Opinion
E080096
11-02-2023
THE PEOPLE, Plaintiff and Respondent, v. MANUEL ORONA, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB17001220. Ronald M. Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Manuel Orona appeals from the denial of his petition to vacate his 2018 conviction for attempted murder pursuant to Penal Code section 1172.6. The trial court denied the petition at the prima facie stage, on the ground that the preliminary hearing transcript established that Orona was the perpetrator rather than an aider and abettor.
Further statutory citations are to the Penal Code unless otherwise specified. The petition was actually filed under former section 1170.95. (Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat anachronistically, to refer to whichever one of the two statutes was in effect at the relevant time.
We will hold that this was error. The trial court could properly consider the preliminary hearing transcript (at least in the absence of any hearsay objection). The transcript, however, contained conflicting evidence as to whether Orona was the perpetrator or an aider and abettor. At the prima facie stage, the trial court was not allowed to resolve that conflict.
I
STATEMENT OF FACTS
The following facts are taken from the transcript of the preliminary hearing.
A police officer on patrol heard approximately five shots. He "canvassed the area" and found a man bleeding from three gunshot wounds to the abdomen. The man said "his girlfriend's baby daddy" shot him.
Meanwhile, the victim's girlfriend arrived on the scene. She said that she and the victim had gone to Orona's house to pick up her child by Orona. The victim stayed in the car, around the corner. She and Orona got into an argument. According to her, he punched her approximately 10 times in the head and face. She ran away.
The police, however, saw no visible injuries.
The police interviewed the victim at the hospital. This time, he said he did not know who shot him. He said he was sitting on the passenger side of the car when "his girlfriend's baby daddy" and two or three other people came up. They started hitting the passenger side window. He was frightened, so he moved over to the driver's side. "[H]e heard about four gunshots, and he could feel that he was hit." He would not name the father of his girlfriend's baby. In the officer's opinion, the victim was a "reluctant" witness and "did not want to give a statement or identify who shot him."
II
STATEMENT OF THE CASE
In 2018, pursuant to a plea bargain, Orona pleaded no contest to attempted murder. (§§ 187, subd. (a), 664, subd. (a).) He stipulated that the preliminary hearing transcript provided a factual basis for the plea. He was sentenced to nine years in prison.
In 2022, Orona filed a petition to vacate his attempted murder conviction pursuant to section 1172.6. The prosecution filed an opposition. It argued that the preliminary hearing transcript showed that Orona was the sole participant in the attempted murder. It also argued: "[T]he defendant pled no contest to attempted murder in this case, further demonstrating that defendant's malice was his own and not imputed."
The trial court appointed counsel and held a prima facie hearing. It then denied the petition. It explained:
"[The] Court has taken judicial notice of the record of conviction and Mr. Orona's court file and the plea bargain agreement, the information, the transcript of the plea and the transcript of the preliminary hearing.
"At the time of the plea, the parties stipulated that the preliminary hearing transcript contained a factual basis for the plea. After review of all these documents, the Court finds that Mr. Orona was the actual shooter in the case and is ineligible for relief under 1172.6."
III
DISCUSSION
Orona contends that his plea did not establish that he was ineligible for relief under section 1172.6.
A. General Legal Background.
Ordinarily, "[a]ttempted murder requires express malice, i.e., intent to kill." (People v. Stone (2009) 46 Cal.4th 131, 139.) When Orona was convicted, however, an aider and abettor could be found guilty of attempted murder, even absent the intent to kill, under the natural and probable consequences doctrine.
Under this doctrine, "'[a]n aider and abettor [wa]s guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime. [Citations.] "Thus, for example, if a person aid[ed] and abet[ted] only an intended assault, but a murder result[ed], that person [could] be guilty of that murder, even if unintended, if it [wa]s a natural and probable consequence of the intended assault." [Citation.]' [Citation.]" (People v. Carr (2023) 90 Cal.App.5th 136, 141-142; see People v. Medina (2009) 46 Cal.4th 913, 919-928 [defendants who aided and abetted simple assault were guilty of resulting murder and attempted murder by accomplice].)
Effective January 1, 2019, the Legislature abrogated the natural and probable consequences doctrine as applied to murder and attempted murder. Specifically, it added section 188, subdivision (a)(3), which, as relevant here, provides: "Malice shall not be imputed to a person based solely on his or her participation in a crime."
"Because section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in a crime, the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder." (People v. Sanchez (2022) 75 Cal.App.5th 191, 196; see People v. Whitson (2022) 79 Cal.App.5th 22, 33 [natural and probable consequences theory is no longer a valid theory of attempted murder].)
At the same time, the Legislature also added section 1172.6. (Former § 1170.95, subd. (a), Stats. 2018, ch. 1015, § 4.) Section 1172.6, as subsequently amended, provides, among other things, that: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition . . . to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts." (§ 1172.6, subd. (a).)
A petitioner like Orona, who has pleaded guilty to attempted murder, must allege, under penalty of perjury, that:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . attempted murder under the natural and probable consequences doctrine.
"(2) The petitioner . . . accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of . . . attempted murder.
"(3) The petitioner could not presently be convicted of . . . attempted murder because of changes to Section 188 . . . made effective January 1, 2019." (§ 1172.6, subds. (a), (b)(1)(A).)
"Where the petition complies with [these] three requirements, then the court proceeds to [section 1172.6] subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 960.) At the prima facie hearing, the trial court can consider the record of conviction. (Id. at pp. 970-971.) "The record of conviction will necessarily inform the trial court's prima facie inquiry . . . allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.)
"[T]he prima facie inquiry . . . 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."' [Citation.]" (People v. Lewis, supra, 11 Cal.5th at p. 971.)
Here, Orona's petition included all the required elements. Accordingly, he made a prima facie case, and the trial court should have issued an order to show cause unless the record of conviction established that he was not convicted as an aider and abettor under the natural and probable consequences doctrine. In other words, it had to show that he acted either (1) as perpetrator - who by definition, must have the intent to kill - or (2) as an aider and abettor and with the intent to kill.
B. Use of the Preliminary Hearing Transcript.
Orona argues that merely pleading guilty to murder or attempted murder does not establish whether the defendant is guilty as the perpetrator (i.e., acting with the intent to kill) or as an aider and abettor (i.e., under the natural and probable consequences doctrine). This proposition is well-established. (People v. Flores (2022) 76 Cal.App.5th 974, 987; People v. Davenport (2021) 71 Cal.App.5th 476, 484-485; People v. Eynon (2021) 68 Cal.App.5th 967, 976-979; People v. Rivera (2021) 62 Cal.App.5th 217, 232235, review granted June 9, 2021, review dism. Jan. 19, 2022, S268405.) However, the People do not argue otherwise. Rather, they argue that Orona's stipulation that the preliminary hearing transcript provided a factual basis for the plea constituted an admission that he was guilty as the perpetrator.
When a trial court approves a plea of guilty or no contest for a specified sentence, it must "cause an inquiry to be made of the defendant to satisfy itself . . . that there is a factual basis for the plea." (§ 1192.5, subd. (c).) "'"The purpose of the requirement . . . is to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged."' [Citation.]" (People v. Palmer (2013) 58 Cal.4th 110, 112.)
Orona's stipulation that the preliminary hearing transcript provided a factual basis for the plea was not an admission of any particular facts. (People v. Flores, supra, 76 Cal.App.5th at p. 991; People v. Rivera, supra, 62 Cal.App.5th at p. 235; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) "Courts have consistently differentiated between an admission that a document or recitation contains a factual basis for a plea and an admission that statements in that document or recitation are true. [Citations.]" (People v. Hiller (2023) 91 Cal.App.5th 335, 349-350.)
However, the trial court could consider the preliminary hearing transcript as part of the record of conviction. (People v. Reed (1996) 13 Cal.4th 217, 223.) Orona forfeited any hearsay objection to the transcript by failing to raise one below (Evid. Code, § 353, subd. (a)) and additionally by failing to raise one in his opening brief. (See People v. Nelson (2015) 240 Cal.App.4th 488, 497.)
"[W]here the defendant alleges no facts concerning the [attempted] murder to which he pleaded guilty, the People introduce without objection uncontroverted evidence from the preliminary hearing transcript showing that the defendant acted alone in [attempting to] kill[] the victim, and the defendant does not put forth, by way of briefing or oral argument, any factual or legal theory in support of his petition, the defendant has failed to make a prima facie showing for relief under section 1172.6. [Citation.]" (People v. Pickett (2023) 93 Cal.App.5th 982, 990, review granted Oct. 11, 2023, S281643; accord, People v. Patton (2023) 89 Cal.App.5th 649, 657-658, review granted June 28, 2023, S279670.)
However, "[o]nly where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner. [Citations.]" (People v. Flores, supra, 76 Cal.App.5th at p. 991.) If the record of conviction - including the preliminary hearing transcript - contains conflicting evidence regarding the petitioner's guilt under current law, the trial court is not authorized to resolve that conflict at the prima facie stage. (Id. at pp. 991992.)
The first time the police interviewed the victim, he said Orona shot him. The second time, he said Orona and two or three other people were present, and he did not know who shot him. We may think it is obvious which of those conflicting statements is true, but that would still be making a credibility determination. We and the trial court are prohibited from doing so at the prima facie stage. Indeed, if the case had gone to trial, the prosecution might well have proceeded under a natural and probable consequences theory, precisely to avoid forcing the jury to make this determination.
We therefore conclude that the trial court erred by finding, based on the preliminary hearing transcript, that Orona was "the actual shooter." We will direct it to issue an order to show cause and to set an evidentiary hearing.
IV
DISPOSITION
The order appealed from is reversed. On remand, the trial court must issue an order to show cause. (§ 1172.6, subd. (c).)
I concur: CODRINGTON J.
MENETREZ, J., Concurring.
A court conducting prima facie review of a petition under Penal Code section 1172.6 must assume the truth of the petition's allegations unless they are refuted by facts contained in the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court must not engage in factfinding. (Id. at p. 972.) It follows that the only facts on which the court can rely to refute the allegations of the petition are those admitted by the defendant or found beyond a reasonable doubt by a trier of fact. (See People v. Jenkins (2021) 70 Cal.App.5th 924, 933-935.)
When defendant Manuel Orona pled no contest to attempted murder, he stipulated that the transcript of the preliminary hearing contained a factual basis for his plea. He did not thereby admit any specific facts contained in that transcript. The transcript therefore cannot be used to refute the allegations of Orona's petition on prima facie review (People v. Rivera (2021) 62 Cal.App.5th 217, 234-235), regardless of whether the transcript itself contains conflicting evidence.
Orona has never admitted, and no trier of fact has found beyond a reasonable doubt, facts that refute the allegations of Orona's petition. The trial court therefore erred by denying the petition at the prima facie stage. I accordingly concur in the judgment reversing with directions to issue an order to show cause.