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Court of Appeal:
Preliminary Hearing Hearsay Testimony Is Inadmissible at Resentencing
Evidentiary Hearing Required to Determine Eligibility
By a MetNews Staff Writer
Div. Seven of this district’s Court of Appeal held yesterday that hearsay testimony, properly admitted at a preliminary hearing, may not be relied upon to support the prosecution’s challenge to a criminal defendant’s petition for resentencing under Penal Code §1172.6 at the prima facie stage.
The court found that a defendant who pled no contest to voluntary manslaughter and two counts of attempted murder established a prima facie case for resentencing eligibility despite admitting to the personal use of a firearm during the killing and the fact that the preliminary hearing transcript shows the prosecution’s only theory in the case was that he was the actual killer.
San Bernardino Superior Court Judge Antoine Raphael, sitting on assignment, wrote the unpublished opinion reversing an order by Los Angeles Superior Court Judge Tammy Chung Ryu denying the petition for resentencing. Acting Presiding Justice John L. Segal and Justice Gail Ruderman Feuer joined in the opinion.
Appealing the denial was Thomas Velarde, who was originally charged with one count of murder and two counts of attempted murder arising out a shooting at a Compton parking lot on Jan. 11, 2009 at 2 a.m.
That morning, Velarde and Patricio Michel confronted three men, two of whom were shot and injured and one of whom, Daniel Hernandez, was shot and killed. Michel claimed Velarde shot the victims.
Velarde fled to Mexico but was apprehended by Mexican authorities and returned to California in 2013.
In joining in his plea to voluntary manslaughter and attempted murder, Velarde’s counsel stipulated “to a factual basis for the plea based on the arrest reports and transcripts” and Ryu dismissed the remaining charges and allegations, including the allegation that he committed attempted murder willfully, deliberately and with premeditation. He was sentenced to an aggregate term of 39 years in prison.
Effective 2019, Senate Bill 1437 eliminated the natural and probable consequences doctrine as a theory of murder liability by amending Penal Code §§188 and 189 to require the prosecution to prove that a defendant was the actual killer, an aider and abettor to murder acting with an intent to kill, or one who acted with reckless indifference to human life in the commission of certain crimes.
The procedure for resentencing, available retroactively, is codified at Penal Code §1172.6 and provides that a petitioning defendant must make a prima facie case that he is entitled to resentencing relief, which is followed by an evidentiary hearing to determine whether to vacate the murder, attempted murder or manslaughter conviction and resentence the defendant on the remaining counts.
Raphael noted that a court may “deny a petition at the prima facia stage if the petitioner is ineligible for relief as a matter of law,” but said that “[t]he portions of the record of conviction on which the superior court relied…do not establish that Velarde is ineligible for relief.”
Preliminary Hearing Transcript
He pointed out that “[t]here is a split in authority on whether a court may consider a preliminary hearing transcript to determine if the petitioner has stated a prima facie case under 1172.6” and that the California Supreme Court granted review on June 28, 2023 in the case of People v. Patton to settle the issue.
The jurist explained that “[w]e do not have to take a side in this dispute here” and instead turned to the nature of the evidence presented at the preliminary hearing. He wrote:
“The People base their argument solely on an investigating deputy’s testimony about statements from witnesses who identified Velarde as the shooter. All of this testimony is hearsay evidence that was admitted at the preliminary hearing pursuant to section 872, subdivision (b).”
Raphael pointed to Penal Code §1172.6(d)(3) which says that “hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded” at a resentencing hearing “as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule.” Although the section only refers to exclusion at a hearing, he found no reason to allow it to be considered at the prima facie stage.
Plea and Enhancement
Raphael rejected the prosecution’s argument that the information and plea established Velarde’s ineligibility as a matter of law. He remarked:
“The People originally charged Velarde with committing murder and attempted murder ‘unlawfully and with malice aforethought.’ These generic charges allowed the People to prosecute Velarde under a theory of imputed malice, including the natural and probable consequences doctrine.”
Finding the plea to be insufficient, Raphael opined that “in pleading no contest to charges of voluntary manslaughter and attempted murder, Velarde did not admit to any specific theory of guilt.”
Raphael rejected the admission to the personal use allegation as a basis for ineligibility and wrote:
“It is possible that in committing his crimes Velarde personally used a firearm by brandishing it as an accomplice to an assault by a perpetrator who shot the victims as a natural and probable consequence of the assault.”
The case is People v. Velarde, B325482.Copyright 2024, Metropolitan News Company