Opinion
F084984
06-27-2023
THE PEOPLE, Plaintiff and Respondent, v. WADE ALLEN, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. VCF226691. Nathan G. Leedy, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2010, appellant and defendant Wade Allen (appellant) entered into a negotiated disposition and pleaded no contest to multiple felony offenses, including two counts of attempted murder, and admitted he personally inflicted great bodily injury on the two victims of those offenses. He was sentenced to the stipulated aggregate term of 50 years in prison.
In 2022, appellant filed a petition for resentencing pursuant to Penal Code section 1172.6 and alleged he was convicted of the attempted murder offenses based on imputed malice. The trial court appointed counsel, conducted a hearing, and found he was ineligible for resentencing as a matter of law.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition in 2022 pursuant to section 1170.95. As will be discussed below, the statute was substantively amended effective January 1, 2022, and renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current number throughout this opinion, except where otherwise indicated.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted his own letter brief and requested this court address certain issues.
We will address appellant's contentions and affirm.
FACTS The following testimony was introduced at appellant's preliminary hearing.
Given appellant's plea in this case, the following facts are summarized from the preliminary hearing transcript to place appellant's arguments in context, and not to resolve whether appellant's petition stated a prima facie case for relief. As will be discussed below, section 1172.6, subdivision (d)(3) states that as to evidentiary hearings, "hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (§ 1172.6, subd. (d)(3).)
Visalia Police Officer Shane Logan testified he responded to the Holiday Inn around 2:30 a.m. on September 4, 2009. Logan found L.H. in a room behind the front desk, lying on the floor behind a desk. She had multiple stab wounds to the right side of her head, right wrist, neck, and back. Logan testified that L.H. was able to describe the suspect and identify what hotel room the suspect had been staying in. L.H. told Officer Logan that she could not feel the right side of her body, she believed she was dying, and asked Logan to tell her children that she loved them. Logan immediately called for emergency personnel to respond.
The officers' investigation revealed appellant had been staying in the room identified by L.H. Appellant was found in the hotel's parking lot and taken into custody. There was blood on his shoes and clothing. In his pocket, appellant had the keys to the hotel room identified by L.H. A knife was found in a rental car in the hotel's parking lot; the car was not connected to appellant.
Officer Robert Gibson testified that later, on September 4, 2009, he interviewed J.V. at Kaweah Delta Hospital. J.V. reported he was a security guard employed by Holiday Inn. Around 2:00 a.m., J.V. saw appellant and a female arguing in the hotel's parking lot. Appellant approached J.V., and J.V. asked if everything was okay. Appellant said he was looking for someone, kept walking toward J.V., and then said he was looking for J.V. J.V. stated appellant was holding a knife in his right hand, and the blade was open. J.V. told appellant to calm down, and appellant put the knife away. J.V. backed away from appellant, but appellant followed him. Appellant asked J.V. why he was so scared. J.V. reached for his radio and heard a call from the female employee who was working at the hotel's front desk. Appellant told J.V. that he would kill him if he
"If such 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" in determining whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted.) answered his radio. Appellant pulled out the knife again, took J.V.'s radio away from him, and slashed at J.V. with the knife, inflicting injuries on him. J.V. ran away, used his pass key to enter an empty hotel room, and secured the door. He tried to call the woman at the front desk, but she did not answer; he then called the police. J.V. suffered three separate stabbing wounds when appellant slashed at him with the knife and required treatment and staples to close the wounds.
Detective Curtis Brown testified that he contacted L.H. at Community Regional Medical Center in Fresno at 4:00 p.m. on September 4, 2009. L.H. reported she had been working in the hotel's back office when appellant gained access to the room, and he repeatedly kicked and stabbed her.
Neither L.H. nor J.V. testified at the preliminary hearing.
PROCEDURAL BACKGROUND
The Charges
On May 20, 2010, a first amended information was filed in the Superior Court of Tulare County charging appellant with committing the following offenses on September 4, 2009:
Count 1, attempted murder of L.H. (§§ 664, 187, subd. (a)), with special allegations that it was premeditated, deliberate, and willful (§ 664, subd. (a)); that in the commission of the offense, appellant personally inflicted great bodily injury upon L.H., not an accomplice, that caused L.H. to become comatose due to brain injury and suffer paralysis (§ 12022.7, subd. (b)); and that in the commission of the offense, appellant personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1));
Count 2, attempted murder of J.V., with special allegations that it was premeditated, deliberate, and willful; that in the commission of the offense, appellant personally inflicted great bodily injury upon J.V., not an accomplice (§ 12022.7, subd. (a)); and in the commission of the offense, appellant personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1));
Count 3, assault with a deadly weapon, that appellant willfully, unlawfully, and personally committed an assault on L.H. with a deadly weapon, a knife, and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); with the special allegation that in the commission of the offense, appellant personally inflicted great bodily injury on L.H., not an accomplice, that caused L.H. to become comatose due to brain injury and suffer paralysis (§ 12022.7, subd. (b));
Count 4, assault with a deadly weapon, that appellant willfully, unlawfully, and personally committed an assault on J.V. with a deadly weapon, a knife, and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with the special allegation that appellant personally inflicted great bodily injury on J.V., not an accomplice (§ 12022.7, subd. (a));
Count 5, second degree commercial burglary of Holiday Inn (§ 459); Count 6, second degree burglary of a vehicle (§ 459);
Count 7, carrying a dirk and a dagger concealed upon his person (§ 12020, subd. (a)(1)), with prior conviction allegations.
The amended information did not charge or allege that any other person committed or was involved in the charged offenses.
Plea Hearing
On May 20, 2010, the court convened a change-of-plea hearing. Appellant was present with his attorney. The parties advised the court that they had reached a plea agreement as to the charges against appellant in the first amended information. Appellant withdrew his pleas of not guilty and not guilty by reason of insanity. As part of the agreement, appellant waived all appellate rights and any sentencing limitations under section 654, agreed to an aggregate term of 50 years in prison based on stipulated sentences as to each count, and he would admit the prior conviction allegations.
Thereafter, the court advised appellant of his constitutional rights, and appellant stated he understood and waived his rights.
Appellant pleaded no contest to the charges in the amended information of counts 1 and 2, attempted murder, and admitted the great bodily injury and deadly weapon enhancements (but not the premeditation allegation), the prior serious felony enhancements, and the prior strike conviction; counts 3 and 4, assault with a deadly weapon, and admitted the great bodily injury and deadly weapon enhancements; and counts 5, 6, and 7.
Sentence
On June 17, 2010, the court held the sentencing hearing. L.H.'s family members gave statements that L.H. had been stabbed over 20 times and required 98 staples, she suffered a fractured skull, her right hand was badly damaged, and her right side was paralyzed as a result of a spinal cord injury. L.H. had to learn how to walk again, she could not live independently, she would be handicapped for the rest of her life, and she regularly suffered panic attacks and nightmares as a result of the attack.
Defense counsel stated the attacks were the result of appellant's "drug-induced psychosis," he was "the victim of his own actions," and he was "terribly sorry" for what happened. Appellant addressed the court and said he was deeply sorry, and he hoped "50 years [of] me going away gives you some kind of justification."
The court imposed an aggregate sentence of 50 years consistent with the plea agreement. Appellant waived his appellate rights as part of his plea and did not file a direct appeal.
SECTION 1172.6 PETITION FOR RESENTENCING
On April 6, 2022, appellant filed a petition, in pro. per., for resentencing of his attempted murder convictions and requested appointment of counsel.
Appellant's supporting declaration consisted of a preprinted form where he checked boxes that stated (1) a complaint, information, or indictment was filed against him 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 the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
On May 19, 2022, the court appointed counsel to represent appellant.
The People's Opposition
On July 22, 2022, the prosecution filed opposition and argued appellant was ineligible for resentencing as a matter of law because he was convicted of the two counts of attempted murder as the actual perpetrator, and the court could rely on the plea transcript to deny the petition because appellant admitted he was the actual perpetrator and personally inflicted great bodily injury on the two victims in the commission of the attempted murders.
Appellant's Reply
On August 12, 2022, appellant's counsel filed a reply to the opposition, and argued the court could not rely on the preliminary hearing transcript to find the petition did not state a prima facie case for relief.
The Court's Hearing
On September 14, 2022, the court held a hearing on appellant's petition. Appellant was present with his appointed counsel.
The court stated it had reviewed the preliminary hearing transcript, and the evidence showed that appellant was the actual perpetrator who committed all the offenses, and there was no possible theory of imputed malice that would have been available to the prosecution.
Appellant's counsel objected to the court's reliance on the preliminary hearing transcript and argued it could not make any evidentiary determinations when reviewing the petition for a prima facie showing. The court asked whether it could consider the preliminary hearing transcript if it ordered an evidentiary hearing. Appellant's counsel replied he was not sure. The prosecutor replied that the court could consider the preliminary hearing transcript to determine if a prima facie showing was made.
The prosecutor further argued that at the plea hearing, appellant admitted the enhancements that he personally used a weapon in the commission of counts 1 and 2, attempted murder, and appellant's admissions were sufficient to show he was the actual perpetrator and ineligible for resentencing. Appellant's counsel replied that appellant could have used a weapon but not acted as the actual perpetrator.
The court denied appellant's petition and found he failed to state a prima facie case for resentencing:
"The situation here is that there was a preliminary hearing conducted. One of the victims testified that a man came in, approached him, swung a knife at him. This person was identified as [appellant].
"The [appellant] was eventually located alone. There was no hint anywhere in this testimony that anybody other than a single man, later identified as the [appellant], was involved. This person attacked two different people. Person was identified as the [appellant]. That was the state of the preliminary hearing.
"After that hearing, the [appellant] eventually changed his plea to admit the charge of attempted murder and assault with a deadly weapon and infliction of great bodily injury and use of a deadly weapon as to each of the two victims in the case.
"As I've already stated, I don't see how in these records ... there was any possibility of the prosecution pursuing or succeeding on a theory of imputed malice."
On September 15, 2022, appellant filed a timely notice of appeal.
DISCUSSION
I. Delgadillo/Wende
In Delgadillo, the court held a Wende analysis is not applicable to a trial court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.)
"If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion...." (Delgadillo, supra, 14 Cal.5th at p. 232.)
As noted above, appellate counsel filed a brief with this court pursuant to Delgadillo and Wende. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court sent appellant an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days. On May 3, 2023, appellant filed a supplemental brief with this court in response to our Delgadillo order. We thus turn to his arguments.
II. Section 1172.6
"Effective January 1, 2019, Senate Bill ... 1437 ... amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," initially codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted; People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The initial version of former section 1170.95 permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill ... 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis, supra, 11 Cal.5th 952, and also" '[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; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 715, fn. 3.)
Section 1172.6, subdivision (a) thus states:
"(a) A person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter 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, 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).)
While not applicable herein, section 189 was amended to allow for felonymurder liability where the victim is a peace officer. (§ 189, subd. (f).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).)
After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id. at subd. (c).)
"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. 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." (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) 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.' [Citations.] '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." '" (Ibid.)
If an order to show cause is issued, "the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence...." (§ 1172.6, subd. (d)(1).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner 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. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens.." (§ 1172.6, subd. (d)(3).)
III. The Court's Order Denying the Petition
We first note that the court complied with section 1172.6 by appointing counsel, ordering further briefing, conducting a hearing on the petition, and giving reasons for finding appellant's petition did not state a prima facie case.
In his supplemental brief, appellant contends the court's finding that his petition did not state a prima facie case was "corrupted by impermissible factfinding" because the court improperly relied on hearsay in the preliminary hearing transcript, since neither of the victims testified.
Section 1172.6 was amended in October 2022, after the hearing on appellant's petition, with the amendments effective January 1, 2023. It now clarifies that at evidentiary hearings, "hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (§ 1172.6, subd. (d)(3).) "If such 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" in determining whether he made a prima facie case for relief. (People v. Flores, supra, 76 Cal.App.5th at p. 988, fn. omitted.)
The two victims of the attempted murder charges did not testify at the preliminary hearing and, instead, the prosecution introduced the hearsay testimony of the officers who investigated the assaults at the hotel. The trial court thus improperly relied on the hearsay evidence in the preliminary hearing transcript to make factual findings that appellant was the actual perpetrator, and his petition did not state a prima facie case for relief.
At an evidentiary hearing, L.H.'s hearsay statements to Officer Logan, when he initially encountered her on the office floor shortly after she had been repeatedly stabbed, when she was bleeding from multiple stab wounds, would likely be admissible as spontaneous declarations pursuant to Evidence Code section 1240, based on Logan's description of her condition and mental state when he initially found her. (See, e.g., People v. Thomas (2011) 51 Cal.4th 449, 495-497 [officer responded to call, found victim with slashed throat, asked what happened, and victim identified the suspect who attacked him; victim's responses were admissible as spontaneous declarations and were not testimonial].)
IV. The Court's Error Was Not Prejudicial
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent the error, his petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)
In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction that allows the court "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that ... culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, supra, 11 Cal.5th at pp. 971-972 &fn. 6.) As already explained," 'a court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] '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.)
We find the court's error was not prejudicial. Appellant's petition alleged the amended information allowed the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine, and he could not be presently convicted of attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Perez (2010) 50 Cal.4th 222, 224.)
The amended information alleged appellant committed the offenses of attempted murder on L.H. and J.V., on September 4, 2009; it did not charge or allege that anyone else was involved in the commission of the offenses. Appellant entered into a negotiated disposition and pleaded no contest to counts 1 and 2, the attempted murders of L.H. and J.V., and admitted that in the commission of both offenses, he inflicted great bodily injury upon the victims, who were not accomplices. More particularly, as to count 1, he admitted the allegation under section 12022.7, subdivision (b), that he inflicted great bodily injury to L.H. in the commission of the offense that caused her to become comatose due to brain injury and suffer paralysis; and as to count 2, he similarly admitted that he personally inflicted great bodily injury upon J.V. in the commission of the offense within the meaning of subdivision (a) of section 12022.7.
Section 12022.7, subdivision (a) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice 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 three years." (Italics added.) Subdivision (b) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...." (Italics added.)
As to section 12022.7,"' "the meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s] something (damaging or painful) to be endured' [citation]." [Citation.]' [Citation.] In enacting section 12022.7, 'the Legislature intended to impose an additional penalty for causing [great bodily injury] only on those principals who perform the act that directly inflicts the injury ..' [Citation.] '[T]he defendant must directly cause an injury, not just proximately cause it. [Citation.]' [Citation.] Accordingly, 'one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7.'" (People v. Slough (2017) 11 Cal.App.5th 419, 423, italics added; People v. Cross (2008) 45 Cal.4th 58, 68; People v. Harden, supra, 81 Cal.App.5th at pp. 55-56.)
The nature of the charges in the amended information, and appellant's no contest pleas and admissions to the special allegations, necessarily establishes that appellant was the actual perpetrator who committed the attempted murders upon L.H. and J.V., and personally inflicted great bodily injury upon each of them within the meaning of section 12077.7, subdivisions (a) and (b), in the commission of those offenses. The record of conviction establishes the prosecution would not have been required to proceed under any theories of imputed malice.
Appellant was thus ineligible for resentencing as a matter of law, and the trial court's erroneous reliance on the preliminary hearing transcript to determine the petition failed to state a prima facie case was not prejudicial.
Appellant's Other Contentions
Also in his supplemental brief, appellant raises issues about the investigation and pretrial proceedings that occurred prior to his plea agreement. Appellant claims toxicology tests showed he was intoxicated at the time of the crimes, a specialist determined he was "experiencing a drug psychosis" and "false reality," and that meant he lacked the intent to kill at the time of the crimes. While appellant admits he did not "follow through with the insanity plea," he asserts these contentions are admissible as part of his petition, his mental health must be considered "under criminal justice reform," and the entirety of the matter must be remanded for a new trial.
Section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.) "The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Appellant cannot relitigate alleged pretrial issues in light of his decision to withdraw his pleas of not guilty and not guilty by reason of insanity and enter into the negotiated disposition to plead no contest to the charges in this case.
DISPOSITION
The court's order of September 14, 2022, denying defendant's petition for resentencing, is affirmed.
[*] Before Levy, Acting P. J., Poochigian, J. and Detjen, J.