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California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Hearing to Determine Facts Surrounding Felony Murder Charges for Possible Resentencing Under § 1172.6

by David M. Reutter

The Court of Appeal of California, Fourth Appellate District, held that a prisoner’s constitutional and statutory rights to be personally present at an evidentiary hearing to determine if Senate Bill 1437 prohibits charging him with felony murder were violated. Finding the error was not harmless beyond a reasonable doubt, the Court remanded for a new hearing.

A jury convicted Quang Van Quan in October 2017 of three counts of first-degree murder, and it found true two felony murder special circumstance allegations that the murders took place during the commission of a burglary, robbery, or attempted robbery. Following the enactment of Senate Bill 1437, Quan filed a petition in which he requested resentencing pursuant to § 1170.95 (now § 1172.6) based on changes made by the Legislature to limit accomplice liability under the felony murder rule and the natural and probable consequences doctrine.

The trial court summarily denied the petition on grounds that Senate Bill 1437 was unconstitutional as a purported amendment to Propositions 7 and 115—a rationale the Court of Appeal rejected during the pendency of Quan’s appeal of that ruling. See People v. Cruz, 46 Cal. App. 5th 740 (2020); People v. Solis,46 Cal.App.5th 762 (2020).The Court of Appeal therefore reversed and remanded Quan’s appeal with directions for “the court to consider the merits of Quan’s petition.” After remand, the trial court held an evidentiary hearing on Quan’s petition and found Quan was ineligible for resentencing. He timely appealed.

In his briefing, Quan raised numerous claims of error by the trial court. The Court addressed none of those issues because it determined that Quan was correct that his constitutional and statutory rights to be personally present at the hearing were violated.

Under Senate Bill 1437, “Resentencing is available under the new law if the defendant neither killed nor intended to kill and was not ‘a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2.’” People v. Strong,514 P.3d 265 (Cal. 2022).

“If, as here, the parties do not stipulate that the petitioner is eligible for resentencing and there has been no ‘prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony’ (§ 1172.6, subd. (d)(2)), the trial court is required to hold an evidentiary hearing to resolve the reckless indifference to human life and major participant questions,” the Court explained. It instructed that the trial court’s role at the hearing “is to act as an independent fact finder and determine [these issues] in the first instance.” People v. Guiffreda, 87 Cal. App. 5th 112 (2023).

While a hearing was held, Quan was not present. The Court noted that both the U.S. and California Constitutions enshrine the “right to be personally present in court ‘where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding.’” People v. Basler,80 Cal. App. 5th 46 (2022).

The defendant’s presence is required when the court must make fact-bound determinations as it exercises its sentencing discretion such as considering youth-related mitigating factors, People v. Guerrero,76 Cal. App. 5th 329 (2022), or after a change in law regarding an enhancement the court initially imposed, People v. Cutting, 42 Cal. App. 5th 344 (2019).

“Had Quan been present for his evidentiary hearing, he could have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence or doing more than submitting on the papers,” the Court reasoned. It determined that there was no indication on the record of Quan waiving his right. Having found error, the Court turned to determining whether he was prejudiced.

“After reviewing this entire record, in light of the twin purposes of Quan’s right to be present at the hearing—to potentially offer testimony or evidence upon hearing the prosecution’s case, and to assist counsel—we cannot say beyond a reasonable doubt that depriving him of that right was harmless,” the Court concluded.

“One example suffices: the prosecution’s burden on a theory of felony murder to establish Quan’s reckless indifference to life. That element has both objective and subjective components,” stated the Court. Had Quan been present at the hearing, he “could have addressed what he knew of his confederates’ willingness to kill in furtherance of their objectives; when he knew—perhaps preempting the trial court’s advance knowledge finding—of the presence of lethal weapons; and when he came to believe his own debt to the men might be forgiven, and whether he understood or expected that as a quid pro quo for his participation in the crime,” explained the Court.

Accordingly, the Court reversed the order denying Quan’s petition and “remanded with instructions to hold a new evidentiary hearing at which Quan ‘will either be present or provide knowing, intelligent[,] and voluntary written waiver of his presence.’” Basler. The Court further instructed: “To the extent the prosecutor relies on a theory of felony murder at the hearing, the trial court shall employ in its analysis the guidelines set forth in [People v. Banks, 351 P.3d 330 (Cal. 2015); People v. Clark, 372 P.3d 811 (Cal. 2016)], and their progeny. To the extent the prosecutor may rely on a theory of implied malice murder based on direct aiding and abetting, the Supreme Court’s new decision in [People v. Reyes, 531 P.3d 357 (Cal. 2023)] supplies the applicable analytical guidelines.” See: People v. Quan, 96 Cal. App. 5th 524 (2023).  

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