People v. Sutherland CA3

I. BACKGROUND

A. Defendant’s Statement of Facts As a preliminary matter, we note that defendant’s opening brief does not contain a statement of facts in conformance with California Rules of Court, rules 8.204(a) and 8.360(a). Instead of providing a summary of facts supported by citations to the record, defendant relies on the factual summary from this court’s opinion on direct appeal, the presentence probation report, and his lengthy declaration accompanying the petition. Under section 1172.6, subdivision (d)(3), in an evidentiary hearing, the trial court “may . . . consider the procedural history of the case recited in any prior appellate opinion.” This provision has been interpreted to mean the trial court may not consider the facts recited in an appellate opinion as evidence. (People v. Flores (2022) 76 Cal.App.5th 974, 988 [“the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing”].) Section 1172.6, subdivision (d)(3) also states that the Evidence Code applies at an evidentiary hearing, meaning that hearsay contained in probation reports is not admissible at the…