People v. Cody CA4/3
309 Cal.Rptr.3d 26
Cal. Ct. App.2023Background
- In 2009 Keeley, a 75‑year‑old man, was beaten and strangled during a burglary of his Desert Hot Springs home; the house was ransacked and some of his property (including a Derringer) was later linked to defendant Travis Cody and co‑defendant Steven Banister.
- In 2012 a jury convicted Cody and Banister of first‑degree murder and found a felony‑murder special‑circumstance true; Cody was sentenced to LWOP plus two years. On direct appeal the court found an instructional error (failure to give CALCRIM No. 703) but deemed it harmless.
- A federal court granted habeas relief in 2016 on the instructional‑error issue and ordered retrial on the special‑circumstance allegation or vacatur; the prosecutor declined retrial and Cody was resentenced in 2017 to 25 years‑to‑life plus two years.
- After 2019 statutory changes narrowed felony‑murder liability and created section 1172.6 (formerly 1170.95), Cody petitioned for relief; the trial court issued an OSC and held an evidentiary hearing in 2021 based solely on the 2012 trial transcripts (no live testimony was presented).
- The trial court (sitting as the factfinder) concluded beyond a reasonable doubt that Cody was a major participant in the burglary/robbery and acted with reckless indifference to human life, denied the section 1172.6 petition, and this appeal followed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Cody) | Held |
|---|---|---|---|
| Admissibility of prior trial transcripts at §1172.6 evidentiary hearing | Court may consider prior trial testimony admitted at the original trial; transcripts are admissible under §1172.6(d)(3) | Trial testimony from the 2012 trial could not be considered unless the prosecution first showed witness unavailability | Court upheld reliance on the 2012 transcripts; §1172.6 expressly permits consideration of prior trial testimony without a separate unavailability showing |
| Whether prosecution had to establish witness unavailability before using former testimony | §1172.6(d)(3) allows the court to consider evidence previously admitted at trial that is admissible under current law; no blanket pre‑retrial unavailability requirement | §1291 and Evidence Code principles require unavailability before admitting prior testimony as exception to hearsay | Court rejected Cody’s broad rule; the statute’s express allowance for prior trial testimony controls and does not require separate unavailability findings in all §1172.6 hearings |
| Burden of proof at the §1172.6 hearing | Prosecution must prove ineligibility for relief beyond a reasonable doubt; the trial court acted as independent factfinder and applied that standard | Court below applied some jury‑style language and may not have used the correct standard | Reviewing the full record, the trial court explicitly stated it required proof beyond a reasonable doubt and applied the correct burden |
| Sufficiency of evidence that Cody was a major participant who acted with reckless indifference | Trial transcripts (statements, admissions, forensic and circumstantial evidence) support findings that Cody planned, executed, participated in the beating, and failed to prevent the killing | Cody argued he was a minor participant, Banister was the primary actor, and the evidence does not establish reckless indifference beyond a reasonable doubt | Substantial‑evidence standard met: an objective review shows a rational factfinder could conclude Cody was a major participant and acted with reckless indifference; petition denial affirmed |
Key Cases Cited
- People v. Banks, 61 Cal.4th 788 (Cal. 2015) (sets non‑exclusive factors for determining whether a defendant was a “major participant” in a felony that led to death)
- People v. Clark, 63 Cal.4th 522 (Cal. 2016) (clarifies subjective and objective elements of ‘reckless indifference to human life’ analysis)
- People v. Gentile, 10 Cal.5th 830 (Cal. 2020) (explains §1172.6’s purpose as remedial relief for certain felony‑murder and natural‑and‑probable‑consequences convictions)
- People v. Clements, 75 Cal.App.5th 276 (Cal. Ct. App. 2022) (upholds use of a “cold record” in §1172.6 hearings and explains legislative compromise against mandatory new trials)
- In re Scoggins, 9 Cal.5th 667 (Cal. 2020) (discusses the totality‑of‑circumstances approach to reckless indifference and overlap with major‑participant analysis)
- Enmund v. Florida, 458 U.S. 782 (U.S. 1982) (constitutional principle that death‑penalty level culpability requires intent to kill for aiders/abettors absent Tison limits)
- Tison v. Arizona, 481 U.S. 137 (U.S. 1987) (holds major participation plus reckless indifference can satisfy constitutional culpability for severe punishments)
- People v. Ramirez, 71 Cal.App.5th 970 (Cal. Ct. App. 2021) (contrast case reversing §1172.6 denial where participation and mental state evidence were insufficient)
- Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC, 61 Cal.4th 830 (Cal. 2015) (principles of statutory interpretation; start with plain language and legislative intent)