People v. Vasquez CA3

Filed 3/29/22 P. v. Vasquez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C092601

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2005-0006365, SC032183A) v.

DOMINGO VASQUEZ,

Defendant and Appellant.

Defendant Domingo Vasquez appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95. 1 Defendant contends the trial court incorrectly engaged in factfinding when it considered several documents to evaluate his prima facie eligibility under the statute and denied his petition as a result. We will reverse the trial court’s order and remand the case for further proceedings.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In 1981, defendant and two codefendants burglarized the victim’s home. The victim was beaten in the course of the burglary and later died. Defendant pleaded guilty to second degree murder (§ 187, subd. (a)) and burglary (§ 459). On January 16, 2019, defendant filed a petition for resentencing under section 1170.95. The trial court appointed counsel and received briefing from the parties. As part of its briefing, the prosecution filed a copy of defendant’s probation report, a copy of People v. Belmontes (1988) 45 Cal.3d 744 (a decision involving one of defendant’s codefendants), and the transcript from defendant’s 2019 parole hearing. The prosecution asserted these documents could be considered by the court as part of defendant’s record of conviction or as new evidence. The trial court held a hearing on the petition. Defendant asked the court to exclude the documents the prosecution had submitted, arguing that the probation report was hearsay; the Belmontes opinion was from a case in which defendant had not been a defendant, witness, or participant in the trial; and a variety of public policy reasons justified exclusion of the parole hearing transcript. The court determined it could consider the documents, saying section 1170.95 “does allow new evidence to be presented.” In particular, the court found the probation report was part of defendant’s record of conviction, the opinion was subject to judicial notice, and there was no reason to exclude the parole hearing transcript. Applying the facts from the documents, the court stated, “based on what [defendant] said at the parole hearing, he was a major participant in this crime,” and denied the petition. DISCUSSION Defendant argues the trial court erred because it “prematurely engaged in the weighing of evidence” when it used the probation report, the Belmontes opinion, and the transcript from defendant’s parole hearing to determine he had not stated a prima facie case for relief. Defendant asks us to remand the case with directions to issue an order to