People v. Shaw CA2/4

Filed 9/28/22 P. v. Shaw CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, except 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B314814

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A614732)
v.

DENNIS LESTER SHAW,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Teresa P. Magno, Judge. Affirmed.
Olivia Meme, 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, Assistant
Attorney General, Idan Ivri and Gary A. Lieberman, Deputy
Attorneys General, for Plaintiff and Respondent.
 In 1979, appellant Dennis Lester Shaw was convicted of
murder by a jury instructed on the felony murder theory. Forty
years later, he filed a petition for resentencing under Penal Code
former section 1170.95 (now § 1172.6).1 Prior to his section
1172.6, subdivision (d)(3) evidentiary hearing, appellant objected
to the admission of the preliminary hearing transcript, arguing
that it was not part of the record of conviction because he went to
trial and was subject to a lower standard of proof than that
required at the evidentiary hearing. The superior court admitted
the preliminary hearing transcript and relied upon its contents,
including police officer testimony relating appellant’s confession,
to conclude appellant was ineligible for relief because he was a
major participant in the crime and acted with reckless
indifference to human life.
Appellant does not raise either of those arguments here.
Instead, appellant now argues that the superior court erred in
admitting the preliminary hearing transcript because the
prosecution failed to establish the applicability of the Evidence
Code section 1291 hearsay exception for unavailable witnesses.
Respondent Attorney General contends appellant forfeited this
argument by failing to object to the preliminary hearing
transcript on hearsay grounds. We agree with respondent.
Appellant’s objections to the preliminary hearing transcript were
neither targeted toward hearsay nor understood by the trial court
as such, and the record does not support appellant’s assertion
that further objection on hearsay grounds would have been futile.

1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). All further statutory references are to the Penal
Code unless otherwise indicated.

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 Appellant argues in the alternative that remand is
necessary because Senate Bill No. 775 retroactively amended
section 1172.6 to clarify that the Evidence Code applies to
subdivision (d)(3) hearings. We disagree remand is necessary.
Even if the amendments to the statute are retroactive, they allow
admission of evidence sufficient to support the superior court’s
unchallenged substantive findings. We accordingly affirm.
BACKGROUND
I. Petition
On January 14, 2019, shortly after Senate Bill No. 1437
(SB 1437) took effect, appellant filed a form section 1172.6
petition. The superior court appointed counsel for appellant and
ordered the prosecution to file a response to his petition.
II. Response and Exhibits
The prosecution filed its response on September 28, 2020. It
attached to the brief several exhibits pertinent to appellant’s
1979 murder conviction, including original and amended
informations charging appellant and codefendant Harold Lynn
Moore with murder, a transcript of their joint preliminary
hearing, police reports, probation reports, verdict forms from
appellant’s trial, transcripts of appellant’s and Moore’s
sentencing hearings, and a remittitur issued by this court after
the direct appeal. The prosecution reported that it had been
unable to locate the transcripts from appellant’s trial and our
opinion resolving appellant’s direct appeal.
Based on the exhibits, the prosecution related the following
undisputed procedural facts. After a preliminary hearing in
October 1978, appellant and Moore were charged with the
murder of Ruben Patino. A jury found appellant guilty of the
murder on March 1, 1979. The jury also found true an allegation

3
that a principal was armed with a firearm during the commission
of the offense (former § 12022, subd. (a)). The trial court
sentenced appellant to life in prison. This court affirmed
appellant’s conviction on direct appeal but modified the judgment
to strike a reference to a sentence on the firearm allegation.
The prosecution also summarized the facts underlying
appellant’s offense, which it drew from the preliminary hearing
transcript and police and probation reports. According to that
summary, which is largely undisputed and similar to that
presented without qualification in appellant’s opening brief on
appeal, appellant and Moore approached Patino in the parking
lot of a market and asked him for money. Patino, who had just
settled his two small children into his car, told appellant and
Moore he did not have any money. Appellant punched Patino in
the face. Patino then reached under his car seat and grabbed a
rubber hose. When Patino reemerged, Moore shot him several
times, killing him. Appellant and Moore bent over Patino’s body,
and one of them took his watch before they ran away together. A
few blocks away, appellant and Moore stopped at a house where
some kids were outside. They used a hose to wash blood off
themselves. Either appellant or Moore was carrying a watch; the
other was carrying a paper bag.
When appellant was arrested a few days later, he was
wearing Patino’s watch. Appellant told the arresting officer he
had purchased the watch at a drug store. However, appellant
also made incriminating statements to the officer. Appellant said
Moore convinced him to do some robberies. Appellant and Moore
walked around looking for victims; Moore was armed with a .22
caliber handgun. Appellant and Moore ended up at the parking
lot of the market. They waited around until they saw Patino put

4
his children in his car, then Moore asked Patino for money. When
Patino said he did not have any, appellant punched him. Patino
then reached down, and Moore shot him in the head and face.
Appellant and Moore took Patino’s watch before they ran away.
They stopped at a nearby house to wash the blood off themselves,
then continued running.
Based on these facts, the prosecution argued appellant was
ineligible for relief because he was a major participant in the
underlying felony and acted with reckless indifference toward
human life, under the standards articulated in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark).
III. Appellant’s Eligibility Brief
Appellant, through counsel, filed a brief replying to the
prosecution’s response on January 11, 2021. In the introductory
section, titled “Preliminary Setting,” appellant stated the
following: “There is a limited trial record. [¶] However, that does
not get rid of the evidence code. The prosecution has presented
numerous documents as exhibits which are objectionable. There
is no exception to allow double and triple hearsay and improper
opinion because one couldn’t find the record. [¶] Counsel will
object and is objecting to the various exhibits by the prosecution
which are inadmissible as a record of conviction. [¶] If at some
point anything was admissible as new evidence, with the proper
foundation, that would be at the order to show cause. [¶] Based
on the petition, the response in its proper legal context, and this
reply, a prima facie showing has been made and the matter must
be set for an order to show cause.”
Appellant made numerous arguments and objections in the
ensuing 46 sections of the brief; we summarize and quote those

5
most relevant here.2 In section V, titled “The Response by the
District Attorney is Full of Inadmissible Assertions and Records
Which Petitioner is Objecting to in Detail as will be Addressed,”
appellant asserted only, “At minimal [sic] the police reports are
inadmissible evidence. They are not admissible at trial or legally
in an SB 1437 proceeding.” In section X, titled “The Preliminary
Hearing Transcript is Inadmissible as a Record of Conviction,”
appellant argued, “A preliminary hearing transcript is not part of
the record of conviction. There may be some reliance on a
preliminary hearing transcript if there was a plea and there was
a factual basis which relied on the preliminary hearing
transcript.” In section XIII, appellant asserted that “Probation
Officer’s Reports are Inadmissible Hearsay.” In section XV,
appellant asserted that the “record of conviction” included only
“the abstract of judgement [sic], charging documents, plea forms,
or if there was a trial, the trial proceedings/transcripts, and
appellate court record and appellate opinion.” In section XLVI,
titled “Argument,” appellant asserted, without elaboration or
citation, “The Preliminary Hearing testimony of the witness is
inadmissible.”
IV. Prima Facie Hearing
The superior court held a hearing on the petition on
February 9, 2021. The prosecution stated that it would “not be
arguing any substantive statements or evidence from the police
reports,” based on “the new directives,”3 but intended to rely on

2 Although he does not do so here, appellant substantively
argued in this and other written filings below that he was not a
major participant who acted with reckless indifference.
3 On December 7, 2020, Los Angeles County District
Attorney George Gascón issued “Special Directive 20-14” setting

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the other exhibits attached to its response. Appellant’s counsel
responded that there was “no exception” applicable to the police
reports. He continued, “With regard to any other information, for
example, hearsay and double hearsay, the new directives are just
saying that shouldn’t be used. That is clearly my position and
the law.” Counsel then raised objections to specific excerpts of
the sentencing transcript. He did not mention the preliminary
hearing transcripts before the prosecution conceded that the
petition “gets to go to an O.S.C.” The court agreed and issued an
order to show cause (OSC).
V. Appellant’s Evidentiary Hearing Brief
On April 1, 2021, prior to the OSC hearing, appellant filed
an “Evidentiary Hearing Brief” in support of his petition.
Appellant argued that “the record of conviction cannot support
beyond a reasonable doubt that this 16 year old at the time of the
conviction is not suitable and eligible for SB1437 relief.” In
addition to substantive arguments regarding the Banks and
Clark factors and their application to the case, appellant made
several assertions regarding the admissibility of the prosecution’s

forth a new “Resentencing Policy.” Pursuant to that directive,
the office takes the position that “the Evidence Code applies to
any evidentiary hearing pursuant to [former] section 1170.95,”
they “will not seek to introduce statements by a petitioner made
in parole hearing transcripts,” and “will not seek to admit
statements of a declarant when the petitioner did not have an
opportunity to cross-examine the declarant or when a purported
expert’s opinion is based on inadmissible hearsay.” The directive
allows the prosecution to “introduce evidence to show, for
example, that the petitioner was the actual killer or acted as a
major participant with reckless indifference to human life, or was
convicted under a still-valid theory on which the jury was
instructed.”

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evidence; each of the following is a section heading unsupported
by further argument. “XVIII: Hearsay is Inadmissible when a
Statement is not Subject to Proper Cross Examination”; “XIX:
The Preliminary Hearing Transcript is Inadmissible and is Not
Part of the Record of Conviction”; “XX: The District Attorneys
Office Recognizes and Agrees that Statements of a Declarant
When the Petitioner did not Have the Opportunity to Ross [sic]
Examine the Declarant is Inadmissible Hearsay”; “XXI: Police
Reports are not Record of Conviction and Inadmissible.”4 In
section XXIV, titled “Argument,” appellant stated that “Counsel
has lodged all his objections to the various hearsay including,
police reports and the sentencing judge’s opinion based on an
inadmissible tape recording.” The “Argument” section did not
mention the preliminary hearing transcript.
VI. June 18, 2021 Hearing
The parties appeared before the court on June 18, 2021.
The court opened the hearing by notifying the parties that it had
been unable to locate the transcript of appellant’s trial. The
parties stated they also had been unable to locate the trial
transcript, and detailed their herculean efforts to do so. The
court observed that the absence of the trial transcript posed some
difficulty, because “[t]he transcripts would be definitive as to
what the theory was, what each defendant did on a multiple
defendant case, and we don’t have that.” It continued, addressing
appellant’s counsel: “in your moving papers, you have argued
that the preliminary hearing transcript is not a record of

4 Appellant’s briefing was unusually structured, with many
fully capitalized, numbered headings frequently unsupported by
further discussion. We render those headings with the first
letters of their words capitalized.

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conviction. I was able to locate . . . three cases that say they are,
and I believe two of them, review has been granted by the
California Supreme Court.” The court identified the cases as
People v. Falcon (2020) 57 Cal.App.5th 272, cause transferred
and opinion rendered noncitable, Sept. 22, 2021, S266041
(Falcon); People v. Perez (2020) 54 Cal.App.5th 896, review
granted Dec. 9, 2020, S265254 (Perez); and People v. Nguyen
(2020) 53 Cal.App.5th 1154 (Nguyen). The court stated that it
planned to rule on the matter by consulting the record of
conviction, including the preliminary hearing transcript, and
asked the parties for their input.
Appellant’s counsel made the following argument, which we
reproduce in full:
“Well, your honor, with regard to this matter, on the use of
any transcripts, it’s my position that . . . [o]n a plea, I think the
preliminary hearing transcript is appropriate and relevant,
especially if it’s a People v. West and especially when counsel
says, ‘And I’m relying on the police reports and the preliminary
hearing transcripts.’ In those situations, there’s no question.
“The problem is in a situation where it’s a jury trial, the
standard of preliminary hearing is different. The standard of
preliminary hearing is just sufficiency of the evidence. Just to
show there’s enough to keep it going.
“As the court’s aware on 995’s, we just look at ‘is there
enough?’ If there’s enough, it stays there.
“Here, we have a standard of beyond a reasonable doubt.
The problem is, any questions or the level of any reliance on the
preliminary hearing transcript is really problematic when we
don’t have the trial transcript.

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 “It is my position with regard to the transcripts, that still
does not take away - - or the lack of transcripts does not take
away from the burden of the People beyond a reasonable doubt.
“My position is still that, from a legal perspective - - you
know, I’ve had cold hit cases that are 40 years old and when you
don’t have witnesses any longer, it doesn’t minimize the
standard. If you can’t proceed, you can’t proceed. If the People
are not in a position because of a loss of a witness, the death of a
witness, if there’s a legal basis to bring in that evidence, that’s
fine, but you don’t do away with the Evidence Code because you
can’t find something.
“I think here, the court might consider the preliminary
hearing transcript but that is insufficient for purposes of showing
beyond a reasonable doubt that my client is not eligible for relief
in this 1437.
“In this situation, I’m asking the court to grant the
petition.”
The prosecution responded that preliminary hearing
transcripts were part of the record of conviction. It further
argued, “So while the burden at an OSC is the same, it’s beyond a
reasonable doubt, that burden can be met by the record. In other
words, the People do not have to present additional evidence,
although they can . . . defense can. The defense can even
challenge the records. That’s the reason why we can introduce
new evidence. [¶] But that evidence, that record by itself is
enough for the court to rely on in reaching its verdict. [¶] So the
People do believe that the court could and should use the
preliminary hearing transcripts in this case, as well as the other
parts of the record.” After prompting by the court, the

10
prosecution clarified that it was no longer asking the court to
consider the police reports.
Appellant’s counsel requested that the court consider as
new evidence a declaration co-defendant Moore prepared for his
parole hearing a few years earlier.5 The prosecution objected to
the use of the declaration unless Moore was called as a witness
and could be cross-examined. The court sustained the objection,
stating that it would not be sufficient for the prosecution to file a
declaration “to buttress their position that Mr. Shaw was an
active participant and who acted with reckless indifference,”
because “under the concept of fairness,” appellant’s counsel would
get to cross-examine the witness. No one, including appellant’s
counsel, linked this discussion to the exhibits proffered by the
prosecution, used the word hearsay, or mentioned the hearsay
rule or exceptions thereto at any point during the hearing.
The court granted the parties one week to provide it with
additional authority and legal argument regarding whether it
could consider the preliminary hearing transcript.
VII. Supplemental Briefing
A. Appellant’s Brief
Appellant filed his supplemental brief on June 25, 2021. In
the introduction, appellant asserted, “The legal question now is
whether this Court can circumvent the loss of a preliminary

5 In the declaration, Moore stated that he alone conceived
the idea to commit a robbery, brought the gun to the scene, and
struck and shot Patino. He also stated that appellant “had no
idea that I would shoot Mr. Ruben Patino, it was not his
intentions and even attempted to prevent me from doing such,”
and requested that the parole board “no longer hold Mr. Shaw,
personally responsible for my individual and sole actions in the
murder of Mr. Ruben Patino.”

11
hearing transcript which would otherwise be inadmissible on a
jury conviction. This counsel’s legal position [sic] that the Court
cannot attempt to justify its inability to find beyond a reasonable
doubt based on the record of conviction that SB1437 relief should
be granted because of the prosecution’s failure to prove beyond a
reasonable doubt the basis for denial.” He next asserted, in an
unsupported, standalone heading, that “Hearsay Evidence is
Admissible at an 1170.95 Hearing Only if it Is Part of the Record
of Conviction or if There is a Hearsay Exception Under the
California Evidence Code.” In a subsequent heading, he
contended the “Police Reports are Multiple Levels of Hearsay
Without Personal Knowledge and Which Violate the
Confrontation Clause,” and beneath that argued, “there was no
basis for a hearsay exception.” Appellant also argued that the
police reports “are not Part of the Record of Conviction and are
Inadmissible as Hearsay or Lacking Foundation.” He asserted
that the record of conviction included only “Defendant’s
admission on a change of plea form, and the sentencing
transcript,” the “transcript of a hearing on a negotiated plea,” the
“trial transcript,” any “[f]actual statement by the prosecutor at
the time of defendant’s plea, if agreed to by defendant or defense
counsel,” and the “[a]ppellate court record and appellate opinion.”
Appellant reminded the court that the prosecution had
withdrawn its reliance on the police reports.
Appellant further argued that the “Sixth Amendment Right
to Confront and Cross-Examine Witnesses Bars the Admissibility
of Testimonial Evidence at an 1170.95 Hearing Without the
Declarant Testifying in Court.” He accordingly contended, “all
hearsay statements included in written reports including, but not
limited to, the probation report, and police reports and a Prison

12
risk Assessment from 2009 which the People are seeking to have
admitted into evidence and which do not fall within a hearsay
exception, should not be admitted for consideration of evidence by
this court.”
In a separate section titled “Objection to the Use of
Preliminary Hearing Transcript,” appellant contended, “A trier of
fact may not rely solely on a defendant’s statement to make a
determination on a crime. [¶] The Court is attempting to find a
way to justify the denial of an SB1437 Petition on the highest
stard [sic] of beyond a reasonable doubt when there is no trial
transcript available. [¶] Counsel would concede if there was a
plea and the preliminary hearing or other documentation was the
subject of the basis for a plea that a preliminary hearing
transcript would be admissible. However, that is not the caser
[sic] here. This was a jury trial.” Appellant then argued that the
superior court’s reliance on Falcon, Perez, and Nguyen was
“misplaced” because the petitioners in those cases pled guilty or
no contest, and “[a] Preliminary Hearing Transcript Can be a
Proper Record of Conviction when it is Part of a Stipulated
Factual Basis for a Plea,” but not “if the Defendant Ultimately
Went to Trial on the Prior Charges.” He further noted that
counsel in Falcon and Nguyen stipulated or agreed that the
preliminary hearing transcripts were part of the record of
conviction, while “[t]his counsel is not agreeing in any fashion
that the preliminary transcripts are and can be used.”
Appellant additionally argued that he was “objecting to the
Court’s efforts to utilize a preliminary hearing transcript and any
purported confession fo [sic] the defendant as the sole basis to
make a finding against granting relief under SB1437.” Citing
jury instructions on corpus delicti, he contended that, “at its

13
worst, any hearsay statement at the preliminary hearing alleged
to come from this defendant is insufficient to support the court’s
denial of SB1437 relief.” He emphasized, as a section heading,
that “[a] Corpus Delicti Must be Proved Independent of
Admission or Confession.” Without citing any authority, he also
asserted that “[t]he Use of the Preliminary Hearing Transcript
and any Purported Statement by the Defendant is Insufficient to
Show Beyond a Reasonable Doubt that the Defendant is not
Eligible for SB1437 Relief.” He further asserted that the
Supreme Court held in People v. Gallardo (2017) 4 Cal.5th 120
(Gallardo), that a trial court “May Not Rely on the Preliminary
Hearing Transcript to Determine the Prior Nature of the
Defendant’s Conviction,” and also “Expressly Prohibited” reliance
upon a preliminary hearing transcript “for the Purpose of
Resolving Factual Questions Regarding a Prior Conviction.”
In the final section of his brief, titled “Argument,” appellant
argued the following: “Counsel incorporates his various
arguments as to the use of the preliminary hearing transcript. [¶]
At its worst, the preliminary hearing transcript may only be used
against this defendant as a limited admission in participating in
a robbery. However, at its worst, the court has a seventeen (17)
year old who admitted being part of a robbery. This is still
insufficient to support that he was a major participant or acted
with reckless indifference to life. In and of itself, the robbery
even where the co-defendant is armed, is insufficient. [¶] As it
relates to the co-defendant, it is clear that that statement by that
co-defendant cannot be used against this defendant. [¶] If this
Court in fact was trying to rely on that, then this Court must
allow the [parole declaration] statement by the co-defendant as
an inconsistent statement with the alleged statement and the

14
preliminary hearing transcript. [¶] . . . [¶] If this Court is to
consider the co-defendant’s double hearsay statement at the
preliminary hearing then it creates another issue. The
declaration of the co-defendant is clearly inconsistent and thus
admissible as both a declaration against interest and an
inconsistent statement.”6 Appellant attached Moore’s declaration
and instructions regarding the felony murder theory that were
given to the jury.
B. Prosecution’s Brief
The prosecution filed a responsive brief on July 2, 2021. It
noted in the introduction that “the court invited counsel to
submit additional case law in support of the contention that
preliminary hearing transcripts are not part of the record of
conviction.” The prosecution asserted that appellant failed to
provide any such case law, and therefore his “contentions must
fall.” Citing People v. Reed (1996) 13 Cal.4th 217, 223, the
prosecution argued that preliminary hearing transcripts are part
of the record of conviction. It further disputed appellant’s
assertion that preliminary hearing transcripts may not be relied
upon when a defendant goes to trial, asserting “this only applies

6 The record contains two contradictory statements made by
Moore. The first, relayed at the preliminary hearing by a police
officer, painted Moore as the reluctant participant and appellant
as the instigator of the robbery, the provider of the gun, and the
shooter. The court presiding over the preliminary hearing ruled
this statement was only admissible as to Moore, just as
appellant’s statement was only admissible as to himself. The
other statement made by Moore is the 2013 declaration
summarized above in footnote 5 and proffered by appellant for
the evidentiary hearing; that statement paints Moore as the
ringleader and actual killer.

15
when you are attempting to prove what occurred at trial.”
Here, the prosecution contended, “the court is rendering its own
verdict based on the evidence,” including the preliminary hearing
transcript. The prosecution also distinguished Gallardo, which
concerned fact-finding regarding whether the defendant’s prior
conviction was a strike offense, on the grounds that appellant “is
not subjected to an increased penalty” at a section 1172.6
hearing, “the Sixth Amendment is not implicated at such a
hearing, and the court is specifically tasked by statute itself with
determining the defendant’s guilt beyond a reasonable doubt.”
The prosecution additionally argued that appellant’s
reliance on the corpus delicti rule was “misplaced,” because
evidence aside from his statements supported the conclusion that
a crime occurred. It also emphasized that appellant’s statements,
relayed in the preliminary hearing transcript, were admissible as
“statements against interest, and statements offered against a
party opponent.” It did not invoke the hearsay exception for
unavailable witnesses in Evidence Code section 1291, though it
asserted, without citation to authority, that appellant’s
statements were “admissible not only as part of the record of
conviction, but also as additional evidence.”
VIII. Final Hearing and Ruling
The parties appeared for another hearing on July 2, 2021.
At the hearing, the court informed the parties that it intended to
rely on the information, the amended information, the verdict
forms, the abstract of judgment, and the sentencing hearing
transcript, minus personal opinions expressed by the sentencing
judge. It then asked the parties for argument on other materials,
exclusive of the preliminary hearing transcript. Appellant’s
counsel argued that the probation reports should not be used

16
because they contained “double and triple hearsay.” He also
requested that the court consider appellant’s “Youthful Offender
Parole Hearing Mitigation Franklin Statement,” which is not in
the appellate record, as well as the 2013 declaration from Moore.
The court then turned to the preliminary hearing
transcripts. It thanked the parties for their assistance on the
issue, and informed them that it had located another case, People
v. Williams (2020) 57 Cal.App.5th 652 (Williams), that it found
“particularly helpful” in clarifying “how this court should consider
the various evidence being introduced and whether or not they
should be admitted.” Noting that “we have been focusing on . . .
whether a preliminary hearing transcript is a record of
conviction,” the court observed that former section 1170.95,
subdivision (d)(3) permitted the court to consider not only the
record of conviction but also new or additional evidence. The
court then read the following quotation from Williams, supra, 57
Cal.App.5th at pp. 661-662:
“Williams contends the People’s ability to present new and
additional evidence is constrained by the Evidence Code’s
limitations on the admissibility of hearsay evidence. However,
the cases Williams relies upon do not support his position as they
concern the rules of evidence applicable at trials on criminal
charges and prior conviction allegations for the purpose of
sentence enhancements in initial criminal prosecutions.
[Citations omitted.]
“In contrast, a ‘hearing under section 1170.95 is not a trial
de novo on all the original charges.’ [Citation.] Rather, it is a
post-conviction proceeding ‘due to the Legislature’s inclusion of
section 1170.95 in Senate Bill No. 1437, [as] an “act of lenity” . . .
allowing for the retroactive application of the new law governing

17
accomplice liability for felony murder . . . for defendants already
serving valid sentences for murder.’ [Citations.] In allowing for
the section 1170.95 post-conviction 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.
[Citation.]
“Hence, the rules of evidence governing a section 1170.95
subdivision (d)(3) hearing should be no different than those
applied at other analogous post-conviction resentencing
proceedings. ‘A contrary interpretation would require us to add
words to section 1170.95 that do not currently exist. We will not
do this, as we are to ascertain and declare “what the statute
contains, not to change its scope by reading into it language it
does not contain. . . . We may not rewrite the statute to conform
to an assumed intention that does not appear in its language.”’”
The court then explained that, based on Williams, it had
concluded that “the preliminary hearing transcript could be
viewed as . . . part of the record of conviction. And if you’re not
persuaded by that, it qualifies as, quote/unquote, new evidence
and, I agree, we’re not to allow all new evidence. I think case law
has at least discussed that there has to be an indicia of
reliability. [¶] And my finding is, testimony given at a
preliminary hearing by witnesses under oath, subject to cross-
examination, that it doesn’t get better than that in terms of
reliability. [¶] So based on that, the court, over the petitioner’s
objection, . . . will consider the preliminary hearing transcripts in
making its determination as to whether or not Mr. Shaw was a
major participant who acted with reckless indifference to life.” It

18
also stated that it would consider Moore’s 2013 declaration,
appellant’s Franklin report, and the probation report.
To preserve his objection about the preliminary hearing
transcript, appellant’s counsel stated, “I had objected and I’ve
addressed it in my briefs as to use of the record of conviction, but,
more specific, as to the statement by Mr. Moore within there. It’s
my position that would be even less reliable. [¶] The court, in the
preliminary hearing, limited as to each defendant a statement by
each defendant. So I just wanted to preserve that record.” In
response to a clarification question by the court, counsel
continued, “It really goes to . . . the right to confrontation as to
my client. If a co-defendant’s statement is coming in, it could be
used against that defendant, Mr. Moore, there would be no issue,
just as there would be no issue, subject to Miranda objections, as
to Mr. Shaw’s statement. But then to utilize Mr. Moore’s
statements against Mr. Shaw, I think that is a bigger problem.
[¶] I’ve addressed it, your honor. Thank you.” At the conclusion
of the hearing, counsel thanked the court for providing the
opportunity “to address . . . a very unique issue with regard to
record of conviction.”
The court subsequently issued a written ruling denying
appellant’s petition after finding he was a major participant who
acted with reckless indifference to life within the meaning of
Banks and Clark. Noting that appellant had objected to the
preliminary hearing transcript “as part of the record of
conviction,” the court stated it nevertheless relied on it “[g]iven
the unavailability of the jury trial transcripts and appellate
decisions.” The court stated it relied on the preliminary hearing
transcript to determine “how the robbery and murder occurred,”
including testimony by a witness to the crime, a witness to the

19
backyard handwashing, a police officer who relayed appellant’s
statement, and Patino’s widow. It also stated that it relied on a
stipulation made at the preliminary hearing regarding the cause
of the victim’s death (“multiple gunshot wounds”), the Franklin
report, and the sentencing transcript exclusive of comments
expressing the sentencing judge’s personal views. The court
rejected the 2013 Moore declaration as not credible because it
contradicted preliminary hearing testimony from “independent
witnesses,” and appellant’s and Moore’s statements as related by
the testifying officer.
DISCUSSION
I. Admission of Preliminary Hearing Transcript
A. The argument is forfeited.
Appellant contends the superior court erred by admitting
the preliminary hearing transcript “because the government
failed to satisfy its burden to prove witness unavailability before
admitting otherwise inadmissible hearsay evidence.” Appellant
cites Evidence Code section 1291, which provides in relevant part
that “[e]vidence of former testimony is not made inadmissible by
the hearsay rule if the declarant is unavailable as a witness and .
. . [t]he party against whom the former testimony is offered was a
party to the . . . proceeding in which the testimony was given and
had the right and opportunity to cross-examine the declarant
with an interest and motive similar to that which he has at the
hearing.” (Evid. Code, § 1291, subd. (a)(2).)
Appellant argues there is a reasonable probability the
result would have been different had the preliminary hearing
transcript not been admitted. He contends the court cited
witness testimony from the hearing, and, “[m]ost detrimentally,”
used the transcript to discredit Mr. Moore’s declaration,” which it

20
otherwise may have credited and used to find appellant was not a
major participant who acted with reckless indifference.
Appellant does not argue in the alternative that, even if the
preliminary hearing transcript was properly admitted, the court
erred in finding him to be a major participant who acted with
reckless indifference to human life. He also does not contend that
the preliminary hearing transcript is not part of the record of
conviction, or that it is subject to a lower standard of proof.
Appellant asserts that he preserved his argument about
Evidence Code section 1291 for appellate review by objecting “on
hearsay and confrontation clause grounds numerous times, both
in writing and orally,” and his objections “sufficiently
encompassed a challenge to the foundational requirements of the
hearsay exception.” He further asserts the court’s ruling “that
the Evidence Code did not apply to a Penal Code section 1170.95
proceeding and thus the rules of hearsay were inapplicable [ ]
indicates that the trial court understood appellant’s objection to
the preliminary hearing transcript as hearsay,” and further
objection would have been futile. Respondent contends appellant
has forfeited the argument he attempts to make here. It asserts
that appellant’s objections to the preliminary hearing transcript
below sounded on different, non-hearsay grounds: the transcript
was not part of the record of conviction, the testimony therein
was offered to satisfy a lower burden of proof than that to which
the prosecution would be held at the evidentiary hearing, and the
“damaging testimony was not reliable.” We agree with
respondent that the argument is forfeited.
“Reviewing courts will generally not consider a challenge to
the admissibility of evidence unless there was a ‘“‘specific and
timely objection in the trial court on the same grounds sought to

21
be urged on appeal.’”’” (People v. Gomez (2018) 6 Cal.5th 243,
286.) This rule is codified in Evidence Code section 353, which
provides that 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 evidence unless . . .[t]here appears of
record an objection to or a motion to exclude or strike the
evidence that was timely made and so stated as to make clear the
specific ground of the objection or the motion.” (Evid. Code, §
353, subd. (a).) “An objection is sufficient if it fairly apprises the
trial court of the issue it is being called upon to decide.
[Citations.] In a criminal case, the objection will be deemed
preserved if, despite inadequate phrasing, the record shows that
the court understood the issue presented.” (People v. Scott (1978)
21 Cal.3d 284, 290.) “While no particular form of objection is
required [citation], the objection must be made in such a way as
to alert the trial court to the nature of the anticipated evidence
and the basis on which exclusion is sought, and to afford the
People an opportunity to establish its admissibility.” (People v.
Williams (1988) 44 Cal.3d 883, 906.) We consider the
circumstances under which an objection is made to determine its
sufficiency. (Id. at p. 907.) The duty to object is excused when an
“objection or request for admonition would have been futile or
would not have cured the [alleged] harm. . . .” (People v.
McDermott (2002) 28 Cal.4th 946, 1001.)
Here, as extensively detailed above, appellant timely
objected to the admission of the preliminary hearing transcript.
He did so in several briefs and during several court hearings.
The problem is that appellant failed to make, and the superior
court apparently failed to understand or consider, the specific

22
objection he seeks to present now, despite having numerous
opportunities to do so.
From the first pages of his Eligibility Brief, appellant
consistently argued that the preliminary hearing transcript was
inadmissible because it was not part of the record of conviction.
When the topic of the preliminary hearing transcript arose at the
June 18, 2021 hearing, the court indicated that was the
argument it understood appellant to be making: “in your moving
papers, you have argued that the preliminary hearing transcript
is not a record of conviction.” The court also cited three cases
addressing that issue, not hearsay or exceptions thereto.
Appellant’s counsel did not challenge the court’s characterization
of his argument, nor did he supplement it with a specific
objection to the preliminary hearing transcript on hearsay
grounds. Instead, he contended that the “standard of preliminary
hearing is just sufficiency of the evidence,” rather than the higher
standard of proof applicable at the section 1172.6 evidentiary
hearing, such that “any reliance on the preliminary hearing
transcript is really problematic when we don’t have the trial
transcript.”
Appellant’s counsel vaguely alluded to witness
unavailability, stating, “If the People are not in a position
because of a loss of a witness, the death of a witness, if there’s a
legal basis to bring in that evidence, that’s fine, but you don’t do
away with the Evidence Code because you can’t find something.”
However, counsel preceded and followed that remark with
argument that the prosecution could not meet its burden of proof
with the preliminary hearing transcript; he did not mention the
hearsay rule nor the failure to prove an exception. The

23
prosecution followed appellant’s lead and did not address hearsay
or witness unavailability in its responsive argument.
In the supplemental brief appellant filed after the June 18,
2021 hearing, he again argued that the preliminary hearing
transcript was not part of the record of conviction, and the
prosecution could not use it to meet its burden of proof beyond a
reasonable doubt. Appellant points out that he argued that “any
hearsay statement at the preliminary hearing alleged to come
from this defendant is insufficient to support the court’s denial of
SB 1437 relief.” He fails to acknowledge, however, that he made
that argument under a heading asserting “A Corpus Delicti Must
Be Proved Independent of Admission or Confession,” or that the
hearsay exception he now argues the prosecution failed to prove,
witness unavailability, is not applicable to such a statement. We
are similarly unpersuaded by his assertion that his standalone
heading several pages earlier, “Hearsay Evidence is Admissible
at an 1170.95 Hearing Only if it Is Part of the Record of
Conviction or if There is a Hearsay Exception Under the
California Evidence Code,” adequately apprised the court he was
objecting (1) to the preliminary hearing transcript (2) on hearsay
grounds rather than asserting it was not part of the record of
conviction. The court did not appear to understand his objection
in that way, as it emphasized the record of conviction argument
at the final hearing and stated in its written ruling that
appellant had “[e]ssentially object[ed] to the court considering the
preliminary hearing as part of the record of conviction.”
Appellant contends the court’s reliance on Williams
indicates it understood him to be raising his current objection.
He asserts the court decided “the preliminary hearing transcript
qualified as ‘new evidence’ that may be admitted notwithstanding

24
the Evidence Code, so long as it contained some indicia of
reliability.” The court indeed reached that conclusion, but only in
the alternative—it first addressed the issue as it had been
framed throughout the proceedings, by stating that the
preliminary hearing transcript “could be viewed . . . as part of the
record of conviction.” Then, it added, “if you’re not persuaded by
that, it qualifies as quote/unquote new evidence.” The court then
stated that the preliminary hearing transcript was reliable
because the witnesses were under oath and appellant’s counsel
had an opportunity to cross-examine them. These indicia of
reliability are also required by the hearsay exception appellant
now contends was not properly established, in addition to a
threshold finding of witness unavailability. (See Evid. Code,
§ 1291.) Despite that overlap, appellant failed to alert the
prosecution or the court to any deficiency in the prosecution’s
showing of witness unavailability when he made his final
objections to the ruling: “On the preliminary hearing transcript,
I had objected and I’ve addressed it in my briefs as to the use of
the record of conviction but, more specific, as to the statement by
Mr. Moore within there. It’s my position that would be even less
reliable.” Notably, when the court asked the prosecution to
“address that issue,” the prosecution did not address hearsay or
witness unavailability.
Appellant contends further objection at this point would
have been futile. Even assuming that is true, the futility of an
eleventh hour objection does not excuse the failure to raise a
cogent hearsay objection to the preliminary hearing transcript
during the preceding six months. Moreover, it is far from
apparent that such an objection would have been futile. The
court and prosecution were both receptive to appellant’s specific,

25
timely, and repeated hearsay objections to other documents,
including the police reports and probation reports. Given the
circumstances under which appellant’s various objections were
and were not raised during the extended period over which the
court considered whether to admit the preliminary hearing
transcript, we conclude the current objection was forfeited.
B. Reversal is not warranted.
Even if it were not, we are not persuaded reversal would be
warranted here. Under Evidence Code section 353, the erroneous
admission of evidence is reversible error only where the error
“resulted in a miscarriage of justice.” (Evid. Code, § 353, subd.
(b).) Likewise, “[a]bsent fundamental unfairness, state law error
in admitting evidence is subject to the traditional Watson test:
The reviewing court must ask whether it is reasonably probable
the verdict would have been more favorable to the defendant
absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
Appellant contends that even if the preliminary hearing
transcript was part of the record of conviction, it was still
inadmissible under the hearsay rule. We agree with the premise
of this argument: items in the record of conviction must comport
with the rules of evidence to be admissible. (See People v. Perez
(2016) 3 Cal.App.5th 812, 821, fn. 9, disapproved on other
grounds by People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8.)
However, we are not persuaded the entirety of the preliminary
hearing transcript would have been inadmissible.
We will assume arguendo the preliminary hearing
transcript is hearsay, and further assume that appellant is
correct that the hearsay exception in Evidence Code section 1291
does not apply. Despite acknowledging below that his own
statements contained in the preliminary hearing transcript could

26
be admissible, appellant now overlooks that possibility. If
evidence is admissible on any basis, “it is irrelevant that the trial
court might have had a different theory of admissibility in mind.
It is axiomatic that we review the trial court’s rulings and not its
reasoning.” (People v. Mason (1991) 52 Cal.3d 909, 944.)
The portions of the preliminary hearing transcript in which
the police officer related appellant’s own statements to the police
are admissible under the party admission exception to the
hearsay rule. (Evid. Code, § 1220 [statement not made
inadmissible by hearsay rule when offered against declarant in
action to which he is party]; see People v. Mitchell (2022) 81
Cal.App.5th 575, 586; People v. Flores (2022) 76 Cal.App.5th 974,
988-989 & fn. 10.) Those statements set forth a narrative that
aligns with the factual findings made by the court, which
appellant does not directly challenge as insufficient to support
the order.
Per the police officer’s testimony, appellant stated “that Mr.
Moore had met him at his house about 3:00 or 4:00 o’clock in the
afternoon and that Moore wanted to go out and . . . pull some
robberies and that Moore had a .22 caliber revolver with him and
at first he was against it but then went along with it and that he
wanted to go over on Vermont Avenue to do the robbing but
Moore had convinced him that there were too many police over
there so they should go the other direction. [¶] So, they walked
under the underpass of the freeway and went over to Broadway
and turned south towards, I believe, Manchester and they were
looking for victims . . . . Then they got as far as the ABC Market,
San Pedro and Manchester, and then they hung around the
market and then they seated themselves on a shopping rail,
which was out in the parking lot, and they waited and then they

27
saw a man exit the market who had two small children with him
and Moore said, ‘Let’s get him,’ and he was - - he said that he was
reluctant to do so but then Moore went over to the man. He said
after the man put his children in the car the man came back
around to the driver’s side of the car and started to get in the car
and then Moore started asking for money and then he admitted
that he struck the man and the man looked like he reached down
for something and Moore came up with a gun and shot the man
more than once from close range in the head and the face. . . .
[O]ne of the two of them took a watch and then they ran behind
the market and westbound down the street . . . and there was
some boys in the backyard of this house and one of them had a
garden hose and they went in there and washed the blood off
their hands . . . . [T]hey got all the way back over to Broadway
and Moore went off to his house taking the gun with him and he
went off to his house.”
There is no reasonable probability that the superior court,
which cited appellant’s statement several times in making its
Banks and Clark findings that appellant was a major participant
who acted with reckless indifference to life, would have reached a
different result had appellant’s statement been the only portion
of the preliminary hearing transcript it considered. Aside from
Moore, none of the other witnesses gave testimony that
contradicted appellant’s statements. Even assuming the corpus
delicti rule applies, an argument appellant does not reiterate in
this forum, other components of the record of conviction support a
reasonable inference that the crime was committed. Reversal
accordingly is not warranted.

28
II. Senate Bill No. 775
Appellant argues in the alternative that remand is
necessary in light of Senate Bill No. 775 (Stats. 2021, ch. 551, § 2)
(SB 775), which amended section 1172.6, subdivision (d)(3) to
provide that “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.”
Appellant contends SB 775 is retroactive and applicable to his
case because it “merely clarified existing law.” He requests
remand with instructions for the court to hold a new hearing at
which the Evidence Code is applied. Respondent agrees “the
Evidence Code generally applies at the evidentiary hearing,” but
asserts SB 775 also included “a specific exception rendering prior
testimony admissible.” Respondent further points out that SB
775 also amended section 1172.6, subdivision (d)(3) to provide
that “hearsay evidence that was admitted in a preliminary
hearing pursuant to subdivision (b) of Section 872 shall be
excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule.” It
argues this language deems inadmissible “only a small subset of
prior preliminary hearing testimony,” and therefore “indicates
that other types of preliminary hearing testimony are
presumptively admissible.”
We need not resolve the parties’ disputes regarding the
impact, applicability, and interpretation of SB 775. As discussed
above, even if the Evidence Code were applied to appellant’s
proceeding and hearsay objections properly lodged, there is no

29
reasonable probability the result would be different. Remand is
not necessary.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.

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