Opinion
B324569
11-17-2023
THE PEOPLE, Plaintiff and Respondent, v. GEORGE FRUTOS ARROYO, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA094589, Tomson T. Ong, Judge. Reversed with directions.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.
WEINGART, J.
As the parties agree and we concur in the relief requested in this appeal, we decide this matter by memorandum disposition. (Cal. Stds. Jud. Admin., § 8.1.)
On September 22, 2015, pursuant to a plea agreement, defendant George Frutos Arroyo pleaded no contest to one count each of attempted murder (Pen. Code, §§ 187, subd. (a), 664), mayhem (§ 203), and assault with a deadly weapon (§ 245, subd. (a)(1)). Arroyo also admitted that a principal used a firearm in connection with the attempted murder. (§ 12022.53, subd. (b).) The plea agreement contained other provisions not relevant to this appeal. On November 19, 2015, Arroyo was sentenced to state prison for an aggregate term of 30 years and four months.
All unspecified statutory references are to the Penal Code.
On June 30, 2022, Arroyo filed a petition for resentencing under section 1172.6 and requested appointment of counsel. To satisfy section 1172.6, subdivision (b)(1)(A), Arroyo declared that a complaint was filed against him that allowed his prosecution for attempted murder to proceed under the natural and probable consequences doctrine, that he was convicted of attempted murder, and that he could not presently be convicted of that crime under amended sections 188 and 189.
On July 19, 2022, the superior court denied the petition without appointing counsel for Arroyo, finding that he was not entitled to relief as a matter of law because he "was not convicted of murder, attempted murder or manslaughter." Arroyo filed a timely notice of appeal.
As Arroyo was convicted of attempted murder, the court wrongly concluded otherwise. The court further erred in declining to appoint counsel for Arroyo, as "the statutory language and legislative intent of section [1172.6] make clear that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition." (People v. Lewis (2021) 11 Cal.5th 952, 957.) We evaluate such errors for prejudice under the test of People v. Watson (1956) 46 Cal.2d 818. (People v. Lewis, supra, at pp. 957-958.) To obtain an appellate reversal, "a petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."' [Citation.]" (Id. at p. 974.)
The Attorney General concedes, and we agree, that it is reasonably probable Arroyo could have obtained a more favorable outcome if the court had appointed counsel for him. The appellate record does not establish whether Arroyo admitted liability for attempted murder in a manner that would make him ineligible for section 1172.6 relief as a matter of law, or whether he could have been prosecuted under the natural and probable consequences doctrine had the case gone to trial. Arroyo did plead no contest to a principal using a firearm under section 12022.53, subdivision (b) in connection with the attempted murder. The mere existence of such an enhancement, however, does not preclude a petitioner from obtaining relief under section 1172.6. (People v. Offley (2020) 48 Cal.App.5th 588, 592.) Without an examination of the full record of conviction, which the parties did not have the opportunity to assemble, and which therefore is not part of the appellate record, we cannot conclude Arroyo is ineligible for relief as a matter of law. We thus reverse and remand, as the most appropriate place to develop and examine the record of conviction is in the superior court.
"Reasonably probable" does not mean more likely than not but a reasonable chance, more than an abstract possibility. (People v. Soto (2022) 79 Cal.App.5th 602, 610.) Thus, although the Attorney General concedes a reasonable probability exists the court would not have summarily denied Arroyo's petition, it does not concede that an order to show cause should issue.
DISPOSITION
We reverse the order denying Arroyo's resentencing petition with directions to the trial court to appoint counsel. The trial court shall thereafter hold a hearing pursuant to section 1172.6, subdivision (c) to determine whether Arroyo has made a prima facie showing of eligibility for relief.
We concur: ROTHSCHILD, P. J. BENDIX, J.