Filed 12/4/ 23 P. v. Penaloza CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIBERTO G UEBARA PENALOZA

, Defendant and Appellant. B 3 24354

Los Angeles County Super. Ct. No. PA003748

APPEAL from an order of the Superior Court of Los Angeles County, David Walgren , Judge

. Affirmed

. Joshua L. Siegel , under appointment by the Court of Appeal, f

or Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Gabriel Bradley

, Deputy Attorney s General, for Plaintiff and Respondent.2

INTRODUCTION AND PROCEDURAL BACKGROUND

In 1997, a jury convicted defendant and appellant Eriberto
Guebara Penaloza of two counts of first degree murder ( Pen. Code, 1 § 187 , subd. (a) ) and two counts of robbery ( § 211)

. The
trial court sentenced him to con secutive terms of 25 years to life
on each murder count, plus a 1

- year firearm enhancement. The

court stayed sentencing on the robbery counts under section 654. On direct appeal, a different panel of this court affirmed the judgment

, in case number B116017 ( Penaloza I ). 2 In 2019, Penaloza filed a petition for recall of and resentencing on his murder convictions under former section
1170.95. 3 After holding an evidentiary hearing under former
section 1170.95 , subdivision (d), the trial court denied the petit ion, concluding the evidence showed Penaloza had been a major participant in the robberies underlying his murder
convictions who acted with reckless indifference to human life. We affirmed the trial court’s order denying relief. ( People v.
Penaloza (May 3, 2021, B304714 [nonpub. opn.] ( Penaloza II ).) 4

1 All undesignated statutory references are to the Penal Code.

2 We take judicial notice of our opinion in that case . (See Evid. Code, § 452, subd. (a).)

3 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substa ntive changes to the statute.

4 We granted Penaloza’s request for judicial notice of the appellate record in Penaloza II

.3 In September 2022, Penaloza filed another petition for resentencing and requested appointment of counsel. 5 Without appointing counsel, the trial court summarily denied the petition on res judicata grounds . I n making its ruling, the court noted Penaloza had previously filed a section 1170.95 petition, the trial court denied that petiti on, and this court affirmed the trial
court’s order denying the petition

. Penaloza timely appeal ed

.
DISCUSSION

A. The trial court ’s res judicata ruling was error

On appeal, Penaloza argues the trial court prejudicially erred, and violated his federal due process rights, by summarily denying his petition on res judicata grounds. In support of this contention, Penaloza correctly notes that when the trial court denied his original section 1170.95 petition, it relied in part on
the statement of facts in our opinion in Penaloza I

. 6 Penaloza also correctly notes the L egislature has since amended the statute to prohibit such use of facts co ntained in prior appellate opinions (s ee § 1172 .6 , subd. (d)(3); People v. Flores (2022) 76 Cal.App.5th 974, 988)

, and argues , because of this material change in the
statute, the trial court’s reliance on res judicata in denying relief

was error. The Attor ney General agrees the trial court erred by relying on res judicata to deny relief

. We agree with the parties

. At Penaloza’s evidentiary hearing under former section 1170.95 , the prosecution stated it

5 Penaloza’s new petition referenced section 1170.95 although he filed it after the statute was renumbered to section 1172.6.

6 Th e opinion in Penaloza I is contained in the appellate record of Penaloza II

.4

was relying on the facts stated in this court’s opinio n in Penaloza
I

. B ecause the record clearly demonstrates the prosecution relied
on facts contained in our opinion in Penaloza I at the evidentiary hearing, we conclude the issue litigated in Penaloza’s former section 1170.95 proceeding was different from t he issue presented when he filed his second resentencing petition. For this reason

, we agree with the parties that the trial court’s denial of relief on res judicata grounds was erroneous

. (See People v. Barragan (2004) 32 Cal.4th 236, 253 [ res judicata ap plies only if the “issue raised in the present action is identical to a claim or issue litigated in a prior proceeding”].)

B. Remand is unwarranted because any error by the trial court was harmless
Although the parties agree that the trial court erred, they disagree over whether the error was harmless. They also disagree over which harmless error standard should apply. Whereas the Attorney General argues the applicable standard is that
articulated in People v. Watson (1956) 46 Cal.2d 818 , 836 ( Watson ) (i.e., whether Penaloza can show it is reasonably probable he would have received a more favorable outcome )

, Penaloza argues the error should be deemed structural, or alternatively, should be reviewed under the standard in Chapman v. California (1967) 386 U.S. 18

, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] ( Chapman ) ( placing the burden on the prosecution to show the error was harmless beyond a reasonable doubt)

. Before analyzing whether the trial court’s error was harmless, we
will first address which harmless error standa rd applies. We conclude the Attorney General is correct that Watson applies

. We reject Penaloza’s assertion that the denial of his petition under res judicata princi ples should be reversible per se

.5

I mplementing that standard would, among other things, be a waste of judicial resources in cases where the re cord
demonstrates remand would be futile regardless of the error

. We likewise reject Penaloza’s argument that Chapman should apply. That standard applies when a defendant’s federal constitutional
ri ghts h ave been violated. ( Chapman

, supra , 386 U.S. at p. 24.)
B ecause section 1172.6 is a state ameliorativ e statute, the trial court’s erroneous application of the statute’ s requirements
amounted merely to an error of state law , rendering Chapman inapplicable. Because the trial court’s error was one of state statutory law

, the Attorney General is correct that Watson is the applicable prejudice standard. (Cf. People v. Lewis (2021) 11 Cal.5th 952, 957

- 958, 973 ( Lewis ) [ erroneous denial of section 1172.6 petition at prima facie stage without appointing counsel is a purely state law issue reviewed for prejudice under Watson ].)
We no w turn to whether the error here was harmless under
Watson

. More specifically , the question is whether it is reasonably probable Penaloz a would have obtained a more favorable outcome at a second evidentiary hearing at which the
facts from this court’s opinion in Penaloza I were excluded. We conclude the answer is no, and consequently, the error was
harmless. In denying the original section 1170.95 petition, the trial court did not rely solely on the facts contained in our opinion
in Penaloza I. It also relied on other relevant parts of the record
of conviction introduced into evidence by the parties , including
Penaloza’s admissions as recou nted by a detective at Penaloza’s preliminary hearing. 7

7 S ection 1172.6 (d)(3) (dealing with the evidentiary hearing stage of section 1172.6 proceedings) explains: “hearsay evidence that was admitted in a preliminary hearing pursu ant to6 At the preliminary hearing, Detective Lillian Johnson
testified she advised Penaloza of his constitutional rights and then spoke with him. When speaking with Detective Johnson,
Penaloza waived his ri ght to remain silent, then made various admissions about his role in the robbery

- murders. Penaloza told
her “his part in this case was to transport the two victims to a predesignated location in Pacoima where [the victims] were going to bring the cocaine [, ] and a dope rip off was going to take place[ ] [at which] the cocaine would be stolen from [the victims].”
Penaloza told Johnson the two actual killers were Carlos Gutierrez and Juan Jose Paniagua. Penaloza also told Johnson he was aware Paniagua dealt co caine, and he was apprehensive about introducing Paniagua to the victim s , because he knew Paniagua would set up drug deals, take the money and drugs,
and someti mes commit murder in order to accomplish the se robberies

. Despite knowing Paniagua had committe d similar robbery

murders, Penaloza put the victims in contact with Paniagua and
Gutierrez

. Penaloza also brought the victims to the location

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.” Here, if the case were to be remanded for a new evidentiary hearing, Penaloza’s admis sions implicating him as a major participant with reckless indifference to human life would be admissible under various exceptions to the hearsay rule , just as they were at the prior hearing . (Evid. Code, § 1230 [hearsay declarations against interest are

a dmissible]; Evid. Code, § 1220 [hearsay party admissions are admissible].) At the prior hearing, Penaloza’s counsel explicitly asked the court to review the preliminary hearing transcript, and the court took a recess in order to do so before ultimately den ying relief.7

where they were murdered. Penaloza knew he was bringing the victims there so Paniagua and Gutierrez could steal th eir drugs.
When Penaloza was on h is way with the victims, he started to
feel bad, thought about telling one of the victims he was going to
b e robbed, but then decided not to divulge this information

. Penaloza said he “didn’ t know [ ] [the victims] were goi ng to get killed, but he knew they were going to get robbed.” After the victims were killed, Penaloza fled the scene with the shooters. Paniagua gave Penaloza $2,000

, told him to go to Mexico, and told him he would get the rest of his money after they sold the drugs. 8
Given Penaloza’s admissions, it is not reasonably probable that a finder of fact would conclude Penaloza was not a major participant in the robberies or did not act with reckless
indifference to hu m an life. 9 For this reason, the trial court’s error in applying res judicata principles to deny relief, as well as the court’s error in not appointing counsel and al lowing briefing (see
Lewis

, supra , 11 Cal.5th at p. 957 [appointment of counsel and opportunity for briefing are required under section 1172.6] ) , were both harmless. 10

8 Paniagua originally offered Penaloza $10,000 for participating in the robbery . A nother participant, Angel Rosalez

, offered Penaloza $5,000.

9 Indeed, in light of the facts contained in the preliminary hearing transcript, even assuming Cha pman applied, we would find the error harmless under that standard as well.

10 We likewise reject Penaloza’s argument that the trial court’s summary denial of his petition violated his federal due process rights. (Cf. Lewis

, supra , 11 Cal.5th at pp. 972

- 97 38 DISPOSITION

The order denying Penaloza ’s section 1172.6 petition is
affirmed

.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.
We concur:

COLLINS, J.

MORI, J.

[failure to appoint counsel under section 1172.6 is error under state statutory law only].)