The Supreme Court yesterday denied review in People v. Ramos, and, although there were no recorded dissenting votes, Justice Goodwin Liu filed a concurring statement, which Justice Kelli Evans signed.
In a published opinion, the Fourth District, Division Three, Court of Appeal affirmed the denial of a petition to vacate an attempted murder conviction under later-enacted Penal Code section 1172.6, part of Senate Bill 1437, 2018 legislation that eliminated murder liability under the natural and probable consequences doctrine, significantly limited the scope of the felony murder rule, and allowed for resentencing for some convictions obtained under prior law.
Despite the Attorney General’s concession of error (the county district attorney filed an opposing amicus brief), the appellate court held that the superior court properly admitted evidence from a codefendant’s trial and that the right to confront witnesses doesn’t apply to section 1172.6 hearings.
Justice Liu wrote, “It strikes me as odd that someone could be found guilty of attempted murder beyond a reasonable doubt by a codefendant’s self-serving assertion that was untested by the accused.” The due process rights of a resentencing petitioner “may well include a right to cross-examine witnesses whose absence is not justified by good cause, where the evidence is critical to the prosecution’s ability to carry its burden” of opposing resentencing, he said.
Nonetheless, Justice Liu agreed Supreme Court review of the case is not necessary because, he concluded, the petitioner objected to evidence from his codefendant’s trial “as a matter of statutory interpretation and under the state and federal confrontation clauses, not the due process clause.”
He also suggested legislative action. His separate statement ended, “The Legislature does not appear to have intended to allow evidence from proceedings from which the petitioner was absent, and courts may well interpret the statute this way. Nevertheless, the Legislature may wish to amend section 1172.6, subdivision (d)(3) to make the point clear.”
