Opinion
F085768
02-16-2024
THE PEOPLE, Plaintiff and Respondent, v. JESUS RAUL AGUILAR, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. Tim Ward, District Attorney (Tulare), Mitch Niayesh, Assistant District Attorney, and Cheryl L. Bonner, Deputy District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. PCF332704B . Antonio A. Reyes, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Tim Ward, District Attorney (Tulare), Mitch Niayesh, Assistant District Attorney, and Cheryl L. Bonner, Deputy District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
On January 28, 2019, defendant Jesus Raul Aguilar pleaded no contest to attempted murder (Pen. Code, §§ 664, 187) and admitted enhancement allegations that he personally used a knife during the commission of the offense pursuant to section 12022, subdivision (b)(1), and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). (Undesignated statutory references are to the Penal Code.) In April 2022, he filed an initial petition for relief from his attempted murder conviction under section 1172.6. The superior court denied the petition for relief without appointing defendant counsel or receiving briefing. Defendant filed a second section 1172.6 petition for resentencing on November 3, 2022. The court appointed counsel for defendant, held a hearing, and then denied this petition for relief without issuing an order to show cause or holding an evidentiary hearing. Defendant now appeals from the denial of his second section 1172.6 petition for resentencing, asserting the record did not conclusively establish he was ineligible for relief. The People assert the record (the preliminary hearing transcript) establishes defendant was prosecuted as a direct aider and abettor; thus, he was ineligible for relief. The Tulare County District Attorney's Office filed an amicus brief asserting the trial court properly denied defendant's resentencing petition because he pleaded no contest to attempted murder after the legislative changes of Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective. As such, he could not have been convicted of attempted murder under a now invalid theory of liability.
We agree with defendant. The order denying his section 1172.6 petition must be reversed and remanded for the issuance of an order to show cause and further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Charges
In November 2016, defendant and his two brothers, Frank Aguilar (Frank) and Garth Aguilar (Garth), were charged with attempted murder (§§ 664, 187, subd. (a); count 1) with an allegation the attempted murder "was committed willfully, deliberately and with premeditation within the meaning of ... section 664(a)." There was a special allegation that Frank and Garth "personally used a deadly and dangerous weapon," a knife, within the meaning of section 12022, subdivision (b)(1), and "personally inflicted great bodily injury on J.F." during the commission of the attempted murder within the meaning of section 12022.7, subdivision (a). It was further alleged as to Frank and Garth that count 1 "is punishable in the state prison for life" and sentencing is pursuant to section 186.22, subdivision (b)(5). All three defendants were also charged with assault with a deadly weapon, a knife, upon J.F. (§ 245, subd. (a)(1); count 2). There was a special allegation Frank and Garth "personally inflicted great bodily injury on J.F." during the commission of the offense within the meaning of section 12022.7, subdivision (a). It was also alleged defendant committed count 2 for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1)(B). The same allegation was alleged against Frank and Garth, but pursuant to section 186.22, subdivision (b)(1)(C). Finally, defendant and Garth were also charged with street terrorism (§ 186.22, subd. (a); count 3).
The People filed a motion with our court seeking to augment the record on appeal with the transcript from the preliminary hearing in this matter as it was not included in the appellate record. In support of their motion, they asserted the preliminary hearing transcript was part of the record of defendant's conviction; the superior court presided over the preliminary hearing; and the facts adduced at the preliminary hearing factored into the superior court's denial of defendant's resentencing petition. Defendant opposed the motion to augment on the grounds the preliminary hearing transcript was not part of the proceedings related to the section 1172.6 petition and did not "factor" into the court's decisionmaking. Our court subsequently granted the People's motion to augment the record with the preliminary hearing transcript. Thus, it is part of the appellate record.
At the preliminary hearing, the named victim, J.F., testified he was in a relationship with M.S. On March 20, 2016, they had a birthday party in the mountains for their 18-year-old son, which later continued at their home. Defendant and Garth, who are M.S.'s cousins, attended. At some point after midnight, the mood at the party changed.
J.F. testified he told Garth he did not allow gang affiliation or activity in his house and Garth, who was affiliated with gang activity, got mad and left the house with defendant and their significant others. Later, Garth returned with his wife and told J.F. to remove his horses from Garth's property or he would shoot them. J.F. explained he kept his horses on Garth's mother's property, land she had given to Garth. J.F. testified he got on his horse and rode over to the property to get the other horses. He took them home, put them in their pens, and was unsaddling his horse when he heard vehicles "peeling out" at his driveway. J.F. went to padlock the gate, but Frank, defendant, and Garth got there first.
Frank approached first and asked J.F. what was going on; his brothers were "madder than hell." Frank was trying to calm the situation. Defendant and Garth then approached right behind Frank. They "started arguing about gang stuff" and then Frank jumped over the gate and he and J.F. started fighting. J.F. testified he threw the first punch at Frank. At some point, J.F. and Frank separated. Then, defendant started fighting J.F. and "Garth busted through the gate and [J.F.] started getting stabbed."
J.F. testified he and defendant were fighting and fell on the ground. Then, Frank was on one side of J.F. and Garth was on the other and they were stabbing J.F. as he and defendant were fighting. J.F. stated he had defendant in a headlock while Frank and Garth stabbed him. Defendant bit J.F.'s hand after Garth stabbed J.F. a second time and defendant broke free of the headlock. J.F. testified Frank stabbed him in his left hand, left hip, and left elbow. After Garth stabbed J.F. twice in the stomach, Garth stood back and told J.F. he was his "trophy" and he wanted to get him one last time. Garth then stabbed J.F. on his "heart side," but J.F. managed to push Garth's hand lower toward his stomach. Garth's knife was a lot bigger than Frank's knife. J.F. did not know where defendant was when that stabbing occurred. J.F. was yelling for help. At some point, M.S. arrived with her friend, J.F.'s cousin, and they took J.F. to the hospital in a car.
Investigating officer Brian Clower testified at the preliminary hearing that on March 21, 2016, at 6:45 a.m. he received a report of a stabbing and responded to the location and began interviewing witnesses. M.S. reported to him that she had a party at her residence. She told Clower, at the end of the party, her cousin, Garth, told her he had a conflict with J.F., because J.F. told Garth he was not welcome at their home due to the fact he was a Northern gang member. Garth told M.S. he was going to give J.F. a "dirt nap." Officer Clower testified "dirt nap" means someone is going to be "buried" or "killed." M.S. tried to console Garth and told him everyone had been drinking and he should "let it go"; he was always welcome at her residence. Garth left. M.S. saw J.F. saddling up a horse; J.F. rode the horse to Garth's mother's house to secure horses he had on her property. After bringing the horses back to the property, J.F. went to close the livestock gate. M.S. was on her porch on the phone with her aunt, defendant's mother, when she heard a commotion by the gate approximately 150 feet away. M.S. reported she saw two headlights pointing up the driveway and a scuffle taking place. M.S. yelled at the individuals to "'knock it off.'" M.S. and her friend ran out of the house and got in the car to drive toward the gate. As they approached, M.S. saw a brown Ford Ranger Frank commonly drove and a Chevrolet pickup truck that belonged to defendant. She saw defendant, Garth, and Frank standing around J.F., who was in a fetal position on the ground. Defendant, Garth, and Frank were all beating J.F. M.S. saw a knife in Frank's hands and unknown objects in the hands of defendant and Garth. M.S. confronted them and again told them to "'knock it off.'" They slowly started to back away from J.F. She reported they looked winded from the altercation. M.S. told Officer Clower she and her friend then loaded J.F. into the car and J.F. told her "all three stabbed him and he believed he was going to die." M.S.'s friend told Officer Clower she did not see any knives during the incident.
Officer Clower prepared six-pack lineups that he presented to M.S. and her friend after the incident; both identified defendant, Garth, and Frank as the perpetrators. He testified Deputy Michael Clayborn was tasked with contacting J.F. at the hospital, and he told Officer Clower that he observed "J.F. to have a stab wound to his abdomen, or large cut on his abdomen, with his bowels protruding" and a wound to his left hand. J.F. reported to Clower that Garth, Frank, and defendant all stabbed him; "[e]ach one of them had knives and it was a group effort simultaneously."
The prosecution also presented a gang expert who opined defendant and Garth were Northern gang members, but not Frank. She also opined a hypothetical scenario mirroring the facts of the stabbing incident in this case was done for the benefit of a criminal street gang in that the perpetrators were "challenged or disrespected, they must act on that; and it also helps to gain prestige, status and to show their loyalty to the gang. By not acting on that also, and if word would get out back to other Northern Gang members, there could be consequences for not acting on that disrespect." She also opined the hypothetical acts were committed in association with other gang members and that it was possible the acts were performed at the direction of the Norteno gang.
Plea
In 2019, defendant pled no contest to nonpremeditated attempted murder with malice aforethought and admitted use of a knife during the commission of the offense (§ 12022, subd. (b)(1)) and the offense was committed for the benefit of a gang (§ 186.22, subd. (b)(1)(C)). His two brothers also pled no contest to the same charges and allegations and the additional allegation they personally inflicted great bodily injury. All the parties stipulated the police reports and preliminary hearing transcript provided a factual basis for the pleas. Pursuant to the plea agreement, defendant was sentenced to a term of 10 years-the upper term of nine years for the attempted murder conviction, plus one year for the personal use of a knife enhancement. A 10-year term on the gang enhancement was ordered stayed.
Petitions for Resentencing
On April 28, 2022, defendant filed a form petition for resentencing pursuant to section 1172.6 (former § 1170.95). He averred a charging document had been filed against him that allowed the prosecution to proceed under a felony-murder theory, the natural and probable consequences doctrine, or other theory under which malice was imputed based solely on participation in the crime; at trial, he was convicted of murder, attempted murder, or manslaughter or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and he could not now be convicted of murder or attempted murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)). He requested appointment of counsel to represent him. Without appointing defendant counsel or receiving briefing, the trial court summarily denied the petition in an order dated May 3, 2022, which also noted "[defendant's] rights were waived."
Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at that time, although prior changes had been implemented effective January 1, 2022. There is no dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the statute as section 1172.6.
Defendant filed a second section 1172.6 petition for resentencing on November 3, 2022, with the same averments. The court appointed counsel to represent him. The prosecutor filed a "notice of ineligibility" claiming defendant was ineligible for relief because the petition was a successive petition, thus, barred by res judicata and defendant was not convicted under the natural and probable consequences doctrine given that defendant's plea was made after the changes to sections 188 and 189 went into effect on January 1, 2019.
The court held a hearing on defendant's second petition as well as on a petition for resentencing brought by his brother Garth on December 20, 2022. At the hearing, defense counsel asked the court the basis upon which it denied defendant's first petition for resentencing in light of the People's argument the second petition was barred by res judicata. The People argued the defendants were in the same situation, they both "pled past the effective date of the statute, this Court rejected their ... petition in May, which basically by now has become a final order." Accordingly, they asserted the court lacked jurisdiction over the second petition.
In response, the court stated:
"When I initially started reviewing these petitions, my understanding is the Court could review the petition to determine whether or not there was a basis of what they were asking for. This was a case specifically I'm familiar with because I handled the case when I was sitting in Porterville.
"But to get to the point, . . . a number of decisions I made at that time have come up to the appellate court and been reversed because I did not give the individual the opportunity beyond me reviewing the petition. [¶] To make a long story short, we have to at least appoint an attorney and at least with the attorney give some basis, if there will be some basis, to find the findings and petition that they were not specifically involved in the actual occurrence. However, being familiar with the facts of this case, I don't really see the possibility that could occur. However, legally, I believe, based on the recent appellate decision reversing my decisions, I feel I have to at least grant the opportunity. I'm not saying it's going to get anywhere, but it should at least grant the opportunity. That's my belief."
The court then denied defendant's second petition for resentencing.
DISCUSSION
Defendant now challenges the trial court's denial of his November 3, 2022, petition for resentencing. We reverse the court's order and remand for further proceedings consistent with this opinion.
I. Senate Bill 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[ed] 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).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, former section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The legislation also added section 1172.6 (former § 1170.95), which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, this section permitted those "convicted of felony murder or murder under a natural and probable consequences theory [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 ...." (Stats. 2018, ch. 1015, § 4, subd. (a).) In Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) If the petitioner has made a showing of entitlement to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
The trial court may look at the record of conviction to determine whether a petitioner has made a prima facie case for section 1172.6 relief, but the prima facie inquiry under subdivision (c) is limited. (People v. Lewis (2021) 11 Cal.5th 952, 970971.) "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.]" (Id. at p. 972.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.]" (Id. at p. 971.) "'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."' [Citations.]" (Ibid.)
II. Analysis
Defendant argues he filed a facially sufficient resentencing petition and the record of conviction did not establish he was ineligible for relief as a matter of law. Rather, because the case involved a plea, the record did not reflect the theory upon which defendant was convicted. He argues, the fact he "may have been 'involved in the actual occurrence' does not render [him] ineligible for relief and is not a proper reason to deny relief." He also contends he could have been prosecuted for attempted murder based on a now invalid theory, noting he entered his plea 28 days after the amendments to sections 188 and 189 went into effect on January 1, 2019, and there was a question regarding whether Senate Bill 1437 extended to defendants convicted of attempted murder at the time. Thus, the fact he pled past the effective date of the changes to sections 188 and 189 did not preclude relief under the circumstances. He also asserts, though the police reports and preliminary hearing transcript provided a factual basis for his plea, he did not admit the truth of the facts therein and the plea did not state the theory of guilt upon which he was prosecuted. Finally, defendant argues the court's summary denial of his April 2022 petition did not deprive the court of jurisdiction to hear this petition. He argues, the court never appointed defendant counsel regarding that petition or accepted briefing before denying it, and it never served defendant with the order denying the petition. Thus, it would be unfair to rule collateral estoppel barred the second petition. Relatedly, he asserts his waiver of appellate rights did not preclude him from seeking relief under section 1172.6. He further contends he was prejudiced by the erroneous denial of his petition and denied due process of law. The People respond the evidence adduced at the preliminary hearing, namely J.F.'s testimony, established defendant was liable for attempted murder as a direct aider and abettor and, thus, ineligible for relief. They note, they do not contest the trial court had jurisdiction to hear defendant's November 3, 2022, petition, even though an earlier petition had been denied, and they did not believe defendant's waiver of his appellate rights precluded him from seeking relief under section 1172.6. On reply, defendant asserts neither the trial court nor the parties relied upon the preliminary hearing transcript during the section 1172.6 proceedings; he did not admit the truth of the evidence presented at the preliminary hearing; and it did not establish, as a matter of law, that defendant was convicted as a direct aider and abettor who acted with the intent to kill. He contends, if the court relied upon the preliminary hearing transcript in denying him relief, it engaged in improper factfinding to conclude he was ineligible for relief.
The Tulare County District Attorney's Office filed an amicus brief in this matter in which they assert the natural and probable consequences doctrine was abolished as a theory of prosecution at the time defendant pled no contest to attempted murder. So, they argue, malice could not have been imputed to defendant at the time he pleaded no contest and he failed to establish a prima facie case for relief. They disagree the law was unclear at the time of defendant's plea. They assert Senate Bill 775 did not amend the murder statutes but instead expanded the petitioning process to those defendants convicted of attempted murder and manslaughter by amending former section 1170.95. Accordingly, it affirmed that the natural and probable consequences doctrine had not been available for attempted murder prosecutions since Senate Bill 1437 became effective on January 1, 2019. They further contend the rule of lenity does not compel a different conclusion because the natural and probable consequences doctrine could not have been used to prosecute defendant after Senate Bill 1437 became effective. Defendant disagrees with the contention that the law was clear with regard to whether Senate Bill 1437's amendments to sections 188 and 189 extended to defendants convicted of attempted murder when he entered his plea. He asserts, it was not until 2022 that it was settled that the natural and probable consequences doctrine no longer attached to accomplice liability for attempted murder.
We conclude the record of conviction does not establish, as a matter of law, that defendant is ineligible for relief. Accordingly, the order denying defendant's petition must be reversed. Here, the court's denial of the petition appears to have been based on its conclusion defendant "was involved in the actual occurrence." We initially note, it does not appear the trial court had the preliminary hearing transcript before it during the section 1172.6 proceedings nor did either party argue the evidence adduced at the preliminary hearing rendered defendant categorically ineligible for relief. Furthermore, as we have previously held, though defendant stipulated the preliminary hearing transcript provided a factual basis for his plea, "his stipulation that the transcript provided a factual basis for the plea is not a '"binding admission for all purposes"'" as to amount to an admission of the particular facts therein. (People v. Flores (2022) 76 Cal.App.5th 974, 991; accord, People v. Rivera (2021) 62 Cal.App.5th 217, 235.)
But even if the court's conclusion defendant was involved in the actual occurrence was supported by admissible, nonhearsay evidence, such a conclusion does not establish, as a matter of law, that defendant personally acted with intent to kill. That is, it did not exclude the possibility defendant was, or could have been, convicted under the imputed malice theories eliminated by Senate Bill No. 1437. (See People v. Flores, supra, 76 Cal.App.5th at p. 991 [concluding officer's testimony defendant admitted he may have accidentally run over victim after codefendant shot and beat victim, standing alone, did not conclusively establish as matter of law petitioner was actual killer, acted with intent to kill or actual malice, or was a major participant in underlying crime who acted with reckless indifference to human life].) Rather, to conclude as such the court would necessarily have had to engage in judicial factfinding, which is prohibited at the prima facie stage. (See Flores, at p. 992.) Additionally, without more, defendant's bare admission of the enhancement for personal use of knife (§ 12022, subd. (b)(1)) neither establishes he acted with the intent to kill nor refutes his contention he was convicted on a theory of imputed malice. As with pleading guilty to a criminal offense, a plea or admission of a sentencing enhancement is likewise deemed a judicial admission of only elemental facts necessary to the enhancement. (See People v. Saez (2015) 237 Cal.App.4th 1177, 1206; Descamps v. United States (2013) 570 U.S. 254, 269-270.) Thus, here, the enhancement alleged under section 12022, subdivision (b)(1) did not establish defendant acted with the requisite malice aforethought as a matter of law. (See People v. Offley (2020) 48 Cal.App.5th 588, 598 [§ 12022.53, subd. (d) enhancement does not establish malice aforethought]; People v. Davenport (2021) 71 Cal.App.5th 476, 485 [plea of no contest to personal use of a firearm under § 12022.5, subd. (a) does not preclude eligibility for relief under § 1172.6]; see generally In re Ferrell (2023) 14 Cal.5th 593, 604 [§ 12022.53, subd. (d) finding was not dispositive of whether defendant harbored malice].)
Notably, as the Tulare County District Attorney's Office asserts in its amicus brief, defendant pleaded no contest to attempted murder after Senate Bill 1437's amendments to sections 188 and 189 became effective on January 1, 2019. However, as noted by defendant, there was disagreement among appellate courts after Senate Bill 1437 went into effect as to whether the amendments to sections 188 and 189 extended to attempted murder convictions based on the natural and probable consequences doctrine. Indeed, the Supreme Court granted review in these cases, and they were pending before the court when the Legislature enacted Senate Bill 775 in October 2021. Senate Bill 775 became effective on January 1, 2022, and amended former section 1170.95 and "'[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; accord, People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Thereafter, the Supreme Court transferred the pending cases about whether Senate Bill 1437's amendments extended to attempted murder convictions back to the appellate courts, in light of the amendments enacted by Senate Bill 775, without issuing an opinion on the disputed issue and rendering the opinions not citable.
See, e.g., People v. Sanchez (2022) 75 Cal.App.5th 191, 193. As discussed, the cases reflecting the split amongst the appellate courts at the time regarding whether Senate Bill 1437 abrogated the natural and probable consequences doctrine as a basis for attempted murder liability were ordered depublished and not citable by the California Supreme Court.
In sum, nothing in the record establishes defendant was ineligible for relief as a matter of law; thus, the trial court erred in summarily denying his petition. Rather, defendant alleged in his petition that a charging document was filed against him permitting the prosecution to proceed under a theory of felony murder, murder based on the natural and probable consequences doctrine, or other theory under which malice was imputed to a person based solely on that person's participation in a crime; he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder; and that he could not presently be convicted of attempted murder because of the changes to sections 188 and 189. (See § 1172.6, subd. (a)(1)-(3).) The court was required to accept those allegations as true unless the facts in the record of conviction refuted them. (See People v. Lewis, supra, 11 Cal.5th at p. 971.) And here, the record of conviction does not conclusively establish defendant was ineligible for relief.
Accordingly, the order denying the petition must be reversed and the matter remanded with directions for the trial court to issue an order to show cause and, to the extent necessary, conduct an evidentiary hearing under subdivision (d) of section 1172.6. We express no opinion on the ultimate resolution of the petition.
DISPOSITION
The order denying defendant's petition for resentencing is reversed and the matter is remanded. The trial court is directed to issue an order to show cause and, to the extent necessary, to hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
WE CONCUR: DETJEN, Acting P. J. SMITH, J.