Error and/or relief
This is an appeal from the denial of a petition for recall of sentence under section 1172.6. We conclude there is substantial evidence to support the trial court’s finding the defendant is guilty of murder, beyond a reasonable doubt, under a still-valid theory, and reversal for resentencing is unwarranted. As for the defendant’s evidentiary challenges, however, we hold the trial court prejudicially erred in admitting and relying on the grand jury transcript and police reports. As a result, we vacate the trial court’s order, and remand the matter for a new evidentiary hearing.
First Holding:
SB 1437 was enacted to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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. It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. Through section 1172.6, it provided a means of relief for those whose convictions would no longer be considered murder under the revised law.
Authority:
SB 1437
PEN 1172.6
Second Holding:
In the context of an appeal from a criminal conviction where substantial evidence does not support a conviction, the remedy is generally not a new trial. The sufficiency of the evidence is considered by examining the whole record in the light most favorable to the judgment and deciding whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission.
Authority:
People v. Hatch (2000) 22 Cal.4th 260, 271–272 [the federal and California Constitutions preclude retrial if a court determines the evidence at trial was insufficient to support a conviction as a matter of law]
People v. Jasso (2025) 17 Cal.5th 646, 684,
People v. Navarro (2021) 12 Cal.5th 285, 311
Third Holding:
The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that he has been convicted through a judicial process which is defective in some fundamental respect.
Thus, as a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.
Authority:
People v. Jasso (2025) 17 Cal.5th 646, 684,
People v. Hernandez (2003) 30 Cal.4th 1, 6
Fourth Holding:
Although principles of double jeopardy are not implicated in the voluntary section 1172.6 petition process, an insufficient evidence claim, coupled with additional challenges to the admission of evidence, may give rise to an issue of remedy.
If, considering the whole record in the light most favorable to the judgment, there is no substantial evidence to support the trial court’s denial of the section 1172.6 petition after an evidentiary hearing, it signals a substantive failure of proof by the government much like it does in the context of a direct appeal from a criminal conviction, suggesting reversal for resentencing is the appropriate remedy. Under 1172.6(d)(3) if the prosecution fails to sustain its burden of proof, the petitioner shall be resentenced.
Authority:
People v. Hill (2024) 100 Cal.App.5th 1055, 1068
People v. Emanuel (2025) 17 Cal.5th 867, 875, 896 [directing resentencing be granted on remand where insufficient evidence supported denial of sec. 1172.6 petition after an evidentiary hearing]
Fifth Holding:
On the other hand, a prejudicial procedural error (such as an evidentiary error), on its own, typically signals nothing about whether the petitioner is or is not guilty of murder under the law as amended by SB 1437, but points only to a flawed judicial process. In cases involving only this latter situation, remand for a new evidentiary hearing is ordinarily the appropriate remedy. This remedy is especially apt in the context of section 1172.6, which was created by the Legislature as an act of lenity.
Authority:
People v. Dixon (2026) 118 Cal.App.5th 116, 137 & fn. 3 [in the absence of a substantial evidence challenge, prejudicial evidentiary errors warrant remand for a new evidentiary hearing rather than remand for resentencing]
People v. Lopez-Barraza (2025) 110 Cal.App.5th 1227, 1255 [remanding for a new evidentiary hearing where trial court impermissibly relied on evidence admitted at the petitioner’s trial that contradicted jury findings]
People v. Nuno (2024) 105 Cal.App.5th 1030, 1062–1063 [conditionally reversing denial of sec. 1172.6 petition after evidentiary hearing to permit the trial court to reconsider discovery motion, and to order a new evidentiary hearing if additional evidence disclosure was warranted]
People v. Hill (2024) 100 Cal.App.5th 1055, 1067–1068 [sentence modification procedure under sec. 1172.6 is an entirely voluntary process and constitutes an act of legislative lenity, not a new criminal prosecution]
Sixth Holding:
The grand jury transcript is not admissible under section 1172.6(d)(3)’s exception for evidence previously admitted at a prior hearing or trial.
Authority:
People v. Dixon (2026) 118 Cal.App.5th 116
Seventh Holding:
Since Davenport and Cody, appellate courts have considered whether section 1172.6(d)(3)’s hearsay exception extends to transcripts from grand jury proceedings. In Ocobachi, the court held it did not. The court explained the existing hearsay exception for former testimony found in Evidence Code section 1291 requires a showing of witness unavailability) and that the party against whom the former testimony was offered had been given the right and opportunity to cross-examine the declarant.
Unlike former testimony given during a petitioner’s preliminary hearing or original trial, Ocobachi pointed out the person investigated at a grand jury proceeding is not a party but a target who has no right to appear or offer evidence at grand jury proceedings. Thus, unlike in Davenport and Cody, admitting a transcript of grand jury testimony under section 1172.6(d)(3) would require ignoring both provisions of Evidence Code section 1291, creating an overbroad hearsay exception. In contrast, Robinson [review granted] concluded that the grand jury transcript may be considered at the section 1172.6 hearing.
Authority:
People v. Davenport (2023) 95 Cal.App.5th 1150, 1158–1159
People v. Cody (2023) 92 Cal.App.5th 87, 103
People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1183
People v. Robinson (2024) 106 Cal.App.5th 854, 872, review granted Feb. 26, 2025, S288606
Eighth Holding:
The proper interpretation of a statute is a question of law we review de novo. We consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose
Authority:
People v. Lewis (2021) 11 Cal.5th 952, 961
People v. Reynoza (2024) 15 Cal.5th 982, 989–990
Ninth Holding:
Grand jury proceedings are not adjudicative, unlike hearings and trials in a criminal proceeding, nor are they adversarial. Rather, they are investigatory proceedings: a judicial officer does not typically preside over grand jury proceedings; a defendant does not receive notice of grand jury proceedings; and a defendant has no right to appear, offer evidence, or cross-examine witnesses. Despite similarities in their function, unlike preliminary hearings, grand jury proceedings are one-sided investigatory proceedings.
Authority:
Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026
People v. Petrilli (2014) 226 Cal.App.4th 814, 824
People v. Arroyo (2016) 62 Cal.4th 589, 595
Tenth Holding:
It would be anomalous for the Legislature to have amended the statute under SB 775 to tighten the evidentiary rules by excluding preliminary hearing testimony under section 872(b) [which allows a magistrate to find probable cause at a preliminary hearing based on the testimony of a qualified law enforcement officer that would otherwise be excluded as inadmissible hearsay], which is subject to cross-examination, but not exclude similar section 939.6(c), testimony received at a grand jury proceeding, which is untested by cross-examination.
Authority:
People v. Ledesma (1997) 16 Cal.4th 90, 101 [in construing statutes, courts should strive to avoid anomalous results]
Eleventh Holding:
We agree with the parties that the police reports and related witness statements collected by the police are hearsay because they were created out of court and were offered (and considered) for the truth of the matter asserted. These documents also contain out-of-court statements of witnesses that constitute another layer of hearsay when offered for the truth of the matter asserted.
While there may be an applicable exception for some of the information contained in the police reports, there must also be a hearsay exception for out-of-court witness statements recorded in the documents that were considered for the truth of the matter asserted. Many of the findings taken from the police reports involved nonparty witness statements recorded by the police that were considered for the truth of the matter asserted, but no hearsay exception was identified
Authority:
EVID 1200(a)[hearsay is an out-of-court statement offered to prove that its assertion is true]
People v. Hall (2019) 39 Cal.App.5th 831, 844–845 [arrest report admissible under official records exception to hearsay rule to the extent it reported an act, condition, or event observed by law enforcement pursuant to Evid. Code sec. 1280]
Walker v. Superior Court (2021) 12 Cal.5th 177, 192 [observing the general rule that each level of out-of-court statements in documents such as probation and police reports must fall under a hearsay exception to be admitted into evidence]
Twelfth Holding:
Judicial notice extends only to notice of the document’s existence, not necessarily to the truth of the facts contained within a document. Judicial notice of a document is not a vehicle for the admission of hearsay contained within the document.
Authority:
People v. Moore (1997) 59 Cal.App.4th 168, 178
People v. Woodell (1998) 17 Cal.4th 448, 458–459 [the fact that a document may be judicially noticed under Evid. Code sec. 452 does not mean all the hearsay statements within the document are admissible or noticeable]
Thirteenth Holding:
Prejudice is shown where it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.
Authority:
People v. Watson (1956) 46 Cal.2d 818, 836
Fourteenth Holding:
On other questions the defendant has asked us to address, we decline to do so in light of the remand and reversal. As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.
Authority:
People v. Slayton (2001) 26 Cal.4th 1076, 1084