Reported / Citable
Background
In 2008, two rival street gangs had a confrontation in Modesto. Shortly afterward, someone in a passing Honda Civic fired seven shots into the group, killing Chanthol Ouk, a bystander with no gang ties. Sarath Sam Prak was arrested as the front-seat passenger who fired the shots; his co-defendant was the driver. Both were charged with murder and related gang and firearm enhancements.
At the preliminary hearing, law enforcement officers testified about what eyewitnesses told them—so-called “Proposition 115 hearsay,” which California law allows at preliminary hearings to establish probable cause. In 2012, Prak pleaded guilty to voluntary manslaughter and admitted personally using a firearm in the killing. He received a 31-year sentence. At sentencing, he apologized to the victim’s family and said he wished he could undo what he had done.
In January 2024, Prak filed a resentencing petition under Penal Code § 1172.6, the mechanism created by Senate Bill 1437 (2018) to give relief to defendants who were convicted under now-invalid theories of “imputed malice”—such as the natural and probable consequences doctrine or felony murder rules that no longer apply. Prak’s petition, filed on form boxes, alleged only in general terms that his conviction might have rested on such a theory. The trial court denied the petition at the prima facie stage, relying on the preliminary hearing transcript—including its hearsay content—and Prak’s own admissions at the change-of-plea hearing.
The Court’s Holding
The Fifth District Court of Appeal affirmed, joining the Second and other districts in holding that a preliminary hearing transcript is part of the “record of conviction” for § 1172.6 purposes, even when it contains Proposition 115 hearsay. The court followed People v. Rodriguez (2026) 117 Cal.App.5th 1179 and People v. Patton (2025) 17 Cal.5th 549 (the California Supreme Court decision clarifying prima facie review standards).
The key textual point: Penal Code § 1172.6(d)(3) restricts hearsay at the evidentiary hearing stage of a resentencing petition, but imposes no comparable restriction on hearsay at the prima facie stage under subdivision (c). When the Legislature enacted Senate Bill 775 in 2021 to codify Lewis’s holding on prima facie review, it addressed evidentiary limits only for the final hearing—a deliberate structural choice. Importing those limits backward to the screening stage would contradict the statutory design.
On the facts, the preliminary hearing transcript contained consistent accounts identifying Prak as the actual shooter, his information charged him with murder with a personal-firearm-discharge enhancement, and he admitted at the plea hearing to personally using a firearm. Because Prak offered only generic, conclusory allegations and never identified any competing factual theory, the trial court was entitled to deny the petition without an evidentiary hearing. In the interest of justice, however, the court granted him 30 days to file an amended petition with nonconclusory allegations—consistent with the approach in Patton and Rodriguez.
Key Takeaways
- Preliminary hearing transcripts—including officer-relayed Proposition 115 hearsay—are part of the “record of conviction” and may be used at the § 1172.6 prima facie screening stage; the hearsay restrictions in § 1172.6(d)(3) apply only at the later evidentiary hearing.
- A form-box petition with conclusory allegations does not make a prima facie showing when the record of conviction clearly identifies the petitioner as the actual killer or otherwise places them on a still-valid theory of liability.
- To earn an evidentiary hearing, a petitioner must come forward with nonconclusory, competing factual allegations that raise a material dispute about whether the conviction rested on an abrogated theory—checking boxes is not enough when the record contradicts relief.
- Defense counsel filing § 1172.6 petitions should closely review the preliminary hearing transcript before briefing and, if it is damaging, address it directly with specific counter-allegations rather than relying on conclusory form language.
- Courts retain discretion to grant 30-day leave to file an amended petition in the interest of justice, providing a second chance even after prima facie denial—but the amended petition must be substantively different, with real factual content.
Why It Matters
California’s courts are processing a massive backlog of Penal Code § 1172.6 resentencing petitions from defendants convicted before Senate Bill 1437’s 2018 reforms to murder liability. The question of what evidence a court may consult at the preliminary screening stage—before ordering a full evidentiary hearing—directly determines which petitioners get a second look and which are turned away at the door. Prak, joining Rodriguez, confirms that the preliminary hearing transcript is fully in play at that stage, even if it contains hearsay that could not be used at the eventual hearing on the merits.
For defense lawyers, the practical implication is clear: if your client’s preliminary hearing transcript identifies them as the actual killer, the path to an evidentiary hearing runs through nonconclusory, competing allegations—not through fighting the admissibility of the transcript itself. For prosecutors, the decision confirms that a strong record of conviction—including Proposition 115 hearsay in the preliminary hearing—can defeat a § 1172.6 petition at the threshold stage without a full evidentiary hearing, saving significant court resources in appropriate cases.