People v. Castro CA2/8 ( 2022 )

Filed 2/28/22 P. v. Castro CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A375846)
v.
CARLOS CASTRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Drew E. Edwards, Judge. Reversed and
remanded.
Orrick, Herrington & Sutcliffe, James E. Thompson,
Lauren M. Kessler, Adrienne Knecht Tierney and Sarah Kate
Mullins for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Thirty-seven years ago, appellant Carlos Castro was
charged along with three other men in the robbery-murder of
Arturo Hernandez-Guerrero. In 1983, he pled guilty to second
degree murder. In 2019, he filed a petition to vacate that
conviction pursuant to Penal Code1 section 1170.95. The trial
court found appellant made a prima facie case that he was
entitled to relief, issued an order to show cause, and then,
following a hearing which the court limited solely to argument by
the prosecutor and defense counsel, denied the petition. The trial
court found the “record of conviction” established appellant was a
major participant in the robbery of the victim and knowingly
engaged in criminal activities which he knew carried a great risk
of death.
Defendant appeals from the trial court’s order denying his
petition, contending the People failed to offer any evidence at the
hearing on the order to show cause. Alternatively, defendant
contends 1) the trial court violated his due process rights by
limiting the evidentiary hearing to oral argument; 2) if the trial
court considered the documents submitted as part of the initial
pleading process the trial court erred because key documents
contained unreliable and inadmissible hearsay; and 3) even if all
the evidence was properly admitted, it is insufficient to prove
beyond a reasonable doubt that he was a major participant in the
robbery who acted with reckless indifference to human life.
1 Further undesignated statutory references are to the Penal
Code.
2
On April 22, 2021, we issued our opinion, by which we
remanded this matter for a new hearing at which the trial court
was directed to act as an independent fact-finder to determine
whether the prosecutor has established beyond a reasonable
doubt that, under current law, defendant was a major participant
in the robbery who acted with reckless disregard for human life.
The People filed a petition for review requesting that the
California Supreme Court grant review and defer briefing
because this case raised an issue already pending before the
Court, to wit, whether the court acts as an independent factfinder
or reviews the record for substantial evidence to support the
conviction. The Court granted the petition and, on December 22,
2021, it transferred this case to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill No. 775.
We now vacate our prior decision. However, upon
reconsideration in light of Senate Bill No. 775, we again reverse
and remand the matter for a new evidentiary hearing where the
trial court is directed to act as an independent factfinder at an
evidentiary hearing that also comports with Senate Bill No. 775’s
express guidelines on the admission of evidence at evidentiary
hearings held pursuant to section 1190.75, subdivision (d)(3).
Both parties have advised the court that they, too, agree that no
change in result is mandated by Senate Bill No. 775.
BACKGROUND
A. Senate Bill No. 1437
The Legislature passed Senate Bill No. 1437 in 2018 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
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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).) Senate Bill No. 1437
amended section 188 to require that a principal “shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).)
Senate Bill No. 1437 enacted Penal Code section 1170.95 to
provide a mechanism by which defendants convicted under
abrogated theories of liability may petition to have the court
vacate their murder conviction and conduct a resentencing
hearing, if necessary. This procedure includes an evidentiary
hearing at which the prosecutor bears the burden of proving
beyond a reasonable doubt that the defendant is guilty of murder
under the law in effect as of January 1, 2019. (§ 1170.95,
subd. (d).)
B. Senate Bill No. 775
Senate Bill No. 775, which amended section 1170.95, was
signed by the Government on October 5, 2021. (Sen. Bill No. 775
(2020–2021 Reg. Sess.).) Among other changes, Senate Bill No.
775 amends section 1170.95, subdivision (d)(3) to require the
prosecution to prove beyond a reasonable doubt that the
petitioner “is guilty of murder” under current law, and further
provides that “[a]finding that there is substantial evidence to
support a conviction for murder” is insufficient to meet this
required showing. (Sen. Bill No. 775 (2020–2021 Reg. Sess.) § 2
[revised § 1170.95, subd. (d)(3)].) It also added new text
governing the consideration of evidence at a section 1170.95,
subdivision (d)(3) evidentiary hearing, as follows:
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“The admission of evidence in the hearing shall be governed by
the Evidence Code, except that the court may consider evidence
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.”
(Sen. Bill No. 775 (2020–2021 Reg. Sess.) § 2 [revised § 1170.95,
subd. (d)(3)].)
C. The Record
The record in this case does not contain the complaint filed
against defendant or a transcript of his plea. As we discuss in
more detail below, the trial court stated that it was deciding
defendant’s petition on the basis of the record of conviction. It is
not entirely clear what the trial court believed was included in
the record of conviction as the trial court never named the
specific evidence upon which it relied. However, the trial court’s
memorandum of decision suggests it considered at least the
preliminary hearing transcript and defendant’s pre-plea
probation report. Accordingly, we set forth the facts as shown in
those two documents.
Testimony at the preliminary hearing in this matter
showed that the victim was shot and stabbed in the foyer of an
apartment building on 9th Street in downtown Los Angeles. Two
witnesses living nearby heard gunshots and looked out their
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windows to see either two or three men getting into a light
colored sedan which was in front of the building with its engine
running. The car drove away. One of the witnesses, Benadino
Diaz, testified that one of the men was carrying a rifle and
another man had something shiny in his hand. Diaz also
testified that the car did not have a rear license plate.
Los Angeles Police Department Officer William Cymbalsky
was on patrol with a partner in Hollywood when he noticed a
brown four-door Chevette with no rear license plate. His partner
pulled in the lane behind the car, and the officers noticed that the
Chevette was lane straddling. Believing that the car might be
stolen or its driver under the influence of alcohol, the officers
activated their overhead lights. The Chevette sped away and the
officers pursued. After the Chevette made a right turn, Officer
Cymbalsky observed a rifle protruding from the left rear door,
and someone in the car began firing the rifle at the officers.
As the pursuit continued, the rifle and a bandana, which
appeared to contain objects, was thrown out of the car. At some
point, the patrol car “t-boned” the Chevette. Co-defendant Frank
Owen remained in the driver’s seat and co-defendant Luis Gomez
in the left rear passenger seat. The right front and right rear
passengers exited the car and fled. The rear passenger
co-defendant Robert Ramos was caught almost immediately.
Appellant, who was identified by Officer Cymbalsky as the front
seat passenger, was later located by a K-9 unit.
The bandana was retrieved and found to contain three
knives. The rifle, a .22 with a sawed-off barrel, was also
recovered. The victim’s wallet was found on the front seat of the
Chevette.
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Further details of the events surrounding the crimes are
contained in defendant’s pre-plea probation report.2 The
probation officer summarized defendant’s oral statement to her
as follows: Defendant was in the Aliso Village neighborhood
drinking with Ramos and Gomez when Owen came by in his car.
“Gomez suggested that they go cruising to Hollywood. He does
not know who got the gun and had it when they got in the car.
He sat in the front with Owen. He and all the others have knives
because it is ‘dangerous’ to be on the street. They drove looking
for a store to buy beer when Gomez said ‘Stop.’ They saw a man
walking. Gomez and Ramos got out of the car. Gomez had the
gun, although he is not sure since he was wearing a trench coat.
He did not know what they were going to do but then thought
2 We quote this probation report with some reluctance.
Although a probation report is an official record and presumed
reliable, we note that there are some problematic aspects to the
unauthenticated copy of the report offered by the prosecutor. On
the page following page 8 of the report, in the middle of a
sentence summarizing appellant’s oral statement to the
probation officer, the font of the report abruptly changes, and the
lines of text in the new font are at a slight diagonal to the earlier
text and are not lined up with the line numbers on the left-hand
side of the page. Although the preceding pages are clearly
numbered in the lower left hand side of the page, the page with
the font change is not numbered, nor are the subsequent pages in
the report (which are also in the new, changed font). The font-
changing page ends with the non-sequitur: “His girl friend
visits”. At a minimum, this raises a question about whether this
is a draft version of the report or a final copy. We leave this
question to be resolved on remand if the People choose to offer
the report again.
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they would probably rob the man. Defendant ‘wanted to see’ and
followed them. Ramos had the gun. Gomez had a knife and told
victim to give him his money. Victim had gone in a hallway.
Ramos opened the door and shot inside. Defendant heard the
victim yell. Gomez came out ‘real quick’. Owen came by in the
car. Gomez had victim’s wallet. Ramos had the gun. They all
‘took off.’ Defendant states that . . . he ‘didn’t do anything’, he
was ‘messed up’[.]”
Considerably more documentation was presented to the
court before it issued the order to show cause. In support of his
petition, defendant submitted a declaration and accompanying
letter from co-defendant Ramos in which Ramos stated he was
the shooter, he left the car without announcing his attentions,
and Castro reached him only after he had shot the victim. In its
opposition, the People attached three documents which were part
of the record of conviction: the preliminary hearing transcript,
the autopsy report which was part of an exhibit offered at the
preliminary hearing, and an undated but apparent pre-plea
probation report for defendant. The People also attached five
additional documents (Exhibits 4 through 8), all of which appear
to be prepared by police personnel as part of their investigation of
the crimes in this matter.3 In reply, Castro submitted a
declaration giving his own account of events on the night of the
crime, properly authenticated pre-plea probation reports for
3 The memorandum of points and authorities states that the
exhibits “attached hereto” are “true and correct” copies of the
documents. The record does not contain a declaration
authenticating the documents. There is nothing to indicate
Exhibits 4 through 8 were part of the court file in this matter.
8
co-defendants Ramos and Owen, and a transcript of the 2015
parole hearing for co-defendant Gomez. Gomez testified at the
parole hearing that he was the person who stabbed the victim.
Other aspects of Gomez’s testimony were less helpful to
defendant, as the People later highlighted at the subdivision
(d)(3) hearing.
On August 14, 2019, after briefing on the initial petition
was complete, the trial court issued an order to show cause why
defendant’s petition should not be granted, and indicated its
intent to hold a hearing pursuant to section 1170.95,
subdivision (d)(1). The hearing was held on October 16, 2019.
The trial court began the hearing by asking the prosecutor
if he would like to be heard. When the prosecutor began making
a factual argument about the events in this matter, defense
counsel objected that “these facts are not in the record. The
documents—I believe most of the records that the District
Attorney is relying on here, are impermissible hearsay. They
don’t have any reliability. This includes police reports and things
like that.” The court replied: “Your objection is noted for the
record. I am going to deem this to be argument. I have gone
through the pleadings. I will allow counsel to make his argument
regarding the issue.” The prosecutor then cited People v. Hall
(2019) 39 Cal.App.5th 831 in support of admissibility. The court
responded: “That is noted for the record. I would imagine I will
be looking at that case.” When it was defense counsel’s turn to
argue, he began by discussing the Hall case, contending that
under Hall and evidentiary rules in general, the prosecutor’s
documents would not be admissible.
9
At the end of argument, the court simply stated that it
would take the matter under submission and review the factual
arguments and the cases cited by both counsel. Defense counsel
stated: “One of the arguments I raised at the beginning is the
evidentiary issues. Here we made an objection to the District
Attorney’s office relying on certain evidentiary issues. We also
submitted declarations [and] a parole hearing transcript. I just
wanted to know, since those things have not come into evidence,
if I could put on the various witnesses live.” The court replied:
“Everything that counsel has submitted is part of the record for
these purposes. That is all coming in. That is part of the things I
will be considering in making my ruling.”
On October 24, 2019, the trial court denied defendant’s
petition without ruling on any evidentiary issues. In the
memorandum, the court referred to the “record of conviction” but
not to any evidence proffered by appellant.4
In denying the petition the trial court wrote a
memorandum of decision: “The record of conviction in this case
establishes that: 1) all of the participants including the
petitioner were involved in, and executed a plan to rob the victim
in this case; 2) the victim in this case was stabbed with a knife
and the petitioner was armed with a knife at the time of the
crime at issue in this case; 3) the petitioner was aware of the fact
4 It is not clear whether the trial court viewed the police
documents as part of the record of conviction and so considered
them in ruling on the petition. There is nothing in the record on
appeal to suggest that these documents were used in any prior
court proceedings or were ever seen by the court or defense
counsel in the original proceedings in this matter.
10
that other participants in the crimes in this case were armed,
including the fact that at least one other participant who was
armed with a firearm; and 4) the petitioner fled the scene of the
crime, and additionally fled the getaway vehicle after being
approached by police officers. Unlike the defendants in [People v.
Banks] or [People v. Clark], the petitioner’s conduct in this case
demonstrated that he was not [simply] a planner or organizer of
the robbery at issue in this case, who had no role in the
immediate events leading up to the murder of the victim in this
case. To the contrary, the record of conviction in this case
established that the petitioner was a major participant in the
robbery of the victim in this case, and that he knowingly engaged
in criminal activities which he knew carried a grave risk of death.
[People v. Estrada] (1995) 11 Cal.4th 568.”
DISCUSSION
Appellant’s claims of error, as a whole, arise from the trial
court’s decision not to treat the hearing held after the order to
show cause issued as an evidentiary hearing. Rather, the trial
court limited the parties to arguing about the evidence proffered
in their original briefing, completed before the trial court issued
its OSC. Ultimately, the trial court expressly based its denial of
the petition on the “record of conviction”, indicating that it did
not consider the evidence in the documents proffered by appellant
in his pre-OSC briefing.
A. The People May Stand on the Record of Conviction
We agree with appellant that the People were required to
establish beyond a reasonable doubt at the post-OSC evidentiary
hearing that appellant was a major participant in the robbery
and acted with reckless indifference to human life. We do not
11
agree that the People were required to introduce any evidence at
all at the evidentiary hearing. Subdivision (d)(3) provides: “The
prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3), italics added) Here, the
prosecutor decided to rely on the record of conviction.5
To be clear, it is possible, if not likely, that mere reliance on
the record of conviction will not be sufficient to establish beyond a
reasonable doubt that the defendant was a major participant in
the underlying felony who acted with reckless indifference to
human life. That is an issue for a trial court to decide in light of
all the evidence introduced at a post-OSC evidentiary hearing.
B. The Defense is Entitled to Offer New and Additional
Evidence and to Challenge the People’s Evidence
We agree with appellant that he had a statutory right to
offer new and/or additional evidence at the subdivision (d)(3)
hearing, and to have the trial court consider that evidence.
(§ 1170.95, subd. (d)(3).) As set out above, that is the mandate of
Senate Bill No. 775’s amendments to section1170.95, subdivision
5 The prosecutor clearly offered police investigative
documents to support its original opposition to the petition, but
did not argue they were part of the record of conviction. Police
reports “[do not] ordinarily form part of the record of conviction.”
(Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1523.) There is no
reason to believe the trial court found the investigative reports in
this case to be an exception to that rule. None of the facts which
the court stated were established by the record of conviction are
found in the investigative reports alone, and none of the facts
found in the investigative reports alone are mentioned in the
memorandum of decision.
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(d)(3). We agree that a defendant is not limited to presenting
only the (new and additional) evidence which has been presented
in pre-OSC briefing, which is what appears to have happened
here. Both parties are entitled to present live witness testimony,
documentary evidence, and other evidence that comports with the
rules set out in amended section 1170.95, subdivision (d)(3).
C. The Trial Court Did Not Act as an Independent
Factfinder at the Evidentiary Hearing
The trial court offered no explanation for its decision to
limit the parties to oral argument on the evidence submitted in
their pre-OSC briefing, or its subsequent failure to rule on the
hearsay objections which it took under submission, or its refusal
to consider the new and additional evidence concerning which it
entertained oral argument. The memorandum of decision
indicates the court did not understand that it was required to act
as an independent factfinder and determine whether the
prosecution had established beyond a reasonable doubt that
petitioner was guilty of murder under the law as of January 1,
2019.
At the time the trial court decided this matter, there were
no published opinions addressing the analysis to be undertaken
by a trial court in connection with a section 1170.95, subdivision
(d)(3) evidentiary hearing. We now have the benefit of guidance
from our Supreme Court and the Legislature on the duties of the
trial court at and after a section 1170.95, subdivision (d)(3)
hearing.
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First, in People v. Gentile (2020) 10 Cal.5th 830, the
California Supreme Court explained “section 1170.95 requires
the superior court to determine on an individualized basis, after
considering any new or additional evidence offered by the parties,
whether the defendant is entitled to relief.” (Id. at p. 855.) This
requires a trial court to hold a full and fair hearing with evidence
presented and objections resolved, not the truncated hearing that
occurred in this case.
Next, as set out above, Senate Bill No. 775 expressly
requires the trial court to find the defendant guilty or not guilty
based on the evidence presented at the subdivision (d)(3) hearing,
without regard to what a jury may have previously determined or
whether the verdict at the earlier trial is supported by
substantial evidence.
The trial court never expressly explained its role in
evaluating the petition following the subdivision (d)(3) hearing.
In its memorandum of decision denying the petition, as set out
above, the court simply summarized the facts it gleaned from the
record of conviction and then concluded: “[T]he record of
conviction in this case established that the petitioner was a major
participant in the robbery of the victim in this case, and that he
knowingly engaged in criminal activities which he knew carried a
grave risk of death.”
The trial court’s statement is ambiguous, but suggests it
did not act as an independent factfinder to determine whether
the People had established beyond a reasonable doubt that
defendant was a major participant in the robbery who acted with
reckless disregard for human life. The trial court twice states
that it is relying on the record of conviction, and twice uses the
verb “establish” without the modifier “beyond a reasonable
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doubt.” The court does not appear to have looked beyond the
record of conviction to consider any of the new or additional
evidence offered by the defense as it would have done if it were
ruling as an independent factfinder.6 The court’s narrow
reference to the record of conviction suggests that the court
adopted the prosecutor’s argument that the petition should be
denied if the prosecutor’s evidence “could” result in a murder
conviction under current law.
Because, as we have just explained, the trial court did not
clearly act as an independent factfinder and did not afford
appellant the opportunity to present new and/or additional
evidence or to obtain rulings on its challenges to the evidence
that was presented, we remand this matter to the court to
conduct a new section 1170.95, subdivision (d)(3) hearing under
the standards set forth in this opinion, including Senate Bill
No. 775’s guidance on the admission of evidence at the hearing.
In light of this remand, we need not and do not reach any
remaining claims on appeal.
6 Without wading into issues which need not be decided on
this appeal, we note that appellant submitted a declaration
providing a substantially different account of the crimes than the
account attributed to him in the probation report. Appellant was
present in the courtroom and could have testified if the trial court
found his declaration to be inadmissible hearsay. Thus, the trial
court’s failure to look beyond the record of conviction cannot be
attributed to a lack of any evidence beyond that record.
15
DISPOSITION
The trial court’s order denying defendant’s section 1170.95
petition is reversed and this matter is remanded for a new
hearing pursuant to subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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