Error and/or relief
The trial court denied the defendant’s petition for recall of sentence under section 1172.6 without an evidentiary hearing, concluding that the transcript of trhe preliminary examination showed that he was prosecuted as the direct perpetrator. Defendant contends the record of conviction does not conclusively foreclose relief. Alternatively, he requests a conditional reversal that would allow him to dispute hearsay statements testified to at the preliminary hearing. We will therefore remand the matter and direct the trial court to consider such an amended petition, should defendant elect to file one.
First Holding:
In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.), which amended sections 188 and 189 to eliminate several theories of liability based on imputed malice in homicide cases. The Legislature has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted.
As relevant here, a defendant convicted of manslaughter may petition to have that conviction vacated if (a) the pleading allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine; (b) the petitioner accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder; and (c) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.
An order to show cause must issue if a petitioner makes a prima facie case for relief. At an evidentiary hearing on the order to show cause, the prosecution must prove beyond a reasonable doubt that the defendant is guilty under current law.
Authority:
People v. Lewis (2021) 11 Cal.5th 952, 971
People v. Patton (2025) 17 Cal.5th 549, 565, 568
Second Holding:
Some cases may be so straightforward as to prompt a concession of a prima facie showing and if the record contains any indication the petitioner had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition.
Authority:
People v. Patton (2025) 17 Cal.5th 549, 560, fn. 4
Third Holding:
Section 1172.6(d)(3) expressly provides that hearsay evidence that was admitted in a preliminary hearing pursuant to section 872(b) shall be excluded from the resentencing evidentiary hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. [Section 872(b), applicable to preliminary examinations, provides that the finding of probable cause to hold the defendant to answer in superior court on the felony may be based in whole or in part upon the sworn testimony of a qualified law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted.]
Thus, at an evidentiary hearing under section 1172.6(d)(3), the officer’s statements would be excluded unless admissible under an Evidence Code exception to the hearsay rule. One appellate court has held that it was not error to deny a section 1172.6 petition at the prima facie stage based in part on hearsay testimony given by police officers at the preliminary hearing.
Authority:
People v. Rodriguez (2026) 117 Cal.App.5th 1179, 1185
Fourth Holding:
In light of Patton, the defendant should be provided an opportunity to argue the factual landscape of the preliminary hearing and be provided the opportunity to present testimony or other evidence to show he was not the actual killer. The trial court should also have the opportunity to consider any additional facts pled by defendant in support of a prima facie case for relief under section 1172.6.
Authority:
People v. Patton (2025) 17 Cal.5th 549, 565, 569-570