by Sam Rutherford

The Court of Appeal of California, Second Appellate District, held that defendants are entitled to conduct discovery in preparation for an evidentiary hearing held in response to a petition for resentencing pursuant to Penal Code former §1170.95 (now § 1172.6).

Leonardo Garcia was convicted of second-degree murder and attempted premeditated murder under the natural and probable consequences doctrine as a form of aiding and abetting and sentenced to 120 years to life in prison. He filed a petition for resentencing pursuant to § 1172.6. The trial court found that Garcia stated a prima facie case for relief, appointed counsel, issued an order to show cause, and set the matter for an evidentiary hearing. Garcia’s attorney subpoenaed the Los Angeles Police Department (“LAPD”) for contact information of two witnesses, but the trial court granted the LAPD’s motion to quash, ruling that § 1172.6 does not allow for postconviction discovery. Garcia then filed a petition for a writ of mandate challenging this decision.

Deciding whether Garcia was entitled to conduct discovery prior to a § 1172.6 evidentiary hearing required the Court to review the purpose of such hearings. As the Court explained, “Senate Bill No.1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule.” People v. Curiel, 538 P.3d 993 (Cal. 2023). Senate Bill 1437 also created a procedure “now codified in section 1172.6 for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction if the individual could not have been convicted of murder under Senate Bill 1437’s changes to sections 188 and 189,” the Court explained.

The Court stated that if a defendant, such as Garcia, makes a prima facia showing that he or she is entitled to relief, the trial court “must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts.” § 1172.6, subds. (c) & (d)(1). The prosecution must prove beyond a reasonable doubt that the defendant “is guilty of murder, attempted murder, or manslaughter on a still-valid theory.” § 1172.6, subd. (d)(3). To make this determination, the trial court “‘may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion…. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens,’” according to the Court. § 1172.6, subd. (d)(3).

In Garcia’s case, the trial court determined that pre-hearing discovery is not permitted because resolution of a § 1172.6 petition is limited to “the facts presented at trial.” However, the Court stated that case law clearly holds otherwise: “While the hearing does not ‘permit wholesale relitigation of findings supporting murder convictions in the context of section 1172.6 resentencing,’” it “does provide an opportunity for the prosecution and the petitioner to present evidence ‘with respect to issues not previously determined.’” People v. Strong, 514 P.3d 265 (Cal. 2022); People v. Farfan, 71 Cal. App. 5th 942 (2021). Thus, the Court ruled that the trial court’s contrary ruling was clearly erroneous.

Consequently, the Court reasoned that postconviction discovery is necessary so that the petitioner can defend against new theories of liability and to argue new or additional evidence at the evidentiary hearing. Nothing in the plain language of § 1172.6 or its legislative history demonstrates that the Legislature intended to bar pre-hearing discovery. Instead, “the statute expressly confers the right to introduce new or additional evidence at the evidentiary hearing,” and it would be “incongruous” to deny a defendant the right to conduct discovery to obtain such evidence, the Court stated.

As such, discovery must be permitted in § 1172.6 cases on the same basis as it is permitted in a habeas corpus proceeding, according to the Court. In habeas cases, discovery is permitted once the trial court issues an order to show cause, the “‘precise nature and scope’” of which is resolved “‘on a case-by-case basis,’” explained the Court. In re Scott, 61 P.3d 402 (Cal. 2003); Jimenez v. Superior Court, 40 Cal. App. 5th 824 (2019). The Court instructed that “although section 1172.6 lacks express statutory authority for discovery, a petitioner may seek Brady [v. Maryland, 373 U.S. 83 (1963)] and Pitchess [v. Superior Court, 522 P.2d 305 (Cal. 1974)] discovery after an order to show cause has issued in preparation for the evidentiary hearing.” See People v. Nuno, 105 Cal. App. 5th 1030 (2024).

When a court schedules an evidentiary hearing on a § 1172.6 petition, it creates a “cause” or case, which it has plenary authority to resolve by “all means necessary” under the Code of Civil Procedure § 187 which includes authorizing pre-hearing discovery, according to the Court. While the “‘bare filing”” of a resentencing petition does not “‘trigger a right to unlimited discovery,’” the issuance of a show cause order creates “precisely such a ‘cause of proceeding which would confer discovery jurisdiction,’” the Court stated. People v. Gonzalez, 800 P.2d 1159 (Cal. 1990). Thus, the Court ruled that “a trial court has jurisdiction to order postconviction discovery once an order to show cause is issued” in a § 1172.6 resentencing case.

Turning to the present case, the Court held that the trial court abused its discretion by granting LAPD’s motion to quash Garcia’s subpoena based on “an incorrect reading of the statute to limit evidence at the evidentiary hearing to the evidence presented at trial” and by hindering his ability “ability to defend against potential valid theories of liability at the evidentiary hearing.” This error warranted reversal because the two witnesses Garcia sought contact information for might “have information about Garcia’s conduct and intent prior to and during the shooting, which would be relevant to whether Garcia could now be convicted of murder as a direct aider and abettor or under an implied malice theory,” the Court explained.

Accordingly, the Court granted Garcia’s petition for writ of mandate, vacated the trial court’s order quashing his attorney’s subpoena, and remanded the case for further proceedings consistent with its opinion. See: Garcia v. Superior Court, 2024 Cal. App. LEXIS 739 (2024).

Editor’s note: Anyone interested in the issue of the right to and scope of discovery in connection with resentencing under § 1172.6 is strongly encouraged to read the Court’s full opinion.  

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