People v. Vance

94 Cal.App.5th 706

312 Cal.Rptr.3d 383

The PEOPLE, Plaintiff and Respondent,

v.Gregory VANCE, Jr., Defendant and Appellant.

E079750

Court of Appeal, Fourth District, Division 2, California.

Filed August 7, 2023

As Modified on Denial of Rehearing August 29, 2023

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.

OPINION

RAMIREZ P. J.

Petitioner Gregory Vance, Jr., his girlfriend (and codefendant) Katherine Schumann, and the victim were operating a fraudulent check-cashing scheme. Vance and Schumann suspected the victim of taking more than his share of the proceeds. Armed with knives, they went to the victim's home. By the time they left, the victim had been fatally stabbed. According to the prosecution's evidence, it was Vance who stabbed the victim; according to petitioner, it was Schumann. Vance was convicted of (among other things) first degree murder, on a felony murder theory, and sentenced to 56 years to life in prison.

The trial court denied Vance's petition under Penal Code section 1172.6¹ to vacate his murder conviction. He appeals. He contends the trial court erred by:

(1) 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.

(2) The trial court failed to find him guilty beyond a reasonable doubt; it merely found that there was substantial evidence that he was guilty.

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 section 1172.6 proceeding, the trial court's erroneous use of a substantial evidence test is not reversible per se. Rather, the appellant has the burden of showing that it is reasonably probable that, in the absence of the error, he or she would have enjoyed a more favorable outcome. As Vance has not even tried to meet this burden, we cannot say the error was prejudicial.

ISTATEMENT OF THE CASE

In 2003, Vance was found guilty of first degree murder (§ 187, subd. (a); former § 189, subd. (a)) and first degree burglary (§§ 459, 460). The only theory of first degree murder on which the jury was instructed was felony murder.

In a bifurcated proceeding, after waiving a jury trial, Vance admitted one strike prior (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction enhancement (§ 667, subd. (a)), and one prior prison term enhancement (§ 667.5, subd. (b)).

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 WL 2223794, 2006 Cal.App. Unpub. LEXIS 6822] [nonpub. opn.].)

In 2019, Vance filed a petition pursuant to section 1172.6. The trial court found that the petition made a prima facie showing, and it set an evidentiary hearing.

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.

IILEGAL BACKGROUND

Effective January 1, 2019, the Legislature restricted the scope of the felony murder rule. (Stats. 2018, ch. 1015, § 3.) Specifically, it amended section 189, concerning the degrees of murder, so as to provide that the felony murder rule (§ 189, subd. (a)) applies to a person only if:

"(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 section 1172.6 (Stats. 2018, ch. 1015, § 4), which provides: "A person convicted of felony murder ... may file a petition ... to have the petitioner's murder ... conviction vacated" if "[t]he petitioner could not presently be convicted of murder" as a result of the amendment of section 189. ( § 1172.6, subds. (a), (a)(3).)

If a petition under section 1172.6 is facially sufficient, the trial court must hold a hearing to determine whether the petition states a prima facie claim for relief. ( § 1172.6, subd. (c) ; People v. Lewis (2021) 11 Cal.5th 952, 957, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

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. ( § 1172.6, subds. (d)(1), (d)(3).) If the prosecution fails to meet this burden, the trial court must grant the petition and vacate the murder conviction. ( § 1172.6., subd. (d)(3).)

IIITHE 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.

Section 1172.6, as originally enacted, provided that "the record of conviction" was admissible at an evidentiary hearing. (Former § 1170.95, subd. (d)(3), Stats. 2018, ch. 1015, § 4.) However, it was amended, effective January 1, 2022, so as to add the following italicized language: "At the hearing to determine whether the petitioner is entitled to relief, ... [t ]he court may ... consider the procedural history of the case recited in any prior appellate opinion. " (Former § 1170.95, subd. (d)(3), Stats. 2021, ch. 551, § 2, italics added.)

We have held that, by allowing consideration of "the procedural history" in a prior appellate opinion, the Legislature intended to prohibit consideration of "the factual summar[y]" in a prior appellate opinion. ( People v. Clements (2022) 75 Cal.App.5th 276, 292, 290 Cal.Rptr.3d 395 ( Clements ); accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9, 292 Cal.Rptr.3d 513.) The evidentiary hearing here was held well after Clements was decided. Nevertheless, the trial court relied exclusively on the statement of facts in our prior opinion.

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. ( Evid. Code, § 353, subd. (a).) Thus, for example, hearsay admitted without objection is substantial evidence sufficient to support a judgment. ( Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268, 20 Cal.Rptr.3d 673.)

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, 199 Cal.Rptr. 830.) Likewise, an expert's opinion that is based on speculation is not substantial evidence. ( People v. Ramon (2009) 175 Cal.App.4th 843, 851, 96 Cal.Rptr.3d 459.) 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, 231 Cal.Rptr.3d 771.) 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 section 1172.6, an appellate opinion summarizing the facts, as shown in the record, is logically relevant. Our research has not revealed any legislative history explaining why the Legislature chose to make such an opinion inadmissible as evidence of the factual background of the case. Presumably, however, it was because the record itself is better evidence. An appellate opinion necessarily must leave out at least some of the facts. It may set forth only those facts that are relevant to the particular issue(s) being raised on appeal, thus omitting facts that will become relevant later under section 1172.6. And it may inadvertently misstate a fact.

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. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) 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...