THE PEOPLE, Plaintiff and Respondent, v. RAMON DEL RIO, Defendant and Appellant.
D080369
(Super. Ct. No. CR40676)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 8/2/23
Peter C. Deddeh, Judge.
CERTIFIED FOR PUBLICATION
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Alan L. Amann and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Ramon Del Rio appeals from the trial court‘s decision to redesignate robbery as the basis for his conviction after granting Del Rio‘s petition to vacate his two first degree murder convictions under
FACTUAL AND PROCEDURAL BACKGROUND
On June 16, 1977, the San Diego District Attorney filed an information charging Del Rio with three counts of murder. The first two counts alleged that Del Rio murdered Ronald W. and Helen R. in violation of
Del Rio filed a petition for resentencing pursuant to
In their response to the trial court‘s order to show cause, the People explained that, because the transcript of the jury trial was no longer available and
At the evidentiary hearing, the People submitted because they did not have a trial transcript. Based on this representation that the People did not have any admissible evidence, the court stated, “I‘m going to vacate the conviction, and therefore, that means Mr. Del Rio will be released.” The People then asked the court to reimpose any remaining charges and resentence on those offenses. But they acknowledged that they were “kind of in a quandary because the Court has to resentence on something that [sic] we don‘t have any evidence in front of us to do so.” The People then indicated their view that, because they were technically in a resentencing phase, and the court could thus rely on reliable hearsay evidence, the court should consider the facts laid out in a February 2, 1978 probation officer‘s report in choosing an offense to redesignate.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Effective January 1, 2019, Senate Bill No. 1437 (Stats. 2018, ch. 1015, §§ 2-4; 2017-2018 Reg. Sess.) (Senate Bill 1437) narrowed liability for murder under the felony-murder rule and natural and probable consequences doctrines and “create[d] a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The result is that Senate Bill 1437 “ensure[s] 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.” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1147.) As the Legislature itself declared, the purpose of
When a trial court reviews a petition for resentencing, the court first determines if the petitioner has shown a prima facie case for relief under the statute. (
If the prosecution fails to sustain its burden of proof, the court must vacate the conviction and resentence the petitioner on the remaining charges. (
The theory underlying the statute is that individuals not proven to have had the requisite level of malice should be convicted of the underlying felony supported by the evidence, not murder. This theory presupposes that the evidence presented at trial clearly indicates what target offense the petitioner committed, even if that offense was not charged. In many cases, the jury reached a murder verdict but also found the defendant guilty of the underlying felony beyond a reasonable doubt, so there is no question as to which crime should be redesignated to support the conviction. (
B. The Trial Court Violated Del Rio‘s Due Process Rights by Redesignating the Conviction as a Robbery Without Notice and an Opportunity to be Heard
Del Rio first contends the trial court violated his due process rights under the Fifth and Fourteenth Amendments by redesignating the uncharged and unadjudicated offense of robbery as the basis for his conviction, without notice and an opportunity to be heard, and then resentencing him on the robbery conviction. The People do not dispute that Del Rio was entitled to notice, but they maintain that he did, in fact, receive appropriate notice that he might be resentenced on the crime of robbery.
“We review procedural due process claims de novo because ’ ” ‘the ultimate determination of procedural fairness amounts to a question of law.’ ” ’ ” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 82.)
The Silva court held “that as a matter of procedural due process Silva was entitled to know, reasonably in advance of the court resentencing him, which crimes the prosecution sought to have redesignated as underlying felonies, the length of sentence the prosecution proposed, and how that recommended sentence was calculated.” (Silva, supra, 72 Cal.App.5th at p. 523.) The People do not challenge application of this holding to the instant appeal, and we agree this standard adequately protects Del Rio‘s constitutional rights.
The question then is whether the People or the trial court provided adequate notice in this case. The People submit that Del Rio received appropriate notice because his counsel was aware prior to the resentencing proceeding of a 1977 probation report regarding dismissed count three, the 1978 probation report, this court‘s 1979 opinion in People v. Del Rio, supra, 4 Crim. No. 8866, and this court‘s more recent opinion in People v. Del Rio, supra, D078225. In the People‘s view, the procedural history in this court‘s opinions in particular “ma[de] it clear that appellant was prosecuted on a felony murder theory based on his participation in the robbery” and, thus, Del Rio had adequate notice that the prosecution would seek resentencing based on robbery.
We are not persuaded by this argument. As the Silva court pointed out, “[u]nless we assume the Legislature intended to enact a scheme forcing the petitioner to guess what redesignated offense he faces, his right to avail himself of the opportunity to offer ‘new or additional evidence’ at a [
Even if Del Rio may have speculated that the People would seek to designate robbery as the underlying felony supporting the conviction, and even if mere speculation satisfied procedural due process requirements, the People did not provide Del Rio notice as to (1) whether they would request redesignation of robbery as to both murder victims or only one, (2) how long the proposed sentence would be, or (3) how that recommended sentence would be calculated. In Silva, the reviewing court concluded the prosecution satisfied the notice requirement because the prosecutor provided Silva with an updated resentencing memorandum nine days before the hearing. (Silva, supra, 72 Cal.App.5th at p. 525.) The memorandum detailed the resentencing proposal and how the proposed 24-year sentence had been calculated. (Ibid.) Silva‘s counsel also had time to file a written response. (Ibid.) In People v. Howard (2020) 50 Cal.App.5th 727, the parties agreed to the underlying felony before the hearing. (Id. at p. 730.) Here, the People did not serve a resentencing memorandum “reasonably in advance of the court resentencing [Del Rio]” nor did they otherwise provide notice of “which crimes the prosecution sought to have redesignated as underlying felonies, the length of sentence the prosecution proposed, and how that recommended sentence was calculated.” (Silva, at p. 523.)
The Silva court accounted for this eventuality in requiring that, “[i]f the prosecution makes no resentencing recommendation, the court must notify the petitioner in advance of its proposal for redesignation and resentencing and must give him or her an opportunity to respond.” (Silva, supra, 72 Cal.App.5th at pp. 523-524.) But the trial court in this case also did not provide notice in advance of the hearing. Accordingly, we conclude Del Rio did not receive any notice and the lack of notice violated his due process rights.
Although the People did not argue that any error was harmless, we nonetheless conclude that it was not. “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) Where a defendant is convicted of a violent felony and sentenced to probation without notice of the potential charge against him, we cannot say the error was harmless beyond a reasonable doubt. This is particularly true where, as we shall discuss, the conviction was not based on substantial evidence.
The trial court did not make any factual findings at the
In reviewing for substantial evidence, we view the evidence in the light most favorable to the prosecution. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) To constitute substantial evidence, the evidence must be ” ‘reasonable, credible, and of solid value.’ ” (Ibid.)
Unlike subdivision (d)(3) of
Ordinarily, a probation officer‘s report is not part of the record of conviction. (People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [confirming that, because a probation report is not part of the record of conviction, “when determining eligibility for resentencing, a probation report ‘cannot supply facts involving circumstances of the offense itself’ “].) Some courts have, however, allowed limited use of hearsay evidence from probation reports when determining eligibility for resentencing under other resentencing laws — but only if the hearsay information is reliable. (See People v. Hall (2019) 39 Cal.App.5th 831, 838 (Hall) [holding reliable hearsay statements in a probation report are
To the extent
Ronald‘s wife told the Pittsburgh Police Department that her husband had taken $18,000 to $19,000 with him to San Diego to purchase narcotics. She said their contact was Del Rio. Customs agents subsequently apprehended Del Rio at the international border in possession of one ounce of heroin and receipts for vehicle and motorcycle parts totaling approximately $6,000. The sellers of the items reportedly indicated that the purchases were made using new $50 and $100 bills “similar to the bills that allegedly [Ronald] had in his possession.” A ring someone identified as belonging to Ronald was recovered from Del Rio‘s girlfriend. According to other “reports,” a nonfinal “neutronic analysis” of Del Rio‘s hair noted it was microscopically similar to hairs found in Ronald‘s watchband.
The People‘s only basis for arguing this evidence is reliable is that the transcript of the 1978 sentencing hearing showed that defense counsel corrected several inaccuracies in the report but did not object to the above factual statements. Initially, the mere fact that counsel had to correct factual inaccuracies calls the report‘s reliability into question. Further, Del Rio‘s counsel in 1978 may not have felt it necessary to challenge every factual assertion in the report, given that the court had just conducted a jury trial and, as the report itself states, “the Court [wa]s probably aware of all the admissible evidence.” At that time, counsel‘s focus would have been on the probation report‘s recommendation regarding sentencing and probation for the murder convictions, not on the factual basis supporting an uncharged robbery allegation. As the court in People v. Banda (2018) 26 Cal.App.5th 349 noted in concluding that a probation report alone was not reliable to prove the factual basis underlying the petitioner‘s marijuana cultivation conviction, “it was only submitted to for a limited purpose [sentencing], a purpose that did not relate to the factual issue now presented.” (Id. at p. 359.) The same is true here. Defense counsel‘s failure to object to each and every factual discrepancy does not alone render the entire probation report reliable and admissible.
More importantly, the sentencing transcript the People rely upon to show that the probation report is reliable is not even part of the record before us on appeal. In a separately filed request for judicial notice, the People request that we take judicial notice of the 1978 sentencing hearing transcript pursuant to California Rules of Court, rule 8.252(a), and
Although we do not accept the facts of the sentencing transcript or the probation report as admissible to support the robbery conviction, we discuss them here to elucidate how the sentencing transcript fatally undermines the reliability of the probation report. Most significantly, after defense counsel highlighted numerous factual inaccuracies, at least one of which the prosecutor conceded was error, the court asked the probation officer to prepare a postsentencing probation report correcting the errors. The 1978 probation report proffered by the People as sufficient evidence of the robbery conviction is not the final, corrected report. The prosecutor also explained that the hair found in Ronald‘s watchband also had the same characteristics of the victim so “the expert couldn‘t make any finding one way or the other whether it was Mr. Del Rio‘s hair or not.” Because it was “neutral evidence,” the prosecutor chose not to introduce it at trial. Thus, the probation report also is not a reliable recitation of the facts presented at trial because it contains evidence that is misleading and was not even introduced at trial. For these reasons, we conclude the People have not demonstrated a substantial basis for believing the hearsay information in the probation report is reliable. (Sledge, supra, 7 Cal.App.5th at p. 1095.)
This leaves no evidence in the record on appeal, substantial or otherwise, supporting Del Rio‘s robbery conviction. Accordingly, we must reverse.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.