Full Opinion

Filed 10/30/26 P. v. McKandes CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B349049 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A378904) v. BERNARD MCKANDES, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Shelly Torrealba, Judge. Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent. Defendant and appellant Bernard McKandes (defendant) was sentenced to 17 years to life in prison after pleading guilty to second degree murder and admitting personal use of a firearm in connection with the offense. Decades later, he petitioned for resentencing pursuant to Penal Code section 1172.6 (former Penal Code section 1170.95).1 After issuing an order to show cause, the trial court found defendant was the victim’s actual killer and denied defendant’s petition. We are asked to decide two issues: whether the court erred in considering the transcript of defendant’s preliminary hearing in making its ruling and whether substantial evidence supports the trial court’s denial of section 1172.6 relief. I. BACKGROUND In 1984, defendant was charged with murdering and robbing Carl Diggs (Diggs). The information against defendant alleged he personally used a shotgun in the commission of the crimes. Defendant thereafter pled guilty to second degree murder as charged and admitted the allegation that he personally used a firearm (a shotgun) at the time of the commission of the offense. The trial court sentenced defendant to 17 years to life in prison In January 2019, defendant filed a section 1172.6 form petition. He checked boxes asserting an information was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, he pled guilty or no contest to 1 Undesignated statutory references that follow are to the Penal Code. 2 first or second degree murder in lieu of going to trial because he believed he could have been convicted under one of those theories, and he could not be convicted of the offense under current law.2 The trial court denied defendant’s petition without appointing counsel. In a prior appeal, we reversed that order and remanded with directions to appoint counsel for defendant and thereafter proceed consistent with section 1172.6. (People v. McKandes (Aug. 17, 2021, No. B305304) [nonpub. opn.].) The trial court appointed counsel for defendant on remand and the People responded to the petition. The trial court held a hearing and determined defendant had not made a prima facie case for relief, basing its decision primarily on defendant’s probation report and a transcript of his preliminary hearing. In a prior opinion, we held reliance on the probation report and the preliminary hearing transcript was improper at the prima facie stage since there was no indication in the record that defendant stipulated to the preliminary hearing testimony as the factual basis for his plea; we reversed and remanded with directions for the superior court to issue an order to show cause and thereafter proceed as required by section 1172.6, subdivision (d).3 (People v. McKandes (Oct. 17, 2023, No. B323020) [nonpub. opn.].) 2 Defendant also checked boxes to indicate he was convicted at trial and his conviction was for first-degree felony murder. Neither assertion is supported by the record. 3 More recently, our Supreme Court has held to the contrary. (People v. Patton (2025) 17 Cal.5th 549, 569 [“To the extent courts of appeal have conditioned use of preliminary hearing transcripts at the prima facie stage on whether a defendant, when pleading guilty, stipulated to the transcript or its contents, they have overlooked the issue-framing role a transcript can play at the 3 On remand, the People submitted an evidentiary brief relying on evidence presented at defendant’s preliminary hearing and parole hearings, as well as a probation report, to prove defendant was Diggs’s actual killer. One “Miss Gabriel” (Gabriel) testified at the preliminary hearing. The murder victim, Diggs, was an acquaintance of hers and she received a phone call from him on March 2, 1982, and planned to meet him later that day. They met in the parking lot of a liquor store and she saw him enter the rear passenger side door of his car. Then, a man and woman walked up to Diggs, the woman made a quick movement, and Diggs fell. The man, who Gabriel later identified as defendant, then shot Diggs.4 Gabriel testified the gun was black metal and approximately 12 inches, but she was not close enough to identify what kind of gun it was. At defendant’s parole hearing in June 2014, he initially admitted he shot Diggs but he later recanted and said he was lying and had no idea who killed him. Defendant said he pled guilty to murdering Diggs in order to receive a shorter sentence. Defendant did, however, admit to shooting and killing someone else during a separate incident. At a parole hearing in February 2022, defendant again admitted to killing a different victim but denied shooting Diggs. prima facie stage of the resentencing process. [Citations.] The absence of such a stipulation during an earlier plea colloquy does not eliminate this role”].) 4 Gabriel did not positively identify defendant during her first meeting with the police because she had recently heard about a “prostitution murder” and feared for her life because she was a sex worker at the time. 4 In response to the prosecution’s brief and evidentiary proffer, defendant submitted a brief arguing the court should not consider the partial preliminary hearing transcript because it was incomplete, lacked oaths or affirmations from the court reporter and the witness, and constituted inadmissible hearsay. Defendant also argued the court should not consider the parole hearing transcripts. The trial court held a September 2025 hearing on defendant’s section 1172.6 petition and read its ruling into the record. The court stated it had reviewed the partial preliminary hearing transcript, the parole board hearing transcripts, and this court’s prior opinions. The court found defendant’s plea precluded the court from reconsidering his intent (and thus precluded the court from considering his assertions of innocence at his later parole hearings). The court limited its analysis to whether defendant acted alone in committing the Diggs murder and whether he was eligible for resentencing. The court stated it was permitted to rely on unchallenged facts within a preliminary hearing transcript to refute conclusory allegations made by a petitioner and found any irregularities regarding the form of the partial preliminary hearing transcript went to its weight, not its admissibility. The court also concluded that taking judicial notice of the testimony did not violate defendant’s due process rights because the witness was subject to meaningful cross-examination. And the court determined it was permitted to consider the parole hearing transcripts as new or additional evidence. The trial court found defendant was the only shooter in the killing and, based on the preliminary hearing transcript, could not have been convicted under an invalid theory of murder. The 5 court then found beyond a reasonable doubt that defendant was ineligible for resentencing based on his plea and because he was Diggs’s actual killer. II. DISCUSSION Defendant’s arguments for reversal lack merit. As we shall explain, the trial court’s reliance on the pertinent testimony at defendant’s preliminary hearing was permissible and that testimony constitutes substantial evidence defendant was Diggs’s actual killer. At a section 1172.6 evidentiary hearing, “the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under [the] law as amended by Senate Bill [No.] 1437. (§ 1172.6, subd. (d)(3).)” (People v. Strong (2022) 13 Cal.5th 698, 709.) “[Section 1172.6] relief is unavailable if the defendant was either the actual killer, acted with the intent to kill, or ‘was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.’” (Id. at 710.) “[A] trial court’s denial of a section 1172.6 petition is reviewed for substantial evidence. [Citation.] Under this standard, we review the record ‘“‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”’ [Citation.]” (People v. Reyes (2023) 14 Cal.5th 981, 988; see also People v. Demolle (2026) 19 Cal.5th 1117, 1176 [“unless . . . physically 6 impossible or inherently improbable, [the] testimony of a single witness is sufficient to support a conviction”].) Gabriel testified at the preliminary hearing that she saw defendant shoot Diggs (and there was no other shooter). That is substantial evidence the trial court was entitled to credit to find defendant was Diggs’s actual killer—which made him ineligible for section 1172.6 relief.5 Defendant counters that the court was not permitted to rely on the preliminary hearing transcript. That is wrong on the law. Section 1172.6 makes eyewitness testimony given at a preliminary hearing admissible. (§ 1172.6, subd. (d)(3) [“The admission of evidence in the hearing [following issuance of an order to show cause] shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. . . . However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless 5 Defendant attacks Gabriel’s credibility because she testified he used a 12-inch pistol rather than a shotgun as alleged in the information. But we give deference to a trial court’s credibility finding (see, e.g., People v. Richardson (2008) 43 Cal.4th 959, 1030) and the trial court could reasonably decide the crucial fact was defendant’s use of a firearm, not the specific type of gun used. Defendant also seems to impugn Gabriel’s credibility because she was a sex worker and suggests Gabriel herself may have been the female accomplice who knocked Diggs down. The former has no bearing on the reliability of Gabriel’s testimony, and the latter is mere conjecture. 7 the evidence is admissible pursuant to another exception to the hearsay rule”]; see also People v. Davenport (2023) 95 Cal.App.5th 1150, 1158 [“Although section 1172.6, subdivision (d)(3) does not contain express language stating that a preliminary hearing transcript is admissible at the evidentiary hearing, a plain reading of the statute compels this conclusion”].) Defendant believes otherwise because, he says, People v. Gallardo (2017) 4 Cal.5th 120 bars using a preliminary hearing transcript when there is no indication in the record that defendant stipulated to the transcript as the factual basis for his plea. Gallardo, which was based on Sixth Amendment principles, concerned a trial court’s review of a preliminary hearing transcript to determine whether a defendant was previously convicted of a serious felony that qualified as a strike offense. (Gallardo, supra, 4 Cal.5th at 123-124, 136.) It is inapposite here, where we review the trial court’s ruling following an evidentiary hearing pursuant to section 1172.6, at which Sixth Amendment principles are not implicated. (People v. James (2021) 63 Cal.App.5th 604, 609-610.) Defendant further contends Gallardo prohibited the trial court from finding his plea established he intended to kill Diggs. That doesn’t matter. The finding that defendant was Diggs’s actual killer alone warranted denying relief. (See, e.g., Strong, supra, 13 Cal.5th at 710.) 8 DISPOSITION The trial court’s order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, Acting P. J. We concur: MOOR, J. KIM (D.), J. 9