Filed 6/30/22 P. v. Keaton CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTONIO KEATON,

Defendant and Appellant.

 B311716

 (Los Angeles County

 Super. Ct. No. A373350)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kerry R. Bensinger, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott Taryle, Heidi Salerno and Daniel C. 

Chung, Deputy Attorneys General, for Plaintiff and Respondent.

——————————
2

Antonio Keaton appeals from the denial of his petition for 

resentencing pursuant to Penal Code1 section 1170.95. After an 

evidentiary hearing, the superior court denied Keaton’s petition,

finding that the People had proved beyond a reasonable doubt 

that Keaton was the actual killer. The superior court also found, 

alternatively and independently, that the People proved beyond a 

reasonable doubt that Keaton was a major participant who acted

with reckless indifference to human life. Keaton timely appealed.

On appeal, Keaton makes numerous contentions that the 

superior court erred in denying his petition because the court 

relied on inadmissible evidence. His main contention asserts 

that Sixth Amendment rights attach to a section 1170.95 

evidentiary hearing. In related contentions, Keaton specifically 

challenges the admission of the eyewitness testimony, autopsy 

report, analyzed evidence report, lab report, fingerprint evidence, 

police report narrative, and probation report because they were 

admitted in violation of Crawford and Melendez-Diaz.

2 In 

another related contention, Keaton challenges the admission of 

the preliminary hearing transcripts on the basis that he did not 

have an opportunity to cross-examine on the issues of major 

participant and reckless indifference to human life with an 

interest and motive similar to that at trial. In supplemental 

briefing, Keaton asserts his contentions of error are further 

supported by recent legislative changes made by Senate Bill 

No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2; Senate 

1 All further statutory references are to the Penal Code

unless otherwise indicated.

2 Crawford v. Washington (2004) 541 U.S. 36 and MelendezDiaz v. Massachusetts (2009) 557 U.S. 305.
3

Bill 775), clarifying the scope of admissible evidence at a section

1170.95 hearing. Keaton also argues that the evidence was 

insufficient to support the superior court’s finding of his 

ineligibility for section 1170.95 relief.

As we discuss, we reject Keaton’s main and related

contentions that the Sixth Amendment applies at a

section 1170.95 evidentiary hearing, we find that Keaton has 

forfeited his argument regarding the preliminary hearing 

transcripts, and we find that there is sufficient evidence to 

support the superior court’s finding that Keaton is ineligible for 

relief pursuant to section 1170.95. Therefore, we do not reach the 

claims of evidentiary error as they relate to Senate Bill 775. 

Accordingly, we affirm the superior court’s judgment denying 

Keaton’s petition.

BACKGROUND

I. Keaton’s plea

In 1983, Keaton pleaded guilty to a single count of first 

degree murder and was sentenced to 25 years to life. As part of 

the plea agreement, a robbery-murder special circumstances 

allegation was dismissed. The murder charge arose from a 1981 

residential burglary during which 70-year-old Lawrence Mason 

was robbed and severely beaten. Mason was in a coma for four

months before succumbing to his injuries.

II. The section 1170.95 petition and proceedings

About 36 years later, in 2019, Keaton filed a petition for 

resentencing pursuant to section 1170.95. In support of his 

petition, Keaton filed several briefs, attaching, as relevant here, a 

partial transcript of the August 1981 preliminary hearing 
4

transcript3 containing testimony of Detective Addison Arce and 

Officer Michael Albanese, the December 1981 preliminary 

hearing transcript containing the testimony of Manuel 

Hernandez, a medical doctor, and Mary Mason4, the autopsy 

report, and declarations from Keaton.

The superior court held an evidentiary hearing over several 

dates from November 2020 to March 2021. At the evidentiary 

hearing, the following live witnesses testified: Keaton, retired 

Officer Burton Franks, retired Detective Arce, Detective John 

Lamberti, and fingerprint examiner Jerome Frietz. In addition 

to live testimony, the People submitted 33 exhibits and the 

defense submitted seven exhibits. The superior court reserved 

ruling on the evidence until after the hearing.

III. The evidentiary hearing

The following is a summary of the evidence presented at 

Keaton’s evidentiary hearing.

5

A. The robbery-murder

In 1981, Mason was robbed, his home was burglarized, and 

he was critically injured, dying from multiple blunt force injuries 

3 There were two preliminary hearings conducted below. 

At the first hearing, Keaton was held to answer on attempted 

murder. After Mason died, Keaton was held to answer on 

murder.

4 Mary Mason was Lawrence Mason’s wife.

5 This factual summary is based on the superior court’s 

memorandum of decision issued March 25, 2021 and our 

independent review of the record. 
5

four months later. Keaton, Hernandez, and Steven Green were 

charged with the crimes.

1. Handwritten notes of eyewitness 

observations

Three neighbors witnessed the initial events: A.M., A.B., 

and M.R. Detective Arce interviewed the witnesses in the hours 

after the crimes, took contemporaneous notes, and preserved his 

handwritten notes. The evidence gathered at the section 1170.95 

hearing regarding these neighbors’ observations was based on 

these notes.

A.M. was entering his apartment when he heard loud 

voices coming from an adjacent apartment. He looked in that 

direction and saw a Black male, wearing a dirty tan cap, a grey or 

blue long sleeve shirt, and blue denim pants. He also saw a 

Latino male. The two men were removing louvered windowpanes 

from the apartment. A.M. asked what they were doing. The 

Black male responded that his brother was inside, and they 

wanted to talk to him. A.M. remarked that their way of entering 

was unusual, to which the Black male responded again that his 

brother was in there, and that he was probably sleeping. A.M.

returned to his apartment, and the Black male directed an 

epithet at him. A.M. continued to watch the men from his 

apartment. He saw another man approach the other two men. 

The third man was a Black male, taller and heavier than the 

other Black male. This taller, heavier Black male pushed the 

other two men aside and crawled through the apartment 

window.6 A.M. then called the police. A.M. then saw the Latino 

6 Keaton testified that Green, who is a Black male, about

6 feet 10 inches tall, “big,” and “husky.”
6

male enter the apartment through the window. The taller, 

heavier Black male left the apartment, through the window, after 

three minutes, and ran off. The shorter Black male entered the 

apartment through the window. The Latino male also exited the 

apartment after three minutes. The Latino male acted as if he 

were the lookout. A.M. never saw the shorter Black male leave 

the apartment.

A.B. was on his apartment porch when he looked across the 

street and saw a man removing the louvered windowpanes from 

an apartment. A.B. described the man as Black, wearing a blue 

cap, and no shirt. He saw a Latino man standing by. Another 

man approached, who was Black, taller than the other Black 

male, and thin. The shorter Black male pushed his way into the 

apartment through the window. The other two men entered the 

apartment, stayed inside a few minutes, and left. When the 

police arrived, A.B. told them the shorter Black man was still 

inside the apartment.

M.R. saw two men removing windowpanes from the 

apartment beneath her. One man was Latino. The other man 

was Black, wearing black pants and a navy blue shirt. The Black 

man was taking windowpanes out from the window and the 

Latino man was walking back and forth. The Black man entered 

the apartment through the window. She heard a scream and a 

crash from within the apartment. The Latino man left. She did 

not see anyone else.

2. Officer Franks’s live testimony

At the section 1170.95 hearing, Officer Franks testified 

that he arrived at Mason’s apartment in response to a call of a 
7

burglary in progress.7 When the officer was approaching the 

front door, he saw the door open and a Black male inside. The 

two men looked at each other and the Black male slammed the 

door shut. Officer Franks heard the lock engage and was unable 

to open the door. SWAT team officers set up a perimeter around 

the apartment to prevent anyone inside from exiting.

3. Preliminary hearing transcript: Officer 

Albanese

Officer Albanese testified at the first preliminary hearing 

that for about three hours, a negotiating team tried to contact the 

intruder by telephone and by bullhorn, but no one responded. 

About three hours after police arrived, Officer Albanese entered 

the apartment. When he got inside, the apartment looked 

ransacked. Mason was lying on the bedroom floor, shaking, 

bleeding and nonresponsive. Keaton was “lying unconscious, or 

appeared to be unconscious, next to the victim.” Officer Albanese 

then handcuffed Keaton, who appeared to regain consciousness.

B. Keaton’s booking and interview with Detective

Arce

Detective Arce also testified at the section 1170.95 hearing 

that he interviewed Keaton at the station and took notes. 

Detective Arce testified regarding these statements in part from 

memory. In addition, the superior court found that Detective 

Arce laid the foundation for admission of his handwritten notes of 

7 Officer Franks testified that he still recalled this case 

after almost 40 years because it was so unusual. 
8

that interview pursuant to Evidence Code section 1237, past 

recollection recorded.

1. Detective Arce’s present recollection

Detective Arce testified from memory that Keaton said he 

met Hernandez and Green at a burger stand. They were 

drinking whiskey together. The three of them drove around in 

Green’s car. At one point, Green got out of the car and took 

someone’s purse. Green also bought marijuana cigarettes and 

the three continued to drink and smoke. Green asked if Keaton 

wanted to make some money, and Keaton said he wanted to 

work. Hernandez also asked Keaton, “You want to make money 

real quick?” They drove over to an apartment. Green went to the 

door and knocked on the door. Green hit the resident and then 

entered the apartment. Keaton was forced into the apartment.

Detective Arce also testified from memory that he went into 

the apartment shortly after the SWAT team entered, and that 

Keaton and Mason were alone together in the apartment for 

three hours.

Detective Arce was present during the prebooking search of 

Keaton at which two gold metal chains and one ring were found 

in Keaton’s underwear. Later, Keaton told Detective Arce he had 

been tied up with a four-foot rope.

2. Detective Arce’s past recollection 

recorded

Keaton told Detective Arce he was at a burger stand when 

he met two men: a l7 to 18-year-old Latino man named Manuel 

Lupes and a 23 to 25-year-old Black man named Slim.8 They 

8 Keaton referred to Green as “Slim” and Hernandez as 

“Manuel.”
9

offered to help Keaton find a job. Keaton had never seen these

two men before. After drinking whiskey together, all three men 

got into a car and drove around for 30 minutes. During this time, 

Slim took someone’s purse. They returned to the burger stand

where they smoked marijuana and continued drinking. They got 

back in the car and drove around Hollywood. According to 

Keaton, at some point, Manuel asked him, “You want to make 

money, real quick?” They drove to an apartment. Slim went to 

the apartment and knocked on the door. A person answered, 

they spoke, and Slim went inside. Manuel pushed Keaton inside 

the apartment. A lady was watching. Keaton said he was going 

to leave, but Slim and Manuel told him to sit down. Slim started 

hitting the old man. Slim and Manuel were both throwing 

punches at the old man. Keaton started to leave but Slim started

hitting Keaton. Slim grabbed Keaton around the neck and threw 

him to the floor. Slim and Manuel took Keaton into a room and 

started punching him. Keaton saw that the old man was lying 

down with his eyes shut. Keaton said Slim and Manuel told 

Keaton to lie down on the bed. They tied Keaton’s hands with a 

four-foot rope. They told Keaton not to say anything or they

would kill him. Slim and Manuel left. Keaton rolled off the bed 

onto the floor. He rubbed his hands together and got free. 

Keaton said he tried to talk to the old man. As Keaton was about 

to leave, he fell down. Keaton said he was yelling for help. 

Keaton did not know if Slim or Manuel took anything. 

Keaton further explained that when the three men

approached the apartment, Slim grabbed Keaton and told him to 

take out the windows. Keaton said, “No, I don’t want to.” Slim 

said they would kill Keaton if he did not remove the windows. 

They pushed Keaton through the window. Keaton saw Manuel
10

and Slim grab the old man. They asked the man for money and 

started hitting him. Keaton also told Detective Arce he had been 

hit on the head. Detective Arce felt some lumps on the top of 

Keaton’s head, but Keaton did not request medical attention.

Keaton also said that Manuel had a bag of jewelry, grabbed 

Keaton’s hand, and put a couple of necklaces in it. Keaton put 

the necklaces in his pants. At another point, Keaton said he did 

not take the jewelry, and he did not know how the jewelry got 

into his pants. 

C. Forensic evidence

At the section 1170.95 hearing, Detective Arce testified he 

arrived at the scene after Keaton was arrested.

9 Detective Arce 

observed blood on the sofa, in the living room, on the bed in the 

bedroom, and on the hallway floor between the bedroom and the 

bathroom. He also observed “blood splatters throughout the 

house.” Window panels were missing from a window near the 

kitchen and a window in the bathroom. The window panels were 

not shattered. He determined the burglar entered the apartment 

through a louvered window near the kitchen area. There was no 

rope found.

In preparation for the section 1170.95 hearing, Frietz, an 

LAPD forensic print specialist, compared latent fingerprints that

were recovered from Mason’s bathroom area to Keaton’s palm 

print and Keaton’s fingerprints from the automated fingerprint

identification system. At the hearing, Frietz positively identified 

eight of the latent fingerprints from Mason’s bathroom area as 

being Keaton’s fingerprints.

9 Detective Arce also testified that he still recalled the case.
11

D. Hernandez’s testimony at the preliminary

hearing

The second preliminary hearing transcript contained 

Hernandez’s testimony. At that hearing, Hernandez testified 

that on the day of the crimes, he met Keaton at the burger stand. 

Hernandez had seen Keaton at the restaurant before. Keaton 

was drunk and asked Hernandez if he was interested in robbing 

a house. Hernandez agreed and the two of them walked a couple 

of blocks to a nearby house. When they arrived, the front wooden 

door was open, but the outside screen door was closed and locked. 

Keaton used a pen to tear the screen door. While Keaton was

tearing the screen, an older White man closed the inside wooden 

door and said, “Go away.” Hernandez and Keaton left. Sometime 

later, Hernandez and Keaton returned to the house. As they 

were standing in front of the house, they ran into Green, a friend 

of Hernandez’s. Green and Keaton talked about going into the 

house; then Keaton approached the house and knocked on the 

door. The older man said, “Go away or I am going to call the 

police.”

Instead of going away, Keaton went around to the window. 

Using his hands, Keaton took out some window panels and broke 

others, leaving blood on his hands. Keaton went inside the house 

through the window. While Keaton was inside the house, 

Hernandez paced outside the house. When Hernandez got closer 

to Mason’s front door, he heard hitting noises. He heard the 

older man say, “Help me! Help me!” and Keaton said, “Shut up.” 

Then, Green went inside the house through the window. After 

Green was inside for three minutes, Green opened the front door

and took off running. Hernandez stood by the open front door for 

about three minutes. He saw Keaton kick the man in the face,
12

hit the man in the face with his fist, and ask the man for money. 

Keaton gave Hernandez a watch and asked Hernandez to help 

him find money. Keaton approached the man again, hit him on 

the face, and said, “[T]ell me where the money is or I am going to 

kill you.” At that point, Hernandez left with the watch. 

Hernandez maintained that he stood by Mason’s front door 

during the crime and never went inside the house.

During cross-examination, Hernandez admitted that he

gave a statement to the police, lied about his age, and lied about 

the number of watches he took. Hernandez told the police he was 

16 years old and took two watches when in reality he was 14 

years old and took one watch. Hernandez testified that he lied

about the watches because he believed that he had to talk to the 

police, or some harm would come to him. An officer told him that 

if he did not admit to taking and selling two watches, as Green 

had told the officer, Hernandez “was going to get into more

problems.”

E. Mary Mason’s testimony at the preliminary

hearing

The second preliminary hearing transcript also contained 

Mary Mason’s testimony. At that hearing, Ms. Mason testified 

that her husband had hip surgery about a year before the crime, 

that he was able to get around their apartment by holding on to 

things, and sometimes used a walker. When she eventually went 

inside her home after the crime, she discovered two of her 

husband’s watches, chains, and a ring were missing. She

identified the chains and ring recovered form Keaton’s underwear 

as her husband’s jewelry. She also discovered “a hat with a little,

like a golf thing and a furry thing” in her garbage disposal. 
13

F. Keaton’s probation report

In 1983, a probation officer interviewed Keaton in

preparation for sentencing and prepared a written report. 

Keaton told the probation officer that he met Green at the 

burger stand on the day of his arrest. He also met Hernandez for 

the first time that day. On the day of the incident, Keaton was 

walking down the street when Hernandez called his name.

Keaton and Hernandez started eating and talking. Green came 

over and said, “[L]et’s go to work.” They got into a car with 

Green. Previously they had taken some PCP. During the drive, 

Green got out of the car and returned with a purse. Then 

Keaton, Green, and Hernandez arrived at a house, and all three 

exited the car. Green put a knife to Keaton’s neck, said, “[B]e 

cool,” and ordered Keaton to remove some windows from the 

house. Keaton asked if he could leave, but Green refused. Then 

Keaton and Green entered the house through the window. Green

opened the front door and let Hernandez in. Green started 

hitting the old man. Keaton tried to leave, but Green grabbed 

him and struck him. The next thing Keaton knew was that “the 

police came in.”

G. Keaton’s statement to the parole board

In 2016, Keaton appeared before the parole board and gave

a statement about the crime.

At that hearing, Keaton explained that he met Hernandez 

at the burger stand a couple of days before the crime. Hernandez 

offered to help Keaton find work. A couple days later, on the day 

of the crime, Keaton met Hernandez at the burger stand.

Hernandez said, “Hey, let’s go to my brother’s house.” The two of 

them walked to an apartment complex. They were not under the 

influence of any drugs or alcohol. When they arrived, Hernandez 
14

told Keaton that his brother was not home and asked for Keaton’s 

help getting inside. Keaton went over to a window and as he was 

inspecting it, a neighbor looked at him. In response, Keaton told 

the neighbor that Hernandez’s brother lived there, and he was 

just helping Hernandez get in. 

Keaton then proceeded to take the louvered windows out.

He crawled through the window near the dining room and got 

inside the apartment. As he walked towards the front door to let 

Hernandez in, an elderly man said, “What are you doing here?

Get out of here.” Then Keaton opened the front door and tried to 

leave, but Hernandez and Green, whom he had never seen before, 

were at the front door, so Keaton tried to exit through the

window, but someone grabbed him from the back and hit him on 

the head, knocking him unconscious. He woke up in a police car.

He did not know how the jewelry got into his underwear.

H. Keaton’s declaration

Keaton submitted a declaration for the section 1170.95 

hearing that included the same facts that he provided at the 

parole board hearing.

I. Keaton’s testimony at the evidentiary hearing

Keaton testified at his section 1170.95 evidentiary hearing.

On direct examination, he testified to the same facts he provided 

at the parole board hearing. During cross-examination, when 

confronted with his statements to Detective Arce in 1981, he 

denied making nearly all of those statements.

He stated that when he was arrested and taken to the

station, he did not have any injuries or blood on him. He also 

discussed what clothing he was wearing before and after the 

crime. 
15

J. The superior court’s evidentiary rulings

The superior court admitted the following evidence without 

objection: transcripts of both preliminary hearings, the 

transcript of Keaton’s plea, Keaton’s declaration, and 

photographs and diagrams of the crime scene.

The superior court admitted the following evidence over the 

defense objection:

10 a partial transcript of parole board 

suitability hearing, autopsy report, portions of the probation 

report, portions of the police report narrative, Detective Arce’s 

handwritten notes of a recorded interview with Keaton, Detective

Arce’s handwritten notes of interviews with witnesses A.M., 

M.R., and A.B., DOJ live scan, Keaton’s rap sheet, analyzed 

evidence report, booking form, property report, laboratory report, 

latent fingerprint cards, and Keaton’s palm prints.

K. The superior court’s ruling on the petition

The superior court denied Keaton’s petition in a 33-page 

memorandum of decision, finding that the prosecution 

established beyond a reasonable doubt each element of first 

degree murder pursuant to the felony-murder rule under the 

newly amended sections 188 and 189. The superior court also 

found, on an alternative and independent basis, that the 

10 The superior court analyzed the admissibility of the 

contested evidence based on its interpretation of the meaning of 

“new or additional evidence” in former section 1170.95, 

subdivision (d)(3). The superior court relied on People v. 

Williams (2020) 57 Cal.App.5th 652 and People v. Hall (2019) 

39 Cal.App.5th 831, using the analytical framework of “reliable 

hearsay” to determine the admissibility of the evidence. Given 

our conclusion in this case, we do not reach whether Williams

and Hall survive the Legislature’s recent amendments to 

section 1170.95, subdivision (d)(3).
16

prosecution had proved beyond a reasonable doubt that Keaton 

was a major participant in the underlying felony and acted with 

reckless indifference to human life.

In denying Keaton’s petition for relief, the superior court 

found Hernandez’s preliminary hearing testimony “far more 

credible” than Keaton’s and “sufficiently credible to carry the 

People’s burden of proof.” The superior court found that Keaton 

was not a credible witness, observing that Keaton’s various 

statements were inconsistent and, in some respects, 

implausible.

11 

The superior court found that the evidence established 

beyond a reasonable doubt that Keaton was the actual killer. In 

coming to this conclusion, the superior court relied on 

Hernandez’s testimony, which was admitted through the 

preliminary hearing transcript. The superior court noted that 

Hernandez’s testimony was corroborated by the eyewitness 

testimony, the testimony of Detective Arce, and the fingerprint 

evidence.

As an alternative and independent basis for denying the 

petition, the superior court conducted an analysis pursuant to 

People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 

63 Cal.4th 522 on the issue of whether Keaton was a major 

participant in the underlying felony and acted with reckless 

indifference to human life. In conducting the analysis, the 

superior court reasoned that “even if [it] were to discredit 

Hernandez’s testimony entirely, stripping away his direct 

11 The superior court found Keaton’s claim that he did not 

know the two gold chains and the ring were in his underwear 

incompatible with the physical reality of wearing underwear.
17

testimony that the burglary/robbery was Keaton’s idea and that 

Keaton was the actual killer, and credit Keaton’s testimony that 

he did not strike Mason, the People have proved beyond a 

reasonable doubt that Keaton was a major participant . . . and 

acted with reckless indifference to human life.”

DISCUSSION

Keaton makes numerous contentions on appeal that the 

superior court erred in denying his petition because the court 

relied on inadmissible evidence. Keaton also contends that 

insufficient evidence supports the superior court’s finding that he 

was a major participant who acted with reckless indifference to 

human life. 12

12 Keaton also contends that the parole transcript and 

probation reports were erroneously admitted because they are

not part of the record of conviction. The People contend that this 

argument is flawed because even under former section 1170.95, 

subdivision (d)(3), the prosecutor and the petitioner were 

permitted to rely on “the record of conviction or offer new or 

additional evidence to meet their respective burdens.” We agree. 

To the extent that Keaton can be understood to claim that it was 

error to consider the parole hearing transcript and probation 

reports under the newly amended language of Senate Bill 775, we 

do not reach that contention as we explain.

Keaton further claims that his due process and equal 

protection rights were violated. While Keaton offers us a brief 

explanation of the concept of equal protection, he provides little 

to no analysis of these claims. These claims fail for lack of 

adequate argument and authority. (See Imagistics Internat., Inc.

v. Department of General Services (2007) 150 Cal.App.4th 581, 

593 [claim that administrative remedy violated federal 
18

I. Overview of section 1170.95

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Stats. 2018, ch. 1015, § 1; Senate Bill 1437) amended 

murder liability under the felony-murder rule and natural and 

probable consequences doctrine. (People v. Lewis (2021) 11 

Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842–

843.) As relevant here, Senate Bill 1437 amended the felonymurder rule by adding section 189, subdivision (e), which now 

provides that a participant in the perpetration of qualifying 

felonies is liable for felony murder only if the person: (1) was the 

actual killer; (2) was not the actual killer but, with the intent to 

kill, acted as a direct aider and abettor; or (3) was a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in section 190.2, 

subdivision (d). (Gentile, at p. 842.) 

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a nowinvalid felony-murder theory may petition the superior court to 

vacate the murder conviction and resentence the petitioner on 

any remaining counts. (People v. Lewis, supra, 11 Cal.5th at 

p. 959; People v. Gentile, supra, 10 Cal.5th at p. 843.) 

As relevant here, Senate Bill 775, which took effect on 

January 1, 2022, amended section 1170.95 to address the scope of 

admissible evidence at the evidentiary hearing. As amended, 

section 1170.95, subdivision (d)(3) provides, in relevant part: 

“The admission of evidence in the hearing shall be governed by 

the Evidence Code, except that the court may consider evidence 

supremacy clause failed for lack of adequate argument and 

authority].)
19

previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court 

may also consider the procedural history of the case recited in 

any prior appellate opinion. However, hearsay evidence that was 

admitted in a preliminary hearing pursuant to 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. The prosecutor and the petitioner may also offer 

new or additional evidence to meet their respective burdens.”

II. The Sixth Amendment right to confrontation does

not attach to a section 1170.95 evidentiary hearing

Keaton contends that he is entitled to the same rights as a 

defendant facing a new criminal prosecution. Because he was 

denied those rights, he asserts the evidence against him was 

admitted in violation of the Sixth Amendment. The People assert 

that the retroactive relief afforded by section 1170.95 is an act of 

lenity by the Legislature that is not analogous to a criminal trial 

and does not implicate Keaton’s constitutional trial rights. We 

agree with the People.

The Sixth Amendment of the United States Constitution 

guarantees that “[i]n all criminal prosecutions,” the accused has 

the right “to be confronted with the witnesses against him.” The 

confrontation clause therefore bars the “admission of testimonial 

statements of a witness who did not appear at trial unless he was 

unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.” (Crawford v. Washington,

supra, 541 U.S. at pp. 53–54; see People v. Sanchez (2016) 63 

Cal.4th 665, 680.)
20

While the “Sixth Amendment applies ‘[i]n all criminal 

prosecutions[,]’ [Citation.] [a] petition under section 1170.95 is 

not a criminal prosecution.” (People v. Silva (2021) 

72 Cal.App.5th 505, 520.) Thus, appellate courts consistently 

have held that the “ ‘retroactive relief provided by section 1170.95 

reflects an act of lenity by the Legislature “that does not 

implicate defendants’ Sixth Amendment rights.” ’ ” (Ibid.; accord, 

e.g., People v. James (2021) 63 Cal.App.5th 604, 610 [convicted 

person litigating § 1170.95 petition does not enjoy rights that 

Sixth Amendment guarantees to criminal defendants who have 

not yet suffered final conviction]; People v. Perez (2020) 

54 Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254 

[Senate Bill 1437 not subject to Sixth Amendment analysis]; 

People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [relief 

afforded by Senate Bill 1437 “constituted an act of lenity that 

does not implicate defendants’ Sixth Amendment rights”].) 

Although Senate Bill 775 amended section 1170.95, 

subdivision (d)(3) to clarify the scope of evidence admissible at an 

evidentiary hearing, in so clarifying, it did not provide the 

petitioner with the right to confront witnesses at that hearing. 

There is nothing in the language of the amended statute to 

suggest that the Legislature intended for the admission of 

evidence at the hearing to be subject to the confrontation clause.

Both Crawford and Melendez-Diaz concerned the admission 

of testimonial hearsay against a defendant at a criminal trial.

(Crawford v. Washington, supra, 541 U.S. at pp. 53–54

[admission of testimonial statements of witness not appearing at 

trial violates defendant's confrontation rights unless witness is 

unavailable to testify and defendant had prior opportunity for 

cross-examination]; Melendez-Diaz v. Massachusetts, supra,
21

557 U.S. at pp. 310–311 [extending Crawford’s holding to forensic 

reports].) Section 1170.95 is an optional postconviction 

resentencing procedure. “A person convicted of [enumerated

qualifying offenses] may file a petition.” (§ 1170.95, subd. (a), 

italics added.)

Accordingly, the Sixth Amendment right of confrontation 

does not apply at a section 1170.95 evidentiary hearing and the

evidence admitted against Keaton was not admitted in violation 

of the holdings of Crawford and Melendez-Diaz.

13

III. Keaton has forfeited any objection to the admission

of the preliminary hearing transcripts

In a related contention, Keaton argues that the preliminary 

hearing transcripts should not have been considered by the 

superior court because Keaton did not have a similar motive and 

13 Keaton also argues that the statements he made at the 

parole board hearing should not have been admitted against him 

because such admission runs contrary to the right against selfincrimination. He cites to People v. Coleman (1975) 13 Cal.3d 

867, 874–878, in which our Supreme Court held that a 

defendant’s testimony at a probation violation hearing is 

inadmissible as substantive evidence in a subsequent criminal 

trial on the criminal charges. As we have explained, a hearing 

pursuant to section 1170.95 is not a criminal trial. As such, it 

does not implicate a defendant’s constitutional rights under the 

Fifth Amendment. (See People v. Myles (2021) 69 Cal.App.5th 

688, 705–706; People v. Anderson (2022) 78 Cal.App.5th 81.)

We also reject Keaton’s claim that he is entitled to a jury 

determination on the issues of major participant and reckless 

indifference to human life. There is nothing in the language of 

the amended statute that remotely suggests that the Legislature 

intended that factfinding be determined by a jury at a

section 1170.95 hearing.
22

opportunity as at trial to cross-examine the witnesses, because 

the elements of major participant and reckless indifference to 

human life were not relevant to the magistrate’s decision.

Keaton argues that any objection to the admission of the 

preliminary hearing transcripts below would have been futile. 

The People contend that Keaton has forfeited this claim because 

not only did Keaton fail to object below, he was the one who 

moved the preliminary hearing transcripts into evidence. We 

agree with the People.

A party is not permitted to challenge an evidentiary ruling

based upon an argument never presented to the superior court. 

(People v. Partida (2005) 37 Cal.4th 428, 435–438.) 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).)

At the evidentiary hearing, Keaton moved the first and 

second preliminary hearing transcripts into evidence which the 

superior court admitted. In fact, they were labeled as defense 

exhibits. After the evidentiary hearing, Keaton submitted 

briefing on his evidentiary objections, which did not include 

objections to the preliminary hearing transcripts.

Keaton not only failed to object below to the preliminary 

hearing transcript, on any grounds, but importantly, he was the 

party who offered both preliminary hearing transcripts as 

evidence.

14 Accordingly, Keaton has forfeited this claim. In any 

14 There may be strategic reasons why Keaton may have 

wanted the preliminary hearing transcripts admitted. It appears 

that Keaton may have offered the preliminary hearing 
23

event, this contention is rooted in the assumption that the Sixth 

Amendment applies here, and as previously discussed, it does 

not.

IV. Substantial evidence supports the superior court’s

finding that Keaton is ineligible for relief pursuant

to section 1170.95

The People argue that even assuming the superior court 

erred in admitting the evidence at issue, any error was harmless

under People v. Watson (1956) 46 Cal.2d 818, because the 

superior court’s ruling did not require relying on any of the 

contested evidence, and substantial evidence supports the 

finding. Keaton contends that if the erroneously admitted 

evidence is set aside, the remainder is insufficient to support the 

superior court’s finding that Keaton was a major participant and 

showed reckless indifference to human life.

Assuming, arguendo, the superior court erred in admitting 

the evidence as argued by Keaton, reversal is not required unless 

it is reasonably probable Keaton would have obtained a more 

favorable outcome had the evidence been excluded. (People v. 

Watson, supra, 46 Cal.2d at p. 836.) We review the court’s 

determinations at the section 1170.95, subdivision (d)(3), 

evidentiary hearing for substantial evidence. (People v. Clements

(2022) 75 Cal.App.5th 276, 298.)

transcripts, and Hernandez’s testimony in particular, in order to 

serve as a foil to Keaton’s own testimony. In closing argument, 

Keaton, through his counsel, argued his own testimony at the 

section 1170.95 hearing was truthful and honest, whereas, in 

contrast, the cross-examination of Hernandez at the preliminary 

hearing revealed so many inconsistencies that Hernandez was 

not to be believed whatsoever.
24

A. Major participant

In determining whether a defendant is a major participant 

in an underlying felony pursuant to section 189, subdivision (e),

we look to People v. Banks, supra, 61 Cal.4th 788. Banks, at 

page 794, considered “under what circumstances an accomplice 

who lacks the intent to kill may qualify as a major participant.” 

Our Supreme Court listed various factors that should be 

considered: “What role did the defendant have in planning the 

criminal enterprise that led to one or more deaths? What role did

the defendant have in supplying or using lethal weapons? What 

awareness did the defendant have of particular dangers posed by 

the nature of the crime, weapons used, or past experience or 

conduct of the other participants? Was the defendant present at 

the scene of the killing, in a position to facilitate or prevent the 

actual murder, and did his or her own actions or inactions play a 

particular role in the death? What did the defendant do after 

lethal force was used?” (Id. at p. 803.) “No one of these 

considerations is necessary, nor is any one of them necessarily 

sufficient.” (Ibid.)

Here, considering only Keaton’s testimony at his 

section 1170.95 hearing, the live testimony of percipient 

witnesses Officer Franks and Detective Arce, including Keaton’s 

statements to Detective Arce after his arrest—evidence that has 

not been contested in this appeal—substantial evidence supports 

several of the Banks factors. First, by his own admission, Keaton 

was present at the scene and admitted to being inside. He 

removed the louvered windows from Mason’s apartment. Keaton 

testified that he tried to leave the apartment, but that he was 

knocked unconscious, and the next thing he remembered was 

being in a patrol car. However, Keaton was impeached with his
25

statements to Detective Arce. In the statement he gave to 

Detective Arce, Keaton went inside the apartment and witnessed 

the beating. Further, Officer Franks’s live testimony established 

that Keaton was present and aware inside the apartment. 

Officer Franks made eye contact with Keaton at the front door, 

after which Keaton slammed the door shut. Unconscious people 

do not slam doors. When the police finally entered the 

apartment, only Keaton and Mason were inside. Mason’s jewelry 

was found in Keaton’s underwear, which supports the conclusion 

that Keaton participated in the crimes. Once inside, Keaton 

would have immediately recognized the particular dangers of the 

crime. Not only was Mason home, but he was a frail 70-year-old 

man. After the lethal force occurred, Keaton remained inside the 

apartment for about three hours. During this time, he was not 

only a major participant, he was the only participant. He could 

have helped, but he did not. As to Keaton’s claim that he was 

tied up with a rope, Detective Arce testified that no rope was 

found at the scene. This supports the conclusion that Keaton was 

in a position to prevent the murder yet did nothing. Moreover, 

Keaton actively prevented the police officers from helping Mason. 

He closed the front door on Officer Franks, prompting Officer 

Franks to request the SWAT team. Then, for the next three 

hours, Keaton ignored the officers’ many attempts to 

communicate with him. Even after the police arrested him, he 

continued to thwart police efforts by feigning unconsciousness 

and lying about the underlying events. Although there was no 

evidence regarding Keaton’s role in planning the felony, and no 

evidence about Hernandez’s and Green’s past experiences and 

Keaton’s knowledge of those past experiences, nonetheless,
26

substantial evidence exists to support the superior court’s finding 

that Keaton was a major participant.

B. Reckless indifference to human life

In determining whether a defendant displays reckless 

indifference to human life pursuant to section 189, 

subdivision (e), we look to People v. Clark, supra, 63 Cal.4th 522. 

Reckless indifference to human life is “ ‘implicit in knowingly 

engaging in criminal activities known to carry a grave risk of 

death.’ ” (Id. at p. 616.) Recklessness has both a subjective and 

an objective component. Subjectively, the defendant must 

consciously disregard risks known to him. Objectively, 

recklessness is determined by “what ‘a law-abiding person would 

observe in the actor’s situation,’ ” that is, whether defendant’s 

conduct “ ‘involved a gross deviation from the standard of conduct 

that a law-abiding person in the actor’s situation would 

observe.’ ” (Id. at p. 617.) 

Clark listed factors to consider when determining whether 

reckless indifference existed: “Did the defendant use or know 

that a gun would be used during the felony? How many weapons 

were ultimately used? Was the defendant physically present at 

the crime? Did he or she have the opportunity to restrain the 

crime or aid the victim? What was the duration of the interaction 

between the perpetrators of the felony and the victims? What 

was the defendant’s knowledge of his or her confederate’s 

propensity for violence or likelihood of using lethal force? What 

efforts did the defendant make to minimize the risks of violence 

during the felony?” (In re Scoggins (2020) 9 Cal.5th 667, 677 

[summarizing Clark factors].) As with the major participant 

considerations, “ ‘[n]o one of [the reckless indifference] 

considerations is necessary, nor is any one of them necessarily 
27

sufficient.’ ” (People v. Clark, supra, 63 Cal.4th at p. 618.) “We 

analyze the totality of the circumstances to determine whether 

[the defendant] acted with reckless indifference to human life.”

(Scoggins, at p. 677.)

Here, again only considering Keaton’s testimony at his 

section 1170.95 hearing, his statements to Detective Arce, and 

the live testimony of percipient witnesses Officer Franks and 

Detective Arce, substantial evidence supports several of the 

Clark factors. It is true that there is no evidence that weapons 

were involved in Mason’s murder. However, Keaton was present 

at the scene and did nothing to prevent the beating. As discussed 

above, Keaton removed the louvered windows, went inside, and 

stayed inside. Once inside, Keaton witnessed Mason’s beating, 

did nothing to intervene, remained inside after Hernandez and 

Green left, and stayed inside for three hours while police were 

attempting to communicate with him. Three hours provided 

Keaton with plenty of time to appreciate Mason’s condition. For 

three hours, Keaton prevented the police from coming to Mason’s 

aid. Though Keaton claimed he was unconscious during that 

time, the testimony of Officer Franks completely contradicts that

claim, as does the jewelry found in his underwear. Officer 

Franks’s live testimony established that he made eye contact 

with Keaton at the front door, after which Keaton slammed the 

door shut. This is strong evidence that Keaton was not 

unconscious, and thus was in a position to appreciate Mason’s 

critical condition. Officer Franks would have no reason to call for 

the SWAT team if he believed the only individuals inside the 

apartment were unconscious and injured. When the police finally 

entered the apartment, only Keaton and Mason were inside. 

Thus, substantial evidence existed to support the superior court’s 
28

finding that Keaton acted with reckless indifference to human 

life.

In sum, we are satisfied that, even without considering the 

challenged evidence, substantial evidence supports the superior 

court’s finding that Keaton was a major participant who acted 

with reckless indifference to human life. Thus, Keaton has not 

met his appellate burden of showing prejudicial error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

KIM, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.