Unreported / Non-Citable
Background
A jury convicted Jose Felix Zepeda of first degree murder, kidnapping for ransom, and conspiracy to sell methamphetamine. It also found a kidnapping-murder special circumstance and other enhancements. The trial court imposed consecutive life-without-parole terms on the murder and kidnapping counts, plus consecutive terms on the conspiracy count and its enhancement. Another appellate panel affirmed the judgment in 2016. The prosecutor had acknowledged that Zepeda was not the shooter, pursuing felony-murder and aiding-and-abetting or conspiracy theories instead.
Zepeda petitioned for resentencing in 2019 under former section 1170.95, now section 1172.6. The trial court first denied the petition after finding the legislation unconstitutional, but an appellate panel reversed and remanded for merits proceedings. A second denial at the prima facie stage produced another reversal and a remand for an evidentiary hearing. In February 2025, the trial court stated that the attorneys had communicated with the court clerk by email asking to have the case taken off calendar and submitted for decision, and the court itself noted that both parties had waived their appearance. In March 2025, the court issued a written statement of decision denying the petition. The court indicated that defendant's counsel represented he was authorized to appear under section 977, subdivision (b), and concluded the trial evidence established beyond a reasonable doubt that Zepeda 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, adding that the evidence showed he directly aided and abetted the murder with the specific intent to kill.
The Court’s Holding
The Court of Appeal agreed with Zepeda and the Attorney General that deciding the petition without his presence at an evidentiary hearing was error. Nothing in the record showed a valid waiver, and the Attorney General did not contend otherwise. The remaining question was prejudice, governed by the harmless-beyond-a-reasonable-doubt standard. The court explained that sentencing and resentencing hearings are critical stages in a criminal proceeding, and that a defendant's presence significantly contributes to the fairness of the hearing as a matter of due process because the defendant may have something to say about disputed events.
The court concluded that Zepeda's absence was not harmless. Although the Attorney General pointed to overwhelming trial evidence of intent to kill and reckless indifference, the appellate court explained that 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. The trial court had relied on testimony from the kidnapping victim and participants in the criminal enterprise. Zepeda could have helped counsel challenge those accounts, offer a different interpretation, or identify inconsistencies and omissions. His decision not to testify at trial did not resolve the prejudice question. The order was reversed and the matter remanded for a new evidentiary hearing with Zepeda present or with a valid waiver.
Key Takeaways
- A court cannot decide a section 1172.6 petition after an evidentiary-hearing remand without the defendant's presence or a valid waiver.
- An attorney's request to submit the petition for decision did not establish Zepeda's personal waiver of his constitutional right to attend.
- The reviewing court applied the harmless-beyond-a-reasonable-doubt standard to the defendant's absence.
- Strong trial evidence did not make the error harmless because the hearing could address current mental-state requirements, witness credibility, and the weight of the evidence.
- The remand requires a new evidentiary hearing; the appellate court did not grant resentencing or decide the petition's ultimate merits.
Why It Matters
The decision reinforces that submission on the trial record is not a substitute for the required evidentiary hearing when the defendant has not validly waived attendance. It treats the defendant's participation as meaningful to both factual development and the fairness of the proceeding, rather than as a formality that can be excused whenever the existing record appears strong.
The ruling leaves Zepeda's convictions and sentence intact while requiring renewed proceedings on his petition. On remand, the trial court must conduct a new evidentiary hearing with his presence or a valid waiver; this opinion does not determine whether he ultimately qualifies for resentencing.