People v. Lujan CA5

INTRODUCTION

Petitioner Tony Lujan III petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for voluntary manslaughter (§ 192, subd. (a)). The trial court denied the petition at the prima facie stage after determining petitioner was “the actual shooter and actual killer.” On appeal, petitioner contends the court erred in denying the petition at the prima facie stage because the record did not indisputably establish he was the shooter. We agree and reverse.

FACTUAL BACKGROUND

In the trial court, the People relied on specified testimony and evidence from petitioner’s preliminary hearing to establish the underlying facts of the case.2 As the People acknowledge, some of the preliminary hearing testimony was hearsay admitted pursuant to section 872, subdivision (b), which generally is inadmissible in proceedings on a section 1172.6 petition for resentencing. (§ 1172.6, subd. (d)(3) [“[H]earsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the [section 1172.6] hearing as hearsay, unless the evidence is admissible pursuant to…