Raising Judicial Errors at PC 1172.6 Resentencing Hearing?

In 2000, a jury in Norwalk Superior Court convicted Oscar Antonio Palacios, then 18 years old, of special circumstance murder, robbery and burglary.  Palacios had confessed to the crimes to police and his confession was admitted at his trial.

A bloody shoe print at the scene with a distinctive, accidental mark on the sole matched his shoes and his fingerprints were found on a clothes iron without an electrical cord at the scene.  The victim was found dead with an electrical cord wrapped around his neck.  

At no time during trial did he contest the voluntariness of his confession.  There were two other co-defendants in the case. 

 

During trial, Mr. Palacios gave his attorney two letters from a co-defendant apologizing to him about the murder and suggesting Mr. Palacios did nothing.  In another letter, he addressed his first letter and stated that it was genuine.  

In response, the attorney gave the letter to a handwriting analyst to let him know if the letters were authentic.  The handwriting analyst told the attorney that he could not confirm the letters were authentic.  Consequently, the attorney did not introduce the letters during trial.

The judge sentenced Mr. Palacios to life without the possibility of parole for the first degree murder and stayed the sentences on the other counts.

In May 2021, Mr. Palacios filed a petition for resentencing under former Penal Code § 1170.95 (now renumbered at § 1172.6), also known as Senate Bill 1437, making changes to the felony murder rule).  The judge, Lee Tsao in Norwalk, found that Mr. Palacios established a prima facie case and issued an order to show cause why resentencing should not take place.

In Mr. Palacios’ petition, he argued that his confession was involuntary and, therefore, wrongfully admitted for the jury to read.  He argued, for the first time, that in resentencing, the judge should exclude it from consideration because it was given in response to threats or promises of leniency by the police at the time.  He then discussed the two letters from his co-defendant and argued his attorney offered ineffective assistance of counsel (IAC) by not introducing the letters during trial.

Mr. Palacios argued that without his confession, the People could not prove he was a major participant or that he acted with reckless indifference to human life.

The People opposed the petition for resentencing, arguing that Mr. Palacios was ineligible for relief because he was a major participant in the felonies and acted with reckless indifference to human life.  The People relied heavily on Mr. Palacios’ confession, which was the only direct evidence of his participation in the crimes.

As to the confession, the People argued that because Mr. Palacios had not argued it was inadmissible at the time of trial, he could not raise this as an issue at resentencing 21 years later.  Moreover, the rules of admissibility at the time of trial had not changed since the time of trial, so the issue had been waived.

Judge Tsao ruled that the confession was properly admitted and that counsel for Mr. Palacios was not IAC because he had done the proper thing by showing the letters to a handwriting analyst to examine the authenticity of the letters.

Moreover, Judge Tsao said, a resentencing hearing is not a trial de novo, so the petitioner does not have the same rights guaranteed to criminal defendants under the due process clause of the federal Constitution.  Judge Tsao further cited to a recent appellate court decision, People v. Mitchell (2022) 81 Cal. App. 5th 575, holding that there is no right to be free from self-incrimination at a resentencing hearing.  While we think this holding is not exactly on point, it is generally relevant toward Mr. Palacios’ attempt to exclude his confession during resentencing.

Judge Tsao then found that Mr. Palacios was a major participant in the robbery and burglary and acted with reckless indifference to human life, so he was ineligible for resentencing and denied his petition.  

Mr. Palacios then appealed this ruling to the Second Appellate District, which affirmed Judge Tsao.

We present this summary as a cautionary tale to remind the reader that all objections possible should be asserted during trial to preserve the issue for appeal later.