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California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Evidentiary Hearing Under Felony Murder Resentencing Law

by David M. Reutter

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

Quang Van Quan was found guilty in October 2017 of three counts of first degree murder. It further 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 2017-2018 Reg. Sess.; 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 is unconstitutional as a purported amendment to Propositions 7 and 115—a rationale the appellate court rejected during the pendency of Quan’s appeal of that ruling. People v. Cruz, 46 Cal. App. 5th 740 (2020); People v. Solis,46 Cal. App. 5th 762 (2020). The appellate court 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. However, the Court addressed none of those issues because Quan was correct that his constitutional and statutory rights to be personally present at the hearing were violated.

The Court noted that Senate Bill 1437 was enacted “to more equitably sentence offenders in accordance with their involvement in homicides.” People v. Reyes, 14 Cal. 5th 981 (2023). It “narrowed the scope of the felony murder rule and provided in former section 1170.95, now section 1172.6, a path for resentencing for defendants previously convicted of felony murder who could not now be convicted under the new law,” the Court explained. 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,13 Cal. 5th 698 (2022).

The Court explained: “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’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). The State bears the burden of proving “beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under state law as amended by Senate Bill 1437.” Strong.

The Court observed that Quan was not present at the evidentiary hearing and stated that the Sixth and Fourteenth Amendments to the U.S. Constitution and article 1, § 15 of the California Constitution 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 right to be personally present is contingent on two conditions: “(1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding.” People v. Perry, 38 Cal. 4th 302 (2006); accord Kentucky v. Stincer, 482 U.S. 730 (1987).

The Court stated that “[s]entencing and resentencing hearings are critical stages in a criminal proceeding.” People v. Doolin, 45 Cal. 4th 390 (2009); People v. Simms, 23 Cal. App. 5th 987 (2018) (Prop. 47 wobbler reclassification). The Court noted that Basler specifically held that a § 1172.6 hearing constitutes a “critical stage requiring either the defendant’s presence or a valid waiver of his presence.” It also explained that the defendant’s presence at the evidentiary hearing “significantly contributes to the fairness of the hearing as a matter of due process.”

The Court added that 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 (2022) 76 Cal.App.5th 329), or after a change in law regarding an enhancement the court initially imposed (People v. Cutting (2019) 42 Cal.App.5th 344 (resentencing on remand after successful appeal).”

The Court then explained the importance of Quan’s presence: “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.’” It found there was no evidence on the record of Quan waiving his right. Having found error, the Court turned to determining whether prejudice occurred.

“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 said. “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.”

Had Quan been present, 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,” the Court opined.

Accordingly, the Court reversed the order denying Quan’s petition and remanded with instructions to hold a new evidentiary hearing at which he “will either be present or provide a knowing, intelligent[,] and voluntary written waiver of his presence.” Basler. See: People v. Quan, 96 Cal. App. 5th 524 (2023).  

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