Reported / Citable
Background
Kevin Christopher Dixon filed a petition under Penal Code section 1172.6 seeking to vacate a murder conviction on the ground that he could not be convicted today under California’s revised murder-liability law (Senate Bill 1437 and successor statutes). The trial court issued an order to show cause and held an evidentiary hearing.
At the hearing, the prosecution introduced — and the trial court considered — a transcript of grand jury proceedings, police reports, witness statements, and other law-enforcement-generated documents. The court denied the petition.
Dixon appealed, arguing that the trial court erred by admitting these materials. The Attorney General conceded that the grand jury transcript and the law-enforcement records were inadmissible, but contended a new hearing was the appropriate remedy. Dixon argued the inadmissible evidence required vacating his conviction outright.
The Court’s Holding
The Court of Appeal vacated and remanded for a new evidentiary hearing. Section 1172.6(d)(3) provides that evidence at the hearing is governed by the Evidence Code, with a carve-out for evidence ‘previously admitted at any prior hearing or trial that is admissible under current law.’ California courts have interpreted that carve-out as a hearsay exception for preliminary-hearing and trial transcripts. The question is whether grand jury transcripts likewise fit.
The Fifth District joined Justice Feinberg’s dissent in People v. Robinson (now under California Supreme Court review) and the Ocobachi line of authority, holding that grand jury transcripts are not within the section 1172.6(d)(3) carve-out. The petitioner is not a party to a grand jury proceeding and has no opportunity to cross-examine declarants; that fundamental difference excludes grand jury transcripts from the hearsay exception. Police reports and law-enforcement-generated witness statements were also outside the carve-out for similar and independent reasons.
Because the trial court relied on inadmissible evidence to deny the petition, the order was vacated. The court rejected Dixon’s request to grant the petition outright, holding the proper remedy was a new evidentiary hearing under the proper evidentiary rules.
Key Takeaways
- Grand jury transcripts are inadmissible at section 1172.6 evidentiary hearings under the Fifth District’s reading of section 1172.6(d)(3).
- Police reports and law-enforcement-generated witness statements are likewise inadmissible at section 1172.6 evidentiary hearings.
- Preliminary-hearing and trial transcripts remain admissible under the section 1172.6(d)(3) carve-out, consistent with prior California Court of Appeal decisions.
- The California Supreme Court’s pending review in People v. Robinson will be the next major word on the grand-jury-transcript question; counsel should monitor the case.
- When a section 1172.6 hearing is tainted by inadmissible evidence, the proper remedy is generally a new hearing rather than outright grant of the petition.
Why It Matters
The Fifth District’s published decision contributes to a developing appellate split that the California Supreme Court is now poised to resolve in People v. Robinson. In the meantime, the opinion is highly significant for prosecutors and defense counsel handling section 1172.6 evidentiary hearings in the Central Valley and for any practitioner relying on the case’s reasoning elsewhere. Prosecutors should not rely on grand jury transcripts or police reports to defeat section 1172.6 petitions — they need live witnesses or properly admissible documentary evidence.
For defense counsel, the case is a practical tool to object to inadmissible documentary evidence at evidentiary hearings and to seek vacatur and remand when trial courts rely on grand jury transcripts or police reports. The opinion also flags the importance of monitoring the Supreme Court’s anticipated decision in Robinson, which will provide the final word on this admissibility question.