People v. Struggs CA5

INTRODUCTION

In 1981, a jury convicted petitioner Cedric Lynn Struggs1 with the first degree murder (Pen. Code,2 § 187, subd. (a); first count)3 of Alfred Joe Dishman. For this offense, the trial court sentenced petitioner to a term of 25 years to life with an additional one-year term for a firearm enhancement (§ 12022, subd. (a)). (People v. Struggs (Jan. 24, 1983, 15006) [nonpub. opn.].) In 2019, petitioner filed a petition for resentencing on his murder conviction pursuant to section 1170.95. After conducting an evidentiary hearing, the trial court denied relief on the ground petitioner was a major participant in the offense who acted with reckless indifference to human life, a disqualifying factor pursuant to section 1170.95. On appeal, petitioner contends the trial court erred in applying a “sufficiency of the evidence” standard at the section 1170.95, subdivision (d) evidentiary hearing. The People concede error. We accept the People’s concession and reverse. Petitioner additionally argues the court erred in considering the preliminary hearing transcript and hearsay contained within our opinion in petitioner’s direct appeal, and that the evidence presented at the…