ordered published 5/31/2023

The trial court properly relied on trial transcripts at the Penal Code section 1172.6 evidentiary hearing. In 2012, a jury found Cody and a codefendant guilty of murder during a home invasion burglary/robbery and found true a felony-murder special-circumstance allegation. In 2016, a federal court found the trial court erred by failing to give the accomplice felony-murder special-circumstance jury instruction and that the error was prejudicial. The prosecutor elected not to retry the felony-murder special-circumstance allegation, and appellant was resentenced from LWOP to 25 years to life. Cody filed a section 1172.6 petition. After a (d)(3) hearing where the trial court reviewed the 2012 trial transcripts, the court denied the petition. Cody appealed. Held: Affirmed. Section 1172.6, subdivision (d)(3) states that 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 . . . .” Therefore the prosecution did not have to first make a showing that a witness was unavailable under Evidence Code section 1291 before the witness’s former testimony at trial could be admitted into evidence at the evidentiary hearing.

Substantial evidence supported the trial court’s factual determination that petitioner was a major participant and acted with reckless indifference to human life. The trial court acted as an independent fact finder and found, beyond a reasonable doubt, that Cody was a major participant and acted with reckless indifference to human life. After analyzing the Banks/Clark factors, the Court of Appeal concluded these findings were supported by substantial evidence. Cody was intimately involved at all stages of the home-invasion burglary, and although there was no evidence as to which of the defendants strangled the homeowner victim, there was evidence suggesting both defendants inflicted significant blunt force trauma that contributed to the death. The ransacked condition of the victim’s home indicated that the time of the underlying burglary/robbery was not short. The victim was bound and had defensive wounds, and there was a reasonable inference that Cody had an opportunity to stop the killing, or at least to help the 75-year-old victim. Finally, neither the federal court’s 2016 order vacating the special-circumstance enhancement, nor the prosecution’s 2017 decision not to retry the allegation, was a legal determination that there was insufficient evidence to support the allegation. [Editor’s Note: Cody also argued the trial court applied the wrong burden of proof at the evidentiary hearing (something other than beyond a reasonable doubt), but the Court of Appeal disagreed.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/G060218.PDF