1 Filed 8/7/23 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. GREGORY VANCE , JR., Defendant and Appellant. E079 750 (Super.Ct.No. FSB032415 )
OPINION

APPEAL from the Superior Court of San Bernardino County. Steven Malone , Judge

. Affirmed

. Rex Adam Williams , under appointment by the Court of Appeal for Defendant and Appellant

. Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Robin Urbanski, Alan Amann , a nd Minh U. Le , Deputy Attorneys General, for Plaintiff and Respondent. Petitioner Gregory Vance, Jr. , his girlfriend (and codefendant) Katherine Schumann, and the victim were operating a fraudulent check

- cashing scheme. Vance and Schumann suspected the victim of taking more than his share of the proceeds. Armed2 with knives, they went to the v ictim’s home. By the time they left, the victim had been fatally stabbed. According to the prosecution’s evidence, it was Vance who stabbed the victim; according to petitioner, it was Schumann. Vance was convicted of (among other things) first degree mu rder, on a felony murder theory, and sentenced to 56 years to life in prison. The trial court denied Vance’s petition under Penal Code section 1172.6 1 to vacate his murder conviction. He appeals. He contends the trial court erred by: (1) Considering on ly the facts as stated in our opinion in Vance’s direct appeal, rather than the facts as shown by the record of conviction. (2) Applying an erroneously low burden of proof. We will hold that Vance’s counsel forfeited the trial court’s erroneous reliance on our prior opinion by failing to object, and that in the absence of any objection, our prior opinion constituted substantial evidence. We will also hold that , in a section 1172.6 proceeding, the trial court’s erroneous application of an unduly low burde n of proof is not reversible per se. Rather, the appellant has the burden of showing that it is reasonably probable that, in the absence of

1 All further statutory citations are to the Penal Code , unless otherwise indicated

. The petition was actually file d under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use secti on 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.3 the error, he or she would have enjoyed a more favorable outcome. As Vance has not even tried to meet this burden, we cannot say the error was prejudicial.
I
STATEMENT OF THE CASE In 2003, Vance was found guilty of first degree murder ( § 187, subd. (a); former § 189, subd. (a)) and first degree burglary ( §§ 459, 460). The only theory of first degree murder on which t he jury was instructed was felony murder. In a bifurcated proceeding, after waiving a jury trial, Vance admitted one strike prior ( §§ 667, subds. (b )

- ( i), 1170.12), one prior serious felony conviction enhancement ( § 667, subd. (a)), and one prior prison t erm enhancement ( § 667.5, subd. (b)). He was sentenced to a total of 56 years to life in prison. In his direct appeal, we affirmed. ( People v. Schumann (Aug. 4, 2006, E036689) [ 2006 Cal.App. Unpub. LEXIS 6822 ] [nonpub. opn.].) In 2019, Vance filed a pe tition pursuant to section 1172.6. The trial court found that the petition made a prima facie showing , and it set an evidentiary hearing. At the evidentiary hearing, the prosecution requested judicial notice of the record in the underlying case. The trial court did not expressly rule on the request; however, it said it was relying solely on the facts as stated in our opinion in the direct appeal. 2

2 Specifically, it said: “The opinion of the Court of Appeal affirming the original conviction sets forth a detailed factual account of the evidence presented at trial. The Court relies on the factual summary in that opinion for analysis of this [1172.6] petition.”4 After hearing argument, it denied the petition. It found “substantial evidence that” Vance was the actual killer. It also found “substantial evidence that” Vance was a major participant in the underlying burglary and acted with reckless indiffe rence to human life.
II
LEGAL BACKGROUND Effective January 1, 2019, the Legislature restricted the scope of the felony murder rule. (Stats. 2018, ch. 1015, § 3.) Specifically, it amended section 189, concerning the degrees of murder, so as to provide th at the felony murder rule (§ 189 , subd. (a)) applies to a person only if: “(1) The person was the actual killer. “(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. “(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life .

. . .” (§ 189, subd. (e).) 3 At the same time, the Legislature also enacted section 1172.6 (Stats. 2018, ch. 1015, § 4), which provides: “A person convicted of felony murder .

. . may file a petition

. . . to have the petitioner’s murder .

. . conviction vacated” if “[t]he petitioner could not

3 Or

— we note for completeness, although it is not relevant here

— unless the victim was a police officer killed in the course of his or her duties and the defendant knew or should have known that. (§ 189, subd. (f).)5 presently be convicted of murder” as a result of the amendment of section 189. (§ 1172.6, subds. (a), (a)(3).) If a petition under section 1172.6 is facially sufficient, the trial court must hold a hearing to determine whether the petition stat es a prima facie claim for relief. (§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 957.) If the petition does state a prima facie claim for relief, the trial court must hold an evidentiary hearing. At the evidentiary hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder even under current law. (§ 1172.6, subds. (d)(1), (d)(3).) If the prosecution fails to meet this burden, the trial court must grant the petition and vacate the m urder conviction. ( § 1172.6., subd. (d)(3).)
IV
THE TRIAL COURT’S RELIANCE ON OUR PRIOR OPINION Vance contends that our prior opinion was not evidence, and therefore the trial court’s denial of the petition, which was based solely on our prior opinion, wa s not supported by sufficient

— or, indeed, by any

— evidence. Section 1172.6, as originally enacted, provided that “ the record of conviction ” was admissible at an evidentiary hearing. (Former § 1170.95, subd. (d)(3), Stats. 2018,

c h

. 1015, § 4 .) Howeve r, it was amended, effective January 1, 2022, so as to add the following italicized language: “At the hearing to determine whether the petitioner is entitled to relief, . . . [ t ] he court may . . . consider the procedural history of the case6 recited in any prior appellate opinion .” (Former § 1170.95, subd. (d)(3), Stats. 2021, ch. 551, § 2, italics added.) We have held that, by allowing consideration of “the procedural history” in a prior appellate opinion, the Legislature intended to prohibit considera tion of “the factual summar[y]” in a prior appellate opinion. ( People v. Clements (2022) 75 Cal.App.5th 276,
292 ( Clements ) ; accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The evidentiary hearing here was held well after Clements was de cided. Nevertheless, the trial court relied exclusively on the statement of facts in our prior opinion. Vance argues that our opinion was not evidence at all. We disagree. It was substantial evidence ; it simply was not admissible evidence. As a general rule, if inadmissible evidence is admitted without objection, it is substantial evidence; the failure to object forfeits its inadmissibility. (Evid. Code, § 353, subd. (a).) Thus, for example, hearsay admitted without objection is substantial evidence

s ufficient to support a judgment. ( Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268.) Categories of logically relevant evidence that nevertheless cannot be substantial evidence are rare. One example is that an expert’s opinion on a question of law i s not substantial evidence. ( Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 .) Likewise, an expert’s opinion that is based on speculation is not substantial evidence. ( People v.
Ramon (2009) 175 Cal.App.4th 843, 851.) And evidence of a prior oral agree ment inconsistent with an integrated written contract is not substantial evidence. ( IIG Wireless,7 Inc. v. Yi (2018) 22 Cal.App.5th 630, 640.) Generally, these categories exist because, for some policy reason, we do not want the evidence to have any influ ence on the trier of fact’s decision. At an evidentiary hearing under section 1172.6, an appellate opinion summarizing the facts, as shown in the record, is logically relevant. Our research has not revealed any legislative history explaining why the Legis lature chose to make such an opinion inadmissible as evidence of the factual background of the case . Presumably, however, it was because the record itself is better evidence. An appellate opinion necessarily must leave out at least some of the facts. It may set forth only those facts that are relevant to the particular issue(s) being raised on appeal, thus omitting facts that will become relevant later under section 1172.6. And it may inadvertently misstate a fact. These are good reasons to make an appe llate opinion inadmissible. However, they are not good reasons to preclude the trier of fact from considering an appellate opinion under any circumstances. For example, a petitioner who feels that an appellate opinion is accurate and complete may well pr efer to offer it to the trial court, in lieu of the entire record, for convenience. Presumably that is why defense counsel did not object here. We conclude that, when an appellate opinion is admitted at an evidentiary hearing under section 1172.6 , without objection, it is substantial evidence that the trial court can consider. Vance forfeited any objection to such consideration. Moreover, because the opinion was substantial evidence, which simply should have been excluded as inadmissible, harmles s error analysis appl ies . Vance cannot show that, if the opinion had8 been excluded, he would have enjoyed a more favorable result. (See People v. Watson (1956) 46 Cal.2d 818, 836 .) Presumably, in that event, the trial court would have considered the rec ord of conviction ; the prosecution had done everything it could to get it to take judicial notice of that record

. Vance has never claim ed that our opinion misrepresented or omitted any material part of the record. Hence, the error was harmless.
V
ERRONEO USLY LOW BURDEN OF PROOF Vance contends that the trial court applied an erroneously low burden of proof. Section 1172.6, as originally enacted, provided that at an evidentiary hearing, “t he burden of proof shall be on the prosecution to prove, beyond a re asonable doubt, that the petitioner is ineligible for resentencing. ” (Former § 1170.95, subd. (d)(3), Stats. 2018,

c h . 1015, § 4 , subd. (d)(3) .) Some courts took this to mean that the trial court had to deny the petition as long as there was substantial e vidence to support the original jury’s finding, beyond a reasonable doubt, that the petitioner was guilty of murder under current law. (E.g., People v. Duke (2020) 269 Cal.Rptr.3d 264, 272 ( Duke ), review granted, Jan. 13, 2021,
S265309 , cause transferred and ordered not citable, Nov. 23, 2021.) Other courts held that the trial court had to grant the petition, unless it found, independently and beyond a reasonable doubt, that the petitioner was guilty of murder under current law. (E.g., People v. Lopez (2021) 271 Cal.Rptr.3d 170 , 181

– 182, review9 granted, Feb. 10, 2021, S265974 , cause transferred and ordered not citable, Dec. 22, 2021.) Section 1172.6 was amended, effective January 1, 2022, to resolve this dispute. ( Stats. 2021, c h

. 551, § 2 .) It now provides: “At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under current California law .

. . . A finding that there is substantial evidence to support a conviction for murder

. . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for res entencing. ” ( § 1172.6, subd. (d)(3).) Here, even though the evidentiary hearing was held in July 2022, the trial court applied the incorrect standard of proof. It denied the petition because it found substantial evidence that Vance was the actual killer. It also denied the petition, alternatively, because it found substantial evidence that he was a major participant and acted with reckless indifference. In fact, this was an even lower burden than the erroneously low Duke burden; the trial court asked on ly whether there was substantial evidence, not whether there was substantial evidence sufficient to convince a jury beyond a reasonable doubt. Unhelpfully, Vance does not discuss the applicable harmless error standard. Rather, he argues that the error is reversible per se. People v. Garrison (2021) 73 Cal.App.5th 735 ( Garrison ) held that the precise error here

— applying the wrong burden of proof at an evidentiary hearing under section10 1172.6

— is not reversible per se. ( Id . at pp. 745

– 747; accord, People v. Garcia (2022) 82 Cal.App.5th 956, 971

- 972.) Vance tries to distinguish Garrison on the ground that there, the trial court used the wrong standard of proof, whereas here, the trial court supposedly used no standard of proof. Not so. In both cases, th e error was using a substantial evidence standard. ( Garrison , supra , at p. 745.) Garrison is squarely on point. Vance argues that, because section 1172.6, subdivision (d)(3) refers to “the” evidentiary hearing, there can never be a second evidentiary hea ring. This argument is frivolous. There are many references to “the trial” in the Penal Code (e.g., §§ 190.05, subd. (g), 190.4, subd. (a), 190.7, subd. (a)(2), 293.5, subd. (b), 656, 663), yet when a conviction is reversed, a retrial is not generally ba rred. Rather, the controlling statute is section 1260, which, as relevant here, provides: “The [appellate] court .

. . may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just u nder the circumstances.” Vance also cites People v. Keel (2022) 84 Cal.App.5th 546. There, the court found insufficient evidence to support the trial court’s finding that the petitioner acted with reckless indifference ( id . at pp. 556

– 563), so it remanded with directions to grant the petition. ( Id . at p. 565.) In an appeal from a conviction, if the appellate court reversed based on insufficiency of the evidence, double jeopardy bars a retrial. (Burks v. United States (1978) 437 U.S. 1, 18 .) Doub le jeopardy principles do not apply in section 1172.611 proceedings. ( People v. Mitchell (2022) 81 Cal.App.5th 575, 589.) Nevertheless, we accept that, if the prosecution fails to introduce sufficient evidence at the evidentiary hearing, it is not allowed to keep trying again and again until it does. In part IV, ante , however, we rejected Vance’s contention that there was insufficient evidence to support the denial of the petition. Tellingly, he does not argue that, even if the trial court was allowed to consider ou r prior appellate opinion, there still was insuffici ent evidence that he is guilty of murder under current law. The trial court’s only relevant error was in applying an erroneously low burden of proof. Accordingly, this case falls squarely under the general rule that “[b]y seeking reversal of a judgment o f conviction on appeal, ‘“in effect, [a petitioner] assents to all the consequences legitimately following such reversal, and consents to be tried anew.”’ [Citations.]” ( People v. Eroshevich (2014) 60 Cal.4th 583, 591.)
Garrison declined to decide whethe r the applicable harmless error standard is the federal constitutional “beyond a reasonable doubt” standard (see Chapman v. California (1967) 386 U.S. 18, 24 ) or the state law “reasonably probable” standard (see People v.
Watson , supra , 46 Cal.2d at p. 836 ). It seems clear, however, that the state law standard applies. “A petition under .

. . section [1172.6] is not a criminal prosecution. [Citation.]” ( People v. Mitchell , supra , 81 Cal.App.5th at p. 588.) Vance has already been convicted of murder. T he Legislature, in an act of grace and mercy, has provided the section 1172.6 proceeding, which reduces guilt and punishment on terms that the Legislature is entitled to prescribe. ( See People v. Conley (2016) 63 Cal.4th 646, 656 [ “ the Legislature12 . . . may choose to modify, limit, or entirely forbid the retroactive application of ameliorative criminal law amendments if it so chooses ” ] .) Under these circumstances, most of the federal constitutional protections that attend a criminal conviction do not appl y. ( People v. Mitchell , supra , 81 Cal.App.5th at
p. 589 [no constitutional right against double jeopardy]; People v. Myles (2021) 69 Cal.App.5th 688, 703 [no constitutional right against self

- incrimination]; People v. James (2021) 63 Cal.App.5th 604, 611 [no constitutional right to trial by jury]; see also People
v. Lewis , supra , 11 Cal.5th at pp. 972

– 974 [no constitutional right to counsel; a due process right to counsel at the evidentiary stage but not at the prima facie stage]; but see People v. Basler (2022) 80 Cal.App.5th 46, 57

– 58 [section 1172.6 proceeding is a critical stage at which petitioner has a federal constitutional right to be personally present].) This includes the requirement of proof beyond a reasonable doubt. The Legislature could have provided that the People’s burden of proof is by a preponderance of the evidence; it could even have provided that a petitioner is not entitled to relief as long as there is substantial evidence of guilt under current law. Instead, it required proof beyon d a reasonable doubt. However, this is merely a state statutory right; a violation of the right is subject to the state law harmless error standard. We need not actually decide whether the error was harmless. Under the state law standard, Vance has the b urden of showing prejudice. ( People v. Penunuri (2018) 5 Cal.5th 126, 169; People v. Hernandez (2011) 51 Cal.4th 733, 746.) Instead, he has staked all of his chips on the proposition that reversal is automatic. He does not argue13 that even i f reversal is not automatic, the error was prejudicial. He has not so much as supplied us with a statement of facts, which we would need if we were going to consider prejudice. Even after the People argued that the error was harmless, Vance stuck to his strategy; he made no effort in his reply brief to show that the error was prejudicial. Finally, at oral argument, his appellate counsel conceded that, if harmless error analysis does appl y , he cannot show prejudice. We conclude that Vance has forfeited any claim that the trial court’s application of an erroneous burden of proof was prejudicial.
VI
DISPOSITION The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.

We concur: McKINSTER J.
RAPHAEL J.