basis of alleged trial error in California

2026Rather, Sandoval argues that he was defending himself because the victim “lifted a flat shovel” and that his second trial was conducted “behind [his] back.” “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942 , 947; see also People v. Coley (2022) 77 Cal.App.5th 539 , 549 [section 1172.6 “is not a means by which a defendant can relitigate issues already decided”].) Section

2026Section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error. [Citation.]” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438, fn. omitted.) Clamp’s claim that his trial counsel was ineffective is not properly brought in this section 1172.6 appeal.

2026Rather, Sandoval argues that he was defending himself because the victim “lifted a flat shovel” and that his second trial was conducted “behind [his] back.” “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942 , 947; see also People v. Coley (2022) 77 Cal.App.5th 539 , 549 [section 1172.6 “is not a means by which a defendant can relitigate issues already decided”].) Section

2026(People v. Farfan (2021) 71 Cal.App.5th 942 , 947.) “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (Ibid.; see also Lopez-Barraza, supra, 110 Cal.App.5th at p. 1244 [citing Farfan]; People v. Coley (2022) 77 Cal.App.5th 539 , 549 [a section 1172.6 petition “is not a means by which a defendant can relitigate issues already decided”]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permi

2023(People v. Davis (1996) 50 Cal.App.4th 168, 172 [“a trial court’s order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record”].) DISPOSITION The order denying defendant’s petition for resentencing pursuant to section 1172.6 is affirmed.

2023(People v. Davis (1996) 50 Cal.App.4th 168, 172 [“a trial court’s order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record”].) DISPOSITION The trial court’s postjudgment order denying Lewis’s section 1172.6 petition is affirmed.

2025Section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438), “ ‘does not create a right to a second appeal,’ ” and cannot be used “ ‘to resurrect a claim that should have been raised in his … direct appeal’ ” (People v. Flores (2023) 96 Cal.App.5th 1164 , 1173).

2025(See, e.g., People v. Flores (2023) 96 Cal.App.5th 1164 , 1173; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) 10 DISPOSITION The order denying defendant’s section 1172.6 petition is affirmed.

2025(See People v. Senior (1995) 33 Cal.App.4th 531, 535 [“California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing.”]; see also People v. Deere (1991) 53 Cal.3d 705, 713 [appellate claims regarding the guilt phase of trial could not be raised in a subsequent appeal following remand as to the penalty phase only where the judgment had been affirmed in all other respects in the original appeal]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged tr

2025An appeal from a denial of a section 1172.6 petition is “not a direct appeal,” and “[t]he statute does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438.) In addition, these claims could have been, but were not, raised in defendant’s direct appeal. “[W]here a criminal defendant could have raised an issue in 5 a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.” (People v. Senior (1995) 33 Cal.App.4th 531,

2025(Lovejoy, supra, 101 Cal.App.5th at 865; Coley, supra, 77 Cal.App.5th at 548; see also People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) 5 DISPOSITION The trial court’s order denying defendant’s section 1172.6 petition is affirmed.

2024(People v. Lovejoy (2024) 101 Cal.App.5th 860 , 865; People v. Coley, supra, 77 Cal.App.5th at p. 548; see also People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) IV.

2024(Strong, supra, 13 Cal.5th at p. 710 [“[f]indings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437”].) While this statement may be true, it is irrelevant.

2023(See Strong, supra, 13 Cal.5th at pp. 713-714 [resentencing under 1172.6 involves “prospective relief from a murder conviction that was presumptively valid at the time,” not the correction of “errors in past factfinding”]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”], abrogated on another ground by People v. Lewis, supra, 11 Cal.5th at p. 962 .) DISPOSITION The trial court’s postjugment order is affirmed.

2026We find Jackson’s arguments meritless because an appeal from a denial of a section 1172.6 petition is “not a direct appeal,” and the statute “does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438; see also People v. Bratton (2023) 2 On our own motion we take judicial notice of our prior opinion in case No. C101170. 2 95 Cal.App.5th 1100 , 1127 [“ ‘ “The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously deter

2026When a contention on appeal is “wholly unrelated to the denial of [a] section 1172.6 petition for resentencing” from which the appeal is taken, the contention is “not cognizable.” (People v. Hernandez (2024) 103 Cal.App.5th 1111 , 1117; see People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [§ 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) Defendant also claims the trial court failed to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620) and to apply the Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate

2026(People v. Farfan (2021) 71 Cal.App.5th 942 , 947.) “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (Ibid.; see also Lopez-Barraza, supra, 110 Cal.App.5th at p. 1244 [citing Farfan]; People v. Coley (2022) 77 Cal.App.5th 539 , 549 [a section 1172.6 petition “is not a means by which a defendant can relitigate issues already decided”]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permi

2026(People v. Farfan (2021) 71 Cal.App.5th 942 , 947.) “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (Ibid.; see also Lopez-Barraza, supra, 110 Cal.App.5th at p. 1244 [citing Farfan]; People v. Coley (2022) 77 Cal.App.5th 539 , 549 [a section 1172.6 petition “is not a means by which a defendant can relitigate issues already decided”]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permi

2026Rather, Sandoval argues that he was defending himself because the victim “lifted a flat shovel” and that his second trial was conducted “behind [his] back.” “ ‘The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942 , 947; see also People v. Coley (2022) 77 Cal.App.5th 539 , 549 [section 1172.6 “is not a means by which a defendant can relitigate issues already decided”].) Section

2026We find Jackson’s arguments meritless because an appeal from a denial of a section 1172.6 petition is “not a direct appeal,” and the statute “does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438; see also People v. Bratton (2023) 2 On our own motion we take judicial notice of our prior opinion in case No. C101170. 2 95 Cal.App.5th 1100 , 1127 [“ ‘ “The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously deter

2026(See Palacios, supra, 101 Cal.App.5th at p. 953 [where defendant did not challenge the admissibility of a confession at trial or raise a claim of ineffective assistance of counsel on appeal, such a challenge was not properly brought in section 1172.6 proceedings because “[d]ue process does not require the Legislature or the courts to grant Palacios yet another opportunity to raise the issue”].) 3.

2025Code, § 1172.6, which similarly establishes a recall and resentencing scheme for eligible individuals convicted of murder or attempted murder before amendments to the theories of indirect murder liability, “does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error”]; see 11 also People v. Wilson (2024) 16 Cal.5th 874 , 955 [“the standard vehicle for developing and presenting claims of error in the judgment based on evidence outside the appellate record--as [the defendant] seeks to do here--is a petition for a writ of habeas corpus].”) Defendan

2025(Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [issues forfeited if unsupported by argument or citation to authority]; cf. People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [petitioner cannot establish eligibility for postconviction resentencing relief under § 1172.6 “on the basis of alleged trial error”].) DISPOSITION The trial court’s April 25, 2024 order declining to recall and resentence Wilburn pursuant to section 1172.1 is affirmed. /s/ FEINBERG, J.

2025(See People v. Senior (1995) 33 Cal.App.4th 531, 535 [“California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing.”]; see also People v. Deere (1991) 53 Cal.3d 705, 713 [appellate claims regarding the guilt phase of trial could not be raised in a subsequent appeal following remand as to the penalty phase only where the judgment had been affirmed in all other respects in the original appeal]; People v. DeHuff (2021) 63 Cal.App.5th 428 , 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged tr

2025It does not implicate the strict scrutiny test for equal protection purposes.”].) 26 rights of the defendant were affected thereby.”]; People v. Miller (1992) 6 Cal.App.4th 873, 880 [“Instructional error which amounts to a deprivation of constitutional rights may be alleged in a petition for writ of habeas corpus.”].) Before the Legislature enacted Senate Bill No. 775, one Court of Appeal had interpreted section 1170.95 as “not permit[ting] a petitioner to establish eligibility on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438.) “Generally, we presume that

2024(Strickland v. Washington, supra, 466 U.S. at pp. 687-692; see also People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 [failure to raise meritless issue does not result in effective assistance].) DISPOSITION The judgment is affirmed.

2024(Delgadillo, supra, 14 Cal.5th at p. 232 [where the defendant’s attorney finds no arguable issues in an appeal from the denial of a section 1172.6 petition and the defendant files a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion,” but it is “wholly within the court’s discretion” whether to conduct an independent review of the entire record].) 5 DISPOSITION The order denying defendant’s section 1172.6 petition is affirmed.

2023That is a claim of trial error (see, e.g., People v. Hendrix (2022) 13 Cal.5th 933, 941 [discussing instructional error as error at trial]), and section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428 , 438.) 7 To meet her burden, Radloff must be able to make a prima facie showing that all the components of section 1172.6, subdivision (a) apply.

2023Lee is distinguishable because in 1994, when the appellant in that case was convicted of provocative act murder, our “Supreme Court had not separated out the mens rea of individual defendants in provocative act murder cases,” and “case law imposed culpability on all perpetrators of the underlying crime so long as the provocateur acted with malice, and did so in furtherance of the common criminal design.” (Lee, supra, 95 Cal.App.5th at p. 1182.) As we already explained, that was no longer true by the time of Flores’s conviction in 2010, when the law was clear the defendant must personally act w