People v. Reynoso CA2/8

Filed 12/8/20 P. v. Reynoso CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303277
Plaintiff and Respondent, (Los Angeles County.
Super. Ct. No. YA013691)
v.
OMAR REYNOSO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Laura C. Ellison, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Senior Assistant
Attorney General, Charles S. Lee and Stacey S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Twenty-six years after he pleaded no contest to second
degree murder, Omar Reynoso filed a petition for resentencing
pursuant to Senate Bill No. 1437 (SB 1437), which “amend[ed]
the felony murder rule and the natural and probable
consequences doctrine 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).) The trial court denied
his petition, finding Reynoso was not eligible for relief as a
matter of law because the record demonstrates he was the actual
killer. We affirm the order denying Reynoso’s petition for
resentencing.
FACTS1
Fernando Zamora died from a gunshot wound to the chest
at approximately 4:00 a.m. on September 12, 1992. One witness
reported the shooting occurred in connection with an attempted
robbery. Another witness indicated gang signs and slogans were
exchanged before the shooting. Others reported a drive-by
shooting occurred with no words exchanged. Police officers were
able to determine from the witness statements that a light blue
or white compact car was used during the murder..
Four days after the shooting, police stopped Reynoso for
speeding. He was driving a rental car that matched the
description of the one used during the murder. The rental agency
reported the car may have been stolen since it was scheduled to
be returned in August. Reynoso was arrested for unlawful taking
or driving of a motor vehicle. Due to the similarity between the
1 The facts presented below are taken from the probation
report at issue in this case.
2
car Reynoso was driving and the car allegedly used in the
shooting, detectives questioned him about Zamora’s murder.
Reynoso confessed.
Reynoso was charged with murder pursuant to Penal Code2
section 187, subd. (a) with the additional allegation that he
personally used a firearm pursuant to sections 1203.06, subd.
(a)(1) and 12022.5, subd. (a). He pleaded no contest to second
degree murder. The firearm allegation was stricken. He was
sentenced to 15 years to life in state prison on October 28, 1993.
On February 8, 2019, Reynoso filed a petition for
resentencing pursuant to section 1170.95. Reynoso asserted he
was entitled to relief because he could not be convicted of murder
under the statutory changes brought about by SB 1437. The trial
court appointed counsel to represent Reynoso pursuant to section
1170.95, subdivision (c).
In their response to Reynoso’s petition, the People
primarily argued SB 1437 was unconstitutional. In addition, the
People argued Reynoso was not entitled to relief because he
confessed to police that he shot the victim, relying on a preplea
probation report and a 2018 Comprehensive Risk Assessment
submitted to the Board of Parole Hearings (parole board report).
The preplea probation report was based on the arrest
report and recounted Reynoso’s confession as follows: “The
defendant explained to officers that he and several other ‘Insane
Rascals’ gang members had been at a liquor store on 130th Street
and Prairie Avenue. There had been a confrontation with about
16 other gang members from a different gang. As a result, he
went to the home of another gang member where he obtained a
.30/.30 caliber rifle. He and three companions returned to the
2 All subsequent section references are to the Penal Code.
3
area of 130th Street and Prairie Avenue where they were
confronted by two or three gang members who ran up on their car
and threatened them. Two of these individuals were carrying
handguns and the third was carrying a 40-ounce bottle of beer
which he threatened to throw at them. One of his companions
had exited the vehicle and was shouting at the opposing gang
members. The defendant states he then shouted towards him,
‘Blast ‘em.’ The defendant told officers that he raised the weapon
to eye level and shot one of these individuals in the back as he
was running away from him. [¶] Defendant informed officers
that he had taken the rifle used in the shooting and put it in the
trunk of his mother’s boyfriend’s car. The weapon was recovered
from the vehicle.”
Reynoso similarly stated in the parole board report that he
accepted responsibility for shooting and killing the victim. The
People attached the preplea probation report and the parole
board report in support of their response. The People asserted a
preplea probation report may be considered to grant or deny a
petition under section 1170.95 but acknowledged “the authorities
on this are unclear.”
Reynoso devoted the bulk of his reply to argue SB 1437 was
not unconstitutional.3 As to the merits of his petition, he argued
he was not the actual killer, did not aid and abet the murder as a
participant with reckless indifference to human life, and had no
intent to kill. He asserted his confession was the result of
psychological coercion because he was sixteen years old at the
3 The parties’ constitutional claims have been resolved in two
comprehensive opinions, People v. Superior Court (Gooden) (2019)
42 Cal. App. 5th 270 and People v. Lamoureux (2019)
42 Cal. App. 5th 241. The issue is not a subject of this appeal.
4
time of the interrogation and had no guardian or attorney
present. Reynoso discounted his admissions of guilt in the parole
board report, stating he “intentionally provided the parole board
with a false confession in order to improve his chances for
parole.” He did not object to the admissibility of the probation
report or the parole board report in his reply.
The trial court denied the petition, finding Reynoso
“is pretty clearly the person who is the actual shooter and not
eligible for relief.” The trial court stated “one of the things” it
relied on in making its decision was the parole board’s report,
which “cit[ed] to the defendant’s own statements, quote, ‘I jumped
out with the rifle. As I get ready to shoot I see movement, and I
react. I point the gun in that direction, and I shoot. The guy hits
the floor.’ ” The court also indicated Reynoso admitted the
firearm allegation as a part of his plea agreement. This was
incorrect as the firearm allegation was dismissed.
Reynoso timely appealed.
DISCUSSION
Reynoso now contends the trial court incorrectly denied his
petition for resentencing based on its mistaken belief he admitted
the firearm allegation as a part of his no contest plea. Reynoso
also faults the trial court for relying on the statements contained
in the parole board report. He argues the parole board report
contains unreliable hearsay and is not properly part of the record
of conviction that may be considered by the trial court. The
People concede Reynoso did not admit the firearm allegation.
The People argue Reynoso is nevertheless ineligible for
resentencing under SB 1437 because the preplea probation report
establishes he was the actual killer.
5
We agree the trial court erred when it relied on the
mistaken belief that Reynoso admitted the firearm allegation and
when it considered the parole board report to deny Reynoso’s
petition. (People v. Trujillo (2006) 40 Cal. 4th 165, 179 [a
defendant’s admission after the court accepts his plea “does not
describe the nature of the crime of which he was convicted” and is
inadmissible to prove the elements of the offense].) However, we
conclude Reynoso forfeited his challenge to both the probation
report and the parole board report by failing to object to their
admissibility below. In any event, the preplea probation report,
which may be considered by the trial court at an eligibility
hearing, demonstrates he is ineligible for relief as a matter of law
because he was the actual killer.
I. Governing Law
SB 1437, effective as of January 1, 2019, was enacted to
“amend the felony murder rule and the natural and probable
consequences doctrine 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).) Thus, SB 1437
amended section 188 to require that a principal to murder act
with malice aforethought, which will “not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Felony murder
liability under section 189 was limited to a defendant who was
the “actual killer,” an aider or abettor in the commission of
murder in the first degree, or “a major participant in the
underlying felony [who] acted with reckless indifference to
6
human life.” (§§ 188, subd. (a)(3), 189, subd. (e), as amended by
Stats. 2018, ch. 1015, §§ 2, 3.)
Section 1170.95 sets forth a three-step procedure for
defendants to seek resentencing if they could not be convicted for
murder in light of the changes to sections 188 and 189. (People v.
Martinez (2019) 31 Cal. App. 5th 719, 722–723 (Martinez).) In
step one, the defendant files a petition with the sentencing court
to vacate the defendant’s murder conviction and to obtain
resentencing on any remaining counts. (§ 1170.95, subd. (a).)
The petition must satisfy the following three conditions to make
the initial prima facie showing that he or she is eligible for relief:
“(1) A complaint, information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine. (2) The petitioner was convicted
of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder.
(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section[s] 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).)
If the defendant has made the initial prima facie showing
in step one, the trial court appoints counsel to represent him or
her. (§ 1170.95, subd. (c).) In step two, the defendant must make
a second prima facie showing that he or she is “entitled” to rather
than “eligible” for relief. At this stage of the proceedings, the
trial court may review the petition, its own file, and the record of
conviction. (People v. Lewis (2020) 43 Cal. App. 5th 1128, 1137–
7
1138 (Lewis).)4 If the defendant demonstrates he or she is
entitled to relief in step two, the court must issue an order to
show cause why relief should not be granted. (§ 1170.95, subd.
(c).) If the court issues an order to show cause, a hearing will be
held to determine whether to vacate the murder conviction.
(Lewis, supra, 43 Cal.App.5th at p. 1136.) In this third step of
the proceedings, the parties “may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3).)
II. Reynoso Forfeited the Argument That the Parole
Board Report and the Probation Report Could Not
Be Considered
On appeal, Reynoso complains the probation report and
parole board report contain statements that are unreliable
hearsay. However, he failed to object to either report on this, or
any, basis below. “[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).) “[T]he objection must be made
in such a way as to alert the trial court to the nature of the
anticipated evidence and the basis on which exclusion is sought,
and to afford the People an opportunity to establish its
admissibility.” (People v. Williams (1988) 44 Cal. 3d 883, 906.)
4 The Supreme Court of California granted review in Lewis
on the following issues: “(1) May superior courts consider the
record of conviction in determining whether a defendant has
made a prima facie showing of eligibility for relief under Penal
Code section 1170.95? (2) When does the right to appointed
counsel arise under Penal Code section 1170.95, subdivision (c)?”
(People v. Lewis, review granted Mar. 18, 2020, No. S260598
[2020 Cal. LEXIS 1946, at *1].)
8
In support of its arguments against resentencing before the
trial court, the People relied on and attached the probation report
and parole board report as exhibits 1 and 2 of its response.
Although Reynoso requested the trial court strike exhibit 4, also
attached to the People’s response, and the People noted it was
“unclear” whether a preplea probation report may be considered
to grant or deny a resentencing petition under section 1170.95,
Reynoso did not object to either the probation report or parole
board report in his reply. At the hearing, Reynoso’s counsel
submitted on the papers and did not make any objections to the
reports before, during, or after the trial court issued its ruling.
On appeal, Reynoso complains the probation report is
unreliable because it contains hearsay, his statement was not in
quotation marks, and the arrest report was not part of the record.
If Reynoso had raised those issues below, the People would have
had the opportunity to establish the probation report was
admissible under a hearsay exception or was otherwise reliable
by, for example, placing the arrest report in the record. A timely
objection also would have permitted the trial court to correct any
errors in the first instance and create a better record for appeal.
Given these circumstances, both reports were part of the record
considered by the trial court and Reynoso has forfeited the issue
of their admissibility.
Reynoso attempts to avoid forfeiture by arguing the trial
court never mentioned the probation report as a basis for its
decision but instead relied on the parole board report and its
mistaken belief that Reynoso admitted the firearm enhancement.
He thus claims he had no opportunity to object to the admission
of the probation report and any objection would have been futile.
9
As an initial matter, we note Reynoso implicitly
acknowledges any objection to the parole board report is forfeited.
Further, we disagree an objection to the admissibility of the
probation report is tied to whether the trial court relied on it or
not. Instead, its admissibility was brought into question when
the People used it to oppose resentencing. Reynoso was required
to raise the objection at that time. (See People v. Booker (2011)
51 Cal. 4th 141, 170 [“the failure to raise a timely objection
forfeits the claim for appeal . . .”]; see also Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 39 Cal. App. 5th 995,
1019 [defendant forfeited challenge to plaintiff's evidence by
failing to make contemporaneous objections or motions to strike,
but instead waiting and bringing motion for mistrial]; 3 Witkin,
Cal. Evid. (5th ed. 2020) Presentation, § 383 [“Where
inadmissible evidence is offered, the party who desires to raise
the point of erroneous admission on appeal must object at the
trial, specifically stating the grounds of the objection, and
directing the objection to the particular evidence that the party
seeks to exclude.”].)
We are also not persuaded an objection would have been
futile. There is no indication how the trial court would have
ruled if an objection on hearsay grounds had been brought to its
attention.
Finally, Reynoso urges us to ignore the forfeiture. (People
v. McCullough (2013) 56 Cal. 4th 589, 593.) We decline to do so.
Reynoso has presented no reason for us to relieve him of this
obligation, particularly when the People noted the “unclear”
authorities on the issue in their response.
10
III. The Record Reveals Reynoso is Ineligible For Relief
as a Matter of Law
Even assuming Reynoso has not forfeited the issue, we
conclude his confession in the probation report was properly a
part of the record to be considered by the trial court in deciding
whether he has made a prima facie showing that he is entitled to
relief under SB 1437.5 Our review involves a pure question of
law and is therefore de novo. (People v. Bradford (2014) 227
Cal. App. 4th 1322.)
We are persuaded by the reasoning in cases addressing
similar resentencing proceedings. (Lewis, supra, 43 Cal.App.5th
at p. 1137.) These cases generally hold that limited use of
hearsay is permitted to determine eligibility for resentencing so
long as there is a substantial basis for believing the hearsay
information is reliable. (People v. Sledge (2017) 7 Cal. App. 5th
1089, 1095 (Sledge); People v. Hall (2019) 39 Cal. App. 5th 831
(Hall); see People v. Williams (Nov. 20, 2020, No. A157917)
[2020 WL 6816543].)
In Sledge, supra, 7 Cal.App.5th at pages 1092–1093, the
trial court denied defendant’s petition for resentencing pursuant
to Proposition 47, which amended the Three Strikes law so that
eligible third strike offenders may be resentenced as
misdemeanor offenders. At the eligibility hearing, the trial court
took judicial notice of the entire superior court record and
admitted into evidence several documents, including a probation
5 The California Supreme Court is currently considering
whether “superior courts [may] consider the record of conviction
in determining whether a defendant has made a prima facie
showing of eligibility for relief under . . . section 1170.95,
subdivision (c).” (People v. Lewis, review granted, S260598 at
p. *1.)
11
report which contained information regarding a prior juvenile
conviction suffered by the defendant. (Id. at p. 1093.) The
defense objected on the grounds that the probation report
contained inadmissible hearsay. (Id. at p. 1095.)
On appeal, the court concluded the probation report was
admissible. (Sledge, supra, 7 Cal.App.5th at p. 1096.) It
reasoned, “[a]n eligibility hearing is a type of sentencing
proceeding. Nothing in Proposition 47 suggests the applicable
rules of evidence are any different than those which apply to
other types of sentencing proceedings. Accordingly, limited use of
hearsay such as that found in probation reports is permitted,
provided there is a substantial basis for believing the hearsay
information is reliable. [Citations.]” (Id. at p. 1095.) The court
found the report to be reliable because: (1) it had been prepared
by probation officers performing their official duties, relying in
part on information obtained from official court records prepared
by clerks also performing their regular duties (Evid. Code,
§ 664);6 (2) it was used by both parties without objection
throughout the case; and (3) it contained conclusions supported
by other facts before the court. (Sledge, supra, at p. 1097.)
In Hall, supra, 39 Cal. App. 5th 831, the defendant filed an
application for relief pursuant to Proposition 64, which reduced
or eliminated penalties for marijuana offenses. The defendant
argued the trial court erroneously considered “ ‘unsworn hearsay
in a police and probation report’ ” to deny his application. (Id. at
6 Evidence Code section 664 provides: “It is presumed that
official duty has been regularly performed. This presumption
does not apply on an issue as to the lawfulness of an arrest if it is
found or otherwise established that the arrest was made without
a warrant.”
12
p. 836.) The Court of Appeal presumed the probation report,
which was based on a criminologist report, to be reliable
pursuant to the official duty presumption. (Evid. Code, § 664.)
The court reasoned, “The trial courts’ ability to consider reliable
hearsay in probation reports is necessary to assure the fair and
efficient implementation of Proposition 64. In many cases the
probation report will be the only document in the court file
setting forth the facts underlying the marijuana offense to which
the Proposition 64 petitioner pleaded guilty. If reliable hearsay
information in the probation report were inadmissible, the People
would have to subpoena the law enforcement personnel who had
provided the information to the probation officer. Because of the
passage of time, the personnel may not be available or even
identifiable, such as the unnamed criminalist who in 1996
analyzed and weighed the marijuana in the present case.”
(Hall, supra, at p. 840.)
We are persuaded by Sledge and Hall that the trial court
may rely on hearsay statements in a probation report in a section
1170.95 eligibility hearing because there is a substantial basis for
believing the hearsay information is reliable. Here, there are
three layers of hearsay in the probation report at issue: the
probation report itself, the police report referenced in the
probation report, and Reynoso’s statements to the police. All of
the hearsay statements fall within an exception. As explained in
Sledge and Hall, we may presume the probation report and the
underlying arrest report are reliable pursuant to the official duty
presumption. (Evid. Code, § 664; see also Coe v. City of San
Diego (2016) 3 Cal. App. 5th 772, 786–788 [police reports are
admissible under the official records exception].)
13
Reynoso’s confession itself is admissible as a party
admission. (Evid. Code, § 1220; 1 Witkin, Cal. Evidence (5th ed.
2020) Hearsay § 52 [confessions and admissions of defendant are
within long-established exceptions to the hearsay rule; cases
cited within].) Reynoso contends his confession was coerced and
thus unreliable because he was 16 years old at the time of the
interrogation and neither his parents nor counsel were present.
Neither of these circumstances automatically amounts to
coercion. (See People v. Lessie (2010) 47 Cal. 4th 1152, 1169–1170
[16-year-old defendant’s confession to murder admissible despite
violation of statute requiring officers to allow minors to make
phone calls within one hour of confinement and officers’
continued questioning]; section 625.6, subd. (a) [requiring legal
counsel be provided for a custodial interrogation of any youths
aged 15 or younger]. At this stage of the proceedings, Reynoso
had the burden to show a prima facie case of entitlement to relief.
He has failed to do so.
Additionally, just as in Sledge, the probation report was
used without objection and it contained conclusions supported by
other facts before the court. In particular, Reynoso’s own plea
and statements to the parole board corroborated his confession in
the probation report. Although the trial court did not expressly
rely on the probation report when denying Reynoso’s petition, the
statements contained in it are sufficient to affirm the trial court’s
conclusion that he is ineligible for relief as a matter of law
because he was the actual killer. “ ‘ “[A] ruling or decision, itself
correct in law, will not be disturbed on appeal merely because
given for a wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
14
conclusion.” [Citation.]’ (D’Amico v. Board of Medical Examiners
(1974) 11 Cal. 3d 1, 19.)” (People v. Zapien (1993) 4 Cal. 4th 929,
976; People v. Smithey (1999) 20 Cal. 4th 936, 971–972.)
People v. Burnes (2015) 242 Cal. App. 4th 1452, 1460
(Burnes), relied upon by Reynoso, does not require we reach a
contrary conclusion. Indeed, it is consistent with Sledge and
Hall. In Burnes, the court similarly held “the trial court may
consider only relevant, reliable, admissible portions of the record
of conviction when determining whether a defendant is eligible
for Proposition 36 resentencing.” (Burnes, supra, at p. 1460.)
In contrast to Sledge and Hall, however, the court found a
postconviction probation report to be unreliable because “the
People never attempted to show that the probation report was
admissible under an exception to the hearsay rule” despite the
defendant’s motion to strike the probation report on that ground.
(Burnes, supra, at p. 1459.) The court also found it impossible to
conclude the probation report reliably described the
circumstances of the defendant’s offenses. (Ibid.)
Burnes is distinguishable because Reynoso did not move to
strike or object to the probation report. Thus, the People were
not given the opportunity to show the probation report was
admissible under an exception to the hearsay rule or otherwise
reliable. Further, the probation report was the only source relied
upon by the trial court in Burnes to relay the circumstances of
the defendant’s offenses. Here, the probation report relates a
confession of guilt, which is corroborated by Reynoso’s plea and
statements in the parole board report. In the absence of a
persuasive argument that the probation report is unreliable and
inadmissible, we conclude the trial court could have properly
relied on the probation report.
15
We likewise reject Reynoso’s reliance on People v. Gallardo
(2017) 4 Cal. 5th 120 (Gallardo) and People v. Reed (1996) 13
Cal. 4th 217 (Reed) to argue probation reports are categorically
excluded from the record of conviction and may never be
considered to determine eligibility under section 1170.95.
Neither of those cases addressed eligibility hearings under a
postconviction resentencing scheme. In both those cases, the
strict application of the hearsay rule was required because the
defendant was being tried on an allegation of a prior serious
felony sentence enhancement. (Gallardo, supra, 4 Cal.5th at
p. 125; Reed, supra, 13 Cal.4th at p. 221.) Here, Reynoso is not
facing a criminal prosecution. As discussed above, the strict
requirements of hearsay do not apply to this category of
sentencing proceedings. (Hall, supra, 39 Cal.App.5th at p. 838.)
Cases have instead held a trial court may consider the
record of conviction and “its own file” in evaluating a prima facie
showing of eligibility pursuant to section 1170.95. (Lewis, supra,
43 Cal.App.5th at p. 1138; People v. Drayton (2020) 47
Cal. App. 5th 965.) A probation report is part of the court’s own
file and may be considered in an eligibility hearing if there is a
substantial basis for believing the hearsay information is reliable.
(Sledge, supra, 7 Cal.App.5th at p. 1095.)
Here, the probation report demonstrates Reynoso was
ineligible for relief as a matter of law because he was the actual
killer. Reynoso’s admission that he shot the victim in the back
demonstrates that he could be convicted for murder
notwithstanding the changes under SB 1437.
16
DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We concur:
GRIMES, J.
WILEY, J.
17