things) first degree murder, on a felony murder theory, and sentenced to 56 years to life
in prison.
The trial court denied Vance’s petition under Penal Code section 1172.6 1 to vacate
his murder conviction. He appeals. He contends the trial court erred by:
(1) Considering only the facts as stated in our opinion in Vance’s direct appeal,
rather than the facts as shown by the record of conviction.
(2) Applying an erroneously low burden of proof.
We will hold that Vance’s counsel forfeited the trial court’s erroneous reliance on
our prior opinion by failing to object, and that in the absence of any objection, our prior
opinion constituted substantial evidence.
We will also hold that, in a section 1172.6 proceeding, the trial court’s erroneous
application of an unduly low burden of proof is not reversible per se. Rather, the
appellant has the burden of showing that it is reasonably probable that, in the absence of
1 All further statutory citations are to the Penal Code, unless otherwise indicated.
The petition was actually filed under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.
2
the error, he or she would have enjoyed a more favorable outcome. As Vance has not
even tried to meet this burden, we cannot say the error was prejudicial.
I
STATEMENT OF THE CASE
In 2003, Vance was found guilty of first degree murder (§ 187, subd. (a); former
§ 189, subd. (a)) and first degree burglary (§§ 459, 460). The only theory of first degree
murder on which the jury was instructed was felony murder.
In a bifurcated proceeding, after waiving a jury trial, Vance admitted one strike
In 2019, Vance filed a petition pursuant to section 1172.6. The trial court found
that the petition made a prima facie showing, and it set an evidentiary hearing.
At the evidentiary hearing, the prosecution requested judicial notice of the record
in the underlying case. The trial court did not expressly rule on the request; however, it
said it was relying solely on the facts as stated in our opinion in the direct appeal. 2
2 Specifically, it said: “The opinion of the Court of Appeal affirming the original conviction sets forth a detailed factual account of the evidence presented at trial. The Court relies on the factual summary in that opinion for analysis of this [1172.6] petition.”
3
After hearing argument, it denied the petition. It found “substantial evidence that”
Vance was the actual killer. It also found “substantial evidence that” Vance was a major
participant in the underlying burglary and acted with reckless indifference to human life.
II
LEGAL BACKGROUND
Effective January 1, 2019, the Legislature restricted the scope of the felony murder
rule. (Stats. 2018, ch. 1015, § 3.) Specifically, it amended section 189, concerning the
degrees of murder, so as to provide that the felony murder rule (§ 189, subd. (a)) applies
to a person only if:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree.
“(3) The person was a major participant in the underlying felony and acted with
reckless indifference to human life . . . .” (§ 189, subd. (e).) 3
At the same time, the Legislature also enacted section 1172.6 (Stats. 2018, ch.
1015, § 4), which provides: “A person convicted of felony murder . . . may file a petition
. . . to have the petitioner’s murder . . . conviction vacated” if “[t]he petitioner could not
3 Or — we note for completeness, although it is not relevant here — unless the victim was a police officer killed in the course of his or her duties and the defendant knew or should have known that. (§ 189, subd. (f).)
4
presently be convicted of murder” as a result of the amendment of section 189.
(§ 1172.6, subds. (a), (a)(3).)
If a petition under section 1172.6 is facially sufficient, the trial court must hold a
hearing to determine whether the petition states a prima facie claim for relief. (§ 1172.6,
subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 957.)
If the petition does state a prima facie claim for relief, the trial court must hold an
evidentiary hearing. At the evidentiary hearing, the prosecution has the burden to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder even under current law.
(§ 1172.6, subds. (d)(1), (d)(3).) If the prosecution fails to meet this burden, the trial
court must grant the petition and vacate the murder conviction. (§ 1172.6., subd. (d)(3).)
IV
THE TRIAL COURT’S RELIANCE ON OUR PRIOR OPINION
Vance contends that our prior opinion was not evidence, and therefore the trial
court’s denial of the petition, which was based solely on our prior opinion, was not
supported by sufficient — or, indeed, by any — evidence.
Section 1172.6, as originally enacted, provided that “the record of conviction” was
admissible at an evidentiary hearing. (Former § 1170.95, subd. (d)(3), Stats. 2018,
ch. 1015, § 4.) However, it was amended, effective January 1, 2022, so as to add the
following italicized language: “At the hearing to determine whether the petitioner is
entitled to relief, . . . [t]he court may . . . consider the procedural history of the case
5
recited in any prior appellate opinion.” (Former § 1170.95, subd. (d)(3), Stats. 2021,
ch. 551, § 2, italics added.)
We have held that, by allowing consideration of “the procedural history” in a prior
appellate opinion, the Legislature intended to prohibit consideration of “the factual
summar[y]” in a prior appellate opinion. (People v. Clements (2022) 75 Cal.App.5th 276,
292 (Clements); accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The
evidentiary hearing here was held well after Clements was decided. Nevertheless, the
trial court relied exclusively on the statement of facts in our prior opinion.
Vance argues that our opinion was not evidence at all. We disagree. It was
substantial evidence; it simply was not admissible evidence.
As a general rule, if inadmissible evidence is admitted without objection, it is
substantial evidence; the failure to object forfeits its inadmissibility. (Evid. Code, § 353,
subd. (a).) Thus, for example, hearsay admitted without objection is substantial evidence
sufficient to support a judgment. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260,
1268.)
Categories of logically relevant evidence that nevertheless cannot be substantial
evidence are rare. One example is that an expert’s opinion on a question of law is not
substantial evidence. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841.) Likewise, an
expert’s opinion that is based on speculation is not substantial evidence. (People v.
Ramon (2009) 175 Cal.App.4th 843, 851.) And evidence of a prior oral agreement
inconsistent with an integrated written contract is not substantial evidence. (IIG Wireless,
6
Inc. v. Yi (2018) 22 Cal.App.5th 630, 640.) Generally, these categories exist because, for
some policy reason, we do not want the evidence to have any influence on the trier of
fact’s decision.
At an evidentiary hearing under section 1172.6, an appellate opinion summarizing
the facts, as shown in the record, is logically relevant. Our research has not revealed any
legislative history explaining why the Legislature chose to make such an opinion
inadmissible as evidence of the factual background of the case. Presumably, however, it
was because the record itself is better evidence. An appellate opinion necessarily must
leave out at least some of the facts. It may set forth only those facts that are relevant to
the particular issue(s) being raised on appeal, thus omitting facts that will become
relevant later under section 1172.6. And it may inadvertently misstate a fact.
These are good reasons to make an appellate opinion inadmissible. However, they
are not good reasons to preclude the trier of fact from considering an appellate opinion
under any circumstances. For example, a petitioner who feels that an appellate opinion is
accurate and complete may well prefer to offer it to the trial court, in lieu of the entire
record, for convenience. Presumably that is why defense counsel did not object here.
We conclude that, when an appellate opinion is admitted at an evidentiary hearing
under section 1172.6, without objection, it is substantial evidence that the trial court can
consider. Vance forfeited any objection to such consideration. Moreover, because the
opinion was substantial evidence, which simply should have been excluded as
inadmissible, harmless error analysis applies. Vance cannot show that, if the opinion had
7
been excluded, he would have enjoyed a more favorable result. (See People v. Watson
(1956) 46 Cal.2d 818, 836.) Presumably, in that event, the trial court would have
considered the record of conviction; the prosecution had done everything it could to get it
to take judicial notice of that record. Vance has never claimed that our opinion
misrepresented or omitted any material part of the record. Hence, the error was harmless.
V
ERRONEOUSLY LOW BURDEN OF PROOF
Vance contends that the trial court applied an erroneously low burden of proof.
Section 1172.6, as originally enacted, provided that at an evidentiary hearing, “the
burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Former § 1170.95, subd. (d)(3), Stats. 2018,
ch. 1015, § 4, subd. (d)(3).)
Some courts took this to mean that the trial court had to deny the petition as long
as there was substantial evidence to support the original jury’s finding, beyond a
reasonable doubt, that the petitioner was guilty of murder under current law. (E.g.,
People v. Duke (2020) 269 Cal.Rptr.3d 264, 272 (Duke), review granted, Jan. 13, 2021,
S265309, cause transferred and ordered not citable, Nov. 23, 2021.)
Other courts held that the trial court had to grant the petition, unless it found,
independently and beyond a reasonable doubt, that the petitioner was guilty of murder
under current law. (E.g., People v. Lopez (2021) 271 Cal.Rptr.3d 170, 181–182, review
8
granted, Feb. 10, 2021, S265974, cause transferred and ordered not citable, Dec. 22,
2021.)
Section 1172.6 was amended, effective January 1, 2022, to resolve this dispute.
(Stats. 2021, ch. 551, § 2.) It now provides: “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 guilty of murder or attempted murder
under current California law . . . . A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
Here, even though the evidentiary hearing was held in July 2022, the trial court
applied the incorrect standard of proof. It denied the petition because it found substantial
evidence that Vance was the actual killer. It also denied the petition, alternatively,
because it found substantial evidence that he was a major participant and acted with
reckless indifference. In fact, this was an even lower burden than the erroneously low
Duke burden; the trial court asked only whether there was substantial evidence, not
whether there was substantial evidence sufficient to convince a jury beyond a reasonable
doubt.
Unhelpfully, Vance does not discuss the applicable harmless error standard.
Rather, he argues that the error is reversible per se.
People v. Garrison (2021) 73 Cal.App.5th 735 (Garrison) held that the precise
error here — applying the wrong burden of proof at an evidentiary hearing under section
9
1172.6 — is not reversible per se. (Id. at pp. 745–747; accord, People v. Garcia (2022)
82 Cal.App.5th 956, 971-972.) Vance tries to distinguish Garrison on the ground that
there, the trial court used the wrong standard of proof, whereas here, the trial court
supposedly used no standard of proof. Not so. In both cases, the error was using a
substantial evidence standard. (Garrison, supra, at p. 745.) Garrison is squarely on
point.
Vance argues that, because section 1172.6, subdivision (d)(3) refers to “the”
evidentiary hearing, there can never be a second evidentiary hearing. This argument is
frivolous. There are many references to “the trial” in the Penal Code (e.g., §§ 190.05,
subd. (g), 190.4, subd. (a), 190.7, subd. (a)(2), 293.5, subd. (b), 656, 663), yet when a
conviction is reversed, a retrial is not generally barred. Rather, the controlling statute is
section 1260, which, as relevant here, provides: “The [appellate] court . . . may, if
proper, order a new trial and may, if proper, remand the cause to the trial court for such
further proceedings as may be just under the circumstances.”
Vance also cites People v. Keel (2022) 84 Cal.App.5th 546. There, the court
found insufficient evidence to support the trial court’s finding that the petitioner acted
with reckless indifference (id. at pp. 556–563), so it remanded with directions to grant the
petition. (Id. at p. 565.)
In an appeal from a conviction, if the appellate court reversed based on
insufficiency of the evidence, double jeopardy bars a retrial. (Burks v. United States
(1978) 437 U.S. 1, 18.) Double jeopardy principles do not apply in section 1172.6
10
proceedings. (People v. Mitchell (2022) 81 Cal.App.5th 575, 589.) Nevertheless, we
accept that, if the prosecution fails to introduce sufficient evidence at the evidentiary
hearing, it is not allowed to keep trying again and again until it does.
In part IV, ante, however, we rejected Vance’s contention that there was
insufficient evidence to support the denial of the petition. Tellingly, he does not argue
that, even if the trial court was allowed to consider our prior appellate opinion, there still
was insufficient evidence that he is guilty of murder under current law. The trial court’s
only relevant error was in applying an erroneously low burden of proof. Accordingly,
this case falls squarely under the general rule that “[b]y seeking reversal of a judgment of
conviction on appeal, ‘“in effect, [a petitioner] assents to all the consequences
legitimately following such reversal, and consents to be tried anew.”’ [Citations.]”
(People v. Eroshevich (2014) 60 Cal.4th 583, 591.)
Garrison declined to decide whether the applicable harmless error standard is the
federal constitutional “beyond a reasonable doubt” standard (see Chapman v. California
(1967) 386 U.S. 18, 24) or the state law “reasonably probable” standard (see People v.
Watson, supra, 46 Cal.2d at p. 836). It seems clear, however, that the state law standard
applies. “A petition under . . . section [1172.6] is not a criminal prosecution. [Citation.]”
(People v. Mitchell, supra, 81 Cal.App.5th at p. 588.) Vance has already been convicted
of murder. The Legislature, in an act of grace and mercy, has provided the section
1172.6 proceeding, which reduces guilt and punishment on terms that the Legislature is
entitled to prescribe. (See People v. Conley (2016) 63 Cal.4th 646, 656 [“the Legislature
11
. . . may choose to modify, limit, or entirely forbid the retroactive application of
ameliorative criminal law amendments if it so chooses”].)
Under these circumstances, most of the federal constitutional protections that
attend a criminal conviction do not apply. (People v. Mitchell, supra, 81 Cal.App.5th at
p. 589 [no constitutional right against double jeopardy]; People v. Myles (2021) 69
Cal.App.5th 688, 703 [no constitutional right against self-incrimination]; People v. James
(2021) 63 Cal.App.5th 604, 611 [no constitutional right to trial by jury]; see also People
v. Lewis, supra, 11 Cal.5th at pp. 972–974 [no constitutional right to counsel; a due
process right to counsel at the evidentiary stage but not at the prima facie stage]; but see
People v. Basler (2022) 80 Cal.App.5th 46, 57–58 [section 1172.6 proceeding is a critical
stage at which petitioner has a federal constitutional right to be personally present].)
This includes the requirement of proof beyond a reasonable doubt. The
Legislature could have provided that the People’s burden of proof is by a preponderance
of the evidence; it could even have provided that a petitioner is not entitled to relief as
long as there is substantial evidence of guilt under current law. Instead, it required proof
beyond a reasonable doubt. However, this is merely a state statutory right; a violation of
the right is subject to the state law harmless error standard.
We need not actually decide whether the error was harmless. Under the state law
standard, Vance has the burden of showing prejudice. (People v. Penunuri (2018) 5
Cal.5th 126, 169; People v. Hernandez (2011) 51 Cal.4th 733, 746.) Instead, he has
staked all of his chips on the proposition that reversal is automatic. He does not argue
12
that even if reversal is not automatic, the error was prejudicial. He has not so much as
supplied us with a statement of facts, which we would need if we were going to consider
prejudice. Even after the People argued that the error was harmless, Vance stuck to his
strategy; he made no effort in his reply brief to show that the error was prejudicial.
Finally, at oral argument, his appellate counsel conceded that, if harmless error analysis
does apply, he cannot show prejudice. We conclude that Vance has forfeited any claim
that the trial court’s application of an erroneous burden of proof was prejudicial.
VI
DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.
We concur:
McKINSTER J.
RAPHAEL J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court's reliance on a prior appellate opinion in a section 1172.6 proceeding is forfeited if not objected to, and that the erroneous application of a 'substantial evidence' burden of proof is subject to harmless error analysis rather than being reversible per se.
Issues
Whether an appellate opinion constitutes substantial evidence in a section 1172.6 proceeding when admitted without objection.
Whether the trial court's application of an erroneously low burden of proof in a section 1172.6 proceeding is reversible per se.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Vance’s counsel forfeited the trial court’s erroneous reliance on our prior opinion by failing to object, and that in the absence of any objection, our prior opinion constituted substantial evidence.”
“in a section 1172.6 proceeding, the trial court’s erroneous application of an unduly low burden of proof is not reversible per se.”
“Vance has forfeited any claim that the trial court’s application of an erroneous burden of proof was prejudicial.”