Opinion
E081278
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. LOUIS JAMES MATHEWS, Defendant and Appellant.
William Paul Melcher, 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, Collette C. Cavalier, Felicity Senoski, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB051181. Ronald M. Christianson, Judge.
William Paul Melcher, 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, Collette C. Cavalier, Felicity Senoski, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I. INTRODUCTION
Defendant and appellant Louis James Mathews appeals the trial court's order denying his Penal Code section 1172.6 (formerly section 1170.95) petition to recall his voluntary manslaughter (§ 192, subd. (a)) conviction and for resentencing. On appeal, defendant contends the trial court erred in summarily denying his petition without issuing an order to show cause and holding an evidentiary hearing. We agree and thus reverse and remand the matter with directions to issue an order to show cause and conduct further proceedings as are required by section 1172.6.
Unless otherwise specified, all future statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10), without substantive changes to the statute's content. We hereafter cite to section 1172.6 for ease of reference.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the parties stipulated the preliminary hearing transcript constituted a factual basis for defendant's plea, the factual background is taken from the preliminary hearing.
On July 12, 2005, San Bernardino Police Department Homicide Detective Gary Schuelke investigated a shooting homicide that took place in the area of West Spruce Street in the city of San Bernardino. As part of the investigation, Detective Schuelke interviewed witnesses to the incident and specifically spoke with eyewitness C.C. C.C. informed Detective Schuelke that she saw "a group of black male subjects standing in the 700 block of West Spruce Street, and that an individual she described as a smoker walked up to . . . this group of black male subjects, a fight ensued, and that one of the black males removed a pistol from his clothing and fired several rounds at the person whom she described as a smoker, and then those subjects ran away." C.C. also reported to Detective Schuelke that she had prior contacts with defendant, that she knew who defendant was as they went to high school together, and that she had photographs of defendant in her vehicle. C.C. identified defendant as a member of the East Side IE gang with the moniker "Demon" who shot at the "smoker."
C.C. noted a "smoker" is a slang term used for a cocaine addict.
Defendant mistakenly believes C.C. identified the "smoker" as defendant. A thorough review of the testimony demonstrates that the "smoker" was the person who approached the group of black males, a fight ensued, and defendant removed a gun from his clothing and fired at the "smoker."
On cross-examination, Detective Schuelke clarified that C.C. reported that "an argument took place and that, during that argument, the victim took a swing at one of the individuals who she described as Demon's [defendant's] brother, and that that swing never connected, and the two of them began to have a scuffle, at which point [defendant] removed a pistol from his clothing and fired on him [the smoker]." C.C. heard five or six shots.
Detective Schuelke also interviewed L.P., defendant's then-girlfriend. L.P. informed the detective that defendant had called her the night of the shooting to pick him up near Fifth Street and G Street in the city of San Bernardino. L.P. then drove defendant to West Spruce Street, the area of the shooting, where several individuals were already loitering. L.P. remained in her vehicle while defendant left for about 15 minutes. After defendant returned to the car, the two drove off. L.P. confirmed that defendant was a member of the East Side IE gang.
San Bernardino Police Officer Brian Harris identified defendant as a member of the East Side IE Crip gang.
San Bernardino Police Department Homicide Detective William Flesher testified that he attended the autopsy of the victim, who had sustained gunshot wounds to his chest, abdomen, and upper thigh. Detective Flesher explained "[T]he victim died of a gunshot wound that entered the left side of his chest, traveling at a left-to-right and slightly downward direction, penetrating the victim's diaphragm, stomach, and severing the aorta, lodging in the spine." Detective Flesher opined that the shooter was at least six feet away due to lack of gunshot residue on the victim and believed only one gun was used in the shooting.
Following the preliminary hearing, on September 29, 2005, an information was filed, charging defendant with murder (§ 187, subd. (a)). The information also alleged that defendant intentionally discharged a firearm which proximately caused great bodily injury or death within the meaning of section 12022.53, subdivision (d), that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), and that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b).
On September 7, 2007, defendant pled guilty to voluntary manslaughter (§ 192, subd. (a)), and admitted to personally using a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). In return, the remaining allegations were dismissed and defendant was promised a stipulated term of 21 years (11 years for the manslaughter, plus 10 years for the gun use enhancement) in state prison. The parties stipulated that the preliminary hearing transcript constituted the factual basis for the plea.
On January 4, 2008, the trial court sentenced defendant to 21 years in state prison in accordance with the negotiated plea agreement and dismissed the remaining allegations.
On March 24, 2022, defendant filed a petition for resentencing under former section 1170.95. Using a preprinted form, defendant checked the boxes that stated (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime under the natural and probable consequences doctrine, (2) he was convicted of murder, attempted murder, or manslaughter following a trial or plea in lieu of a trial, and (3) he could not now be convicted of murder because of changes to sections 188 and 189 made effective January 1, 2019. Defendant requested that counsel be appointed to represent him.
On May 24, 2022, the People filed opposition to defendant's petition for resentencing, arguing defendant was ineligible for relief as a matter of law as he was the actual shooter, and requested the trial court take judicial notice of defendant's record of conviction.
After the court-appointed counsel to represent defendant, it set the matter for a hearing and requested transcripts of the preliminary hearing and the plea hearing.
On November 29, 2022, defendant's appointed counsel filed a defense prima facie brief, asserting an order to show cause should be issued as defendant had set forth a prima facie basis for relief. Defense counsel also argued that the preliminary hearing transcript could not be used at this stage and that an evidentiary hearing should be conducted to resolve factual issues. The People subsequently filed a reply to defendant's prima facie brief and later a supplemental reply to defendant's prima facie brief. The People argued an order to show cause should not be issued because defendant is statutorily ineligible for relief as a matter of law as the record clearly shows defendant was the actual shooter and killer. In support, the People attached the taking of the plea transcript and a pretrial transcript of a conditional examination of eyewitness, C.C., who repeatedly testified seeing defendant shoot the victim.
A hearing to determine whether an order to show should be issued was held on April 6, 2023. At that time, defense counsel submitted on the briefing provided to the court, and did not contest that the preliminary hearing transcript showed defendant was the actual and only shooter. The prosecutor also submitted on the briefing provided to the court. Noting it had reviewed the preliminary hearing transcript, which "the parties stipulate[d]" to be the factual basis for the guilty plea, the court denied defendant's petition for resentencing. The court explained the preliminary hearing transcript demonstrated that C.C. had "identified [defendant] as the actual shooter and the sole shooter in this case." The court also observed that "[f]urther corroboration" of defendant being the actual and sole shooter "is taken from the transcript of the conditional exam of C[.]C[.], which also corroborates her testimony that [defendant] was the actual shooter." The court thus found defendant to be ineligible for relief as a matter of law under section 1172.6 and denied defendant's petition for resentencing. Defendant timely appealed.
III. DISCUSSION
Defendant contends the trial court erred in summarily denying his section 1172.6 petition for resentencing because (1) the record of conviction does not preclude relief as a matter of law, (2) the trial court erred in relying on the preliminary hearing transcript, (3) the trial court erred by relying upon the transcript of a witness testimony that was not part of defendant's record of conviction, and (4) the trial court engaged in impermissible factfinding at the prima facie stage. He thus believes the matter should be remanded for further proceedings. We agree.
A. Standard of Review
We independently review the trial court's determination that the petitioner failed to make a prima facie showing for relief. (People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon (2021) 68 Cal.App.5th 967, 975.) A denial at this stage is appropriate if the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)
B. Legal Principles
Senate Bill No. 1437, effective January 1, 2019, "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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 People v. Strong (2022) 13 Cal.5th 698, 707-708.) With a narrow exception for peace officer victims (§ 189, subd. (f)), the Legislature effectively eliminated murder convictions premised on any theory of imputed malice-that is, any theory by which a person can be convicted of murder for a killing committed by someone else, such as felony murder or the natural and probable consequences doctrine-unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard to human life. (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong, supra, at pp. 707-708.) Specifically, the Legislature amended section 188 to require that, except in cases of first degree felony murder, a principal in the crime of murder "shall act with malice aforethought" and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Brown (2023) 14 Cal.5th 453, 468, fn. 7; People v. Guiffreda (2023) 87 Cal.App.5th 112, 122.) Senate Bill No. 1437 also added section 1172.6 (former § 1170.95) to the Penal Code, creating "a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, supra, 11 Cal.5th at p. 957; see Stats. 2018, ch. 1015.)
As amended by Senate Bill No. 775, section 1172.6, subdivision (a) provides: "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts."
An offender must file a petition in the sentencing court averring that: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[;] [¶] [and] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3); see also id., subd. (b)(1)(A).) Additionally, the petition shall state "[w]hether the petitioner requests the appointment of counsel." (Id., subd. (b)(1)(C).) "Upon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1172.6, subd. (b)(3).) The prosecutor shall file a response within 60 days of the service of the petition, and the petitioner may file a reply within 30 days of the response. (Id., subd. (c).) When briefing has been completed, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Ibid.) "If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (Ibid.)
In determining whether a petitioner has made a prima facie showing of entitlement to relief, the trial court's inquiry will necessarily be informed by the record of conviction, which facilitates the court's ability to distinguish "petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The court may not engage in "'factfinding involving the weighing of the evidence or the exercise of discretion.'" (Id. at p. 972.) Rather, the court must "'"take[] [the] petitioner's factual allegations as true"'" and make a "'"preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved."'" (Id. at p. 971.) Summary denial is appropriate where the record of conviction establishes the petitioner is ineligible for resentencing as a matter of law. (People v. Estrada (2022) 77 Cal.App.5th 941, 945; People v. Coley (2022) 77 Cal.App.5th 539, 548.) "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 . . . relief, the prima facie inquiry. . . is limited." (Lewis, supra, at pp. 966, 971.)
The only facts in the record of conviction that will refute a petitioner's allegations are those that were either admitted by the petitioner or found true beyond a reasonable doubt by a trier of fact. (See People v. Jenkins (2021) 70 Ca1.App.5th 924, 933-935; see also People v. Curiel (2023) 15 Cal.5th 433, 451-454 [facts in the record of conviction will ordinarily be given preclusive effect on prima facie review only if they satisfy the traditional elements of issue preclusion].) As Lewis acknowledged, "the 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Ca1.5th at p. 972.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Id. at p. 971.)
C. Analysis
Defendant made a prima case for relief here by alleging in his petition that (1) a charging document was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime under the natural and probable consequences doctrine, (2) he was convicted of murder, attempted murder, or manslaughter following a trial or plea in lieu of a trial, and (3) he could not now be convicted of murder because of changes to sections 188 and 189 made effective January 1, 2019. Under Lewis, the trial court was required to treat those allegations as true and issue an order to show cause unless the record of conviction contains facts refuting defendant's allegations. (Lewis, supra, 11 Ca1.5th at p. 974.)
The record of conviction contains no such facts. The trial court based its contrary conclusion on the fact that the preliminary hearing transcript and the transcript of the conditional examination of C.C. contained uncontroverted evidence that defendant was the direct perpetrator. Defendant contends that the court's reliance on the preliminary hearing transcript and the transcript of C.C.'s conditional examination violated Lewis's prohibition against judicial factfinding at the prima facie stage. We agree.
Our appellate courts "are split on the import of the preliminary hearing transcript in determining whether a petitioner has made a prima facie case for resentencing." (People v. Flores (2022) 76 Ca1.App.5th 974, 989 (Flores).) Some courts have held that evidence presented at a preliminary hearing can, if uncontroverted, establish ineligibility and support the denial of a section 1172.6 petition at the prima facie stage. (People v. Patton (2023) 89 Ca1.App.5th 649, review granted June 28, 2023, S27967; People v. Pickett (2023) 93 Ca1.App.5th 982, review granted Oct. 11, 2023, S281643; People v. Mares (2024) 99 Ca1.App.5th 1158, review granted May 1, 2024, S284232; People v. Nguyen (2020) 53 Ca1.App.5th 1154, 1166.) Other courts, like the one that decided Flores, have held that such reliance on the preliminary hearing transcript constitutes impermissible factfinding at the prima facie stage. (Flores, supra, at pp. 991-992; People v. Davenport (2021) 71 Ca1.App.5th 476, 482; People v. Das (2023) 96 Ca1.App.5th 954, 962-964; People v. Rivera (2021) 62 Ca1.App.5th 217, 238 [applying the same conclusion to a grand jury transcript].) Our Supreme Court has granted review in Patton to decide whether the trial court engaged in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant's section 1172.6 petition at the prima facie stage. (People v. Patton, supra, review granted.)
While the issue is pending before our high court, we follow the line of cases that strictly adhere to the prohibition against judicial factfinding on prima facie review of a section 1172.6 petition. (See, e.g., People v. Davenport, supra, 71 Ca1.App.5th at p. 482 [concluding that "[t]he trial court engaged in 'impermissible factfinding' at the prima facie stage by relying on facts taken from the preliminary hearing transcript that were not stipulated to or admitted"]; accord, Flores, supra, 76 Ca1.App.5th at p. 991.) When a court relies on preliminary hearing testimony to deny a petition at the prima facie stage, it is necessarily making a credibility determination. The testimony has no probative value unless the court finds it credible. The fact that the testimony is uncontroverted makes a court's reliance on it no less of a credibility determination-uncontroverted testimony can still be inaccurate. A preliminary hearing is not a trial, and its purpose is merely to determine whether there is sufficient evidence to hold the defendant to answer. (See generally People v. Superior Court (Mendez) (2022) 86 Ca1.App.5th 268, 276.) The defendant consequently has little incentive to introduce conflicting evidence at a preliminary hearing, and "a ruling holding a defendant to answer is in no way equivalent to a jury's factual finding or a defendant's admission." (People v. Cooper (2020) 54 Ca1.App.5th 106, 124.) For these reasons, we find the Patton line of cases unpersuasive.
The People contend that the trial court's reliance on the preliminary hearing transcript did not violate the prohibition against factfinding because defendant stipulated to the preliminary hearing transcript as the factual basis for the plea, the uncontroverted evidence from the preliminary hearing showed defendant acted alone in killing the victim, and defendant presented no alternative theory he was not the actual killer. But these arguments misunderstands the nature of the factual basis for a plea under California law. A stipulation to a factual basis for a plea is not an admission to particular facts of the offense.
In California, the trial court must inquire into the factual basis for any negotiated plea. (§ 1192.5, subd. (c); People v. Hoffard (1995) 10 Cal.4th 1170, 1180-1182.) The requirement exists because the prospect of "substantially reduced punishment" can be such a powerful "motivating factor for a plea" that a negotiated plea "creates an especially high risk the defendant will plead to a crime he or she did not commit and for which no factual basis can be established." (People v. Hoffard, supra, at p. 1182.) The factual basis requirement thus "helps ensure that the 'constitutional standards of voluntariness and intelligence are met.'" (People v. Holmes (2004) 32 Cal.4th 432, 438.)
Because its purpose is to ensure that the plea was voluntary and knowing, "[t]he factual basis required by section 1192.5 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 [the] defendant's guilt." (People v. Holmes, supra, 32 Cal.4th at p. 441, fn. omitted.) In addition, "[a] defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel's stipulation to a particular document." (People v. French (2008) 43 Cal.4th 36, 50-51.) "Courts have consistently differentiated between an admission that a document or recitation contains a factual basis for a plea and an admission that statements in that document or recitation are true." (People v. Hiller (2023) 91 Ca1.App.5th 335, 349-350.)
Thus, absent an indication that a defendant admitted the truth of particular facts, a stipulation that a factual basis for a plea exists is not a factual admission and "therefore cannot be used to demonstrate that [a section 1172.6 petitioner] admitted to acting with actual malice." (People v. Rivera, supra, 62 Ca1.App.5th at p. 235; accord, Flores, supra, 76 Ca1.App.5th at p. 991 [petitioner's stipulation that the preliminary hearing transcript provided a factual basis for his guilty plea to murder was not an admission to any particular facts of the offense].)
Defendant asserts that a generic charge of murder does not limit the prosecution to any particular theory, and thus the murder charge in the information did not exclude him from resentencing relief under section 1172.6 as a matter of law. We agree with defendant that the information and his plea to the generic crime of voluntary manslaughter did not admit facts supporting liability under any particular theory. In agreeing to the plea, defendant did not admit to or stipulate to any particular theory of voluntary manslaughter. (Flores, supra, 76 Cal.App.5th at p. 987.) Defendant's admission that he personally used a firearm under section 12022.5, subdivision (a) also did not definitively establish that he was the actual shooter. As the Supreme Court explained in People v. Jones (2003) 30 Cal.4th 1084, a finding the defendant "personally used a firearm in the commission" of a felony murder "would not in itself prove defendant was the actual killer" because if, for example, two coparticipants in a felony "display guns" for intimidation, and one "shoots and kills a victim, both [participants] could be found to have personally used a gun in . . . the felony murder, even though only one is the actual killer." (Id. at pp. 1119-1120.)
Although defendant stipulated to the preliminary hearing transcript to establish the factual basis for the plea and there is no evidence in that transcript to suggest an alternative theory of vicarious liability, the People's characterization of the facts do not constitute an admission regarding defendant's eligibility for relief under section 1172.6. It is undisputed that defendant stipulated to the preliminary hearing transcript as containing a factual basis for the plea and the testimony showing defendant was the direct perpetrator was uncontroverted. However, because of the prohibition against judicial factfinding and credibility determinations at the prima facie stage, neither the stipulation nor the testimony refutes the allegations of defendant's petitions.
For all of these reasons, we conclude that the trial court erred by denying defendant's petition at the prima facie stage on the basis of the preliminary hearing transcript.
Although the record of conviction contains uncontroverted evidence to support a determination that defendant was the direct perpetrator, reaching that determination necessarily requires factfinding and credibility determinations, which are prohibited at the prima facie stage. (Lewis, supra, 11 Ca1.5th at p. 974.) Because the record of conviction does not contain facts establishing that defendant was convicted under a still-valid theory of murder, denial of his petition without issuing an order to show cause was error.
IV. DISPOSITION
The order denying defendant's petition under section 1172.6 is reversed, and the matter is remanded with directions to issue an order to show cause and conduct an evidentiary hearing under section 1172.6, subdivision (d).
We concur: FIELDS J., MENETREZ J.