to the same facts he provided
at the parole board hearing. During cross-examination, when
confronted with his statements to Detective Arce in 1981, he
denied making nearly all of those statements.
He stated that when he was arrested and taken to the
station, he did not have any injuries or blood on him. He also
discussed what clothing he was wearing before and after the
crime.
14
J. The superior court’s evidentiary rulings
The superior court admitted the following evidence without
objection: transcripts of both preliminary hearings, the
transcript of Keaton’s plea, Keaton’s declaration, and
photographs and diagrams of the crime scene.
The superior court admitted the following evidence over the
defense objection:10 a partial transcript of parole board
suitability hearing, autopsy report, portions of the probation
report, portions of the police report narrative, Detective Arce’s
handwritten notes of a recorded interview with Keaton, Detective
Arce’s handwritten notes of interviews with witnesses A.M.,
M.R., and A.B., DOJ live scan, Keaton’s rap sheet, analyzed
evidence report, booking form, property report, laboratory report,
latent fingerprint cards, and Keaton’s palm prints.
K. The superior court’s ruling on the petition
The superior court denied Keaton’s petition in a 33-page
memorandum of decision, finding that the prosecution
established beyond a reasonable doubt each element of first
degree murder pursuant to the felony-murder rule under the
newly amended sections 188 and 189. The superior court also
found, on an alternative and independent basis, that the
10 The superior court analyzed the admissibility of the
contested evidence based on its interpretation of the meaning of
“new or additional evidence” in former section 1170.95,
subdivision (d)(3). The superior court relied on People v.
Williams (2020) 57 Cal.App.5th 652 and People v. Hall (2019)
39 Cal.App.5th 831, using the analytical framework of “reliable
hearsay” to determine the admissibility of the evidence. Given
our conclusion in this case, we do not reach whether Williams
and Hall survive the Legislature’s recent amendments to
section 1170.95, subdivision (d)(3).
15
prosecution had proved beyond a reasonable doubt that Keaton
was a major participant in the underlying felony and acted with
reckless indifference to human life.
In denying Keaton’s petition for relief, the superior court
found Hernandez’s preliminary hearing testimony “far more
credible” than Keaton’s and “sufficiently credible to carry the
People’s burden of proof.” The superior court found that Keaton
was not a credible witness, observing that Keaton’s various
statements were inconsistent and, in some respects,
implausible.11
The superior court found that the evidence established
beyond a reasonable doubt that Keaton was the actual killer. In
coming to this conclusion, the superior court relied on
Hernandez’s testimony, which was admitted through the
preliminary hearing transcript. The superior court noted that
Hernandez’s testimony was corroborated by the eyewitness
testimony, the testimony of Detective Arce, and the fingerprint
evidence.
As an alternative and independent basis for denying the
petition, the superior court conducted an analysis pursuant to
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522 on the issue of whether Keaton was a major
participant in the underlying felony and acted with reckless
indifference to human life. In conducting the analysis, the
superior court reasoned that “even if [it] were to discredit
Hernandez’s testimony entirely, stripping away his direct
11 Thesuperior court found Keaton’s claim that he did not
know the two gold chains and the ring were in his underwear
incompatible with the physical reality of wearing underwear.
16
testimony that the burglary/robbery was Keaton’s idea and that
Keaton was the actual killer, and credit Keaton’s testimony that
he did not strike Mason, the People have proved beyond a
reasonable doubt that Keaton was a major participant . . . and
acted with reckless indifference to human life.”
DISCUSSION
Keaton makes numerous contentions on appeal that the
superior court erred in denying his petition because the court
relied on inadmissible evidence. Keaton also contends that
insufficient evidence supports the superior court’s finding that he
was a major participant who acted with reckless indifference to
human life. 12
12 Keaton also contends that the parole transcript and
probation reports were erroneously admitted because they are
not part of the record of conviction. The People contend that this
argument is flawed because even under former section 1170.95,
subdivision (d)(3), the prosecutor and the petitioner were
permitted to rely on “the record of conviction or offer new or
additional evidence to meet their respective burdens.” We agree.
To the extent that Keaton can be understood to claim that it was
error to consider the parole hearing transcript and probation
reports under the newly amended language of Senate Bill 775, we
do not reach that contention as we explain.
Keaton further claims that his due process and equal
protection rights were violated. While Keaton offers us a brief
explanation of the concept of equal protection, he provides little
to no analysis of these claims. These claims fail for lack of
adequate argument and authority. (See Imagistics Internat., Inc.
v. Department of General Services (2007) 150 Cal.App.4th 581,
593 [claim that administrative remedy violated federal
17
I. Overview of section 1170.95
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Stats. 2018, ch. 1015, § 1; Senate Bill 1437) amended
murder liability under the felony-murder rule and natural and
probable consequences doctrine. (People v. Lewis (2021) 11
Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842–
843.) As relevant here, Senate Bill 1437 amended the felony-
murder rule by adding section 189, subdivision (e), which now
provides that a participant in the perpetration of qualifying
felonies is liable for felony murder only if the person: (1) was the
actual killer; (2) was not the actual killer but, with the intent to
kill, acted as a direct aider and abettor; or (3) was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in section 190.2,
subdivision (d). (Gentile, at p. 842.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder theory may petition the superior court to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (People v. Lewis, supra, 11 Cal.5th at
p. 959; People v. Gentile, supra, 10 Cal.5th at p. 843.)
As relevant here, Senate Bill 775, which took effect on
January 1, 2022, amended section 1170.95 to address the scope of
admissible evidence at the evidentiary hearing. As amended,
section 1170.95, subdivision (d)(3) provides, in relevant part:
“The admission of evidence in the hearing shall be governed by
the Evidence Code, except that the court may consider evidence
supremacy clause failed for lack of adequate argument and
authority].)
18
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless
the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens.”
II. The Sixth Amendment right to confrontation does
not attach to a section 1170.95 evidentiary hearing
Keaton contends that he is entitled to the same rights as a
defendant facing a new criminal prosecution. Because he was
denied those rights, he asserts the evidence against him was
admitted in violation of the Sixth Amendment. The People assert
that the retroactive relief afforded by section 1170.95 is an act of
lenity by the Legislature that is not analogous to a criminal trial
and does not implicate Keaton’s constitutional trial rights. We
agree with the People.
The Sixth Amendment of the United States Constitution
guarantees that “[i]n all criminal prosecutions,” the accused has
the right “to be confronted with the witnesses against him.” The
confrontation clause therefore bars the “admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Crawford v. Washington,
supra, 541 U.S. at pp. 53–54; see People v. Sanchez (2016) 63
Cal.4th 665, 680.)
19
While the “Sixth Amendment applies ‘[i]n all criminal
prosecutions[,]’ [Citation.] [a] petition under section 1170.95 is
not a criminal prosecution.” (People v. Silva (2021)
72 Cal.App.5th 505, 520.) Thus, appellate courts consistently
have held that the “ ‘retroactive relief provided by section 1170.95
reflects an act of lenity by the Legislature “that does not
implicate defendants’ Sixth Amendment rights.” ’ ” (Ibid.; accord,
e.g., People v. James (2021) 63 Cal.App.5th 604, 610 [convicted
person litigating § 1170.95 petition does not enjoy rights that
Sixth Amendment guarantees to criminal defendants who have
not yet suffered final conviction]; People v. Perez (2020)
54 Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254
[Senate Bill 1437 not subject to Sixth Amendment analysis];
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [relief
afforded by Senate Bill 1437 “constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights”].)
Although Senate Bill 775 amended section 1170.95,
subdivision (d)(3) to clarify the scope of evidence admissible at an
evidentiary hearing, in so clarifying, it did not provide the
petitioner with the right to confront witnesses at that hearing.
There is nothing in the language of the amended statute to
suggest that the Legislature intended for the admission of
evidence at the hearing to be subject to the confrontation clause.
Both Crawford and Melendez-Diaz concerned the admission
of testimonial hearsay against a defendant at a criminal trial.
(Crawford v. Washington, supra, 541 U.S. at pp. 53–54
[admission of testimonial statements of witness not appearing at
trial violates defendant's confrontation rights unless witness is
unavailable to testify and defendant had prior opportunity for
cross-examination]; Melendez-Diaz v. Massachusetts, supra,20
557 U.S. at pp. 310–311 [extending Crawford’s holding to forensic
reports].) Section 1170.95 is an optional postconviction
resentencing procedure. “A person convicted of [enumerated
qualifying offenses] may file a petition.” (§ 1170.95, subd. (a),
italics added.)
Accordingly, the Sixth Amendment right of confrontation
does not apply at a section 1170.95 evidentiary hearing and the
evidence admitted against Keaton was not admitted in violation
of the holdings of Crawford and Melendez-Diaz.13
III. Keaton has forfeited any objection to the admission
of the preliminary hearing transcripts
In a related contention, Keaton argues that the preliminary
hearing transcripts should not have been considered by the
superior court because Keaton did not have a similar motive and
13 Keaton also argues that the statements he made at the
parole board hearing should not have been admitted against him
because such admission runs contrary to the right against self-
incrimination. He cites to People v. Coleman (1975) 13 Cal.3d
867, 874–878, in which our Supreme Court held that a
defendant’s testimony at a probation violation hearing is
inadmissible as substantive evidence in a subsequent criminal
trial on the criminal charges. As we have explained, a hearing
pursuant to section 1170.95 is not a criminal trial. As such, it
does not implicate a defendant’s constitutional rights under the
Fifth Amendment. (See People v. Myles (2021) 69 Cal.App.5th
688, 705–706; People v. Anderson (2022) 78 Cal.App.5th 81.)
We also reject Keaton’s claim that he is entitled to a jury
determination on the issues of major participant and reckless
indifference to human life. There is nothing in the language of
the amended statute that remotely suggests that the Legislature
intended that factfinding be determined by a jury at a
section 1170.95 hearing.
21
opportunity as at trial to cross-examine the witnesses, because
the elements of major participant and reckless indifference to
human life were not relevant to the magistrate’s decision.
Keaton argues that any objection to the admission of the
preliminary hearing transcripts below would have been futile.
The People contend that Keaton has forfeited this claim because
not only did Keaton fail to object below, he was the one who
moved the preliminary hearing transcripts into evidence. We
agree with the People.
A party is not permitted to challenge an evidentiary ruling
based upon an argument never presented to the superior court.
(People v. Partida (2005) 37 Cal.4th 428, 435–438.) A “challenge
to the admission of evidence is not preserved for appeal unless a
specific and timely objection was made below.” (People v.
Anderson (2001) 25 Cal.4th 543, 586; Evid. Code, § 353,
subd. (a).)
At the evidentiary hearing, Keaton moved the first and
second preliminary hearing transcripts into evidence which the
superior court admitted. In fact, they were labeled as defense
exhibits. After the evidentiary hearing, Keaton submitted
briefing on his evidentiary objections, which did not include
objections to the preliminary hearing transcripts.
Keaton not only failed to object below to the preliminary
hearing transcript, on any grounds, but importantly, he was the
party who offered both preliminary hearing transcripts as
evidence.14 Accordingly, Keaton has forfeited this claim. In any
14 Theremay be strategic reasons why Keaton may have
wanted the preliminary hearing transcripts admitted. It appears
that Keaton may have offered the preliminary hearing
22
event, this contention is rooted in the assumption that the Sixth
Amendment applies here, and as previously discussed, it does
not.
IV. Substantial evidence supports the superior court’s
finding that Keaton is ineligible for relief pursuant
to section 1170.95
The People argue that even assuming the superior court
erred in admitting the evidence at issue, any error was harmless
under People v. Watson (1956) 46 Cal.2d 818, because the
superior court’s ruling did not require relying on any of the
contested evidence, and substantial evidence supports the
finding. Keaton contends that if the erroneously admitted
evidence is set aside, the remainder is insufficient to support the
superior court’s finding that Keaton was a major participant and
showed reckless indifference to human life.
Assuming, arguendo, the superior court erred in admitting
the evidence as argued by Keaton, reversal is not required unless
it is reasonably probable Keaton would have obtained a more
favorable outcome had the evidence been excluded. (People v.
Watson, supra, 46 Cal.2d at p. 836.) We review the court’s
determinations at the section 1170.95, subdivision (d)(3),
evidentiary hearing for substantial evidence. (People v. Clements
(2022) 75 Cal.App.5th 276, 298.)
transcripts, and Hernandez’s testimony in particular, in order to
serve as a foil to Keaton’s own testimony. In closing argument,
Keaton, through his counsel, argued his own testimony at the
section 1170.95 hearing was truthful and honest, whereas, in
contrast, the cross-examination of Hernandez at the preliminary
hearing revealed so many inconsistencies that Hernandez was
not to be believed whatsoever.
23
A. Major participant
In determining whether a defendant is a major participant
in an underlying felony pursuant to section 189, subdivision (e),
we look to People v. Banks, supra, 61 Cal.4th 788. Banks, at
page 794, considered “under what circumstances an accomplice
who lacks the intent to kill may qualify as a major participant.”
Our Supreme Court listed various factors that should be
considered: “What role did the defendant have in planning the
criminal enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inactions play a
particular role in the death? What did the defendant do after
lethal force was used?” (Id. at p. 803.) “No one of these
considerations is necessary, nor is any one of them necessarily
sufficient.” (Ibid.)
Here, considering only Keaton’s testimony at his
section 1170.95 hearing, the live testimony of percipient
witnesses Officer Franks and Detective Arce, including Keaton’s
statements to Detective Arce after his arrest—evidence that has
not been contested in this appeal—substantial evidence supports
several of the Banks factors. First, by his own admission, Keaton
was present at the scene and admitted to being inside. He
removed the louvered windows from Mason’s apartment. Keaton
testified that he tried to leave the apartment, but that he was
knocked unconscious, and the next thing he remembered was
being in a patrol car. However, Keaton was impeached with his
24
statements to Detective Arce. In the statement he gave to
Detective Arce, Keaton went inside the apartment and witnessed
the beating. Further, Officer Franks’s live testimony established
that Keaton was present and aware inside the apartment.
Officer Franks made eye contact with Keaton at the front door,
after which Keaton slammed the door shut. Unconscious people
do not slam doors. When the police finally entered the
apartment, only Keaton and Mason were inside. Mason’s jewelry
was found in Keaton’s underwear, which supports the conclusion
that Keaton participated in the crimes. Once inside, Keaton
would have immediately recognized the particular dangers of the
crime. Not only was Mason home, but he was a frail 70-year-old
man. After the lethal force occurred, Keaton remained inside the
apartment for about three hours. During this time, he was not
only a major participant, he was the only participant. He could
have helped, but he did not. As to Keaton’s claim that he was
tied up with a rope, Detective Arce testified that no rope was
found at the scene. This supports the conclusion that Keaton was
in a position to prevent the murder yet did nothing. Moreover,
Keaton actively prevented the police officers from helping Mason.
He closed the front door on Officer Franks, prompting Officer
Franks to request the SWAT team. Then, for the next three
hours, Keaton ignored the officers’ many attempts to
communicate with him. Even after the police arrested him, he
continued to thwart police efforts by feigning unconsciousness
and lying about the underlying events. Although there was no
evidence regarding Keaton’s role in planning the felony, and no
evidence about Hernandez’s and Green’s past experiences and
Keaton’s knowledge of those past experiences, nonetheless,
25
substantial evidence exists to support the superior court’s finding
that Keaton was a major participant.
B. Reckless indifference to human life
In determining whether a defendant displays reckless
indifference to human life pursuant to section 189,
subdivision (e), we look to People v. Clark, supra, 63 Cal.4th 522.
Reckless indifference to human life is “ ‘implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death.’ ” (Id. at p. 616.) Recklessness has both a subjective and
an objective component. Subjectively, the defendant must
consciously disregard risks known to him. Objectively,
recklessness is determined by “what ‘a law-abiding person would
observe in the actor’s situation,’ ” that is, whether defendant’s
conduct “ ‘involved a gross deviation from the standard of conduct
that a law-abiding person in the actor’s situation would
observe.’ ” (Id. at p. 617.)
Clark listed factors to consider when determining whether
reckless indifference existed: “Did the defendant use or know
that a gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present at
the crime? Did he or she have the opportunity to restrain the
crime or aid the victim? What was the duration of the interaction
between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s
propensity for violence or likelihood of using lethal force? What
efforts did the defendant make to minimize the risks of violence
during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677
[summarizing Clark factors].) As with the major participant
considerations, “ ‘[n]o one of [the reckless indifference]
considerations is necessary, nor is any one of them necessarily
26
sufficient.’ ” (People v. Clark, supra, 63 Cal.4th at p. 618.) “We
analyze the totality of the circumstances to determine whether
[the defendant] acted with reckless indifference to human life.”
(Scoggins, at p. 677.)
Here, again only considering Keaton’s testimony at his
section 1170.95 hearing, his statements to Detective Arce, and
the live testimony of percipient witnesses Officer Franks and
Detective Arce, substantial evidence supports several of the
Clark factors. It is true that there is no evidence that weapons
were involved in Mason’s murder. However, Keaton was present
at the scene and did nothing to prevent the beating. As discussed
above, Keaton removed the louvered windows, went inside, and
stayed inside. Once inside, Keaton witnessed Mason’s beating,
did nothing to intervene, remained inside after Hernandez and
Green left, and stayed inside for three hours while police were
attempting to communicate with him. Three hours provided
Keaton with plenty of time to appreciate Mason’s condition. For
three hours, Keaton prevented the police from coming to Mason’s
aid. Though Keaton claimed he was unconscious during that
time, the testimony of Officer Franks completely contradicts that
claim, as does the jewelry found in his underwear. Officer
Franks’s live testimony established that he made eye contact
with Keaton at the front door, after which Keaton slammed the
door shut. This is strong evidence that Keaton was not
unconscious, and thus was in a position to appreciate Mason’s
critical condition. Officer Franks would have no reason to call for
the SWAT team if he believed the only individuals inside the
apartment were unconscious and injured. When the police finally
entered the apartment, only Keaton and Mason were inside.
Thus, substantial evidence existed to support the superior court’s
27
finding that Keaton acted with reckless indifference to human
life.
In sum, we are satisfied that, even without considering the
challenged evidence, substantial evidence supports the superior
court’s finding that Keaton was a major participant who acted
with reckless indifference to human life. Thus, Keaton has not
met his appellate burden of showing prejudicial error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KIM, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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