Wednesday, July 8, 2026

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Court of Appeal:

‘Could Be Convicted’ Today Is Not Resentencing Standard

Opinion Highlights That Although Language Is ‘Frequently’ Used to Describe Burden at Evidentiary Hearings Triggered by Changes to Felony Murder Rule, Metric Remains Beyond Reasonable Doubt of Guilt

By Kimber Cooley, associate editor

Div. Four of the First District Court of Appeal has held that, at evidentiary hearings aimed at determining whether retroactive amendments to the felony murder rule undermine a defendant’s conviction, courts are to ask whether prosecutors have shown that the suspect is guilty beyond a reasonable doubt and not whether the suspect could be convicted of the charge under current law.

Highlighting that the “could be convicted” under current law phrase is used “with some frequency” in cases where a convict is seeking a resentencing under Penal Code §1172.6, Justice Jeremy M. Goldman, writing for the court, declared:

“[W]e publish this opinion to emphasize that the ‘could be convicted’ standard does not apply at an evidentiary hearing under subdivision (d) of section 1172.6, and that when this language appears in the record, it can warrant reversal in the absence of other clarifying information.”

Acting Presiding Justice Jon B. Streeter and Marin Superior Court Judge Andrew Sweet, sitting by assignment, joined in Monday’s decision. The court cited four cases as examples of “published decisions” that “have repeated” the phrase “without identifying it as problematic” and said:

“Of course, courts need not identify problems that the parties themselves have not, and we do not suggest that this language necessarily reflects a misunderstanding of the standard of proof….We cite these cases simply to convey a sense of the frequency with which this issue may arise.”

Three of the four cited cases hail from this district’s Court of Appeal, including the 2025 and 2026 decisions by Div. One in People v. Player and People v. Martinez, and the 2024 opinion by Div. Two in People v. Ocobachi.

2019 Amendments

At issue are amendments to Penal Code §§188 and 189, effective as of January 2019, that narrow the scope of liability for felony murder to cases in which a defendant was the actual killer, aided or abetted in the slaying with an intent to kill, or was a major participant in the underlying criminal scheme who acted with reckless indifference to human life. Sec. 1172.6 provides procedures for defendants convicted under now-defunct theories to seek relief.

Sec. 1172.6(a) provides that “[a] person convicted of felony murder or…other theory under which malice is imputed to a person based solely on that person’s participation in a crime…may file a petition with the court that sentenced the petitioner to have the…conviction vacated and to be resentenced on any remaining counts” if, among other things, “the petitioner could not presently be convicted” of the charge under current law.

Subd. (d) specifies:

“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 California law as amended by the changes to Section 188 or 189….The admission of evidence…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.”

Seeking Relief

Seeking relief from his 1994 murder conviction was Reginald Tyler. At a 2024 evidentiary hearing on his petition, which followed a finding that he had stated a prima facie case for resentencing, San Francisco Superior Court Judge Brendan P. Conroy noted that the burden rests on the prosecution to prove beyond a reasonable doubt that Tyler “could be convicted” of second-degree murder under current law; Tyler did not object to the court’s statement.

On Jan. 6, 2025, Conroy denied the petition, saying:

“[T]aking in its totality all of the evidence in the case, current law as defined, the Court finds beyond a reasonable doubt that Mr. Tyler’s guilty of second-degree murder and the petition…is denied.”

On appeal, Tyler argued that Conroy applied the wrong standard of proof in denying his petition, arguing that the judge described the prosecutor’s burden as having to prove that he “could be convicted” of murder under current law rather than that he is guilty beyond a reasonable doubt. Goldman responded: “We affirm the judgment because the trial court elsewhere described the standard of proof correctly and, considering all of its statements in context, we are satisfied that it applied the proper standard.”

Saying that the “could be convicted” phrasing “in the record here and in other cases may owe something to” language in subdivision (a) requiring a defendant to show that he “could not presently be convicted of murder” because of the legislative changes to murder liability, the jurist wrote:

“At the prima facie stage, trial courts…evaluate whether the petitioner could have been convicted under a now-invalid theory. Although the same language misdescribes the standard of proof at an evidentiary hearing, we are aware that it can, and does, creep in, leading to claims of the sort that Tyler has advanced here.”

However, he opined:

“In this case, the trial court made clear its correct understanding of the law when it ruled on Tyler’s motion. But records do not always disclose as much. Because the ‘could be convicted’ formulation is out of place in an evidentiary hearing under subdivision (d) of section 1172.6, we encourage trial courts and the lawyers who appear in those proceedings to guard against language that might suggest the application of an incorrect standard of proof.”

The case is People v. Tyler, 2026 S.O.S. 1980.