People v. Maldonado CA2/3

Filed 6/28/22 P. v. Maldonado CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, e xcept as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B308300

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A364611
v.

LORENZO RICARDO
MALDONADO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.

Mark D. Lenenberg, under appointment by the Court
of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriquez,
Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Amada V. Lopez and Chung L. Mar, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
 In 1981, Lorenzo Ricardo Maldonado pleaded guilty to
second degree murder based on a codefendant’s fatal shooting
of a pizza delivery man during the commission of an armed
robbery. In 2019, Maldonado filed a petition for resentencing
under Penal Code section 1170.95.1 After an evidentiary hearing,
the superior court denied the petition, finding Maldonado was
not entitled to relief because he was a major participant in
the robbery and acted with reckless indifference to human life.
Maldonado appealed.
We originally issued an opinion in this case on
September 23, 2021. We affirmed the order denying Maldonado’s
petition, rejecting Maldonado’s contention that the double
jeopardy clause applies to section 1170.95 proceedings and
holding that substantial evidence supported the superior court’s
findings. After our affirmance, the governor signed into law
the amendments to section 1170.95 enacted by Senate Bill
No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2)
(Senate Bill 775), effective January 1, 2022. Maldonado filed
a petition for review based on the newly-enacted amendments.
On December 1, 2021, the California Supreme Court granted
review and transferred the case to us with directions to vacate
our decision and reconsider the cause in light of Senate Bill 775.
In addition to his previous contentions, Maldonado now
also asserts he is entitled to a new hearing because (he says)
the evidence on which the superior court relied in denying
his petition is inadmissible under the amendments to section
1170.95, subdivision (d)(3). We conclude Maldonado has forfeited
these evidentiary challenges. Not only did he fail to raise any

1 References to statutes are to the Penal Code.

2
objections to the evidence in the superior court; he himself
presented to the court the materials to which he now objects,
asking the court to read and rely on them in ruling on his
petition. In addition, we again conclude substantial evidence
supports the trial court’s findings that Maldonado was a major
participant in the robbery and acted with reckless indifference
to human life. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The 1980 robbery and murder2
On October 10, 1980, seven juvenile members of the
Avenues gang, including Maldonado,3 decided to rob a pizza
delivery man to get money to go to a county fair. The plan
initially was devised by Rudy Zamorano, Martha McRae, and
Lisa Gandara. They then gathered with Maldonado, Manual
Marin, Ralph Garcia, and “Pete” at Maldonado’s house where
they worked out the details. All seven participants “were for it.”
The plan was to drive to a secluded street, order pizzas for
delivery to an address on that street, and then wait for the
delivery man to arrive to rob him. While the group agreed
“nobody was supposed to get hurt,” they also decided to use

2 We take the facts from two documents Maldonado attached
as Exhibits 1 and 2, respectively, to his reply brief in the superior
court and incorporated by reference: a January 1981 probation
officer’s report and a transcript of a November 1980 interview
by authorities of Lisa Rose Gandara, one of the co-participants
in the crimes. The prosecution also attached these two
documents—as well as an October 1980 police report—to its
response to Maldonado’s petition. We do not consider or rely
on the police report.
3 Maldonado was 17 at the time of the crimes.

3
a gun in the robbery. Zamorano told the group that, if the
delivery man pulled out a gun or tried to defend himself,
“they were going to shoot him.”
The group drove in Marin’s car to a fellow gang member’s
house where Zamorano retrieved a rifle and ammunition. They
then chose a house on Raber Street as the location for the robbery
because it was the darkest street in the area. After dropping
off McRae and Pete at a pay phone booth so they could order
the pizzas, the group parked the car down the street from
the Raber Street house. While Marin stayed in the car, the
rest of the group waited near the house for the delivery man.
Maldonado and Gandara stood in front of the house while
Zamorano and Garcia hid behind a car across the street.
When the delivery man, Phillip Ares (age 21), arrived on
Raber Street, Gandara directed him to follow her to the house.
As Ares was walking toward the house, Zamorano approached
him from behind, put the rifle against his back, and said, “Hold
it, motherfucker, or I’ll shoot you.” Gandara grabbed the pizzas
from Ares’s hands. Maldonado and Garcia then searched Ares
for money. Maldonado took change from one of Ares’s pockets
while Garcia took bills from another pocket.
After the juveniles took Ares’s money, Zamorano told him
to turn around. When Ares didn’t comply, Zamorano warned
him, “If you don’t turn around, I’ll shoot you through the back.”
Ares again did not comply, and instead stood silently with his
back to Zamorano. After Zamorano told Ares to turn around a
third time, Maldonado grabbed Ares by his arm and turned him
toward Zamorano. At that point, the rifle was pointed at Ares’s
stomach. Zamorano told Ares, “I know you’re going to snitch.”

4
Zamorano then walked around Ares and shot him three times
in the back. Ares died at the scene.
Immediately after the shooting, Maldonado and the rest
of the group ran back to Marin’s car. When Gandara asked
Zamorano why he shot the delivery man, Zamorano “[j]ust
laughed.” According to Gandara, “we all laughed, just laughed”;
“we didn’t expect that he died.” After the group picked up McRae
and Pete, they drove to an alley, where they hid the rifle and split
the proceeds from the robbery—a total of $47. The group then
parked on a nearby street and ate the pizza.
2. Maldonado’s 1981 guilty plea
Maldonado, Zamorano, and Marin were charged with
murder and robbery with robbery-murder special circumstance
and firearm enhancement allegations. Maldonado reached a
plea agreement with the prosecution and, on January 7, 1981,
pleaded guilty to second degree murder. The court sentenced
him to 15 years to life in the state prison.
3. Maldonado’s 2019 petition for resentencing
On January 2, 2019, Maldonado filed a petition for
resentencing under section 1170.95. On a downloadable form,
Maldonado checked boxes asserting he had pleaded guilty to
murder under the felony-murder rule or the natural and probable
consequences doctrine, he was not the actual killer, he did not aid
or abet a murder with the intent to kill, and he was not a major
participant in the underlying felony, nor did he act with reckless
indifference to human life. On March 11, 2019, the trial court
appointed counsel for Maldonado.
On July 2, 2019, the People filed a response to Maldonado’s
petition. They contended the court should deny the petition
because section 1170.95 was unconstitutional. They also argued

5
Maldonado was ineligible for resentencing because he was
a major participant in the robbery and acted with reckless
indifference to human life. The People attached copies of the
probation officer’s report, a “follow-up investigation” police
report, and the Gandara interview.
On November 1, 2019, Maldonado filed a reply in support of
his petition. Maldonado attached copies of the probation officer’s
report and the Gandara interview “and incorporated [them] by
reference.” Maldonado argued section 1170.95 is constitutional.
He also asserted he had established a prima facie case for relief.
Citing to and relying on his exhibits, Maldonado argued
there was “no evidence that killing or discharging the gun was
part of the plan when [he] agreed to join the other six juveniles
for a ‘simple robbery.’ ” Maldonado noted Gandara said in
her interview that Zamorano had assured them nobody would
get hurt, and that the group didn’t “believe the victim was dead
until the police told them.”
Maldonado argued Gandara “appeared to be more
sophisticated and had more culpability” than anyone except
Zamorano: “Gandara was the one who decided they should
call the pizza place ahead of time; she was the one who selected
the delivery spot in a secluded area; she retrieved the murder
weapon from the trunk of Marin’s car, carried it up the stairs,
and gave it to Zamorano.” Gandara also “lured the victim to
the chosen spot for the robbery, thereby placing Ares in front of
Zamorano.” Because his “co-participants, especially Zamorano
and Gandara, were the masterminds behind the robbery and
were involved in every stage of the criminal activity before
and after commission of the robbery,” Maldonado was not,
he contended, a major participant.

6
 Nor, Maldonado argued, was the evidence—presumably
referring to his exhibits, as that was the only “evidence” before
the court—sufficient “to support [a] finding that he acted with
reckless indifference to human life.” “[T]he group of juveniles
had an apparent agreement that no one would be shot because
Zamorano would only use the gun in case the pizza man were
to attack them.” Maldonado asserted he didn’t have “the
opportunity to stop the killing or intervene before Zamorano
started shooting.”
On November 12, 2019, the trial court issued an order
to show cause, finding that section 1170.95 is constitutional
and that Maldonado had made a prima facie showing of his
entitlement to relief.
The parties appeared before the court on July 22, 2020
for the evidentiary hearing. Neither the prosecution nor
Maldonado proposed to call any witnesses or to submit any
additional evidence. The court noted the prosecution had to
prove Maldonado could still be convicted under current law.
The court told the prosecutor it seemed Zamorano, Gandara,
and McRae “were the planners, not so much Maldonado.”
After hearing at length from the prosecutor, the court turned
to Maldonado’s counsel.
Counsel stated, “Now, in no particular order these are the
following facts.” Counsel noted, “[M]ost of the evidence that we
have in this petition come[s] from Lisa Gandara’s statements,”
adding, “that’s what we have to work with because for some
reason, the police did not obtain other statements from the
other participants.” Counsel said,
“Mr. Maldonado did not possess or brandish
a firearm at any time during the run up to

7
 the robbery or during the robbery. He did not
encourage Zamorano to shoot the victim. He
did not provide the weapon or the ammunition
to Zamorano. He did not expect or anticipate
that Zamorano would shoot the victim apart
from . . . Ms. Gandara’s statement that
Zamorano would shoot if the victim resisted,
but nobody ever attributed a statement to
Mr. Maldonado. [¶] . . . [T]he way Gandara
described the incident, Mr. Maldonado did
not have a chance to stop Zamorano from
shooting the victim. It appears that after
Mr. Maldonado and the other individual took
the money from the victim’s pockets, that they
began to walk away from the victim. [¶] And
Mr. Zamorano told the victim to turn around.
The victim either did not do so or did not do so
fast enough for Zamorano and Zamorano shot
the victim three times.”
Counsel continued,
“[T]he way Gandara summarized the incident
to the detectives, it seems that although
Zamorano may have known that he had shot
the victim, it appears that the others did not
know that the victim was mortally wounded
until the next morning. Because apparently
they expressed some surprise when the
detectives told them that the victim had died.
[¶] . . . Mr. Maldonado did not initiate the plan
to rob the pizza delivery man. He did propose

8
 specific details.[4] He did not suggest a firearm.
And also there wasn’t any evidence, Your
Honor, that Mr. Maldonado knew that
Zamorano had a propensity to shoot or
kill people.”
After hearing rebuttal argument from the prosecutor,
the court took the matter under submission.
On September 14, 2020, the trial court issued a detailed
memorandum of decision denying Maldonado’s petition. The
court found Maldonado was not entitled to relief because the
evidence showed—beyond a reasonable doubt—that he was
a major participant in the underlying felony and acted with
reckless indifference to human life. In finding Maldonado was
a major participant, the court relied on “his later, but actual,
participation in the planning, his participation in the robbery,
his lack of action when it became apparent his co-perpetrator
believed the victim needed to be killed, and his lack of aid
to the victim.” In finding Maldonado acted with reckless
indifference to human life, the court cited “his role as a
late-stage planner and a participant in the armed robbery
who was in a position to prevent the violence but did not.”
4. Maldonado’s additional contentions on remand
As noted, in an opinion filed on September 23, 2021, this
court affirmed the trial court’s denial of Maldonado’s petition.
(People v. Maldonado (Sept. 23, 2021, B308300) [nonpub. opn.].)
After our Supreme Court granted Maldonado’s petition for review
and transferred the case to us, both Maldonado and the Attorney

4 Counsel may have meant to say Maldonado did not propose
specific details.

9
General filed supplemental briefs. (Cal. Rules of Court, rule
8.200(b).) Maldonado contends Senate Bill 775 “preclude[s] all
of the evidence produced by the prosecution at the evidentiary
hearing and relied on by the trial court and this court in denying
[him] relief.”
DISCUSSION
1. Section 1170.95
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) took effect on January 1, 2019. (See Stats. 2018, ch. 1015,
§ 4.) It limited accomplice liability under the felony-murder rule
and eliminated the natural and probable consequences doctrine
as it relates to murder to ensure a person’s sentence is
commensurate with his or her individual culpability. (People v.
Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); People v. Lewis
(2021) 11 Cal.5th 952, 957, 971 (Lewis).) Senate Bill 1437
amended the felony-murder rule by adding section 189,
subdivision (e). It provides that a participant in the perpetration
of qualifying felonies is liable for felony murder only if the
person: (1) was the actual killer; (2) was not the actual killer
but, with the intent to kill, acted as a direct aider and abettor;
or (3) was a major participant in the underlying felony and
acted with reckless indifference to human life as described
in section 190.2, subdivision (d). (See Gentile, at p. 842.)
Senate Bill 1437 also authorized, through new section
1170.95, an individual convicted of felony murder (or murder
under the natural and probable consequences doctrine) to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he could not have been
convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, 11 Cal.5th at

10
pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.) If the section
1170.95 petition contains all the required information, including
a declaration by the petitioner that he was convicted of murder
and is eligible for relief (§ 1170.95, subd. (b)(1)(A)), section
1170.95, subdivisions (b)(3) and (c) require the court to appoint
counsel to represent the petitioner, if requested; to direct
the prosecutor to file a response to the petition and permit
the petitioner to file a reply; and to determine if the petitioner
has made a prima facie showing he is entitled to relief. (See
Lewis, at pp. 959-960.) If he has, the court then holds an
evidentiary hearing at which the prosecution has the burden
of proving beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
Senate Bill 775 amended section 1170.95 in a number
of ways.5 One of those addressed the scope of admissible evidence
at the evidentiary hearing. As amended, section 1170.95,
subdivision (d)(3) provides, in relevant part: “The admission of
evidence in the hearing shall be governed by the Evidence Code,
except that the court may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural
history of the case recited in any prior appellate opinion.”

5 The Attorney General does not dispute that the
amendments Senate Bill 775 made to section 1170.95 apply to
cases not yet final. (See People v. Montes (2021) 71 Cal.App.5th
1001, 1006-1007.) While not explicitly conceding the issue, the
Attorney General notes the Supreme Court specifically ordered
us to reconsider Maldonado’s petition in light of Senate Bill 775
and, in any event, Maldonado could “simply file a new petition.”

11
Hearsay evidence that was admitted at a preliminary hearing
under subdivision (b) of section 872 is now inadmissible unless
it falls within another exception to the hearsay rule. Both the
prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens. (§ 1170.95, subd.
(d)(3).)
2. Standard of review
On appeal from an order denying a petition under section
1170.95, we “review the trial judge’s factfinding for substantial
evidence. [Citation.] We ‘ “examine the entire record in the light
most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value that would support a rational trier
of fact in finding [the defendant guilty] beyond a reasonable
doubt.” ’ [Citation.] Our job on review is different from the
trial judge’s job in deciding the petition. While the trial judge
must review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all
under the reasonable doubt standard, our job is to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational factfinder’s findings
beyond a reasonable doubt.” (People v. Clements (2022) 75
Cal.App.5th 276, 298. See also People v. Owens (May 18, 2022,
B310427) ___ Cal.App.5th ___ [2022 WL 1565241, at *3] [we
presume in support of the judgment the existence of every fact
the trier of fact could reasonably have deduced from the evidence;
we resolve neither credibility issues nor evidentiary conflicts].)

12
3. Double jeopardy principles do not apply to
section 1170.95 proceedings
In his opening brief, Maldonado argued the constitutional
prohibitions against double jeopardy precluded the trial court
from finding he could be convicted of first degree felony murder
under current law, given that he was convicted of only second
degree murder. He also asserted that, to the extent he may have
forfeited this claim on appeal, his counsel in the section 1170.95
proceeding was ineffective in failing to object on double jeopardy
grounds. This contention is meritless.
The double jeopardy clauses of the Fifth Amendment to
the United States Constitution and article I, section 15, of the
California Constitution provide that no person may be tried
more than once for the same offense. (People v. Aranda (2019)
6 Cal.5th 1077, 1083.) The double jeopardy clause accordingly
“ ‘protects against a second prosecution for the same offense
following an acquittal or conviction, and also protects against
multiple punishment for the same offense.’ ” (People v. Anderson
(2009) 47 Cal.4th 92, 103-104.) A defendant must affirmatively
raise a claim of double jeopardy in the trial court to preserve the
issue for appeal. (People v. Gurule (2002) 28 Cal.4th 557, 646.)
Contrary to Maldonado’s claim, the constitutional
protections afforded by the double jeopardy clause do not apply
to section 1170.95 proceedings. As our colleagues in Division 7
explained in People v. Hernandez (2021) 60 Cal.App.5th 94, 111,
an “evidentiary hearing under section 1170.95 . . . does not
implicate double jeopardy because section 1170.95 ‘involves a
resentencing procedure, not a new prosecution.’ ” The retroactive
relief section 1170.95 provides is a legislative act of lenity,
intended to give defendants serving otherwise final sentences

13
the benefit of ameliorative changes to applicable criminal laws.
It does not result in a new trial or increased punishment that
could implicate the double jeopardy clause. (Hernandez, at
p. 111.)
Accordingly, the trial court’s finding that Maldonado could
be convicted of first degree murder under a valid felony murder
theory, and therefore was ineligible for resentencing, did not
violate the rules against double jeopardy. For the same reason
his counsel was not ineffective in failing to object on those
grounds before the trial court. (See People v. Bell (2019)
7 Cal.5th 70, 127 [counsel not ineffective in failing to raise
futile objection].)
4. The Sixth Amendment right to confrontation does
not apply in a section 1170.95 evidentiary hearing
In his supplemental brief, Maldonado includes this
heading: “THE TRANSCRIPT OF LISA GANDARA’S
PRETRIAL DEPOSITION [sic] BY THE PROSECUTOR WAS
INADMISSIBLE AT THE ORDER TO SHOW CAUSE HEARING
AS VIOLATIVE OF THE CONFRONTATION CLAUSE.”
However, Maldonado presents no authority, or any real
argument, to support his supposition that the confrontation
clause applies in section 1170.95 proceedings. (Cf. Kurinij v.
Hanna & Morton (1997) 55 Cal.App.4th 853, 867 [“an appellant
must present argument and authorities on each point to which
error is asserted or else the issue is waived”]; Keyes v. Bowen
(2010) 189 Cal.App.4th 647, 655-656 [matters that lack adequate
legal discussion will be deemed forfeited].)
In any event, while the “Sixth Amendment applies
‘[i]n all criminal prosecutions[,]’ . . . [a] petition under section
1170.95 is not a criminal prosecution.” (People v. Silva (2021)

14
72 Cal.App.5th 505, 520.) Thus, appellate courts consistently
have held that the “ ‘retroactive relief provided by section
1170.95 reflects an act of lenity by the Legislature “that does
not implicate defendants’ Sixth Amendment rights.” ’ ” (Ibid.;
accord People v. James (2021) 63 Cal.App.5th 604, 610 [convicted
person litigating section 1170.95 petition does not enjoy rights
that Sixth Amendment guarantees to criminal defendants who
have not yet suffered final conviction]; People v. Perez (2020)
54 Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254
[Senate Bill 1437 not subject to Sixth Amendment analysis];
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [relief
afforded by Senate Bill 1437 “constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights”].)6
Although Senate Bill 775 amended section 1170.95,
subdivision (d)(3) to clarify the scope of evidence admissible
at an evidentiary hearing, it did not provide petitioners with
the right to confront witnesses at that hearing. Nothing in
the language of the amended statute suggests the Legislature
intended the admission of evidence at the hearing to be subject
to the confrontation clause.

6 The only case Maldonado cites in this section of his brief is
Crawford v. Washington (2004) 541 U.S. 36. Crawford concerned
the admission of testimonial hearsay against a defendant at
a criminal trial. (Id. at pp. 53-54 [admission of testimonial
statements of witness not appearing at trial violates defendant’s
confrontation rights unless witness is unavailable to testify and
defendant had prior opportunity for cross-examination].) Section
1170.95 is an optional postconviction resentencing procedure:
“A person convicted of [enumerated qualifying offenses] may
file a petition.” (§ 1170.95, subd. (a), italics added.)

15
5. Maldonado has forfeited any evidentiary objection
to the Gandara interview and the probation officer’s
report
Maldonado asserts section 1170.95, as amended by Senate
Bill 775, bars the trial court from considering and relying on the
transcript of Lisa Gandara’s interview and the probation officer’s
report. Maldonado states, “These records were attached as
exhibits to the People’s response to Maldonado’s section 1170.95
petition.” Maldonado omits the fact that he also presented the
interview and the probation report to the court as exhibits to
his brief and incorporated them by reference. This omission
is significant: Maldonado’s own reliance on the two documents
of which he now complains is a key fact in our analysis.
The Attorney General contends that, by “fail[ing] to raise
any general evidentiary objections—let alone the specific hearsay
objections . . . he now raises on appeal—to the trial court[ ],”
as well as by relying on the probation report and the Gandara
interview himself in seeking relief, Maldonado has “forfeited
any evidentiary challenges” to those documents. We agree.
Dean Witkin’s treatise states the general rule: “Where
inadmissible evidence is offered, the party who desires to
raise the point of erroneous admission on appeal must object
at the trial, specifically stating the grounds of the objection, and
directing the objection to the particular evidence that the party
seeks to exclude. Obviously, failure to object at all waives the
defect.” (3 Witkin, Cal. Evidence (5th ed. 2021) Presentation
at Trial, § 383 (Witkin). See Evid. Code, § 3537; People v. Stevens

7 Evidence Code section 353 provides, “A verdict or finding
shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous admission of

16
(2015) 62 Cal.4th 325, 333 [failure to object to the admission of
hearsay at trial forfeits an appellate claim that that evidence was
improperly admitted]; People v. Eubanks (2011) 53 Cal.4th 110,
142 [same]; People v. Partida (2005) 37 Cal.4th 428, 433-434
[“ ‘we have consistently held that the “defendant’s failure to make
a timely and specific objection” on the ground asserted on appeal
makes that ground not cognizable’ ”].)8
There is an exception to this general rule for a supervening
change in the law: “Occasionally, new exclusionary rules, based
on constitutional rights, develop in criminal cases. At the time
of their announcement by the United States Supreme Court or
the California Supreme Court, evidence may have been admitted
in the trial of pending cases that would have been subject to
objection if the new and unanticipated rule had been known
at the time. In cases in which the judgment of conviction has
not become final, the failure to object does not waive the error

evidence unless: (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made
and so stated as to make clear the specific ground of the objection
or motion; and (b) The court which passes upon the effect of the
error or errors is of the opinion that the admitted evidence should
have been excluded on the ground stated and that the error or
errors complained of resulted in a miscarriage of justice.” (Evid.
Code, § 353.)
8 The treatise also states, “The waiver rule applies to
evidence obtained in violation of constitutional guarantees.”
(3 Witkin, supra, Presentation at Trial, § 383.) As we
have discussed, the confrontation clause does not apply in
a resentencing proceeding; Maldonado’s right to have evidence
excluded is statutory only.

17
in admission of the evidence, and the point may be raised
on appeal . . . .” (3 Witkin, supra, Presentation at Trial, § 410;
see People v. Perez (2020) 9 Cal.5th 1 [defendant didn’t forfeit
confrontation clause claim to gang expert’s trial testimony
because court had not yet decided People v. Sanchez (2016)
63 Cal.4th 665 and objection thus would have been futile];
People v. Edwards (2013) 57 Cal.4th 658, 704-705 [no forfeiture
of confrontation clause claim to autopsy report]; People v. Brooks
(2017) 3 Cal.5th 1, 92 [objection by counsel to trial court’s inquiry
into numerical division of possibly deadlocked jury would have
been futile].)
But Maldonado’s appeal does not involve a mere failure
to object to the Gandara interview and the probation report
based on futility or any other ground. To the contrary,
Maldonado himself submitted the interview and the report to
the trial court as exhibits, incorporated them by reference, and
argued their contents as the sole evidentiary basis for his request
for relief. That the prosecution already had attached those
same documents to its response to Maldonado’s petition does
not change our analysis or our conclusion. Nothing in the record
suggests—much less demonstrates—that Maldonado submitted
the interview and report only because he had to, given the
prosecution’s submission of them.
Indeed, Maldonado’s counsel told the court, “[M]ost
of the evidence that we have in this petition come[s] from
Lisa Gandara’s statements . . . .” Counsel noted there was no
preliminary hearing because all three of the juveniles charged—
including Maldonado—reached plea agreements early on.
Counsel said Gandara’s unsworn statement was “what we

18
have to work with because for some reason, the police did not
obtain other statements from the other participants.”
Nor did Maldonado submit his own declaration or any
other evidence for the court to consider in ruling on his petition.
(See § 1170.95, subd. (d)(3) [at the evidentiary hearing, both the
prosecution and the petitioner “may also offer new or additional
evidence to meet their respective burdens”].) Instead, he chose
to rely on the Gandara interview and the probation officer’s
report, arguing they showed he neither was a major participant
in the robbery nor acted with reckless indifference to human life.9

9 Our dissenting colleague cites People v. Turner (1990)
50 Cal.3d 668. Turner was a felony-murder death penalty case.
The underlying felony was robbery. Turner testified in his own
defense. On direct examination, Turner’s lawyer asked him
about his two prior felony convictions, for robbery and receiving
stolen property. (Id. at p. 682.) Among the many issues Turner
later raised on appeal to the Supreme Court was the trial court’s
failure to exercise its discretion under Evidence Code section 352
to exclude the priors, and his trial attorney’s failure to object to
them coming into evidence. Stating the failure to object didn’t
bar the issue on appeal, the high court noted that Proposition 8
provided any prior felony conviction could be used “ ‘without
limitation for impeachment.’ ” (Turner, at p. 703.) About four
months after Turner’s trial, the Supreme Court decided People
v. Castro (1985) 38 Cal.3d 301. Castro held Proposition 8 didn’t
eliminate the trial court’s power and duty under section 352
to weigh the probative value of prior convictions against their
potential for prejudice. (Castro, at pp. 305-313.) As a “reasonable
and competent criminal trial attorney could well have surmised,”
before Castro, that any objection would be futile, the court
addressed Turner’s argument on the merits. (Turner, at pp. 703-
704.) The court concluded, as both robbery and receiving stolen
property “necessarily involve moral turpitude,” the trial court’s

19
A petitioner cannot say, “Judge, please read and consider this,
and rule for me based on it,” and—after an adverse ruling—
later say, “You committed reversible error by doing what I
asked you to do.”10
6. Substantial evidence supported the trial court’s
finding that Maldonado was ineligible for relief
under section 1170.95
In his opening brief, Maldonado challenged the sufficiency
of the evidence supporting the trial court’s finding that he was
not entitled to relief because he could be convicted of first degree
felony murder under current law. While he contested the issue
below, on appeal Maldonado does not dispute that there was
sufficient evidence to support the finding he was a major

“broad authority” under Castro would have permitted it to admit
—or to exclude—the priors. (Turner, at p. 705.)
Turner involved the common practice of defense counsel—
who know their client is likely to be impeached with prior
convictions if he testifies—to ask about those on direct
examination. Fronting those facts for the jury lessens their sting.
Here, by contrast, counsel wasn’t faced with such a dilemma.
He chose to bring before the court the interview and the report
to support his contention that Maldonado was a minor player
with little moral culpability who was entitled to relief under
section 1170.95.
10 Because we conclude Maldonado forfeited his evidentiary
objections to the Gandara interview and the probation officer’s
report, we need not address the Attorney General’s contentions
that “reliable hearsay” remains admissible at section 1170.95
evidentiary hearings and that Gandara’s statements were
admissible under the exception to the hearsay rule for
declarations against interest. (See Evid. Code, § 1230.)

20
participant in the robbery. Rather, he contends the evidence
was insufficient to support the finding that he acted with reckless
indifference to human life. We disagree, and thus conclude
Maldonado could be convicted of first degree murder under
a felony murder theory.11
a. Banks, Clark, and Scoggins
Section 189, subdivision (e)(3) provides a participant in
certain felonies, including robbery, in which a death occurs, is
liable for murder if the person was “a major participant in the
underlying felony and acted with reckless indifference to human
life as described in subdivision (d) of Section 190.2,” the felony-
murder special circumstance statute. Section 190.2, subdivision
(d), in turn states “every person, not the actual killer, who, with
reckless indifference to human life and as a major participant”
aids or abets an enumerated felony, including robbery, that
results in death may be convicted of special circumstance
murder . . . . “The statute, by its text, imposes an actus reus
requirement, major participant in the enumerated felony, and
a mens rea requirement, reckless indifference to human life.”
(In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
More than 30 years after Maldonado’s conviction, the
California Supreme Court in People v. Banks (2015) 61 Cal.4th

11 Maldonado also contends he could no longer be convicted
of second degree murder under current law because there was
insufficient evidence he acted with actual malice. In light of our
conclusion that the evidence was sufficient to support the trial
court’s finding that Maldonado was ineligible for relief because
he could be convicted of first degree felony murder, we need not
consider whether Maldonado also was ineligible because he could
be convicted of second degree malice murder.

21
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
identified the overlapping factors for assessing whether a
defendant was a major participant in an underlying serious
felony and acted with reckless indifference to human life. In
Banks, the high court listed the following factors to consider
in determining whether the defendant was a major participant
in one of the specified felonies: “What role did the defendant
have in planning the criminal enterprise that led to one or more
deaths? What role did the defendant have in supplying or using
lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants?
Was the defendant present at the scene of the killing, in a
position to facilitate or prevent the actual murder, or did his
or her own actions or inaction play a particular role in the death?
What did the defendant do after lethal force was used?” (Banks,
at p. 803, fn. omitted.)
In Scoggins, the Supreme Court listed the following factors
to consider in determining whether the defendant acted with
reckless indifference to human life: “Did the defendant use or
know that a gun would be used during the felony? How many
weapons were ultimately used? Was the defendant physically
present at the crime? Did he or she have the opportunity to
restrain the crime or aid the victim? What was the duration
of the interaction between the perpetrators of the felony and
the victims? What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using lethal
force? What efforts did the defendant make to minimize the
risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th
at p. 677; see Clark, supra, 63 Cal.4th at pp. 618-622.) No one

22
of these considerations is necessary, nor is any one of them
necessarily sufficient. (Scoggins, at p. 677; see Banks, supra,
61 Cal.4th at p. 803.)
The reckless indifference element of a felony-murder
special circumstance finding “encompasses a willingness to kill
(or to assist another in killing) to achieve a distinct aim, even
if the defendant does not specifically desire that death as the
outcome of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)
“Reckless indifference to human life is ‘implicit in knowingly
engaging in criminal activities known to carry a grave risk of
death.’ ” (Scoggins, supra, 9 Cal.5th at p. 676; Clark, at p. 616;
see Banks, supra, 61 Cal.4th at p. 808 [reckless indifference
requires “knowingly creating a ‘grave risk of death’ ”].)
Reckless indifference to human life thus has both
a subjective and an objective component. (Clark, supra, 63
Cal.4th at p. 617.) Subjectively, the defendant must consciously
disregard risks known to him. Objectively, recklessness is
determined by “what ‘a law-abiding person would observe in
the actor’s situation,’ ” that is, whether the defendant’s conduct
“ ‘involved a gross deviation from the standard of conduct that
a law-abiding person in the actor’s situation would observe.’ ”
(Id. at p. 617.) The fact that a robbery involved a gun, by itself,
is insufficient to support a finding of reckless indifference to
human life. (Ibid.)
The Clark court, applying the relevant factors, held there
was insufficient evidence to support a finding that the defendant
—the “mastermind” who planned and organized a store robbery
that ended in a fatal shooting—acted with reckless indifference
to human life. Despite the defendant’s significant involvement
in planning the crime, the evidence showed he tried to minimize

23
the likelihood of violence by timing the robbery to occur after
the store was closed and planning the use of one unloaded gun.
(Clark, supra, 63 Cal.4th at pp. 621-622.) The defendant wasn’t
in the store when the shooting took place, was unaware the
shooter had loaded the gun with a single bullet, and had no
prior knowledge that the shooter was likely to engage in violence.
(Id. at pp. 619-621.) The court thus concluded there was “nothing
in the plan that one can point to that elevated the risk to human
life beyond those risks inherent in any armed robbery.” (Id. at
p. 623.)
Similarly, in Scoggins, the court held the evidence
insufficient to establish the defendant acted with reckless
indifference to human life. He had planned an unarmed assault
and robbery, but one of his accomplices deviated from the plan
and killed the victim. (Scoggins, supra, 9 Cal.5th at p. 676.)
The victim had swindled the defendant in a sales transaction
and, to exact revenge, the defendant recruited two friends to
ambush the victim, “ ‘beat the shit’ ” out of him, and retrieve the
defendant’s money. (Id. at p. 671.) As planned, the attack took
place in a strip mall parking lot while the defendant waited at
a nearby gas station. When the victim arrived, however, one
of the accomplices unexpectedly pulled out a gun and shot him.
(Id. at pp. 671-672.) The defendant had no knowledge a gun
would be used in the attack or that his accomplices were likely
to engage in lethal force; he wasn’t present at the scene of
the shooting or in a position to restrain the shooter; and he’d
attempted to minimize the risk of death by planning for the
assault to occur in a public place in broad daylight. (Id. at
pp. 677-678, 681-683.) Based on these facts, the court concluded

24
the defendant did not knowingly create a grave risk of death. (Id.
at p. 683.)
b. Substantial evidence supports the trial court’s finding
that Maldonado acted with reckless indifference
to human life
Maldonado contends the evidence merely reflected a plan
to commit a garden-variety armed robbery of a pizza delivery
man in which no one was supposed to be injured or killed. He
also asserts he had no prior knowledge that any of his cohorts
was likely to engage in violence, and he had no opportunity
to intervene because the shooting happened impulsively after
he’d already walked away. Maldonado thus argues there was
nothing about his own actions in planning or carrying out the
robbery that contributed to a heightened risk of death. Based
on the totality of the evidence before the trial court, we disagree.
The evidence showed Maldonado participated in the
planning of an armed robbery during which the perpetrators
expressly contemplated the potential for deadly force. While
Maldonado didn’t conceive of the idea to rob a pizza delivery man,
he was present when the details of the plan were formulated and
the roles in the robbery were assigned. As Gandara described it,
all seven members of the group—including Maldonado—were
in favor of the plan. They also agreed a rifle should be used.
Although at one point Zamorano said no one was supposed to
get hurt, he also told the group that, if the pizza delivery man
pulled out a gun or tried to defend himself, “they were going
to shoot him.”
Maldonado was physically present at the robbery during
the entire sequence of events that resulted in the victim’s death.
After lying in wait for the victim on a secluded, dark street,

25
Maldonado actively participated in the robbery by searching
the victim’s pockets and taking his money while Zamorano held
him at gunpoint. When the victim refused to comply with
Zamorano’s repeated demands to turn around, Maldonado
grabbed the victim by his arm and turned him so he was directly
facing Zamorano. Maldonado also was present when Zamorano
walked around the victim, told the victim he knew he was “going
to snitch,” and then shot the victim three times in the back.
While Maldonado contends he’d already walked away from the
scene when Zamorano fired the shots, the record does not support
his claim. Rather, Gandara recounted that both Maldonado
and Garcia “were standing there” as Zamorano shot the victim,
and the victim fell to the ground.
As the Supreme Court observed in Clark, supra, 63 Cal.4th
at p. 619, “[p]roximity to the murder and the events leading up
to it may be particularly significant where . . . the murder is a
culmination or a foreseeable result of several intermediate steps,
or where the participant who personally commits the murder
exhibits behavior tending to suggest a willingness to use lethal
force. In such cases, ‘the defendant’s presence allows him to
observe his cohorts so that it is fair to conclude he shared in
their actions and mental state. . . . [Moreover], the defendant’s
presence gives him an opportunity to act as a restraining
influence on murderous cohorts. If the defendant fails to act
as a restraining influence, then the defendant is arguably more
at fault for the resulting murders.’ ”
In this case, Maldonado’s presence at the scene gave him
an opportunity to observe Zamorano’s escalating violence and
to intervene by either restraining Zamorano or rendering aid to
the victim. Maldonado did neither. When Zamorano threatened

26
to shoot the victim in the back if he didn’t turn around and face
him, Maldonado didn’t try to calm Zamorano down or dissuade
him from carrying out his threat. Instead, Maldonado forced
the victim to turn around. While Maldonado asserts he was
trying to minimize the risk of violence by making the victim
comply with Zamorano’s demand, a rational factfinder could
conclude otherwise. Given the sequence of events, one reasonably
could infer that Maldonado placed the victim at greater risk
of harm by turning him around, because that forced the victim
to come face to face with the perpetrator holding the firearm and
increased the likelihood the victim could identify him. Indeed,
once the victim was facing Zamorano with the rifle pointed
at his stomach, Zamorano appeared to become more agitated
because he believed the victim was “going to snitch.” Maldonado
again did nothing to intervene, and instead stood by as Zamorano
continued to act in a menacing manner toward the victim before
shooting him in the back.
Maldonado’s conduct after the shooting further supported
a finding that he consciously disregarded the grave risk of death
that resulted from his actions. Although he was present at
the scene when Zamorano shot the victim, Maldonado didn’t
call for assistance or try to render aid. Instead, he fled with his
companions in the getaway car. Maldonado argues he reasonably
could’ve believed there was nothing he could do to help given
the victim had been shot three times at close range. According
to Gandara, however, “[n]obody thought [the victim] was dead.”
Morever, there was no evidence that Maldonado expressed
any concern for the victim’s welfare after the shooting. To the
contrary, the evidence showed everyone in the group laughed
about the shooting as they fled the scene, and they spent the

27
next few hours splitting the proceeds of the robbery and eating
the pizza they’d taken from the victim. As Gandara described it,
“[a]ll of us were in the car, and we all knew what happened. And
we were eating the pizzas, and we were all laughing about it.”
From this evidence, the trial court reasonably could find
Maldonado exhibited a reckless indifference to human life.
The cases on which Maldonado relies in challenging the reckless
indifference finding are readily distinguishable. In each of those
cases, the defendant was not present at the scene of the killing
or not in a position to act as a restraining influence. (See, e.g.,
In re Taylor (2019) 34 Cal.App.5th 543, 559 [although defendant
“was parked on the street near where the killing occurred, he
never got out of the car and had no opportunity to prevent the
shooting”]; In re Ramirez (2019) 32 Cal.App.5th 384, 404, 405
[defendant “was not at the immediate location of the killing,”
and was not “close enough to exercise a restraining effect on
the crime or his colleagues”]; In re Bennett (2018) 26 Cal.App.5th
1002, 1024 [where defendant was across the street from the
shooting, he “was never in close enough proximity to act as
a restraining influence”]; In re Miller (2017) 14 Cal.App.5th 960,
975 [defendant was “absent from the scene of the killing, and
therefore had no opportunity to stop it or to help” the victim].)
In contrast, Maldonado was present at the scene and
in close proximity to Zamorano as the events leading to the
victim’s death unfolded, which allowed him to observe how
the risk of violence was escalating. Maldonado also had an
opportunity to intervene as Zamorano considered whether
to kill the victim, but he never made any attempt to stop
the shooting or to assist the victim. In that critical respect,
Maldonado is more akin to the defendant whose failure to act

28
as a restraining influence on his cohorts supported a finding
of reckless indifference to human life. (See, e.g., In re Parrish
(2020) 58 Cal.App.5th 539, 544 [although defendant “had the
opportunity . . . to restrain [his] murderous partners and to help
the victim,” he “did not take these opportunities”]; In re McDowell
(2020) 55 Cal.App.5th 999, 1014 [“there was a brief but critical
opportunity for [defendant] to say or do something to deescalate
the situation,” but instead “he remained silent”]; People v. Law
(2020) 48 Cal.App.5th 811, 825, review granted July 8, 2020,
S262490 [where defendant was “at the scene of the shooting,
he could have tried to stop his accomplice’s violent behavior or
to help the victim once he had been shot, but he did neither”];
In re Loza (2017) 10 Cal.App.5th 38, 54 [defendant “neither
intervened to dissuade [his cohort] from shooting either [victim]
nor came to either [victim’s] aid after the shooting”].)
Considering the totality of the record in this case, the
evidence was sufficient to support the trial court’s finding that
Maldonado was a major participant in the robbery and acted
with reckless indifference to human life. Because Maldonado
was not entitled to relief under section 1170.95, the trial court
did not err in denying his petition.

29
 DISPOSITION
We affirm the order denying Lorenzo Ricardo Maldonado’s
section 1170.95 petition.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

I concur:

EDMON, P. J.

30
LIPNER, J., Dissenting.
I respectfully dissent from the majority’s decision that
Lorenzo Ricardo Maldonado forfeited his challenge to the
admissibility of evidence under the newly enacted amendment to
Penal Code section 1170.95.1 I would reach the issue and
remand to allow the trial court to consider Maldonado’s petition
under the evidentiary rules imposed by the new amendment.
The California Supreme Court transferred the case to us
with directions to vacate our prior opinion and reconsider the
matter in light of the amendment in Senate Bill No. 775
(Stats. 2021, ch. 551). The amendment changed the law
governing Maldonado’s petition for resentencing. Before the
amendment, courts conducting evidentiary hearings under
section 1170.95 allowed the admission of reliable hearsay not
otherwise permissible under the Evidence Code. (People v.
Harris (2021) 60 Cal.App.5th 939, 953–954, review granted
Apr. 28, 2021, S267802; People v. Williams (2020) 57 Cal.App.5th
652, 662.) But the amendment, which took effect on January 1,
2022, provides to the contrary that the “admission of evidence in
the hearing shall be governed by the Evidence Code.” (§ 1170.95,
subd. (d)(3).)
Because of this change in the law, I cannot agree with the
conclusion that Maldonado forfeited his argument by relying on
hearsay documents—the Lisa Gandara interview transcript and
the probation report. Maldonado’s appointed defense counsel
relied on these documents only after the prosecution—which had
the burden of proof beyond a reasonable doubt—introduced these

1 All further statutory references are to the Penal Code
unless otherwise indicated.
materials. Moreover, there was nothing wrong with Maldonado’s
counsel relying on hearsay documents because the law at the
time provided that they were admissible. Indeed, everyone
involved—the prosecutor, the defense counsel, the trial court, and
this court in its original panel decision—acted correctly under
former law by relying on hearsay that was reliable. But
afterwards, the Legislature changed the law.
Under these circumstances, Maldonado should not be held
to have forfeited his right to rely on the amended law by failing to
have prophesied that the Legislature would enact it. The
determination of forfeiture, in my view, conflicts with People v.
Perez (2020) 9 Cal.5th 1. In that case, our Supreme Court held
that it was error to find forfeiture of an appellate argument
where defense counsel, prior to People v. Sanchez (2016)
63 Cal.4th 665, failed to object at trial to a prosecution expert
testifying to case-specific hearsay. The Supreme Court
determined that Sanchez was a change in law and recognized
that reviewing courts have excused parties for failing to raise an
issue at trial “ ‘ “where an objection would have been futile or
wholly unsupported by substantive law then in existence.” ’ ”
(Perez, at pp. 7–8.) The Supreme Court explained that requiring
an objection under such circumstances would place an
unreasonable burden on defendants to anticipate unforeseen
changes in the law. (Id. at p. 8.)
The majority correctly notes that Perez dealt with a failure
to object (maj. opn. ante, at p. 18) rather than a defense attorney
relying on evidence that later became inadmissible because of a
change in law. But the reasoning of Perez is, in my view, explicit
that defendants should not be found to have given up arguments

2
because they did not anticipate future changes in the law. That
reasoning applies with force here.
Moreover, our Supreme Court has previously concluded
there was no forfeiture in a case in which the defendant himself
introduced evidence that became inadmissible after a change in
the law. In People v. Turner (1990) 50 Cal.3d 668, the defendant
did not object at trial to evidence of his prior convictions and in
fact elicited testimony about the existence and nature of the
convictions during his direct examination of defendant. (Id. at
pp. 703–704.) After trial, in a different case, the California
Supreme Court held that evidence of prior convictions were
inadmissible except in limited circumstances. The Supreme
Court held that neither defendant’s failure to object nor his own
introduction of this evidence was a forfeiture of his appellate
argument because there had been a change in the law. (Id. at
pp. 703–704 & fn. 18.) The Supreme Court explained, “Given the
apparent futility of an effort to exclude the prior convictions,”
under prior law “prudent counsel would be well advised to
minimize their ‘sting’ by eliciting them himself. Such defensive
acts do not waive an objection on appeal.” (Id. at p. 704, fn. 18.)
Defense counsel’s reliance on materials the prosecution had
already admitted, and his failure to object to them, was
reasonable under prior law. A contrary course of action would
have been futile and counterproductive at the time. Under these
circumstances, I do not agree with the finding of forfeiture.
On the merits, the People argue that notwithstanding the
new statutory amendment, trial courts may nevertheless
continue to consider reliable hearsay in evidentiary hearings
under section 1170.95. This argument is not consistent with the
statutory language.

3
 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3) now states the “admission of evidence in the
hearing shall be governed by the Evidence Code,” subject to two
exceptions not at issue here.2 In the absence of such restrictive
statutory language, courts generally allow reliable hearsay in
postconviction proceedings. (People v. Maki (1985) 39 Cal.3d 707,
715; People v. Sledge (2017) 7 Cal.App.5th 1089, 1097; People v.
Hall (2019) 39 Cal.App.5th 831, 837–838.) Prior to the recent
amendment, this rule applied to hearings under section 1170.95.
For example, in People v. Williams, supra, 57 Cal.App.5th at
page 661 the appellate court explained, “In allowing for the
section 1170.95 postconviction proceeding, the Legislature gave
the superior court unfettered discretion to consider ‘evidence’
without any restriction at the subdivision (d)(3) hearing to
determine the petitioner’s eligibility for resentencing.” (Italics
added.) The appellate court noted that the Legislature could
have added such language but chose not to. (Id. at pp. 661–662.)
Now, with the Senate Bill No. 775 amendment, the
Legislature has added restrictive language that no longer permits
courts unfettered discretion to consider evidence. The language
requires that the “admission of evidence in the hearing shall be
governed by the Evidence Code.” (§ 1170.95, subd. (d)(3).)

2 Those exceptions are (1) “the court may consider evidence
previously admitted at any prior hearing or trial that
is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed,” and (2) the
“court may also consider the procedural history of the case recited
in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).)

4
No provision of the Evidence Code permits the admission of
hearsay on the basis that it is asserted to be reliable.
Accordingly, I would remand the case to the trial court to
conduct a hearing in accordance with the new statutory
requirements.3 There is no dispute that the documents relied
upon by the prosecution were hearsay, though there remains a
reasonable dispute as to whether the documents were
nevertheless admissible under the Evidence Code based on an
exception to the hearsay rule. The trial court, which has not
ruled on the issue, should decide that issue in the first instance.
For these reasons, I respectfully dissent.

LIPNER, J.*

3 I agree with the majority that double jeopardy principles
and the Sixth Amendment right to confrontation do not apply to
section 1170.95 proceedings. (Maj. opn. ante, at pp. 13–15.) In
fact, I would be in agreement with the entirety of the majority’s
reasoning but for the pivotal forfeiture issue.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

5