When an appellate opinion is admitted at a Penal Code section 1172.6(d)(3) hearing without objection, the facts it recites constitute substantial evidence on which the trial court can rely. Vance’s section 1170.95 (now 1172.6) petition for resentencing in his first degree felony murder case was denied after a (d)(3) hearing. On appeal, he argued the trial court erred in relying upon the facts in the Court of Appeal’s opinion in the direct appeal. Held: Affirmed. Senate Bill No. 1437 narrowed the liability for murder and created a procedure whereby defendants who could no longer be convicted of murder could seek relief (§ 1172.6). While initially providing that the record of conviction was admissible at an evidentiary hearing, section 1172.6 was amended to provide that the court may consider the procedural history of the case recited in an appellate opinion. This reflects an intent to prohibit use of the opinion’s factual summary. However, there may be circumstances where a petitioner prefers to offer the opinion to the trial court. When an appellate opinion is admitted at a (d)(3) hearing without objection, “it is substantial evidence that the trial court can consider.” Vance forfeited any objection to such consideration. Improper reliance on the opinion is evaluated under a state harmless error standard, which Vance failed meet.
In a section 1172.6 proceeding, the trial court’s erroneous use of a substantial evidence test is not reversible per se and instead is subject to the state law harmless error standard. Vance also argued the trial court erred by merely finding there was substantial evidence that he was guilty and failing to find him guilty beyond a reasonable doubt. He further argued that the failure to find guilt beyond a reasonable doubt is reversible per se. The Court of Appeal disagreed. Section 1172.6 provides that at a hearing on the resentencing petition, the burden is on the prosecution to prove beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under current California law. Here, the trial court erroneously denied the petition based on substantial evidence that Vance was the actual killer, or, alternatively, that there was substantial evidence that he was a major participant and acted with reckless indifference. However, applying the wrong burden of proof at an evidentiary hearing under section 1172.6 is not reversible per se; the state law “reasonably probable” standard applies. As Vance relied solely on the per se standard, he forfeited any claim the error was prejudicial.