Trial court erred in denying defendant’s Penal Code section 1170.95 (now 1172.6) resentencing petition after finding he could still be convicted of murder for stabbing the victim, because the jury’s not true finding on a knife use allegation precluded this determination. In 1992, defendant was convicted of second degree murder after a man was stabbed to death in a street brawl with multiple people. He filed a section 1172.6 resentencing petition, which was summarily denied. This decision was reversed on appeal and, on remand, the trial court held a (d)(3) hearing. No new evidence was presented. The trial court denied the petition after finding that defendant could still be convicted of murder because he stabbed the victim. Defendant argued on appeal the trial court’s decision was precluded by the jury’s not true finding on a knife use allegation. Held: Reversed. Without deciding whether the reasoning of People v. Cooper (2022) 77 Cal.App.5th 393 or the collateral estoppel doctrine applied in this case, the Court of Appeal concluded that reversal was required. The trial court’s finding that defendant was the actual killer, premised on the trial court’s conclusion that defendant stabbed the victim, contradicted the jury’s prior finding. Additionally, all the requirements of the collateral estoppel doctrine were met. The court remanded for a new hearing at which the trial court may determine whether the defendant acted with malice, but without making any finding or relying on any evidence that contradicts the jury’s not true finding on the knife use enhancement.

The trial court did not err when it considered evidence contained in the preliminary hearing transcript. “At the evidentiary hearings, defendant did not object to the trial court’s consideration of the preliminary hearing transcripts.” Further, section 1172.6(d)(3) provides that the trial court “may consider evidence previously admitted at any prior hearing.” This does not include inadmissible hearsay, however. As defendant failed to establish that the trial court actually relied on hearsay in the preliminary hearing, there was no error.

The trial court did not improperly rely on factual summaries derived from prior appellate opinions. Section 1172.6(d)(3) provides that the trial court may consider the procedural history of the case recited in any prior appellate opinion. This indicates the Legislature has decided the trial court should not rely on the factual summary in the opinions. Here, the record demonstrates that the trial court merely quoted from the prior opinions to “quickly summarize the broader factual history of defendant’s case” after its independent review of the record.