Opinion
A166300
09-18-2023
THE PEOPLE, Plaintiff and Respondent, v. LACHOY DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 147280)
Banke, J.
In 2005, defendant Lachoy Davis pleaded no contest to three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of attempted murder (§§ 187, subd. (a), 664), and one count of carjacking (§ 215, subd. (a)). In connection with the attempted murder count, defendant admitted that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Pursuant to a negotiated disposition, the trial court sentenced him to a total determinate sentence of 37 years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
In 2022, defendant filed a petition for resentencing under former section 1170.95, now section 1172.6. Based on the record of conviction, the trial court ruled, at the prima facie stage, that defendant is ineligible for relief as a matter of law. Defendant appeals. We affirm.
DISCUSSION
The Resentencing Statutory Scheme
"Effective January 1, 2019, Senate Bill [No.] 1437 [(2017-2019 Reg. Sess.)] amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)" (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless the defendant "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e).)
Senate Bill No. 1437 (2017-2019 Reg. Sess.) also enacted former section 1170.95, now section 1172.6, which provides a procedure for eligible defendants to petition for resentencing. Under the current statute, "[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" as long as three requirements are met: (1) the charging document allowed the prosecution to proceed under a theory of felony murder, murder or attempted murder under the natural and probable consequences doctrine, or other theory of imputed malice; (2) the petitioner was convicted of murder, attempted murder, or manslaughter; and (3) the petitioner could not presently be convicted of the crime after Senate Bill No. 1437's (2017-2019 Reg. Sess.) changes to the law. (§ 1172.6, subd. (a).)
On receipt of a petition, the trial 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., 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." (Ibid.)
The record and opinion from a petitioner's direct appeal are part of the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Ibid.) "[T]he prima facie inquiry under [section 1170.95] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Id. at p. 971.)
"' "[I]f the record . . . 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.'"' ([]Lewis, supra, 11 Cal.5th at p. 971.) 'The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.' (Ibid.)" (People v. Hurtado (2023) 89 Cal.App.5th 887, 893 (Hurtado).)
"We independently review the trial court's determination that the petitioner failed to make a prima facie showing for relief." (People v. Pickett (2023) 93 Cal.App.5th 982, 989.) To demonstrate prejudice from an erroneous denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent the error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836; see also Hurtado, supra, 89 Cal.App.5th at p. 892 ["Legislature intended the Lewis harmless error standard to continue following the enactment of Senate Bill No. 775 [(2021-2022 Reg. Sess.)]."].)
Trial Court's Ruling
The trial court appointed counsel, received briefing by both parties, and ruled on defendant's petition at the conclusion of the hearing, stating:
"All right. I do find that Mr. Davis in reviewing the abstract and the change of plea transcript that he admitted inflicting personal-that he admitted personal infliction of great bodily injury on the victim of the attempted murder. I do find that on that basis he is the actual perpetrator, that there's not an imputed liability issue here of vicarious
liability here; so I do find that he has failed to make a prima facie case. I'm going to deny the petition on that basis."
Analysis
The Attorney General maintains the record of conviction-specifically defendant's no contest pleas and his admission, in connection with his plea to the attempted murder count, that he personally inflicted great bodily injury on the victim-establishes he was the direct perpetrator of the attempted murder and therefore is not entitled to resentencing under section 1172.6. (See People v. Delgadillo (2022) 14 Cal.5th 216, 233 [affirming denial of resentencing where record (of trial) made clear defendant "was the actual killer and the only participant in the killing"];Pickett, supra, 93 Cal.App.5th at pp. 990, 994 [affirming denial of resentencing where record of conviction (uncontroverted preliminary hearing testimony) showed defendant acted alone in killing the victim]; People v. Patton (2023) 89 Cal.App.5th 649, 658, review granted June 28, 2023, S279670 [affirming denial of resentencing where record of conviction (uncontroverted preliminary hearing testimony, including defendant's admission he personally discharged a firearm) "irrefutably establishe[d]" defendant "was convicted as the actual perpetrator of the attempted murder"; in short, defendant "was convicted, by his plea, under a valid theory of attempted murder that survives the changes to sections 188 and 189"]; People v. Harden (2022) 81 Cal.App.5th 45, 47 [record of conviction (jury instructions and verdicts) conclusively established defendant "was convicted as the actual killer," making "her ineligible for relief as a matter of law"].)
Defendant urges that his no contest plea "does not exclude the possibility that his conviction was based upon the natural and probable consequences doctrine." He points out that stipulating there is a factual basis for a plea does not constitute an admission that any particular facts are true; "the stipulation to a factual basis merely admitted that there was sufficient evidence to prove the element of the offense[]." While defendant acknowledges he admitted personally inflicting great bodily injury on the victim of the attempted murder, he posits that "someone else may have committed the act that constituted the attempted murder." He observes it "was specifically agreed" his no contest plea to attempted murder did not include an admission the offense was committed "willfully, deliberately and with premeditation" and the rape of the victim "was alleged to have occurred on the same date as the attempted murder." This means, according to defendant, "an accomplice conceivably could have committed the attempted murder . . . at the same general time as the rape." Defendant therefore suggests "[t]he rape [by him] could have been committed under circumstances in which the attempted murder [by someone else] was a natural and probable consequence of the rape. "It is not necessarily true," says defendant, "that a person who inflicts great bodily injury during an attempted murder must have personally committed the attempted murder and therefore be a direct perpetrator of the crime rather than an aider and abettor."
The information alleged Davis committed "WILLFUL, DELIBERATE, PREMEDIATED ATTEMPTED MURDER, a violation of section 187(a)/664 . . . in that on or about August 25, 2003 . . . defendant did unlawfully and with malice aforethought attempt to murder JANE DOE 2, a human being. It is further alleged the aforesaid attempted murder was committed willfully, deliberately and with premeditation within the meaning of Penal Code section 664(a) and is a serious felony pursuant to Penal Code section 1192.7(c)." At the change of plea hearing, the trial court recited the count to which defendant would plead as follows: that Davis "committed attempted murder on or about August 25, 2003, in Alameda County, in the State of California, and [he] did unlawfully, with malice aforethought, attempt to murder [N.] Doe, a human being." (Capitalization omitted.) The court then stated the parties "stipulate this is a lesser related or a part of count 6 without the premeditation, willful, deliberate language." (Capitalization omitted.) Thus, while the "WILLFUL, DELIBERATE, PREMEDIATED ATTEMPTED MURDER" language was essentially excised, as was the "further" allegation in count six that he committed the attempted murder "willfully, deliberately and with premeditation within the meaning of Penal Code section 664(a)," he did plead to committing attempted murder "with malice aforethought."
The difficulty with defendant's argument is that he admitted the personal infliction of great bodily injury allegation made in connection with the attempted murder count as to Jane Doe 2. Thus, defendant admitted he personally laid hands on Jane Doe 2 and inflicted great bodily injury during her attempted murder. Indeed, the allegation stated, "It is further alleged as to count six, that in the commission of the above offense [attempted murder] the said defendant LACHOY DAVIS, personally inflicted great bodily injury upon Jane Doe 2, not an accomplice to the above offense within the meaning of Penal Code Section 12022.7(a) and also causing the offense to become a serious felony within the meaning of Penal Code Section 1192.7(c)(8)." Moreover, separate infliction of great bodily injury allegations were made in connection with the forcible rape count and first degree residential burglary count as to Jane Doe 2.
Section 12022.7, subdivision (a) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Section 12022.7, subdivision (b) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years...." As to section 12022.7,"' "[t]he meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s] something (damaging or painful) to be endured' [citation]." [Citation.]' [Citation.] In enacting section 12022.7, 'the Legislature intended to impose an additional penalty for causing [great bodily injury] only on those principals who perform the act that directly inflicts the injury....' [Citation.] '[T]he defendant must directly cause an injury, not just proximately cause it. [Citation.]' [Citation.] Accordingly, 'one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7.'" (People v. Slough (2017) 11 Cal.App.5th 419, 423, italics omitted.) By enacting section 12022.7, "the Legislature intended to impose an additional penalty for causing great bodily injury only on those principals who perform the act that directly inflicts the injury, and one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7." (People v. Cole (1982) 31 Cal.3d 568, 571, italics added.) Thus, defendant, by his own admission, was a direct perpetrator of the attempted murder.
Indeed, the information did not contain the slightest intimation another perpetrator committed the attempted murder. Davis was the only defendant named in the information, which alleged multiple aggravated rape crimes against three victims, as well as the attempted murder of one of these victims, Jane Doe 2. During the sentencing hearing, the victim impact statement identified defendant as the perpetrator of the rape and attempted murder. And in defendant's own sentencing statement, he stated he had made "some very poor decisions" and "hurt a lot of people." He "pray[ed] that they are healed from those wounds in some type of way." In short, there is not the barest hint, let alone a shred of evidence, in the record of conviction that defendant's admission in connection with the attempted murder charge that he personally inflicted great bodily injury on the victim means anything other than he was the actual, and indeed only, perpetrator of the crime. As such, defendant is not entitled to resentencing. (See cases cited, ante, at p. 5.)
In sum, the nature of the charges in the information, and defendant's no contest plea and admission of the personal infliction of great bodily injury allegation in connection with the attempted murder count, necessarily establish he was an actual perpetrator of the attempted murder. The record of conviction therefore establishes the prosecution would not have been required to proceed under any theories of imputed malice, and defendant is accordingly ineligible for resentencing as a matter of law, DISPOSITION
The order denying defendant's petition for resentencing is AFFIRMED.
We concur: Humes, P.J., Bowen, J. [*]
[**] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.