Opinion
H050340
06-18-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS CRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 17CR004360).
Grover, Acting P.J.
Defendant Juan Carlos Cruz appeals from an order denying his petition for resentencing under former Penal Code section 1170.95 (now Penal Code section 1172.6; unspecified statutory references are to this Code). For the reasons explained here, we will reverse the order and remand for an evidentiary hearing.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered Penal Code section 1172.6, with no substantive changes to the text. (Stats. 2022, ch. 58, § 10.)
I. BACKGROUND
As part of the negotiated disposition, defendant pleaded no contest to attempted murder and other charges in 2019, and he admitted the allegation that he personally used a firearm. (§ 12022.5, subd. (a).) He was sentenced to 26 years in prison.
The agreed-upon factual basis for defendant's plea was provided by the preliminary hearing transcript and a police report. At the outset of the preliminary hearing, the prosecutor stated that the evidence would show "defendant was the driver and not the actual shooter." Sheriff's deputies then testified to their conversations with victims John and Jane Doe, who described being shot at three or four times from a car driven by defendant.
Another man, later identified as defendant's brother Omar Cruz, was in the car with defendant and was also charged. In a successful motion for joinder of the two cases, the prosecution alleged that "two male occupants of the suspect vehicle, Juan and Omar Cruz, threw hand signals at Doe's vehicle and then Omar Cruz shot at Doe's vehicle, striking John Doe in the back of the head." Omar Cruz ultimately pleaded guilty to attempted murder and other charges arising from the incident. He also admitted allegations that he personally used a firearm and personally inflicted great bodily injury on John Doe.
Defendant petitioned for resentencing under former section 1170.95 in 2022. The prosecution opposed the petition, arguing defendant was ineligible for relief based on the preliminary hearing transcript that served as the factual basis for his plea. The prosecution also argued defendant's admission to personal use of a firearm was effectively an admission to personal discharge of a firearm because according to the preliminary hearing evidence, the only firearm use involved discharge.
The trial court ruled defendant had not established a prima facie case for resentencing, reasoning, "[t]he Defendant pled, amongst other charges, to attempted murder, personal use in the commission - personal use of a firearm in the commission of that attempted murder. [¶] Evaluating record of conviction, including the preliminary hearing transcript, which was stipulated to, by the Defendant, for purposes of a factual basis, I do think it significantly supports the finding that the Defendant could be convicted under a legally valid theory of liability, under the current state of the law." The court denied defendant's petition without an evidentiary hearing.
II. DISCUSSION
A. Legal Framework
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2), which amended sections 188 and 189 to "eliminate[] natural and probable consequences liability for murder as it applies to aiding and abetting, and limit[] the scope of the felony-murder rule." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Senate Bill No. 1437 also added former section 1170.95, "which create[d] a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, at p. 957.) In 2021, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, §2), which amended former section 1170.95, effective January 1, 2022. The amended statute extended relief to defendants convicted of "attempted murder under the natural and probable consequences doctrine," among others. (Former § 1170.95, subd. (a) (Stats. 2021, ch. 551, § 2).) As we have noted, former section 1170.95 has since been renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
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," or "attempted murder under the natural and probable consequences doctrine," may petition under section 1172.6 to have those convictions vacated when certain conditions are satisfied. (§ 1172.6, subd. (a).) An order to show cause must issue if a petitioner makes a prima facie case for relief. (§ 1172.6, subd. (c).)
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." '" (Ibid.) The court may rely on the record of conviction in determining whether the petitioning defendant has made a prima facie showing, and" '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.)
B. Defendant is Not Ineligible for Relief at the Prima Facie Stage
The parties correctly agree the trial court applied an incorrect standard to defendant's petition at the prima facie stage. The trial court found the "record of conviction, including the preliminary hearing transcript, ... significantly supports the finding that the Defendant could be convicted under a legally valid theory of liability, under the current state of the law." But the question at the prima facie stage is not whether the record of conviction would support a finding of guilt under a still-valid theory. Rather, it is whether the record conclusively establishes that defendant was convicted under a still-valid theory and is thus ineligible for relief as a matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 968.) "A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1172.6, subd. (d)(3).) "Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the first place." (People v. Strong (2022) 13 Cal.5th 698, 720.)
To the extent the trial court may have deemed defendant categorically ineligible for relief due to his admission of personal firearm use, that portion of the ruling was also in error. Defendant admitted using-not discharging-a firearm, and did not admit doing so with any particular intent. (§ 12022.5, subd. (a).) The admission to personal use alone does not establish defendant's ineligibility for relief. The prosecutor argued to the trial court that defendant's admission of firearm use was tantamount to an admission of firearm discharge when considered with the evidence adduced at the preliminary hearing. But to reach that conclusion would require" 'factfinding involving the weighing of evidence or the exercise of discretion'" which is prohibited at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972.) Further, the prosecutor's argument was based on hearsay evidence allowed for purposes of the preliminary hearing. (Pen. Code, § 872, subd. (b).) Even if an applicable hearsay exception would permit consideration of the victims' statements in the resentencing context, the parties on appeal correctly agree that the statements are inconclusive as to who fired the shots. (§ 1172.6, subd. (d)(3); People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. 9 (Flores).) We agree that the trial court applied an incorrect standard and appears to have engaged in impermissible factfinding at the prima facie stage.
C. Defendant Has Established a Prima Facie Case for Resentencing
The parties agree remand is required due to the trial court's errors, but disagree about the proper scope of that remand. Defendant contends he established a prima facie case for relief and is entitled to an evidentiary hearing, while the Attorney General asks us to remand for another prima facie hearing. We review de novo the trial court's determination of whether the required showing under section 1172.6 has been made. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
The trial court's determination here was based on the preliminary hearing transcript and defendant's admission to personal firearm use. The Attorney General points out that even if the trial court was permitted to consider the preliminary hearing transcript at the prima facie stage, "there was no evidence from the preliminary hearing that would have directly challenged [defendant's] initial assertions in the petition." We agree that the information the trial court relied on does not conclusively establish defendant's ineligibility for relief. Given that defendant's case was resolved by a plea of no contest and the record of conviction is therefore limited, we doubt a further prima facie hearing would reveal any new information contradicting the assertions in defendant's petition. The appropriate remedy is therefore not another prima facie hearing, but a remand for the trial court to issue an order to show cause and proceed accordingly. (See Flores, supra, 76 Cal.App.5th at pp. 990-992.)
The factual basis for defendant's plea was provided by the preliminary hearing transcript and a police report. We have reviewed the summary of the police report contained in the probation officer's report, which does not affect our analysis.
The Attorney General appears to suggest that People v. Garrison (2021) 73 Cal.App.5th 735 may provide alternative grounds to deny defendant's petition at the prima facie stage. In Garrison, a felony-murder case, the trial court treated Garrison's admission of personal firearm use as an admission that he was the actual killer, where an evidentiary hearing revealed no evidence that a firearm was used for anything other than the fatal shooting. (Id. at p. 743.) But as the Attorney General recognizes, Garrison's applicability is limited because "it is at least arguable that-unlike Garrison-[defendant] could have used the weapon in a manner sufficient for purposes of section 12022.5" without actually firing it. And in any event, the Garrison trial court denied Garrison's petition only after issuing an order to show cause and holding an evidentiary hearing. (Id. at p. 741.) Defendant is entitled to the same procedure on remand-Garrison does not convince us of the utility of a second prima facie hearing.
D. The Original Sentencing Judge Should Be Assigned if Available
Defendant urges that further resentencing proceedings on remand should be heard by the judge who originally sentenced him in 2019. We agree that unless "the judge that originally sentenced the petitioner is not available to resentence the petitioner," section 1172.6 requires assignment of that judge to the resentencing proceedings. (§ 1172.6, subd. (b)(1); see People v. Santos (2020) 53 Cal.App.5th 467, 472-475.) The judge who conducted the prima facie hearing was not the judge who originally sentenced defendant, and the record does not indicate any consideration of the original sentencing judge's availability-nor any objection from defendant. Because we have determined the matter must be remanded for an evidentiary hearing, we need not consider whether the assignment was proper under the circumstances as they existed at the time or what the appropriate remedy for any error would be. We simply note that the original sentencing judge should be assigned on remand if available.
E. Judicial Disqualification is Not Required
In the event the original sentencing judge is not available, the presiding judge must designate another judge to rule on defendant's petition. (§ 1172.6, subd. (b)(1).) Defendant argues that in the event the original sentencing judge is not available, a judge other than the previous resentencing judge should be assigned on remand to ensure impartiality at an evidentiary hearing. "At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court." (Code Civ. Proc., § 170.1, subd. (c).) We consider defendant's argument in that light.
Defendant suggests a reasonable person could question the previous resentencing judge's impartiality on remand because granting resentencing after the evidentiary hearing would require findings directly contrary to the prima facie findings appealed here (i.e., the previous judge could be seen as biased against defendant). Yet defendant also suggests a reasonable person could question the previous judge's impartiality because the prosecutor allegedly acted in bad faith and misled the court at the prima facie hearing (i.e., the previous judge could be seen as biased against the prosecution). In our view, the diametric contentions are too speculative to require that a different judge be assigned in the interests of justice (if the original sentencing judge is not available).
Defendant's allegations of prosecutorial bad faith are based on records from a separate resentencing proceeding involving defendant's brother Omar Cruz, of which defendant has asked us to take judicial notice. According to defendant, the prosecution advanced inconsistent factual theories in the two resentencing proceedings. He analogizes this case to In re Sakarias (2005) 35 Cal.4th 140, contending the prosecutor deprived him of due process by arguing he was the shooter despite believing that Omar Cruz was actually the shooter. But we do not read Sakarias as suggesting that prosecutorial inconsistency should lead to judicial disqualification. We also note that defendant's due-process claim is rendered moot by our determination that he established a prima facie case for relief. We therefore deny the disqualification request and the associated request for judicial notice, which was deferred for consideration with the appeal.
III. DISPOSITION
The order is reversed and the matter remanded with instructions to issue an order to show cause and hold an evidentiary hearing under Penal Code section 1172.6, subdivision (d)(3). The original sentencing judge shall be assigned to the matter if available; if the original sentencing judge is not available, the presiding judge shall designate another judge to rule on the petition. Defendant's request for judicial notice filed August 30, 2023. is denied.
WE CONCUR: Lie, J., Bromberg, J.