THE PEOPLE, Plaintiff and Respondent, v. GREGORY VANCE, JR., Defendant and Appellant.
E079750
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 8/7/23
CERTIFIED FOR PUBLICATION; Super.Ct.No. FSB032415
CERTIFIED FOR PUBLICATION
OPINION
Rex Adam Williams, 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, Senior Assistant Attorney General, and Robin Urbanski, Alan Amann, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court denied Vance‘s petition under
- Considering only the facts as stated in our opinion in Vance‘s direct appeal, rather than the facts as shown by the record of conviction.
- Applying an erroneously low burden of proof.
We will hold that Vance‘s counsel forfeited the trial court‘s erroneous reliance on our prior opinion by failing to object, and that in the absence of any objection, our prior opinion constituted substantial evidence.
We will also hold that, in a
I
STATEMENT OF THE CASE
In 2003, Vance was found guilty of first degree murder (
He was sentenced to a total of 56 years to life in prison.
In his direct appeal, we affirmed. (People v. Schumann (Aug. 4, 2006, E036689) [2006 Cal.App. Unpub. LEXIS 6822] [nonpub. opn.].)
In 2019, Vance filed a petition pursuant to
At the evidentiary hearing, the prosecution requested judicial notice of the record in the underlying case. The trial court did not expressly rule on the request; however, it said it was relying solely on the facts as stated in our opinion in the direct appeal.2
After hearing argument, it denied the petition. It found “substantial evidence that” Vance was the actual killer. It also found “substantial evidence that” Vance was a major participant in the underlying burglary and acted with reckless indifference to human life.
II
LEGAL BACKGROUND
Effective January 1, 2019, the Legislature restricted the scope of the felony murder rule. (Stats. 2018, ch. 1015, § 3.) Specifically, it amended
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
“(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life . . . .” ( § 189, subd. (e) .)3
At the same time, the Legislature also enacted
If a petition under
If the petition does state a prima facie claim for relief, the trial court must hold an evidentiary hearing. At the evidentiary hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder even under current law. (
IV
THE TRIAL COURT‘S RELIANCE ON OUR PRIOR OPINION
Vance contends that our prior opinion was not evidence, and therefore the trial court‘s denial of the petition, which was based solely on our prior opinion, was not supported by sufficient—or, indeed, by any—evidence.
We have held that, by allowing consideration of “the procedural history” in a prior appellate opinion, the Legislature intended to prohibit
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. (
Categories of logically relevant evidence that nevertheless cannot be substantial evidence are rare. One example is that an expert‘s opinion on a question of law is not substantial evidence. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841.) Likewise, an expert‘s opinion that is based on speculation is not substantial evidence. (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) And evidence of a prior oral agreement inconsistent with an integrated written contract is not substantial evidence. (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 640.) Generally, these categories exist because, for some policy reason, we do not want the evidence to have any influence on the trier of fact‘s decision.
At an evidentiary hearing under
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.
V
ERRONEOUSLY LOW BURDEN OF PROOF
Vance contends that the trial court applied an erroneously low burden of proof.
Some courts took this to mean that the trial court had to deny the petition as long as there was substantial evidence to support the original jury‘s finding, beyond a reasonable doubt, that the petitioner was guilty of murder under current law. (E.g., People v. Duke (2020) 269 Cal.Rptr.3d 264, 272 (Duke), review granted, Jan. 13, 2021, S265309, cause transferred and ordered not citable, Nov. 23, 2021.)
Other courts held that the trial court had to grant the petition, unless it found, independently and beyond a reasonable doubt, that the petitioner was guilty of murder under current law. (E.g., People v. Lopez (2021) 271 Cal.Rptr.3d 170, 181–182, review granted, Feb. 10, 2021, S265974, cause transferred and ordered not citable, Dec. 22, 2021.)
Here, even though the evidentiary hearing was held in July 2022, the trial court applied the incorrect standard of proof. It denied the petition because it found substantial evidence that Vance was the actual killer. It also denied the petition, alternatively, because it found substantial evidence that he was a major participant and acted with reckless indifference. In fact, this was an even lower burden than the erroneously low Duke burden; the trial court asked only whether there was substantial evidence, not whether there was substantial evidence sufficient to convince a jury beyond a reasonable doubt.
Unhelpfully, Vance does not discuss the applicable harmless error standard. Rather, he argues that the error is reversible per se.
People v. Garrison (2021) 73 Cal.App.5th 735 (Garrison) held that the precise error here—applying the wrong burden of proof at an evidentiary hearing under section 1172.6—is not reversible per se. (Id. at pp. 745–747; accord, People v. Garcia (2022) 82 Cal.App.5th 956, 971-972.) Vance tries to distinguish Garrison on the ground that there, the trial court used the wrong standard of proof, whereas here, the trial court supposedly used no standard of proof. Not so. In both cases, the error was using a substantial evidence standard. (Garrison, supra, at p. 745.) Garrison is squarely on point.
Vance argues that, because
Vance also cites People v. Keel (2022) 84 Cal.App.5th 546. There, the court found insufficient evidence to support the trial court‘s finding that the petitioner acted with reckless indifference (id. at pp. 556–563), so it remanded with directions to grant the petition. (Id. at p. 565.)
In part IV, ante, however, we rejected Vance‘s contention that there was insufficient evidence to support the denial of the petition. Tellingly, he does not argue that, even if the trial court was allowed to consider our prior appellate opinion, there still was insufficient evidence that he is guilty of murder under current law. The trial court‘s only relevant error was in applying an erroneously low burden of proof. Accordingly, this case falls squarely under the general rule that “[b]y seeking reversal of a judgment of conviction on appeal, ‘in effect, [a petitioner] assents to all the consequences legitimately following such reversal, and consents to be tried anew.‘” [Citations.]” (People v. Eroshevich (2014) 60 Cal.4th 583, 591.)
Garrison declined to decide whether the applicable harmless error standard is the federal constitutional “beyond a reasonable doubt” standard (see Chapman v. California (1967) 386 U.S. 18, 24) or the state law “reasonably probable” standard (see Watson, supra, 46 Cal.2d at p. 836). It seems clear, however, that the state law standard applies. “A petition under . . . section [1172.6] is not a criminal prosecution. [Citation.]” (People v. Mitchell, supra, 81 Cal.App.5th at p. 588.) Vance has already been convicted of murder. The Legislature, in an act of grace and mercy, has provided the
Under these circumstances, most of the federal constitutional protections that attend a criminal conviction do not apply. (People v. Mitchell, supra, 81 Cal.App.5th at p. 589 [no constitutional right against double jeopardy]; People v. Myles (2021) 69 Cal.App.5th 688, 703 [no constitutional right against self-incrimination]; People v. James (2021) 63 Cal.App.5th 604, 611 [no constitutional right to trial by jury]; see also People v. Lewis, supra, 11 Cal.5th at pp. 972–974 [no constitutional right to counsel; a due process right to counsel at the evidentiary stage but not at the prima facie stage]; but see People v. Basler (2022) 80 Cal.App.5th 46, 57–58 [
This includes the requirement of proof beyond a reasonable doubt. The Legislature could have provided that the People‘s burden of proof is by a preponderance of the evidence; it could even have provided that a petitioner is not entitled to relief as long as there is substantial evidence of guilt under current law. Instead, it required proof beyond a reasonable doubt. However, this is merely a state statutory right; a violation of the right is subject to the state law harmless error standard.
We need not actually decide whether the error was harmless. Under the state law standard, Vance has the burden of showing prejudice. (People v. Penunuri (2018) 5 Cal.5th 126, 169; People v. Hernandez (2011) 51 Cal.4th 733, 746.) Instead, he has staked all of his chips on the proposition that reversal is automatic. He does not argue that even if reversal is not automatic, the error was prejudicial. 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.
VI
DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ P. J.
We concur:
MCKINSTER J.
RAPHAEL J.