People v. Cendejas CA1/1

Filed 12/19/23 P. v. Cendejas CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi- cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or- dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A164178

v. (Napa County ROBERTO CENDEJAS, Super. Ct. No. CR36042) Defendant and Appellant.

MEMORANDOM OPINION1 Defendant Roberto Cendejas appeals from the denial of his petition for resentencing under Penal Code former section 1170.952 (now section 1172.6) following an evidentiary hearing. He does not challenge the sufficiency of the evidence to support the court’s decision denying his petition. Rather, he contends the admission of certain hearsay testimony from the preliminary hearing—which was admissible at the time of the resentencing hearing but is now inadmissible under recent amendments to the statutory scheme—was prejudicial, mandating reversal and remand for a new hearing. The Attorney

This matter is properly disposed of by memorandum opinion pursu- 1

ant to California Standards of Judicial Administration, section 8.1, subdivi- sions (1) and (3). All further references are to the Penal Code unless otherwise 2

indicated.

1

General concedes the challenged hearsay testimony is now inadmissible but asserts error in its admission at the resentencing hearing was harmless. Given the size of the record the trial court considered and its inclusion of substantial now-inadmissible testimony by law enforcement officers, we reverse and remand for a new hearing by the trial court. DISCUSSION In October 2000, defendant pleaded guilty to second degree murder and admitted a gang enhancement. Pursuant to the negotiated disposition, the trial court sentenced him to 16 years to life in state prison. In 2019, defendant filed a petition for resentencing under former section 1170.95 (now § 1172.6). The trial court appointed counsel, ruled defendant made a prima facie showing of entitlement to resentencing, and issued an order to show cause. The only evidence presented at the 2021 evidentiary hearing was the lengthy transcript (over 2,500 pages) of the 1999 multiple-defendant preliminary hearing.3 The court subsequently issued a written order denying defendant’s petition. The court found the evidence adduced at the preliminary hearing established beyond a reasonable doubt that defendant aided and abetted one of his cohorts, Jacob Hutchins, in a drive-by shooting that resulted in the death of a 17-year-old rival gang member. Specifically, the court found the “evidence establishe[d] beyond a reasonable doubt that [defendant] aided and abetted Hutchins and acted with implied malice, based on his planning, knowledge and conduct, therefore establishing that he is guilty of second degree murder.”