Opinion
F085714
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. MANUEL HERNANDEZ CHAVEZ, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. PCF311104 Antonio A. Reyes, Judge.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Petitioner Manuel Hernandez Chavez petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for attempted murder (§§ 187, 664). The trial court denied the petition at the prima facie stage after determining, based on its own recollection of the case, that petitioner was factually ineligible for resentencing.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
On appeal, petitioner contends the court impermissibly resolved factual questions at the prima facie stage and therefore erred in its denial of his facially sufficient petition. He further contends that the denial of his petition without issuance of an order to show cause violated his due process rights under the state and federal Constitutions. To the extent his claims are forfeited, he alleges ineffective assistance of counsel.
The People concede petitioner filed a facially sufficient petition and the court impermissibly made factual findings at the prima facie stage. Accordingly, the People concede the case must be remanded for the court to issue an order to show cause and conduct further proceedings pursuant to section 1172.6, subdivision (d)(3).
We accept the People's concession. Accordingly, we reverse the order denying the petition and remand with directions to issue an order to show cause and conduct such further proceedings as necessary pursuant to section 1172.6, subdivision (d)(3). In light of this disposition, we need not, and do not, address petitioner's remaining contentions.
We dispense with a statement of facts as the underlying facts are not pertinent to our disposition.
On November 22, 2016, the Tulare County District Attorney filed an information charging petitioner with attempted murder (§§ 187, subd. (a), 664; count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), being a prohibited person in possession of ammunition (§ 30305, subd. (a)(1); count 3), and obstructing a peace officer (§ 148, subd. (a)(1); count 4). As to count 1, gang and firearm enhancements were alleged (§§ 186.22, subd. (b)(1)(C), (5), 12022.53, subds. (c), (d), (e)(1)). As to count 2, a gang enhancement was alleged (§ 186.22, subd. (b)(1)(B)). Finally, it was alleged that petitioner suffered a prior conviction of a serious felony (§ 667, subd. (a)(1)), which also constituted a "strike" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as well as two prior prison terms (§ 667.5, former subd. (b)).
On May 3, 2019, petitioner entered a plea of no contest on count 1 to attempted murder (§§ 187, subd. (a), 664), and admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)), and a firearm enhancement (§ 12022.5). Petitioner also admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, former subd. (b)). The remaining counts and allegations alleged in the present case were dismissed.
At the same time, in Tulare County Superior Court case No. PCF352655A, petitioner entered a plea of no contest to assault with a deadly weapon (§ 245, subd. (a)(1)), and admitted a gang enhancement (§ 186.22, subd. (b)(1)(B)). In relation to that case, petitioner again admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, former subd. (b)). For this offense, petitioner was sentenced to a one-year term, plus an additional term of one year, eight months for the gang enhancement, to be served consecutively to the sentence in the instant case. The strike allegation was dismissed on motion by the People.
On June 5, 2019, petitioner was sentenced, consistent with the indicated sentence, to a middle term of 14 years, plus an additional year for a prior prison term enhancement. The remaining enhancements were stayed.
On November 9, 2022, petitioner filed a petition for resentencing pursuant to section 1172.6. The People opposed the petition on the ground petitioner entered his plea after the effective date of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), and thus after the natural and probable consequences doctrine had been eliminated, rendering petitioner ineligible for resentencing. The People further argued the preliminary hearing transcript proved that petitioner was a direct aider and abettor to the murder who acted with intent to kill, another basis for finding him ineligible for resentencing.
During the pendency of the petition, the court issued an ex parte minute order striking petitioner's prior prison term enhancements in the instant case and in case No. PCF352655A pursuant to former section 1171 (now renumbered § 1172.7) and former section 1171.1 (now renumbered § 1172.75). The record does not reflect that the court conducted a resentencing hearing (see § 1172.75, subd. (e); see also id., subd. (c)) or that petitioner received notice of this action. The court's order and the associated abstract of judgment are outside the scope of this appeal.
The People have abandoned this argument on appeal.
The matter was heard on February 2, 2023. The court stated:
"I'm the judge that took the plea back when he took a plea . . . . The specific incident involved alleged that [petitioner] was part of a group, one or two or maybe three, who were involved in basically setting up someone at a car wash in Pixley or Earlimart, if I remember correctly. And when the plea was entered, to my recollection, clearly was that his plea was a principal and it may not have been that he was the shooter, but he clearly was one of the individuals present that set up the incident.
"Now, I don't have any file. For whatever reason, basically they gave me a dummy file with only some of the pleadings. So initially I understand your arguments, but factually I don't think he's eligible."
Defense counsel pointed out that the court could not "take into account any investigation" or "go outside the petition" and was required to "accept what is contained in the petition is true." Defense counsel also pointed out that the court could not engage in any factfinding, weighing of the evidence, or credibility determinations. Defense counsel asserted the court's inquiry was limited to the four corners of the petition. The court queried, "Even if the petition is incorrect?" Defense counsel asked the court to state on the record "what in the petition is not accurate." The court asked whether the parties had any further argument and, with none being offered, denied the petition.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "to amend the felony murder rule and the natural and probable consequences doctrine . . . 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." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) Relevant here, the bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder or attempted murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
The bill also amended the felony-murder rule. (§ 189, subds. (e), (f).) The felony-murder rule is not at issue in this appeal.
Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "attempted murder under the natural and probable consequences doctrine" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] [s]ection 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill [No.] 1437 (§ 1172.6, subd. (a)(3))." (Strong, supra, 13 Cal.5th at p. 708.) The sentencing court must then determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subd. (c); accord, Strong, supra, 13 Cal.5th at p. 708.) In making this determination, the court may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
"If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (People v. Curiel (2023) 15 Cal.5th 433, 450 (Curiel).) If the trial court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder [or attempted murder] conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).)
"We review de novo whether the trial court conducted a proper inquiry under section 1172.6, subdivision (c)." (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
B. Analysis
As the People concede, petitioner filed a facially sufficient petition and no facts regarding his plea establish his ineligibility for resentencing as a matter of law.Furthermore, the court plainly relied on its own recollection of the underlying facts to deny the petition, thus engaging in impermissible judicial factfinding at the prima facie stage. Accordingly, the court erred in denying the petition and the order denying the petition must be reversed.
The parties dispute whether the court could consider the transcript from petitioner's preliminary hearing but agree that the transcript does not establish petitioner's resentencing ineligibility as a matter of law. In any event, it does not appear the trial court considered the preliminary hearing transcript, inasmuch as the court stated it had before it only a "dummy file" with the pleadings.
In light of the People's concession that petitioner has met the prima facie requirements of section 1172.6, we will remand with directions to issue an order to show cause and to conduct such proceedings as necessary pursuant to section 1172.6, subdivision (d)(3).
DISPOSITION
The order denying the petition is reversed. The matter is remanded with directions to issue an order to show cause (§ 1172.6, subd. (c)), and to conduct such further proceedings as necessary pursuant to section 1172.6, subdivision (d)(3).
[*] Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.