Opinion
G062283
02-26-2024
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO GUILLEN FLORES, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Aman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 15NF1057 Kimberly Menninger, Judge. Reversed and remanded.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Aman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Defendant Alejandro Guillen Flores pleaded guilty to and was convicted of attempted murder. He appeals from an order denying his petition for resentencing made pursuant to Penal Code section 1172.6. The trial court denied the petition without issuing an order to show cause (OSC) on the ground the record of conviction, including the plea form, established that Flores had not met his burden of making a prima facie case for relief under section 1172.6. We reverse and remand to the trial court because we conclude the record of conviction does not establish, as a matter of law, that Flores is ineligible for relief.
All further statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
I. Guilty Plea
By information filed in May 2017, Flores was charged with one count of attempted murder of Jane Doe (§§ 187, subd. (a), 664; count 1), one count of kidnapping of Jane Doe No. 2 (§ 207, subd. (a); count 2), and one count of evading police while driving recklessly (Veh. Code, § 2800.2; count 3). As to the attempted murder count it was alleged that Flores intentionally and personally discharged a firearm in the commission of the crime. (§ 12022.5, subd. (a).) As to the kidnapping count it was alleged that Flores personally used a firearm in the commission of a crime.
In November 2018, Flores withdrew his not guilty plea and pleaded guilty to all three counts. On the plea form, Flores offered this factual basis for his plea: "In Orange County, California, on April 17, 2015, I willfully, unlawfully, [and] knowingly committed the following criminal acts: with the specific intent to kill, I attempted to murder Jane Doe #1, a human being, and I personally used a firearm in the commission of this felony; I also took Jane Doe #2 to another part of Orange County by means of force and by instilling fear, against her will; and while operating a motor vehicle, I drove with willful and wanton disregard for the safety of persons [and] property with the intent to flee and elude a pursuing peace officers' motor vehicle, which were distinctly marked, had a lighted red lamp visible, which I saw [and] were sounding sirens as necessary, which I heard, and the officers wore distinctive uniforms."
Flores admitted the prior prison enhancement allegations. As per the plea agreement, the trial court sentenced Flores to a prison term of 15 years 4 months.
II. Petition for Resentencing
In August 2022, Flores filed a petition for resentencing under section 1172.6. In October 2022, he filed a second petition in which he declared: (1) an information filed against him allowed the prosecution to proceed under the natural and probable consequences theory; (2) he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder; and (3) he could not presently be convicted of attempted murder because of changes made to sections 188 and 189. Counsel was appointed and filed a brief in support of Flores's petition for resentencing and issuing an OSC.
In February 2023, the trial court conducted a hearing to address whether Flores had made a prima facie case for relief. After hearing argument, the trial court denied Flores's petition for resentencing. Several days after the hearing, the trial court issued a written order denying the petition. In the order, the court ruled that the record of conviction consisted of: (1) the felony complaint; (2) the information, (3) an amended information, (4) the abstract of judgment, (5) the guilty plea form, (6) the court minutes, and (7) two protective orders issued against Flores, respectively, on April 21, 2015 and May 25, 2017. The court found: "In this case the Petitioner has not made a prima facie showing that any vicarious liability theory would or could have been used. There is no assertion in any part of the record of this case that this crime involved any perpetrator other than the defendant. From the current record of conviction, Petitioner is the only person who is charged with responsibility for the crime. Where only one person is the perpetrator, as in this case, the theory of vicarious liability cannot be used and therefore is not applicable, available, or possible for use. When there is no theory of vicarious liability pursued, applicable, available, or used, there is no prima facie showing made and this law cannot apply."
The trial court found the factual basis for Flores's guilty plea "exemplifies the intent of the Petitioner to attempt to kill Jane Doe 1" and was "sufficient to rebut the allegations of the Petition." Further, the court found: "All charging documents in this case are alleged against only one person, the Petitioner. [¶] The restraining orders issued in this case were all issued against only 1 person, the Petitioner. [¶] There is nothing in the Petition that suggests a person other than the Petitioner, was a perpetrator or conspirator, an accomplice, an aider or abettor or a participant in any role in this crime." "There is no offer of proof, facts presented, or theories of vicarious liability asserted. The only assertion of vicarious liability made in this Petition is the fill in the blank original petition."
DISCUSSION
I. Relevant Law: Procedures and Standards Under Section 1172.6
Under section 1172.6, a defendant convicted of attempted murder under the natural and probable consequences doctrine may file a petition in the sentencing court to have the conviction vacated and to be resentenced. (§ 1172.6, subd. (a)(1).) A defendant convicted of attempted murder is eligible for relief under section 1172.6 only if that conviction was based on the natural and probable consequences doctrine. (People v. Coley (2022) 77 Cal.App.5th 539, 548.) Thus, a defendant convicted of attempted murder either as an actual perpetrator or a direct aider and abettor is not eligible for relief. (People v. Cortes (2022) 75 Cal.App.5th 198, 204.)
Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided or abetted (called the target offense), but also of any other offense committed by the direct perpetrator that was the "natural and probable consequence" of the target offense (called the nontarget offense). (People v. Chiu (2014) 59 Cal.4th 155, 161.) A nontarget offense is the natural and probable consequence of a target offense "if, judged objectively, the [nontarget] offense was reasonably foreseeable." (Ibid.) "'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.'" (Ibid.)
To obtain relief under section 1172.6, a defendant convicted of attempted murder must allege these three conditions have been met: (1) the defendant was convicted based on a pleading that allowed the prosecution to proceed under the natural and probable consequences doctrine (§ 1172.6, subd. (a)(1)); (2) the defendant was convicted of attempted murder following a trial or accepted a plea offer in lieu of trial (id., subd. (a)(2)); and (3) the defendant could not presently be convicted of attempted murder as that offense is presently defined (id., subd. (a)(3)).
If the petition satisfies certain technical requirements, then the trial court appoints counsel if the defendant has requested one. (§ 1172.6, subd. (b)(3).) Next, "the prosecutor shall file and serve a response" and "[t]he petitioner may file and serve a reply within 30 days after the prosecutor's response is served." (Id., subd. (c).) Once briefing is completed, the trial court determines whether the defendant has made a prima facie case for relief. (Id., subd. (c).) If the court finds the defendant has made a prima facie case for relief, then the court must issue an OSC. (Ibid.)
In determining whether the defendant has made a prima facie case for relief under section 1172.6, the trial court's inquiry is limited: The court, accepting the petition's factual allegations as true, makes a "'"preliminary assessment"'" whether the defendant would be entitled to relief if those allegations were proven. (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) "'"If so, the court must issue an [OSC]."'" (Ibid.) Within 60 days of issuance of the OSC, the trial court must hold a hearing to determine whether the defendant is entitled to relief. (§1172.6, subd. (d)(1).)
If counsel is appointed and the parties are given the opportunity for briefing, the parties and the trial court may use the record of conviction to determine whether the defendant has made a prima facie case for relief under section 1172.6, subdivision (c). (Lewis, supra, 11 Cal.5th at p. 957.) "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." (Id. at p. 971.) The record of conviction may include the charging document and the plea form. (See, e.g., People v. Saavedra (2023) 96 Cal.App.5th 444, 448.) "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.'" (Lewis, supra, 11 Cal.5th at p. 972.) "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under 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."' [Citations.] '[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."'" (Id. at p. 971.)
II. Standard of Review
Denial of a petition for resentencing at the prima facie stage is warranted only if the record of conviction demonstrates the defendant is ineligible for relief as a matter of law. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) That is a purely legal conclusion subject de novo review. (Ibid.)
III. The Trial Court Erred by Denying Flores's Petition for Resentencing at the Prima Facie Stage
Because Flores pleaded guilty to attempted murder, the question presented to us is whether the record of conviction demonstrates, as a matter of law, that (1) the information did not allow the prosecution to proceed under a theory of murder under the natural and probable consequences doctrine, (2) Flores was not actually convicted under the natural and probable consequences doctrine, or (3) Flores could presently be convicted of attempted murder under the current law. (See People v. Flores (2022) 76 Cal.App.5th 974, 987.)
The information against Flores charged him with attempted murder in generic terms, according to the statutory definition of the offense. The information did not allege premeditation or deliberation or any particular theory of liability and did not preclude the prosecution from proceeding under the natural and probable consequences doctrine. (See People v. Rivera (2021) 62 Cal.App.5th 217, 233 (Rivera) ["neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded"].) The information as drafted allowed the prosecution to proceed under any theory of attempted murder. (Ibid.)
The firearm use enhancement allegation alleged that Flores "intentionally and personally discharged a firearm during the commission and attempted commission" of attempted murder but did not allege he discharged a firearm at the victim as the means by which he attempted to murder the victim. (Italics added.) As alleged, the firearm enhancement would encompass a situation in which Flores used or discharged a firearm in committing the target offense under a natural an probable consequences theory. The information included a count (count 2) for kidnapping, but the kidnapping victim was alleged to be Jane Doe No. 2, while the attempted murder victim was alleged to be Jane Doe.
The factual basis for Flores's guilty plea was also generic and did not foreclose liability under a natural and probable consequences doctrine. Flores admitted that he "willfully, unlawfully [and] knowingly [and] with the specific intent to kill, . . . attempted to murder Jane Doe #1, a human being, and I personally used a firearm in the commission of this felony." "[S]pecific intent to kill" is an element of attempted murder and is the equivalent of express malice. (People v. Smith (2005) 37 Cal.4th 733, 739; People v. Lee (2003) 31 Cal.4th 613, 623.) When a defendant is found guilty of attempted murder under a natural and probable consequences theory of liability, the specific intent to kill is imputed to the defendant from the actual killer or perpetrator. (People v. Montes (2021) 71 Cal.App.5th 1001, 1007.) Thus, the factual basis for Flores's guilty plea, though admitting a specific intent to kill, did not demonstrate as a matter of law that Flores was not convicted, or could not have been convicted, under the natural and probable consequences doctrine.
In the factual basis for the plea, Flores admitted he personally used a firearm in the commission of the attempted murder count. But use of a firearm does not necessarily mean discharging a firearm. (Compare § 12022.53, subd. (b) with id., subd. (c).) Use of a firearm does not mean Flores used the firearm as the perpetrator as the means of attempting to kill the victim. Nor does true finding on a firearm enhancement establish the defendant acted with malice aforethought: "Because an enhancement under section 12022.53, subdivision (d) does not require that the defendant acted either with the intent to kill or with conscious disregard to life, it does not establish that the defendant acted with malice aforethought." (People v. Offley (2020) 48 Cal.App.5th 588, 598.) The record of conviction therefore does not foreclose the possibility the firearm was used in commission of the target offense under a natural and probable consequences theory.
The trial court deemed two criminal protective orders against Flores to be part of the record of conviction. The protective orders were issued, respectively, on April 21, 2015 and January 18, 2019. The court believed the protective orders supported denial of Flores's petition for resentencing because they "were all issued against only 1 person, the Petitioner." Neither Flores nor the Attorney General argues the relevance of the protective orders to the denial of Flores's petition. We conclude the protective orders do not foreclose relief under section 1172.6 because they do not reveal any facts about the basis and reason for their issuance.
The trial court found that Flores had failed to meet his prima facie burden of showing that "[a]ny other person was involved as a participant in the crime ...." At the prima facie stage, the court's inquiry is limited to making the determination whether the defendant's allegations, accepted as true, would entitle the defendant to relief. (Lewis, supra, 11 Cal.5th at p. 971.) Flores met his burden of making a prima facie case: He was not required to make a showing beyond the allegations of his petition for resentencing. (People v. Flores, supra, 76 Cal.App.5th at p. 987.) The record of conviction's failure to disclose whether others were charged for the attempted murder is not dispositive of Flores's eligibility for relief under section 1172.6. It is possible a principal or an aider and abettor was charged separately-outside the record of conviction-or could not be charged because, for example, the principal or aider and abettor had died, or the prosecution for whatever reason decided not to charge anybody else for the crime. The record of conviction did not therefore refute the allegations of Flores's petition.
One California Supreme Court case and three Court of Appeal cases support our conclusion that Flores's guilty plea did not foreclose relief as a matter of law under section 1172.6. Recently, in People v. Curiel (2023) 15 Cal.5th 433, the California Supreme Court held that a jury's finding on a gang-murder special circumstance that the defendant intended to kill did not in itself conclusively establish that the defendant, who had been convicted of first degree murder, was ineligible for relief under section 1172.6. (Curiel, at pp. 440-441.) The Supreme Court concluded that "the trial court erred by denying [the defendant's] petition for resentencing at the prima facie stage." (Id. at p. 471.) "While the jury separately found [the defendant] intended to kill, such an intent standing alone is insufficient to establish the requisite mens rea for aiding and abetting murder." (Id. at p. 468.) Accordingly, under Curiel, the factual basis for Flores's guilty plea, by admitting specific intent to kill, did not in itself conclusively establish that Flores had the requisite mens rea for perpetrating or aiding and abetting attempted murder.
In Rivera, supra, 62 Cal.App.5th 217, the defendant pleaded no contest to charges that he "'willfully, unlawfully[,] and with malice aforethought'" committed second degree murder. (Id. at p. 225.) The defendant stipulated that the grand jury transcript serve as the factual basis for that plea. (Id. at pp. 225-226.) The trial court denied the defendant's section 1172.6 resentencing petition at the prima facie stage on the ground the defendant's no contest plea foreclosed relief. (Rivera, at pp. 226-227.)
The Court of Appeal reversed. The court first noted that the "generic manner" in which the defendant was charged with murder did not limit the prosecution to prosecuting the defendant on any particular theory. (Rivera, supra, 62 Cal.App.5th at p. 233.) Although the defendant's no contest plea admitted every element of the charged offense of murder, including malice aforethought, malice could be imputed to the defendant under the felony-murder rule or the natural and probable consequences doctrine. (Id. at p. 234.) Because the defendant could have been guilty based on a theory of imputed malice, he need not have harbored express or implied malice to be convicted of second degree murder. (Ibid.) Thus, the court concluded the defendant's admission that he committed murder as charged was not an admission that he acted with actual malice. (Ibid.) The defendant's stipulation to the grand jury transcript as the factual basis for the plea could not be used to demonstrate the defendant admitted to acting with actual malice. (Id. at p. 235.)
The Court of Appeal emphasized that the defendant had made no admissions related to the murder other than pleading no contest to the murder count as charged. (Rivera, supra, 62 Cal.App.5th at p. 234.) The court acknowledged that "[i]n some cases, the record may reveal that a defendant admitted more than the elements of the offense charged, and such additional admissions may preclude relief under section [1172.6]." (Ibid.)
In People v. Eynon (2021) 68 Cal.App.5th 967 the defendant pleaded guilty to first degree murder based on a charge that he and a codefendant "did wilfully, unlawfully, and with deliberation, premeditation, and malice aforethought murder [the victim]" during the commission of a robbery. (Id. at p. 971.) As the factual basis for the guilty plea, the defendant admitted that he did "'what Count 1 of th[e] Information says [he] did, when it says [he] did it.'" (Ibid.) The defendant also agreed "'this was a first-degree murder by virtue of being a felony murder; that being murder that occurred during the commission of a robbery.'" (Id. at p. 972.) The defendant later brought a resentencing petition, which the trial court denied at the prima facie stage on the ground defendant's guilty plea "'would have required at least a finding of a major participant with reckless indifference.'" (Ibid.)
The Court of Appeal concluded, "Rivera's analysis applies with equal force here" and reversed. (People v. Eynon, supra, 68 Cal.App.5th at p. 977.) The defendant was not alleged to be the actual killer and the "generic murder charge allowed the prosecution to proceed on any theory of liability, including natural and probable consequences of felony murder." (Ibid.) By pleading guilty and admitting that he did what the murder count alleged he did, the defendant did not admit that he acted with malice: "Rather, he admitted that the charged murder took place and that he committed an act with the necessary intent to render him liable for that murder under then-existing law." (Id. at p. 978.) Because the "[t]hen-existing law did not require [the defendant] to act with malice in order to be guilty of murder, [his guilty] plea and factual admissions did not include an admission that he acted with malice. (Id. at p. 978.)
Flores, like his counterparts in Rivera and Eynon, pleaded guilty to generic charges that would have permitted him to be prosecuted under the natural and probable consequences doctrine. The factual basis for Flores's guilty plea was phrased to admit only the generic elements of attempted murder. The information did not allege Flores acted with premeditation and deliberation. Flores made no admissions related to the murder other than pleading guilty and admitting he used a firearm in the commission of the offense. Because Flores could have been prosecuted under a theory of imputed malice, his guilty plea and its factual basis did not constitute an admission that he acted with malice.
Saavedra, supra, 96 Cal.App.5th 444, a recent opinion by a panel of this court, demonstrates by contrast why Flores's guilty plea does as a matter of law foreclose relief under section 1172.6. In Saavedra, the defendant pleaded guilty to attempted deliberate premediated murder and offered this factual basis for his plea: "'On June 23, 2002 in Orange County, I willfully, unlawfully and with malice aforethought attempted to murder [three] human beings, by personally discharging a firearm at the vehicle [they] were occupying, within the meaning of . . . Section 12022.53[, subdivision(c)].'" (Id. at pp. 446-447.) The Court of Appeal affirmed an order denying the defendant's petition for resentencing under section 1172.6 because "[t]his factual basis establishes [the defendant] was the actual shooter; that is, he actually attempted to murder the victims by shooting at their vehicle." (Saavedra at p. 448.) The defendant admitted in the factual basis for his guilty plea that "he attempted to murder the victims by means of discharging a firearm into the car in which they were in." (Ibid.) The defendant thus admitted more than the elements of the charged offenses: "[I]t is the statement that [the defendant], with malice, attempted to murder the victims by discharging a firearm into their car that renders him ineligible for relief as a matter of law." (Ibid.)
But Flores, unlike the defendant in Saavedra, admitted only the charged elements of attempted murder. Flores did not admit specific facts, such as shooting into the car in which the victims were seated, which were admitted by the defendant in Saavedra. While the factual basis of the guilty plea in Saavedra could not possibly "be construed as potentially imposing liability under the natural and probable consequences doctrine" (Saavedra, supra, 96 Cal.App.5th at p. 448), the factual basis for Flores's guilty plea did not foreclose that possibility.
DISPOSITION
The postjudgment order denying Flores' petition for resentencing is reversed and the matter is remanded with directions to the trial court to issue an OSC and conduct an evidentiary hearing.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.