People v. Alcaraz CA2/5

Filed 12/1/22 P. v. Alcaraz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B313936

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA057694)
v.

STEVEN HECTOR ALCARAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Richard B. Lennon and Rudolph J. Alejo, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 Steven Hector Alcaraz appeals the trial court’s order
denying his petition for vacatur of his murder conviction and
resentencing under former Penal Code1section 1170.95 (now
§ 1172.6),2 following an order to show cause and hearing
pursuant to subdivision (d)(3) (entitlement hearing).
At the entitlement hearing, the trial court refused Alcaraz’s
request to testify on his own behalf. On appeal, Alcaraz contends
that the trial court’s exclusion of his testimony violated section
1172.6, subdivision (d)(3), which permits a petitioner to offer new
or additional evidence, and violated his constitutional rights.
We affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

The Murder Conviction

As relevant here, Alcaraz “participated in a gang-related
assault on September 22, 2006. He was driving in his home
neighborhood when he saw a GMC Yukon occupied by Javier
Nuno, Jr., his brother, Fernando Nuno, Javier’s girlfriend, Janett
Ramirez, and their 13-month-old daughter, Elisa Nuno.

1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 Effective
June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)

2
Defendant telephoned his brother, Andrew Alcaraz,[3] and told
him the location of the vehicle. Defendant encouraged his
brother to ‘go get them’ and to ‘blast them.’ Andrew Alcaraz and
two fellow gang members pursued the Nunos. One of the three
repeatedly fired a weapon at the vehicle occupied by the Nunos.
Fernando was killed.” (People v. Alcaraz (Apr. 3, 2013, B236508)
2 [nonpub. opn.].)
Alcaraz was charged with murder (§ 187, subd. (a);
count 1), three counts of attempted murder (§§ 187, subd. (a)
& 664; counts 2–4), and shooting at an occupied vehicle (§ 246;
count 5). It was alleged with respect to all counts that a principal
personally and intentionally discharged a firearm causing death
(§ 12022.53, subds. (d) & (e)(1)), and that the crimes were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)).
At trial, Alcaraz was prosecuted for murder as a direct
aider and abettor, and as an aider and abettor to shooting at an
occupied vehicle of which murder was a natural and probable
consequence. The People also presented evidence that Alcaraz
conspired to murder, or conspired to shoot at an occupied vehicle,
of which murder was a natural and probable consequence.
Alcaraz was convicted of second degree murder and
shooting at an occupied vehicle. The jury found true the attached
firearm and gang allegations. He was acquitted of attempted
murder in counts 2 through 4.
Alcaraz was sentenced to 15 years to life on count 1, with a
concurrent sentence of 25 years to life for the firearm

3 We refer to Andrew Alcaraz by his first name for the sake
of clarity; we intend no disrespect.

3
enhancement (§ 12022.53, subds. (d) & (e)(1)). On count 5,
Alcaraz was sentenced to the upper term of seven years in prison
plus a consecutive term of 25 years to life for the firearm
enhancement (§ 12022.53, subds. (d) & (e)(1)). The trial court
imposed and stayed firearm enhancements under section
12022.53, subdivisions (b) and (c) in both counts.
On appeal, another panel of this court remanded for
resentencing on count 5 and other modifications to the abstract of
judgment, but otherwise affirmed the convictions.

The Resentencing Petition

Alcaraz filed a petition for habeas corpus on February 1,
2019, contending that he was eligible for vacatur and
resentencing under former section 1170.95. The trial court
construed the habeas corpus petition as a petition for
resentencing under former section 1170.95 as well as a petition
for habeas corpus, and appointed counsel. The People filed an
opposition to the petition for resentencing on June 6, 2019.
Alcaraz filed a reply to the opposition on August 21, 2019.
The trial court issued an order to show cause why relief
should not be granted under former section 1170.95. Petitioner
filed supplemental points and authorities to his petition on
December 26, 2019. The People filed a supplemental opposition
to the petition on January 17, 2020, requesting that the court
reconsider whether Alcaraz made a prima facie case of eligibility.
At a preparation hearing on February 11, 2020, the court
ordered the parties to provide further briefing. On April 20,
2020, the People filed supplemental briefing. Alcaraz filed
supplemental briefing on June 22, 2020. On July 7, 2020, the

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People filed a “FINAL MOTION IN OPPOSITION” to the
petition. On July 20, 2020, Alcaraz filed a “NEW & IMPROVED
& HOPEFULLY FINAL ADDITIONAL SUPPLEMENTAL
POINTS & AUTHORITIES” in support of the petition.
In a hearing on July 30, 2020, the court construed the
petition for habeas corpus as petition for resentencing under
former section 1170.95. The court stated that it would review the
petition on the grounds relating to former section 1170.95
resentencing only, and noted that all other grounds and claims
alleged in the petition had been withdrawn and were otherwise
summarily denied. The court again found that Alcaraz made a
prima facie case for relief and issued a second order to show
cause superseding its prior order. The order to show cause
ordered “each party to prepare a summary of potential evidence
outside the record of conviction [that] they will seek to introduce
at the hearing on the petition pursuant to [section] 1170.95[,
subdivision] (d)(3) and to be prepared to present a proffer for the
court” and to share their proffers with each other at an upcoming
status hearing.
In September 2020, the People filed a summary of evidence
for the entitlement hearing. The People identified the specific
portions of the record of conviction, including testimony from
Alcaraz’s trial, that they intended to rely upon. The People
indicated that they would only present evidence from outside the
record of conviction in rebuttal to evidence offered by the defense.
The defense made no filing. At a status hearing on
September 10, 2020, the court inquired whether the defense
would be offering any witnesses at the entitlement hearing.
Counsel identified Alcaraz’s brother, Andrew, and Edgar Nunez,
who accompanied Andrew at the time of the shooting. The court

5
reminded defense counsel that it had expected to receive a
written submission with a proffer as to what the witnesses would
testify to at the entitlement hearing.

The Entitlement Hearing

Alcaraz and his counsel were present for the entitlement
hearing, which was held on June 8, 2021. At the hearing,
Alcaraz’s brother, Andrew, testified on Alcaraz’s behalf. Andrew
testified that he was solely responsible for the shooting, and had
pleaded no contest to murder. Alcaraz was not present when the
shooting occurred and had nothing to do with it. Andrew and
Alcaraz spoke on the phone around the time of the shooting
because Alcaraz wanted to buy marijuana. Alcaraz did not
mention that he had been looking for Fernando Nuno earlier that
day, and did not give Andrew the victims’ location. Andrew did
not recall telling the defense investigator that Alcaraz told
Andrew he was being followed by the victims. When confronted
with an audiotape that impeached this testimony, Andrew
admitted that he did say Alcaraz told him he was being followed
by the victims, and that the statement was true. However,
Andrew did not ask Alcaraz where he was and then drive to that
location to avenge Alcaraz. Andrew saw the victims drive past
Edgar Nunez’s house, Andrew and Nunez followed them, and
Andrew “blasted” them. Andrew was familiar with the victims’
vehicle because he and Alcaraz were friends with Sergio Nuno,
and the victims were part of Sergio’s family.
Andrew explained that he was testifying because he
wanted to help his brother and tell the truth. Andrew had lied to
police officers about the shooting when he was first arrested

6
because he was trying to “get [his] way out of something.” He
lied about “all kinds of stuff just trying to basically tell people
what they wanted to hear.” Andrew stated that he shot
Fernando Nuno because “I was young and stupid.” Andrew
admitted that he shot the victim because he was a member of a
rival gang, Andrew did not know that there was a “green light
out” on Fernando Nuno. Andrew admitted that Edgar Nunez
was driving the car from which Andrew shot the victim, but
testified that Nunez was not involved—“he didn’t make me pull
the trigger.”
Following Andrew’s testimony, defense counsel requested
that Alcaraz be permitted to testify and noted that he had
previously asked whether Alcaraz could testify and the court had
ruled Alcaraz could not. The trial court responded, “My [off-
record] ruling had to do with not knowing whether he had
anything additional that he could offer beyond the very, very
lengthy testimony he gave at trial. So your comment to me was
he was going to vouch for his brother which I didn’t find to be
very compelling at all should his brother testify, which he did. So
that was the basis of it. So I’m not—this is one witness, this is
one person, Mr. Alcaraz, Steven, who testified fully at the trial
itself.”
Defense counsel emphasized that now that Andrew had
testified, Alcaraz wished to testify “to confirm what his brother
said in terms of what the purpose was that night . . . some of
which would be contrary to what his brother said, but primarily
to—”
The trial court interposed, “Wouldn’t it be fair to say he
covered this at the trial, even though his brother did not testify at
the trial, that he covered all this area?”

7
 “[Defense counsel]: Well, he covered the entire incident.
“The court: What he was doing, when he was doing it, why
he was doing everything, at the trial. Would this be fair to say?
“[Defense counsel]: I’m asking that he be allowed to testify.
If you are feeling, or your belief is he covered all the ground, I
just made my request I think it would be helpful.
“The court: I will view it as a general request and I don’t
have a sufficient offer of proof to tell me otherwise. I’ll just rely
back on the fact he testified at length, and I mean that was one of
the longest witnesses in the trial, and therefore I don’t see how
this could assist me in making a decision in this case. So absent
any specific proffer, I would deny that request to call him as a
witness.
“[Defense counsel]: Well, there were things that Andrew
said that were not true as well.
“[The court]: You are making general statements. I will
say it this way, if there is something specific that your client
would be testifying to, specific, then you can tell me.”
Counsel conferred with Alcaraz and submitted on his
request without further comment.
The trial court found that the people had proved Alcaraz
could be convicted of murder beyond a reasonable doubt as an
aider and abettor who acted with either express or implied
malice.

8
 DISCUSSION

Section 1172.6

Effective January 1, 2019, the Legislature amended
sections 188 and 189 “as to the ‘felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.’ (Sen. Bill
No. 1437 (2017–2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1,
subd. (f).) As amended, the law defining malice provides that
except for first degree felony murder, ‘in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ (§ 188, subd. (a)(3); People v. Eynon
[(2021)] 68 Cal.App.5th [967,] 974.) By this change, the
Legislature intended that ‘[a] person’s culpability for murder
must be premised upon that person’s own actions and subjective
mens rea.’ (Stats. 2018, ch. 1015, § 1, subd. (g).)” (People v.
Basler (2022) 80 Cal.App.5th 46, 54, fn. omitted.)
As relevant here, pursuant to section 1172.6, subdivision
(a)(1) to (3), a defendant must file a petition in the sentencing
court averring that: “(1) A complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
person’s participation in a crime . . . [;] [¶] (2) The petitioner was

9
convicted of murder . . . following a trial . . . [;] [¶] [and] (3) The
petitioner could not presently be convicted of murder . . . because
of changes to Section 188 or 189 made effective January 1, 2019.”
(See id., subd. (b)(1)(A).)
Upon receipt of a petition meeting these requirements, the
trial court will appoint counsel, if requested. (§ 1172.6,
subd. (b)(3).) The prosecutor must file a response within 60 days
of the service of the petition, and the petitioner may file a reply
within 30 days of the response. (§ 1172.6, subd. (c).) When
briefing has been completed, “the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause.” (Ibid.) Within 60 days of issuance of the order to
show cause, the trial court shall hold a hearing “to determine
whether the petitioner is entitled to relief.” (§ 1172.6, subd. (d)(1)
& (3).)
“At the hearing . . . the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019. . . . The prosecutor and the petitioner may also
offer new or additional evidence to meet their respective
burdens. . . . If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(§ 1172.6, subd. (d)(3).)
The trial court acts as the finder of fact when determining
whether the prosecution has met its burden beyond a reasonable

10
doubt. (People v. Clements (2022) 75 Cal.App.5th 276, 296–297;
see People v. Gentile (2020) 10 Cal.5th 830, 855 [former “section
1170.95 requires the superior court to determine on an
individualized basis, after considering any new or additional
evidence offered by the parties, whether the defendant is entitled
to relief”], superseded by statute on another ground as stated in
People v. Birdsall (2022) 77 Cal.App.5th 859, 868.)

Analysis

Alcaraz contends that the trial court’s exclusion of his
testimony violated section 1172.6, subdivision (d)(3), which
permits a petitioner to offer new or additional evidence, and his
constitutional rights to present a defense and to due process. The
People argue that Alcaraz has failed to demonstrate that he has a
constitutional right to testify in a section 1172.6, subdivision
(d)(3) hearing, which is a collateral proceeding. The People
further assert that the trial court did not abuse its discretion by
excluding Alcaraz’s testimony, which was duplicative of his trial
testimony, and therefore not admissible as “new” or “additional”
evidence under section 1172.6, subdivision (d)(3).4
We affirm the trial court’s order. We emphasize at the
outset that Alcaraz’s case presents a unique situation. We do not
anticipate that there will be many cases in which a petitioner,

4 The People also contend that Alcaraz forfeited his
contentions by failing to provide an adequate offer of proof. We
need not reach this issue, because even assuming Alcaraz
preserved the issue for appeal, we conclude that the trial court
did not violate section 1172.6 or Alcaraz’s constitutional rights.

11
having previously testified at his trial, wishes to testify at his
entitlement hearing, but does not make an offer of proof that he
will offer any testimony not already included in his trial
testimony. It will therefore be a rare circumstance in which a
trial court’s exclusion of the defendant’s testimony will not be an
abuse of discretion.
Although we ultimately conclude that the trial court did
not abuse its discretion in this case, the best practice under the
circumstances would be to allow the defendant to testify on his
own behalf, limiting that testimony only if the petitioner’s
specific responses in examination are not new or additional to his
trial testimony. Such a course prevents the unnecessary use of
judicial resources for both the trial court and the court of appeal.

Exclusion of Alcaraz’s Testimony Did Not Violate Section
1172.6

We review questions of statutory interpretation de novo.
(People v. Morrison (2019) 34 Cal.App.5th 980, 989.) “When we
interpret statutes, our primary task is to determine and give
effect to the Legislature’s purpose in enacting the law.” (In re
H.W. (2019) 6 Cal.5th 1068, 1073.) “ ‘We must look to the
statute’s words and give them their usual and ordinary meaning.
[Citation.] The statute’s plain meaning controls the court’s
interpretation unless its words are ambiguous.’ ” (People v. Arias
(2008) 45 Cal.4th 169, 177.)
Section 1172.6 permits the parties to “offer new or
additional evidence to meet their respective burdens.” (§ 1172.6,
subd. (d)(3).) In an entitlement hearing held pursuant to section
1172.6, subdivision (d)(3), the “admission of evidence in the

12
hearing shall be governed by the Evidence Code, except that the
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. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule.”
The language of section 1172.6 is not ambiguous. The
statute makes clear that not all relevant evidence may be
admitted—only evidence that is “new” or “additional” to the
evidence specified in the statute, which will generally consist of
documents in the record of conviction is admissible. The statute
contemplates that the trial court will exercise its discretion to
exclude evidence by applying the rules for admission of evidence
set forth in section 1172.6, subdivision (d)(3). The statute does
not except a petitioner’s testimony from these evidentiary rules
or remove the decision to exclude or limit a petitioner’s testimony
from the trial court’s discretion.
Alcaraz’s argument that the trial court prohibited him from
offering new or additional evidence misrepresents the record.
The trial court permitted Alcaraz’s brother to testify at the
hearing, and considered Alcaraz’s request to testify himself. The
trial court denied Alcaraz’s request to testify because Alcaraz did
not assert that he had anything to offer that was additional to his
testimony at trial. The trial court gave Alcaraz the opportunity
to make a more specific request, but Alcaraz declined. If the trial
court had completely prevented Alcaraz from offering any new or

13
additional evidence at the entitlement hearing, the deprivation
would have been a violation of the statute. In this case, the trial
court admitted new and additional testimony, but in its
discretion excluded Alcaraz’s proffered testimony. The error, if
any, is not a violation of section 1172.6, but rather a failure to
exercise appropriate discretion in excluding evidence as provided
for under the statute. (See People v. Flores (2020) 9 Cal.5th 371,
409 [trial court’s evidentiary ruling is reviewed for abuse of
discretion].)
The trial court did not abuse its discretion. Alcaraz wished
to testify to support in part and rebut in part the substance of his
brother’s testimony. The trial court inquired whether the facts
Alcaraz would attest to were new or additional to his trial
testimony. Alcaraz offered no specific facts that were new or
additional, and submitted without further argument.5

The Trial Court Did Not Violate Alcaraz’s Constitutional
Rights

Alcaraz further contends that the trial court’s refusal to
allow him to testify violated his Sixth and Fourteenth
Amendment right to present a defense, and his right to due
process under the Fourteenth amendment. He analogizes his
case to Brooks v. Tennessee (1972) 406 U.S. 605 and Morrissey v.

5 On appeal, Alcaraz argues that he was deprived of the
opportunity to have the trial court evaluate his demeanor.
However, he did not raise the issue with the trial court (who had
presided over the trial and witnessed his demeanor when Alcaraz
testified), and has therefore forfeited the argument. (People v.
Hartshorn (2012) 202 Cal.App.4th 1145, 1151.)

14
Brewer (1972) 408 U.S. 471, respectively. These cases are
inapposite, however. Brooks addressed a criminal defendant’s
right to testify on his own behalf at trial. Morrissey held that
minimum due process requirements must be met before parole
may be revoked. (Morrissey, at p. 489.) Unlike a jury trial or
parole revocation proceeding, a section 1172.6 proceeding does
not place a defendant at risk of losing liberty or suffering
increased punishment. “Section 1170.95 is ‘an act of lenity’ that
requires, under specified circumstances, reduction of the offense
for which [the defendant] was properly convicted.” (People v.
James (2021) 63 Cal.App.5th 604, 609 [no right to jury trial in
former section 1170.95 proceedings]; accord People v. Basler,
supra, 80 Cal.App.5th at p. 62 [same].) Alcaraz points to no
precedent to support his contention that a defendant has a right
to testify in collateral proceedings.
Regardless, we need not decide the question here, because
even where a constitutional right exists, the right to testify on
one’s own behalf is not without limitations. (Rock v. Arkansas
(1987) 483 U.S. 44, 55.) “Numerous state procedural and
evidentiary rules control the presentation of evidence and do not
offend the defendant’s right to testify.” (Id. at p. 56, fn. 11.)
Application of state rules does not offend the constitution as long
as those rules are proportionate to the purposes they are
intended to serve. (Id. at pp. 55–56.)
As relevant here, the limitations that the Legislature has
instituted are simply that evidence other than the type specified
in the statute be “new” or “additional.” These restrictions serve
the legitimate purpose of avoiding the presentation of duplicative
evidence that would utilize judicial time and resources without
further elucidating the issues or otherwise benefitting the

15
petitioner. The exclusion of Alcaraz’s testimony was
proportionate to the purpose served, and did not offend the
constitution.

DISPOSITION

We affirm the order denying the section 1172.6 petition.
NOT TO BE PUBLISHED.

MOOR, J.

I concur:

KIM, J.

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 People v. Alcaraz - B313936

RUBIN, P. J. - Dissenting
I agree with the majority opinion in many respects. Two
examples suffice: “It will therefore be a rare circumstance in
which a trial court’s exclusion of the defendant’s testimony will
not be an abuse of discretion. (Maj. Opn. ante, at p. 12.) And,
“[T]he best practice under the circumstances would be to allow
the defendant to testify on his own behalf, limiting that
testimony only if the petitioner’s specific responses in
examination are not new or additional to his trial testimony.
Such a course prevents the unnecessary use of judicial resources
for both the trial court and the court of appeal.” (Ibid.)
In my view, it is not only the “best practice”; it should be
the only practice. The denial of defendant’s right to testify here
was an abuse of discretion. Putting to one side whether a
defendant has a constitutional right to provide testimony at a
hearing under Penal Code section 1172.6, subdivision (d)(3)
(section 1172.6(d)(3)), a defendant has the statutory right to offer
new or additional evidence, which certainly includes the
defendant’s own testimony. (Cf. Rock v. Arkansas (1987)
483 U.S. 44, 52 [“Logically included in the accused’s right to call
witnesses whose testimony is ‘material and favorable to his
defense,’ [citation] is a right to testify himself, should he decide it
is in his favor to do so.”].)1

1 I do not address whether there is a constitutional right to
testify at a section 1172.6 hearing because I find that right
embodied in the statute. I observe, though, that the cases on
which the People rely for the proposition that there is no
constitutional right to testify do not deal with testimony at all.
 It is understandable that the trial court had an eye for
efficiency in these proceedings. Section 1172.6 hearings are
taking a heavy toll on the trial courts. But, even assuming the
trial court was permitted to inquire about the general subject of
defendant’s intended testimony, the defendant answered in kind.
The record reflects that the court initially expressed doubt that
he would allow defendant to testify in light of defense counsel’s
proffer. The majority then writes: “Defense counsel emphasized
that now that [defendant’s brother] Andrew had testified, Alcaraz
wished to testify ‘to confirm what his brother said in terms of
what the purpose was that night . . . some of which would be
contrary to what his brother said, but primarily to—.” (Maj. Opn.
ante, at p. 7; italics added.) The trial court apparently interceded
at this point, and the following exchange occurred:

Instead, they consider either the right to a jury trial under the
Sixth Amendment (People v. James (2021) 63 Cal.App.5th 604,
607-611; People v. Howard (2020) 50 Cal.App.5th 727, 740; People
v. Anthony (2019) 32 Cal.App.5th 1102, 1156-1157; People v.
Lopez (2019) 38 Cal.App.5th 1087, 1114-1115, review granted
Nov. 13, 2019, S258175, transferred with directions to vacate and
reconsider, opinion rendered depublished or not citeable Nov. 10,
2021); the right to counsel (People v. Lewis (2021) 11 Cal.5th 952,
973, as modified on denial of reh’g (Aug. 25, 2021); or the trial
court’s ability to place reasonable limits on the testimony of a
witness called by the defendant (People v. Marshall (1996)
13 Cal.4th 799, 836; People v. Fudge (1994) 7 Cal.4th 1075, 1102-
1103).
As the majority acknowledges, none of the cases it
references on the constitutional right to testify at a section 1172.6
hearing actually deals with that right. (Maj. Opn. ante at pp. 14-
15.) Those cases hold there is no right to a jury trial at such
hearings.

2
 The Court: “Wouldn’t it be fair to say he covered this at the
trial, even though his brother did not testify at the trial, that he
covered this area?”
Defense Counsel: “Well, he covered the entire incident.”
The trial court pressed for more information on the
proffered testimony. Defense counsel responded, “Well there
were things that Andrew said that were not true as well.” The
court responded. “You are making general statements. I will say
it this way, if there is something specific that your client would
be testifying to, specific, then you can tell me.” Defense counsel
submitted. Defendant did not testify. (Maj. Opn. ante, at pp. 7-
8.)
Assuming the trial court had the authority to ask at all for
an offer of proof on defendant’s own testimony, counsel properly
responded. He told the court that some of what defendant’s
brother Andrew had testified to at the section 1172.6 hearing was
“not true.” His brother had not testified at the trial, so this was
defendant’s first and only chance to refute some of what his
brother said at the hearing. To me, that was enough – a general
statement of an offer of proof. Any more would require the
defendant to disclose his testimony in advance, and I see nothing
in section 1172.6 that supports such a proposition. To ask for
more is evocative of the Tennessee statute struck down by our
High Court in Brooks v. Tennessee (1972) 406 U.S. 605. Under
then-existing Tennessee law, a criminal defendant “desiring to
testify shall do so before any other testimony for the defense is
heard by the court trying the case.” (Id. at p. 606.) Brooks dealt
with the defendant’s right to testify at trial but it underscores the
importance of not placing impediments on a criminal defendant’s
testimony.

3
 At bottom, defendant proffered that he would rebut some of
his brother’s testimony – testimony that was not presented at
trial. Evidence attacking the testimony of a witness is
sufficiently “new” or “additional” under the statute that the trial
court should have permitted defendant to testify. Under either
People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v.
California (1967) 386 U.S. 18, 24, the error was prejudicial as
defendant was not allowed to testify that some of what his
brother had said was untrue.

RUBIN, P. J.

4