People v. Davenport
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Hardiamon testified at a preliminary hearing that she had a child with Davenport. On January 4, 2007, Hardiamon left the child with Davenport and spent the day with West, Hardiamon’s cousin by marriage. Around 11:00 p.m., West drove Hardiamon home. They talked in the car for a few minutes before Hardiamon saw Davenport and said, “Oh, shit, my baby daddy.” Davenport opened the car door and pointed a gun at West. The gun went off without pauses between shots. West left. Hardiamon went inside and told her mother, her brother, and his girlfriend that Davenport had just shot someone. Davenport called Hardiamon and told her that he saw West crash and West was dead. A half-mile from Hardiamon’s residence, an officer found West slumped over dead in the driver’s seat.
Davenport pleaded no contest to second-degree murder with a firearm enhancement. In 2020, Davenport petitioned for resentencing under Penal Code section 1172.6. On a third remand, the trial court found beyond a reasonable doubt that Davenport was West’s actual killer and was ineligible for resentencing. Davenport claims the court erroneously admitted into evidence the transcript of Hardiamon’s preliminary hearing testimony, which was hearsay, with no showing of witness unavailability. The court of appeal affirmed. The Legislature did not grant qualifying offenders under section 1172.6 a new trial but chose a procedure requiring trial judges to decide the critical factual questions based–at least in some cases—on a cold record.
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