Unreported / Non-Citable
Background
Sunny Hsiao Shin Ting was charged in 2004 with one count of murder and one count of first-degree robbery of a taxi driver, with a robbery-murder special-circumstance allegation and firearm allegations. In 2005 he was convicted of both counts, the jury found the special circumstance true, and he was sentenced to life without the possibility of parole plus four years. On direct appeal, this court reversed the robbery conviction because prosecution was barred by the statute of limitations but affirmed the judgment in all other respects.
In January 2021 Ting filed a resentencing petition under former section 1170.95, later renumbered without substantive change as section 1172.6. After successive appellate decisions known as Ting I, Ting II, and Ting III, the Court of Appeal reversed the trial court’s denial and remanded with instructions to hold proceedings under section 1172.6, subdivisions (c) and (d). On February 8, 2024, the trial court appointed bar panel counsel for the section 1172.6 petition and a related Franklin hearing; in May 2024 privately retained attorney Jasmine A. Mines appeared for Ting.
The superior court held the section 1172.6 evidentiary hearing on January 31, 2025. Ting was neither physically present nor present by Webex, although defense counsel represented that she had authority to waive his appearance. In an April 15, 2025 letter, Ting said he did not waive his appearance, identified evidence he wanted located or admitted, said he had stopped hearing from counsel several months before the hearing, and asked the court to appoint new competent counsel. On April 29, 2025, the court issued a written ruling finding that Ting was a major participant who acted with reckless indifference to human life and denying the petition.
The Court’s Holding
The Second District Court of Appeal, Division Two, held that a section 1172.6, subdivision (d) evidentiary hearing is a critical stage of a criminal proceeding. Because the hearing may lead the court to vacate a murder conviction by considering new evidence or reweighing prior evidence, the defendant has a constitutional right to be personally present or to provide a valid waiver under the Sixth and Fourteenth Amendments and article I, section 15 of the California Constitution. The Attorney General agreed that holding the hearing in Ting’s absence without a valid waiver was error.
The court explained that the right to presence serves twin purposes: it allows the defendant to offer testimony or evidence after hearing the prosecution’s case, and it allows him to assist counsel with knowledge that may be uniquely available to him. Because the absence was constitutional error, the prosecution bore the burden under Chapman to prove beyond a reasonable doubt that the absence did not affect the outcome. The court rejected the argument that Ting’s prior trial testimony made any hearing testimony inconsequential, reasoning that he could have responded to the People’s presentation, helped counsel draw different inferences, proposed additional evidence, or decided whether to testify. His letter also indicated that he had a perspective to offer, so the court could not conclude beyond a reasonable doubt that his presence would not have affected the outcome.
The court therefore reversed the order denying the petition and remanded for a new evidentiary hearing at which Ting must either be present or provide a valid waiver, with the trial court also ordered to determine whether he requires appointed counsel for the petition. Because the court resolved the appeal on the presence-and-waiver error, it did not address Ting’s substantial-evidence challenge or his claim that the trial court erred by failing to hold a hearing on his request to discharge retained counsel.
Key Takeaways
- A section 1172.6 evidentiary hearing is a critical stage at which the defendant must be personally present or validly waive presence.
- The right serves two functions: permitting testimony or evidence in response to the prosecution and enabling the defendant to assist counsel with unique knowledge.
- Prior trial testimony does not establish that absence from the later evidentiary hearing was harmless beyond a reasonable doubt.
- The prosecution did not meet its burden to show that Ting’s absence did not affect the outcome of the section 1172.6 hearing.
- The appellate court did not decide Ting’s substantial-evidence challenge or his claim concerning a hearing on discharging retained counsel.
Why It Matters
The order denying Ting’s section 1172.6 petition was reversed, and the matter was remanded for a new evidentiary hearing at which he must either be present or provide a valid waiver, along with a trial-court determination whether appointed counsel is required for the petition. The decision resolves the appeal on the constitutional presence-and-waiver error rather than deciding whether the evidence supported the major-participant and reckless-indifference findings, leaving those issues open for the remanded proceedings.