Opinion
B318266
08-08-2023
THE PEOPLE, Plaintiff and Respondent, v. EDDIE ASHLEY, Defendant and Appellant.
Benjamin Owens, 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 David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. MA037159, Robert G. Chu, Judge. Reversed and remanded with directions.
Benjamin Owens, 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 David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
In 2010, defendant Eddie Ashley pleaded no contest to a count of attempted murder. In 2022, he filed a petition for resentencing under Penal Code former section 1170.95 (now section 1172.6), a statute which authorizes relief for, among others, persons convicted of attempted murder under the natural and probable consequences doctrine. The trial court denied his petition without appointing counsel for him and ordering briefing. He contends, the Attorney General concedes, and we agree the trial court prejudicially erred. Based on the record of conviction before us, it is reasonably probable that if Ashley had been afforded assistance of counsel, the trial court would not have summarily denied his petition without an evidentiary hearing. We reverse the order denying the petition and remand the matter for further proceedings under section 1172.6.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In the Discussion section of this opinion, we refer to the statute by its current designation, section 1172.6. Undesignated statutory references are to the Penal Code.
BACKGROUND
I. Charges, No Contest Plea, and Direct Appeal
An information, dated February 9, 2009, charged Ashley with three counts of willful, deliberate, and premeditated attempted murder (counts 1-3) and one count of shooting at an occupied motor vehicle (count 4). As to count 1, which related to the shooting of Andrew Hayes on November 11, 2006, the information alleged a gang enhancement (§ 186.22, subd. (b)) and that a principal personally and intentionally discharged a firearm, proximately causing great bodily injury to Hayes (§ 12022.53, subds. (b)-(e)(1)). Counts 2 through 4 related to an alleged shooting on December 8, 2006. The information listed the victim in count 2 as Hayes and the victim in count 3 as Alexa Milla. As to counts 2 through 4, the information alleged Ashley personally and intentionally discharged a firearm (§ 12022.53, subds. (b)-(c)).
On February 4, 2010, Ashley waived his constitutional rights, withdrew his not guilty plea, and pleaded no contest to count 1 (the attempted murder of Hayes on November 11, 2006). As to count 1, Ashley admitted a gang enhancement allegation under section 18622, subdivision (b)(1)(C), and that he personally inflicted great bodily injury upon the victim during the attempted murder, within the meaning of section 120227, subdivision (a) The prosecution dismissed the allegation that the attempted murder was willful, deliberate, and premeditated The trial court granted the prosecution's motion to amend the information to add count 5 for assault with a semiautomatic firearm (§ 245, subd (b)) The amended count related to the December 8, 2006 shooting Ashley pleaded no contest to count 5 Defense counsel indicated that he "join[ed] in the waivers, concur[red] in the plea and admissions[,] and stipulate[d] to a factual basis based on the police reports and the information, pursuant to People v. West and People v. Homes." Under the terms of the plea negotiation, the trial court sentenced Ashley to a total term of 24 years in prison on counts 1 and 5: the upper term of nine years for the attempted murder (count 1), plus 10 years for the gang enhancement and three years for the great bodily injury enhancement; and a consecutive term of two years (one-third the middle term) for the assault with a semiautomatic firearm (count 5).
Ashley sought and obtained a certificate of probable cause and appealed from the judgment of his convictions. He argued the trial court erred in denying his Marsden and Faretta motions. This court affirmed the judgment. (People v. Ashley (Oct. 26, 2011, B228295) [nonpub. Opn.].)
People v. Marsden (1970) 2 Cal.3d 118; Faretta v. California (1975) 422 U.S. 806.
II. Ashley's Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 "to amend 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." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &189, subd. (e).) Senate Bill No. 1437 amended sections 188 (defining malice) and 189 (felony murder) and added section 1170.95, now renumbered section 1172.6, which established a procedure for vacating murder convictions and resentencing defendants who could no longer be convicted of murder in light of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.) On October 5, 2021, the Governor signed into law Senate Bill No. 775 which amended then-section 1170.95 to, among other things, authorize relief for persons convicted of attempted murder under the natural and probable consequences doctrine. (Sen. Bill No. 775 (2020-2021 Reg. Sess.); Stats. 2021, ch. 551, § 2.) The amendment became effective January 1, 2022.
On January 21, 2022, Ashley, as a self-represented litigant, filed a petition for resentencing under former section 1170.95, now section 1172.6. He asserted he was not the actual shooter in the attempted murder of which he was convicted, and he sought relief under former section 1170.95. He requested the appointment of counsel and a hearing on his petition. The statement of facts in the petition is identical to the following account of the charged offenses set forth in Ashley's probation report (which was reportedly taken from a law enforcement investigation report):
Ashley did not use the preprinted form with check boxes for filing a petition under former section 1170.95.
"On November 11, 2006, sheriff deputies responded to a call of an assault with a deadly weapon. At that location, they found the victim, Andrew Hayes, lying in front of an apartment door; he had been shot. The owner of the apartment told the deputies that she had heard some gunshots. The victim knocked on her apartment door after he had been shot. She laid him down and called police. (The victim was airlifted to Holy Cross Medical Center for emergency surgery. He suffered a gun shot to his hand and abdomen.) The victim later identified the co-defendant [Raymond Thompson] in a photo line-up as the shooter.
A felony complaint for an arrest warrant, filed in this case on December 27, 2006, charged Ashley and Raymond Thompson with offenses arising from the November 11 and December 8, 2006 shootings. The February 9, 2009 information referenced above, however, charged Ashley alone with the offenses in this case.
"On December 8, 2006, sheriff deputies responded to [] a shooting at a vehicle. At that location, they made contact with the victims, Alexa Mill[a] and Andrew Hayes. Victim Milla reported that she was the driver of her vehicle and her boyfriend (victim Hayes) was the passenger. The defendant [Ashley] walked up to her vehicle, pulled out a gun, and fired a shot at them. She immediately drove away. Victim Hayes reported that the defendant used the same gun that his brother (co-defendant Raymond Thompson) used to shoot him the previous month...."
Our opinion in Ashley's direct appeal states that, according to the preliminary hearing testimony of a detective who was recounting an interview with Hayes, during an altercation between Thompson and Hayes, Ashley handed Thompson the gun that Thompson used to shoot Hayes on November 11, 2006. The preliminary hearing transcript is not in the record before us, and we note that Ashley did not stipulate to the preliminary hearing testimony as a factual basis for his plea. We include this statement from the appellate opinion to provide context regarding Ashley's presence during the November 11, 2006 shooting. The factual account of the shootings is not material to our legal analysis.
On January 27, 2022, the trial court issued an order denying Ashley's petition for resentencing under former section 1170.95. The order states, in pertinent part: "The Court has previously denied Petitioner's request for resentencing. After reviewing Petitioner's current Motion for Resentencing which was received on January 21, 2022, the court finds no legal basis to grant the motion." We note that this was Ashley's first petition for resentencing under former section 1170.95, as the parties to this appeal acknowledge. He had filed a prior motion to correct his sentence and a prior motion for resentencing under different statutes, and the trial court denied those motions.
DISCUSSION
Ashley contends, the Attorney General concedes, and we agree the trial court prejudicially erred in denying Ashley's petition for resentencing without appointing counsel for him, for the reasons explained below.
I. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (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."
Senate Bill No. 1437 added the following provision to section 188: "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).) The effect of this amendment was to "eliminate[ ] natural and probable consequences liability for first and second degree murder." (People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) As set forth above, Senate Bill No. 775 subsequently amended former section 1170.95, now section 1172.6, to authorize relief for persons convicted of attempted murder under the natural and probable consequences doctrine.
When a defendant files a facially sufficient petition under section 1172.6, the trial court must appoint counsel to represent the petitioner, allow briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme Court explained: "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) 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."' [Citations.] '[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." '" (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)
If the trial court issues an order to show cause, the final step in the process is a hearing to determine if the petitioner is entitled to relief, where the trial court must vacate the petitioner's murder or attempted murder conviction and resentence him or her on any remaining counts unless the prosecution can "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." (§ 1172.6, subd. (d)(3).)
When a trial court errs in declining to appoint counsel for a defendant in connection with a section 1172.6 petition for resentencing, we review for harmless error under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, which requires a defendant to" 'demonstrate there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.'" (Lewis, supra, 11 Cal.5th at p. 974.) "More specifically, a [defendant] '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." '" (Ibid.)
II. Analysis
The trial court denied Ashley's petition for resentencing, stating, in pertinent part, "the court finds no legal basis to grant the motion." The court erred in denying the petition on the merits without appointing counsel to represent Ashley, allowing briefing from both sides, and holding a hearing to determine whether Ashley made a prima facie showing for relief. (See § 1172.6, subds. (b)-(c).) The Attorney General concedes the error.
If the trial court found Ashley did not file a facially sufficient petition, and the court could not "readily ascertain[]" any required information missing from the petition, the court could "deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information." (See § 1172.6, subd. (b)(2).) That did not occur here.
The Attorney General also concedes, and we agree, that the error was prejudicial. There is nothing in the record of conviction before us conclusively refuting that Ashley was convicted of attempted murder under the natural and probable consequences doctrine, and that he could not now be convicted of that crime because of changes to sections 188 and 189, effective January 1, 2019. (§ 1172.6, subd. (a).) The district attorney did not allege in the felony complaint or the information that Ashley was the shooter in the November 11, 2006 attempted murder to which he pleaded no contest, and Ashley did not admit to being the shooter during his plea. The prosecution could have proceeded under the theory that Ashley aided and abetted an assault with a firearm, and attempted murder was a natural and probable consequence of that target offense. There is nothing in the record establishing Ashley directly aided and abetted an attempted murder with intent to kill (a still-valid theory unaffected by the amendments to sections 188 and 189). As the Attorney General acknowledges, Ashley's admission during his plea that he personally inflicted great bodily injury upon Hayes does not establish as a matter of law that Ashley is ineligible for relief under section 1172.6. The record suggests Hayes was wounded by a gunshot, but the record does not establish Ashley fired that shot.
Based on this record of conviction, the trial court's error in declining to appoint counsel for Ashley was prejudicial. It is reasonably probable that if Ashley had been afforded assistance of counsel, the trial court would not have summarily denied his petition without an evidentiary hearing. (See Lewis, supra, 11 Cal.5th at p. 974.) Accordingly, we reverse the order denying the petition and remand the matter for further proceedings under section 1172.6, beginning with the appointment of counsel for Ashley under subdivision (b), and briefing and a prima facie hearing under subdivision (c). We express no opinion at this juncture as to whether the trial court should issue an order to show cause under subdivision (c) and hold an evidentiary hearing under subdivision (d).
DISPOSITION
The January 27, 2022 order denying the petition for resentencing is reversed and the matter is remanded for further proceedings under section 1172.6, including the appointment of counsel for Ashley under subdivision (b), and briefing and a prima facie hearing under subdivision (c).
We concur: ROTHSCHILD, P. J., WEINGART, J.