Opinion
B331434
11-21-2024
THE PEOPLE, Plaintiff and Respondent, v. DONTE MONTELL JACKSON, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. SA073611 Lauren Weis Birnstein, Judge. Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
In 2010, defendant Donte Montell Jackson pleaded nolo contendere to one count of attempted murder, in violation of Penal Code sections 664 and 187, subdivision (a), and one count of assault with a firearm, in violation of section 245, subdivision (a)(2). Although Jackson initially admitted that he personally used a firearm in perpetrating the assault for the purposes of section 12022.5, subdivision (a), the parties later agreed that this firearm use enhancement pertained to the attempted murder count, and the trial court corrected the abstract of judgment accordingly. The trial court sentenced Jackson to an aggregate determinate term of 20 years in state prison.
Undesignated statutory citations are to the Penal Code.
In July 2022, Jackson filed a petition for relief under section 1172.6. The statute authorizes a trial court to vacate an attempted murder conviction and resentence a defendant if the defendant was convicted under the natural and probable consequences theory. (See People v. Rodriguez (2024) 103 Cal.App.5th 451, 457 (Rodriguez).) The trial court ultimately denied the petition because Jackson had failed to make a prima facie showing of entitlement to relief under section 1172.6. In so ruling, the court relied, in part, on portions of a preliminary hearing transcript in which a detective testified that Jackson had admitted to being the direct perpetrator of the attempted murder.
Prior to June 30, 2022, section 1172.6 was codified in section 1170.95. (See Stats. 2022, ch. 58, §§ 10, 47 [Assem. Bill No. 200, which renumbered § 1170.95 as § 1172.6, and provided that the statute took effect immediately on June 30, 2022]; People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3 [noting that Assem. Bill No. 200 renumbered former § 1170.95 to § 1172.6 without any substantive change].) For the sake of clarity, we refer to the statute as section 1172.6 when referring to case law interpreting former section 1170.95.
On appeal, Jackson argues the trial court erred in considering the preliminary hearing transcript. We conclude that a trial court may examine a preliminary hearing transcript in determining whether a defendant who pleaded nolo contendere to attempted murder has made a prima facie showing under section 1172.6. Here, the preliminary hearing transcript reveals that under the People's theory of the case, the attempted murder occurred when one individual fired a gun at a victim who was in a vehicle. That evidence, when considered in conjunction with the enhancement imposed for Jackson's personal use of a firearm in the commission of the attempted murder, undermines Jackson's assertion that he could have been convicted under the natural and probable consequences theory. Furthermore, Jackson does not direct us to any evidence showing the People could have secured a conviction under that now-invalid theory of liability. Accordingly, we affirm the order denying his petition.
FACTUAL AND PROCEDURAL BACKGROUND
In describing the procedural history and the evidence considered by the trial court in ruling on Jackson's petition for resentencing, we rely in part on admissions made by the parties in their appellate briefing. (See Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [" 'An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.' "]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "].).
We summarize only those facts pertinent to this appeal.
In February 2010, the People filed a seven-count felony complaint, alleging, inter alia, that Jackson and Alex Kevandre Martin committed six counts of attempted murder.
The People and Jackson are the only parties to this appeal.
At the preliminary hearing held in June 2010, Detective Michael Bambrick testified that he had interviewed Jackson regarding a shooting. Jackson initially told the detective that he attended a party with Martin, and, as the two men were leaving the event, Jackson heard gunshots. After Detective Bambrick told Jackson that a gun had been recovered, however, Jackson changed his story.
The remainder of this paragraph and the following two paragraphs summarize certain pertinent aspects of Detective Bambrick's testimony.
Jackson said that he encountered a person at the party who (a) "got into his face," (b) claimed to be gang-affiliated, and (c) displayed a firearm. Jackson told the detective that this individual later pointed that firearm at Jackson and others in the parking lot and then ran to a vehicle. Jackson said he approached Martin's vehicle, and R. Goldman handed Jackson a gun.
Jackson identifies this individual as "Roderick Goldman" in his appellate briefing, whereas the Attorney General refers to him as "Roger Goldman." This discrepancy has no impact on our resolution of this appeal.
Jackson stated he then walked back through the parking lot and found the individual Jackson believed had pointed a firearm at him; Jackson claimed this person was in the right front passenger seat of a vehicle. Jackson admitted to the detective that he fired his gun at the vehicle. Jackson said he discarded the gun and returned to Martin's vehicle.
Jackson was held to answer on the felony complaint.
In July 2010, the People filed an information, wherein the People averred that Jackson and Martin committed six counts of attempted murder, in violation of sections 664 and 187, subdivision (a), and that Jackson perpetrated one count of shooting at an occupied vehicle, in violation of section 246. In count 1, the People alleged that Jackson and Martin willfully, deliberately, and with premeditation attempted to murder Joseph H. on or about February 13, 2010. The People further averred that in committing the seven charged offenses, Jackson personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c).
Each of the six counts corresponded to a different attempted murder victim.
On October 7, 2010, the trial court held a hearing at which the People and Jackson entered a plea agreement. Pursuant to the plea agreement, the court granted the prosecution's motions to (1) strike the language in count 1 alleging that Jackson acted willfully, deliberately, and with premeditation in perpetrating the attempted murder against Joseph H.; (2) amend the information to include a new count 9 averring that Jackson committed assault with a firearm against Christian H., in violation of section 245, subdivision (a)(2); (3) amend the information to allege that in committing count 9, Jackson personally used a firearm for the purposes of section 12022.5, subdivision (a); and (4) dismiss the remaining five attempted murder counts as to the other victims and the charge of shooting at an occupied motor vehicle. Jackson pleaded nolo contendere to the amended attempted murder charge alleged in count 1 as to Joseph H. and to newly added count 9 regarding Christian H., and admitted the section 12022.5, subdivision (a) firearm use allegation.
The prosecutor indicated that pursuant to a different plea agreement with Martin, the information had previously been amended to add a count 8 against that codefendant. The prosecutor did not further describe count 8 at the October 7, 2010 hearing.
Jackson entered his plea pursuant to People v. West (1970) 3 Cal.3d 595, and agreed that the preliminary hearing transcript contained a factual basis for his plea. We discuss the potential import of Jackson's entry of a West plea in Discussion, part A, post.
The trial court sentenced Jackson to an aggregate term of 20 years in state prison, which consisted of a 9-year term on count 1, followed by a consecutive 1-year term on count 9, along with a 10-year enhancement for that count pursuant to section 12022.5, subdivision (a).
In March 2018, the trial court issued a minute order (1) stating it had received correspondence from the Department of Corrections and Rehabilitation, and (2) scheduling a resentencing hearing for April 18, 2018.
Jackson claims this minute order shows that the Department of Corrections and Rehabilitation had "advised the trial court that it could not impose a full term for the firearm enhancement because it was attached to a subordinate count." The minute order states that the court had received a letter from the Department of Corrections and Rehabilitation but does not otherwise describe that letter. Even assuming Jackson's description of the letter is correct, the correspondence would have no impact on our analysis.
The prosecution, Jackson, and Jackson's counsel were present at the April 18, 2018 hearing. At the beginning of the hearing, the trial court asked Jackson's counsel, "It was the intent of the parties that a [section] 12022.5(a), a firearm use enhancement, be attached to count 1; correct?" Jackson's counsel responded, "Correct." The court asked the prosecutor whether he agreed that the firearm use enhancement should be "attached to count 1, the attempted murder[ count,]" and the prosecutor replied, "I agree, Your Honor." The court then amended the abstract of judgment to reflect that Jackson had been sentenced to a term of nine years in state prison on count 1, along with a 10-year enhancement on that count pursuant to section 12022.5, subdivision (a), followed by a consecutive prison term of one year on count 9. Jackson's aggregate term remained the same as in the court's original sentence, to wit, 20 years in state prison.
In July 2022, Jackson filed, in pro per, a form petition for resentencing under section 1172.6. The trial court appointed counsel to represent Jackson, and the People and defense counsel submitted briefing on the petition.
On May 26, 2023, the trial court held a hearing to determine whether Jackson had made a prima facie showing of entitlement to relief under section 1172.6. After hearing argument from Jackson's counsel, the trial court denied the resentencing petition for failure to make a prima facie showing of eligibility for resentencing relief. The court reasoned Jackson had stipulated that the preliminary hearing transcript was the factual basis for his plea of nolo contendere and "admission of . . . personal firearm use"; per the preliminary hearing transcript, Detective Bambrick testified that Jackson admitted to being the "actual perpetrator of the attempted murder"; and absent from Jackson's petition was any claim that "he was not the sole and actual perpetrator" of that offense.
Although other evidence was also presented at the preliminary hearing, the trial court explained, to avoid running afoul of section 1172.6, subdivision (d)(3)'s exclusion of hearsay evidence presented at a preliminary hearing, the court's "prima facie ruling [was] based on the preliminary hearing testimony of [Detective] Bambrick" regarding the admissions Jackson had made to the detective. (See § 1172.6, subd. (d)(3) ["[H]earsay evidence that was admitted in a preliminary hearing . . . shall be excluded[,] . . . unless the evidence is admissible pursuant to another exception to the hearsay rule."]; see also Evid. Code, § 1220 ["Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party ...."].)
Neither party claims the trial court erred by failing to consider other evidence introduced at the preliminary hearing.
Additionally, in rendering its decision, the trial court remarked, "I have not engaged in the weighing of evidence or exercise of discretion to find that . . . Jackson was the lone shooter."
Although Judge H. Chester Horn, Jr. accepted the parties' plea bargain and sentenced Jackson in October 2010, Judge Lauren Weis Birnstein corrected Jackson's sentence in April 2018 and denied his resentencing petition in May 2023.
Jackson timely appealed the order denying his resentencing petition.
APPLICABLE LAW AND STANDARD OF REVIEW
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citation.] In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added section [1172.6], which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (See People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
"Senate Bill No. 775 expanded the class of defendants entitled to relief to those convicted of attempted murder under the natural and probable consequences doctrine." (Rodriguez, supra, 103 Cal.App.5th at p. 457.) "Under t[he natural and probable consequences] doctrine, an aider and abettor who lacked a specific intent to kill could be found guilty of attempted murder solely due to their participation in a different target crime, if attempted murder was the natural and probable consequence of the target crime." (Id. at p. 456.)
"To pursue relief under section [1172.6], a [defendant] 'file[s] a petition with the court that sentenced the [defendant] to have the [defendant's] murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts.' [Citation.] The petition must declare that the requirements for relief are met, including that '[t]he [defendant] could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citation.] Upon filing 'a facially sufficient petition,' a [defendant] is entitled to the appointment of counsel, and the parties then brief whether the [defendant] has made a prima facie showing of entitlement to relief. [Citations.] If the trial court concludes the [defendant] has made the required prima facie showing, it must issue an order to show cause." (People v. Cooper (2022) 77 Cal.App.5th 393, 411 (Cooper).)
"While the trial court may look at the record of conviction . . . to determine whether a [defendant] has made a prima facie case for . . . relief, the prima facie inquiry . . . is limited....' "[T]he court takes [defendant's] factual allegations as true and makes a preliminary assessment regarding whether the [defendant] would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] . . . 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the [defendant]."' [Citation.] [¶] . . . In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Lewis, supra, 11 Cal.5th at pp. 971-972.)
"After an order to show cause issues, the trial court must 'hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the [defendant] on any remaining counts in the same manner as if the [defendant] had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] 'At the hearing to determine whether the [defendant] is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the [defendant] is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019....' [Citation.]" (Cooper, supra, 77 Cal.App.5th at pp. 411-412.)
"We independently review the trial court's determination that the [defendant] failed to make a prima facie showing for relief." (People v. Pickett (2023) 93 Cal.App.5th 982, 989 (Pickett), review granted Oct. 11, 2023, S281643.) Regardless of the applicable standard of review, however, "the judgment [or order] challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see also Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555 [" 'Even when our review on appeal "is de novo, it is limited to issues which have been adequately raised and supported in [the appellant's opening] brief...."' [Citations.]" . . ." 'It is the appellant who bears the burden of overcoming th[e] presumption [that an appealed judgment or order is correct].' "].) To overcome the presumption of correctness, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "]; People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 [noting that an appellate court may" 'decline to consider any factual assertion unsupported by record citation at the point where it is asserted[,]'" and that" '[a]n appellate court "will not develop the appellants' arguments for them"' "].)
DISCUSSION
A. Trial Courts May Consider Preliminary Hearing Transcripts at the Prima Facie Stage
We have held that "[i]n cases where the conviction resulted from a guilty plea rather than a trial," "the transcript of a preliminary hearing is considered part of the record of conviction" that may" 'inform the trial court's prima facie inquiry under section [1172.6]' to determine whether the petition is 'clearly meritless' [citation]." (See Pickett, supra, 93 Cal.App.5th at pp. 988, 992-993, review granted.)
Although Jackson pleaded nolo contendere to attempted murder (Factual & Procedural Background, ante), "[t]he legal effect of such a plea, to a crime punishable as a felony, [is] the same as that of a plea of guilty for all purposes." (See § 1016, subd. (3).).
Jackson cites the Fifth District's decision in People v. Williams (2024) 103 Cal.App.5th 375 (Williams), review granted Sept. 11, 2024, S286314, for the proposition that a trial court cannot rely upon a preliminary hearing transcript to deny a resentencing petition at the prima facie stage. He further contends that resort to a preliminary hearing transcript at that juncture is improper because it would require a court "to make credibility determinations about witness testimony," preliminary hearings "involve a low standard of proof-the parties are not operating under a beyond a reasonable doubt standard, and the evidence tends to be truncated." We disagree.
In Williams, a majority of the panel held that a trial court "engage[s] in premature judicial factfinding" if it relies upon a preliminary hearing transcript to deny a no-contest defendant's resentencing petition at the prima facie stage. (See Williams, supra, 103 Cal.App.5th at pp. 388-389, 403, review granted.)
In her dissenting opinion, Justice Meehan observed, "Cases resolved by plea necessarily have more limited records and will lack the binding and more telling findings made by a trier of fact following a jury or court trial." (Williams, supra, 103 Cal.App.5th at p. 407 (dis. opn. of Meehan, J.), review granted.) Justice Meehan further counseled, "Courts must take care not to demand too much of the petitioner at the prima facie stage, but they must also not demand so little that the prima facie review is rendered meaningless and direct perpetrator cases with uncontroverted records of conviction move to the next stage based on nothing more than a form petition with the requisite boxes checked. If . . . filing a form petition with boxes checked is sufficient to justify an evidentiary hearing, the prima facie review stage is rendered hollow, our high court's express endorsement of limited record review and dismissal of petitions where the record refutes the petition allegations is not given effect, clearly meritless petitions will proceed to an evidentiary hearing, and already swamped trial courts will be needlessly burdened by conducting evidentiary hearings on meritless petitions. This is not a small matter, considering that a significant percentage of cases are resolved by plea [citations], and I am unpersuaded that this result was intended by the Legislature or compelled by [our high court's precedent]." (See id. at p. 424, review granted.) We agree and respectfully decline to adopt the Williams majority's holding.
We find unpersuasive Jackson's other arguments that reliance on a preliminary hearing transcript is improper because it requires the trial court to make credibility determinations, preliminary hearings call for a standard of proof below the beyond-a-reasonable-doubt standard, and the evidentiary presentation at a preliminary hearing is too abridged to be useful to the court's prima facie inquiry. "[N]o factfinding is needed to reject [a] petition" at the prima facie stage if an "uncontradicted preliminary hearing" transcript "refutes [the defendant's] conclusory claim in his . . . petition that he would not be convicted today 'because of' Senate Bill [No.] 1437." (See People v. Mares (2024) 99 Cal.App.5th 1158, 1174 (Mares), review granted May 1, 2024, S284232.) For instance," 'uncontroverted evidence from the preliminary hearing transcript [may] show[ ] that the defendant acted alone in killing the victim ....'" (See id. at p. 1175, quoting Pickett, supra, 93 Cal.App.5th at p. 990, review granted.) Under those circumstances, "a court need not find any individual fact in the preliminary hearing was true, only that the claim that Senate Bill [No.] 1437 could matter is unsupported by the record." (See Mares, at p. 1174, review granted.) Conversely, a "form petition's conclusory assertion [that the defendant could not presently be convicted of murder or attempted murder] is sufficient where the record contains a possibility that the defendant could have been guilty under a now-abrogated accomplice theory." (See id. at p. 1169, review granted.)
As to Jackson's concerns that the parties at a preliminary hearing "are not operating under a beyond a reasonable doubt standard" and that "the evidence tends to be truncated" during those proceedings, allowing a trial court to consider a preliminary hearing transcript in assessing whether a defendant has made a prima facie showing does not foreclose "the possibility . . . that a [defendant] could replace his conclusory assertion with a declaration creating a factual issue by explaining there was another [perpetrator] whom he assisted in a crime from which the murder [or attempted murder] resulted." (See Mares, supra, 99 Cal.App.5th at p. 1174, review granted.)
After briefing closed in this case, a majority of a panel in Division Six of this court held that if a defendant entered a plea pursuant to West, then the resentencing trial court may not rely upon a preliminary hearing transcript to deny his or her resentencing petition at the prima facie stage. (See People v. Alazar (2024) 105 Cal.App.5th 1100, 1104, 1109 (Alazar) [opinion issued on Oct. 21, 2024].) The Alazar majority observed that defendants entering pleas under West "take advantage of a plea bargain while maintaining their claim of innocence." (See Alazar, at pp. 1104, 1109.) Alazar reasoned that because such a defendant does not "admit the truth of any alleged facts in [a preliminary hearing] transcript," the trial court could not rely upon that transcript without engaging in factfinding "that is not permitted at the prima facie stage." (See id. at p. 1109.) Alazar also found persuasive Williams's holding that, even in cases not involving West pleas, "a court may [not] . . . rely on the facts set forth in a preliminary hearing transcript to deny a section 1172.6 petition at the prima facie stage." (See id. at pp. 1109-1112.) Presiding Justice Gilbert dissented because the defendant in that case did not make "any showing that he did not act alone in committing attempted murder." (See Alazar, at pp. 1112-1113 (dis. opn. of Gilbert, P.J.).) We respectfully disagree with the Alazar majority because the majority's approach renders the prima facie review procedure a nullity in cases involving pleas entered under West and, as noted in our discussion of the dissent in Williams above, we do not believe the Legislature intended section 1172.6 to produce such an anomalous consequence.
The same is true here. (See Discussion, part B, post.).
Having concluded that the trial court was permitted to consider Jackson's preliminary hearing transcript, we next turn to whether the court erred in concluding he was ineligible for relief under section 1172.6.
B. The Trial Court Correctly Found That Jackson Failed To Make a Prima Facie Showing of Entitlement to Relief
In entering a nolo contendere plea to attempted murder, Jackson "admitted all facts necessary to the conviction," "includ[ing] the existence of the requisite mental state." (See People v. McLemore (1985) 166 Cal.App.3d 718, 722, fn. 4.) The elements of attempted murder are" 'the specific intent to kill,'" i.e., "express malice,"" 'and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citation.]" (See People v. Stone (2009) 46 Cal.4th 131, 136, 139.) In light of Jackson's plea, his eligibility for relief under section 1172.6 turns on "whether intent [could have been] imputed to him because he aided and abetted an accomplice in the perpetration of a different crime," to wit, whether his conviction could have been based on the natural and probable consequences doctrine. (See Rodriguez, supra, 103 Cal.App.5th at pp. 454-455, 457 [discussing the effect of a guilty plea to attempted murder on eligibility for resentencing under § 1172.6]; fn. 13, ante [noting that the legal effect of a plea of nolo contendere to a felony is the same as that of a guilty plea].) For the reasons set forth below, we conclude that the preliminary hearing transcript and the firearm use enhancement together demonstrate Jackson could not have been convicted under the natural and probable consequences doctrine.
Jackson acknowledges that according to Detective Bambrick's testimony at the preliminary hearing, Jackson told the detective: (1) after Jackson "went to [codefendant] Martin's vehicle, . . . R[.] Goldman handed him a gun"; (2) Jackson then went through a parking lot and saw "in the right front passenger seat" of a vehicle "the man . . . [Jackson] believed had pointed a gun at him" earlier; (3) Jackson "fired his handgun at the man"; and (4) Jackson "ran to Martin's vehicle, discarded the handgun, and they drove away." Jackson further acknowledges that Detective Bambrick testified Jackson said that he, Goldman, and Martin "were at the scene [of the shooting] and fled together." Accordingly, Detective Bambrick's testimony indicates the prosecution's theory was that only one individual used a firearm to perpetrate the attempted murder.
Jackson argues he could have been convicted of attempted murder under the natural and probable consequences doctrine because, "if [Jackson] was not the shooter," then he may have been an accomplice to "the target offense of assault, especially because [Jackson] pleaded [nolo contendere] to an assault offense," i.e., count 9. Jackson further argues the doctrine is potentially applicable because (1) he and codefendant Martin were charged with six counts of attempted murder and (2) Goldman "held the gun at some point ...." He maintains the trial court could not have "determined that [Jackson], and not [an] accomplice, was the shooter," without crediting Detective Bambrick's preliminary hearing testimony.
The sentencing enhancement imposed under section 12022.5, subdivision (a) for Jackson's personal use of a firearm in the commission of the attempted murder undercuts Jackson's proffered hypothetical scenario. (See § 12022.5, subd. (a) ["[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years ...."].) "[A]lthough[,] in theory, a finding that a defendant personally used a firearm does not in itself prove a defendant is the [direct perpetrator of the offense] [citation], the facts of a particular case may support only that conclusion." (See People v. Garrison (2021) 73 Cal.App.5th 735, 743.) If, as is the case here, the evidence shows that only one individual used a firearm to commit the offense in question, then the defendant's "admission to use of a [firearm] in the course of the [offense] . . . necessarily was an admission" that he was the direct perpetrator. (See id. at p. 744.)
Although Jackson initially admitted he personally used a firearm in the commission of the assault with a firearm charged in count 9, the trial court later corrected Jackson's sentence such that the firearm use enhancement increased the sentence imposed for the attempted murder charged in count 1. (See Factual &Procedural Background, ante.) Jackson's counsel acknowledged in response to the court's inquiry that the parties intended the firearm use enhancement be appended to count 1. (See ibid.) On appeal, Jackson does not challenge the trial court's correction of his sentence or contend that the firearm use enhancement does not establish that he personally used a firearm in the commission of the attempted murder.
Jackson does not direct us to any evidence showing that in spite of the firearm use enhancement, the prosecution could have secured an attempted murder conviction against him as a mere accomplice to an assault. Because Jackson does not advance "any factual or legal theory" showing he could have been convicted under the natural and probable consequences doctrine, the trial court did not err in denying his petition at the prima facie stage. (See Pickett, supra, 93 Cal.App.5th at p. 990, review granted; see also People v. Cortes (2022) 75 Cal.App.5th 198, 203204 [holding that a defendant fails to make a prima facie case for relief under § 1172.6 if the record of conviction shows he was not convicted under "any theory under which malice is imputed to [him or her] based solely on that person's participation in a crime"].)
Jackson argues the trial court "provid[ed] reasons for why it found the [detective's preliminary hearing] testimony to be credible," thereby indicating the court had engaged in "factfinding . . . inappropriate at the prima facie stage" (e.g., the court stated Jackson's admissions were" 'very detailed'" and the detective had tape recorded Jackson's statements). Upon conducting a de novo review of the order denying Jackson's petition, however, we have concluded the preliminary hearing transcript and the firearm use enhancement demonstrate that Jackson failed to make a prima facie showing of entitlement to relief. Accordingly, we do not address Jackson's argument that the trial court engaged in premature judicial factfinding. (See People v. Camacho (2022) 14 Cal.5th 77, 123 ["[W]e review the trial court's ruling, 'not the court's reasoning and, if the [trial court's] ruling was correct on any ground, we affirm.' "].).
DISPOSITION
We affirm the trial court's May 26, 2023 order denying defendant Donte Montell Jackson's petition for resentencing.
We concur: ROTHSCHILD, P. J., WEINGART, J.