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A mere procedural error is not a miscarriage of justice,

Tim Kowal     March 17, 2023

Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot ‘im,” which the gunman did, fatally. But the California Supreme Court in People v. Strong (2022) 13 Cal.5th 698, 717-718 held that earlier findings that a criminal defendant was a “major participant” and showed “reckless indifference” were not binding because, of late, the Court has relaxed those standards.

So upon filing of a resentencing petition and alleging he could not be convicted of murder under the newly relaxed standards, Arreguin is entitled to resentencing.

Justice Gilbert, writing for the majority, concludes it is checkmated by Strong.

But Justice Kenneth Yegan is not going quietly. And he is going to exercise his First Amendment right to suggest a different approach. Quoting People v. Musante (1980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J.:"I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below.”

Here is how Justice Yegan would have gone about affirming the denial of resentencing:

“Respectfully, there is another way to discharge our duty at the California Court of Appeal. That is to say, the California Constitution admonishes us to not reverse an order unless there is a miscarriage of justice. (Cal. Const., Art. VI, § 13.) There is no miscarriage of justice here. There is a procedural error only. It does not matter that appellant "checked the box" stating he could not presently be convicted of murder. This statement is false. And because appellant falsely checked this box, a new round of litigation has followed. This is a poor idea stemming from the declared false premise.”

What Justice Yegan is saying is that, yes, Arreguin did file a proper petition for resentencing under Penal Code section 1172.6, which normally would entitle him to an evidentiary hearing whether he would be convicted under the new “major participant” and “reckless indifference” standards. But it is a fundamental principle of appellate review that error alone does not warrant reversal of a judgment. Rather, the appellant must demonstrate the error has resulted in a "miscarriage of justice"—that is, that a different result would have been probable if the error had not occurred. (Cal. Const., art. VI, § 13.)

Justice Yegan is not buying that, under these facts, there is any possibility that Arreguin could get a different result.

The majority sympathizes, but thinks that operative precedent indicates the error is structural: Arreguin is entitled to a resentencing hearing regardless of the fact his cause is hopeless. “[W]e hope our Supreme Court will offer guidance on whether requests for section 1172.6 evidentiary hearings in felony murder convictions prior to Banks and Clark are ever subject to a harmless error analysis.”


I consider is odd that the court assumes the right at issue here is structural apparently despite a clear articulation of such a rule by the Supreme Court. In another recent case, People v. Whitmore  (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___ (discussed here), the Fourth District Court of Appeal held that a right to an in-person jury trial was not structural, even though it is hard to imagine a more textbook example of a structural right of procedure.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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