People v. Ramirez CA5

INTRODUCTION

Petitioner Juan Carlos Ramirez petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for attempted murder (§§ 187, subd. (a), 664). The trial court denied the petition at the prima facie stage after determining petitioner’s request for resentencing relief was “conclusively refuted by the information contained in the preliminary hearing transcript, the police reports, as well as [petitioner’s] plea to the attempted murder with the [section] 12022.55 special allegation.” On appeal, petitioner contends the record of conviction does not establish he is ineligible for resentencing as a matter of law. We agree with petitioner and reverse.

FACTUAL BACKGROUND

We briefly summarize the testimony from the preliminary hearing transcript, while acknowledging that the propriety of the trial court relying on this testimony is a subject of dispute in this appeal. As the People acknowledge, some of the preliminary hearing testimony was hearsay admitted pursuant to subdivision (b) of section 872, which may not be considered in determining a petitioner’s eligibility for resentencing pursuant to section…