Opinion
B330793
09-06-2024
THE PEOPLE, Plaintiff and Respondent, v. RAYSHAWN DEANTHONY LEWIS, Defendant and Appellant.
Allen G. Weinberg, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YA077188, Laura C. Ellison, Judge. Reversed and remanded, with directions.
Allen G. Weinberg, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
In 2010, defendant and appellant Rayshawn Deanthony Lewis pleaded no contest to one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)). In 2022, appellant filed a petition for resentencing pursuant to section 1172.6. Following the appointment of counsel, prima facie hearing, and motion for reconsideration, the trial court summarily denied appellant's petition. In so doing, the court relied on hearsay statements from appellant's preliminary hearing.
Subsequent references to statutes are to the Penal Code.
Appellant contends, and we agree, that the trial court erred by engaging in impermissible factfinding during its prima facie review. We reverse the order summarily denying appellant's petition and direct the trial court to vacate its prior order, issue an order to show cause, and hold an evidentiary hearing.
FACTUAL BACKGROUND
Our summary of the facts is taken from the transcript of appellant's preliminary hearing. We recite these facts only for context. We do not rely on them in resolving this appeal.
On December 31, 2008, Los Angeles Police Department Detective Jack Aranda responded to a shots-fired call in the City of Inglewood. By the time Detective Aranda arrived at the scene, the victim, Clifton Walker, had been transported to a nearby hospital. Walker was unable to speak the day of the shooting and was interviewed by Detective Aranda several weeks later.
Detective Aranda testified about statements Walker made to him during a follow-up interview in January 2009. According to Detective Aranda, Walker stated he was riding his bicycle during the shooting. Detective Aranda testified, "He [(Walker)] stated after he rode past the suspect he looked back, at which time he saw the suspect removing a black revolver from a brown paper bag." Detective Aranda continued, "He [(Walker)] stated the suspect pointed the firearm at him and proceeded to fire approximately three shots in his direction." Walker was permanently paralyzed by the gunfire. Walker stated he recognized the shooter as an individual ("Lewis" or "Ray-Ray") associated with the Avenue Piru Blood gang. Walker identified appellant as the shooter in a six-pack photographic lineup.
PROCEDURAL BACKGROUND
A. Information, Plea, and Sentence
An information charged appellant with one count of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)). The information further alleged firearm, great bodily injury, and gang enhancement allegations (§§ 12022.53, subds. (d)-(b), (e)(1), 12022.7, subd. (a), 186.22, subd. (b)(1)(C)).
On May 10, 2010, appellant and his appointed counsel appeared before the trial court and entered a no contest plea to attempted murder. Appellant also admitted three enhancement allegations (§§ 12022.53, subd. (b), 12022.7, subd. (b), 186.22, subd. (b)(1)(B)). Defense counsel and the prosecution stipulated to a factual basis for the plea "based on the discovery provided in this case and [defense counsel's] investigation." The court accepted the plea and sentenced appellant to an overall term of 23 years imprisonment.
B. Petition for Resentencing, the Initial Prima Facie Hearing, and the People's Motion for Reconsideration
In March 2022, appellant filed a petition to vacate his attempted murder conviction. In his petition, appellant alleged (1) an information had been filed against him allowing the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine; (2) he was convicted of attempted murder after accepting a plea offer in lieu of 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, effective January 1, 2019.
The court appointed appellant counsel and accepted briefing by the parties. In their response, the People argued appellant was prosecuted and convicted as the actual perpetrator and shooter. In support, the People attached this court's prior decision affirming appellant's conviction on direct appeal (People v. Lewis (Feb. 24, 2011, B225549) [nonpub. opn.] (Lewis I), a reporter's transcript from appellant's preliminary hearing, and a minute order from appellant's plea.
The court held a prima facie hearing on February 16, 2023. At the hearing, the People recognized "splits all over the place" on the scope of a trial court's prima facie inquiry. Nevertheless, the People argued "the court can use the prelim[inary hearing transcript] not to find facts to make a determination [appellant] was or was not the shooter, that's not the question. The question is what theory was pursued by the government in prosecuting [appellant] in this case." Appellant's counsel disagreed, noting "this was a [Proposition] 115 prelim[inary hearing] where two officers testified, so there were no percipient witnesses.... There was no factual basis taken or stipulation to the prelim[inary] hearing transcript at the time of the plea." Siding with the "safer course" of reasoning, the court found appellant established a prima facie showing of eligibility for relief. The court issued an order to show cause and set the matter for an evidentiary hearing.
In 1990, voters approved Proposition 115, which amended Evidence Code section 872, subdivision (b), to allow a probable cause finding to be based upon hearsay testimony given by a law enforcement officer at a preliminary hearing. Section 872 provides: "Notwithstanding Section 1200 of the Evidence Code, the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted." (Evid. Code, § 872, subd. (b); see People v. Wimberly (1992) 5 Cal.App.4th 439, 442-443 & fn. 1.)
On May 23, 2023, the date set for an evidentiary hearing, the People filed a motion to reconsider the court's prior prima facie ruling in light of a new decision, People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023, S279670.
The appellate record does not include the People's reconsideration motion or any opposition thereto.
The court reviewed the reconsideration motion, heard argument, and entered an order granting it the same day. At the hearing, appellant's counsel distinguished between the source of evidence at issue in this case-a proposition 115 preliminary hearing-and those in Patton involving live witness testimony.
In so arguing, counsel stated, "This was a prop 115 prelim[inary hearing] where there was never anything other than [ ] allowable hearsay . . . which is not allowable in the 1172.6(d)(3) hearings." Counsel continued, "How many people were involved in the incident? Just because [appellant was] the only one charged in this case does not mean there were not multiple parties involved in the case."
Following argument, the court granted the reconsideration motion and summarily denied appellant's resentencing petition. The court reasoned it could "speculate. I'm not going to, but you can speculate that maybe other people were involved, but the facts of this case, at least from what we hear at the preliminary hearing transcript, clearly show . . . he was acting solely alone as a sole perpetrator ...."
DISCUSSION
Appellant contends the trial court erred in relying on hearsay testimony given by Detective Aranda at the preliminary hearing to summarily deny his resentencing petition. We agree.
A. Governing Law: Section 112.6
Through Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1) (S.B. 1437), the Legislature clarified the felony murder rule and eliminated the natural and probable consequences doctrine to ensure that any murder conviction and attached sentence is commensurate with individual culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis); accord, § 189, subd. (e).) The Legislature also added former section 1170.95 (now section 1172.6), pursuant to which individuals convicted of felony murder or murder under the natural and probable consequences doctrine may petition for vacatur of their convictions and resentencing. (§ 1172.6, subd. (a).)
Effective January 2022, Senate Bill No. 775 added persons convicted of "attempted murder under the natural and probable consequences doctrine," to those who could seek relief. Under amended section 1172.6, persons convicted of "attempted murder, . . . following a trial or [who] accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of . . . attempted murder" are entitled to vacatur of their conviction and subject to resentencing on any remaining count if they could not presently be convicted because of changes to section 188 or 189 made effective by Senate Bill No. 1437. (Stats. 2021, ch. 551, § 2; see § 1172.6, subd. (a).)
Within 60 days after service of a facially compliant petition, the prosecution must file and serve a response, after which the court must hold a hearing "to determine whether the petitioner has made a prima facie case for relief. If the petition makes [this] showing . . . the court shall issue an order to show cause" and set an evidentiary hearing. (§ 1172.6, subd. (c).) "The admission of evidence in the [evidentiary] hearing shall be governed by the Evidence Code, .... However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." (§ 1172.6, subd. (d)(3).) Stated otherwise, at a section 1172.6 evidentiary hearing a resentencing court generally may not rely on hearsay testimony given by a law enforcement officer at a preliminary hearing.
We review de novo whether the trial court properly denied a section 1172.6 petition without issuing an order to show cause. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
B. The Trial Court Erred in Relying on Hearsay Testimony
The trial court summarily denied appellant's resentencing petition after considering hearsay testimony from appellant's preliminary hearing to find he was the sole perpetrator of attempted murder. All involved in the prima facie hearing-the trial court, defense counsel, and the prosecutor-recognized the testimony was clearly hearsay. For the reasons that follow, we conclude the trial court erred in relying on this type of evidence at the prima facie stage.
At the prima facie hearing, the prosecutor acknowledged the preliminary hearing "was done via [Proposition] 115 testimony, ...." The prosecutor then admitted he "can't use [Proposition] 115 prel[iminary hearing] transcripts after the amendment to [Senate Bill] 775."
Our Supreme Court has forewarned the prima facie bar for stating a case for relief under section 1172.6 "'was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.) Under this "limited" review, a resentencing court may consider a petitioner's record of conviction, which "will necessarily inform the trial court's prima facie inquiry . . ., allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) Among the various documents comprising a record of conviction are certified transcripts of the preliminary hearing, change of plea, trial, and sentencing. (E.g., id. at p. 972; People v. Strong (2022) 13 Cal.5th 698, 703-704 (Strong); People v. Harden (2022) 81 Cal.App.5th 45, 42; People v. Sohal (1997) 53 Cal.App.4th 911, 915.)
The Supreme Court has also limited the manner in which a resentencing court reviews the record of conviction at the prima facie stage: "In reviewing any part of the record of conviction at this preliminary junction, 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.) Resentencing courts may not refute any allegations in a resentencing petition "unless the record [of conviction] conclusively establishes every element" of a currently valid and thus disqualifying offense. (People v. Curiel (2023) 15 Cal.5th 433, 450 (Curiel).)
The Supreme Court applied these principles in Curiel to jury verdicts, another set of documents comprising the record of conviction. (Curiel, supra, 15 Cal.5th at pp. 465-466.) There, the Court looked at the verdicts before it "and the factual findings they necessarily reflect, to determine whether the record of conviction refutes the factual allegations in Curiel's petition." (Id. at p. 465; accord, id. at p. 467 ["we must be confident the jury necessarily found" every element of currently valid offense].) The Court held they did not. (See id. at pp. 465-471.)
Consistent with these general principles, appellant invokes People v. Flores (2022) 76 Cal.App.5th 974 (Flores) and contends hearsay evidence from his preliminary hearing cannot render him ineligible for resentencing at the prima facie stage. We agree Flores is persuasive and apply its reasoning here.
Like this appeal, Flores arose out of a lower court's summary denial of a resentencing petition. (76 Cal.App.5th at p. 978.) Among the issues raised in Flores was whether the factual summary in an appellate opinion could refute the allegations appearing in the resentencing petition. (Id. at p. 988.) The court held it could not, reasoning section 1172.6, subdivision (d)(3) expressly limited the use of an appellate decision to its "'procedural history of the case recited....'" (Id. at p. 988.) The court reasoned, "If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (Ibid.)
Under the same logic, the Flores court found section 1172.6's exclusion of "'hearsay evidence that was admitted at a preliminary hearing pursuant to subdivision (b) of Section 872'" also applied at the prima facie stage. (Flores, supra, 76 Cal.App.5th at p. 988, quoting § 1172.6, subd. (d)(3).) "We fail to see how evidence that cannot establish a petitioner's ultimate eligibility for resentencing could establish a petitioner's ineligibility for resentencing at the prima facie stage." (Id. at p. 988, fn. 9.)
Like Flores, we fail to see how preliminary hearing testimony that could not be used to establish appellant's ultimate eligibility for resentencing at an evidentiary hearing could be used to establish his ineligibility for resentencing at the prima facie stage.
The People contend the preliminary hearing testimony from Detective Aranda "about what the victim told him in the hospital was not considered for its truth (i.e., that appellant, alone, shot the victim) but rather to demonstrate that appellant was prosecuted and convicted under the theory that he, alone, shot the victim." This argument is circular. To determine the prosecution's theory of the case, the lower court had to rely on Detective Aranda's testimony for the truth of the matter asserted: appellant was the sole perpetrator. The court relied on the hearsay testimony for its truth, though its probative value was uncertain. In addition, it was not clear the hearsay testimony supplied all the answers, as the lower court admitted it could "speculate that maybe other people were involved" in the underlying offense. Thus, reliance upon the hearsay constituted impermissible factfinding at the prima facie stage. (Curiel, supra, 15 Cal.5th at p. 465; Lewis, supra, 11 Cal.5th at p. 972.)
There is good reason for the prohibition against hearsay evidence at the prima facie stage. Hearsay testimony is generally inadmissible because it is qualitatively unreliable. (People v. Ayala (2000) 23 Cal.4th 225, 268.) Hearsay statements "'are not made under oath, the adverse party has no opportunity to crossexamine the declarant, and the jury cannot observe the declarant's demeanor while making the statements.' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610; accord, Williamson v. United States (1994) 512 U.S. 594, 598.) Absent any ability to judge a declarant's credibility (People v. Bob (1946) 29 Cal.2d 321, 325), hearsay statements are "not, as a rule, competent to establish any specific fact which in its nature is susceptible of being proven by witnesses who can speak from their own knowledge." (Pfister v. Dascey (1886) 68 Cal. 572, 574.)
There is also cause to be cautious about relying upon any preliminary hearing testimony at the prima facie stage. Courts are presently divided on the use of preliminary hearing testimony at the prima facie stage. (Compare Patton, supra, 89 Cal.App.5th at pp. 657-658, rev. granted; People v. Davenport (2021) 71 Cal.App.5th 476, 481; People v. Williams (2024) 103 Cal.App.5th 375, 398 (Williams).) Despite this ongoing tension, all agree that a resentencing court's ability to use any preliminary hearing testimony at the prima facie stage is limited to those facts that are either uncontroverted or factually admitted by the petitioner. (See, e.g., Patton, supra, 89 Cal.App.5th at p. 658; People v. Mares (2024) 99 Cal.App.5th 1158, 1175, rev. granted May 1, 2024, S284232; Davenport, supra, 71 Cal.App.5th at p. 483; Williams, supra, at p. 404.) Neither of these circumstances is present in this case. On the contrary, appellant's counsel challenged the nature and scope of the hearsay testimony at the prima facie hearing. This case is distinguishable from many of the cases cited by the People.
Thus, we conclude the trial court's reliance on disputed hearsay testimony from appellant's preliminary hearing constituted improper factfinding. In light of this conclusion, we decline to weigh in on the ongoing split in decisions addressing the general use of preliminary hearing testimony at the prima facie stage.
DISPOSITION
The order summarily denying appellant's petition for resentencing is reversed and the matter is remanded. On remand, the trial court is directed to vacate its prior order denying appellant's petition, issue an order to show cause, and hold an evidentiary hearing pursuant to section 1172.6, subdivision (d). We express no opinion on the merits of the resentencing petition at that hearing.
We concur: COLLINS, Acting P. J. ZUKIN, J.