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Name: People v. Njoku (2023) 95 Cal.App.5th 27
Case #: C093672
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/31/2023

After an evidentiary hearing under Penal Code section 1172.6(d)(3), the substantial evidence standard of review applies on appeal, even with a “cold record.” Njoku was convicted of second degree murder after her brother stabbed the victim. A witness said that Njoku egged on the fight and stomped on the victim after he had been stabbed. At Njoku’s section 1172.6(d)(3) hearing, the parties relied on only the trial transcript and did not introduce any additional evidence. The trial court denied the 1172.6 petition, finding Njoku acted with implied malice. She appealed. Held: Affirmed. The Court of Appeal disagreed with Njoku’s argument that People v. Vivar (2021) 11 Cal.5th 510, required an independent review of the denial of a 1172.6 petition when the trial court obtained its facts from a cold record. Whether Njoku harbored the malice required for a finding of second degree murder is predominantly a factual question reviewable for substantial evidence. Where the question is primarily a question of fact, the court saw no reason to withhold the deference generally afforded to such factual findings, even if the trial court relies solely on the record of conviction to determine eligibility. (People v. Perez (2018) 4 Cal.5th 1055.)

Permitting a trial court to resolve disputed facts in the absence of live testimony at a section 1172.6(d)(3) hearing does not violate defendant’s right to due process. Njoku argued that relying on the cold record alone to resolve disputed facts violates due process and, as a result, the prosecution failed to meet its burden of demonstrating she was ineligible for resentencing. The Court of Appeal disagreed. While it is not ideal to ask the trial judge to make factual determinations on a cold record, the Legislature landed on that compromise as a way of extending the ameliorative benefits of its redefinition of murder to people convicted under the prior law. Because a sentence modification under section 1172.6 is an act of lenity and not a criminal trial, a petitioner does not possess many of the constitutional rights afforded to a criminal defendant at trial. However, Njoku received adequate procedural due process during the resentencing hearing under the Mathews v. Eldridge test. The private interest at stake is whether the petitioner is entitled to a reduced sentence after having already been found guilty of murder. The government interest in not holding a full trial includes avoiding an extremely high cost and loss of efficiency of all court business. And finally, section 1172.6 provides procedural safeguards—including the right to counsel, an evidentiary hearing that permits new evidence, and evidentiary limitations—which account for the credibility concerns raised by Njoku.