Opinion
C093718
04-08-2022
THE PEOPLE, Plaintiff and Respondent, v. MELVIN SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 94F06512
RAYE, P. J.Defendant Melvin Smith appeals from the trial court's order denying his petition for resentencing under Penal Code section 1170.95. Defendant contends the trial court incorrectly engaged in factfinding when evaluating his prima facie eligibility under the statute and prematurely denied his petition as a result. We will reverse the trial court's order and remand the case for further proceedings.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 1997, defendant pleaded guilty to second degree murder (§ 187, subd. (a)) and second degree robbery (§ 211), and admitted allegations a principal was armed in the commission of both offenses (§ 12022, subd. (a)(1)). At the plea hearing, the prosecutor stated a factual basis for the plea, explaining that defendant, along with "three other persons," burglarized a Burger King and one of defendant's accomplices killed the victim. The group robbed one of the employees and the same accomplice was armed during the offenses.
On August 29, 2019, defendant filed a petition for resentencing under section 1170.95. The trial court appointed counsel and received briefing from the parties.
On January 5, 2021, the trial court denied defendant's petition in a written order. The court summarized the evidence in the record, including defendant's interview with a probation officer in the presentencing report and detective testimony from defendant's preliminary hearing. The court explained various statements from the probation report and preliminary hearing were admissible as reliable hearsay, in part because they were corroborated by other statements in the record, and discussed apparent inconsistencies in the testimony. The court then explained that defendant would be ineligible for resentencing if he were a" 'major participant' in the underlying robbery and acted with 'reckless indifference to human life.'" Laying out the factors defining "major participant" and "reckless indifference" as set forth in People v. Banks (2015) 61 Cal.4th 788, People v. Clark (2016) 63 Cal.4th 522, and CALCRIM No. 703, the court proceeded to apply the facts to those factors. Explaining that "[i]f the court held an evidentiary hearing, the prosecution would need to only show that defendant could be convicted under [Senate Bill No.] 1437-not prove his guilt," the court concluded defendant "could be convicted under [Senate Bill No. 14]37 as a major participant in the robbery who acted with reckless indifference to human life." The court thus denied the petition, saying defendant had not carried "his burden of making a prima facie showing that he could not be convicted of murder under current law."
DISCUSSION
Defendant argues the trial court erred because it "engaged in premature fact finding based on the preliminary hearing transcript and various other documents" and used those documents to conclude "as a matter of law that appellant was a major participant who acted with reckless indifference to human life." Defendant asserts this use of the record at the prima facie stage of the section 1170.95 process is inconsistent with the "clear wording and intent of the statute," and asks us to remand the case with directions to issue an order to show cause. The People agree both that the trial court attempted to resolve disputed facts too early in the section 1170.95 process and with defendant's proposed remedy. We agree with the parties.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, was enacted "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." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added section 1170.95, which currently allows those "convicted of felony murder or murder under the natural and probable consequences doctrine . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder [or] murder under the natural and probable consequences doctrine . . . . [¶] (2) The petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of murder . . . . [¶] (3) The petitioner could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).)
The Legislature further amended section 1170.95, effective January 1, 2022, under Senate Bill No. 775 (2021-2022 Reg. Sess.). This amendment to section 1170.95 has no impact on the issues raised by this appeal.
Section 1170.95 includes a prima facie determination. Under subdivision (c), the trial court must receive briefing from the parties and "determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1170.95, subd. (c).) To make this prima facie determination, courts are not limited to the allegations of the petition; rather, they may "rely on the record of conviction in determining whether that single prima facie showing is made." (People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis).) Thus, if the record of conviction establishes the petition lacks merit, the trial court may deny the petition without conducting further proceedings. (Id. at p. 971 ["The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless"].)
"While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner 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.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [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 petitioner." '" (Lewis, supra, 11 Cal.5th at p. 971.) "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.] . . . the 'prima facie bar was intentionally and correctly set very low.'" (Id. at p. 972.)
Here, as the People acknowledge, there were no readily ascertainable facts establishing defendant was ineligible for resentencing as a matter of law. Defendant pleaded guilty to murder and robbery with no other charges or enhancements that necessarily established he was the actual killer, acted with the intent to kill, or was a major participant who acted with reckless indifference to human life. The factual basis for the plea is similarly inconclusive because it only shows defendant's participation in a burglary/robbery in which the victim was killed by a codefendant. When defendant pleaded guilty, the law permitted him to be convicted of murder under a felony-murder theory "without being the actual killer, acting with intent to kill, or being a major participant in the underlying felony who acted with reckless indifference to human life." (People v. Eynon (2021) 68 Cal.App.5th 967, 979.) Thus, his admission to the alleged conduct, and his statement of the factual basis therein, did not necessarily include "any factual admissions that refute his allegation that he is eligible for relief under section 1170.95." (Ibid.; People v. Rivera (2021) 62 Cal.App.5th 217, 234 [the defendant not ineligible as a matter of law because he "made no admissions related to the murder other than pleading no contest to the count as charged"], review granted June 9, 2021, S268405, and dism. Jan. 19, 2022.)
To the extent the court could consider the preliminary hearing transcript or presentencing report at the prima facie stage, the statements within those documents were only evidence of defendant's actions and were not conclusive as a matter of law. As explained in Lewis, the trial court was not entitled to weigh that evidence or resolve inconsistencies in the testimony to make its prima facie inquiry. (Lewis, supra, 11 Cal.5th at p. 972.) The fact that evidence supports defendant's conviction on a valid theory does not mean the record conclusively establishes he could now be convicted on that theory beyond a reasonable doubt. (People v. Duchine (2021) 60 Cal.App.5th 798, 814-815 [" 'To deny resentencing simply because a jury could have found that they may have acted with express malice would frustrate the legislation's purpose' "].) It was thus erroneous for the trial court to weigh the evidence to determine defendant was ineligible for resentencing without first holding an evidentiary hearing.
Construing the petition's allegations in favor of defendant, as the statute requires, the petition fulfilled the prima facie requirements for relief in section 1170.95, subdivision (a), and the trial court should have issued an order to show cause for an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) We will reverse the trial court's order denying the petition and remand with directions to issue an order to show cause under amended section 1170.95, subdivision (c), and hold a hearing under section 1170.95, subdivision (d). We express no opinion about whether defendant is entitled to relief following the hearing.
DISPOSITION
The trial court's order denying the petition for resentencing is reversed. The case is remanded for the trial court to issue an order to show cause and hold a hearing to determine whether defendant is entitled to relief under amended section 1170.95, effective January 1, 2022, under Senate Bill No. 775 (2021-2022 Reg. Sess.).
We concur: BLEASE, J. KRAUSE, J.