Opinion
F085624
09-12-2023
THE PEOPLE, Plaintiff and Respondent, v. TORRIAN TERRELL AYTMAN, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin Doering, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. VCF268356. Nathan G. Leedy, Judge.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant.
Ron Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Erin Doering, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant and defendant Torrian Terrell Aytman (appellant) was charged with murder with a criminal street gang special circumstance. In 2014, he entered a plea to voluntary manslaughter and was sentenced to 20 years. In 2016, this court affirmed the judgment on direct appeal. (People v. Aytman (Apr. 11, 2016, F069660) [nonpub. opn.].)
In 2022, appellant filed a petition for resentencing of his voluntary manslaughter conviction pursuant to Penal Code section 1172.6. The trial court relied on the preliminary hearing transcript and this court's opinion from appellant's direct appeal, found he was the actual shooter, and held he failed to make a prima facie case for resentencing.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition in 2022 under former section 1170.95, which was renumbered as section 1172.6 without substantive change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 714.) As such, we refer to the subject statute by its current number throughout this opinion unless otherwise indicated.
On appeal, appellant argues the trial court erroneously made factual findings from the preliminary hearing transcript and prior appellate opinion when it found his petition failed to state a prima facie case. Appellant states the court should have issued an order to show cause (OSC) and conducted an evidentiary hearing. The People assert the prior appellate opinion and preliminary hearing transcript were part of the record of conviction, and showed appellant was the actual shooter and was ineligible as a matter of law.
We find the court erroneously relied on hearsay statements in the preliminary hearing transcript to find appellant failed to make a prima facie case, the error was prejudicial, and remand for issuance of an OSC and an evidentiary hearing.
The following factual statement is from this court's nonpublished opinion in People v. Aytman, supra, F069660 that affirmed appellant's conviction on direct appeal. The prosecution attached a copy of this opinion in support of its opposition to appellant's petition for resentencing. In addition, after notice to the parties and without objection, we have taken judicial notice of this court's own records from appellant's direct appeal. (Evid. Code, §§ 450, 452, subd. (d), 459.) As discussed further below, this court's factual statement in the direct appeal is based upon the preliminary hearing evidence. We have recited the factual statement from appellant's direct appeal for the limited purpose of placing his current appellate arguments in context.
"Shortly after midnight on July 30, 2011, Tulare [County] Police Officer Misael Aguayo responded to the location of a shooting and found Orlandis Perkins lying on the ground with several gunshot wounds including one to the left side of his head, one to his abdomen, and one to his back. Perkins was transported to the hospital where he was pronounced dead.
"At approximately 1:00 a.m. [Tulare County Police] Officer Jess Guzman interviewed N.J. who told her that she had been at a party at an apartment earlier that night that was attended by members of one gang. At approximately 12:00 a.m. she saw Perkins, who was a member of a rival gang, enter the apartment, look around, and leave. Later, N.J. went outside and saw [appellant], who was a member of the gang that was at the party, walking around and 'mugging' two members of the rival gang. As [appellant] walked away, N.J. saw Perkins run from behind her towards [appellant]. She then saw Perkins lunge towards [appellant] and heard people telling [appellant] to shoot him. [Appellant] responded by turning around and firing a shot at Perkins. As N.J. ran for cover, she looked back and saw Perkins fall to the ground and [appellant] shoot him two or three more times before running away. At approximately 5:00 a.m., N.J. picked [appellant] out of a photo lineup as the man she saw shoot Perkins.
"Further investigation determined that when Perkins went into the apartment he punched a rival gang member and yelled out the name of his gang and afterwards there was an exchange of words and gang signs between members of the two gangs. The investigation also determined that Cleo Green, the leader of the gang in the apartment, was the one yelling for [appellant] to shoot Perkins."
PROCEDURAL BACKGROUND
On May 31, 2012, a felony complaint was filed in the Superior Court of Tulare County charging appellant with count 1, murder, with firearm and gang enhancements, and count 2, street terrorism.
The Preliminary Hearing
On June 3, 2013, the court conducted the preliminary hearing. The prosecution's only witnesses were officers from the Tulare County Police Department who testified about their investigation: Aguayo, Guzman, Detective Brian Haney, and Detective Tony Espinosa.
Guzman testified about the statements from N.J., the witness who identified appellant as the shooter and identified him from a photographic lineup. N.J. did not appear at the preliminary hearing.
Haney testified he arrested appellant, advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and conducted an interview. Haney testified appellant said he was associated with a gang, he was at the party, he heard gunshots, and that was all he knew.
The Information
On June 14, 2013, an information was filed that charged appellant with count 1, murder (§ 187, subd. (a)), with a special circumstance that appellant intentionally killed the victim while an active participant in a criminal street gang, and the murder was carried out to benefit a criminal street gang (§ 190.2, subd. (a)(22)).
Also as to count 1, it was alleged that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury and death (§ 12022.53, subd. (d)) and he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(5), (b)(1)(C)). Appellant was also charged with count 2, street terrorism (§ 186.22, subd. (a)).
Plea and Sentence
On February 24, 2014, the trial court convened the scheduled first day of trial, and the parties announced appellant would enter a plea.
Appellant pleaded no contest to an amended count 1, voluntary manslaughter (§ 192, subd. (a)), admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)), and also admitted the enhancement that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)(1)).
The trial court stated it had reviewed the preliminary hearing transcript, the information, and had "numerous discussions with counsel," and on that basis, it found a factual basis for appellant's plea.
The trial court dismissed the remaining charges and allegations. The court did not give an indicated sentence, but stated that appellant faced a possible aggregate term of either 16, 20, or 31 years.
On May 5, 2014, the trial court sentenced appellant to 20 years in prison, based on the midterm of six years for voluntary manslaughter, and consecutive terms of 10 years for the gang enhancement and four years for the firearm enhancement.
Direct Appeal
In the direct appeal from the judgment, appellate counsel filed a brief which requested this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant did not respond to this court's invitation to submit additional briefing. On April 11, 2016, this court affirmed the judgment. (People v. Aytman, supra, F069660.)
In 2019, appellant filed a motion to strike the term imposed for the section 12022.5, subdivision (a) firearm enhancement, based on amendments enacted by Senate Bill No. 620 (2017-2018 Reg. Sess.). At the hearing on the motion, the trial court acknowledged it had discretion to dismiss the firearm enhancement, but denied the motion because "the sentence that [appellant] received previously is appropriate based on the conduct of the case." In 2021, appellant moved for a hearing to preserve evidence for a future youthful offender parole hearing. On September 2, 2021, the court granted the motion. On October 29, 2021, the court took the matter off calendar at the request of appellant's counsel, who stated it would be returned to calendar once they were ready to introduce evidence.
PETITION FOR RESENTENCING
On August 3, 2022, appellant filed a petition for resentencing under section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed 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) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or manslaughter; and (3) he could not presently be convicted of murder or attempted murder because of changes made to section 188 and section 189, effective January 1, 2019.
The trial court appointed the public defender's office to represent appellant.
The People's Opposition
On August 12, 2022, the prosecution filed an opposition, with this court's opinion in appellant's direct appeal as a supporting exhibit. The prosecution argued the factual statement in the direct appeal opinion showed appellant was convicted as the actual perpetrator of voluntary manslaughter.
Appellant's Reply
On September 21, 2022, appellant filed a reply to the opposition, and argued the trial court could not rely on the opinion from the direct appeal to make factual findings as to whether his petition stated a prima facie case.
THE COURT'S HEARING
On January 18, 2023, the court convened the hearing on appellant's petition for resentencing, and stated it had reviewed the preliminary hearing transcript, this court's opinion that affirmed the judgment in appellant's direct appeal, and the pleadings filed as to appellant's petition.
Appellant's counsel argued the court could not make factual findings from the preliminary hearing transcript or the appellate opinion to find the petition did not state a prima facie case. The prosecutor replied the factual statement in the appellate opinion showed appellant was the shooter, appellant admitted the enhancement that he personally discharged a firearm, and he was ineligible for resentencing.
The Court's Ruling
The court denied the petition, stating:
"At this stage of the proceedings, the Lewis case says I can look at the record of conviction. I'm not supposed to weigh evidence or make credibility determinations, but what I have here is essentially a boilerplate petition filed by [appellant]. It checks four boxes that essentially restate the code and assert that he's eligible for relief.
People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
"On the other side, I have the charges that he pled to as referenced by [the prosecutor]. That doesn't resolve the matter in my view, but I do think I can consider the appellate opinion at this stage. I think it is part of the record of conviction, and what it clearly states is that this was a shooting where [appellant] was identified as being the sole shooter of the victim in the case. There is nothing here that indicates that there was a felony murder theory available or pursued. There's nothing having to do with natural and probable consequences. In short, there's just no hint of imputed malice involved in this case.
"I think based on all of that that it is clear that the sort of summary and nonspecific allegations made by [appellant] are conclusively refuted by the record of conviction here.
"For example, there's no assertion by [appellant] that he wasn't the shooter. There's no assertion by [appellant] that somebody else did this shooting or that he merely assisted in some other crime that naturally and probably led to the death of the victim. Essentially, he just asserts that he's eligible for relief, whereas the record indicates entirely to the contrary." On January 19, 2023, appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erroneously denied his petition without issuing an OSC when it relied on the factual statement in this court's opinion from his direct appeal, and the court improperly made factual findings to conclude he was the actual shooter and ineligible for resentencing. Appellant relies on this court's opinion in People v. Flores (2022) 76 Cal.App.5th 974 (Flores) in support of his argument that the trial court cannot rely on the factual statement in a prior appellate opinion or the preliminary hearing to make the prima facie determination. Appellant asserts the trial court's error was prejudicial because there was no other evidence in the record of conviction to refute the allegations in his petition, and the matter must be remanded for an evidentiary hearing.
The People argue the trial court properly relied on this court's factual statement in the opinion on the direct appeal, which stated that appellant was identified as the shooter, because it did not involve any factfinding, and appellant admitted he personally used a firearm in the commission of the offense when he entered his plea.
"Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) [(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.)
"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. (People v. Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 959.) 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.) (Senate Bill 775) made substantive amendments to former section 1170.95 that were consistent with 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 [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
While not applicable herein, section 189 was amended to allow for felony-murder 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 determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) "As a matter of law, resentencing relief under section 1172.6 is not available to an 'actual killer.'" (People v. Garcia (2022) 82 Cal.App.5th 956, 973; People v. Garrison (2021) 73 Cal.App.5th 735, 744.)
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 [s]ection 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 [s]ection 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).)
II. The Trial Court's Reliance on the Prior Appellate Opinion
In making the prima facie determination, the trial court stated it had reviewed this court's appellate opinion and the preliminary hearing evidence, and found appellant was ineligible for resentencing. We first consider whether the court could rely on the factual summary from the opinion in appellant's direct appeal to find he failed to state a prima facie case.
In determining whether a petitioner has stated a prima facie case, the court may consider the record of conviction. (Lewis, supra, 11 Cal.5th at p. 970.) Lewis cautioned that "the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers.'" (Id. at p. 972.) Thereafter, the Legislature "[a]ddresse[d] what evidence a court may consider at a resentencing hearing (clarifying the discussion in [ Lewis, ]at pp. 970-972)." (Sen. Bill 775, Stats. 2021, ch. 551, § 1, subd. (d).) It did so by amending section 1172.6, subdivision (d)(3) to specify that the admission of evidence at the evidentiary hearing is governed by the Evidence Code, except that the court may consider certain other specified evidence, including "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).)
The specificity of this provision "indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing." (People v. Clements (2022) 75 Cal.App.5th 276, 292.)
Thus, in reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements, supra, 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) However, the role of the appellate opinion is limited, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (People v. Clements, at p. 292; Lewis, supra, 11 Cal.5th at p. 972.)
As this court has held: "[T]he factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing. [Citation.] 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 at the prima facie stage." (Flores, supra, 76 Cal.App.5th at p. 988.)
Analysis
The People argue the trial court properly relied on the factual summary from this court's opinion in appellant's direct appeal because that factual statement showed appellant was the actual and sole shooter, and that conclusion did not involve any factual findings. We have taken judicial notice of this court's records from appellant's direct appeal, and recited the factual statement from appellant's direct appeal to place his arguments in context. As in Flores, however, we cannot rely on that factual statement to resolve his appeal from the trial court's order that found his petition did not state a prima facie case for relief.
The record of conviction shows that given appellant's plea, the only evidence of the underlying offense that was before this court at the time of appellant's direct appeal was the preliminary hearing transcript. It is thus apparent that this court's factual statement in the direct appeal was based upon the evidence introduced at the preliminary hearing.
As will be discussed in issue III below, any reliance on that factual statement which, in turn, was based on the preliminary hearing evidence, required the trial court to make factual findings. As a result, the trial court improperly relied on the factual summary from our prior opinion to make factual findings and find appellant was ineligible for relief as a matter of law.
III. Consideration of the Preliminary Hearing Transcript
We next consider whether the trial court could properly consider the preliminary hearing transcript to find appellant failed to state a prima facie case. "Courts of Appeal are split on the import of the preliminary hearing transcript in determining whether a petitioner has made a prima facie case for resentencing" under section 1172.6. (Flores, supra, 76 Cal.App.5th at p. 989.) We review these cases.
A. Nguyen and Davenport
In People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166, the defendant pleaded guilty to second degree murder and stipulated to the preliminary hearing transcript and police reports as the factual basis for the plea. (Id. at p. 1161.) He filed a petition for resentencing under the original version of former section 1170.95. The People filed an opposition and argued there was sufficient evidence at the preliminary hearing that he acted with malice aforethought as an aider and abettor to the murder. The trial court agreed with the People's arguments and denied the petition. (Id. at pp. 1161-1163.)
Nguyen affirmed and held: "If [the defendant] had gone to trial, and the parties had presented no argument and the trial court had given no instructions regarding felony murder or murder under a natural and probable consequences theory, there is no question [the defendant] would be unable to make a prima facie showing that he is entitled to relief . . .. [Citation.] [The defendant's] murder conviction after a guilty plea should not be accorded less weight and finality than a murder conviction after a jury trial, as the transcripts from the preliminary and plea hearings demonstrate [the defendant] was convicted of second degree murder as a direct aider and abettor." (People v. Nguyen, supra, 53 Cal.App.5th at p. 1167.)
In People v. Davenport (2021) 71 Cal.App.5th 476, the court held the preliminary hearing transcript was part of the record of conviction, but concluded the trial court erroneously relied on that transcript to make the prima facie determination because the defendant "did not stipulate to the transcript as a factual basis for his plea." (Id. at p. 481.) Davenport rejected the People's reliance on Nguyen, because the defendant in that case stipulated to the preliminary hearing testimony and police reports served as the factual basis for his plea. (Id. at p. 482.)
B. Senate Bill 775
As explained above, Senate Bill 775 became effective on January 1, 2022, and made substantive amendments to section 1172.6 that were consistent with Lewis. As relevant herein, section 1172.6, subdivision (d)(3) states the limitations on evidence admissible at an evidentiary hearing: "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 [s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (Italics added.)
As relevant to this discussion, section 872, subdivision (b) states in part: "Notwithstanding [s]ection 1200 of the Evidence Code, the finding of probable cause may be 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." (Italics added.) This provision created a new exception to the hearsay rule which allows a qualified investigative officer to testify at a preliminary hearing about "otherwise inadmissible hearsay statements made to him by persons he has interviewed." (Tu v. Superior Court (1992) 5 Cal.App.4th 1617, 1622; Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072-1074.)
C. Flores
In Flores, the defendant was charged generically with murder, and the information did not specify or exclude any particular theory. At the preliminary hearing, two officers testified about their investigation and interviews with witnesses. The defendant pled no contest to second degree murder, he did not admit to or stipulate to any particular theory of murder, and stipulated to a factual basis for the plea pursuant to People v. West (1970) 3 Cal.3d 595. (Flores, supra, 76 Cal.App.5th at p. 987.)
In 2019, the defendant filed a petition for resentencing under former section 1170.95. The trial court denied his petition because the defendant "failed to make an unspecified showing beyond the factual allegations contained in the petition." (Flores, supra, 76 Cal.App.5th at pp. 987.)
In Flores, this court held that neither the charge nor the plea excluded the defendant from resentencing eligibility as a matter of law, his petition was adequate under the statute, and the trial court was required to make the prima facie finding as to "whether the record of conviction conclusively refuted [the defendant's] allegations. In failing to do so, the court erred." (Flores, supra, 76 Cal.App.5th at p. 987.)
Flores was decided after the decision in Lewis, and when the amendments enacted by Senate Bill 775 had become effective.
As discussed above, Flores rejected the People's argument that the trial court could rely on the factual statement from the defendant's prior appeal to make the prima facie finding. (Flores, supra, 76 Cal.App.5th at pp. 987-988.)
As for trial court's reliance on the preliminary hearing transcript, Flores agreed with Davenport that the transcript was part of the record of conviction, and reviewed the evidence from that hearing. (Flores, supra, 76 Cal.App.5th at p. 989 &fn. 11.) The officers' testimony at the preliminary hearing in Flores was that "(1) [the defendant] admitted driving over [the victim] twice, (2) the medical examiner identified blunt force injuries as the cause of [the victim's] death, (3) [codefendant] Bowman claimed [the defendant] shot and beat [the victim] with the rifle, and (4) the medical examiner also identified gunshot wounds as a cause of death." (Id. at p. 988.)
Flores acknowledged the holding in Nguyen that relied on the preliminary hearing transcript, but noted that the Supreme Court subsequently held in Lewis that the prima facie review was limited, the prima facie bar was intentionally and "correctly" set very low, and "the court is prohibited from engaging in' "factfinding involving the weighing of the evidence or the exercise of discretion."' [Citation.] Instead, the court must '" 'take[] [the] petitioner's factual allegations as true'"' and make a '" 'preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.'"' [Citation.] Only where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner. [Citations.] Additionally, it is now well settled that the prima facie determination is a question of law." (Flores, supra, 76 Cal.App.5th at p. 991.)
Flores held: "To the extent Nguyen suggests a ... petition may be denied based on sufficient or substantial evidence to support a conclusion the petitioner was convicted under a valid theory, it is contrary to Lewis." (Flores, supra, 76 Cal.App.5th at p. 991.) Flores further held the preliminary hearing transcript could not be relied on in that case to find the defendant was ineligible for resentencing as a matter of law for several reasons. (Flores, supra, 76 Cal.App.5th at p. 991.)
"According to [the officer's testimony], [the defendant] stated that [codefendant] Bowman shot [the victim] multiple times and beat him around the head and upper body, after which [the defendant] may have accidentally run over [the victim] twice while leaving the scene. [The defendant] did not admit the truth of this testimony and his stipulation that the transcript provided a factual basis for the plea is not a' "binding admission for all purposes." ' [Citation.] Even if it was, this testimony, standing alone, does not conclusively establish as a matter of law that petitioner was the actual killer, acted with intent to kill or actual malice, or was a major participant in an underlying crime who acted with reckless indifference to human life. It does not exclude the possibility that [the defendant] was, or could have been, convicted under the imputed malice theories eliminated by [Senate Bill 1437] ._ To find petitioner ineligible for resentencing on this record would require judicial factfinding, which is impermissible at the prima facie stage." (Flores, supra, 76 Cal.App.5th at pp. 991-992, italics added.)
D. Patton
In People v. Patton (2023) 89 Cal.App.5th 649, the defendant pleaded no contest to attempted murder, and admitted he personally used and discharged a firearm. At the preliminary hearing, officers testified "they had watched the surveillance video and they knew and recognized [the defendant] as the sole perpetrator, who approached [the victim] as he stood at the motel clerk's desk and fired several rounds at him. Those officers were personally involved in the investigation of the shooting of [the victim], and they were subject to cross-examination at the preliminary hearing." (Id. at p. 657.)
Patton stated that the defendant filed a section 1172.6 petition for resentencing but he "never offered any theory [in the trial court] to support his implicit contention now that he was an accomplice and not the person who actually shot [the victim]. Nor, on appeal, has [the defendant] even suggested what facts he has to demonstrate that someone else shot [the victim] and he was merely an accomplice." (People v. Patton, supra, 89 Cal.App.5th at p. 657.) Patton concluded that the defendant was ineligible for resentencing as a matter of law "[a]s the sole and actual perpetrator of the attempted murder," based upon the preliminary hearing transcript. (People v. Patton, at p. 657.)
In reaching this holding, Patton did not discuss or even cite to Flores, Nguyen, or Davenport. On June 28, 2023, the Supreme Court granted a petition for review in Patton and denied a request for depublication.
The Supreme Court's order granting review in Patton further stated: "Pending review, the opinion of the Court of Appeal, which is currently published at 89 Cal.App.5th 649, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, [r]ule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.)" (People v. Patton (2023) 309 Cal.Rptr.3d 725, 726 , italics omitted.)
E. Analysis for Appellant's Case
We find the court erroneously made factual findings when it denied appellant's petition without issuing an OSC. As explained above, the factual statement in this court's opinion from appellant's direct appeal was entirely based on the preliminary hearing transcript. The only witnesses at the preliminary hearing were four investigative officers. One officer testified about his interview with appellant, but while appellant said he had been at the party, he did not make any admission or confessions about the homicide. The preliminary hearing evidence that implicated appellant was limited to Guzman's testimony about the statements from N.J., the witness who said appellant was the shooter and identified him from a photographic lineup. N.J. did not appear at the preliminary hearing.
Thus, the evidence at the preliminary hearing that implicated appellant was introduced through the hearsay testimony of Guzman, which was introduced at that hearing pursuant to section 852, subdivision (b).
Pending further guidance from the Supreme Court, we agree with Flores as to the limitations on considering a preliminary hearing transcript to make the prima facie determination, and that the parties' stipulation to a preliminary hearing transcript as the factual basis for a plea "is not a' "binding admission for all purposes." '" (Flores, supra, 76 Cal.App.5th at p. 991.)
Given the limited record in this case, we conclude the trial court improperly relied on the preliminary hearing evidence, which was the basis for this court's factual statement in appellant's direct appeal opinion, to make factual findings when it found his petition failed to state a prima facie case for resentencing.
IV. Prejudice
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an OSC, 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.)
As explained above, the only evidence in the record of conviction was from the preliminary hearing transcript, and that evidence consisted of inadmissible hearsay. The People assert that any error arising from the court's reliance on the prior appellate opinion and preliminary hearing is not prejudicial because when appellant entered his plea, he admitted a section 12022.5, subdivision (a)(1) enhancement, that he personally used a firearm in the commission of the offense.
We decline to rely on this enhancement to find appellant was ineligible for resentencing as a matter of law. A "finding of personal use ... [does] not in itself prove [a] defendant was the actual killer" or perpetrator. (People v. Jones (2003) 30 Cal.4th 1084, 1120.) For instance, "[i]f two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer." (Ibid.) Rather, for a personal use finding to prove that a defendant was the actual perpetrator, the record of conviction must reflect additional evidence concerning the circumstances of the offense. (See People v. Garrison, supra, 73 Cal.App.5th 735, 744745; People v. Young (2005) 34 Cal.4th 1149, 1205; People v. Davenport, supra, 71 Cal.App.5th at p. 485; People v. Offley (2020) 48 Cal.App.5th 588, 598.) Thus, by itself and without additional evidence, the personal use enhancement does not conclusively mean appellant is ineligible for section 1172.6 relief as a matter of law.
DISPOSITION
The trial court's order of January 18, 2023, denying appellant's petition for resentencing as a matter of law, is reversed and the matter remanded for issuance of an order to show cause and an evidentiary hearing consistent with section 1172.6.
[*]Before Franson, Acting P. J., Smith, J. and Meehan, J.