Unreported / Non-Citable
Background
In 1984, Bernard McKandes was charged with murdering and robbing Carl Diggs, the information alleging he personally used a shotgun. He pled guilty to second degree murder as charged and admitted the firearm allegation, receiving 17 years to life in prison. In January 2019 he filed a form petition for resentencing under Penal Code section 1172.6, asserting he could not be convicted under current law because he believed he could have been convicted under felony murder or natural and probable consequences theories.
The trial court first denied the petition without appointing counsel; the Court of Appeal reversed and remanded with directions to appoint counsel. On remand the court again found no prima facie case for relief, relying on the probation report and a preliminary hearing transcript, and the Court of Appeal reversed again, holding that reliance improper at the prima facie stage absent a stipulation to the transcript as the plea's factual basis, and remanded with directions to issue an order to show cause under section 1172.6, subdivision (d).
On the second remand the People submitted an evidentiary brief relying on preliminary hearing and parole hearing evidence and a probation report to prove McKandes was Diggs's actual killer. Witness Miss Gabriel testified at the preliminary hearing that she saw McKandes shoot Diggs after a woman made a quick movement and Diggs fell, describing a black metal gun about 12 inches long. At a June 2014 parole hearing McKandes initially admitted shooting Diggs but later recanted, claiming he pled guilty only for a shorter sentence; at a February 2022 parole hearing he denied shooting Diggs.
The Court’s Holding
After a September 2025 hearing, the trial court found McKandes was the only shooter in the killing and, beyond a reasonable doubt, ineligible for resentencing based on his plea and because he was Diggs's actual killer. The court held it could rely on unchallenged facts within the preliminary hearing transcript to refute conclusory allegations, that irregularities in the partial transcript went to weight rather than admissibility, that judicial notice did not violate due process because the witness was subject to meaningful cross-examination, and that it could consider the parole hearing transcripts as new or additional evidence.
The Court of Appeal affirmed. Section 1172.6, subdivision (d)(3) makes eyewitness testimony given at a preliminary hearing admissible at the evidentiary hearing, and Gabriel's testimony that she saw McKandes shoot Diggs was substantial evidence the trial court could credit to find he was the actual killer. People v. Gallardo (2017) 4 Cal.5th 120, which barred using a preliminary hearing transcript to establish a strike prior absent a plea stipulation, was inapposite because it rested on Sixth Amendment principles not implicated at a section 1172.6 hearing. The court deferred to the trial court's credibility finding, noting the crucial fact was McKandes's use of a firearm, not the specific type of gun.
The court further held that even if Gallardo barred using the plea to establish intent to kill, that did not matter: the finding that McKandes was Diggs's actual killer alone warranted denying relief. Under section 1172.6, relief is unavailable if the defendant was the actual killer, acted with intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life.
Key Takeaways
- At a section 1172.6 evidentiary hearing following an order to show cause, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under the law as amended by Senate Bill No. 1437.
- Section 1172.6, subdivision (d)(3) permits the court to consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including preliminary hearing witness testimony.
- People v. Gallardo's Sixth Amendment limits on using preliminary hearing transcripts to establish strike priors do not apply at section 1172.6 evidentiary hearings.
- A trial court's denial of a section 1172.6 petition is reviewed for substantial evidence, and a single witness's testimony can establish that the petitioner was the actual killer unless physically impossible or inherently improbable.
- A finding that the petitioner was the actual killer is independently sufficient to defeat section 1172.6 relief, regardless of intent to kill or major-participant status.
Why It Matters
The decision confirms that trial courts may rely on preliminary hearing testimony at section 1172.6 evidentiary hearings to find a petitioner was the actual killer even without a stipulation to the transcript as the plea's factual basis, distinguishing the Sixth Amendment strike-prior context from the statutory resentencing framework in which the Legislature expressly authorized consideration of previously admitted evidence.
The ruling underscores the deferential substantial-evidence standard and the trial court's role as arbiter of credibility, and confirms that any one of the three disqualifying factors—being the actual killer, acting with intent to kill, or being a major participant with reckless indifference—is sufficient to deny a section 1172.6 petition.