People v. Zepeda CA4/3

Filed 10/20/26 P. v. Zepeda CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE Plaintiff and Respondent, G065285 v. (Super. Ct. No. 12CF1289) JOSE FELIX ZEPEDA, OPINION Defendant and Appellant. Appeal from a postjudgment order of the Superior Court of Orange County, Kevin Haskins, Judge. Reversed and remanded with directions. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland and Arlene A. Sevidal, Assistant Attorneys General, Kristine A. Gutierrez and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.  A jury convicted defendant Jose Felix Zepeda of one count of first degree murder (Pen. Code, § 187, subd. (a); count 1),1 one count of kidnapping for ransom (§ 209, subd. (a); count 2), and one count of conspiracy to sell methamphetamine (§ 182, subd. (a)(1); count 3). The jury also found true that the murder was committed during the commission of a kidnapping (§ 190.2, subd. (a)(17)(B)), defendant intentionally confined the kidnapping victim in a way that created a substantial risk of death, and count 3 involved more than one kilogram or 30 liters of methamphetamine (Health & Saf. Code, § 11370.4, subd. (b)(1)). Defendant admitted he had a prior conviction (§ 667.5). The trial court sentenced defendant to: (1) life without the possibility of parole on count 1; (2) a consecutive term of life without the possibility of parole on count 2; (3) a consecutive term of three years on count 3; and (4) a consecutive term of three years for the enhancement on count 3. The court struck the prior prison term for sentencing purposes only. Another panel of this court affirmed the judgment. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) In 2019, defendant filed a petition for resentencing under former section 1170.95 (now § 1172.6).2 The trial court denied the petition, finding the legislation enacting section 1170.95 was unconstitutional. (People v. Zepeda (Sept. 1, 2020, G057996) [nonpub. opn.].) Another panel of this court reversed the trial court’s order and remanded for further proceedings on the merits of defendant’s petition. (Ibid.) 1 All further statutory references are to the Penal Code unless otherwise stated. 2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) 2  On remand, the trial court denied the petition at the prima facie stage. Another panel of this court reversed and remanded the matter for an evidentiary hearing. (People v. Zepeda (May 19, 2022, G059826) [nonpub. opn.].) On the second remand, the trial court indicated both parties “waived their appearance” and their attorneys requested the matter be submitted to the court for a decision. The court then issued a written statement of decision denying defendant’s petition. On appeal, defendant argues, and the Attorney General concedes, he was denied his constitutional right to be present at the evidentiary hearing. Defendant contends he never waived his right to be present, and the court’s error was prejudicial. For the reasons post, we agree the court erred by denying the petition without defendant’s presence at an evidentiary hearing. Because the error was not harmless beyond a reasonable doubt, we reverse the order and remand for further proceedings consistent with this opinion. STATEMENT OF FACTS I. THE UNDERLYING OFFENSES3 Defendant, Espinoza, and Noe drove in defendant’s vehicle to Velasquez’s home to sell drugs to two individuals, Sanchez and Carranza. Defendant and Noe waited outside in the vehicle. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) 3 Because we are reversing and remanding for a new evidentiary hearing, we provide a limited factual summary from the prior appellate decision affirming the judgment. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) Consistent with the prior decision, we refer to the parties only by their last names. 3  While inside the home, Espinoza and Velasquez were robbed by Sanchez and Carranza who absconded with the drugs. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) Velasquez went back outside and reported the robbery to defendant and Noe. (Ibid.) Defendant, Noe, and Velasquez then pursued the robbers’ vehicle. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) When they lost sight of the robbers, they followed and cut off a second vehicle involved in the robbery. (Ibid.) Ortega, who was driving this second vehicle, was forced to stop and eventually agreed to take defendant and the others to Carranza’s home because “they promised Ortega they would let him go if he did so.” (Ibid.) “The group planned to kill Carranza and Sanchez and recover the drugs. [Defendant] retrieved his gun and gave it to Noe.” (Ibid.) At some point, Noe, Ortega, and others drove in a separate vehicle to Anaheim. (Ibid.) “Pursuant to [defendant’s] instructions, Espinoza obtained his truck and a shotgun with [the] assistance [of another individual named Badilla]. Espinoza, Badilla, and Velasquez followed in his truck. [Defendant] followed in the Ford but remained out of sight.” (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) “When the vehicles neared an apartment complex, a man in the SUV said, ‘Oh, that’s them.’ Ortega confirmed that Carranza was the man getting into and driving away in the Jeep. Espinoza directed Badilla, who was driving his truck, to follow the Jeep. Badilla turned the truck around and tried to catch the Jeep but lost sight of it.” (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) “Meanwhile, at the apartment complex, the SUV driver said, ‘Oh, there is another guy,’ when Sanchez walked out of the complex. Someone else in the SUV said, ‘It’s him. Kill him.’ The SUV driver made a quick U-turn 4 and stopped, and the SUV driver and Noe got out of the SUV. The SUV driver fired several rounds at Sanchez, returned to the car, and said, ‘I got him. I got him[,]’ as they drove away.” (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) Sanchez later died from gunshot wounds to his back. (Ibid.) II. TRIAL AND CONVICTION During closing argument at trial, the prosecutor acknowledged defendant was not the shooter. (People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.].) Instead, the prosecutor argued defendant was guilty of first degree murder under two theories: (1) felony murder; and (2) willful, deliberate, and premeditated murder as an aider and abettor or conspirator. (Ibid.) Among other things, the jury convicted defendant of first degree murder (§ 187, subd. (a)). III. THE EVIDENTIARY HEARING As noted ante, defendant filed a petition for resentencing in 2019, resulting in two appeals and two reversals. On remand in February 2025, the court noted the matter was set for a “hearing on an order to show cause” under section 1172.6. But the court stated: “The attorneys communicated with the court clerk by email basically asking to have the case taken off calendar and just submitting it to the court for a decision.” The court then continued the matter for a “status conference, verdict or a decision with respect to the petition.” The court added: “We’ll show that both parties have waived their appearance today.” 5  In March 2025, the court issued a written statement of decision denying defendant’s petition. The court indicated defendant’s counsel “represented that he was authorized to appear pursuant to . . . section [997, subdivision (b)].” After discussing the evidence presented at trial, the court concluded the evidence “establishe[d] beyond a reasonable doubt that [defendant] [was] guilty of felony murder either as a direct aider and abettor or as a major participant who acted with reckless indifference to human life.” The court added that the evidence showed defendant directly aided and abetted the murder with the specific intent to kill.4 Defendant filed a timely notice of appeal. DISCUSSION Defendant argues, and the Attorney General concedes, the court erred by denying defendant’s petition in violation of his constitutional right to be present at the evidentiary hearing. The parties disagree, however, as to whether the error was prejudicial. We agree with the parties that the court erred by denying the petition without defendant’s presence at the evidentiary hearing. Nothing in the record shows defendant gave a valid waiver of this right, and the Attorney General does not contend there was a valid waiver of defendant’s presence. (§ 977, subd. (b)(2) [detailing requirements for a valid waiver].) As such, the only question we must decide is if this error was harmless. We conclude the error was not harmless. 4 Defendant requests we take judicial notice of the reporter’s transcripts in People v. Zepeda (Sept. 30, 2016, G050810) [nonpub. opn.], which include the transcripts from defendant’s original trial. Because the trial court relied on the trial transcripts, we grant the unopposed request for judicial notice. 6  I. APPLICABLE LAW AND STANDARD OF REVIEW “Sentencing and resentencing hearings are critical stages in a criminal proceeding. [Citations.] Courts have consistently held that a defendant has a right to be present at proceedings that are ‘akin to a plenary sentencing hearing.’ [Citation.] This includes proceedings necessary to determine factual questions bearing on the defendant’s eligibility for resentencing.” (People v. Quan (2023) 96 Cal.App.5th 524, 532–533 (Quan).) The “defendant’s presence significantly contributes to the fairness of the hearing as a matter of due process.” (Id. at p. 534.) Indeed, the court’s decision at the evidentiary hearing “may well turn on disputed issues of fact ‘about which [the defendant]—as a participant in the events in question— may well have had something to say.’” (People v. Basler (2022) 80 Cal.App.5th 46, 59 (Basler).) “If a [defendant] was not present at the [evidentiary] hearing, the reviewing court must determine ‘whether his [or her] absence was harmless beyond a reasonable doubt.’” (Quan, supra, 96 Cal.App.5th at p. 536; see also Chapman v. California (1967) 386 U.S. 18, 24.) II. PREJUDICE We cannot say defendant’s absence from the hearing was harmless beyond a reasonable doubt. In reaching this decision, we consider three cases discussed by both parties: Basler, supra, 80 Cal.App.5th 46, Quan, supra, 96 Cal.App.5th 524, and People v. Jackson (2025) 110 Cal.App.5th 128 (Jackson). All three cases found the defendant’s absence from the section 1172.6 hearing was not harmless beyond a reasonable doubt. (Basler, at pp. 59–60; Quan, at pp. 536–537; Jackson, at pp. 150–153.) 7  In Basler, the court noted “[t]he entire purpose of the . . . resentencing hearing was for the court to consider whether to vacate [the defendant’s] conviction and recall [defendant’s] sentence, including by reviewing the record and taking new evidence, if offered, on the issue of [the defendant’s] actions and mens rea . . . .” (Basler, supra, 80 Cal.App.5th at p. 59.) For example, the defendant “may have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence . . . .” (Id. at p. 60.) Although “‘[t]he trial court may, or may not, have chosen to believe what [the defendant] might have said, if he said anything, [the reviewing court could not] conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.’” (Id. at p. 59.) In Quan, another panel of this court concluded it could not “say beyond a reasonable doubt that depriving” the defendant of the right to be present at the section 1172.6 hearing was harmless. (Quan, supra, 96 Cal.App.5th at p. 536.) The court noted the prosecution had the burden of establishing the defendant’s reckless indifference to life, which had an objective and subjective component. (Ibid.) Thus, if the defendant was present, he “could have addressed what he knew of his confederates’ willingness to kill in furtherance of their objectives,” or the other relevant components of the crime. (Id. at pp. 536–537.) Finally, in Jackson, the court held remand was necessary partly “because of the difficulty of evaluating trial records that are often decades old in the light of significant legal changes.” (Jackson, supra, 110 Cal.App.5th at p. 153.) The court explained: “[T]he arguments of counsel and the presence of the defendant can be critical to judges deciding these issues and to the fairness of the proceeding for the defendant. Where factual and legal issues 8 must be resolved, a hearing enables the court to inform counsel and the parties of its tentative thoughts and allows them, in turn, to respond and potentially to present a different point of view, about both the significance of the evidence and how the law applies to it.” (Ibid.) Here, the Attorney General argues the court’s error in issuing a decision without defendant’s presence is harmless because there is “overwhelming evidence of [defendant’s] guilt in the trial record as an aider and abettor to both the kidnapping and the murder, who possessed the intent to kill and as a major participant who acted with reckless indifference to human life.” But “the trial evidence and the inferences to be drawn from it in most cases will not have been presented with a focus on a mens rea or an actus reus that meet the requirements of current law.” (Jackson, supra, 110 Cal.App.5th at p. 152.) The trial court also “may consider such matters as witness credibility and the weight of the evidence to the extent the record . . . sheds light on them.” (Ibid.) In the instant case, the trial court relied on the trial testimony of the kidnapping victim and witnesses who participated in the criminal enterprise. If defendant had been present at an evidentiary hearing, he may have assisted counsel in challenging the witnesses’ accounts, presenting a different interpretation of the evidence, or identifying inconsistencies or omissions in the evidence. The Attorney General emphasizes defendant did not testify at trial even though he “possessed an incentive . . . to challenge his culpable mental state as to the killing, including through his own testimony” given the kidnapping-murder special circumstance. As the Basler court noted, however, a defendant’s “decision not to testify at trial is not dispositive on the prejudice suffered by his absence at the section 1170.95 evidentiary hearing, particularly given the new focus on [defendant’s] mental state and the court’s 9 ability to consider new or additional evidence on the point.” (Basler, supra, 80 Cal.App.5th at p. 60.) In short, we cannot conclude defendant’s absence from the evidentiary hearing was harmless beyond a reasonable doubt. The Attorney General cites no case, and we are aware of none, finding a defendant’s absence at a section 1172.6 hearing to be harmless. DISPOSITION The order denying defendant’s petition is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing with defendant’s presence or with a valid waiver. SERVINO, J. WE CONCUR: GOODING, ACTING P. J. SCOTT, J. 10