Opinion
B318093
06-28-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL GARZON, Defendant and Appellant.
Jonathan E. Demson, 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, Assistant Attorney General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA387152 Craig E. Veals, Judge. Reversed.
Jonathan E. Demson, 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, Assistant Attorney General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Robert Daniel Garzon (defendant) appeals from the order denying his petition for vacatur of his murder conviction and resentencing, filed pursuant to Penal Code former section 1170.95 (now § 1172.6). Defendant contends the trial court erred by denying his petition without appointing counsel and conducting an evidentiary hearing pursuant to section 1172.6, subdivision (d). He asserts that the order must therefore be reversed and the matter remanded. We agree and reverse and remand with directions.
Effective June 30, 2022, Penal Code former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new number. All further unattributed code sections are to the Penal Code unless otherwise stated.
BACKGROUND
In May 2012, defendant was charged in counts 1 and 2 with having committed in 2011 "attempted willful, deliberate, and premediated murder, in violation of section 664/187(a) . . . with malice aforethought," along with the allegation that the attempted murders were committed willfully, deliberately and with premeditation within the meaning of section 664, subdivision (a). Also alleged were firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d), and a gang enhancement pursuant to 186.22, subdivision (b)(1)(C).
The information also charged one count of assault with a firearm (§ 245, subd. (a)(2)) and one count of felon in possession of a firearm (former § 12021, subd. (a)(1)).
In August 2012, an amendment was filed adding an allegation that defendant personally inflicted great bodily injury on the attempted murder victim, within the meaning of section 12022.7, subdivision (a), and adding an additional gang allegation under section 186.22, subdivision (b)(5), which provides a minimum parole period for certain life terms.
On February 7, 2014, pursuant to a plea agreement, defendant pled guilty to count 1 and admitted the firearm enhancement allegation under section 12022.53, subdivision (c), as well as the gang allegation under section 186.22, subdivision (b)(1)(C). Counsel stipulated to the police report establishing a factual basis for the plea. On August 18, 2014, defendant was sentenced to a total determinate term of 39 years in prison, consisting of the high term of nine years, plus 20 years for the firearm allegation, and 10 years for the gang allegation. Counts 2, 3, and 4 were dismissed.
Thereafter the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended sections 188 and 189, the laws pertaining to felony murder and murder under 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).) What is now section 1172.6 passed, which provides a procedure to petition for retroactive relief for those who could not be convicted under sections 188 and 189 as amended effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) That procedure has since been extended to those convicted of attempted murder under the natural and probable consequences doctrine. (See Stats. 2021, ch. 551, § 2.)
On December 8, 2021, defendant filed a petition for vacatur of his attempted murder conviction and for resentencing as permitted under section 1172.6, subdivision (a) for those convicted of attempted murder and who qualify for relief. Defendant requested appointment of counsel.
Attached to the petition were 13 unauthenticated documentary exhibits, including but not limited to alleged excerpts from the police investigative report and the preliminary hearing transcript. The list of exhibits included the following allegations: there was a second suspect, who was seen running and jumping a nearby residential fence; witnesses identified the shooter as wearing a black baseball cap; the cap was found near the property where the second suspect jumped the fence; DNA recovered from the cap was not defendant's; defendant was apprehended soon after fleeing and no gun was ever recovered; the 911 caller could not identify defendant as the shooter; after defendant was taken into custody and the area was searched, the second suspect was not found.
On December 30, 2021, the trial court denied the petition without appointing counsel or requiring a response from the prosecution.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
I. The denial was based on prohibited factfinding
Defendant contends the trial court erred in denying the petition, as it satisfied the statutory criteria for a prima facie showing of eligibility for relief under section 1172.6.
We agree that defendant's petition alleged the three qualifying conditions specified in subdivision (a) of section 1172.6, by alleging that the charging document filed against him for attempted murder allowed the prosecution to proceed under the natural and probable consequences doctrine, that he was convicted of attempted murder after accepting a plea offer in lieu of a trial at which he could have been convicted of attempted murder, and that he could not presently be convicted of attempted murder because of changes to section 188 or 189 made effective January 1, 2019. Defendant's petition also included the information required by section 1172.6, subdivision (b)(1), a declaration that he was eligible for relief under this section based on the requirements of section 1172.6, subdivision (a), the superior court case number and year of his conviction, and a request for the appointment of counsel. Thus the trial court was required to appoint counsel, invite the prosecution to file and serve a response, and allow defendant opportunity to file a reply prior to assessing whether a prima facie case for relief was made under the statute. (§ 1172.6, subds. (b) &(c); see Lewis, supra, 11 Cal.5th at pp. 957, 960, 962, 964.)
A court is permitted to consider the record of conviction at this stage only after appointing counsel and entertaining briefing by both sides. (Lewis, supra, 11 Cal.5th at pp. 964, 971-972.) Then, if the record of conviction contains facts refuting the allegations made in the petition as a matter of law, no prima facie showing can be made, and the petition is properly denied. (Id. at p. 971.) For example, in a jury trial where no instructions were given regarding felony murder or the natural and probable consequences doctrine, a petitioner is ineligible for relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.)
However, even after appointing counsel and entertaining briefing, the trial court's prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) The trial court is required to accept factual allegations as true unless refuted as a matter of law by a permissible review of the record of conviction (Id. at pp. 971-972), and it "must draw 'all factual inferences in favor of the petitioner'" (People v. Clayton (2021) 66 Cal.App.5th 145, 153). "As a matter of law" means that the record of conviction conclusively refutes the allegations of the petition without resort to factfinding, weighing of evidence, or credibility determinations. (People v. Lopez (2022) 78 Cal.App.5th 1, 14; see Lewis, supra, at pp. 957, 970-972.)
It appears from the trial court's order, however, that the court omitted the prima facie review altogether and directly ruled on the merits of the petition based upon its review of unspecified portions of the record of conviction. It also appears that the trial court's ruling was based upon drawing inferences in favor of its ruling, after weighing evidence and disbelieving defendant's allegations.
The court issued this order explaining its denial: "The facts of the case show that petitioner positioned his car next to that of the victims and fired as many as seven rounds at them. One of the victims, Mr. Rodriguez, was shot in the stomach (but survived the attack). [¶] Petitioner is not entitled to the relief sought for several reasons. First, the theory pled and unquestionably advanced by the prosecution was that petitioner 'attempted willful, deliberate and premediated murder,' and that he did so 'unlawfully and with malice aforethought.' Second, petitioner was the actual shooter, and confessed to this by admitting the Penal Code section 12022.53, subd. (c) allegation. (See Penal Code § 189, subd. (e).) Thus, there is nothing in the case to support petitioner's claim the prosecution resorted to any theory of derivative criminal liability."
II. The plea to count 1 did not conclusively establish ineligibility
Defendant contends the trial court erred in finding his guilty plea to attempted murder necessarily included an admission to malice aforethought. We agree. The information does not establish the only theory advanced by the prosecution was that defendant committed "attempted willful, deliberate and premediated murder" and that he did so "unlawfully and with malice aforethought." It is not required to allege the manner in which a murder was committed, and "neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded." (People v. Rivera (2021) 62 Cal.App.5th 217, 233.) "[T]he allegation that a murder was committed 'willfully, unlawfully, and with malice aforethought' is a generic charge permitting the prosecution to proceed on any theory of murder"; thus, admitting to a murder so charged means only that the element of malice was satisfied, not that the defendant admitted that he personally acted with actual malice. (Id. at p. 234; accord, People v. Flores (2022) 76 Cal.App.5th 974, 987; People v. Eynon (2021) 68 Cal.App.5th 967, 970-971.)
Furthermore, defendant was charged in 2012, at a time when an accomplice to the perpetrator of attempted murder could be convicted of premeditated attempted murder under the natural and probable consequences doctrine, without having the intent to kill or even knowing his accomplice intended to kill. (See People v. Favor (2012) 54 Cal.4th 868, 879-880.) An accomplice also "'[could] be convicted of aiding and abetting without the accusatory pleading reciting the aiding and abetting theory so long as defendant [was] charged in that pleading as a principal to the substantive offense and thus receive[d] notice of the charge against him.'" (People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12.)
Defendant's petition alleged in essence that he was one of at least two accomplices. Under the natural and probable consequences doctrine, an accomplice could be found guilty not only of the crime he intended to directly aid or abet (the target offense), but also vicariously liable for any unintended crime committed by the direct perpetrator that was the natural and probable consequence of the target crime. (People v. Gentile (2020) 10 Cal.5th 830, 843.) Under the amendments enacted by Senate Bill No. 1437 and Senate Bill No. 775 (2021-2022 Reg. Sess.), an accomplice can no longer be convicted of murder or attempted murder under the natural and probable consequences doctrine. (People v. Sanchez (2022) 75 Cal.App.5th 191, 196197.)
Although defendant's petition did not specifically allege that that he was not the actual perpetrator of the shooting of victim Rodriguez, the petition alleged under penalty of perjury that he could not presently be convicted of attempted murder because of changes to section 188 or 189 made effective January 1, 2019. The Legislature amended former section 1170.95, effective January 1, 2022, to clarify that those convicted of attempted murder under the natural probable consequences doctrine are permitted the same relief as those convicted of murder under the same theory. Thus, Senate Bill No. 775 extends the purpose of Senate Bill No. 1437, "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)); see Stats. 2021, ch. 551, § 1(a).) By alleging he could no longer be convicted under the amended murder laws, defendant has in effect alleged that he did not personally shoot the victim or harbor an intent to kill.
The People rely on People v. Romero (2022) 80 Cal.App.5th 145, 152-153, as authority for finding that defendant's plea of no contest amounted to an admission that he committed attempted murder with premeditation and malice aforethought. Their reliance on Romero is misplaced, however, as the defendant in that case was charged with first degree murder and admitted the separately charged allegation that he acted intentionally, deliberately, and with premeditation. (Id. at p. 149.) Here, the premeditation allegation was separately charged but not admitted by defendant as in Romero. Indeed, the Romero court distinguished People v. Rivera, supra, 62 Cal.App.5th at page 217 and People v. Flores, supra, 76 Cal.App.5th at page 987 on this ground, agreeing with "cases that have held that a generic charge of murder committed '"willfully, unlawfully, and with malice aforethought,"' does not specify or exclude any particular theory of murder and thus does not establish ineligibility for resentencing as a matter of law." (Romero, supra, at p. 153.)
III. The firearm admission did not conclusively establish ineligibility
Citing People v. Offley (2020) 48 Cal.App.5th 588 (Offley), defendant asserts his admission that he personally and intentionally discharged a firearm did not constitute an admission that he was the actual perpetrator. Offley held "[b]ecause 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." (Id. at p. 598.)
As relevant here, section 12022.53, subdivision (d) provided in 2012, as now, a sentence enhancement for persons who personally and intentionally discharge a firearm and proximately cause great bodily injury in the commission of attempted murder (or other specified felony). The Offley court explained: "Both express and implied malice require proof of the defendant's mental state. In the case of express malice, the defendant must have intended to kill. [Citation.] Implied malice also involves a mental component, namely a '"conscious disregard for the danger to life that the [defendant's] act poses."' [Citation.] This requires '"examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his or her actions." [Citation.] "It is not enough that a reasonable person would have been aware of the risk."' [Citation.] [¶] Section 12022.53, subdivision (d) provides that the defendant must have intended to discharge a firearm, but does not refer to an 'intent to achieve any additional consequence.' [Citation.] It is thus a general intent enhancement, and does not require the prosecution to prove that the defendant harbored a particular mental state as to the victim's injury or death." (Offley, supra, 48 Cal.App.5th at p. 598.)
Here, defendant admitted the firearm enhancement alleged under subdivision (c) of section 12022.53, which is similar to subdivision (d) but omits the requirement that it proximately cause great bodily injury or death. As relevant here, it provides: "Notwithstanding any other law, a person who, in the commission of [attempted murder], personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (§ 12022.53, subd. (c).) The omission of the link between the discharge and physical harm in section 12022.53, subdivision (c) means that defendant's admission to a subdivision (c) finding does not conclusively establish that his firearm discharge caused the victim's great bodily harm.
The People argue that Offley is distinguishable because in that case there were multiple shooters, whereas here, per the People, defendant was the sole shooter and pled guilty to the attempted murder of Rodriguez by use of a firearm. As we have discussed above, however, defendant's plea did not include an admission that he was the sole shooter, that the bullet he fired was the bullet that struck Rodriguez, or that he intended to shoot Rodriguez.
Nor did defendant admit that he fired all seven rounds, as the trial court inferred. Defendant admitted only that he was a shooter in the crime, but he did not include any of the particular facts that the trial court inferred. Thus, although the firearm admission might support an inference that defendant was the actual perpetrator who acted with the intent to kill, it was not, as the court found, a confession that he was the sole shooter, the actual perpetrator of the shooting of victim Rodriguez, or intended to kill him, such that the court could so conclude as a matter of law.
The People argue that defendant's admission of the gang enhancement in combination with his firearm enhancement was "tantamount to an admission that he personally used or discharged the firearm in the attempted murder of Rodriguez, and another principal did not." Reasoning that because subdivisions (a) through (d) of section 12022.53 require personal use or discharge, whereas the gang-related firearm enhancement of subdivision (e) does not, the fact that defendant admitted the enhancements alleged pursuant to section 186.22, subdivision (b)(1)(C) and under section 12022.53, subdivision (c), instead of section 12022.53, subdivision (e), means that there was no other principal, and thus defendant was the sole perpetrator. People v. Brookfield (2009) 47 Cal.4th 583, 594, does not provide support for their reasoning, but merely holds that "a defendant who personally used or discharged a firearm in a gang-related felony specified in section 12022.53 will be subject to greater punishment for both gang participation under section 186.22 and firearm use under section 12022.53, but an accomplice who . . . did not personally use or discharge a firearm would be subject to an increased sentence under only one of those two statutes."
The People also claim that People v. Cornelius (2020) 44 Cal.App.5th 54, provides an apt example of their argument. The California Supreme Court granted review in Cornelius and subsequently dismissed the petition for review, remanded the matter, and deemed the case "non-citable and nonprecedential 'to the extent it is inconsistent with' [the] decision in Lewis[, supra, 11 Cal.5th 952]." (People v. Cornelius (Oct. 27, 2021, S260410) [review dism.].) No attempt has been made to show that it is not inconsistent with Lewis. Moreover, Cornelius was not a gang case or a plea case, and the only common issue with this case was whether the trial court erred in failing to appoint counsel and accept briefing. The Cornelius court found that defendant was ineligible for resentencing as a matter of law based on the jury instructions and verdicts, without any discussion of the instructions given or the content of the verdict forms except the jury found true the allegations under former section 12022.5, subdivision (a)(1) and section 12022.53, subdivision (d). (Cornelius, supra, at p. 56.) Thus, as Cornelius is not comparable to this case or supportive of the People's argument, we reject it.
IV. The factual basis stipulation did not establish ineligibility
Since the court was not clear on the part of the record of conviction from which it derived the facts recited in its order, the People surmise it relied on the preconviction probation report, which they cite here for a similar statement of facts. The People suggest the probation report may be relied on because counsel stipulated to the police report as the factual basis for defendant's guilty plea, and the probation report included a factual summary based on parts of the arrest report. Also because of the stipulation of the police report as the factual basis, the People too refer to facts contained in the police investigative report attached to defendant's petition, claiming that these facts are "undisputed" and show as a matter of law that defendant was the actual shooter and therefore ineligible for relief under section 1172.6.
For a factual basis for a guilty plea, the law "does not require more than establishing a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant's guilt." (People v. Holmes (2004) 32 Cal.4th 432, 441, fn. omitted; see § 1192.5.) As counsel's stipulation to the police report was made with no reference to any particular facts, the stipulation did not establish an admission to any particular facts. (See Holmes, at pp. 441-442; accord, People v. Rivera, supra, 62 Cal.App.5th at pp. 234-235.)
Nevertheless, as the People claim, the facts are not undisputed. By attaching exhibits, defendant in effect alleged there was at least one accomplice with him during the shooting. Neither the probation report's summary nor the police investigative report shows as a matter of law that defendant was the sole shooter. Indeed the probation report states that after defendant's arrest two other suspects remained outstanding, and the investigative report states there were two suspects.
The People point out the exhibits attached to defendant's own resentencing petition contain facts supporting their single shooter arguments and appear to be asserting that defendant waived any objection to using those exhibits to make factual findings, which justify the denial of his petition. To the extent they may be suggesting the trial court can rely on such an implied waiver at the prima facie stage of the proceedings, prior to the appointment of counsel, and prior to briefing, the arguments demonstrate our Supreme Court's caution that "'section [1172.6] requires legal and factual inquiry into complex legal theories (felony murder, and natural and probable consequences) not easily understood by an unrepresented litigant.' Appointing counsel to assist a petitioner in navigating these complex theories, upon the filing of a facially sufficient petition, promotes the reliability of section [1172.6's] petitioning process and thereby advances Senate Bill 1437's stated purpose." (Lewis, supra, 11 Cal.5th at p. 967.) In light of the court's caution, we decline to infer a waiver.
The People also point out in excerpts of preliminary hearing testimony attached to defendant's petition, that some witnesses testified there was one shooter and some identified defendant as the shooter; and because defendant has not disputed such testimony or identified any evidence to show he was not the only shooter, the preliminary hearing testimony is undisputed and conclusively shows defendant was the only shooter. The People make this claim even though there was also eyewitness testimony there may have been two suspects. Thus, as we interpret the argument, it is essentially that at the prima facie stage inferences may be drawn in favor of the court's ruling from facts found in preliminary hearing testimony; that such inferences are conclusive unless the defendant makes an offer of proof or submits evidence to dispute them; and that, even then, the court may reject the offer of proof and disbelieve defendant's evidence. This is contrary to the requirement the court must draw all factual inferences in favor of defendant's petition (People v. Clayton, supra, 66 Cal.App.5th at p. 153) and was prohibited at the prima facie stage to make credibility determinations. (Lewis, supra, 11 Cal.5th at pp. 971-972.)
Moreover, the People acknowledge People v. Davenport (2021) 71 Cal.App.5th 476, 481-484, which held that in guilty plea cases the court may not consider facts from preliminary hearing transcript at the prima facie stage unless the petitioner stipulated to the transcript as a factual basis for his plea; but argue that, because defendant attached the documents, they could be considered by the trial court. Defendant did not stipulate to the preliminary hearing testimony as a factual basis, and we have already rejected the People's suggestion that defendant implicitly waived any objection to using the exhibits attached to the petition by making factual findings, which justify denying his petition. Nevertheless, the People invite this court to disagree with Davenport and, quoting People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167, assert that the following passage supports an opposing view: "A finding of ineligibility may be premised on readily ascertainable facts from the record leading to a guilty or no contest plea, such as information in the defendant's preliminary hearing ...." Nguyen does not support the People's argument. There, unlike here, the defendant stipulated to the preliminary hearing transcript as a factual basis for his plea, and upon receipt of the defendant's section 1172.6 petition, the court appointed counsel and received briefing from the parties, who agreed to the consideration of the transcript. (People v. Nguyen, at pp. 1161-1162, 1166.)
As previously discussed, even if the preliminary hearing testimony could be properly considered at this stage, it does not present "undisputed" facts. The testimony suggests that defendant may have been accompanied by one or more accomplices, that witnesses had seen the shooter wearing the hat that was found near the property where a suspected accomplice had jumped the fence, that defendant's DNA was not on the hat, and that no gun was found.
In sum, as stated in People v. Cooper (2020) 54 Cal.App.5th 106, 112: "The trial court's ruling that [defendant] was ineligible for relief as a matter of law was therefore mistaken, because it was based on impermissible factfinding that accepted the truth of the preliminary-hearing testimony [and other evidence] without giving [defendant] the opportunity to challenge that testimony."
V. The errors were not harmless
As defendant's section 1172.6 petition was denied without the issuance of an order to show cause, defendant's burden is to show prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, by demonstrating a reasonable probability that if he had been afforded assistance of counsel his petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974.)
Defendant argues that a prima facie showing of eligibility was made, as the petition adequately alleged the conditions for relief, and there was nothing in the record that the court could properly rely on at this stage that conclusively refuted his allegations. He concludes that the denial must be reversed and the matter remanded for the appointment of counsel, issuance of an order to show cause, and a hearing pursuant to section 1172.6, subdivision (d).
When the trial court denies a facially sufficient petition requesting counsel, but fails to appoint counsel and give the parties an opportunity to submit briefing before denying the petition, "the denial of counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, [but it is] not harmless [where, as here,] the conviction was based on a plea whose particular factual basis was never established." (People v. Cooper, supra, 54 Cal.App.5th at p. 112.) Nor is it harmless where the trial court mistakenly finds ineligibility as a matter of law "based on impermissible factfinding that accepted the truth of the preliminary-hearing testimony without giving [the defendant] the opportunity to challenge that testimony." (Ibid.) Without the assistance of counsel, petitioners "are unlikely to be in a position to marshal the type of evidence and arguments that the court apparently" expects from them when they deny petitions under such circumstances. (Id. at p. 126.)
As defendant's petition alleged the required conditions to state a prima facie showing of eligibility for relief under section 1172.6, and there was nothing in the record on which the court was permitted to rely on at this stage to establish that defendant was ineligible as a matter of law, a prima facie showing was made, and it is reasonably probable that the outcome would have been otherwise had defendant been represented by counsel. We therefore reverse the trial court decision and remand for the court to appoint counsel and proceed with an evidentiary hearing.
DISPOSITION
The order of December 30, 2021, denying defendant's section 1172.6 petition is reversed, and the matter is remanded with directions to appoint counsel for defendant, issue an order to show cause, and proceed with an evidentiary hearing pursuant to subdivision (d) of section 1172.6.
We concur: ASHMANN-GERST, Acting P. J. HOFFSTADT, J