Court of Appeal:
By a MetNews Staff Writer
A judge, in determining whether a defendant who was convicted under the felony-murder rule is eligible to be resentenced under recent legislation largely repudiating that theory, may rely on the facts as set forth in an appellate court opinion, the Court of Appeal for this district has held, rejecting the contention that this is an impermissible use of hearsay.
Justice Martin J. Tangeman of Div. Six wrote the opinion, which was filed Tuesday and not certified for publication. In the course of that opinion, Tangeman proclaimed an opinion he wrote in 2018 in the case to be a “reliable” source of facts.
Tuesday’s opinion upholds an order by Santa Barbara Superior Court Judge John F. McGregor denying a resentencing to Santos Manuel Sauceda, who was convicted, along with four codefendants, of first degree murder, with a special circumstance: that the slaying of the victim, Anthony Ibarra, occurred during the perpetration of a kidnapping.
Sauceda was sentenced to life imprisonment, without the possibility of parole.
Under Penal Code §1170.95, effective Jan. 1, 2019, a person convicted of felony murder or murder under a natural and probable consequences theory is entitled to have the murder conviction vacated and be resentenced on any counts that remain standing if he or she could not be convicted under the changes also effective Jan. 1, 2019, to §188 or §189. Under §189, as it now reads, the felony murder rule persists only where one of three circumstances exists.
One of those circumstances is that the defendant “was the actual killer.” Sauceda did not personally kill Ibarra; co-defendant Jason Michael Castillo did.
However, McGregor denied relief because one of the other circumstances did exist: Saucedo “was a major participant in the underlying felony and acted with reckless indifference to human life.”
The judge based that perception on what Tangeman said in his Aug. 7, 2018 unpublished opinion affirming the conviction. That opinion declares:
“Sauceda was not present when Castillo stabbed Ibarra in the neck, but he was a major participant in the kidnapping and acted with reckless disregard for Ibarra’s life.”
The appellant argued that the facts cited by Tangeman in support of that conclusion are hearsay.
In Tuesday’s opinion, Tangeman said:
“The trial court did not accept any statements in our prior opinion for the truth of the matter asserted therein, but rather looked to the opinion for the nonhearsay purpose of determining the basis for Sauceda’s murder conviction.”
As reflected by the 2018 opinion, he noted, the jury would not have convicted Sauceda of first degree murder, under the instructions, absent a finding that he harbored an intent to kill or was a major participant, acting with indifference to human life—which, under current law, would support as first degree felony murder conviction.
Tangeman went on to say:
“But even if the trial court did consider our prior opinion for some hearsay purpose, we would find no error. In post-trial proceedings, statements contained in prior appellate opinions are admissible as reliable hearsay….Had Sauceda believed that our opinion misstated the facts, he could have raised that issue in a petition for rehearing….He did not do so. The opinion was thus sufficiently reliable to be considered in the proceedings below.”
The case is People v. Sauceda, B301139.
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