Aug. 22, 2022 – People v. Nieber (4th Dist., Div. 1, D079208)

The Court of Appeal holds that a finding at the preliminary hearing that there was insufficient evidence that appellant was a major participant does not constitute a “prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony” within the meaning of PC 1172.6(d)(2). The court concludes that because the preliminary hearing finding was not the type of finding that automatically results in vacating the murder conviction under PC 1172.6(d)(2), the trial court did not err by holding a hearing under subdivision (d)(3).