People v. Ting CA2/2

Filed 10/28/26 P. v. Ting CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO THE PEOPLE, B346028 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA253204) v. SUNNY HSIAO SHIN TING, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Reversed and remanded. Brad Kaiserman, 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, Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.  Defendant and appellant Sunny Hsiao Shin Ting (defendant) appeals from the order denying his petition for vacatur of his murder conviction and resentencing following an evidentiary hearing pursuant to Penal Code1 section 1172.6, subdivision (d). On appeal, he contends the trial court’s denial was not supported by substantial evidence, the court erred in holding the evidentiary hearing outside of his presence and without his valid waiver, and the court erred in failing to hold a hearing on defendant’s request to discharge retained counsel. Finding merit to defendant’s second contention, we reverse and remand for further proceedings. PROCEDURAL BACKGROUND In 2004, defendant was charged by information with one count of murder (§ 187, subd. (a); count 1) and one count of first degree robbery of a transit operator, specifically a taxi driver (§ 211; count 2). As to count 1, it was further alleged that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)). As to counts 1 and 2, it was further alleged a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). In 2005, defendant was convicted of counts 1 and 2, and the jury found true the robbery-murder special circumstance. Defendant was sentenced to life without the possibility of parole, plus four years. On direct appeal, this court reversed the conviction on count 2 because prosecution for that offense was barred by the 1 Unless otherwise designated, all further statutory references are to the Penal Code. 2 statute of limitations. The judgment was affirmed in all other respects. (People v. Ting (Sept. 15, 2009, B209911) [nonpub. opn.] (Ting I).) In January 2021, defendant filed a petition for resentencing in the trial court pursuant to former section 1170.95, renumbered without substantive change to section 1172.6. On February 1, 2021, the trial court denied defendant’s facially sufficient petition at the prima facie stage based upon the jury’s true finding under section 190.2, subdivision (a)(17), as well as the court’s finding that the facts as summarized in Ting I supported the jury’s finding and demonstrated that defendant was ineligible for relief under section 1172.6. On appeal, we affirmed the denial on the grounds that the jury’s finding under section 190.2, subdivision (a)(17) special circumstance made defendant ineligible as a matter of law for resentencing under section 1172.6. We further held the jury’s special circumstance finding could not be challenged in a section 1172.6 proceeding based upon factors clarified after his conviction in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). We also conducted a substantial evidence review relevant to Banks and Clark as summarized in our opinion in Ting I and concluded that any error in denying the petition was harmless. (People v. Ting (Dec. 22, 2021, B311125) [nonpub. opn.] (Ting II).) After the California Supreme Court’s opinion in People v. Strong (2022) 13 Cal.5th 698, we reconsidered our opinion in Ting II. (People v. Ting (Feb. 15, 2023, B311125A) [nonpub. opn.] (Ting III).) In Ting III, we vacated our decision in Ting II and reversed the trial court’s denial of defendant’s section 1172.6 petition. We remanded the matter to the trial court with 3 instructions to hold proceedings in accordance with section 1172.6, subdivisions (c) and (d). (Ting III, supra, B311125A.) On February 8, 2024, the court appointed a bar panel attorney to represent defendant for purposes of his section 1172.6 petition.2 During a May 2024 appearance on defendant’s section 1172.6 petition, privately retained Attorney Jasmine A. Mines appeared as counsel for defendant. On August 30, 2024, the People filed an evidentiary hearing brief. On September 6, 2024, defense counsel filed an evidentiary hearing brief on behalf of defendant, and on January 22, 2025, defense counsel filed a supplemental hearing brief. On January 31, 2025, the court held an evidentiary hearing on the petition. Defendant was “not physically present” or “present on Webex.” Defense counsel, however, “represent[ed] to the Court that she ha[d] authority to waive the Defendant’s appear[ance] and proceed with the hearing.” The court noted its receipt of the parties’ filings, reviewed the convictions and special allegations with the parties, and entertained oral argument by the parties. At the conclusion of the hearing, the court took the matter under submission and indicated it would issue a written ruling. On April 15, 2025, the court received a letter from defendant, in which defendant indicated he “did not waive” his appearance at the evidentiary hearing and that he “made that clear to [his attorney].” He also stated his understanding the 2 Also on February 8, 2024, the court appointed bar panel counsel to represent defendant for purposes of his request for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). 4 evidentiary hearing on his section 1172.6 petition was not going to be held until after his Franklin hearing. He asserted “[t]here’s a list of evidence [he] requested [his attorney] to locate and several items of evidence [he] had sent to [her] to be admitted into evidence.” Defendant told the court he stopped hearing from section 1172.6 counsel Mines “[s]everal months prior to the evidentiary hearing,” and he was unable to reach her by phone or through “the institution text app,” but he received a letter from counsel dated February 5, 2025, informing him of “the conclusion of [their] attorney-client relationship” because the evidentiary hearing had been conducted. As a result of these concerns, defendant asked the court to “appoint [a] new competent attorney to represent” him. On April 29, 2025, the court issued its written ruling on defendant’s section 1172.6 petition. In short, the court found defendant was a major participant who acted with reckless indifference to human life, and it denied the petition. Defendant timely appealed. DISCUSSION It was prejudicial error to hold the section 1172.6, subdivision (d) hearing in defendant’s absence without a valid waiver Section 1172.6, subdivision (a) permits resentencing for a person convicted of murder “under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.” If a prima facie case for relief is made, the statute requires the court to hold an evidentiary hearing where “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner” is guilty under current law. 5 (§ 1172.6, subds. (c), (d)(3).) At the evidentiary hearing, the court “may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may ... offer new or additional evidence.” (§ 1172.6, subd. (d)(3).) “‘“A defendant has the constitutional right to be personally present in court ‘where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow [the defendant] to participate at a critical stage and enhance the fairness of the proceeding.’”’” (People v. Quan (2023) 96 Cal.App.5th 524, 532 (Quan).) This “right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution.” (People v. Basler (2022) 80 Cal.App.5th 46, 57 (Basler).) Because a section 1172.6 hearing allows the court to potentially vacate a murder conviction through the admission of new evidence and/or by reweighing prior evidence, it is a “critical stage” and, as such, requires either a defendant’s personal presence or a valid waiver. (People v. Jackson (2025) 110 Cal.App.5th 128, 150–151 (Jackson); see Quan, at pp. 532–533 [a § 1172.6 evidentiary hearing is a critical stage]; Basler, at p. 58 [same].) A defendant’s right to be present at his section 1172.6 evidentiary hearing serves “twin purposes,” to potentially offer testimony and to assist counsel. (Quan, supra, 96 Cal.App.5th at p. 536.) Indeed, “[t]he entire purpose of the section [1172.6] resentencing hearing [is] for the court to consider whether to vacate [the defendant’s] conviction and recall [the defendant’s] sentence, including by reviewing the record and taking new evidence, if offered, on the issue of [the defendant’s] actions and mens rea on the night in question. The question may well turn on disputed issues of fact ‘about which [the defendant]—as a 6 participant in the events in question—may well have ... something to say.’” (Basler, supra, 80 Cal.App.5th at p. 59.) That said, whether a defendant intends to offer testimony is not dispositive of his right to be present; the defendant’s presence is also critical to assist defense counsel because the defendant may have knowledge that is exclusive to him. (Quan, at p. 536; see also Basler, at p. 59.) Here, defendant contends the court erred in holding the evidentiary hearing outside of his presence and without a valid waiver. The Attorney General agrees. Defendant further contends this error was prejudicial. The Attorney General disagrees and argues the error was harmless because “[t]here is nothing [defendant’s] presence at the evidentiary hearing would have added” to resolving the question of “whether [defendant] was a major participant in the robbery-murder who acted with reckless indifference to human life.” Because defendant’s absence from this critical stage in criminal proceedings is constitutional error, the Attorney General must demonstrate beyond a reasonable doubt that defendant’s absence did not affect the outcome of the proceedings. (Chapman v. California (1967) 386 U.S. 18, 24; see also People v. Nieves (2021) 11 Cal.5th 404, 461; People v. Mendoza (2016) 62 Cal.4th 856, 902.) Defendant relies on Basler, Quan, and Jackson to support his position that the court’s error was not harmless beyond a reasonable doubt. The Attorney General supplies no case law to support his position the court’s error was harmless. Our research reveals no case law to support finding defendant’s absence from his section 1172.6 evidentiary hearing was harmless beyond a reasonable doubt. 7  In Basler, the court found the defendant was prejudiced by his absence because, whether or not his presence would have affected the outcome, the issues for the court to resolve “may well [have] turn[ed] on disputed issues of fact ‘about which [Basler]— as a participant in the events in question—may well have had something to say.’” (Basler, supra, 80 Cal.App.5th at p. 59.) In this regard, the Attorney General argues because defendant testified at his trial, “even if he wished to testify at the evidentiary hearing, it would not have affected the outcome,” and, as a result, “any testimony [defendant] may have offered at the hearing would have been inconsequential.” As discussed in Basler, this is not the point. “Apart from presenting evidence, [defendant] may have given input to his counsel on the People’s presentation and arguments, resulting in his counsel drawing different inferences from the trial evidence …” (id. at p. 60) and, in turn, presenting different arguments to the court. Furthermore, defendant was “entitled to hear the People’s evidence and argument[s] on the point, then decide whether to testify and/or present additional or new mitigating evidence on his behalf.” (Ibid.) Whether the trial court credited what defendant had to offer is not the question. Instead, the question is whether we can “‘conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.’” (Id. at p. 59.) In Quan, as noted, the court discussed the “twin purposes” of a defendant’s right to be present at the evidentiary hearing (1) “to potentially offer testimony or evidence upon hearing the prosecution’s case, and [(2)] to assist counsel.” (Quan, supra, 96 Cal.App.5th at p. 536.) The Quan court discussed the People’s burden to establish defendant acted with reckless indifference to 8 human life, which includes both subjective and objective considerations. “Had he been present, Quan could have addressed what he knew of his confederates’ willingness to kill in furtherance of their objectives … .” (Ibid.) Because the court could not “say with confidence that Quan’s testimony could never have changed the trial judge’s findings,” the court could not “‘“conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.”’” (Id. at p. 537.) Finally, in Jackson, the court utilized the reasoning of Basler and Quan to find the trial court’s failure to hold an evidentiary hearing at all was prejudicial error. The court “emphasize[d] the enormity and complexity of the task [the trial court] faced” when it found “the arguments of counsel and the presence of the defendant can be critical to judges deciding these issues and to the fairness of the proceeding.” (Jackson, supra, 110 Cal.App.5th at p. 153.) The court noted, “a hearing enables the court to inform counsel and the parties of its tentative thoughts and allows them, in turn, to respond and potentially to present a different point of view” and reasoned a defendant “may have insight” into these things and be able to “provide perspective” to counsel and suggest additional evidence or decide to testify on relevant issues. (Ibid.) Defendant was not given the opportunity to be present, and according to his letter, he had a perspective to offer at the hearing. Based on the foregoing, we cannot conclude defendant’s absence from the section 1172.6 evidentiary hearing without a valid waiver was harmless beyond a reasonable doubt.3 3 Because we are reversing and remanding the matter to the trial court, we do not address defendant’s claim regarding the sufficiency of the evidence supporting the trial court’s denial. We 9  DISPOSITION The order denying defendant’s section 1172.6 petition is reversed. The matter is remanded for the trial court to conduct a new evidentiary hearing during which defendant shall either be present or provide a valid waiver. The trial court is ordered to determine whether defendant requires the appointment of counsel to represent him for purposes of his section 1172.6 petition. CHAVEZ, Acting P. J. We concur: RICHARDSON, J. GOORVITCH, J. also do not address defendant claim regarding the trial court’s failure to hold a hearing on his request to discharge retained counsel. 10