Filed 5/2/22 P. v. Osborne CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307802
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A023071)
v.
PAMELA OSBORNE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Amanda V. Lopez,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In 1981, defendant and appellant Pamela Osborne pleaded
nolo contendere to the second degree murder of Benjamine Quiroz
(Pen. Code, § 1871) and the trial court sentenced her to 15 years
to life in state prison. On May 29, 2019, defendant filed a
petition for resentencing pursuant to section 1170.95. After an
evidentiary hearing, the court denied the petition. On appeal,
defendant contends the court failed to state the burden of proof it
used to consider the prosecution’s evidence and erred in
admitting into evidence her probation report and the transcript of
her May 3, 2012, parole hearing during which she admitted she
was the actual killer. We affirm.
II. BACKGROUND2
A. Facts
At her 2012 parole hearing, defendant testified she first
saw Quiroz in a liquor store “flashing” his money in an “arrogant
fashion.” Quiroz was apparently intoxicated and asked her for a
date.
1 All statutory references are to the Penal Code unless
otherwise stated.
2 Because defendant pleaded nolo contendere and there was
no trial, we base our recitation of facts on the transcript of
defendant’s 2012 parole hearing which, as we explain below, the
trial court properly admitted in evidence.
2
Defendant and her companion Peggy Fridli devised a plan
to rob Quiroz. Fridli was to engage in a sexual act with Quiroz;
defendant was going along as Fridli’s friend. They got into
Quiroz’s car and drove to a liquor store to get change. When they
got there, Fridli left with a $100 bill Quiroz had given her—
defendant speculated that “was enough for her”3—leaving
defendant alone with Quiroz.
Quiroz was upset that Fridli had left, and was “going to
take it out of [defendant’s] ass for [her] friend robbing him [of
$100].” Quiroz, who was armed with a small pistol, drove
defendant to a motel. Defendant convinced him to leave the
pistol in his car.
Defendant went into a motel room with Quiroz where he
knocked her down a couple of times. She told him to stop, saying
that she was going into the bathroom to clean up, as if she was
agreeable to having sex with him.
Once in the bathroom, defendant removed a disassembled,
sawed-off shotgun from her waistband and shotgun shells from
her pocket. She assembled and loaded the shotgun. She then
exited the bathroom and pulled the shotgun on Quiroz. She took
Quiroz’s pants—they were already off—and told him she was
leaving. She thought that taking his pants would prevent him
from following her.
Defendant ran, but Quiroz came after her. Quiroz chased
defendant for about eight blocks. They ended up in an alley
where defendant stopped and shot Quiroz from a distance of
about six to eight feet. She did not check on Quiroz’s condition
3 Defendant supposed that Quiroz and Fridli had discussed a
price for the sexual act, but she did not “hear the actual
[amount].”
3
after she shot him and threw the shotgun and Quiroz’s pants into
a nearby bush. The money was not in Quiroz’s pants.
B. Procedure
In 1981, the District Attorney of Los Angeles County filed
an information charging defendant and Joe Mary Castro with
Quiroz’s murder and robbery (§ 211). The information alleged
the murder was committed while in the commission of a robbery.
(§ 190.2, subd. (a)(17).) On September 8, 1981, defendant pleaded
nolo contendere to second degree murder.
On May 29, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. On June 13, 2019, the
trial court appointed counsel to represent defendant and set a
briefing schedule for the District Attorney’s response and
defendant’s reply.
After the parties filed their briefs, the trial court issued an
order to show cause “in an abundance of caution . . . in case
anybody wishe[d] to supplement the record with oral argument
. . . .” At the evidentiary hearing, the District Attorney argued
that defendant was ineligible for section 1170.95 resentencing.
The court could “review the record of conviction in this case and
summarily deny it.” The District Attorney further argued that
the records it submitted showed defendant was the actual killer.
Defense counsel responded, “The two exhibits that the
District Attorney’s Office filed is—the way I read the motion—is
asking this court to consider both the probation report and the
parole hearing transcripts as part of the conviction to conclude
that [defendant] does not qualify. That is where my objection
lies.”
4
The trial court denied defendant’s section 1170.95 petition,
stating, “I do not think that she qualifies under that code
section.”
III. DISCUSSION
A. Burden of Proof
In her opening brief, in connection with her argument that
the trial court’s error in admitting her probation report and 2012
parole hearing transcript was not harmless, defendant argues
that the prosecution’s burden was proof beyond a reasonable
doubt. Without claiming error, she notes that the court “made no
comment on . . . the standard applied in denying the petition.”
The Attorney General treats defendant’s burden of proof
argument as a claim of error and defendant then claims error in
her reply brief.4 Defendant’s argument is unavailing.
It is an appellant’s burden to affirmatively demonstrate
error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
In denying defendant’s section 1170.95 petition the trial court
simply stated, “[The section] 1170.95 [petition] is denied at this
time. I do not think that she qualified under that code section.”
Defense counsel did not ask the court to clarify the standard it
used in making its ruling. Because the court did not state the
4 Ordinarily, we do not consider issues raised for the first
time in a reply brief (People v. Tully (2012) 54 Cal.4th 952, 1075
[“It is axiomatic that arguments made for the first time in a reply
brief will not be entertained because of the unfairness to the
other party”]), but will do so here as the Attorney General has
briefed the issue.
5
burden of proof it applied in considering the evidence, defendant
cannot affirmatively demonstrate the court applied an incorrect
standard.
B. Evidentiary Error
Defendant contends the trial court erred in admitting into
evidence her probation report and the transcript of her 2012
parole hearing.5 We disagree.
1. Section 1170.95
Section 1170.95 “creates a procedure for convicted
murderers who could not be convicted under the law as amended
[§§ 188, subd. (a)(3), 189, subd. (e)] to retroactively seek relief.”
(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Where a
petitioner files a section 1170.95 petition that contains all of the
statutorily required information and requests counsel, the trial
court must appoint counsel and order briefing. (Id. at p. 966.)
The court then evaluates whether the petitioner has made a
prima facie showing that she is eligible for relief. (Id. at p. 960.)
In making this evaluation, a court may rely on the record of
conviction. (Id. at pp. 971–972.)
If the petitioner has made a prima facie showing, the trial
court “shall issue an order to show cause.” (§ 1170.95, subd. (c).)
5 Because we hold the trial court properly admitted
defendant’s 2012 parole hearing transcript which established
that she was the actual killer and thus not eligible for section
1170.95 resentencing, we need not decide whether it properly
admitted her probation report.
6
The court must then hold a hearing “to determine whether to
vacate the murder . . . conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence.” (§ 1170.95, subd. (d)(1).)
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder . . . under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019. The
admission of evidence in the hearing shall be governed by the
Evidence Code. . . . The prosecutor and the petitioner may also
offer new or additional evidence to meet their respective burdens.
A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(§ 1170.95, subd. (d)(3).)
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2. Analysis
a. Record of conviction
Defendant contends the 2012 parole hearing transcript is
not part of the “record of conviction.” Defendant’s contention is
misguided. A trial court may consider a petitioner’s “record of
conviction” in determining whether the petitioner established a
prima facie case. (Lewis, supra, 11 Cal.5th at pp. 971–972.)
Even if it is not a part of the record of conviction, however, the
2012 parole hearing transcript is “new or additional evidence”
under section 1170.95, subdivision (d)(3). (People v. Myles (2021)
69 Cal.App.5th 688, 697–703 [the transcript of a parole
suitability hearing is admissible as “new evidence” under section
1170.95, subdivision (d)(3)] (Myles).)
b. Rights to due process and against self-
incrimination
Defendant contends the admission of the 2012 parole
hearing transcript violated her rights to due process and against
self-incrimination.6
6 In her reply brief, defendant notes that Senate Bill No. 775,
which the Governor signed on October 5, 2021, and became
effective on January 1, 2022, amended section 1170.95,
subdivision (d)(3) to reflect that the Evidence Code governs the
admissibility of evidence at an order to show cause evidentiary
hearing. She does not, however, identify any Evidence Code
section she claims the trial court violated in admitting the parole
hearing transcript.
8
Defendant’s due process argument essentially is that “it is
fundamentally unfair to penalize an inmate’s exercise of [her]
right to be heard at a [parole] hearing focused on [her] insight
into [her] life crime by permitting the prosecution to use the
inmate’s statements made at the hearing at a subsequent
criminal proceeding focused on establishing the inmate’s criminal
liability for that same life crime.” But, as defendant concedes,
she was not compelled to admit her responsibility for the crime
during her parole hearing and it is not fundamentally unfair to
admit that testimony during a resentencing proceeding the
defendant voluntarily initiates that bears on some of the same
issues. (People v. Anderson (Apr. 28, 2022, No. A162633) ___
Cal.App.5th ___ [2022 WL 1261422 at *6–7] (Anderson); Myles,
supra, 69 Cal.App.5th at p. 706.)
Further, although we are uncertain whether the
Legislature envisioned, in enacting and amending section
1170.95, that statements an inmate makes during a parole
hearing would be the sort of new evidence a prosecutor may offer
to meet his or her burden of proof, there is no statutory bar on
the use of such statements. We express some concern that a
collateral consequence of the holdings in Anderson, supra, ___
Cal.App.5th ___, Myles, supra, 69 Cal.App.5th 688, and our
opinion today is that inmates may be reticent to discuss their
commitment offense during parole hearings for fear of prejudicing
their ability to seek relief under unanticipated ameliorative
criminal legislation. That may make it more difficult for the
Board of Parole Hearings (the Board) to judge an inmate’s
“insight.” Absent further legislative action concerning the use of
parole statements, courts will need to enforce scrupulously
existing law that bars the Board from conditioning the
9
availability of parole on an inmate’s willingness to discuss the
crime(s) of conviction.
“The Fifth Amendment privilege against self-incrimination
protects persons from being compelled by ‘“governmental
coercion”’ to serve as witnesses against themselves in ‘“any
criminal case.”’ (People v. Tom (2014) 59 Cal.4th 1210, [1222–
1223] . . . , italics added.) A section 1170.95 hearing, however, ‘“is
not a trial de novo on all the original charges.” [Citation.]
Rather, it is a postconviction proceeding “due to the Legislature’s
inclusion of section 1170.95 in Senate Bill No. 1437 . . . , [as] an
‘act of lenity’ [citation], allowing for the retroactive application of
the new law governing accomplice liability for felony murder
[citation] for defendants already serving valid sentences for
murder.”’ ([People v.] Williams [(2020)] 57 Cal.App.5th [652,]
661, quoting People v. Wilson [(2020)] 53 Cal.App.5th [42,] 53;
see, e.g., People v. Anthony [(2019)] 32 Cal.App.5th [1102,] 1156
[§ 1170.95 petitioners do not have 6th Amend. trial rights].)
Because a sentence modification under section 1170.95 is an act
of lenity and not a criminal trial, the wrongful admission of
evidence does not implicate defendant’s constitutional rights
under the Fifth Amendment.” (Myles, supra, 69 Cal.App.5th at
pp. 705–706; Anderson, supra, ___ Cal.App.5th ___ [2022 WL
1261422, at *14–15].)
Defendant was the actual killer and therefore is ineligible
for section 1170.95 resentencing as a matter of law. (§ 189, subd.
(e)(1); Lewis, supra, 11 Cal.5th at p. 959 [“the Legislature passed
Senate Bill [No.] 1437 ‘to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer . . .’”]; People v. Garrison
10
(2021) 73 Cal.App.5th 735, 744 [“as the actual killer, [the
defendant] is ineligible for resentencing under section 1170.95”].)
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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