Opinion
B331799
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LUTZ, 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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LA053834, Michael V. Jesic, Judge.
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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
In 2009, defendant and appellant Christopher Lutz pleaded no contest to one count of attempted murder. In 2023, appellant filed a petition for resentencing under Penal Code section 1172.6. Following the appointment of counsel and a prima facie hearing, the trial court summarily denied the petition after relying on facts obtained from a preliminary hearing transcript that was not made part of the appellate record.
Subsequent references to statutes are to the Penal Code.
Appellant contends, and we agree, that the trial court erred in finding him ineligible for relief as a matter of law. 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
The appellate record does not contain a reporter's transcript from appellant's preliminary hearing. "'Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.' [Citation.]" (People v. Merriam (1967) 66 Cal.2d 390, 397, overruled on another ground in People v. Rincon-Pineda (1975) 14 Cal.3d 864; see People v. Gonzales (1924) 69 Cal.App. 609, 612 [declining to consider quoted matter in appellate briefs taken at preliminary examination from which certified transcript was "not before" reviewing court].) Neither party has sought to add the transcript from the preliminary hearing. (See Cal. Rules of Court, rules 8.234, 8.340(c).) As appellant pleaded no contest after the preliminary hearing, and there was no trial, the record before us is inadequate to provide a factual background in this matter.
The Attorney General purports to furnish a "Statement of Facts" from appellant's presentence probation report. We decline to review this document for this purpose. The Attorney General provides no authority supporting a trial court's ability to rely on this type of report to relay case-specific facts during its prima facie review. Case law suggests this is inappropriate to do. (See People v. Del Rio (2023) 94 Cal.App.5th 47, 56 ["Ordinarily, a probation officer's report is not part of the record of conviction"]; People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 ["when determining eligibility for resentencing, a probation report 'cannot supply facts involving circumstances of the offense itself'"].)
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)), and alleged a gang enhancement allegation (§ 186.22, subd. (b)(1)(C)) and various firearm enhancement allegations (§ 12022.53, subds. (b)-(d)).
In addition to attempted murder (count 1), the information also charged appellant with two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 6), and one count of shooting at an occupied vehicle (§ 246; count 3). The information charged a co-defendant, Javier Fuentes, on count 6.
On May 27, 2009, appellant and his counsel appeared before the trial court and entered a no contest plea to "nonpremeditated attempted murder." Appellant admitted the gang enhancement allegation and an unalleged personal use of firearm allegation (§ 12022.5, subd. (a)). The court accepted the plea and modified the information by striking the premeditated attempted murder allegation and original firearm allegations and adding the agreed-upon allegation under section 12022.5, subdivision (a). Defense counsel and the prosecution stipulated to a factual basis for the plea "based on the probation reports, the police reports, and the preliminary hearing transcript in this case." Nevertheless, appellant entered his plea without admitting the factual truth of the allegations against him (see People v. West (1970) 3 Cal.3d 595).
The court accepted the plea and sentenced appellant to the upper term of nine years for attempted murder plus 10 years for the gang enhancement and an additional four years for the firearm enhancement.
The court dismissed counts 2, 3, and 6.
B. Resentencing Petition and Hearing
In January 2023, appellant filed a petition to vacate his attempted murder conviction under section 1172.6. 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.
Attached to the resentencing petition was a brief appellant used "to explain why he has made a prima facie case of eligibility for re-sentencing" under section 1172.6. In the brief, appellant argued the amended law "eliminated natural and probable consequences as a theory for liability for both murder and for attempted murder." Appellant averred he "accepted a plea offer in lieu of a trial at which [he] could have been convicted of attempted murder if [sic] found (1) that he aided and abetted the crime of assault with a firearm, and (2) the attempted murder was the natural and probable consequence of the offense. [Citation.] Since this theory is now invalid," appellant argued he was entitled to relief.
The court appointed appellant counsel and held a prima facie hearing on his petition on June 20, 2023. At the hearing, the court stated it had reviewed "both the petition and response by the People." It continued, "I do believe the People's position is well taken that [appellant] does not qualify for relief . . . based on the fact that he was the sole participant in this crime." The court then stated it "read the preliminary hearing transcript. Page [nine] he's identified as the shooter. And then on page 11 they actually describe the shooting itself. It was from [appellant] himself with the rifle. It doesn't look like he was prosecuted on any other theory other than being the actual shooter. He pled to the attempted murder and admitted the personal use allegation of the firearm."
The appellate record does not include the prosecution's opposition brief or any response brief by appellant.
Defense counsel argued the court was prohibited from relying on the preliminary hearing transcript to make findings of fact, weigh evidence, or make credibility determinations. Counsel noted a witness who testified at the preliminary hearing admitted to using methamphetamine throughout the day of the shooting and identified the shooter by "different aliases" at different times. Counsel indicated the witness used one alias to describe the shooter to law enforcement officers and another alias to later describe the shooter at the preliminary hearing.
Citing People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023, S279670 (Patton), the prosecutor "disagree[d] completely" with defense counsel's position. The prosecutor argued the preliminary hearing transcript could be used to establish appellant's ineligibility by determining whether he was "the actual perpetrator[ and] there's no imputed malice to him."
The court agreed with the prosecution, noting under Patton it could "look at the preliminary hearing transcript" to determine whether the "witness is saying there was [one] shooter. And that was it. It wasn't multiple perpetrators." Based on the preliminary hearing transcript, the court stated, "This was a straight attempted murder. [One] person [one] shooter. It wasn't . . . prosecuted as an aider and abettor" or under the natural and probable consequences doctrine. The court denied the petition.
Our Supreme Court granted review in Patton to decide whether a trial court engages in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny a resentencing petition at the prima facie stage. (Patton, supra, S279670.)
DISCUSSION
A. Governing Law
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 subdivision (a) of section 1172.6. 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).)
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.) Under this standard of review, we must independently review any documentary evidence on which the trial court makes findings of fact. (In re Stevenson (2013) 213 Cal.App.4th 841, 857 (Stevenson).)
B. Impermissible Factfinding at the Prima Facie Stage
Appellant contends the court erred by finding him ineligible for relief as a matter of law. In so arguing, appellant argues the court should not have weighed facts established by testimony from his preliminary hearing. We conclude on the record before us that appellant established his eligibility for relief requiring an order to show cause and evidentiary hearing.
1. Principles Applicable to the Prima Facie Stage
Appellant is correct that "the prima facie inquiry under subdivision (c) [of section 1172.6] is limited." (Lewis, supra, 11 Cal.5th at p. 971.) Our Supreme Court has made clear, "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.' [Citation.] . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Id. at p. 972.)
In People v. Curiel (2023) 15 Cal.5th 433, 450 (Curiel), the Supreme Court forewarned against expanding the "limited" nature of a prima facie review. There, the Court explained: "At the prima facie stage, a court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. (Lewis, supra, 11 Cal.5th at p. 971.) And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense. If only one element of the offense is established by the record, the petitioner could still be correct that he or she could not currently be convicted of the relevant offense based on the absence of other elements." (Curiel, supra, 15 Cal.5th at p. 463.)
Applying those principles, the Court in Curiel found several jury verdicts (another category of documents comprising the record of conviction) had issue-preclusive effect at the prima facie stage. (Curiel, supra, 15 Cal.5th at p. 465.) In so finding, the Court cautioned that its holding was limited to "the factual findings the[ verdicts] necessarily reflect, to determine whether the record of conviction refutes the factual allegations in Curiel's petition. [Citation.] If the jury has made a factual finding, and it is issue preclusive . . ., a court must give effect to that finding. [Citation.] A court giving effect to such a finding does not engage in '"factfinding involving the weight of evidence or the exercise of discretion."' [Citation.] It is simply 'distinguishing] petitions with potential merit from those that are clearly meritless' based on findings already made by the jury." (Ibid., italics added; accord, id. at p. 467 ["in order to find [a particular element of an offense] satisfied at the prima facie stage of section 1172.6 proceedings, we must be confident the jury necessarily found the [element] required" for a currently valid theory of homicide]; see also People v. Lopez (2022) 78 Cal.App.5th 1, 14 ["as a matter of law" means the record of conviction conclusively refutes petition allegation(s)].)
2. The Existing Tension in Appellate Decisions
Courts are divided on whether testimony from a preliminary hearing can be used at the prima facie stage to refute allegations of a resentencing petition seeking vacatur of a pleabased homicide conviction.
Several decisions have upheld summary denials at the prima facie stage based on "uncontroverted" facts taken from preliminary hearing testimony. (Patton, supra, 89 Cal.App.5th at pp. 657-658, rev. granted; accord, People v. Mares (2024) 99 Cal.App.5th 1158, 1165, 1174, rev. granted May 1, 2024, S284232 (Mares); People v. Pickett (2023) 93 Cal.App.5th 982, 989-991, rev. granted Oct. 11, 2023, S281643 (Pickett).)
The Supreme Court granted review and deferred further action in Mares and Pickett pending consideration and disposition in Patton. (Mares, supra, S284232; Pickett, supra, S281643.)
Other decisions allow findings of fact from preliminary hearing testimony insofar as the petitioner previously stipulated the testimony provided a factual basis for the plea. (See People v. Davenport (2021) 71 Cal.App.5th 476, 481; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166.)
Yet others prohibit the application of facts obtained from a preliminary hearing transcript that were never personally admitted by the petitioner. (See People v. Williams (2024) (June 28, 2024, F085868), Cal.App.5th, [2024 Cal.App.Lexis 429 (Williams) ["absent a factual finding or admission regarding the manner in which the offense was committed, even compelling, uncontroverted, and uncontradicted [preliminary hearing] testimony is not conclusive of a petitioner's guilt under a specific theory"]; People v. Flores (2022) 76 Cal.App.5th 974, 987-992 [petitioner "did not admit the truth of [the preliminary hearing] testimony and his stipulation that the transcript provided a factual basis for the plea is not a '"binding admission for all purposes'""]; People v. Rivera (2021) 62 Cal.App.5th 217, 235 [same].)
3. Analysis
We need not take a position in this disagreement because our de novo review of the current record fails to conclusively rebut the allegations in appellant's resentencing petition. At the time appellant was charged with attempted murder, an accomplice to the perpetrator of attempted murder could be convicted as a direct perpetrator or under the natural and probable consequences doctrine without having an intent to kill. (People v. Favor (2012) 54 Cal.4th 868, 879-880 ["it is only necessary that the attempted murder 'be committed by one of the perpetrators with the requisite state of mind'"].)
In his petition, appellant alleged he "accepted a plea offer in lieu of a trial at which [he] could have been convicted of [ ] attempted murder" on this very basis (i.e., he "aided and abetted the crime of assault with a firearm" in which "attempted murder was [the] natural and probable consequence of [the] offense"). The Attorney General points to nothing in the appellate record rebutting these allegations as a matter of law.
Appellant entered a no contest plea and his trial counsel stipulated to a factual basis for attempted murder. But appellant did not enter a plea to premeditated attempted murder; he pleaded no contest to attempted murder without premeditation. (Accord, Williams, supra, Cal.App.5th [p. 12].) At most, these record documents establish the elements under any theory of attempted murder, which do not "conclusively establish that [he] admitted or was otherwise found to have committed every element of the offense of attempted murder under a valid theory." (Ibid.; see People v. Delgado (2008) 43 Cal.4th 1059, 1066 ["if the prior conviction was for an offense that can be committed in multiple ways, and the record of conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense"].)
When arguing "the record of conviction conclusively shows that appellant was convicted as the sole and direct perpetrator and therefore ineligible for relief," the Attorney General points to the trial court's own statements about what the testimony from the preliminary hearing showed. The respondent's brief recites the trial court's statement this case involved "a straight attempted murder. [One] person [one] shooter. It wasn't . . . prosecuted as an aider and abettor" or under any currently invalid theory of homicide.
The Attorney General furnishes no support for this court to indiscriminately rely on the trial court's own recitation of what transpired at the preliminary hearing. Under the applicable standard of review, we may not defer to the trial court's conclusions. (See People v. Williams, supra, 86 Cal.App.5th at p. 1251; Stevenson, supra, 213 Cal.App.4th at p. 857.)
In addition, the Attorney General's argument ignores the fact appellant disputed the nature of his underlying conviction. Attached to appellant's form petition was a brief explaining his plea was entered in lieu of a trial "at which [he] could have been convicted of attempted murder" as an aider and abettor under the natural and probable consequences doctrine. At the prima facie hearing, his counsel questioned the credibility of a witness who used different aliases to describe the shooter before and at the preliminary hearing. The fact appellant disputed the legal and factual bases of his conviction indicates the testimony from the witness(es) at the preliminary hearing was subject to dispute. (Compare Mares, supra, 99 Cal.App.5th at p. 1175 ["The undisputed evidence in the record . . . identifies Mares as the person who stabbed the victim to death"]; Pickett, supra, 93 Cal.App.5th at p. 990 ["the People introduce[d] without objection uncontroverted evidence from the preliminary hearing transcript showing that the defendant acted alone in killing the victim"]; Patton, supra, 89 Cal.App.5th at p. 658 [testimony "Patton committed the shooting was and is uncontroverted"].)
We further conclude appellant's admission to personally using a firearm under section 12022.5, subdivision (a) did not conclusively establish his ineligibility for relief. (See People v. Jones (2003) 30 Cal.4th 1084, 1119-1120 [finding of personal use "would not in itself prove defendant was the actual killer" because two coparticipants can "display guns" during encounter]; accord, People v. Arzate (2003) 114 Cal.App.4th 390, 399-400 [personal use finding encompasses displaying, brandishing, and actually firing gun].)
Finally, we decline to impose the additional burden implicit in the People's argument requiring appellant to make an offer of proof or submission of evidence to rebut any facts taken from a preliminary hearing transcript. (See Williams, supra, Cal.App.5th; Davenport, supra, 71 Cal.App.5th at p. 483; cf. People v. Strong (2022) 13 Cal.5th 698, 713 ["We agree . . . that a defendant may still challenge prior adverse special circumstance findings in other types of proceedings, just as the defendant could have before section 1172.6 was enacted. But nothing in section 1172.6 says that a defendant must always do so before seeking resentencing"].)
DISPOSITION
The order summarily denying appellant's petition for resentencing under section 1172.6 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.