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Name: People v. Davenport (2023) 95 Cal.App.5th 1150
Case #: A165093
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 09/27/2023

During petitioner’s Penal Code section 1172.6(d)(3) hearing, the trial court properly admitted the preliminary hearing testimony of a witness to the crime without requiring the prosecution to show the witness was unavailable. In 2007, Davenport pleaded no contest to second degree murder with a personal use firearm enhancement for a shooting death. Davenport petitioned for resentencing under Penal Code section 1170.95 (now section 1172.6). At the (d)(3) hearing, the trial court found that Davenport was the actual killer and was ineligible for resentencing. On appeal, Davenport argued the trial court erroneously admitted the preliminary hearing testimony of a witness to the shooting, which he argued was hearsay. Held: Affirmed. Although section 1172.6(d)(3) does not contain express language stating that a preliminary hearing transcript is admissible at the evidentiary hearing, the Court of Appeal concluded that a plain reading of the statute compels this conclusion. In effect, section 1172.6(d)(3) creates a new hearsay exception applicable specifically to (d)(3) hearings for evidence previously admitted at any prior hearing, including former testimony given at a preliminary hearing, but it carves out an exception for Penal Code section 872(b) testimony (law enforcement officer testimony as to hearsay statements). The court disagreed with Davenport’s argument that the additional phrase in section 1172.6(d)(3) requiring previously admitted evidence to be “admissible under current law” means the evidence must be admissible under the Evidence Code. The prosecution was not required to show witness unavailability under Evidence Code section 1291 as a prerequisite to admission. Here, the preliminary hearing witness testified competently from her personal knowledge and no change in the law would bar her testimony if that hearing were held today.