Opinion
C098223
03-27-2024
THE PEOPLE, Plaintiff and Respondent, v. RICARDO TAFOLLA ALANIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. STKCRFE19940006598, SC057209A)
Ashworth, J. .[*]
Defendant Ricardo Tafolla Alanis appeals from the trial court's denial of his petition for resentencing, filed pursuant to Penal Code section 1172.6. Defendant contends: (1) he made a sufficient prima facie showing that he could not now be convicted of murder after changes to the law made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2), and (2) that the trial court improperly relied on the preliminary examination transcript to deny his petition at the prima facie stage.
Undesignated statutory references are to the Penal Code.
We conclude the trial court impermissibly relied on hearsay testimony contained in the preliminary examination transcript at the prima facie stage to find defendant ineligible for resentencing. We further conclude this error was not harmless. Accordingly, we will reverse the order denying defendant's petition and remand for the trial court to issue an order to show cause.
BACKGROUND
In 1994, the People charged defendant with murder, alleging he "willfully and unlawfully and with malice aforethought" murdered the victim in violation of section 187. At defendant's preliminary examination, both witnesses were police officers. The first police officer testified that she was dispatched to a bar, where she found a man with a chest wound lying in a lot of blood, who stopped breathing shortly after she arrived. A second officer interviewed a number of witnesses and testified to their statements. Defense counsel objected to the hearsay testimony by the officers, but the magistrate overruled the objection pursuant to section 872, subdivision (b), which permits the court to find probable cause at a preliminary examination "based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted." The magistrate later noted defense counsel's continuing objection to the officers' hearsay testimony, but reiterated its ruling that such evidence was admissible at the preliminary examination.
According to the second officer, a witness to the shooting saw three men at the bar watching television, perhaps somewhat intoxicated, while the victim played pool. The three men left the bar, then walked back in, and one of the men walked up to the victim and said, in Spanish, "You want to throw blows, you son of a bitch." The man punched the victim two or three times in the stomach. When the victim tried to defend himself, the man pulled out a revolver and fired a round into the floor. The man then fired one or two times at the victim, who was hit in the chest and fell to the floor. The shooter then turned and pointed the revolver at the witness, who grabbed the barrel of the gun and struggled with the shooter. The witness was hit hard on the top of the head. The witness had never seen the shooter before and was unable to identify the shooter in a photo lineup.
The second officer also testified about statements made by the owner of the bar, who had been tending the bar at the time of the shooting. The bar owner's testimony largely matched the witness's, with the added detail that after the shooter struck the witness on the head with the gun, the witness fell to the ground, and the shooter fired at the falling witness. The bar owner was also unable to identify the shooter.
The second officer next testified that, approximately a month after the shooting, he interviewed a man whose "vehicle had been towed by some narcotics officers with regards to an unrelated matter." The officer knew the towed vehicle had been in the vicinity of the residence of a possible suspect in this case. When the officer questioned the vehicle owner about the shooting, the vehicle owner relayed that he heard a man named Richard or Richie, who had just been released after serving a prison sentence for involvement in another shooting, bragging about being responsible for the shooting in this case. The vehicle owner identified defendant in a photo lineup as the person he heard taking responsibility for the shooting.
The second officer also testified that, about four months after the shooting, he interviewed a man in jail in Reno, Nevada on drug-related charges. The inmate had seen a flier indicating the police were seeking information about the shooting at the bar. The inmate told the officer he had information about a shooting in Stockton, and the officer indicated that he would pass along the inmate's information to the district attorney's office. The inmate said he was addicted to heroin and made friends with heroin dealers, one of whom was named Richie or Richard. According to the officer, Richie told the inmate that, approximately three weeks after getting out of prison, Richie had been in a fight in a bar, and, when his opponent began using a pool cue, Richie shot the person.
After the preliminary examination, defendant pled no contest to second degree murder. The transcript from the plea hearing no longer exists, but the minute order indicates the trial court found a factual basis for the plea based on facts recited by the prosecutor. Neither defendant nor his counsel stipulated to the factual basis or made any specific admissions. The court sentenced defendant to 15 years to life in prison.
In 2021, defendant filed a petition for resentencing under what is now section 1172.6 (then section 1170.95). (See Stats. 2022, ch. 58, § 10 [renumbering without substantive change].) The People filed a response, asking the trial court to take judicial notice of the transcript of the preliminary examination. In his reply brief, defendant alleged that he was in a bar with an acquaintance, Jose, who told defendant a man playing pool had insulted him. Defendant encouraged Jose to punch the man, and a fight ensued. Jose then stepped back, pulled a gun from his waistband, and shot the victim.
At the hearing, the trial court advised that it did not see evidence in the preliminary examination transcript that other people present with the shooter were involved in the shooting, so the trial court did not see how defendant could argue he was convicted under an imputed malice doctrine eliminated by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court disregarded defendant's reply brief and the theory outlined therein because it was not part of the preliminary examination transcript.
Defense counsel pointed out that, even looking only at the transcript, the evidence could support joint action in starting the fight, which would support an imputed malice theory of murder if defendant was not the shooter. Defense counsel also argued the trial court was impermissibly prejudging the evidence without holding an evidentiary hearing. The prosecution responded that "based on the records that we currently have, that everything pretty much points to [defendant] being the sole and only shooter in this particular case. And so, as a matter of law, the [c]ourt has sufficient information to deny the petition at this particular point."
The trial court conceded that "it's an extremely low burden at this stage," but concluded, "I don't see anything to support moving forward." Accordingly, the court denied defendant's petition.
Defendant timely appealed the trial court's order.
DISCUSSION
Defendant contends he has made a prima facie showing that he meets the requirements of section 1172.6, entitling him to relief. Section 1172.6 requires the trial court to vacate a murder conviction "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, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3).)
Defendant meets the first two conditions because, when he pled guilty to second degree murder in 1994, California law permitted the People to prove second degree murder without proving express or implied malice under the "natural and probable consequences" doctrine. (CALJIC No. 3.02 (1992 rev.) (5th ed. 1988); see People v. Prettyman (1996) 14 Cal.4th 248, 260-263; cf. former § 188, added by Stats. 1982, ch. 893, § 4, p. 3318 and amended by Stats. 2018, ch. 1015, § 2.) "The generic manner in which murder was charged here did not limit the People to prosecuting [defendant] on any particular theories" because "neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded" and an "accusatory pleading that charges the defendant 'as a principal is sufficient to support a conviction as an aider or abettor.'" (People v. Rivera (2021) 62 Cal.App.5th 217, 233.)
However, the parties dispute the third condition, with the People contending that the record of defendant's conviction, specifically the transcript from his preliminary examination, "plainly shows appellant's status as the actual killer, and as the actual killer, he is ineligible for relief as a matter of law." Defendant in turn argues the trial court improperly weighed the evidence in the preliminary examination transcript to determine he is ineligible for relief as a matter of law.
"At the prima facie stage, a court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [Citation.] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense." (People v. Curiel (2023) 15 Cal.5th 433, 463.) We independently review the trial court's determination because "it is now well settled that the prima facie determination is a question of law." (People v. Flores (2022) 76 Cal.App.5th 974, 991; see People v. Lewis (2021) 11 Cal.5th 952, 972 [at prima facie stage, "trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion' "].) We conclude the trial court erred when it found that hearsay evidence in the preliminary examination transcript refuted, as a matter of law, defendant's allegation that he could not presently be convicted of murder under the amended section 188.
In other contexts, a preliminary examination transcript is considered part of the "record of conviction," (People v. Reed (1996) 13 Cal.4th 217, 223), and we see no reason to depart from that rule in section 1172.6 proceedings. (But see People v. Davenport (2021) 71 Cal.App.5th 476, 481 [concluding trial court erred in considering facts from the preliminary hearing transcript at prima facie stage when defendant did not stipulate to the transcript as a factual basis for his plea].) We need not decide the full extent to which a trial court may use evidence in a preliminary examination transcript because, here, all of the important information that the trial court determined refuted defendant's allegations came from hearsay statements from declarants who did not testify at the preliminary examination. The magistrate admitted these statements pursuant to section 872, subdivision (b). This evidence would not be admissible in the section 1172.6, subdivision (d) evidentiary hearing, unless the evidence is admissible pursuant to another exception to the hearsay rule, and no such exception has been established here. Further, it would be inconsistent with legislative intent to allow hearsay evidence to be considered at the prima facie stage when it is expressly inadmissible at an evidentiary hearing. (§ 1172.6, subd. (d)(3).) We conclude section 1172.6 does not permit the trial court to circumvent the limitations in section 1172.6, subdivision (d)(3) by instead taking judicial notice of the evidence at the prima facie stage. (See People v. Shabazz (2006) 38 Cal.4th 55, 67 [" 'An interpretation that renders related provisions nugatory must be avoided' "]; People v. Flores, supra, 76 Cal.App.5th at p. 988 [reasoning that, if evidence "may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage"].)
The People rely on People v. Pickett (2023) 93 Cal.App.5th 982, review granted October 11, 2023, S281643 (Pickett), but Pickett is distinguishable. In Pickett, the evidence at the defendant's preliminary examination "was adduced from two individuals with personal knowledge of the events." (Id. at p. 985.) Similarly, in People v. Patton (2023) 89 Cal.App.5th 649 (Patton), review granted June 28, 2023, S279670, relied on in Pickett, the evidence adduced at the preliminary examination consisted of a surveillance video and a police officer identifying the defendant from personal knowledge, and the court expressly disregarded any testimony that was admitted pursuant to section 872, subdivision (b). (Patton, at pp. 652-653 & fn. 2.) Here, we need not consider whether the use of non-hearsay evidence from a preliminary examination transcript is proper at the prima facie stage, because only hearsay statements from informants identified defendant as the shooter in this case.
We also note that, unlike in Pickett and Patton, defendant has alleged a specific factual scenario that, if proven, would establish that he can no longer be convicted of murder under current law. (Cf. Pickett, supra, 93 Cal.App.5th at p. 990 [defendant "offered no evidence to weigh, and did not dispute the evidence the district attorney submitted," despite having the opportunity to file a reply brief and to object to the evidence]; Patton, supra, 89 Cal.App.5th at p. 657 [defendant did not offer any theory or facts to demonstrate that he was merely an accomplice].) Specifically, in his reply brief, defendant asserts that he only encouraged an acquaintance to assault the victim and did not kill the victim or encourage the killing, which would not sustain a murder conviction without the natural and probable consequences doctrine. Thus, unlike in Pickett and Patton, defendant has established a factual dispute, which the trial court could not resolve without engaging in factfinding.
Ultimately, we see no basis in the record for establishing, as a matter of law, that defendant acted with express or implied malice, either in killing the victim or aiding and abetting the killing of the victim. (See §§ 187-188, 31.) There are no preclusive jury findings (see Curiel, supra, 15 Cal.5th at pp. 450-460); no indication that defendant's conviction is not eligible for relief (see People v. Davenport, supra, 71 Cal.App.5th at p. 483); and no stipulation or admission by defendant to facts establishing the elements of murder (see People v. Das (2023) 96 Cal.App.5th 954, 962). Rather, determining defendant's eligibility requires factfinding, which requires an evidentiary hearing. Accordingly, the trial court should have issued an order to show cause and permitted the parties to put on evidence.
The People also contend any error by the trial court is harmless, restating their argument about defendant being ineligible for relief as a matter of law. We have already explained why the People have failed to establish defendant is ineligible as a matter of law, but that would not be a proper test for harmless error in this situation. Assuming harmless error analysis applies in this situation (see Cal. Const., art. VI, § 13; Curiel, supra, 15 Cal.5th at p. 465 ["this matter is not governed by principles of harmless error"]), we would apply the test from People v. Watson (1956) 46 Cal.2d 818, 836 and reverse only when," 'after an examination of the entire cause, including the evidence,'" we are of the" 'opinion' that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (Italics added.)
Absent the trial court's impermissible reliance on hearsay evidence contained in the preliminary examination transcript at the prima facie stage, the parties would have the opportunity to put on evidence. The People would have the burden of proving, "beyond a reasonable doubt, that [defendant] is guilty of murder or attempted murder under California law as amended by the changes to Section 188." (§ 1172.6, subd. (d)(3).) Given that the hearsay evidence admitted at the preliminary examination appears inadmissible under section 1172.6, subdivision (d)(3) and no other evidence has yet been admitted, we cannot say the error in relying on such evidence at the prima facie stage was harmless.
DISPOSITION
The order denying defendant's petition for resentencing is reversed. The matter is remanded to the trial court with directions to issue an order to show cause.
We concur: Earl, P. J., Krause, J.
[*] Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.