The opinion
Filed 12/9/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C098299
Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-
2011-0005529, SF117220A)
v.
ORDER MODIFYING
PRENTICE ROBINSON, OPINION AND DENYING
REHEARING
Defendant and Appellant.
[NO CHANGE IN
JUDGMENT]
APPEAL from a judgment of the Superior Court of San Joaquin County, Patrick J,
Smalling, Judge. Affirmed.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Caitlin Franzen,
Deputy Attorneys General, for Plaintiff and Respondent.
Ronald J, Freitas, District Attorney (San Joaquin), Nicole Devencenzi, Deputy
District Attorney, for the District Attorney for the County of San Joaquin as Amicus
Curiae.
1
THE COURT:
It is ordered that the published opinion filed herein on November 18, 2024, be modified
as follows:
1. In the last sentence of the paragraph before the Factual and Procedural Background
in the majority opinion add the words “ ’s second and third arguments,” so the
sentence now reads “We agree with amicus curiae’s second and third arguments and
will affirm.”
2. After the last sentence of the paragraph before the Factual and Procedural
Background in the majority opinion, which as modified above now reads “We agree
with amicus curiae’s second and third arguments and will affirm,” add as footnote
No. 2 the following footnote, which will require renumbering of all subsequent
footnotes in the majority opinion:
Robinson’s petition for rehearing highlights the Second Appellate District,
Division Two’s decision in People v. Ocobachi (2024) 105 Cal.App.5th 1174,
which was issued after oral argument, but before the publication of the opinion
in this matter. This opinion found the trial court erred in relying upon grand
jury testimony to establish the defendant was ineligible for relief under section
1172.6, concluding such evidence was inadmissible. (Ocobachi, at pp. 1177,
1181-1182.) Having reviewed Ocobachi, we are unpersuaded, and for the
reasons stated herein, conclude the trial court did not error in considering grand
jury testimony at Robinson’s section 1172.6, subdivision (d) merits hearing.
There is no change in the judgment.
The petition for rehearing is denied.
BY THE COURT:
/s/
EARL, P. J.
/s/
HULL, J.
I concur in the denial of the petition for rehearing.
/s/
FEINBERG, J.
2
Filed 11/18/24 (unmodified opn.)
See dissenting opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C098299
Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-
2011-0005529, SF117220A)
v.
PRENTICE ROBINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, Patrick J,
Smalling, Judge. Affirmed.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Caitlin Franzen,
Deputy Attorneys General, for Plaintiff and Respondent.
Ronald J, Freitas, District Attorney (San Joaquin), Nicole Devencenzi, Deputy
District Attorney, for the District Attorney for the County of San Joaquin as Amicus
Curiae.
3
On March 30, 2011, a grand jury issued a felony indictment against defendant
Prentice Robinson for several criminal counts occurring between January 6, 2011, and
February 5, 2011. Robinson subsequently pleaded no contest to multiple charges,
including attempted murder (Pen. Code, §§ 664/187),1 and admitted numerous enhancing
allegations, including that he personally used a firearm during the attempted murder
(§ 12022.53, subd. (b)). In exchange, he received an aggregate prison sentence of 22
years. In January of 2022, Robinson filed a petition for resentencing. The court
appointed counsel and, ultimately, Robinson received an evidentiary hearing on his
resentencing request. Robinson appeals the trial court’s denial of this petition, arguing
the trial court erred in considering testimony from grand jury transcripts. The People
concur that reversal is required because the grand jury testimony is inadmissible hearsay,
and, they argue, grand jury proceedings fall outside of the plain meaning of “evidence
previously admitted at any prior hearing or trial,” but they disagree on the proper remedy.
Amicus curiae, San Joaquin County District Attorney, argues that the grand jury
transcripts (including the testimony reflected therein): (1) were part of Robinson’s record
of conviction, (2) were included within the hearsay exception found in section 1172.6,
subdivision (d)(3), and (3) were not excludable either on the basis of the Sixth
Amendment right to confrontation or the due process clause. We agree with amicus
curiae and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following grand jury proceedings, the People filed an indictment charging
Robinson with 19 criminal counts, including, for our purposes, attempted willful,
deliberate murder (§§ 664/187 — count 15). The indictment further alleged that
Robinson: personally used and intentionally discharged a firearm (§ 12022.53, subd. (b)
1 Undesignated statutory references are to the Penal Code.
4
— counts 1-4, 6-15, 17; § 12022.5, subd. (a)(1) — count 16), and other prior criminal
conviction enhancements.
In 2011, Robinson pleaded no contest to all counts and admitted the truth of many
of the enhancing allegations, including, in pertinent part, that he personally used a firearm
in the commission of the attempted murder (§ 12022.53, subd. (b)). The remaining
enhancements, including that he personally and intentionally discharged a firearm in the
commission of the attempted murder, were stricken. After explaining the implications of
Robinson’s anticipated no contest pleas, the trial court stated, “The Court will find a
factual basis for the plea as contained in the preliminary hearing transcript — grand jury
transcripts.” The parties did not stipulate to the factual basis or otherwise comment on
the court’s use of the grand jury transcripts.
The trial court subsequently sentenced Robinson to an aggregate prison term of 22
years. The court modified this sentence in 2017, correcting errors identified by the
Department of Corrections and Rehabilitation that are not pertinent to the issues in the
appeal.
Thereafter, on January 31, 2022, Robinson filed a petition for resentencing, which
the People opposed, arguing Robinson was the sole perpetrator/actual attempted killer
and the grand jury was not presented with instructions under the natural and probable
consequences doctrine, making him ineligible for relief. Robinson disagreed, arguing the
grand jury proceedings should not be considered, and in any event, did not establish his
ineligibility as a matter of law. On October 17, 2022, the trial court determined Robinson
had made a prima facie showing of eligibility for relief and issued an order to show
cause.
Prior to the order to show cause hearing, the trial court ruled — over Robinson’s
objection — that it would consider the entirety of grand jury transcripts, including the
grand jury instructions, as part of the order to show cause hearing subject to specific
evidentiary objections Robinson might bring in a written motion. Robinson’s subsequent
5
motion reiterated his objection to the court considering any of the grand jury transcripts.
He then argued the court’s consideration of the grand jury information should be limited
to the evidence concerning the robbery at the restaurant, including the testimony of three
individuals relevant thereto.
The order to show cause hearing took place on April 3, 2023. At the outset of the
hearing, the trial court reiterated its ruling that the grand jury transcripts would be
admissible as part of the record of conviction. Those transcripts were the factual basis for
Robinson’s plea, and their exclusion would “profoundly frustrate” the resentencing
process.
The Testimony from the Grand Jury Transcripts
We summarize only the grand jury testimony of the two victims (S.C. & G.C.)
relied upon by the trial court in its ultimate determination on Robinson’s petition.2
S.C. testified she worked at the restaurant with G.C. She took orders, while G.C.
cooked in the back. It had been a busy day with lots of customers. S.C.’s in-laws were
eating at the restaurant when Robinson came in, ordered pork noodle soup, and paid. As
S.C.’s in-laws took their dishes into the back of the restaurant, Robinson pointed a gun at
her and demanded money. G.C. was making the noodle soup and turned to come into the
front when Robinson shot at him, hitting the door to the kitchen. Robinson then fled with
the money.
G.C. testified he was working in the kitchen when the restaurant was robbed. S.C.
was working up front when G.C. learned of the robbery and rushed to see what was
2 The People also offered the grand jury testimony of Delbert Rivers, a frequent
accomplice in other robberies Robinson had committed. However, in its ruling the trial
court stated: “Delbert is not a credible witness either. However, there is more than
enough evidence in this record to support a finding beyond a reasonable doubt that Mr.
Robinson was the perpetrator of the robbery and attempted murder without accepting as
true Delbert’s grand jury testimony regarding the Hong Kong Deli robbery and shooting.”
Thus, we do not recount Rivers’s testimony.
6
happening. When G.C. reached the door, someone fired a gun at him. G.C. could not see
the shooter clearly because of the age of the plastic window in the door but could tell that
the shooter was Black, holding a gun, and aiming directly for him. Had Robinson aimed
a little higher the bullet would have gone through the plastic and hit G.C. G.C. was
carrying a knife at his waist from cutting things up, but never threatened Robinson with
it. The bullet was later found in the dining area of the restaurant.
The People’s Other Evidence
The People also presented the live testimony of Detective Larry Naso, who
investigated Robinson in relation to a series of armed robberies, including the attempted
murder at the restaurant. As part of that investigation, Detective Naso showed S.C. a
photo lineup, and she identified Robinson as the perpetrator. S.C. circled, initialed, and
dated Robinson’s photograph in Detective Naso’s presence, confirming that
identification. The People offered this photo lineup as People’s exhibit No. 1. Detective
Naso also identified an individual named Delbert Rivers as a potential suspect in some of
the robberies, but he was not a suspect in the restaurant robbery. Detective Naso
identified a photograph of Rivers, which was offered as People’s exhibit No. 2. People’s
exhibit Nos. 1 and 2 were admitted into evidence without objection.
On cross-examination, Detective Naso testified that S.C. had identified Robinson
“pretty quickly,” and Robinson’s photograph in the lineup was an accurate representation
of the way he looked in surveillance videos from other robberies as well as the way he
looked the day following S.C.’s identification. However, People’s exhibit No. 1 did not
show Robinson’s tattoo near his eye. S.C. was not shown a photograph of Rivers. While
Robinson had aged over the years and acquired some new tattoos, Detective Naso
confidently identified him as the person who had been identified in the photo lineup.
7
Robinson’s Evidence
Robinson testified in support of his resentencing request that on the day of the
restaurant robbery, Rivers asked him to do a robbery with him.3 Robinson agreed to the
robbery and gave Rivers his gun. The pair walked approximately 30 minutes to the
restaurant. Robinson checked through the window for how many people were inside and
locked eyes with the woman at the counter. Rivers told Robinson to act as a lookout and
entered the restaurant to do the robbery. He still had Robinson’s gun. Rivers came out
several minutes later, and they ran across the street. Rivers shared the robbery proceeds
with Robinson. Robinson denied pointing or firing a gun at anyone at the restaurant.
On cross-examination, Robinson admitted committing a handful of robberies by
himself in January and February of 2011. Robinson also committed robberies with
Rivers. Robinson admitted he was armed with a gun during these robberies, as confirmed
by witness accounts and surveillance video. Robinson denied threatening to kill or shoot
Rivers during the course of two different robberies, despite contrary witness accounts.
When arrested on February 5, 2011, Robinson denied any involvement in the robberies or
attempted murder. Robinson denied going into the restaurant with a gun, despite S.C.’s
identification. Robinson had been adjudicated of possession of a stolen vehicle at age 15
in 2005. He was also convicted of escaping from jail as well as robbery in 2009, for
which he served a two-year sentence.
Robinson pleaded no contest to attempted murder and admitted the personal use of
a gun enhancement, despite claiming to not have committed the crime, because of the
sentencing exposure he was facing. Nonetheless, Robinson admitted helping Rivers
commit the crimes at the restaurant.
3 This evidence was admitted solely to explain Robinson’s actions and not for its
truth.
8
Following the close of evidence, the People argued Robinson was the actual
shooter at the restaurant, consistent with the evidence (including Robinson’s testimony)
showing that in every other robbery committed with Rivers, Robinson was the individual
who wielded the gun. Witnesses confirmed Robinson made threats to Rivers during the
other robberies and, regardless of whether the court believed Rivers, S.C. identified
Robinson as the perpetrator and confirmed in her grand jury testimony that Robinson shot
the gun. Specifically, Robinson pointed a gun at her, demanded money, and then shot at
G.C. who had begun to exit the kitchen. A comparison of the pictures of Robinson and
Rivers showed they “look very different.”
Robinson’s attorney countered, arguing S.C. misidentified Robinson based upon
seeing him through the window, that it was a “cross-racial ID,” and Robinson’s testimony
created a reasonable doubt as to his guilt. Moreover, Robinson argued Rivers’s testimony
was not credible, and it was actually Rivers (and not Robinson) who committed the
attempted murder and robbery at the restaurant.
Reconvening later that day, the trial court noted it was “taking judicial notice of
the indictment filed on March 30th, 2011; the grand jury transcript dated March 25th,
2011, specifically related to the testimony of [S.C.] and [G.C.]; and the March 29th,
2011, testimony related to Mr. Delbert Rivers; also, the change of plea transcript, which
is dated October 25th, 2011; and the sentencing transcript, which is dated February 3rd,
2012.” While the court found Rivers’s testimony was not credible, it nonetheless found
the evidence that Robinson was the direct perpetrator of the attempted murder
“overwhelming” and that the People had established that he committed the robbery and
attempted murder beyond a reasonable doubt. The court, therefore, denied Robinson’s
petition for resentencing. Robinson timely appealed.
9
DISCUSSION
I
Legal Background
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Senate Bill 1437) “to amend the felony murder rule and the natural and
probable consequences doctrine . . . 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.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Relevant here, the bill eliminated the natural and
probable consequences theory of murder, while keeping intact direct aider and abettor
liability. (People v. Gentile (2020) 10 Cal.5th 830, 846; People v. Curiel (2023)
15 Cal.5th 433, 448.)
Senate Bill 1437 also added former section 1170.95 (now § 1172.6),4 “which
created a procedural mechanism ‘for those convicted of felony murder or murder under
the natural and probable consequences doctrine to seek relief’ where the two substantive
changes described above affect a defendant’s conviction.” (People v. Curiel, supra,
15 Cal.5th at p. 449.) The Legislature has since “amended the statute to expand the
population of eligible offenders, codify certain aspects of [the Supreme Court’s] decision
in [People v. Lewis (2021) 11 Cal.5th 952], and clarify the procedure and burden of proof
at the evidentiary hearing stage of proceedings. (Stats. 2021, ch. 551, § 1.)” (Ibid.)
Thus, with Senate Bill No. 775 (2021-2022 Reg. Sess.), the Legislature expanded the
scope of Senate Bill 1437 to include those convicted of attempted murder and
manslaughter. (Stats. 2021, ch. 551, § 2.)
4 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. Although Robinson filed his petition under former section 1170.95, we refer to
the current section 1172.6 throughout the rest of this opinion.
10
Section 1172.6 requires a prima facie determination. (§ 1172.6, subd. (c).) Under
subdivision (c), the trial court must appoint the petitioner counsel if requested, receive
briefing from the parties, and determine whether “the petitioner makes a prima facie
showing that the petitioner is entitled to relief.” (Ibid.) If the trial court determines the
petitioner has made a prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause and conduct an evidentiary hearing. (§ 1172.6, subds.
(c), (d)(1); People v. Curiel, supra, 15 Cal.5th at p. 450.) At this hearing, “the burden of
proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner
is guilty of murder . . . under California law as amended by the changes to Section 188 or
189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) Both the prosecutor and
the petitioner may offer new or additional evidence to meet their respective burdens.
(Ibid.) The trial court also “may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed.” (Ibid.)
Ordinarily, we would review a trial court’s denial of a section 1172.6 petition for
substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) However, where
there is an issue of statutory interpretation our review is de novo. (People v. Lewis,
supra, 11 Cal.5th at p. 961.) Likewise, we consider questions involving the applicability
of constitutional rights de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894-896.)
II
The Grand Jury Transcripts
Robinson argues the trial court erred in admitting the testimony from the grand
jury transcripts because the testimony constituted inadmissible hearsay and because the
transcripts are not part of the record of conviction. We disagree on the first count and
need not reach the second.
As originally chaptered, then-section 1170.95, subdivision (d)(3) provided that “At
the hearing to determine whether the petitioner is entitled to relief, the burden of proof
11
shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor
and the petitioner may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (Former § 1170.95, subd. (d)(3), added by
Stats. 2018, ch. 1015, § 4, italics added.) However, the statute was amended in 2021 and
the above italicized language was stricken and subdivision (d)(3) now reads in relevant
part, as follows: “The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens.”
(§1172.6, subd. (d)(3).)5
Here, Robinson argues the testimony from the grand jury transcripts is not
admissible under the rules as set forth in section 1172.6, subdivision (d)(3) because the
5 We disagree with Robinson’s suggestion that by amending section 1172.6 to
replace “record of conviction” with its current language the Legislature intended to
remove the record of conviction “as a resource for prosecutors.” We believe a better
interpretation of this change was to narrow the scope of the record of conviction subject
to admission at the evidentiary hearing. (See, e.g., People v. Davenport (2023)
95 Cal.App.5th 1150, 1159 (Davenport) [acknowledging the amendment to § 1172.6
narrowed the portions of the record of conviction automatically admissible at the merits
hearing].)
12
transcripts constitute hearsay inadmissible under the Evidence Code and run afoul of his
right to confrontation as protected by the Sixth Amendment. The People agree with
Robinson’s first proposition, stating, “In this case, there is nothing in the record to
suggest that the transcripts were admissible under an exception to the hearsay rule.
Absent such an exception, the transcripts were inadmissible hearsay.” We conclude they
both have it wrong.
“ ‘ “ ‘ “As in any case involving statutory interpretation, our fundamental task here
is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.]
We begin by examining the statute’s words, giving them a plain and commonsense
meaning.” ’ ” ’ [Citation.] ‘ “[W]e look to ‘the entire substance of the statute . . . in order
to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is,
we construe the words in question ‘ “in context, keeping in mind the nature and obvious
purpose of the statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the various
parts of a statutory enactment . . . by considering the particular clause or section in the
context of the statutory framework as a whole.’ ” ’ ” (People v. Lewis, supra, 11 Cal.5th
at p. 961.)
We find the appropriate interpretation of section 1172.6, subdivision (d)(3)’s rules
for admitting evidence at a merits hearing is as analyzed in Davenport, supra,
95 Cal.App.5th 1150, which considered whether the trial court erred in admitting
percipient witness testimony from a preliminary hearing at the section 1172.6 subdivision
(d) merits hearing. (Davenport, at p. 1153.) Davenport began by noting that while the
express language of the statute did not state a preliminary hearing transcript was
admissible, its general admissibility was nonetheless compelled by a plain reading of the
statute. (Id. at p. 1158.)
First, section 1172.6, subdivision (d)(3) “unambiguously provides that a trial court
ruling on the merits of a resentencing petition ‘may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law, including
13
witness testimony.’ ” (Davenport, supra, 95 Cal.App.5th at p. 1158.) Second, the
admission of preliminary hearing testimony was expressly contemplated in light of the
carve-out requiring preliminary hearing evidence admitted under section 872 to have a
separate hearsay exception. (Davenport, at p. 1158.) Third, Davenport reasoned, “In
effect, what section 1172.6 subdivision (d)(3) does is create a new hearsay exception
applicable specifically to merits hearings in section 1172.6 resentencing proceedings.”
(Ibid.)
Davenport summarized the rules of admission as follows: “The rules of evidence
apply to hearings held under section 1172.6, subdivision (d); under those rules, hearsay is
inadmissible in the absence of an exception; and the pertinent exception here is the clause
in section 1172.6, subdivision (d)(3) stating that ‘except that the court may consider
evidence admitted at any prior hearing . . . .’ ” (Davenport, supra, 95 Cal.App.5th at
p. 1158.) We agree that section 1172.6, subdivision (d)(3) created a merits hearing
specific hearsay exception for “ ‘evidence previously admitted at any prior hearing or
trial that is admissible under current law.’ ” (People v. Palacios (2024) 101 Cal.App.5th
942, 952.)
Moreover, we agree with Davenport and Palacios that “admissible under current
law” means that the basis for that evidence’s previous admission remains a valid basis
under current law. (See Davenport, supra, 95 Cal.App.5th at pp. 1158-1159 [rejecting
that the evidence has to be admissible in the new hearing under the Evid. Code because
that would render surplusage the language following “except”]; accord, People v.
Palacios, supra, 101 Cal.App.5th at pp. 951-952.)
We also find persuasive the analysis in People v. Cody (2023) 92 Cal.App.5th 87.
In denying Cody’s section 1172.6 petition at the evidentiary hearing, the trial court relied
on the original trial transcripts. Cody argued that under section 1172.6, the Legislature
intended that when a trial court conducts an evidentiary hearing, the prosecution must
always first make a showing that a witness is unavailable before his or her former
14
testimony at trial can be admitted into evidence at the evidentiary hearing. (Cody, at
p. 103.) In interpreting the relevant language in section 1172.6 the court in Cody
reasoned that “ ‘The admission of evidence in the hearing shall be governed by the
Evidence Code . . . .’ (§ 1172.6, subd. (d)(3).) If the Legislature had stopped there, then
we would likely agree with Cody’s interpretation of the statute. That is, we would find
the prosecution is required to make a showing of witness unavailability under Evidence
Code section 1291, before the trial court could admit the former testimony of witnesses at
the evidentiary hearing. However, the law has an explicit exception that provides for the
admission of former testimony: ‘The admission of evidence in the hearing shall be
governed by the Evidence Code, except that the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law, including
witness testimony . . . .’ (§ 1172.6, subd. (d)(3), italics added.)” (Cody, at p. 104.) The
court reasoned further that “Were we to adopt Cody’s interpretation of section 1172.6, it
would mean we would have to disregard the statute's plain language. Further, it would
mean that all section 1172.6 evidentiary hearings would effectively become new court
trials. As another appellate court recently stated, that is plainly not what the Legislature
intended. (See People v. Clements [(2022)] 75 Cal.App.5th [276,] 297 [the Legislature
did not choose to grant qualifying offenders under § 1172.6 a new trial, but rather the
Legislature chose a procedure ‘requiring trial judges to decide the critical factual
questions based — at least in some cases — on a cold record’].)” (Ibid.) So too here.
Robinson attempts to persuade us that “admissible under current law” means the evidence
from the grand jury hearing must again satisfy the rules of evidence at the evidentiary
hearing. We part ways in this regard and agree again with Davenport, “we think the most
natural reading of those words [is admissible under current law] is that the basis for
admission of testimony at the hearing or trial in which it was previously admitted must
remain a valid basis for admitting the testimony ‘under current law.’ ” (Davenport,
15
supra, 95 Cal.App.5th at p. 1158.) To conclude otherwise would render the exception for
previously admitted testimony, superfluous.
Nonetheless, the question whether the grand jury proceeding should fall under
“any prior hearing” remains, as Davenport considered preliminary hearing testimony
(Davenport, supra, 95 Cal.App.5th at p. 1153) and this matter concerns grand jury
testimony. In his supplemental reply brief, Robinson offers a distinction between grand
jury proceedings and preliminary hearings, arguing the former “occurs prior to a criminal
prosecution and is separate from the trial court’s adjudicative proceedings.” The People
concur the grand jury proceedings do not fall under “any prior hearing,” reasoning they
are a separate proceeding. Again, the parties do not persuade us.
While we acknowledge that grand jury proceedings have been determined to be
part of the charging process rather than the adjudicative process (Cummiskey v. Superior
Court (1992) 3 Cal.4th 1018, 1026), we believe that is, for purposes of the “prior
hearing” language in section 1172.6, a distinction without a difference. Because the goal
of each is to determine probable cause rather than guilt, grand jury proceedings are
similar to preliminary hearing proceedings, which have been determined to be a proper
“prior hearing” for purposes of section 1172.6. (See Davenport, supra, 95 Cal.App.5th at
p. 1158 [§ 1172.6, subd. (d)(3) expressly contemplates that preliminary hearing testimony
will be considered at an evidentiary hearing].)
All felony cases initiate by either grand jury indictment or the filing of an
information following a preliminary hearing. (People v. Petrilli (2014) 226 Cal.App.4th
814, 823-824; see also Cal. Const. art. I, §14; § 737.) Section 939.8 provides that “The
grand jury shall find an indictment when all the evidence before it, taken together, if
unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial
jury.” Our Supreme Court has explained that “under the statutory scheme, it is the grand
jury’s function to determine whether probable cause exists to accuse a defendant of a
particular crime. . . . [¶] . . . [¶] In our view, the grand jury’s function in determining
16
whether to return an indictment is analogous to that of a magistrate deciding whether to
bind a defendant over to the superior court on a criminal complaint. Like the magistrate,
the grand jury must determine whether sufficient evidence has been presented to support
holding a defendant to answer on a criminal complaint.” (Cummiskey v. Superior Court,
supra, 3 Cal.4th at pp. 1026-1027.) In the current matter, and like the preliminary
hearing process, witnesses testified under oath as documented by a court reporter, and the
grand jury, acting similar to a magistrate, then issued a criminal indictment directly
resulting in the initiation of this criminal case.
We also find sufficient guardrails exist within the statutory scheme to enhance
reliability and assist a trial court’s assessment of grand jury testimony for purposes of a
resentencing hearing. Evidence submitted to a grand jury is limited by section 939.6,
subdivision (a) to evidence that is “(1) Given by witnesses produced and sworn before the
grand jury; [¶] (2) Furnished by writings, material objects, or other things presented to
the senses; or [¶] (3) Contained in a deposition that is admissible under subdivision 3 of
Section 686 [to the extent it is otherwise admissible under the law of this state].” Section
939.6, subdivision (b) provides that “the grand jury shall not receive any evidence except
that which would be admissible over objection at the trial of a criminal action.” The
prosecutor presenting evidence at a grand jury proceeding is under obligation, upon threat
of dismissal, to inform the grand jury of any exculpatory evidence. (See § 939.71.) The
prosecutor must also further inform the grand jury of their right to exercise its power
under section 939.7, to order additional evidence produced. (See § 939.71.) Lastly, a
defendant may challenge the sufficiency or competency of grand jury testimony before a
judge by moving to set aside the indictment pursuant to section 995. (See Mason v.
Superior Court (2015) 242 Cal.App.4th 773, 787.)
One additional protection deserves pointing out. Since the primary purpose of
introducing evidence at a section 1172.6 hearing is to determine a petitioner’s role in the
crime of which he or she was convicted, it seems to us that reliance on grand jury
17
testimony assists in accomplishing that purpose. Should a petitioner wish to challenge
that evidence, section 1172.6 allows him or her to do so by offering new or additional
evidence at the evidentiary hearing. For example, in this case, Robinson himself could
have presented evidence to refute that established by the witnesses at the grand jury
hearing.
We also find that trial judges are well-versed in judging the credibility of evidence
and attributing whatever weight they deem appropriate to “prior hearing” testimony.
(See People v. Njoku (2023) 95 Cal.App.5th 27, 44 (Njoku) [it is possible to reach an
opinion about what actually happened from a cold record].) In fact, the trial court here
made credibility and factual determinations based on live testimony and transcripts.
While it may be tempting to say that a defendant’s lack of participation in a grand
jury proceeding renders the proceeding not a “hearing” for purposes of section 1172.6,
we believe such is misguided. We are reminded that the section 1172.6 resentencing
hearing is not a trial, criminal prosecution, or subsequent retrial. (People v. Myles (2021)
69 Cal.App.5th 688, 706.) It is a postconviction collateral proceeding, the scope of
which is limited to the issues made relevant by the amended law of murder. (People v.
Delgadillo (2022) 14 Cal.5th 216, 227.) Many of the protections under the Sixth
Amendment do not apply to the petitioning process under section 1172.6. (See People v.
Schell (2022) 84 Cal.App.5th 437, 444 [“section 1172.6 is an act of lenity in which the
petitioner has no Sixth Amendment right to a jury trial”]; People v. Silva (2021)
72 Cal.App.5th 505, 531 & fn. 10 [right to confrontation under the 6th Amend. did not
apply to the defendant’s resentencing under § 1172.6, subd. (e)]; see also Njoku, supra,
95 Cal.App.5th at pp. 44-45 [“A petitioner under section 1172.6 does not possess many of
the constitutional rights afforded to a criminal defendant at trial”]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 589 [same].)
We also subscribe to the view that had the Legislature intended to exclude
transcripts of grand jury testimony from the hearsay exception contained within section
18
1172.6, subdivision (d)(3), it could have created a carve out similar to the one for section
872 preliminary hearing hearsay evidence. (§ 1172.6, subd. (d)(3) [requiring a separate
hearsay exception for § 872, subd. (b) evidence offered at a preliminary hearing].) It did
not. In fact, at the time the Legislature amended section 1172.6 to include the carve-out
for section 872, subdivision (b) evidence, existing law provided for the admission of a
similar type of hearsay evidence permitted under section 872, subdivision (b) in grand
jury hearings. Section 939.6 provides for evidence related to the foundation for
admissibility into evidence of documents, exhibits, records, and other items of physical
evidence to be based “in whole or in part upon the sworn testimony of a law enforcement
officer relating the statement of a declarant made out of court and offered for the truth of
the matter asserted,” provided the testifying officer has “either five years of law
enforcement experience or have completed a training course certified by the Commission
on Peace Officer Standards and Training that includes training in the investigation and
reporting of cases and testifying at preliminary hearings.” (§ 939.6, subd. (c).) This
language is near identical to language in section 872, subdivision (b). We disagree that
the failure of the Legislature to include a similar carve-out for law enforcement officer
hearsay testimony in grand jury proceedings suggests that the Legislature did not
contemplate that grand jury transcripts would be admissible in a section 1172.6
evidentiary hearing. Rather, we believe it reflects the contrary; that it was aware of
existing statutes when it created the carve-out for section 872 subdivision (b) and if it
meant to exclude grand jury testimony, it would have done so. (See Shirk v. Vista
Unified School Dist. (2007) 42 Cal.4th 201, 212 [“The Legislature is deemed to be aware
of existing statutes, and we assume that it amends a statute in light of those preexisting
statutes. (People v. Yartz [(2005)] 37 Cal.4th [529,] 538; People v. Overstreet (1986)
42 Cal.3d 891, 897)”].) Similarly, had the Legislature intended that only prior hearings
that are adjudicative are permissible under the statute, it could have said so. We do not
read that requirement into the statute.
19
When considering the procedural protections that accompany grand jury
proceedings, balanced against the purpose of section 1172.6 and the Legislature’s obvious
intent to avoid full-scale retrials (People v. Strong (2022) 13 Cal.5th 698, 715 [“Had the
Legislature intended to permit wholesale relitigation of findings supporting murder
convictions in the context of section 1172.6 resentencing, we expect it would have said so
more plainly”]), we conclude that testimony from grand jury proceedings constitutes
evidence previously admitted at “any prior hearing” as proscribed by section 1172.6,
subdivision (d)(3).
III
The Sixth Amendment and Due Process
Robinson argues the trial court’s consideration of the testimony from the grand
jury transcripts violated his right to confrontation protected by the Sixth Amendment to
the United States Constitution. We are not persuaded, and as we shall explain, the trial
court’s consideration of the testimony also complied with due process.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.” (U.S.
Const., 6th Amend.)
However, “a convicted person litigating a section [1172.6] petition does not enjoy
the rights that the Sixth Amendment guarantees to criminal defendants who have not yet
suffered a final conviction.” (People v. James (2021) 63 Cal.App.5th 604, 610.) Rather,
section 1172.6 is a voluntary sentencing procedure derived from “an act of legislative
lenity, not a new criminal prosecution.” (People v. Hill (2024) 100 Cal.App.5th 1055,
1067-1068.) Accordingly, a defendant has no Sixth Amendment trial rights. (See, e.g.,
20
James, at pp. 608-610 [no right to a jury trial at evidentiary hearing]; People v. Howard
(2020) 50 Cal.App.5th 727, 740 [6th Amend. does not apply to redesignating offenses];
accord, People v. Silva, supra, 72 Cal.App.5th at p. 520; but see People v. Foley (2023)
97 Cal.App.5th 653, 659-660 [because merits hearing is a critical stage of criminal
process, 6th Amend. right to conflict-free counsel applies].)
As explained in James, the Constitution did not require the Legislature to
authorize resentencing relief, nor did it compel a jury trial as part of that procedure.
(People v. James, supra, 63 Cal.App.5th at p. 609.) Accordingly, the Legislature was free
to condition resentencing relief on the nonjury procedure contained within the statute.
(Id. at pp. 610-611.) Like the right to a jury trial, the Sixth Amendment right to
confrontation does not apply in the context of a section 1172.6 hearing. We concur with
James that if the Constitution required new jury trials with the full panoply of rights
protected thereby, the Legislature might have reconsidered its decision to grant
retroactive relief. (James, at p. 611.)
This is not to suggest that Robinson is without any constitutional rights at the
section 1172.6, subdivision (d) merits hearing. However, those rights are grounded in
Robinson’s procedural due process rights to a full and fair opportunity to contest the
People’s opposition to his resentencing petition. (People v. Schell, supra, 84 Cal.App.5th
at p. 444.) In evaluating whether Robinson’s due process rights were violated at the
section 1172.6 hearing, we consider “ ‘[T]he private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and [third], the [g]overnment’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.’ (Mathews v. Eldridge (1976) 424 U.S. 319, 335.)” (Njoku,
supra, 95 Cal.App.5th at p. 45.)
21
Here, the private interest is whether Robinson is entitled to a reduced sentence
after having already admitted to having committed attempted murder. (§ 1172.6, subds.
(a), (d); Njoku, supra, 95 Cal.App.5th at p. 46.)
As to the second factor, the section 1172.6 procedure provided Robinson counsel
(§ 1172.6, subd. (b)(3)), and the right to present new evidence at an evidentiary hearing
wherein the People bore the burden of establishing ineligibility for resentencing beyond a
reasonable doubt (§ 1172.6, subd. (d)(3)). The procedure also limited the admission of
testimony from any prior hearing to assure the basis for admitting that testimony
remained a valid one under current law. (Ibid.; Davenport, supra, 95 Cal.App.5th at
pp. 1158-1159.) Robinson took advantage of these rights, testifying at the hearing that he
was not the individual who committed the attempted murder and his counsel argued the
victim’s identification of him was tainted as a cross-racial identification. Further, as part
of the new evidence that could have been provided at this hearing, Robinson would have
been permitted to subpoena the individuals who testified during the grand jury
proceedings (§ 1172.6, subd. (d)(3)), and thus, the procedure provided an opportunity to
challenge the grand jury testimony.6
Finally, regarding the government’s interest, the administrative burden the
government would face if required to present live testimony in lieu of the grand jury
6 We further note that while Robinson was not allowed to cross-examine the
witnesses at the grand jury proceedings, the prosecution did have a statutory duty to
present exculpatory evidence to them. (Cummiskey v. Superior Court, supra, 3 Cal.4th at
p. 1033; Johnson v. Superior Court (1975) 15 Cal.3d 248, 250-251, 255 [issuing writ of
prohibition against indictment where prosecutor failed to present the defendant’s
exculpatory testimony from former preliminary hearing; prosecutor had duty to present
that evidence]; id. at p. 255 [“We hold, therefore, that when a district attorney seeking an
indictment is aware of evidence reasonably tending to negate guilt, he is obligated under
section 939.7 to inform the grand jury of its nature and existence, so that the grand jury
may exercise its power under the statute to order the evidence produced”].) This lessens
concerns that the grand jury testimony unfairly presented only one side of the story.
22
testimony would be immense. (See Njoku, supra, 95 Cal.App.5th at pp. 46-47 [analyzing
burdens associated with requiring live testimony instead of allowing a decision on the
cold record].) In arriving at the section 1172.6 procedure, “ ‘[t]he Legislature landed on
that compromise as a way of extending the ameliorative benefits of its redefinition of
murder to people previously convicted under prior law, which [it] judged to be too
harsh.’ ” (Njoku, at p. 44.) This compromise was required because requiring trials with
the presentation of live testimony would have been enormously expensive, and “ ‘the
chances of obtaining live testimony from witnesses who remembered the events from
years or decades earlier is small.’ ” (Ibid.) However, rather than refusing ameliorative
benefits to defendants convicted under the old law, the Legislature created a procedure
wherein trial judges could decide critical factual questions on a cold record, and the
parties would have the opportunity to present live testimony. (Ibid.)
Having balanced these factors, we find the risk of erroneous deprivation caused by
Robinson’s inability to have originally cross-examined the witnesses from the grand jury
hearing is countered by the procedural safeguards inherent in the section 1172.6 hearing,
including Robinson’s ability to present new evidence (including but not limited to his
calling those witnesses himself). (Njoku, supra, 95 Cal.App.5th at pp. 45-47 [due process
not violated by allowing trial court to determine § 1172.6 merits on a cold record].) We
find this is an appropriate balance in light of the competing interests at stake.
23
DISPOSITION
The judgment is affirmed.
/s/
EARL, P. J.
I concur:
/s/
HULL, J.
24
FEINBERG, J., Dissenting.
I agree with the majority’s conclusion that Penal Code section 1172.6,
subdivision (d)(3) creates a specific hearsay exception for “evidence previously admitted
at any prior hearing or trial that is admissible under current law.”1 (Maj. opn. ante, at
p. 12.) I also agree that “admissible under current law” means that the basis for the
evidence’s previous admission remains valid under current law. (Maj. opn. ante, at p. 12;
see People v. Davenport (2023) 95 Cal.App.5th 1150, 1158.) But I respectfully disagree
that testimony received in a grand jury proceeding qualifies as “evidence previously
admitted at any prior hearing or trial” within the meaning of section 1172.6,
subdivision (d)(3). Although the statute does not expressly define that phrase, the text,
context, and purpose of the law together point toward the conclusion that it does not
encompass evidence that the prosecution presents to a grand jury.
Beginning with the language “any prior hearing” (§ 1172.6, subd. (d)(3)), the word
“hearing,” read in isolation, is susceptible to different meanings. (See Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1247-1248; Recorder v. Commission on Judicial
Performance (1999) 72 Cal.App.4th 258, 272, fn. 12.) One definition found in the case
law broadly includes “a proceeding where evidence is taken to the end of determining an
issue of fact and a decision made on the basis of that evidence.” (People v. Pennington
(1967) 66 Cal.2d 508, 521; see also In re Cook (2019) 7 Cal.5th 439, 449, fn. 3.) Under
that definition, a grand jury proceeding could qualify as a “hearing,” in that it involves
the presentation of evidence to the end of determining whether probable cause supports
the return of an indictment. (§§ 889, 917, 939.8; Cummiskey v. Superior Court (1992)
3 Cal.4th 1018, 1027.)
A general and potentially elastic term like “hearing,” however, draws meaning
from its context (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1249), and here the
1 Undesignated statutory references are to the Penal Code.
1
context suggests that the term as used in section 1172.6, subdivision (d)(3) does not
extend to a grand jury proceeding. With limited exception (§§ 923, subd. (c)(1), 939.7),
in the extensive statutory scheme defining and governing grand juries, the Legislature
itself has not labeled a grand jury proceeding a “hearing.” (See § 888 et seq.) Rather,
grand juries convene in “sessions” (§§ 934, 935, 938, 939, 939.1) or “proceedings”
(§§ 891, 939.21; see Pen. Code pt. 2, tit. 4, chs. 1-3, § 888 et seq. [entitled “Grand Jury
Proceedings”]).
Moreover, grand jury sessions or proceedings are fundamentally different from the
hearings and trials that are undisputedly covered by section 1172.6, subdivision (d)(3),
such as preliminary hearings or criminal trials. (See People v. Davenport, supra,
95 Cal.App.5th at p. 1158 [preliminary hearing testimony]; People v. Cody (2023)
92 Cal.App.5th 87, 101-104 [testimony at jury trial].) The grand jury’s charge is to
“investigate” and “inquire.” (§§ 888, 917, 918, 939.6.) It “serves as part of the charging
process of criminal procedure, not the adjudicative process that is the province of the
courts or trial jury.” (Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1026, italics
omitted.) It is “investigatory, not adversarial.” (People v. Petrilli (2014) 226 Cal.App.4th
814, 825.) Unlike a preliminary hearing, a grand jury session “is not the same proceeding
as a subsequent criminal prosecution.” (Ibid., italics omitted.) Unlike a preliminary
hearing or trial, the defendant is not a party to a grand jury proceeding, receives no notice
of it, and is not entitled to appear. (Ibid.; People v. Superior Court (Mouchaourab)
(2000) 78 Cal.App.4th 403, 415.) And unlike a preliminary hearing or trial, a judge is
generally not present during a grand jury session after initially instructing the grand jury
as to its duties. (§ 934, subd. (a); People v. Superior Court (Mouchaourab), at p. 415.)
Given these distinct features, I agree with the People that it is unlikely the Legislature
grouped grand jury sessions in with preliminary hearings and trials when it used the word
“hearing” in the statute. (§ 1172.6, subd. (d)(3).)
2
Turning to the statute’s phrase “previously admitted,” that language likewise does
not fit a grand jury proceeding. (§ 1172.6, subd. (d)(3).) A grand jury does not “admit”
evidence. Rather, it “receive[s]” evidence relevant to its investigation. (§ 939.6,
subds. (a) & (b).) It is required to “weigh all the evidence submitted to it.” (§ 939.7.)
No judicial officer makes evidentiary rulings admitting (or declining to admit) evidence
for the grand jury’s consideration. (§ 934, subd. (a).)
At oral argument, the District Attorney argued that evidence at a grand jury
proceeding is “admitted” by the prosecution because a grand jury generally may only
receive evidence that would be admissible over objection at a criminal trial. (§ 939.6,
subd. (b).) That theory is incompatible with the role prescribed for prosecutors in a grand
jury session. Under the statutory scheme, prosecutors “appear before the grand jury for
the purpose of giving information or advice.” (§ 935.) They “may interrogate witnesses
before the grand jury whenever [they] think[] it necessary.” (Ibid.) And they “inform”
the grand jury of the nature and existence of exculpatory evidence of which they are
aware. (§ 939.71, subd. (a).) These provisions confirm that, in a grand jury proceeding,
the prosecutor acts as the proponent of evidence for the grand jury to consider, not as an
adjudicator resolving questions of admissibility. (Compare with Evid. Code, §§ 402, 403
[court resolution of certain admissibility questions].)
A final textual provision reinforces the conclusion that the Legislature did not
intend to permit consideration of transcripts from grand jury proceedings in evidentiary
hearings under section 1172.6. As the majority notes, the statute generally allows trial
courts to consider evidence admitted at prior hearings; but that general rule is subject to
an exception for hearsay evidence that was admitted in a preliminary hearing under
section 872, subdivision (b). (Maj. opn. ante, at p. 12; § 1172.6, subd. (d)(3).) Such
evidence “shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule.” (§ 1172.6, subd. (d)(3).)
The Legislature, however, did not provide a carveout for similar hearsay testimony that is
3
permitted in grand jury proceedings. (Ibid.; § 939.6, subd. (c) [allowing qualified law
enforcement officers to relate out-of-court statements for their truth to lay a foundation
for the admission of documents and other evidence].) This omission suggests that the
Legislature did not contemplate that grand jury transcripts would be admissible in a
section 1172.6 evidentiary hearing in the first place. (See People v. Davenport, supra,
95 Cal.App.5th at p. 1158 [statute’s exclusion of evidence admitted at a preliminary
hearing under § 872, subd. (b) shows that the Legislature “expressly contemplate[d] that
preliminary hearing testimony in particular will be considered” at a § 1172.6 evidentiary
hearing].)
The majority’s contrary reading of this provision (maj. opn. ante, at pp. 17-18)
leads to anomalous results. As the majority discusses, an earlier version of the statute
allowed the prosecution to “rely on the record of conviction” in a section 1172.6
evidentiary hearing. (Maj. opn. ante, at p. 10; former § 1170.95, subd. (d)(3).) Effective
January 1, 2022, the Legislature narrowed that provision to limit the sources of
admissible evidence, paying particular attention to hearsay testimony introduced through
law enforcement officers that may have been allowed in a preliminary hearing.
(Stats. 2021, ch. 551, § 2; see People v. Davenport, supra, 95 Cal.App.5th at p. 1159.)
Given this focus and the legislative goal of tightening the evidentiary rules, it is unlikely
that the Legislature intended to make a more generous allowance for hearsay testimony
presented at a grand jury proceeding, where witnesses are not subject to cross-
examination, than for hearsay testimony adduced at a preliminary hearing, where
witnesses are subject to cross-examination.
I agree that in adopting section 1172.6 the Legislature generally sought to avoid
full-scale retrials. (Maj. opn. ante, at p. 18.) It did so by requiring “trial judges to decide
the critical factual questions based—at least in some cases—on a cold record.” (People v.
Clements (2022) 75 Cal.App.5th 276, 297.) But that does not mean that the Legislature
intended for the record of prior proceedings to be admissible or sufficient in every case.
4
To the contrary, the Legislature specifically recognized that live testimony and new
evidence could be needed or desirable in particular cases. (§ 1172.6, subd. (d)(3) [“[t]he
prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens”].)
The Legislature also did not elevate efficiency at the expense of fairness and
reliability. As the majority explains, section 1172.6, subdivision (d)(3)’s evidentiary
provisions seek to balance these sometimes-competing goals. (Maj. opn. ante, at pp. 18,
21; see generally People v. Clements, supra, 75 Cal.App.5th at p. 297.) The majority
concludes that allowing grand jury testimony is consistent with this balance because of
the procedural protections built into grand jury proceedings. (Maj. opn. ante, at p. 15.)
Among others, a prosecutor bears important ethical duties when presenting evidence to a
grand jury, and a defendant may challenge an indictment after the fact. (§§ 939.6,
subd. (b), 939.71, 995; Johnson v. Superior Court (1975) 15 Cal.3d 248, 255.) But these
protections do not compare with those accompanying ordinary hearings and trials that are
part of a criminal proceeding. The prosecution’s evidence in a grand jury session is
entirely free from adversarial testing. Witnesses are not subject to cross-examination.
The defendant is not entitled to be present. Generally, no judicial officer presides over
the session. In my view, evidence adduced under these conditions falls short of the
standards of fairness and reliability that the Legislature intended when it broadly required
section 1172.6 evidentiary hearings to comply with the Evidence Code, subject to a
carefully constructed exception for evidence that a judicial officer admitted at a prior
hearing or trial.
Nor is it sufficient in my view that a defendant is able to tender his or her own
evidence at an evidentiary hearing under section 1172.6, subdivision (d)(3). (Maj. opn.
ante, at p. 16.) In cases where the section 1172.6 hearing takes place many years after the
grand jury proceeding (see maj. opn. ante, at p. 21), a defendant’s ability to cast doubt on
or otherwise challenge the prosecution’s evidentiary presentation before the grand jury
5
may be limited. And in any event, the Legislature intended that a defendant’s right to
introduce new evidence would be only one of a suite of procedural protections—
including a limitation on the sorts of evidence that a trial court can consider—that would
ensure the fairness and reliability of section 1172.6 evidentiary hearings. (See People v.
Njoku (2023) 95 Cal.App.5th 27, 46.)
Because witness testimony presented to a grand jury does not qualify as “evidence
previously admitted at any prior hearing or trial” (§ 1172.6, subd. (d)(3)) and because the
People concede that no other exception to the hearsay rule applies to the grand jury
testimony considered in this case, the trial court here erred in considering the transcripts
from the grand jury proceeding. Accordingly, I would reverse the trial court’s order
denying defendant Prentice Robinson’s petition for resentencing and remand the matter
for a new evidentiary hearing under section 1172.6, subdivision (d)(3).
/s/
FEINBERG, J.
6