Filed 10/26/23 P. v. Rivera CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049103
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC632875)
v.
RAYMUNDO RIVERA,
Defendant and Appellant.
In 2006, Harry Luman was stabbed during a robbery. In connection with these
crimes, a jury convicted defendant Raymundo Rivera of first degree murder and second
degree robbery. The jury, however, found not true an allegation that Rivera used a
deadly or dangerous weapon committing these offenses. Consequently, as we observed
on Rivera’s direct appeal, the jury appears to have found Rivera guilty of murder under a
felony murder theory. (People v. Rivera (Feb. 23, 2010, H033633) [nonpub. opn.].)1 In
2018, the Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) (SB 1437), which,
among other things, restricted the felony murder doctrine and permitted resentencing of
those previously convicted under the doctrine in certain circumstances. (See Stats. 2018,
ch. 1015, §§ 3-4.) Rivera subsequently petitioned for resentencing.2 The trial court,
1
Rivera filed a request to take judicial notice of the appellate record in his direct
appeal, which this court granted by separate order.
2
Rivera petitioned for sentencing under former Penal Code section 1170.95.
(Subsequent undesignated statutory references are to the Penal Code.) Effective June 30,
2022, that section was renumbered section 1172.6. (Stats. 2022, ch. 58, § 10.) In
discussing the statute, we will use the new section number.
however, denied the petition on the ground that Rivera could have been convicted of
murder even as restricted under SB 1437.
We reverse and remand for a new evidentiary hearing because it is unclear
whether the correct standard of proof was applied. We also conclude that the trial court
abused its discretion in admitting certain hearsay statements, but we leave Rivera’s
preclusion and sufficiency arguments for the trial court to consider in the first instance.
We also reject Rivera’s request for reassignment to a different judge on remand.
I. Background
A. The Prosecution
Like Luman, Rivera was homeless. On June 9, 2006, Rivera and another
homeless man, Joe Anthony Silva, attacked and robbed Luman. During the robbery,
Luman was stabbed in the neck and chest, and one of the stab wounds pierced Luman’s
heart and killed him. However, the testimony concerning who stabbed Luman was
conflicting, and Rivera was convicted of murder under the felony murder doctrine.
1. The Charges
Rivera and Silva were charged by information with first degree murder and
robbery in the second degree as well as manslaughter. The information also alleged that
in the commission of the robbery and the murder Rivera “personally used a deadly and
dangerous weapon, a(n) knife.”
2. The Evidence Presented at Trial
Neither Rivera nor Silva testified at trial. Nor did Amanda R., a close
acquaintance of both Rivera and Silva, who was also involved in the robbery. Instead,
the prosecution presented several eyewitnesses to the robbery as well as others who
spoke to Rivera and Silva afterwards. Several of these witnesses had alcohol or drug
abuse problems, and their testimony concerning the robbery, and in particular concerning
who stabbed Luman, was conflicting.
2
The prosecution’s key witness against Rivera was Blake F., who described himself
as an “avid drinker” and admitted that earlier on the day of the incident he had consumed
48 ounces of malt liquor. Blake testified that, from a distance of between 75 and 100
yards, he saw Rivera and Silva attacking Luman while Amanda stood by and watched.
Blake initially saw nothing in Rivera’s hand and believed that he was punching Luman.
Later, however, Blake concluded “it was not punching,” but “more or less stabbing.”
Blake also testified that “when he stopped with the stabbing motion,” Rivera went
through Luman’s pockets.
Another witness, Anthony W., testified that Silva, not Rivera, stabbed Luman.
Anthony testified that he was in the alley about 40 feet away from where the fight took
place. Anthony saw four men, including Rivera and Silva, jump Luman, punch him, and
kick him. In addition, Anthony testified that he saw Silva kneeling over Luman making a
stabbing motion like “somebody taking an ice pick and chopping away at . . . a block of
ice.”
A third witness, Jaime P., also testified that Silva stabbed Luman. Jamie, who
admitted to smoking methamphetamine that day, said that he was 30 to 40 feet away from
the struggle. Jamie testified as well that he saw Luman with a knife in his left hand and
that Rivera grabbed Luman’s left wrist as Luman held the knife. In addition, the
prosecution submitted to the jury a transcript of an interview with the police in which
Jaime said that, after Luman pulled out his knife, Silva took the knife and stabbed Luman
with it.
There was also conflicting evidence concerning later events and admissions. One
witness, Cynthia R., testified that she saw Rivera, Silva, and Amanda late one evening in
a tunnel where Cynthia R. was then living. She said that Amanda was covered in blood
and holding a bloody knife, Silva had blood on his clothes, but Rivera’s clothing had no
blood on it. In addition, Amanda testified that Silva boasted that he had stabbed Luman.
3
At trial, another witness, Bill W., denied that he spoke with Rivera about the
Luman murder, but the prosecution presented evidence that during an interview with the
police Bill said that Rivera had admitted to stabbing Luman. Similarly, Bill’s girlfriend,
Cindy B., testified at trial that she did not recall speaking to Rivera about the stabbing,
but the prosecution presented evidence that she had told police that Rivera admitted to
stabbing Luman.
3. Jury Instructions and the Verdict
The jury was instructed on two theories of murder: malice aforethought and felony
murder. With respect to felony murder, the jury was instructed that it could convict a
defendant even if the defendant did not stab the victim so long as the defendant
committed, or aided and abetted in, the robbery, and “intended to commit robbery or
intended to aid and abet the perpetrator in committing robbery,” among other things. The
court also instructed the jury to decide whether the People had proven that defendant
personally used a deadly or dangerous weapon during the commission of the murder or
burglary.
The jury convicted Rivera of both first degree murder and second degree robbery.
However, it found the allegations that Rivera had “personally used a deadly. . . weapon,
a knife, . . . to be not true.”
4. The Appeal
The trial court subsequently sentenced Rivera to an indeterminate term of 25 years
to life on the murder charge and a consecutive determinate term of three years on the
robbery charge. Rivera appealed, claiming instructional error and that his sentence was
miscalculated. A panel of this court rejected Rivera’s claim of instructional error but
concluded that Rivera’s consecutive sentence lacked a sufficient legal basis and ordered
the sentence for the robbery conviction stayed under section 654. (People v. Rivera,
supra, H033633.)
4
In doing so, this court observed that “[a]lmost certainly” Rivera had been found
guilty on a felony murder theory. (People v. Rivera, supra, H033633.) The jury’s
verdicts, the court reasoned, show that the jury “found that Silva, not defendant, killed
Luman” because “Luman was killed by a knife wound that reached the heart, and the jury
found not true the knife-use enhancement allegations for both the robbery and the
murder.” (Id.)
B. The Petition for Resentencing
In January 2019, Rivera filed a petition for resentencing under SB 1437. After
finding that Rivera had made a prima facie case for relief and issuing an order to show
cause, the trial court received briefing and held a hearing at which the prosecutor
presented testimony from Amanda and a San Jose police officer who testified concerning
statements made by Amanda in 2006 and 2008. The trial court denied the petition.
1. Amanda’s 2006 and 2008 Statements to the Police
During the evidentiary hearing, Amanda admitted to having pleaded guilty to
armed robbery in connection with Luman’s robbery and murder as well as contempt of
court for refusing to testify at Rivera’s trial. Amanda testified that she did not recall
anything about the incident, explaining that “my brain has shut it down and blocked it
out.” The prosecutor tried to refresh Amanda’s recollection by having her review
statements that she made to the police in 2006 and 2008. However, Amanda testified that
the statements did not refresh her recollection. She explained that Luman’s robbery and
murder had traumatized her and that, while she did not dispute that she had been
interviewed, she did not remember being interviewed. Amanda also said that she was
“high on meth” during that period in her life.
The prosecutor asked the court to play portions of Amanda’s interviews with
police, arguing that they were admissible as “prior inconsistent statements, prior
consistent statements, and also past recollection recorded.” Defense counsel objected,
pointing out that the prosecutor had failed to lay a proper foundation for admission of the
5
interviews as past recollections recorded because Amanda had not testified that the
statements were truthful. In addition, counsel objected that the interviews could not be
admitted as prior inconsistent statements because Amanda had merely said she did not
remember and therefore had not made any statements inconsistent with those during the
interviews. The trial court nonetheless allowed the prosecutor to play recordings of
Amanda’s 2006 and 2008 statements, stating that it was “not receiving this as evidence at
this time.”
In the 2006 statement, Amanda told the police that Rivera stabbed Luman in the
face and that she saw the knife in Rivera’s hand. Amanda also said that it was
“[b]asically” Rivera’s plan to rob Luman.
In the 2008 statement, Amanda said that she sold drugs to Luman earlier on the
day of the incident and noticed he had “[a] lot of money.” Later a group of seven people,
including Rivera and Silva as well as herself, accosted Luman in an alley. After someone
in the group demanded Luman’s money, Luman and Rivera got into a fight in which
Silva participated. Amanda denied seeing Luman pull out a knife, seeing a knife in
Rivera’s hand, or even seeing anything resembling a stabbing motion. Amanda,
however, said that she later saw Rivera with a knife and that he said “ ‘I can’t believe I
just did this.’ ”
After hearing the recordings of her 2006 and 2008 statements, Amanda reiterated
that she did not recall the events in question or being interviewed. In addition, when the
prosecutor asked whether, based on her tone of voice, she thought that she was trying to
be truthful and accurate, Amanda replied, “I can’t say yes or no. I was under a lot of
drugs.” Although the prosecutor continued to press her on this issue, Amanda maintained
that she did not know if she had been truthful in her earlier statements. On cross
examination, Amanda admitted that, during the period of her life in which the 2006
interview occurred, “I was as high as I possibly could be.”
6
Although the People originally had asked to admit Amanda’s prior statements as
prior inconsistent statements as well as past recollections recorded, in light of Amanda’s
testimony on the first day of the sentencing hearing, they shifted tactics and in a written
memorandum asked the trial court to admit Amanda’s testimony solely as a past
recollection recorded. The next day, during the second day of the evidentiary hearing,
the prosecutor explained that he was “not going to argue that [Amanda’s] statements on
the witness stand of a failure of recollection are disingenuous. There is really nothing
about her demeanor that would suggest, when she testified . . . that she could not recall
the specifics of the event or the interviews with the detective, that she was being deceitful
or dishonest.” Accordingly, the prosecutor informed the court that, rather than
“asking . . . to admit her prior statements as inconsistent statements based on a dishonest
claim of a failure of recollection,” he was “asking the Court to admit her prior statements
as past recollection recorded.”
Although the trial court relied on Amanda’s 2006 statement, it did not rule that the
past recollection recorded exception or, indeed, any exception to the hearsay rule applied.
Instead, the court stated that “[t]here was no violation of the Confrontation Clause”
because Amanda was subject to cross-examination.
2. The Trial Court’s Order
In a written order, the trial court denied Rivera’s petition for resentencing. After
discussing the standard of proof, the court determined that Rivera was not entitled to
resentencing because he could have been convicted of murder under SB 1437’s changed
requirements. Although the trial court acknowledged that the evidence concerning who
stabbed Luman was “conflicted,” based upon its review of the trial transcript and the
evidence presented at the post-trial evidentiary hearing, the court nonetheless found that
“beyond a reasonable doubt” Rivera “was the person who actually stabbed Luman.” The
trial court also found that, even if Rivera did not kill Luman, he could be convicted of
second degree murder under SB 1437 because “he was an aider and abettor of the murder
7
[who] acted with express malice, i.e., intent to kill.” Finally, the court found that Rivera
could have been found guilty of murder under current law because he participated in the
attack on Luman and “had reckless disregard for human life.” The trial court, however,
stated that it was “not making a determination of guilt in its ruling.”
The order denying resentencing was issued on February 14, 2021, and Rivera filed
a timely notice of appeal on February 16, 2021.
II. Discussion
A. Standard of Proof
Rivera argues that the trial court’s order denying him resentencing must be
reversed because the trial court applied the wrong standard. We agree.
At the time that the hearing was conducted, there was a split of authority
concerning the standard of proof under section 1172.6. Some authority held that the trial
court should apply a substantial evidence standard, while other authority held that under
section 1172.6 “the trial court acts as an independent fact finder” and must “determine
beyond a reasonable doubt whether defendant is guilty of murder under a valid theory of
murder.” (People v. Garrison (2021) 73 Cal.App.5th 735, 745 (Garrison).) The
Supreme Court subsequently vacated the primary authority adopting the substantial
evidence standard (ibid., discussing People v. Duke (2020) 55 Cal App.5th 113, review
granted Jan. 13, 2021, S265309, cause transferred and ordered not citable, Nov. 23,
2021), and ordered the case reconsidered in light of Senate Bill No. 775 (2021-2022 Reg.
Sess.), which amended section 1172.6 to clarify that trial courts must find defendants
guilty of murder beyond a reasonable doubt under section 188 or 189. (Stats. 2021,
ch. 551, § 2, codified at § 1172.6, subd. (d)(3).)
Although the trial court stated that Rivera was the person who actually stabbed
Luman beyond a reasonable doubt, the court later stated that the test was “ ‘could’ and
‘beyond a reasonable doubt.’ ” However, as clarified by both statutory amendment and
the case law, under section 1172.6, the trial court is tasked with “acting as an independent
8
fact finder, to determine beyond a reasonable doubt whether defendant is guilty of murder
under a valid theory of murder.” (Garrison, supra, Cal.App.5th at p. 745; see also
§ 1172.6, subd. (d)(3) [“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted murder under California law as
amended by the changes to Section 188 or 189 made effective January 1, 2019.”].)
Moreover, in light of the conflicting evidence concerning who stabbed Luman, the failure
to make such a determination was prejudicial. We therefore vacate the trial court’s order
and remand for a new evidentiary hearing to allow the trial court to apply the correct
standard of proof and determine under current law whether Rivera is guilty of murder
beyond a reasonable doubt.
B. Proceedings on Remand
Rivera asks that we consider the admissibility of the statements from Amanda
presented at the evidentiary hearing, the preclusive effect of the findings made at Rivera’s
jury trial, and the sufficiency of the evidence presented by the prosecution so that errors
allegedly made by the trial court in the previous resentencing do not recur. In light of
section 1172.6’s instruction that “evidence previously admitted at any prior hearing” may
be considered (§ 1172.6, subd. (d)(3)), we address the admissibility of Amanda’s
statements and conclude that the trial court erred in admitting them.
1. Amanda’s 2006 and 2008 Statements
In admitting Amanda’s 2006 and 2008 statements, the trial court implicitly
rejected Rivera’s objection that they were inadmissible hearsay, but the only justification
it offered for doing so was the observation that their admission did not violate the
Confrontation Clause. The Attorney General makes no attempt to defend this rationale.
Nor does the Attorney General deny that the admission of evidence during resentencing
hearings under section 1172.6, subdivision (d) is “governed by the Evidence Code.”
(§ 1172.6, subd. (d)(3); see also Stats. 2021, ch. 551, § 2 [adding subdivision (d)(3)].)
9
Accordingly, we review whether the trial court abused its discretion in admitting the
hearsay statements from Amanda. (See, e.g., People v. McCurdy (2014) 59 Cal.4th 1063,
1095.) We conclude that there was an abuse of discretion.
In the trial court, the prosecutor argued that the Amanda’s statements were
admissible under Evidence Code section 1237, the hearsay exception for past
recollections recorded. The Attorney General concedes that the statements “were not
admissible under Evidence Code section 1237, as a prior recollection recorded.” We
accept this concession. Under Evidence Code section 1237, records of a witness’s past
recollection are admissible if four requirements are met. (Evid. Code, § 1237, subd.
(a)(1)-(4).)3 The third requirement is that “the witness testifies that the statement [she]
made was a true statement” of the fact recorded. (Id., subd. (a)(3).) Amanda, however,
did not testify that her 2006 and 2008 statements were true. Quite the contrary: She
repeatedly stated that she could not recall the interviews in which she made those
statements. Even more importantly, Amanda said that during this time period she was
“under a lot of drugs” and “as high as [she] possibly could be,” and she could not say that
she was truthful or even doing her best to be truthful when she made the 2006 and 2008
statements. As a consequence, the requirements for the past recollection recorded
exception were not satisfied, and Amanda’s 2006 and 2008 statements were not
admissible under Evidence Code section 1237. (See, e.g., People v. Simmons (1981) 123
3
Evidence Code section 1237, subdivision (a) provides: “Evidence of a
statement previously made by a witness is not made inadmissible by the hearsay rule if
the statement would have been admissible if made by him while testifying, the statement
concerns a matter as to which the witness has insufficient present recollection to enable
him to testify fully and accurately, and the statement is contained in a writing which:
[¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was
fresh in the witness’ memory; [¶] (2) Was made (i) by the witness himself or under his
direction or (ii) by some other person for the purpose of recording the witness’ statement
at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he
made was a true statement of such fact; and [¶] (4) Is offered after the writing is
authenticated as an accurate record of the statement.”
10
Cal.App.3d 677, 682-683, abrogation on other grounds recognized by People v. Cowan
(2010) 50 Cal.4th 401, 468.)
The Attorney General argues that Amanda’s statements were instead admissible
under Evidence Code section 1235, the hearsay exception for prior inconsistent
statements. This exception applies if “a statement made by a witness . . . is inconsistent
with his testimony” at a hearing, and the witness is given an opportunity to explain or
deny the statement. (Evid. Code, § 1235 [requiring compliance with Evid. Code, § 770];
id., § 770, subd. (a) [requiring opportunity to explain or deny].) At the resentencing
hearing, however, Amanda did not deny that Rivera stabbed Luman or that he later
admitted to doing so, as she asserted in the 2006 and 2008 statements. Nor did she
identify anyone else who stabbed Luman. Instead, she testified that she could not
remember what happened the day that Luman was stabbed. Amanda simply could not
remember because, she explained, the event was traumatic for her, and “[m]y brain has
shut it down and blocked it out.” As the Supreme Court has long recognized,
“[n]ormally, the testimony of a witness that he or she does not remember an event is not
inconsistent with that witness’s prior statement describing the event,” and therefore prior
statements about an event are not admissible under Evidence Code section 1235 where
the witnesses do not remember the event. (People v. Johnson (1992) 3 Cal.4th 1183,
1219-1220 (Johnson); see also People v. Green (1971) 3 Cal.3d 981, 988 [“In normal
circumstances, the testimony of a witness that he does not remember an event is not
‘inconsistent’ with a prior statement by him describing that event.”].)
The Attorney General points out that inconsistency may be implied if “a witness’s
claim of lack of memory amounts to deliberate evasion” (Johnson, supra, 3 Cal.4th at
pp. 1219-1220), and he argues that the trial court could have found that Amanda’s failure
to recall the stabbing of Luman was evasive. But the trial court did not state that it had
made such a finding. Nor was it even asked to do so. To the contrary, in the trial court
the prosecutor conceded that Amanda’s testimony was not evasive. “There is,” the
11
prosecutor informed the trial court, “nothing about her demeanor that would suggest,
when she testified before your Honor that she could not recall the specifics of the event or
the interviews with the detective, that she was being deceitful or dishonest.” In fact, the
prosecutor expressly disavowed any reliance on the prior inconsistent statement
exception: “So I am not asking the Court to admit her prior statements . . . based on a
dishonest claim of a failure of recollection.” (Italics added.) Instead, the prosecutor
relied solely on Evidence Code section 1237’s past recollection recorded exception.
Having told the trial court that Amanda was not being evasive and withdrawn their
request to apply the prior inconsistent statement exception, the People cannot ask the
court now to assume that the trial court silently disagreed with their assessment of
Amanda and silently applied the exception despite the withdrawal.
2. Issue Preclusion
Rivera also asks the court to consider an issue he raised in the trial court: whether
the jury’s verdicts in his favor on the dangerous weapon allegations precluded the trial
court from finding that he was the actual killer. However, whether jury findings have
preclusive effect in subsequent section 1172.6 proceedings depends on a number of
factors, including the evidence admitted at the section 1172.6, subdivision (d)(3)
evidentiary hearing. (See, e.g., People v. Arnold (2023) 93 Cal.App.5th 376, 383-390;
People v. Cooper (2022) 77 Cal.App.5th 393, 413-416; People v. Arevalo (2016) 244
Cal.App.4th 836, 853; see generally People v. Strong (2022) 13 Cal.5th 698, 716.) As we
are remanding with directions to conduct such a hearing, it would be premature for us to
consider the preclusive effect of the jury’s verdicts on the dangerous weapon allegations.
3. Sufficiency of the Evidence
We leave it for the trial court to consider in the first instance the sufficiency of the
evidence of Rivera’s guilt under the correct standard of proof and to decide whether
Rivera is guilty of murder beyond a reasonable doubt.
12
D. Judicial Bias
Rivera requests that his case be assigned to a different trial judge on remand on the
ground that the court’s rulings suggest an appearance of bias. While Code of Civil
Procedure section 170.1 authorizes us to disqualify a trial judge “ ‘ “where a reasonable
person might doubt whether the trial judge was impartial [citation]” ’ ” (People v.
LeBlanc (2015) 238 Cal.App.4th 1059, 1079), mere error “does not establish bias and
normally is not a proper ground for disqualification.” (Ibid.) Finding nothing more here,
we decline Rivera’s request for reassignment on remand.
III. Disposition
The order denying Rivera’s section 1172.6 petition is reversed. This matter is
remanded to the trial court with directions to conduct a new evidentiary hearing under
current law at which the prosecution shall be required, under section 1172.6, subdivision
(d)(3) to “prove, beyond a reasonable doubt,” that Rivera “is guilty of murder or
attempted murder under California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.”
13
______________________________________
BROMBERG, J.
WE CONCUR:
____________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
____________________________________
DANNER, J.
H049103
The People v. Rivera