Court of Appeal:
Facts Set Forth in 2006 C.A. Opinion Were Improperly, but Profitably, Considered
They Constituted ‘Substantial Evidence’ at Resentencing Hearing,
Panel Says, Declaring That ‘Harmless Error’ Doctrine Applies
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held that where a judge, ruling at a hearing on a motion for resentencing pursuant to Penal Code §1172.6, erroneously relies on the factual recitation in the opinion affirming the conviction, the defendant must object at the time—and otherwise, what that earlier opinion says constitutes substantial evidence and reversal is precluded if the error was harmless.
The panel also held that where an inmate who was found guilty of murder by a jury that was instructed on the felony-murder rule, now virtually abolished, and whose petition for a resentencing was denied by a judge who imposed a burden of proof on the prosecution that was too low, the inmate had no entitlement to an automatic reversal. Rather, it said, to prevail, there must be a showing in by the petitioner in such a circumstance “that it is reasonably probable that, in the absence of the error, he or she would have enjoyed a more favorable outcome.”
The opinion, by Presiding Justice Manuel A. Ramirez, was filed Monday. It affirms a decision by San Bernardino Superior Court Judge Steven Malone in denying the motion for relief filed by Gregory Vance Jr., who was convicted in 2003 of first degree murder and first degree burglary and was sentenced to 56 years to life in prison.
In denying the motion, Malone relied on the Court of Appeal’s Aug. 4, 2006 unpublished opinion in People v. Schumann. In that case, the Fourth District’s Div. Two affirmed convictions of Vance and his co-conspirator, Katherine Schumann, for the murder/robbery of a nearly-blind man, Benny Ellis.
Then-Court of Appeal Justice Donald B. King (now retired), in reciting the facts, said:
“In a…police interview on October 26 , Vance admitted he stabbed Ellis twice in the back.”
Testimony by the driver of the get-away car is cited in the opinion. That witness recounted that Vance came out of the house holding a blood-covered knife and, in the car, uttered: “I shouldn’t have done the old man like that.”
Additional evidence was noted pointing to the probability that Vance was the actual killer, although there was also reference to evidence suggesting that it might have been Schumann.
An “actual killer” is not entitled to relief under §1172.6, nor is a person who acted, in the course of committing a felony “with reckless indifference to human life.” In denying Vance’s motion, after an evidentiary hearing, Malone found that both exclusions apply, saying:
“The opinion of the Court of Appeal affirming the original conviction sets forth a detailed factual account of the evidence presented at trial. The Court relies on the factual summary in that opinion for analysis of this petition.”
That, Ramirez said, was error. He cited his division’s Feb. 16, 2022 opinion in People v. Clements in which it was held that the wording of an amendment, effective Jan. 1, 2022, to what is now §1172.6, “indicates the Legislature limited use of prior appellate opinions” to examinations of a case’s procedural history.
The July 2022 hearing conducted by Malone, he noted, was held “well after Clements was decided.”
That error does not, however, compel a reversal, the presiding justice said, concluding that King’s factual recitation, though it should not have been relied upon by Malone, nonetheless was of value and constituted substantial evidence, the erroneous admission of which was harmless error.
Bringing the matter into focus, he said:
“Vance argues that our opinion was not evidence at all. We disagree. It was substantial evidence; it simply was not admissible evidence.
“As a general rule, if inadmissible evidence is admitted without objection, it is substantial evidence; the failure to object forfeits its inadmissibility….Thus, for example, hearsay admitted without objection is substantial evidence sufficient to support a judgment.”
He maintained that a recitation of facts in a Court of Appeal opinion is “logically relevant” at a §1172.6 hearing and said that it isn’t clear why the Legislature decided to render it inadmissible (as the court in Clements inferred), speculating that it was because the record, itself, is more reliable. He acknowledged that an appellate court’s account might be incomplete, discussing only those facts that relate to contentions on appeal, or might be wrong.
“These are good reasons to make an appellate opinion inadmissible. However, they are not good reasons to preclude the trier of fact from considering an appellate opinion under any circumstances. For example, a petitioner who feels that an appellate opinion is accurate and complete may well prefer to offer it to the trial court, in lieu of the entire record, for convenience. Presumably that is why defense counsel did not object here.”
“We conclude that, when an appellate opinion is admitted at an evidentiary hearing under section 1172.6, without objection, it is substantial evidence that the trial court can consider. Vance forfeited any objection to such consideration. Moreover, because the opinion was substantial evidence, which simply should have been excluded as inadmissible, harmless error analysis applies. Vance cannot show that, if the opinion had been excluded, he would have enjoyed a more favorable result….Presumably, in that event, the trial court would have considered the record of conviction; the prosecution had done everything it could to get it to take judicial notice of that record. Vance has never claimed that our opinion misrepresented or omitted any material part of the record. Hence, the error was harmless.”
Burden of Proof
Malone found that substantial evidence supported the prosecution’s contention that Vance was the actual killer or, at least, acted with reckless indifference to human life. But, under legislation effective Jan. 1, 2022, it was provided that at a §1172.6 resentencing hearing, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current California law.”
As amended, §1172.6 specifies that “[a] finding that there is substantial evidence to support a conviction for murder...is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
Rejecting Vance’s position that Malone’s error dictates reversal, Ramirez cited decisional law establishing that application of an erroneous evidentiary burden has no such effect. Given that no federal constitutional precepts are implicated in a deviation from state-prescribed standards in determining whether state-created relief should be granted, he wrote, the harmless error doctrine applies, which would require a showing by Vance of prejudice.
However, Ramirez wrote, “We need not actually decide whether the error was harmless.” He explained that Vance “has staked all of his chips on the proposition that reversal is automatic” and “does not argue that even if reversal is not automatic, the error was prejudicial.”
The jurist continued:
“He has not so much as supplied us with a statement of facts, which we would need if we were going to consider prejudice. Even after the People argued that the error was harmless, Vance stuck to his strategy; he made no effort in his reply brief to show that the error was prejudicial. Finally, at oral argument, his appellate counsel conceded that, if harmless error analysis does apply, he cannot show prejudice. We conclude that Vance has forfeited any claim that the trial court’s application of an erroneous burden of proof was prejudicial.”
The case is People v. Vance, 2023 S.O.S. 2875.
Co-Conspirator Gains Reversal
By contrast, on July 25, Schumann’s appeal from Malone’s denial of her §1172 motion was reversed in an unpublished opinion by Ramirez. He said in that case that Malone did apply “an erroneously low standard of proof” and, while rejecting her contention that this requires reversal, he noted that Schumann did contend that error created prejudice.
“In light of the whole record, there is a reasonable probability that, if the trial court had applied a beyond-a-reasonable-doubt burden of proof, it would have granted Schumann’s petition,” he wrote, specifying:
“Even under the substantial evidence standard, the trial court found the evidence ‘inconclusive’ as to whether Vance or Schumann was the actual killer. However, the evidence that Vance was the killer was much stronger than the evidence that Schumann was.”
Ramirez also said:
“[T]here was substantial evidence that Schumann acted with reckless indifference to human life. She does not argue otherwise. On this record, however, if the trial court were to reevaluate the evidence independently, there is a reasonable probability that it would not be able to find beyond a reasonable doubt that Schumann acted with reckless indifference to human life.”
That case is People v. Schumann, E077931.
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