Under Penal Code section 1172.6, where the People introduce without objection uncontroverted evidence from the preliminary hearing transcript that the defendant acted alone, and the defendant does not put forth any factual or legal theory in support of his petition, the defendant has failed to make a prima facie showing. In 1979, Pickett was charged with murder. At the preliminary hearing, two witnesses testified that after conversing with the victim for several minutes, Pickett pulled out a gun. The witnesses heard multiple shots and then saw the victim on the ground. Pickett pleaded guilty to second degree murder and admitted a firearm allegation under section 12022.5. In 2022, he filed a petition for resentencing under section 1172.6. The district attorney opposed, relying in part on the preliminary hearing transcripts. Pickett’s appointed counsel submitted on the petition, which the trial court denied. Pickett appealed. Held: Affirmed. Although Pickett’s petition was facially sufficient, and thus entitled him to the appointment of counsel, it was devoid of factual allegations concerning the killing of the victim. Pickett did not deny that he was the actual killer, nor assert that another person killed the victim, or that he acted without the intent to kill. Since Pickett asserted no objection to the district attorney’s evidence, and offered no evidence or argument that might have raised a factual issue, the Court of Appeal could thus assess Pickett’s prima facie showing without engaging in factfinding. Although evidence adduced at the preliminary hearing establishes only that there is sufficient cause to believe defendant guilty of a public offense, that does not necessarily preclude the trial court from allowing such evidence to inform its prima facie inquiry under section 1172.6 to determine whether the petition is clearly meritless. Since the uncontradicted evidence shows that Pickett acted alone, Pickett failed to make a prima facie showing that he was eligible for relief under section 1172.6. [Editor’s Note: The California Supreme Court granted review in People v. Patton (2023) 89 Cal.App.5th 649, review granted 6/28/2023 (S279670/B320352), which presents the following issue: Did the trial court engage in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant’s Penal Code section 1172.6 petition at the prima facie stage? (See People v. Lewis (2021) 11 Cal.5th 952.)]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B320892.PDF