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March 19, 2026 Get Citation Alerts Download PDF Add Note

People v. Kinsey CA4/3

California Court of Appeal

• Citations: None known
• Docket Number: G063871

• Precedential Status: Non-Precedential

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (34.5K)

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Combined Opinion

Filed 3/19/26 P. v. Kinsey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063871

v. (Super. Ct. No. 94WF2460)

JONATHAN RUSSELL KINSEY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of
Orange County, Michael J. Cassidy, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

---

Defendant Jonathan Russell Kinsey pleaded guilty to one count
1
of second degree murder (Pen. Code, § 187, subd. (a); count 1), one count of
attempted premeditated murder (§§ 664, 187, subd. (a); count 2), and one
count of assault with a firearm (§ 245, subd. (a)(2); count 3). On all counts,
defendant admitted he personally used a firearm. (§ 12022.5, subd. (a)) and
further admitted an allegation that he committed the offenses “because of the
victim’s race, color, nationality or ancestry” (§ 422.75, subd. (b)). On counts 2
and 3, defendant admitted he personally inflicted great bodily injury (§
2
12022.7).
The court sentenced defendant to state prison as follows: (1) 15
years to life on count 1; (2) a concurrent term of life with the possibility of
parole on count 2; and (3) a concurrent three-year term on count 3. The court
also imposed consecutive terms of four years for the firearm enhancements on
all counts (§ 12022.5, subd.(a)) and stayed the remaining enhancements
pursuant to section 654.
In August 2022, defendant filed a petition for resentencing under
section 1172.6. The court denied the petition as to count 2, but it found the
petition set forth a prima facie case for relief as to count 1 and issued an
order to show cause. After hearing the evidence and argument, the court
denied the petition, and defendant appealed.
On appeal, defendant contends the court erred at the evidentiary
hearing by admitting evidence of a probation report, risk assessment, and
parole hearing transcript. We disagree with defendant’s contentions. The

1
All further statutory references are to the Penal Code.

2
A co-defendant was jointly charged in count 1, and the
information only alleged firearm enhancements as to defendant.

2
court did not err by admitting the risk assessment or parole hearing
transcript, and any error in admitting the probation report was harmless. We
accordingly affirm the postjudgment order.
STATEMENT OF FACTS
I.
DEFENDANT’S GUILTY PLEA AND PETITION FOR RESENTENCING
As the factual basis for his guilty plea on count 1, defendant
stated: “On September 15, 1994[,] I with [co-defendant] killed a human being
with implied malice.”
In his petition for resentencing, defendant averred: “1. A
complaint, information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences
doctrine. [Citation.] [¶] 2. I was convicted of murder, attempted murder, or
manslaughter following a trial or I accepted a plea offer in lieu of a trial at
which I could have been convicted of murder or attempted murder. [Citation.]
[¶] 3. I could not presently be convicted of murder or attempted murder
because of changes made to Penal Code §§ 188 and 189, effective January 1,
2019.”
The court found defendant’s petition set forth a prima facie case
for relief on count 1 and issued an order to show cause.
II.
THE PEOPLE’S BRIEF AND EXHIBITS

In February 2024, the People filed a response to defendant’s
petition for resentencing. The response attached several exhibits, including,

3
inter alia, a probation report, a risk assessment, a 2009 parole hearing
transcript, and a 2022 petition for writ of habeas corpus.
III.
THE EVIDENTIARY HEARING
In March 2024, the court held an evidentiary hearing. At the
outset, defendant’s counsel objected to use of the probation report, risk
assessment, parole hearing transcript, and habeas petition. The court
excluded the habeas petition but admitted the other exhibits.
Defendant then testified as a witness. He testified he
encountered an African American male near a McDonald’s in September
1994. He observed the victim in a physical altercation with someone else.
Defendant asked what was going on, and the victim punched defendant in
the face. They then ran in opposite directions. Defendant claimed he heard a
sound that could have been a gunshot, and he denied firing a gun. Defendant
was an “active skinhead” at the time.
Although he pleaded guilty to the murder and to personally using
a firearm, defendant testified he was innocent and agreed to the plea deal
because he wanted a lower sentence. He also acknowledged he admitted
shooting the victim at his parole hearing. But he testified he did so because
he “stuck to the script that [he] was told . . . to say.” He likewise “[p]ossibly”
told the risk assessment interviewer he had shot the victim. But he again
testified he did not shoot the victim. He further retracted a statement he had
made to two individuals after the shooting that he “‘shot that nigger.’”
After hearing from the parties, the court denied defendant’s
petition. The court explained there was “sufficient evidence to prove beyond a
reasonable doubt that [defendant] can be found guilty . . . of murder under
the current law.” Defendant filed a timely notice of appeal.

4
DISCUSSION
Defendant argues the court erred by admitting as evidence the
probation report, risk assessment, and parole hearing transcript. For the
reasons infra, the court did not err by admitting the risk assessment and
parole hearing transcript. Any error in admitting the probation report was
harmless.
I.
APPLICABLE LAW AND STANDARD OF REVIEW
Relief under section 1172.6 is restricted to those convicted of
murder “under a theory of felony murder, 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 . . . .” (Id., subd. (a)(1).) If a defendant makes a prima facie case for
relief, the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder conviction, recall the sentence, and
resentence on any remaining counts. (Id., subds. (c) & (d)(1).)
The burden of proof is on the prosecution to prove beyond a
reasonable doubt the defendant is ineligible for resentencing. (§ 1172.6, subd.
(d)(3).) Section 1172.6, subdivision (d)(3), which governs the conduct of
evidentiary hearings following an order to show cause, provides: “The
admission of evidence in the hearing 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.” (Ibid.)
Preliminary hearing testimony is admissible as prior testimony, but hearsay
evidence admitted via Proposition 115 (i.e., admitted under section 872,
subdivision (b)) is not admissible unless an exception to the hearsay rule

5
applies. (Ibid.) “The prosecutor and the petitioner may also offer new or
additional evidence to meet their respective burdens.” (Ibid.)
To determine if a trial court properly denied a section 1172.6
petition after an evidentiary hearing, “‘“‘we review the factual findings for
substantial evidence and the application of those facts to the statute de
novo.’”’” (People v. Arnold (2023) 93 Cal.App.5th 376, 383.) We review the
court’s admission of evidence for abuse of discretion. (People v. Duran (2022)
84 Cal.App.5th 920, 927–928.)
II.
THE COURT PROPERLY ADMITTED THE PAROLE HEARING TRANSCRIPT AND RISK
ASSESSMENT
As defendant acknowledges, other appellate courts have held
trial courts may consider parole hearing transcripts and risk assessment
reports at section 1172.6 evidentiary hearings. (People v. Duran, supra, 84
Cal.App.5th at p. 927 [“It is well settled that a parole risk assessment report,
including a defendant’s statements in that report, falls within the ambit of
‘“new or additional evidence”’”]; People v. Mitchell (2022) 81 Cal.App.5th 575,
586 [“parole hearing transcripts are proper evidence in this setting”]; People
v. Myles (2021) 69 Cal.App.5th 688, 703 (Myles) [trial court did not err by
admitting a parole risk assessment report and parole hearing transcript].)
Despite the above case law, defendant relies on People v.
Coleman (1975) 13 Cal.3d 867 (Coleman) and the dissent in People v.
Mitchell, supra, 81 Cal.App.5th 575 to argue “[i]t would be unfair to . . .
penalize . . . defendants for simply exercising [their] right” to present
evidence at their parole hearing. He insists a “section 1172.6 evidentiary
hearing is materially the same as a criminal bench trial.” We disagree.

6
In Coleman, our Supreme Court “held a defendant’s statement
from a probation revocation proceeding could not be used against him by the
prosecution to lighten its burden of proof at trial.” (Myles, supra, 69
Cal.App.5th at p. 705.) Because a defendant “should not be compelled to
choose between the privilege against self-incrimination at trial and the
exercise of the right to be heard at a probation revocation hearing[,]” the
court created an exclusionary rule whereby “a probationer’s revocation
hearing testimony is inadmissible during the prosecution’s case-in-chief.”
(Ibid.)
As other courts have held, Coleman and use immunity principles
do not apply in section 1172.6 resentencing proceedings. “The Fifth
Amendment privilege against self-incrimination protects persons from being
compelled by ‘“governmental coercion”’ to serve as witnesses against
themselves in ‘“any criminal case.”’” (Myles, supra, 69 Cal.App.5th at p. 705.)
A section 1172.6 hearing “‘“is not a trial de novo on all the original charges.”’”
(Ibid.) Instead, it is “‘“a postconviction proceeding’”” and an “‘“‘act of lenity’”’”
by the Legislature. (Id. at pp. 705–706.) Because defendant chose to
participate in the risk assessment interview and testify at the parole hearing,
“it is not fundamentally unfair to admit that information during a
resentencing proceeding voluntarily initiated by defendant bearing on some
of the same issues.” (Id. at p. 706; see also People v. Zavala (2024) 105
Cal.App.5th 366, 374 [“use immunity should not be extended to bar the use of
a defendant’s statements in a comprehensive risk assessment and testimony
at a parole hearing in a later evidentiary hearing held under section
1172.6”].)
Finally, defendant complains the parole hearing “had as a factual
basis the probation report’s summary of the alleged facts, a summary based

7
on hearsay.” This does not render the transcripts or defendant’s admissions
at the hearing inadmissible.
In short, we agree with the other appellate courts that have
addressed this issue and conclude the trial court did not err by admitting the
risk assessment and parole hearing transcript.
III.
ANY ERROR IN ADMITTING THE PROBATION REPORT WAS HARMLESS
Defendant also contends the court erred by admitting the
probation report because it “contained unreliable, multiple layers of
hearsay[,]” including statements from police reports, witnesses, defendant,
and his co-defendant. The Attorney General concedes “hearsay statements
contained in the probation report cannot form the basis for denying” a section
1172.6 petition at the evidentiary hearing. But the Attorney General argues
defendant suffered no prejudice.
We agree the trial court could not consider hearsay statements in
the probation report. (§ 1172.6, subd. (d)(3) [admissibility of evidence is
governed by the Evidence Code]; People v. Owens (2022) 78 Cal.App.5th 1015,
1026 [“absent some exception, hearsay contained in probation [reports] . . .
are not now admissible” at section 1172.6 hearings].) However, admission of
this evidence did not prejudice defendant. We evaluate any error in the
admission of evidence at a section 1172.6 evidentiary hearing under the
harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818.
(Myles, supra, 69 Cal.App.5th at p. 706.) We accordingly must determine
whether it was “reasonably probable that a result more favorable to
defendant would have been reached” had the evidence not been admitted and
considered. (Watson, at p. 837.) Here, a more favorable result was not
reasonably probable because there was other evidence that defendant

8
admitted to being the shooter. Indeed, at the parole hearing, defendant
described the altercation and admitted he shot the victim. To the extent
defendant attempted to recant those admissions at the evidentiary hearing,
the trial court impliedly found the testimony was not credible. We defer to
that credibility determination. (People v. Oliver (2023) 90 Cal.App.5th 466,
482.)
For these reasons, any error in admitting the probation report
was harmless.
DISPOSITION
The postjudgment order is affirmed.

SANCHEZ, ACTING P. J.

WE CONCUR:

DELANEY, J.

SCOTT, J.

9