Opinion
B326427
04-29-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY BOOKER, Defendant and Appellant.
Christine M. Aros, 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, Senior Assistant Attorney General, Idan Ivri and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. A753648), David R. Fields, Judge. Reversed with directions.
Christine M. Aros, 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, Senior Assistant Attorney General, Idan Ivri and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
MARTINEZ, J.
INTRODUCTION
Michael Anthony Booker was convicted of first degree murder and robbery in 1986. The jury found true the special circumstance allegation that the murder was committed while Booker was engaged in the commission of a robbery. Booker received a sentence of life imprisonment without the possibility of parole. This court affirmed his conviction on direct appeal in People v. Booker (Jan. 20, 1988, B022820) [nonpub. opn.].
In 2022 Booker petitioned for resentencing under Penal Code section 1170.95, now section 1172.6, and requested appointment of counsel. The superior court appointed counsel and set a hearing to assess Booker's prima facie showing under the statute. The People opposed resentencing, arguing Booker was an "actual killer," relying on jury instructions and this court's opinion deciding Booker's direct appeal. The superior court denied the petition, ruling that Booker failed to make a prima facie showing he was eligible for relief under the statute because he was prosecuted and convicted as an "actual killer."
Undesignated statutory references are to the Penal Code. On June 30, 2022 the Legislature renumbered section 1170.95 without substantive change; it is now section 1172.6. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
Booker appeals arguing the superior court improperly relied on the factual summary from our prior appellate opinion. The People argue there was no prejudicial error, and that the complete record of conviction-including the prior appellate opinion, "undisputed" trial evidence, and closing arguments- conclusively establishes Booker was prosecuted and convicted as an actual killer.
We conclude that the superior court erred in denying the petition because the record of conviction did not establish as a matter of law Booker was ineligible for relief at the prima facie stage. Therefore, we reverse the order denying Booker's petition and direct the court to issue an order to show cause and conduct an evidentiary hearing under section 1172.6, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Facts at Booker's Murder Trial
In June 1984 Booker and codefendant Jean Redwood (a/k/a/ Renaye Michelle Renzullo) were charged by information with first degree murder (§ 187, subd. (a)), with the special circumstance allegation the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(i)). Booker and Redwood were also charged with robbery. (§ 211.) The information alleged the defendants personally used a knife in the commission of both offenses. (§ 12022, subd. (b).)
At trial, the People introduced evidence Booker and Redwood robbed and fatally strangled and stabbed Michael Tyson and threw him out of a hotel window. Booker told police he saw Tyson with cash at a bar, and that he then told Redwood to "'turn a date with that guy'" because he had money. They all went to Redwood's hotel room, where the plan was for Redwood to take Tyson's money after having sex with him. A fight erupted between Booker and Tyson, and Redwood panicked and started stabbing Tyson "everywhere" while Booker held Tyson by the throat. Redwood took Tyson's wallet, money, jewelry, and watch, and split the money with Booker. Redwood wanted Booker to carry Tyson's body downstairs, but he refused and instead they threw his body out of the hotel window when they concluded Tyson was dead.
For context, we provide some factual and procedural background from the prior appellate opinion affirming Booker's convictions on direct appeal and from our independent review of the trial record. (See People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 [reciting facts from prior appellate opinion "[f]or purposes of this appeal"].) We do not consider the factual summary from our prior opinion in deciding whether Booker established a prima facie case. (See People v. Lewis (2021) 11 Cal.5th 952, 972 [at prima facie stage of resentencing, "the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion might not supply all answers'"].)
The coroner determined Tyson died from multiple causes of death: multiple stab wounds including to the heart, strangulation, and cranio-spinal injuries consistent with a 30-foot fall while still alive. A defense expert testified Tyson was alive when he was stabbed (i.e., had not yet been killed by another cause at that point) but was dead before he was thrown out of the window.
Booker testified at trial that he lied to the police because he believed they were trying to entrap him into culpability for Tyson's death. Booker testified Tyson asked him at the bar where he could buy cocaine and "'find a broad.'" Booker introduced Tyson to Redwood; Booker earlier had suggested to Redwood that she could earn money from some of the guys at the bar. Booker told Redwood that Tyson was his friend and not to steal from him. In the hotel room, Tyson saw tampons and accused Booker of setting him up for sex with a menstruating woman, kicked Booker twice in the chest, and Tyson and Booker started fighting. Redwood groped through Tyson's pockets while they were fighting and pushed Tyson and Booker onto the bed, with Tyson lying with his back on top of Booker, who had a "choke-hold" on Tyson's neck. Tyson struggled to get free and grabbed Booker in the groin, at which point Booker closed his eyes in pain and called out to Redwood to "hit" Tyson. Booker, who was squeezing Tyson's throat as hard as he could, heard Redwood give Tyson a number of blows and opened his eyes to see her stabbing Tyson with a knife. Booker "hollered" to Redwood asking what she was doing, but she did not reply. Redwood then helped Booker get out from under Tyson and asked him to carry Tyson's body downstairs. Booker suggested they throw Tyson's body out the window, and they did so together after Booker checked Tyson's pulse and felt his chest to determine that he was dead. Redwood gave Booker Tyson's watch, money, and drugs.
B. The Jury Instructions
The trial court's instructions to the jury included murder (CALJIC No. 8.10), degree of murder (CALJIC No. 8.70), first degree felony murder (CALJIC No. 8.21), the specialcircumstance allegation of murder during the course of a robbery (CALJIC Nos. 8.80.1, 8.81.17), personal use of a deadly weapon in the commission of a felony (CALJIC No. 17.16), and aiding and abetting (CALJIC Nos. 3.00, 3.01).
The jury instructions submitted to the superior court by the People and cited in Booker's opening brief are not the set actually given to the jury. The erroneously submitted instructions, dated April 1, 1986, were from Booker's first trial, which resulted in a mistrial. The correct set of instructions from Booker's retrial is the set dated July 2, 1986 in the augmented clerk's transcript. We granted the People's motion to augment the record on appeal with the full trial record including the correct instructions. There are no substantive differences between the two sets of instructions that impact our analysis.
CALJIC No. 8.10 as given defined murder as "the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.... Robbery is a felony inherently dangerous to human life." With regard to degree of murder, the modified version of CALJIC No. 8.70 given to the jury stated that "if you should find the defendant guilty of murder committed during the course of a robbery, you are instructed that as a matter of law it is murder in the first degree." CALJIC No. 8.21, defining felony murder, stated as given to the jury: "The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of the crime of Robbery, and where there was in the mind of the perpetrator the specific intent to commit the crime of robbery, is murder of the first degree."
CALJIC No. 3.00 defined "Principals" as "The persons concerned in the [commission] of a crime who are regarded by law as principals in the crime thus [committed] [or] [attempted] and equally guilty thereof include: [¶] 1. Those who directly and actively [commit] the act constituting the crime, or [¶] 2. Those who aid and abet the [commission] of the crime. [¶] [One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly and intentionally aided or encouraged.]" (brackets in original).
CALJIC No. 8.80.1, the introductory jury instruction on the special circumstance, stated in relevant part as modified by the court: "If you find the defendant in this case guilty of murder of the first degree, you must then determine if murder was committed under the following special circumstance: ROBBERY."
C. The Jury Convicts Booker of First Degree Murder
The jury returned a guilty verdict on first degree murder and robbery, finding true the special circumstance allegation that Booker murdered Tyson during the commission of a robbery and not true the special circumstance allegation that Booker personally used a knife in both offenses. Booker was sentenced to life imprisonment without the possibility of parole.
D. Booker's Direct Appeal
This court affirmed Booker's conviction on direct appeal in People v. Booker, supra, B022820 [nonpub. opn.].
In that appeal, Booker argued the trial court was required and failed to instruct that intent to kill was an element of felonymurder special circumstance. This court reasoned that under the applicable law at the time, People v. Anderson (1987) 43 Cal.3d 1104, a trial court "must instruct on intent to kill as an element of the felony-murder special circumstance when there is evidence from which the jury could find [citation] that the defendant was an aider and abetter rather than the actual killer." (Id. at p. 1147.) However, this court concluded that whether Tyson's death was caused by strangulation, stabbing, falling, or a combination of the three, Booker's participation rendered him "an actual killer" as a matter of law. This court concluded that under the prosecution's view of the facts, Booker was the "perpetrator of the strangulation," which "according to the coroner, was sufficient to have caused death," thus Booker's strangulation of Tyson could be considered a "proximate cause[] of death" along with the stabbing. Booker's actions under the defense view of the facts "can be regarded as substantial factors in bringing about Tyson's death, even assuming the only cause of death was the stabbing. Because [Booker] actively participated with [Redwood] in a simultaneous attack on Tyson, his actions go beyond those of an aider and abetter.... Because [Booker] was an actual participant in the stabbing, he is an actual killer under Anderson." Thus, this court concluded that under any view of the evidence no instruction on intent to kill was required.
Booker also argued the trial court should have instructed the jury on the sufficiency of circumstantial evidence to prove his specific intent to rob Tyson. This court noted that "[t]he only theory of first degree murder on which the jury was instructed was felony-murder-that is, an unlawful killing in the commission of a robbery," and that (at the time) "[f]irst degree felony-murder does not require proof of malice or premeditation; the prosecution need only prove defendant's intent to commit the underlying felony." This court determined there was no instructional error because Booker's "conduct evidenced an intent to forcibly take Tyson's money" and "there is direct evidence of forcible taking of Tyson's property," therefore the "case was not based substantially on circumstantial evidence and [an instruction] was not required."
E. Booker's Petition for Resentencing
In March 2022 Booker filed a petition for resentencing in pro per, under former section 1170.95, now section 1172.6. The superior court appointed counsel for Booker. In October 2022 the People filed their opposition arguing Booker was ineligible as an actual killer. In support, the People submitted this court's 1988 opinion affirming Booker's convictions on appeal and a set of jury instructions. Recounting the factual summary from the appellate opinion, the People argued the record of conviction established as a matter of law that Booker was prosecuted and convicted as an actual killer of Tyson. Booker's appointed counsel argued in reply that it was impermissible factfinding for the court to consider the facts from the prior appellate opinion to determine whether Booker's conduct satisfied the current definition of the term "actual killer," and that because the jury was instructed on felony murder and the natural and probable causes doctrine it could have found Booker guilty of first degree murder during a robbery even if the killing was unintentional or accidental.
On October 17, 2022 the superior court held a hearing on Booker's prima facie showing under section 1172.6.
Booker's counsel argued the court could not rely on the facts in the prior appellate opinion, and that factual findings were required to determine who was the actual killer. Defense counsel further argued the court could only rely on the jury instructions and verdict, and that under the jury instructions the jury could have convicted Booker under a felony murder theory, where he did not act with intent to kill, or under the natural and probable causes doctrine, where he did not personally act with malice. Booker's counsel argued the term "actual killer" had been narrowed in People v. Vang (2022) 82 Cal.App.5th 64 (Vang).
Defense counsel further argued the jury in Booker's case found the allegation that Booker used a knife was not true, even though the prosecution's theory at trial was that Tyson had been stabbed to death by both defendants. Under the current law, counsel argued, the verdict would not be sufficient to show Booker was ineligible for relief as an "actual killer" without weighing the facts of the case.
The People argued the appellate opinion's "legal assessment" could be used at the prima facie stage to determine whether Booker was eligible for relief, that the jury instructions did not allow the jury to find true the special circumstance that the murder was committed during a robbery unless they believed he was an actual killer, and that the instructions, verdict, and legal analysis of the appellate opinion show Booker was prosecuted and convicted as an actual killer.
The superior court denied the petition, stating that Booker "as a matter of law was convicted as an actual killer and he was prosecuted in that manner and that there's no prima facie showing made and Mr. Booker was not prosecuted or convicted under an implied malice theory. So, therefore, no prima facie showing has been made, and the . . . 1170.95 petition is denied."
Booker timely appealed.
DISCUSSION
Booker argues the superior court prejudicially erred in denying his section 1172.6 petition at the prima facie stage because it relied on the appellate opinion in determining that he was prosecuted and convicted as an actual killer. Booker also contends the superior court ignored that the jury was instructed on felony murder and the natural and probable consequences theory at trial, and that nothing in the instructions or verdict compelled a finding of ineligibility for section 1172.6 relief as a matter of law.
A. Standard of Review
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing" under section 1172.6. (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); accord, People v. Bodely (2023) 95 Cal.App.5th 1193, 1200 ["We review de novo a trial court's denial of a section 1172.6 petition at the prima facie stage."].) "'A denial at that stage is appropriate only if the record of conviction demonstrates that "the petitioner is ineligible for relief as a matter of law.'"" (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
B. Legal Background
In 2018, through Senate Bill No. 1437, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981, 984) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Curiel (2023) 15 Cal.5th 433, 448-449; People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189, subdivision (e). "Penal Code section 189, as amended, now limits liability under a felony-murder theory" to (1) "actual killers;" (2) those who, with the intent to kill, aid or abet the actual killer; and (3) major participants in the underlying felony who acted with reckless indifference to human life. (Strong, supra, 13 Cal.5th at p. 708.)
The Legislature also created in section 1172.6 a "special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (Strong, supra, 13 Cal.5th at p. 708.) Under section 1172.6, "the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437." (Strong, at p. 708; § 1172.6, subd. (a)(3).) "Additionally, the petition shall state '[w]hether the petitioner requests the appointment of counsel.'" (Lewis, supra, 11 Cal.5th at p. 960; § 1172.6, subd. (b)(1)(C).)
Once a section 1172.6 petition is filed, "the trial court must appoint counsel for the petitioner, if requested, and determine, after the opportunity for briefing and a hearing, whether the defendant has made a prima facie case for relief under section 1172.6." (People v. Pickett (2023) 93 Cal.App.5th 982, 988, review granted Oct. 11, 2023, S281643; § 1172.6, subds. (b)(3), (c).) A petition will raise a prima facie case for relief with "a showing that the petitioner was convicted of murder, attempted murder, or manslaughter under a theory no longer valid under the amended Penal Code." (People v. Lee (2023) 95 Cal.App.5th 1164, 1174.) If a petitioner makes a prima facie showing, "the judge must issue an order to show cause and hold 'a hearing'" to determine whether the petitioner is entitled to resentencing relief. (People v. Clements (2022) 75 Cal.App.5th 276, 291; § 1172.6, subds. (c), (d).)
When assessing a petitioner's prima facie showing, the superior court examines the record of conviction but should not "engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) The superior court accepts the "'"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."'" (People v. Patton (2023) 89 Cal.App.5th 649, 656, review granted June 28, 2023, S279670.) "[T]he court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief." (People v. Flores (2023) 96 Cal.App.5th 1164, 1170 (Flores); § 1172.6, subd. (c).)
"'[I]f 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"'" and denying the petition at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 971; see People v. Bodely, supra, 95 Cal.App.5th at p. 1201, [considering jury instructions, "evidence at trial [which] revealed no indication of any accomplice," and closing arguments as part of the record of conviction under section 1172.6].) "For example, if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law." (Harden, supra, 81 Cal.App.5th at p. 52.) Or, where "the record of conviction irrefutably establishes as a matter of law that the jury determined [the petitioner] was the actual killer," the superior court may properly deny the petition "at the prima facie stage." (Id. at pp. 56, 60; see § 189, subd. (e)(1).)
In Senate Bill No. 775, effective January 1, 2022, the Legislature narrowed the evidence that may be considered in section 1172.6 evidentiary hearings, amending the statute to provide that the resentencing court "may also consider the procedural history of the case recited in any prior appellate opinion." (Stats. 2021, ch. 551, § 2.) Courts have interpreted this amendment to mean superior courts cannot consider the factual recitation in an appellate opinion as evidence at an evidentiary hearing. (See People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 ["Senate Bill 775 prevents a trial court from relying on facts recited in an appellate opinion to rule on a petition under section 1170.95."]; People v. Clements, supra, 75 Cal.App.5th at p. 292 [observing the "specificity" of Senate Bill No. 775 "indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions"]; People v. Davenport (2023) 95 Cal.App.5th 1150, 1160, fn. 5.)
Several courts have extended this reasoning to hold that facts from an appellate opinion may not be considered "at the prima facie stage." (E.g., People v. Flores (2002) 76 Cal.App.5th 974, 988; accord, People v. Bratton (2023) 95 Cal.App.5th 1100, 1113; People v. Lee, supra, 95 Cal.App.5th at p. 1183 ["the factual summary also may not be used to determine a petitioner's eligibility at the prima facie stage"].)
"As a matter of law, resentencing relief under section 1172.6 is not available to an 'actual killer,'" because an "'actual killer'" remains liable for felony murder after the amendments to section 189. (People v. Garcia (2022) 82 Cal.App.5th 956, 973.) An "'actual killer'" is "the actual perpetrator of the killing, i.e., the person (or persons) who personally committed the homicidal act." (Vang, supra, 82 Cal.App.5th at p. 88; accord, Garcia, at p. 970 [actual killer is "the person who 'personally' killed the victim"]; People v. Lopez (2022) 78 Cal.App.5th 1, 20 (Lopez) [same].) By contrast, a person who only "commits an act that is the proximate cause of the victim's death" may be liable for felony murder, but he is not an "actual killer" without personally killing the victim. (Lopez, at p. 17; see People v. Garcia (2020) 46 Cal.App.5th 123, 150, fn. 29 ["proximately causing the death of another does not fall within the actual killer prong of section 190.2(b)"].)
C. The Superior Court Erred by Denying Booker's Section 1172.6 Petition at the Prima Facie Stage
Booker's principal argument on appeal is that the superior court erred in denying his petition by relying on the determination in the appellate opinion in his case that he was an actual killer: "The court's ruling involved impermissible factfinding based on a prior appellate opinion's recitation of the facts underlying appellant's convictions. Nothing in the instructions or verdict compelled a finding of ineligibility as a matter of law." The People concede the jury instructions allowed Booker to be convicted on a theory of murder liability other than as an actual killer, but argue the "undisputed" evidence and closing arguments at trial show Booker was prosecuted and convicted as an actual killer, as our prior appellate opinion concluded. The People also argue that "[t]he superior court here did not rely on the direct appeal opinion's factual summary to help it make new factual conclusions on which it based the denial of the petition. Rather, it relied on the opinion's legal analysis."
As outlined above, after Senate Bill No. 775, only the "procedural history" in a prior appellate opinion may be considered at the prima facie stage. (Stats. 2021, ch. 551, § 2; § 1172.6, subd. (d)(3); People v. Cooper, supra, 77 Cal.App.5th at p. 400, fn. 9; People v. Clements, supra, 75 Cal.App.5th at p. 292.) The specificity of this amendment indicates the Legislature decided superior courts ruling on section 1172.6 petitions should not rely on the legal analysis contained in prior appellate decisions. Booker is correct that the superior court could not rely on this portion of our prior appellate opinion, and the People do not cite any authority allowing superior courts to consider the legal analysis in prior appellate decisions. Further, because a prior appellate opinion's legal analysis necessarily rests on its own summary of the facts, we reject the People's argument that the superior court (or we) could rely on a prior opinion's legal analysis based on those facts.
Additionally, in light of the jury instructions given in this case, that our prior appellate opinion affirmed Booker's convictions on an actual killer theory in 1988 does not conclusively establish the jury necessarily convicted him as an actual killer as presently defined: "the actual perpetrator of the killing, i.e., the person (or persons) who personally committed the homicidal act." (Vang, supra, 82 Cal.App.5th at p. 88; see Harden, supra, 81 Cal.App.5th at p. 54 ["The key question in determining whether the trial court properly denied [the defendant's] petition" as the actual killer, "is whether it was possible for a juror to have" "found [him] guilty of felony murder . . . without also finding [he] personally killed the victim?")
The People concede the jury here was instructed on the natural and probable consequences and felony-murder doctrines and that because of these instructions "the jury was nominally permitted to select a different theory of liability" for Booker's conviction other than that he was the actual killer. Stated plainly, the jury could have convicted Booker of murder even if it did not find that he was an actual killer. Indeed, the jurors did not necessarily have to believe Booker actually killed Tyson to find the felony-murder special circumstance allegation true under CALJIC No. 8.80.1. All that instruction provided was that if the jurors found Booker "guilty of murder of the first degree" they "must then determine if murder was committed under the following special circumstances: ROBBERY." Nothing in the instruction required the jury to find Booker himself was an actual killer.
Further, the jury instructions on felony murder and the natural and probable consequences theory left open the possibility that Booker could be found guilty of first degree murder without finding he was an actual killer. (Cf. Lopez, supra, 78 Cal.App.5th at p. 20 [jury instructions "created the possibility the jury convicted defendant of felony murder and found to be true the robbery-murder special-circumstance allegation without finding him to have been the actual killer" because jury instruction did not instruct the jury that "it had to find defendant personally killed the victim to convict him"]; Harden, supra, 81 Cal.App.5th at p. 53 [where jury "was instructed on felony murder, but not on the natural and probable consequences doctrine," the "only possible basis for section [1172.6] relief is if at least one juror convicted her of felony murder on a theory other than being the actual killer"].)
Notwithstanding the jury instructions and the superior court's improper use of the prior appellate opinion, the People argue Booker's section 1172.6 petition was properly denied. In the People's view, the "undisputed trial evidence" and the closing arguments of the prosecution and defense counsel "conclusively show [Booker] was convicted of personally killing Tyson by strangling him-regardless of who stabbed Tyson or whether he was already deceased when he was pushed from the window- [thus] there is no need for factfinding, weighing of evidence, or credibility determinations to conclude that appellant is ineligible for section 1172.6 relief." We note that when ruling on Booker's petition, the superior court only had before it the prior appellate opinion and the incorrect set of jury instructions. We granted the People's motion to augment the record on appeal with the full trial record, including the trial transcripts, clerk's transcript, and transcript of Booker's police interview. (Cal. Rules of Court, rule 8.155(a)(1); see Flores, supra, 96 Cal.App.5th at p. 1170 [augmenting record on appeal to consider jury instructions, trial transcripts, and verdicts not presented to the superior court in opposition to section 1172.6 petition].)
According to the People, it was undisputed at trial that Booker "personally and solely strangled Tyson" and that the strangulation "was an independent cause of death." So although the jury found Redwood was an actual killer based on her stabbing of Tyson, that finding purportedly "did not preclude the jury from finding that [Booker]'s actions were not merely a proximate cause but a concurrent cause of death." The People contend "the prosecution's evidence that the strangulation was an independent cause of death was undisputed . . . since both parties' experts agreed on it, the prosecutor relied on it, and the defense did not contest it in closing arguments."
We reject the People's argument because it requires factfinding prohibited at the prima facie stage of a section 1172.6 petition. We conclude the record of conviction does not "irrefutably establish[]" Booker is ineligible for section 1172.6 relief at the prima facie stage as an actual killer. (Harden, supra, 81 Cal.App.5th at p. 56.) To agree with the People on this basis would require weighing the evidence presented in the trial transcript, which is impermissible at the prima facie stage. (See People v. Campbell, supra, 98 Cal.App.5th at p. 367 ["At the prima facie stage of a section 1172.6 proceeding, a trial court may not reject the petitioner's allegations '"on credibility grounds"' or engage in '"factfinding involving the weighing of evidence or the exercise of discretion."'"].) Without improperly weighing the evidence and credibility of the trial witnesses, we cannot say that the record of conviction establishes as a matter of law that Booker was "the actual perpetrator of the killing," i.e., "personally committed the homicidal act." (Vang, supra, 82 Cal.App.5th at p. 88.)
DISPOSITION
The order denying Booker's petition for resentencing under section 1172.6 is reversed. On remand, the superior court is directed to issue an order to show cause and to conduct an evidentiary hearing under section 1172.6, subdivision (d).
We concur: SEGAL, Acting P. J. FEUER, J.