Filed 12/8/20 P. v. Reynoso CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

OMAR REYNOSO,

Defendant and Appellant.

 B303277

 (Los Angeles County. 

 Super. Ct. No. YA013691)

APPEAL from an order of the Superior Court of Los 

Angeles County. Laura C. Ellison, Judge. Affirmed. 

Sally Patrone Brajevich, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan S. Pithey, Senior Assistant 

Attorney General, Charles S. Lee and Stacey S. Schwartz, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Twenty-six years after he pleaded no contest to second 

degree murder, Omar Reynoso filed a petition for resentencing 

pursuant to Senate Bill No. 1437 (SB 1437), which “amend[ed]

the felony murder rule and the natural and probable 

consequences doctrine to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with 

the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial court denied 

his petition, finding Reynoso was not eligible for relief as a 

matter of law because the record demonstrates he was the actual 

killer. We affirm the order denying Reynoso’s petition for 

resentencing.

FACTS1

Fernando Zamora died from a gunshot wound to the chest 

at approximately 4:00 a.m. on September 12, 1992. One witness 

reported the shooting occurred in connection with an attempted 

robbery. Another witness indicated gang signs and slogans were 

exchanged before the shooting. Others reported a drive-by 

shooting occurred with no words exchanged. Police officers were 

able to determine from the witness statements that a light blue 

or white compact car was used during the murder.. 

Four days after the shooting, police stopped Reynoso for 

speeding. He was driving a rental car that matched the 

description of the one used during the murder. The rental agency 

reported the car may have been stolen since it was scheduled to 

be returned in August. Reynoso was arrested for unlawful taking 

or driving of a motor vehicle. Due to the similarity between the 

1 The facts presented below are taken from the probation 

report at issue in this case.
3

car Reynoso was driving and the car allegedly used in the 

shooting, detectives questioned him about Zamora’s murder. 

Reynoso confessed. 

Reynoso was charged with murder pursuant to Penal Code2

section 187, subd. (a) with the additional allegation that he 

personally used a firearm pursuant to sections 1203.06, subd. 

(a)(1) and 12022.5, subd. (a). He pleaded no contest to second 

degree murder. The firearm allegation was stricken. He was 

sentenced to 15 years to life in state prison on October 28, 1993. 

On February 8, 2019, Reynoso filed a petition for 

resentencing pursuant to section 1170.95. Reynoso asserted he 

was entitled to relief because he could not be convicted of murder 

under the statutory changes brought about by SB 1437. The trial 

court appointed counsel to represent Reynoso pursuant to section 

1170.95, subdivision (c).

In their response to Reynoso’s petition, the People 

primarily argued SB 1437 was unconstitutional. In addition, the 

People argued Reynoso was not entitled to relief because he 

confessed to police that he shot the victim, relying on a preplea 

probation report and a 2018 Comprehensive Risk Assessment 

submitted to the Board of Parole Hearings (parole board report). 

The preplea probation report was based on the arrest 

report and recounted Reynoso’s confession as follows: “The 

defendant explained to officers that he and several other ‘Insane 

Rascals’ gang members had been at a liquor store on 130th Street 

and Prairie Avenue. There had been a confrontation with about 

16 other gang members from a different gang. As a result, he 

went to the home of another gang member where he obtained a 

.30/.30 caliber rifle. He and three companions returned to the 

2 All subsequent section references are to the Penal Code.
4

area of 130th Street and Prairie Avenue where they were 

confronted by two or three gang members who ran up on their car 

and threatened them. Two of these individuals were carrying 

handguns and the third was carrying a 40-ounce bottle of beer 

which he threatened to throw at them. One of his companions 

had exited the vehicle and was shouting at the opposing gang 

members. The defendant states he then shouted towards him, 

‘Blast ‘em.’ The defendant told officers that he raised the weapon 

to eye level and shot one of these individuals in the back as he 

was running away from him. [¶] Defendant informed officers 

that he had taken the rifle used in the shooting and put it in the 

trunk of his mother’s boyfriend’s car. The weapon was recovered 

from the vehicle.” 

Reynoso similarly stated in the parole board report that he 

accepted responsibility for shooting and killing the victim. The

People attached the preplea probation report and the parole 

board report in support of their response. The People asserted a 

preplea probation report may be considered to grant or deny a 

petition under section 1170.95 but acknowledged “the authorities 

on this are unclear.” 

Reynoso devoted the bulk of his reply to argue SB 1437 was 

not unconstitutional.3 As to the merits of his petition, he argued 

he was not the actual killer, did not aid and abet the murder as a 

participant with reckless indifference to human life, and had no 

intent to kill. He asserted his confession was the result of 

psychological coercion because he was sixteen years old at the 

3 The parties’ constitutional claims have been resolved in two 

comprehensive opinions, People v. Superior Court (Gooden) (2019) 

42 Cal.App.5th 270 and People v. Lamoureux (2019) 

42 Cal.App.5th 241. The issue is not a subject of this appeal.
5

time of the interrogation and had no guardian or attorney 

present. Reynoso discounted his admissions of guilt in the parole 

board report, stating he “intentionally provided the parole board 

with a false confession in order to improve his chances for 

parole.” He did not object to the admissibility of the probation 

report or the parole board report in his reply.

The trial court denied the petition, finding Reynoso 

“is pretty clearly the person who is the actual shooter and not 

eligible for relief.” The trial court stated “one of the things” it 

relied on in making its decision was the parole board’s report, 

which “cit[ed] to the defendant’s own statements, quote, ‘I jumped 

out with the rifle. As I get ready to shoot I see movement, and I 

react. I point the gun in that direction, and I shoot. The guy hits 

the floor.’ ” The court also indicated Reynoso admitted the 

firearm allegation as a part of his plea agreement. This was 

incorrect as the firearm allegation was dismissed. 

Reynoso timely appealed.

DISCUSSION

Reynoso now contends the trial court incorrectly denied his 

petition for resentencing based on its mistaken belief he admitted 

the firearm allegation as a part of his no contest plea. Reynoso 

also faults the trial court for relying on the statements contained 

in the parole board report. He argues the parole board report 

contains unreliable hearsay and is not properly part of the record 

of conviction that may be considered by the trial court. The 

People concede Reynoso did not admit the firearm allegation. 

The People argue Reynoso is nevertheless ineligible for 

resentencing under SB 1437 because the preplea probation report 

establishes he was the actual killer. 
6

We agree the trial court erred when it relied on the 

mistaken belief that Reynoso admitted the firearm allegation and 

when it considered the parole board report to deny Reynoso’s 

petition. (People v. Trujillo (2006) 40 Cal.4th 165, 179 [a 

defendant’s admission after the court accepts his plea “does not 

describe the nature of the crime of which he was convicted” and is 

inadmissible to prove the elements of the offense].) However, we 

conclude Reynoso forfeited his challenge to both the probation 

report and the parole board report by failing to object to their 

admissibility below. In any event, the preplea probation report, 

which may be considered by the trial court at an eligibility 

hearing, demonstrates he is ineligible for relief as a matter of law

because he was the actual killer. 

I. Governing Law

SB 1437, effective as of January 1, 2019, was enacted to 

“amend the felony murder rule and the natural and probable 

consequences doctrine to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with 

the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Thus, SB 1437 

amended section 188 to require that a principal to murder act 

with malice aforethought, which will “not be imputed to a person 

based solely on his or her participation in a crime.” (§ 188, subd. 

(a)(3), as amended by Stats. 2018, ch. 1015, § 2.) Felony murder 

liability under section 189 was limited to a defendant who was 

the “actual killer,” an aider or abettor in the commission of 

murder in the first degree, or “a major participant in the 

underlying felony [who] acted with reckless indifference to 
7

human life.” (§§ 188, subd. (a)(3), 189, subd. (e), as amended by 

Stats. 2018, ch. 1015, §§ 2, 3.)

Section 1170.95 sets forth a three-step procedure for 

defendants to seek resentencing if they could not be convicted for 

murder in light of the changes to sections 188 and 189. (People v. 

Martinez (2019) 31 Cal.App.5th 719, 722–723 (Martinez).) In 

step one, the defendant files a petition with the sentencing court 

to vacate the defendant’s murder conviction and to obtain 

resentencing on any remaining counts. (§ 1170.95, subd. (a).) 

The petition must satisfy the following three conditions to make 

the initial prima facie showing that he or she is eligible for relief: 

“(1) A complaint, information, or indictment was filed against 

the petitioner that allowed the prosecution to proceed under a 

theory of felony murder or murder under the natural and 

probable consequences doctrine. (2) The petitioner was convicted 

of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner 

could be convicted for first degree or second degree murder. 

(3) The petitioner could not be convicted of first or second degree 

murder because of changes to Section[s] 188 or 189 made 

effective January 1, 2019.” (§ 1170.95, subd. (a).) 

If the defendant has made the initial prima facie showing 

in step one, the trial court appoints counsel to represent him or 

her. (§ 1170.95, subd. (c).) In step two, the defendant must make 

a second prima facie showing that he or she is “entitled” to rather 

than “eligible” for relief. At this stage of the proceedings, the 

trial court may review the petition, its own file, and the record of 

conviction. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137–
8

1138 (Lewis).)4 If the defendant demonstrates he or she is 

entitled to relief in step two, the court must issue an order to 

show cause why relief should not be granted. (§ 1170.95, subd. 

(c).) If the court issues an order to show cause, a hearing will be 

held to determine whether to vacate the murder conviction. 

(Lewis, supra, 43 Cal.App.5th at p. 1136.) In this third step of 

the proceedings, the parties “may rely on the record of conviction 

or offer new or additional evidence to meet their respective 

burdens.” (§ 1170.95, subd. (d)(3).) 

II. Reynoso Forfeited the Argument That the Parole 

Board Report and the Probation Report Could Not 

Be Considered 

On appeal, Reynoso complains the probation report and 

parole board report contain statements that are unreliable 

hearsay. However, he failed to object to either report on this, or 

any, basis below. “[A] challenge to the admission of evidence is 

not preserved for appeal unless a specific and timely objection 

was made below.” (People v. Anderson (2001) 25 Cal.4th 543, 

586; Evid. Code § 353, subd. (a).) “[T]he 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.) 

4 The Supreme Court of California granted review in Lewis 

on the following issues: “(1) May superior courts consider the 

record of conviction in determining whether a defendant has 

made a prima facie showing of eligibility for relief under Penal 

Code section 1170.95? (2) When does the right to appointed 

counsel arise under Penal Code section 1170.95, subdivision (c)?” 

(People v. Lewis, review granted Mar. 18, 2020, No. S260598 

[2020 Cal. LEXIS 1946, at *1].) 
9

In support of its arguments against resentencing before the 

trial court, the People relied on and attached the probation report 

and parole board report as exhibits 1 and 2 of its response. 

Although Reynoso requested the trial court strike exhibit 4, also 

attached to the People’s response, and the People noted it was 

“unclear” whether a preplea probation report may be considered 

to grant or deny a resentencing petition under section 1170.95, 

Reynoso did not object to either the probation report or parole 

board report in his reply. At the hearing, Reynoso’s counsel 

submitted on the papers and did not make any objections to the 

reports before, during, or after the trial court issued its ruling. 

On appeal, Reynoso complains the probation report is 

unreliable because it contains hearsay, his statement was not in 

quotation marks, and the arrest report was not part of the record. 

If Reynoso had raised those issues below, the People would have 

had the opportunity to establish the probation report was 

admissible under a hearsay exception or was otherwise reliable 

by, for example, placing the arrest report in the record. A timely 

objection also would have permitted the trial court to correct any 

errors in the first instance and create a better record for appeal. 

Given these circumstances, both reports were part of the record 

considered by the trial court and Reynoso has forfeited the issue 

of their admissibility.

Reynoso attempts to avoid forfeiture by arguing the trial 

court never mentioned the probation report as a basis for its 

decision but instead relied on the parole board report and its 

mistaken belief that Reynoso admitted the firearm enhancement. 

He thus claims he had no opportunity to object to the admission 

of the probation report and any objection would have been futile. 
10

As an initial matter, we note Reynoso implicitly 

acknowledges any objection to the parole board report is forfeited. 

Further, we disagree an objection to the admissibility of the 

probation report is tied to whether the trial court relied on it or 

not. Instead, its admissibility was brought into question when 

the People used it to oppose resentencing. Reynoso was required 

to raise the objection at that time. (See People v. Booker (2011) 

51 Cal.4th 141, 170 [“the failure to raise a timely objection 

forfeits the claim for appeal . . .”]; see also Crouch v. Trinity 

Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 

1019 [defendant forfeited challenge to plaintiff's evidence by 

failing to make contemporaneous objections or motions to strike, 

but instead waiting and bringing motion for mistrial]; 3 Witkin, 

Cal. Evid. (5th ed. 2020) Presentation, § 383 [“Where 

inadmissible evidence is offered, the party who desires to raise 

the point of erroneous admission on appeal must object at the 

trial, specifically stating the grounds of the objection, and 

directing the objection to the particular evidence that the party 

seeks to exclude.”].) 

We are also not persuaded an objection would have been 

futile. There is no indication how the trial court would have 

ruled if an objection on hearsay grounds had been brought to its 

attention. 

Finally, Reynoso urges us to ignore the forfeiture. (People 

v. McCullough (2013) 56 Cal.4th 589, 593.) We decline to do so. 

Reynoso has presented no reason for us to relieve him of this 

obligation, particularly when the People noted the “unclear” 

authorities on the issue in their response.
11

III. The Record Reveals Reynoso is Ineligible For Relief 

as a Matter of Law

Even assuming Reynoso has not forfeited the issue, we 

conclude his confession in the probation report was properly a 

part of the record to be considered by the trial court in deciding 

whether he has made a prima facie showing that he is entitled to 

relief under SB 1437.5 Our review involves a pure question of 

law and is therefore de novo. (People v. Bradford (2014) 227 

Cal.App.4th 1322.) 

We are persuaded by the reasoning in cases addressing 

similar resentencing proceedings. (Lewis, supra, 43 Cal.App.5th 

at p. 1137.) These cases generally hold that limited use of 

hearsay is permitted to determine eligibility for resentencing so 

long as there is a substantial basis for believing the hearsay 

information is reliable. (People v. Sledge (2017) 7 Cal.App.5th 

1089, 1095 (Sledge); People v. Hall (2019) 39 Cal.App.5th 831

(Hall); see People v. Williams (Nov. 20, 2020, No. A157917) 

[2020 WL 6816543].)

In Sledge, supra, 7 Cal.App.5th at pages 1092–1093, the 

trial court denied defendant’s petition for resentencing pursuant 

to Proposition 47, which amended the Three Strikes law so that 

eligible third strike offenders may be resentenced as 

misdemeanor offenders. At the eligibility hearing, the trial court 

took judicial notice of the entire superior court record and 

admitted into evidence several documents, including a probation 

5 The California Supreme Court is currently considering 

whether “superior courts [may] consider the record of conviction 

in determining whether a defendant has made a prima facie 

showing of eligibility for relief under . . . section 1170.95, 

subdivision (c).” (People v. Lewis, review granted, S260598 at 

p. *1.) 
12

report which contained information regarding a prior juvenile 

conviction suffered by the defendant. (Id. at p. 1093.) The 

defense objected on the grounds that the probation report 

contained inadmissible hearsay. (Id. at p. 1095.) 

On appeal, the court concluded the probation report was 

admissible. (Sledge, supra, 7 Cal.App.5th at p. 1096.) It 

reasoned, “[a]n eligibility hearing is a type of sentencing 

proceeding. Nothing in Proposition 47 suggests the applicable 

rules of evidence are any different than those which apply to 

other types of sentencing proceedings. Accordingly, limited use of 

hearsay such as that found in probation reports is permitted, 

provided there is a substantial basis for believing the hearsay 

information is reliable. [Citations.]” (Id. at p. 1095.) The court 

found the report to be reliable because: (1) it had been prepared 

by probation officers performing their official duties, relying in 

part on information obtained from official court records prepared 

by clerks also performing their regular duties (Evid. Code, 

§ 664);6 (2) it was used by both parties without objection 

throughout the case; and (3) it contained conclusions supported 

by other facts before the court. (Sledge, supra, at p. 1097.)

In Hall, supra, 39 Cal.App.5th 831, the defendant filed an

application for relief pursuant to Proposition 64, which reduced 

or eliminated penalties for marijuana offenses. The defendant 

argued the trial court erroneously considered “ ‘unsworn hearsay 

in a police and probation report’ ” to deny his application. (Id. at 

6 Evidence Code section 664 provides: “It is presumed that 

official duty has been regularly performed. This presumption 

does not apply on an issue as to the lawfulness of an arrest if it is 

found or otherwise established that the arrest was made without 

a warrant.”
13

p. 836.) The Court of Appeal presumed the probation report, 

which was based on a criminologist report, to be reliable 

pursuant to the official duty presumption. (Evid. Code, § 664.) 

The court reasoned, “The trial courts’ ability to consider reliable 

hearsay in probation reports is necessary to assure the fair and 

efficient implementation of Proposition 64. In many cases the 

probation report will be the only document in the court file 

setting forth the facts underlying the marijuana offense to which 

the Proposition 64 petitioner pleaded guilty. If reliable hearsay 

information in the probation report were inadmissible, the People 

would have to subpoena the law enforcement personnel who had 

provided the information to the probation officer. Because of the 

passage of time, the personnel may not be available or even 

identifiable, such as the unnamed criminalist who in 1996 

analyzed and weighed the marijuana in the present case.”

(Hall, supra, at p. 840.) 

We are persuaded by Sledge and Hall that the trial court 

may rely on hearsay statements in a probation report in a section 

1170.95 eligibility hearing because there is a substantial basis for 

believing the hearsay information is reliable. Here, there are 

three layers of hearsay in the probation report at issue: the 

probation report itself, the police report referenced in the 

probation report, and Reynoso’s statements to the police. All of 

the hearsay statements fall within an exception. As explained in 

Sledge and Hall, we may presume the probation report and the 

underlying arrest report are reliable pursuant to the official duty 

presumption. (Evid. Code, § 664; see also Coe v. City of San 

Diego (2016) 3 Cal.App.5th 772, 786–788 [police reports are 

admissible under the official records exception].) 
14

Reynoso’s confession itself is admissible as a party 

admission. (Evid. Code, § 1220; 1 Witkin, Cal. Evidence (5th ed. 

2020) Hearsay § 52 [confessions and admissions of defendant are 

within long-established exceptions to the hearsay rule; cases 

cited within].) Reynoso contends his confession was coerced and 

thus unreliable because he was 16 years old at the time of the 

interrogation and neither his parents nor counsel were present.

Neither of these circumstances automatically amounts to 

coercion. (See People v. Lessie (2010) 47 Cal.4th 1152, 1169–1170 

[16-year-old defendant’s confession to murder admissible despite 

violation of statute requiring officers to allow minors to make 

phone calls within one hour of confinement and officers’ 

continued questioning]; section 625.6, subd. (a) [requiring legal 

counsel be provided for a custodial interrogation of any youths 

aged 15 or younger]. At this stage of the proceedings, Reynoso 

had the burden to show a prima facie case of entitlement to relief. 

He has failed to do so.

Additionally, just as in Sledge, the probation report was 

used without objection and it contained conclusions supported by 

other facts before the court. In particular, Reynoso’s own plea 

and statements to the parole board corroborated his confession in 

the probation report. Although the trial court did not expressly 

rely on the probation report when denying Reynoso’s petition, the 

statements contained in it are sufficient to affirm the trial court’s 

conclusion that he is ineligible for relief as a matter of law 

because he was the actual killer. “ ‘ “[A] ruling or decision, itself 

correct in law, will not be disturbed on appeal merely because 

given for a wrong reason. If right upon any theory of the law 

applicable to the case, it must be sustained regardless of the 

considerations which may have moved the trial court to its 
15

conclusion.” [Citation.]’ (D’Amico v. Board of Medical Examiners

(1974) 11 Cal.3d 1, 19.)” (People v. Zapien (1993) 4 Cal.4th 929, 

976; People v. Smithey (1999) 20 Cal.4th 936, 971–972.)

People v. Burnes (2015) 242 Cal.App.4th 1452, 1460 

(Burnes), relied upon by Reynoso, does not require we reach a 

contrary conclusion. Indeed, it is consistent with Sledge and 

Hall. In Burnes, the court similarly held “the trial court may 

consider only relevant, reliable, admissible portions of the record 

of conviction when determining whether a defendant is eligible 

for Proposition 36 resentencing.” (Burnes, supra, at p. 1460.) 

In contrast to Sledge and Hall, however, the court found a 

postconviction probation report to be unreliable because “the 

People never attempted to show that the probation report was 

admissible under an exception to the hearsay rule” despite the 

defendant’s motion to strike the probation report on that ground. 

(Burnes, supra, at p. 1459.) The court also found it impossible to 

conclude the probation report reliably described the 

circumstances of the defendant’s offenses. (Ibid.)

Burnes is distinguishable because Reynoso did not move to 

strike or object to the probation report. Thus, the People were 

not given the opportunity to show the probation report was 

admissible under an exception to the hearsay rule or otherwise 

reliable. Further, the probation report was the only source relied 

upon by the trial court in Burnes to relay the circumstances of 

the defendant’s offenses. Here, the probation report relates a 

confession of guilt, which is corroborated by Reynoso’s plea and 

statements in the parole board report. In the absence of a 

persuasive argument that the probation report is unreliable and 

inadmissible, we conclude the trial court could have properly 

relied on the probation report.
16

We likewise reject Reynoso’s reliance on People v. Gallardo

(2017) 4 Cal.5th 120 (Gallardo) and People v. Reed (1996) 13 

Cal.4th 217 (Reed) to argue probation reports are categorically 

excluded from the record of conviction and may never be 

considered to determine eligibility under section 1170.95. 

Neither of those cases addressed eligibility hearings under a 

postconviction resentencing scheme. In both those cases, the 

strict application of the hearsay rule was required because the 

defendant was being tried on an allegation of a prior serious 

felony sentence enhancement. (Gallardo, supra, 4 Cal.5th at 

p. 125; Reed, supra, 13 Cal.4th at p. 221.) Here, Reynoso is not 

facing a criminal prosecution. As discussed above, the strict 

requirements of hearsay do not apply to this category of 

sentencing proceedings. (Hall, supra, 39 Cal.App.5th at p. 838.) 

Cases have instead held a trial court may consider the 

record of conviction and “its own file” in evaluating a prima facie 

showing of eligibility pursuant to section 1170.95. (Lewis, supra, 

43 Cal.App.5th at p. 1138; People v. Drayton (2020) 47 

Cal.App.5th 965.) A probation report is part of the court’s own 

file and may be considered in an eligibility hearing if there is a 

substantial basis for believing the hearsay information is reliable.

(Sledge, supra, 7 Cal.App.5th at p. 1095.)

Here, the probation report demonstrates Reynoso was 

ineligible for relief as a matter of law because he was the actual 

killer. Reynoso’s admission that he shot the victim in the back 

demonstrates that he could be convicted for murder 

notwithstanding the changes under SB 1437. 
17

DISPOSITION

The order is affirmed.

BIGELOW, P. J.

We concur:

GRIMES, J.

WILEY, J.