People v. Nivarez CA4/3

FACTS AND PROCEDURAL BACKGROUND

At the section 1172.6 evidentiary hearing the parties relied solely on the transcripts from the original jury trial. Therefore, we will take the facts from Nivarez’s direct appeal and will augment as needed in the discussion section of this opinion: “The victim, Mario Rodriguez Hernandez, sold jewelry to clients at their homes by appointment. He carried the jewelry in a briefcase. [2 ] “On March 18, 2005, Hernandez left his home in the morning and did not return for lunch, which was unusual. “Around 3:30 that afternoon, defendant pawned $2,500 worth of jewelry. “That evening, Hernandez had still not returned home. His granddaughter obtained from the phone company a list of Hernandez’s last cell phone calls. She phoned

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10); all further undesignated statutory references are to the Penal Code. 2 “All dates refer to the year 2005 unless otherwise specified.” (People v. Nivarez (Nov. 19, 2012, G045230 [nonpub. opn.].)

2 the last phone number Hernandez had called on March 18. Defendant answered the call. Defendant…