Filed 5/13/22 P. v. Cernogg CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B303218
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA085192)
v.
JAMES RUSSELL CERNOGG, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Reversed and remanded
with directions.
Edward H. Schulman, 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, Amanda V. Lopez and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
Appellant James Russell Cernogg appeals from a
postjudgment order denying his Penal Code section 1170.95
petition.1 In his earlier appeal of the trial court’s order, we
reversed and remanded for further proceedings. Our Supreme
Court granted review, and has now transferred the matter back
to us with directions to vacate our prior decision and reconsider
the cause in light of Senate Bill No. 775 (2021–2022 Reg. Sess.)
(Senate Bill 775). We do so, and again reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
1. The murder and Cernogg’s conviction2
On May 11, 2006, 12-year old Camilo H. and 15-year old
Michael Pimental were “tagging” in the area of Rosecrans and
Poinsettia Avenues in Compton. Camilo wrote his moniker,
“Dust,” on a wall. Cernogg, who was an associate of the Elm
Street Piru gang, was riding his bicycle in the area and asked the
youths why they were writing on the wall. Camilo said, “ ‘My
bad.’ ” Cernogg told the boys to come with him, and they
complied. As they walked down Rosecrans, Cernogg spoke with
another person on the phone and said, “ ‘I got them right [here.]’ ”
The person on the phone told him to hold the boys there.
Cernogg said to Camilo, “ ‘I’m going to kill you and your mom.’ ”
Meanwhile, Michael M., a friend of the boys, approached
and asked Pimental if he had seen his mother. Pimental asked
Michael M. to accompany them. Cernogg asked Michael M. if he
1
All further undesignated statutory references are to the
Penal Code.
2
We derive the factual and procedural background in part
from our prior opinions in this matter, of which we take judicial
notice. (Evid. Code, §§ 451, 452, 459.)
2
wanted “ ‘some problems, too’ ” and said “ ‘[y]ou better go back.’ ”
According to Michael M.’s trial testimony, Cernogg pulled up his
shirt to reveal a gun in his waistband.3 Cernogg said, “ ‘I’m going
to teach these little fools a lesson not to write in my hood again.’ ”
Within a few minutes, codefendant Jeffrey Martin, an Elm
Street Piru gang member, arrived at the scene. He held a gun,
covered with a rag. Without saying a word to anyone, Martin
pointed the gun at Pimental, who pleaded, “ ‘No, don’t shoot.’ ”
From a distance of no more than three feet away, Martin fired a
single shot into Pimental’s head, killing him. Cernogg ran away,
leaving his bicycle at the scene; Martin walked away in the same
direction.
Cernogg was charged with murder. At trial, the People
proceeded under two theories of guilt: that Cernogg directly
aided and abetted the murder, and that the murder was the
natural and probable consequence of the target crime, felony false
imprisonment. The jury was instructed on both theories.
(CALJIC Nos. 3.01, 3.02.) It convicted Cernogg of first degree
murder (§ 187, subd. (a)) and additionally found gang and firearm
enhancements true. (§§ 186.22, subd. (b), 12022.53, subds. (b),
(c), (d), & (e)(1).) The trial court sentenced Cernogg to 25 years to
life in prison for the murder, plus 25 years to life for the firearm
enhancement.
3
At trial, Michael M. did not identify Cernogg as the man on
the bicycle. Prior to trial, he did not tell detectives that the man
on the bicycle displayed a gun.
3
2. Prior direct appeals
In a 2009 opinion, a different panel of this Division
affirmed Cernogg’s judgment. (People v. Cernogg (Dec. 9, 2009,
B210684) [nonpub. opn.] (Cernogg I).) Cernogg I rejected claims
that the evidence was insufficient, the trial court committed
instructional and sentencing errors, and the sentence amounted
to cruel and unusual punishment. Cernogg I concluded the
evidence was sufficient to support both theories advanced by the
People, i.e., direct aiding and abetting and the natural and
probable consequences doctrine. After describing the evidence
supporting the conclusion that Cernogg was a direct aider and
abettor, Cernogg I held, “This evidence is more than sufficient to
show that Cernogg shared Martin’s intent and purpose; hence, he
is liable as a direct aider and abettor of Pimental’s murder.”
Turning to the sufficiency of the evidence to support the
conviction under the natural and probable consequences doctrine,
Cernogg I continued: “Alternatively, it is also possible that
Cernogg did not know that Martin intended to execute Pimental.
Perhaps, as Cernogg suggests in his opening brief, he thought
Martin would merely give the young boys a ‘stern warning.’ Even
so, there is still evidence to support the judgment under the
natural and probable consequences doctrine.”
In 2014, our Supreme Court concluded, in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), that an aider and abettor cannot be
guilty of first degree premeditated murder under the natural and
probable consequences doctrine. (Id. at pp. 158–159.) In April
2015, we granted Cernogg’s motion to recall the remittitur and
reinstate the appeal, based on Chiu. In an opinion issued on
September 3, 2015, we concluded that under Chiu, the trial court
had erred by instructing the jury on the natural and probable
4
consequences doctrine. (People v. Cernogg (Sept. 3, 2015,
B210684) [nonpub. opn.] (Cernogg II).) We determined that
remand was required for either a new trial, or to allow the People
to accept a reduction of the offense to second degree murder. We
reasoned: “Where, as here, a defendant possibly has been
convicted of first degree premeditated murder under the natural
and probable consequences doctrine, the conviction must be
reversed unless the reviewing court can conclude beyond a
reasonable doubt that the jury based its verdict on a legally valid
theory. [Citations.] A legally valid theory—direct aiding and
abetting—was before the jury. But, as the People concede, we
cannot determine beyond a reasonable doubt that the jury based
its verdict on that theory, as opposed to the invalid natural and
probable consequences doctrine. The People argued both theories
to the jury and nothing in the record suggests on which theory
the jury relied.” We further explained that the evidence was
sufficient to prove Cernogg acted as a direct aider and abettor.
On remand, the People elected not to retry Cernogg for first
degree murder. His conviction was reduced to second degree
murder, and the trial court resentenced him to 15 years to life for
the murder, plus 25 years to life for the firearm enhancement.
3. Cernogg’s section 1170.95 petition and appeal
In January 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Cernogg filed a
petition to vacate his second degree murder conviction. Using a
preprinted form, he stated that he had been convicted of murder
pursuant to the felony-murder rule or the natural and probable
consequences doctrine; he was not the actual killer; and he could
not now be convicted of murder in light of changes to the law
5
made by Senate Bill 1437. He also requested the appointment of
counsel.
The trial court determined that Cernogg had established a
prima facie case, appointed counsel for him, and considered the
parties’ briefs. The People argued that the record of conviction
was sufficient to prove Cernogg acted as a direct aider and
abettor with the intent to kill, and therefore he was not entitled
to relief under section 1170.95. Cernogg argued the trial
evidence did not show he had the intent to kill. Further, he
argued the question was not whether substantial evidence
supported denial of the petition. Instead, the court had to apply
the “beyond a reasonable doubt” standard.
On November 21, 2019, the trial court denied the petition
after considering the court file and this court’s prior opinions in
the case. It explained, “I find to be the law of this case and I do
find that [section] 1170.95 is not applicable to Mr. Cernogg,
specifically 1170.95(a)(3) in that the findings of the appellate
court and my findings with the appellate court decision is that
their malice was present in regards to an intent to kill on a direct
aiding-and-abetting theory beyond a reasonable doubt.”
Cernogg appealed, and we reversed. (People v. Cernogg
(Mar. 12, 2021, B303218) [nonpub. opn.] (Cernogg III.) We
concluded that the proper inquiry for a court ruling on a section
1170.95 petition after a subdivision (d) hearing is not whether
there was substantial evidence in the record to support a murder
verdict. Instead, the court must act as an independent trier of
fact and determine whether the evidence presented by the parties
establishes beyond a reasonable doubt that the petitioner is
guilty of murder under a still-valid theory. Because we could not
discern whether the trial court applied the correct standard, we
6
reversed and remanded to allow the court to conduct a new
hearing at which it would act as the trier of fact, determine
whether the prosecution established all elements of second
degree murder on a still-viable theory, and state its findings on
the record.
Both the People and Cernogg appealed, and our Supreme
Court granted both petitions pending disposition of People v.
Duke, S265309.
After passage of Senate Bill 775, the Supreme Court
transferred the matter back to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill 775. We
have vacated our prior decision and have considered the parties’
supplemental briefs, and again reverse and remand for a new
section 1170.95 hearing.
DISCUSSION
1. Senate Bills 1437 and 775
Senate Bill 1437 limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (People v. Lewis
(2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10
Cal.5th 830, 842–843.) To achieve these goals, Senate Bill 1437
added section 189, subdivision (e) (limiting application of the
felony-murder rule) and section 188, subdivision (a)(3) (stating
that “ ‘[m]alice shall not be imputed to a person based solely on
his or her participation in a crime.’ ”) (Gentile, at pp. 842–843.)
Senate Bill 1437 also added section 1170.95, which created a
procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. If the petitioner makes a prima facie case for relief,
7
the trial court must issue an order to show cause (OSC) and,
absent a stipulation by the parties, hold a hearing to determine
whether to vacate the conviction. (§ 1170.95, subds. (c), (d).)
After the trial court’s ruling and this court’s 2021 opinion,
Senate Bill 775 changed or clarified the law in several respects.
As originally enacted, section 1170.95, subdivision (d)(3) stated
that the prosecution had to prove a petitioner’s ineligibility for
relief beyond a reasonable doubt. The appellate courts disagreed
regarding the meaning of this language. Some held that the
People had to prove only that there was substantial evidence a
petitioner could still be convicted of murder, while others
concluded that the trial court had to act as an independent fact
finder and determine whether the evidence established beyond a
reasonable doubt that the petitioner was guilty of murder under
amended sections 188 and 189.4 In our 2021 opinion, we adopted
the latter view. Thereafter, Senate Bill 775 amended section
1170.95 to expressly provide that the substantial evidence
standard does not apply at a section 1170.95, subdivision (d)
hearing. The law now states: “A finding that there is substantial
evidence to support a conviction for murder, attempted murder,
or manslaughter is insufficient to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).)
Senate Bill 775 also specified what evidence might be
considered at such a hearing. Section 1170.95, subdivision (d)(3)
now states, in pertinent part: “The admission of evidence in the
4
Our Supreme Court granted review on the question in
People v. Duke, S265309, but transferred Duke back to the
appellate court after passage of Senate Bill 775.
8
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 prosecutor and the petitioner
may also offer new or additional evidence to meet their respective
burdens.”
Additionally, Senate Bill 775 added subdivision (g) to
section 1170.95. That subdivision provides, “A person convicted
of murder, attempted murder, or manslaughter whose conviction
is not final may challenge on direct appeal the validity of that
conviction based on the changes made to Sections 188 and 189 by
Senate Bill 1437.” Subdivision (g) supersedes Gentile’s holding
that Senate Bill 1437’s ameliorative provisions do not apply on
direct appeal. (See People v. Gentile, supra, 10 Cal.5th at p. 839.)
Under In re Estrada (1965) 63 Cal.2d 740, we assume that,
absent contrary evidence, an amendment reducing punishment
for a crime applies retroactively to all nonfinal judgments. (Id. at
pp. 745–746; People v. Brown (2012) 54 Cal.4th 314, 323; see
People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Such is the
case with Senate Bill 775. (People v. Montes (2021) 71
Cal.App.5th 1001, 1006–1007; People v. Porter (2022) 73
Cal.App.5th 644, 652.) For retroactivity purposes, a judgment is
not final until the time for petitioning for a writ of certiorari in
the United States Supreme Court has passed. (People v. Vieira
9
(2005) 35 Cal.4th 264, 306.) Cernogg’s appeal of the denial of his
section 1170.95 petition was not final when Senate Bill 775 took
effect, and therefore the amendments apply retroactively to
consideration of his petition.
2. Remand is required for a new section 1170.95,
subdivision (d) hearing
Although the trial court did not issue an OSC, the parties
have treated its denial of the petition as a decision on the merits
following an evidentiary hearing under section 1170.95,
subdivision (d)(3). Cernogg does not contend the court’s failure to
issue an OSC was error or somehow prejudiced him. Accordingly,
we treat the court’s ruling as a denial of the petition under
subdivision (d).
As noted, in our 2021 unpublished opinion we agreed with
Cernogg that the proper inquiry for a court ruling on a section
1170.95 petition at the subdivision (d)(3) hearing stage is not
whether there is substantial evidence in the record to support a
murder verdict on a still-valid ground. Instead, the court must
act as an independent fact finder and determine whether, beyond
a reasonable doubt, the petitioner is guilty under a theory that
remains valid after Senate Bill 1437’s enactment. Congruent
with our holding in Cernogg III, the Legislature has now
expressly stated that the substantial evidence standard does not
apply.
As we previously explained, it is not clear from the record
that the trial court employed the correct, independent fact finder
standard. It stated it had considered the court file as well as this
court’s prior opinions, and it discussed the evidence presented at
trial. It also referenced the reasonable doubt standard. But, the
record also suggested the court felt bound by the law of the case
10
doctrine, and denied the petition because this court had already
held, in Cernogg I and Cernogg II, that substantial evidence
existed to support a jury finding that Cernogg was guilty as an
aider and abettor. The trial court referenced its own findings,
but only in conjunction with the “findings of the appellate court.”
When Cernogg’s counsel asked the court to specify the basis for
its decision, it responded that “the findings by the appellate court
are such that there is more than sufficient evidence to find beyond
a reasonable doubt the defendant guilty under the aiding-and-
abetting theory and that’s based on the appellate court’s finding
it appears that’s what the jury did.” (Italics added.) When
counsel argued that the substantial evidence test did not apply,
the court again referenced the law of the case doctrine. Had the
court been acting as an independent fact finder, there would have
been no reason for it to discuss the law of the case doctrine.
Moreover, Senate Bill 775 has now clarified what type of evidence
is admissible at the section 1170.95, subdivision (d) hearing.
Given the foregoing, we again reverse the trial court’s order and
remand to allow it to conduct a new hearing in accordance with
section 1170.95, as amended by Senate Bill 775.
3. Alternative-theory error analysis is inapplicable to
evaluation of a section 1170.95 petition and Cernogg is not
entitled to a new jury trial
Cernogg argues that he is entitled to a new jury trial. He
also argues that his petition must be evaluated using the
alternative-theory error analysis applicable on direct review,
which, he contends, requires reversal of his murder conviction.
He is incorrect on both points.
“ ‘The retroactive relief provided by section 1170.95 reflects
an act of lenity by the Legislature “that does not implicate
11
defendants’ Sixth Amendment rights.” ’ [Citations.]” People v.
Silva (2021) 72 Cal.App.5th 505, 520.) Thus, a “petitioner is not
entitled to a jury trial at any point in the section 1170.95 process.
Indeed, courts have uniformly held that section 1170.95 does not
implicate the Sixth Amendment right to a jury trial.” (People v.
Farfan (2021) 71 Cal.App.5th 942, 948; Silva, at p. 520; People v.
James (2021) 63 Cal.App.5th 604, 608–609; People v. Howard
(2020) 50 Cal.App.5th 727, 740; People v. Anthony (2019) 32
Cal.App.5th 1102, 1156.) Senate Bill 775 did nothing to change
this principle.
Cernogg’s contention that the superior court was required
to apply an alternative-theory instructional error analysis when
ruling on his petition fares no better. When a trial court
instructs a jury on two theories, one legally correct and the other
legally incorrect, on direct appeal reversal is required unless the
reviewing court finds, beyond a reasonable doubt, that the jury
based its verdict on a valid ground. (People v. Gentile, supra, 10
Cal.5th at p. 851; People v. Aledamat (2019) 8 Cal.5th 1, 13;
People v. Chiu, supra, 59 Cal.4th at p. 167; In re Martinez (2017)
3 Cal.5th 1216, 1218; People v. Sanchez (2022) 75 Cal.App.5th
191, 196.) The relevant question in such a case is “not whether
we believe it clear beyond a reasonable doubt that the defendant
is guilty under the legally correct theory, but whether we can say,
beyond a reasonable doubt, that the legally incorrect jury
instruction did not taint the actual jury verdict.” (People v.
Baratang (2020) 56 Cal.App.5th 252, 263.)
In his original briefing, Cernogg argued that this same
standard applies to evaluation of a section 1170.95 petition;
“Proving ineligibility beyond a reasonable doubt is simply
another way of saying that the instructional error in the first
12
instance was ‘harmless beyond a reasonable doubt.’ ” Thus, he
argued, because this court had already held it was not possible to
determine beyond a reasonable doubt whether the jury relied
upon the natural and probable consequences doctrine, his
conviction must be vacated. Senate Bill 775, he contends,
reinforces the validity of his arguments, especially in light of the
addition of subdivision (g) (stating that application of Senate Bill
1437 may be considered on direct appeal).
But this is not a direct appeal, and the alternative-theory
error analysis has no relevance here. (See People v. Farfan,
supra, 71 Cal.App.5th at p. 947 [“The mere filing of a section
1170.95 petition does not afford the petitioner a new opportunity
to raise claims of trial error . . . .”].) The fact it cannot be
determined which theory the jury relied upon means Cernogg is
not ineligible for section 1170.95 relief as a matter of law. It does
not mean he is necessarily entitled to relief after a section
1170.95, subdivision (d) hearing. The Legislature has specified in
section 1170.95 a specific and detailed procedure to provide relief
to persons with final convictions, i.e., that where a petitioner has
made a prima facie case, the trial court must evaluate the
evidence, act as a fact finder, and determine if the petitioner is
guilty of murder based on a still-valid theory. Basing a reversal
upon instructional error that occurred at the original trial is
inconsistent with section 1170.95 and has no place in this
process. Moreover, the fact that a petitioner might have been
convicted on a natural and probable consequences or felony-
murder theory is a given; if it were not so, the petitioner would be
ineligible for relief as a matter of law. Under Cernogg’s theory,
any such petitioner would be entitled to reversal or a new trial
automatically, without the need for a section 1170.95, subdivision
13
(d) hearing. This does not comport with the procedure mandated
by the Legislature.
Senate Bill 775’s addition of subdivision (g) has no bearing
on Cernogg’s petition. Subdivision (g) states that a person whose
conviction “is not final may challenge on direct appeal the validity
of that conviction.” (Italics added.) Cernogg’s murder conviction
was final years ago, and the appeal of the denial of his section
1170.95 petition is not a direct appeal.
Cernogg’s equal protection argument also fails to persuade.
We understand Cernogg’s argument to be that equal protection
principles require he be treated identically to persons whose
convictions are not final. This, he theorizes, requires application
of the alternative-theory error standard, reversal of his murder
conviction, and a new jury trial.
“The concept of equal treatment under the laws means that
persons similarly situated regarding the legitimate purpose of the
law should receive like treatment. [Citation.] ‘ “The first
prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal
manner.” [Citations.] This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.” ’ ” (People
v. Morales (2016) 63 Cal.4th 399, 408.)
Even where two groups are similarly situated, unless a
suspect class is involved, equal protection is denied only when
there is no rational relationship between the disparity of
treatment and some legitimate governmental purpose. Contrary
to Cernogg’s assertion, rational basis review applies here. (See
People v. Sanchez (2020) 48 Cal.App.5th 914, 921 [rational basis
14
review applies to evaluation of Senate Bill 1437]; People v.
Mora (2013) 214 Cal.App.4th 1477, 1483 [if “the classification
does not involve a suspect class, legislation is presumed to be
valid under the equal protection clause if the statutory
classification is rationally related to a legitimate state interest.”];
People v. Cruz (2012) 207 Cal.App.4th 664, 676, fn. 11 [“prisoners
are not a suspect class; status of incarceration is neither an
immutable characteristic nor an invidious basis of classification”];
People v. Yearwood (2013) 213 Cal.App.4th 161, 178–179.)
Cernogg fails to establish the first prerequisite for an equal
protection claim, i.e., that he is similarly situated to persons
whose direct appeal is still pending. But even assuming for
purposes of argument that he is similarly situated, no equal
protection violation is apparent.
A statute providing for reduction of sentences “ ‘only
prospectively from the date a new sentencing statute takes effect
is not a denial of equal protection.’ ” (People v. Floyd (2003) 31
Cal.4th 179, 189.) The “ ‘ability to elect to be sentenced under a
law enacted after the date of the commission of a crime is not a
constitutional right but a benefit conferred solely by statute. It is
not unconstitutional for the legislature to confer such benefit only
prospectively . . . .’ ” (Id. at pp. 189–190; see People v. Smith
(2015) 234 Cal.App.4th 1460, 1467.) The “ ‘14th Amendment does
not forbid statutes and statutory changes to have a beginning,
and thus to discriminate between the rights of an earlier and
later time.’ [Citation.]” (Floyd, at p. 191.)
If a new statute providing for lesser punishment can
constitutionally be made completely prospective, then certainly
the Legislature may constitutionally require that persons whose
convictions are final may obtain relief based on an ameliorative
15
statute, but only through specified means. Here, the Legislature
has reasonably provided different mechanisms for relief for
persons whose judgments are not final, and those whose are. The
former may seek application of Senate Bill 1437’s changes on
direct appeal; the latter may obtain relief via the section 1170.95
petition procedure. Both approaches provide for application of
Senate Bill 1437’s amendments, and for full relief: if an
instructional error is deemed prejudicial on direct appeal, the
appellant will likely get a new trial; if a section 1170.95 petition
is granted, his or her murder conviction will be vacated. Cernogg
fails to show how application of the section 1170.95 procedure
meaningfully disadvantages him.
Moreover, the Legislature’s use of these different
procedures is reasonable and rationally related to legitimate
governmental purposes. The Legislature could have wished to
avoid an onslaught of full jury retrials which likely would have
overwhelmed the trial courts, instead opting for the more
economical and relatively more expeditious section 1170.95
procedure. (See generally People v. Floyd, supra, 31 Cal.4th at
p. 191 [recognizing as “legitimate the practical concerns
associated with the transition from one sentencing scheme to
another, such as resentencings”]; People v. Cruz, supra, 207
Cal.App.4th at p. 679.) Additionally, nonfinal cases are typically
of more recent vintage than final judgments. If an instructional
error requires retrial after reversal on direct appeal, it is more
likely witnesses and evidence will still be readily available. In
the case of final convictions—often many years old—it is much
less likely witnesses or evidence will still be accessible.
Mandating new jury trials would require that the People expend
considerable resources to find such witnesses or prove their
16
unavailability (see Evid. Code, § 1291). And, where witnesses are
available, requiring them to testify a second time would certainly
inconvenience and potentially traumatize them. The section
1170.95 procedure mitigates such concerns by making an
exception to the hearsay rules, expressly stating that “the court
may consider evidence previously admitted at any prior hearing
or trial that is admissible under current law.” (§ 1170.95,
subd. (d)(3).) Conversely, as to non-final convictions, the
Legislature could reasonably conclude that allowing a Senate Bill
1437 claim in the direct appeal is both efficient and expeditious,
in that all claims may be adjudicated in a unitary proceeding.
That option, of course, is not possible where the conviction is
already final.5
5
Cernogg asserts that Senate Bill 775 requires that at the
section 1170.95, subdivision (d) hearing, “evidentiary
constraints,” including “all federal and state constitutional
parameters existent at the time of its enactment” and “judicial
interpretations of same” must apply, including the rule of
Crawford v. Washington (2004) 541 U.S. 36. He also asserts that
the trial court may not consider any prior appellate opinion
except in regard to the procedural history of the case. As no
hearing has yet been held under section 1170.95 as amended by
Senate Bill 775, no evidentiary rulings yet exist. We have no
occasion to consider Cernogg’s broad assertions in a vacuum,
except to note that the Sixth Amendment, and therefore
Crawford, does not apply at a section 1170.95 evidentiary
hearing. (See People v. Silva, supra, 72 Cal.App.5th at p. 520;
People v. James, supra, 63 Cal.App.5th at p. 610; People v.
Anthony, supra, 32 Cal.App.5th at p. 1156.)
17
DISPOSITION
The order is reversed. The matter is remanded for further
proceedings in accordance with section 1170.95, as amended by
Senate Bill 775, and with the opinions expressed herein.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
18