The opinion
Filed 6/23/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063231
v. (Super. Ct. No. 07NF4480)
ANGEL EDUARDO RAMOS, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Craig E. Robison, Judge. Affirmed. Application to file amicus brief granted.
Heather E. Shallenberger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Seth M. Friedman and Nora S. Weyl, Deputy Attorneys General,
for Plaintiff and Respondent.
Todd Spitzer, District Attorney (Orange), Brian Fitzpatrick,
Deputy District Attorney, for the District Attorney for the County of Orange
as Amicus Curiae.
* * *
Under Penal Code section 1172.6, “the focus is on examining the
truth of what happened to evaluate whether to reduce an individual’s
sentence, so the punishment fits the crime.” 1 (People v. Mitchell (2022) 81
Cal.App.5th 575, 587 (Mitchell).) Consequently, when a trial court conducts
an evidentiary hearing: “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 (d)(3), italics added.)
In 2007, Angel Eduardo Ramos and three other men were
involved in a gang-related shooting. Ramos was the shooter. Ramos pleaded
guilty to attempted murder, related crimes, and enhancements. One of the
codefendants went to trial. A jury convicted the codefendant of attempted
murder (as an aider and abettor), related crimes, and enhancements.
In 2022, Ramos filed a section 1172.6 petition seeking to vacate
his attempted murder conviction. At Ramos’s evidentiary hearing, the
transcripts from his codefendant’s trial were admitted into evidence. The trial
court found Ramos to be the actual shooter and denied his petition.
Ramos does not appeal on the merits. Rather, he claims the court
erred by admitting evidence from his codefendant’s trial. We disagree. Based
on the plain language of the statute, evidence from “any prior hearing or
trial” is generally admissible, “including witness testimony.” (§ 1172.6 (d)(3),
italics added.) Additionally, a section 1172.6 proceeding is a search for the
truth, and it is undisputed that the right to confront witnesses does not apply
1
Assembly Bill No. 200 (Reg. Sess. 2021–2022) renumbered
section 1170.95 as section 1172.6. (See Stats. 2022, ch. 58, § 10.) Subsequent
undesignated statutory references are to the Penal Code. We will generally
omit the word “subdivision” and its abbreviation.
2
at a section 1172.6 evidentiary hearing. (See People v. Howard (2020) 50
Cal.App.5th 727, 740 [section 1172.6 is “an act of lenity by the Legislature
‘that does not implicate defendants’ Sixth Amendment rights’”].)
Thus, we affirm the order of the trial court.
I.
FACTS AND PROCEDURAL BACKGROUND
In December 2007, Ramos was in the backseat of a car with Jose
Bello. In the front passenger seat was Isaac Garza Cordero. 2 Ramos, Bello,
and Cordero were all active members of a criminal street gang. Kevin G.
(Kevin), was an unwitting high school student who was driving the car.
Cordero directed Kevin to drive into his rival gang’s territory. Cordero then
directed Kevin to stop the car and turn off the headlights. Emilio D. (Emilio)
was standing near the car.
Ramos rolled down the rear window and “hit up” Emilio by
asking him, “Where are you from?” Emilio identified the name of his gang.
Ramos then got out of the car, aimed his weapon, and fired multiple shots.
Emilio was hit in his head and in his leg. Ramos got back in the car and said,
“I got him.” The next day, Kevin reported the incident to his teachers and to
the police. Emilio did not die from the bullet wounds.
Court Proceedings
The Orange County District Attorney (OCDA) filed an
information charging Ramos, Cordero, and Bello with one count of attempted
2
The statement of facts is derived from the evidence adduced at
Cordero’s 2011 jury trial.
3
murder and one count of street terrorism. The OCDA further alleged gang
and firearm enhancements.
In 2011, Ramos pleaded guilty to the charged crimes and
admitted the enhancements. The trial court imposed a negotiated 19-year
prison sentence. Bello pleaded guilty to reduced charges. Cordero went to
trial, and the jury ultimately convicted him of the charged crimes, as well as
the related gang and firearm enhancements.
In 2022, Ramos filed a section 1172.6 petition seeking to vacate
his attempted murder conviction and to be resentenced. At the prima facie
stage, the trial court set the matter for an evidentiary hearing based on a
stipulation by the parties (it was not clear from the record of conviction that
Ramos was the actual shooter).
Prior to Ramos’s evidentiary hearing, the OCDA filed a motion to
admit the transcripts from Cordero’s jury trial. Over Ramos’s objection, the
trial court granted the motion. The parties introduced no additional evidence
at the hearing. After reviewing the transcripts, the court ruled on Ramos’s
section 1172.6 petition in a written order:
“The evidence establishes that petitioner was the only person
armed during the incident and instigated a confrontation in rival gang
territory by rolling down his car window and asking the victim where he was
from. Petitioner was the only person to exit the vehicle to shoot at the victim.
Witness Kevin . . . saw petitioner holding a firearm immediately after
hearing several gunshots. When petitioner got back in the group’s car, he
said, ‘I got him.’ Based on this evidence petitioner clearly took a direct step
toward killing the victim and acted with specific intent to kill . . . . Since
petitioner is guilty of attempted murder under current law beyond a
reasonable doubt, he is ineligible for resentencing.”
4
On appeal, Ramos claims the trial court erred by admitting the
transcripts from his codefendant’s trial. The Attorney General concedes the
issue. 3 The OCDA filed an amicus curiae brief in opposition.
II.
DISCUSSION
Ramos claims that when a trial court conducts an evidentiary
hearing under section 1172.6, the court can only admit evidence from a prior
hearing or trial if the petitioner was a party to that hearing or trial. We
disagree. The plain language of the statute includes no such restriction.
Issues of statutory interpretation are pure questions of law that
we review de novo. (People v. McDavid (2024) 15 Cal.5th 1015, 1023.)
In this discussion, we shall: A) review the principles of statutory
interpretation; B) consider section 1172.6 (d)(3) as written; and C) analyze
the statute as applied to the principles of statutory interpretation.
A. Principles of Statutory Interpretation
When interpreting a statute, a court’s role “is to determine the
Legislature’s intent so as to effectuate the law’s purpose.” (People v. Murphy
(2001) 25 Cal.4th 136, 142.)
“We begin as always with the statute’s actual words, the ‘most
reliable indicator’ of legislative intent, ‘assigning them their usual and
ordinary meanings, and construing them in context. If the words themselves
are not ambiguous, we presume the Legislature meant what it said, and the
3
“We are not bound to accept a party’s concession on a question
of law.” (Sellers v. Superior Court (2024) 104 Cal.App.5th 468, 478, fn. 4.)
5
statute’s plain meaning governs.’” (Even Zohar Construction & Remodeling,
Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837–838.)
Courts may neither insert words nor delete words in an
unambiguous statute; the drafting of statutes is solely a legislative power.
(People v. Hunt (1999) 74 Cal.App.4th 939, 945–946.) “In construing this, or
any, statute, our office is simply to ascertain and declare what the statute
contains, not to change its scope by reading into it language it does not
contain or by reading out of it language it does. We may not rewrite the
statute to conform to an assumed intention that does not appear in its
language.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)
“Statutory language is not considered in isolation. Rather, we
‘instead interpret the statute as a whole, so as to make sense of the entire
statutory scheme.’” (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.)
Courts “must interpret legislative enactments so as to avoid absurd results.”
(People v. Torres (2013) 213 Cal.App.4th 1151, 1158.)
B. Section 1172.6 (d)(3)
Effective January 1, 2019, the Legislature enacted Senate Bill
No. 1437 (SB 1437). The Legislature amended sections 188 and 189, which
substantially narrowed the liability of accomplices to murder: “It is a bedrock
principle of the law and of equity that a person should be punished for his or
her actions according to his or her own level of individual culpability.” (Stats.
2018, ch. 1015, § 1, subd. (d).)
“With this purpose in mind, [the Legislature] ‘amend[ed] 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
6
major participant in the underlying felony who acted with reckless
indifference to human life.’” (People v. Curiel (2023) 15 Cal.5th 433, 448.)
The Legislature also added former section 1170.95, which created
a process for those convicted of murder under now obsolete accomplice
liability theories to seek vacatur and resentencing. Effective January 1, 2022,
the Legislature revised section 1170.95 through the passage of Senate Bill
No. 775 (SB 775). Petitioners who were convicted of attempted murder and
manslaughter under now obsolete theories may also seek relief. (§ 1172.6 (a).)
“Petitioners seeking relief under section 1172.6 must, first, file a
facially valid petition that states the statutory requirements for relief (id.,
subd. (b)), and second, make a ‘prima facie showing’ (id., subd. (c)), before a
court must issue an order to show cause and hold an evidentiary hearing on
the ultimate question of resentencing at which the People will bear the
burden of defending a conviction under the amended law (id., subd. (d)).”
(People v. Patton (2025) 17 Cal.5th 549, 600.)
As originally drafted, former section 1170.95 (d)(3) provided: “At
the hearing to determine whether the petitioner is entitled to relief, the
burden of proof 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.” (Stats. 2018, ch. 1015, § 4, italics
added.)
Through SB 775, the Legislature struck the above italicized
phrase. The statute now reads, in relevant part: “The admission of evidence
7
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. 4 The prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.” (§ 1172.6 (d)(3).)
C. Application and Analysis
When interpreting a statute, we give the words of the statute “a
plain and commonsense meaning” unless the statute specifically defines the
words to give them a special meaning. (Flannery v. Prentice (2001) 26 Cal.4th
572, 577–578.) The plain and commonsense meaning of the adjective “any” is
“used to indicate one selected without restriction.” (Webster’s Collegiate 11th
Dict. (2003) p. 56, col. 2, italics added.)
Under section 1172.6 (d)(3), evidence from “any prior hearing or
trial” may be admitted at the evidentiary hearing, with a restriction that the
evidence must also be “admissible under current law.” (Italics added.) That
is, there may be some evidence that was admitted at a prior hearing or trial
4
Under section 872 (b), qualified peace officers at preliminary
hearings may ordinarily testify as to statements made to them by others
(Prop. 115 testimony). (Montez v. Superior Court (1992) 4 Cal.App.4th 577,
584 [“the provisions of Proposition 115 which permit the use of hearsay at
preliminary hearings . . . are but another exception to the hearsay rule”].)
8
that would not be admissible under current law due to intervening changes in
the law. (See, e.g., People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez)
[under current law, a gang expert cannot relate case-specific hearsay to
support the expert’s opinion].) The only other explicit restriction under
section 1172.6 (d)(3) is that Prop. 115 testimony from a preliminary hearing
generally cannot be admitted into evidence.
Here, at Ramos’s evidentiary hearing, the trial court admitted
into evidence the transcripts from Cordero’s trial. Ramos does not contend
that any of the evidence relied on by the court at the evidentiary hearing is
now inadmissible due to any intervening changes in the law. Further, Ramos
does not contend that any Prop. 115 testimony was improperly admitted.
Based on the plain language of the statute, we hold that the trial
court did not commit an evidentiary error when it admitted the transcripts
from Cordero’s prior trial at Ramos’s evidentiary hearing under section
1172.6 (d)(3). Thus, we affirm the court’s order that denied Ramos’s section
1172.6 petition for vacatur and resentencing.5
Ramos argues in this appeal, as he did in the trial court, that the
Legislature intended to restrict the admission of prior “testimonial evidence”
in an evidentiary hearing under section 1172.6, “to those hearings or trials in
which the defendant was a party.” We disagree.
Under well established and long standing rules of statutory
interpretation, we cannot assume the Legislature intended to include an
5
We are certifying this opinion for publication because this
appears to be an issue of first impression. (See Cal. Rules of Court, rule
8.1105(c)(2) [an opinion “should be certified for publication” when it “[a]pplies
an existing rule of law to a set of facts significantly different from those
stated in published opinions”].)
9
additional restriction on the admission of evidence that does not appear in
the language of the statute. (See Vasquez v. State of California, supra, 45
Cal.4th at p. 253 [“We may not rewrite the statute to conform to an assumed
intention that does not appear in its language”].)
Under section 1172.6 (d)(3), the Legislature explicitly allowed for
testimonial evidence to be admitted from “any prior hearing or trial” so long
as the evidence “is admissible under current law.” The statute does not
include a further restriction that the petitioner must also have been a party
to that prior hearing or trial. Thus, we reject Ramos’s notion regarding the
Legislature’s intent, which, in fact, appears to be directly at odds with the
Legislature’s broadly written language in section 1172.6 (d)(3). 6
Our holding is consistent with another appellate court that held
that a defendant’s sworn statements at a parole board hearing may be
properly admitted at an evidentiary hearing under section 1172.6. (See
Mitchell, supra, 81 Cal.App.5th at pp. 580–581.) In Mitchell, defendant
participated in a robbery in which a victim was killed. (Id. at p. 580.)
Defendant was convicted of murder, and received a lengthy prison sentence.
He later filed a section 1172.6 petition. (Id. at p. 583.) At an evidentiary
hearing, the People introduced defendant’s sworn statements from a prior
parole hearing in which he described his role in the underlying crime. (Id. at
p. 581.) The trial court denied the petition after finding defendant “was a
6
Nonetheless, we acknowledge that there is a certain
commonsense appeal to the argument that the language in section 1172.6
(d)(3) refers only to “evidence previously admitted at any prior hearing or
trial” in which the petitioner was involved—i.e., the petitioner was a party
and had an opportunity to cross-examine witnesses against him or her.
Therefore, we urge the Legislature to amend section 1172.6 (d)(3) if it did not
intend for transcripts from a separately conducted trial as to a codefendant to
be considered during an evidentiary hearing under this section.
10
major participant who acted with reckless indifference to human life.” (Id at.
p. 586.) On appeal, defendant argued “that the trial court erred by
considering the parole hearing transcript.” (Ibid.) The Court of Appeal
disagreed: “The point of this petitioning process is to find truth and to do
justice. In this quest, the facts must matter. It is fair to permit the court to
evaluate how [defendant] described his role in his crime.” (Id. at p. 580.)
“The overall goal of the petitioning process here is to make the
punishment fit the crime in a precise and particularized way. The Legislature
sought to ensure murder culpability is commensurate with a person’s
individual actions. [Citation.] [¶] That takes facts. [¶] The Legislature
responded to long-standing critiques of murder doctrine by creating a process
to ameliorate past excesses that created sentences judged to be too long and
to resentence where appropriate. So the focus is on examining the truth of
what happened to evaluate whether to reduce an individual’s sentence so the
punishment fits the crime.” (Mitchell, supra, 81 Cal.App.5th at p. 587.)
“It would contravene this goal of individualizing punishment for
courts to blind themselves to the individualized facts of the case. This appeal
illustrates how a parole transcript can be a valuable source of information
about a particular defendant’s actions, and thus potentially important in the
work of aligning individual punishment with individual culpability. This
work benefits from the kind of evidence a parole transcript can provide.”
(Mitchell, supra, 81 Cal.App.5th at pp. 587–588.)
Here, similar to Mitchell, the admission of the transcripts from
Cordero’s trial aligns with the legislative purpose of section 1172.6, which is
to ensure that a petitioner’s punishment is commensurate with his actions in
the underlying crime. The transcripts revealed that Ramos was the actual
shooter who acted with the intent to kill, and therefore he is ineligible for
11
relief under section 1172.6. As in Mitchell, it would contravene the
Legislature’s purpose—and the plain language of section 1172.6—for the trial
court to have blinded itself to the facts of this case by failing to consider
“evidence previously admitted at any prior hearing or trial that is admissible
under current law, including witness testimony.” (§ 1172.6 (d)(3), italics
added; see also People v. Torres, supra, 213 Cal.App.4th at p. 1158 [“we must
interpret legislative enactments so as to avoid absurd results”].)
Our holding is also consistent with another appellate court that
held that grand jury transcripts may be properly admitted at an evidentiary
hearing under section 1172.6. (People v. Robinson (2024) 106 Cal.App.5th 854
(Robinson), review granted Feb. 26, 2025, S288606.) In Robinson, defendant
pleaded no contest to attempted murder. (Id. at pp. 859–860.) Years later,
defendant filed a section 1172.6 petition. (Id. at p. 861.) At an evidentiary
hearing the trial court admitted into evidence underlying grand jury
transcripts, which showed defendant was the actual shooter. (Id. at pp. 861–
864.) The trial court denied defendant’s section 1172.6 petition. (Id. at p.
860.) On appeal, defendant argued that “the trial court erred in considering
testimony from grand jury transcripts.” (Ibid.) The Court of Appeal
disagreed. The appellate court held “that testimony from grand jury
proceedings constitutes evidence previously admitted at ‘any prior hearing’ as
proscribed by section 1172.6, subdivision (d)(3).” 7 (Id. at p. 872.)
“Since the primary purpose of . . . a section 1172.6 hearing is to
7
It appears, as in this case, the Attorney General agreed with the
defendant’s position, and the local district attorney filed an amicus curiae
brief in opposition. (Robinson, supra, 106 Cal.App.5th at p. 860.) The same is
true in People v. Ocobachi (2024) 105 Cal.App.5th 1174, 1182–1183, although
the Ocobachi court rejected the argument of amicus curiae (the local district
attorney) that grand jury testimony is admissible under section 1172.6 (d)(3).
12
determine a petitioner’s role in the crime of which he or she was convicted, it
seems to us that reliance on grand jury 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.” (Robinson, supra, 106 Cal.App.5th at p. 870.) “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.” (Ibid.)
“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 [evidentiary] hearing is not a trial, criminal
prosecution, or subsequent retrial. [Citation.] It is a postconviction collateral
proceeding, the scope of which is limited to the issues made relevant by the
amended law of murder. [Citation.] Many of the protections under the Sixth
Amendment do not apply to the petitioning process under section 1172.6.”
(People v. Robinson, supra, 106 Cal.App.5th at pp. 870–871) The Robinson
court noted that defendant’s right to confront the witnesses against him did
not apply at evidentiary hearings under section 1172.6. (Id. at p. 871.)
Here, as in Robinson, Ramos did not participate in the prior
proceeding in which his codefendant Cordero was convicted as an aider and
abettor. But if Ramos wanted to challenge any of the prior testimony
admitted from Cordero’s trial, he certainly had the opportunity to do so at the
evidentiary hearing. Ramos could have subpoenaed witnesses, made
appropriate arguments to the trial court, or he could have testified on his own
behalf. (See § 1172.6 (d)(3) [“The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens”].) Indeed, if
13
Ramos believed there was some relevant evidence from any other prior
hearing or trial that was admissible under current law, he too could have
sought to introduce that prior testimony. (See § 1172.6 (d)(3) [“the court may
consider evidence previously admitted at any prior hearing or trial that is
admissible under current law”], italics added.)
Ramos also argues that the trial court erred in admitting
testimonial evidence from Cordero’s trial for its truth because the testimony
constitutes inadmissible hearsay under the Evidence Code. We disagree.
Hearsay evidence is generally “understood as an out-of-court
statement offered for the truth of its content.” (Sanchez, supra, 63 Cal.4th at
p. 674.) Hearsay evidence is normally excluded under the hearsay rule. (Evid.
Code, § 1200.) However, there are numerous exceptions to the hearsay rule
within the Evidence Code, and there are other hearsay exceptions located
outside of the Evidence Code. (See, e.g., § 872, subd. (b); see also People v.
Davenport (2023) 95 Cal.App.5th 1150, 1158 (Davenport) [holding that a
preliminary hearing transcript from an underlying murder, which contained
non-Prop 115 testimony identifying petitioner as the shooter, was admissible
hearsay evidence at a section 1172.6 evidentiary hearing].)
“In effect, what section 1172.6, subdivision (d)(3) does is create a
new hearsay exception applicable specifically to [evidentiary] hearings in
section 1172.6 resentencing proceedings. ‘Most hearsay exceptions are located
in Evidence Code §§ 1220 to 1390. They exist, however, in other codes as
well.’ (Simons, Cal. Evidence Manual (Dec. 2022) § 2:20.) Section 872,
subdivision (b), is an example. Section 1172.6, subdivision (d)(3), contains
another, broader exception for former testimony given at a preliminary
hearing, but carves out an exception for section 872, subdivision (b),
testimony. Thus, as we read section 1172.6, subdivision (d)(3), the rules of
14
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 previously admitted
at any prior hearing [or trial that is admissible under current law, including
witness testimony].’” (Davenport, supra, 95 Cal.App.5th at p. 1158.)
Ordinarily, under the standard Evidence Code hearsay exception,
in order to introduce witness testimony from a prior hearing or trial, the
proponent of the evidence must first establish (1) the witness is unavailable
to testify in the present proceeding, and (2) the party against whom the
testimony is being offered had the opportunity to cross-examine that witness
at that prior hearing or trial. (Evid. Code, § 1291.) However, Penal Code
section 1172.6 (d)(3) acts as a broader exception to the hearsay rule because it
does not include those two limitations provided for in Evidence Code section
1291. (See Davenport, supra, 95 Cal.App.5th at pp. 1158–1159.)
Our decision on this point is consistent with an earlier opinion by
this court, which held that prior witness testimony is admissible at a section
1172.6 evidentiary hearing without a showing of witness unavailability under
Evidence Code section 1291. (See People v. Cody (2023) 92 Cal.App.5th 87
(Cody).) In Cody, defendant was convicted of felony murder at a jury trial. He
was sentenced to life in prison. Defendant later filed a section 1172.6 petition,
and the court issued an order to show cause. (Id. at pp. 92–93.) Prior to the
evidentiary hearing, the court reviewed the underlying trial transcripts, and
found defendant ineligible for relief under a valid murder theory. (Id. at p.
101.) On appeal, defendant argued, in part, that the trial court committed an
evidentiary error because “when a trial court conducts an evidentiary
hearing, the prosecution must always first make a showing that a witness is
15
unavailable before his or her former testimony at trial can be admitted into
evidence at the evidentiary hearing.” (Id. at p. 103.)
In Cody, this court disagreed with defendant’s argument, finding
that section 1172.6 “has an explicit [hearsay] 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 (d)(3), italics
added.)” (Cody, supra, 92 Cal.App.5th at p. 104.)
“Section 1172.6, subdivision (d)(3), does contemplate that there
may be some evidence that was admitted at a former trial that would not be
admissible under current law. (See, e.g., [Sanchez, supra, 63 Cal.4th at p.
686] [an expert cannot relate case-specific out-of-court statements to support
the expert’s opinion].) However, that does not mean that all witness
testimony at a prior trial cannot be admitted without the prosecution making
a showing of witness unavailability.” (Cody, supra, 92 Cal.App.5th at p. 104.)
“Were we to adopt [defendant’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’].)” (Cody,
supra, 92 Cal.App.5th at p. 104.)
Consistent with Cody, we find that the People were not required
16
to show the unavailability of the witnesses from Cordero’s 2011 trial, nor
were they required to show that Ramos had the “‘opportunity to cross-
examine’” those witnesses under Evidence Code section 1291. (See Cody,
supra, 92 Cal.App.5th at p. 103.) This is because the Legislature crafted a
new and broader hearsay exception for former witness testimony being
introduced at evidentiary hearings under section 1172.6. (See Davenport,
supra, 95 Cal.App.5th at p. 1158 [“what section 1172.6, subdivision (d)(3)
does is create a new hearsay exception applicable specifically to [evidentiary]
hearings in section 1172.6 resentencing proceedings”], italics added.)
To reiterate and conclude, under the plain meaning of section
1172.6 (d)(3), we hold that a trial court may properly admit transcripts from
a codefendant’s trial at a petitioner’s evidentiary hearing. 8 Such evidence
furthers the purposes of the statute, which is to search for the truth and to
ensure that a petitioner’s culpability is commensurate with his actions. The
testimonial evidence does not violate the Evidence Code, nor does it implicate
a petitioner’s Sixth Amendment right to confront the witnesses. And to
ensure fundamental fairness, the statute allows the petitioner to “offer new
or additional evidence” at the evidentiary hearing. (§ 1172.6 (d)(3).)
The Attorney General makes a slippery slope argument by
suggesting that our holding means that “as long as the evidence was
8
The parties and amicus make conflicting arguments based on
the legislative history of section 1172.6. But since we are finding that the
statute is clear and unambiguous, we need not address those arguments in
this appeal. (See People v. Bradley (2012) 208 Cal.App.4th 64, 83 [“Courts
must look first to the plain words of an enactment and, if there is no
ambiguity in the language, must presume the legislative body meant what it
said without resort to legislative history”]; People v. Overstreet (1986) 42
Cal.3d 891, 895 [“When statutory language is clear and unambiguous, there
is no need for construction and courts should not indulge in it”].)
17
previously admitted against someone, somewhere then it is admissible
against a petitioner” at a section 1172.6 evidentiary hearing. We disagree.
Again, the statute provides: “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 . . . .” (§ 1172.6 (d)(3), italics added.)
We interpret the statute to mean that evidence that is not
relevant and/or probative at a section 1172.6 evidentiary hearing would still
be subject to exclusion as “governed by the Evidence Code.” (§ 1172.6 (d)(3);
see, e.g., Evid. Code, § 352; see also Robinson, supra, 106 Cal.App.5th at p.
870 [“trial judges are well versed in . . . attributing whatever weight they
deem appropriate to ‘prior hearing’ testimony”].) We note that the evidence
from Cordero’s trial was certainly relevant and probative. The uncontradicted
evidence proved beyond a reasonable doubt that Ramos is guilty of attempted
murder under a current and valid legal theory (i.e., he was the shooter).
18
III.
DISPOSITION
We affirm the order of the trial court, which was a denial of
Ramos’s section 1172.6 petition.
MOORE, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
SCOTT, J.
19