Opinion
F086733
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. FELICIANO PEREZ, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF142069A Melinda Myrle Reed, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant Feliciano Perez appeals following the denial of his petition for resentencing under Penal Code section 1172.6. The parties agree that the trial court erred in denying appellant's petition at the prima facie stage of the statutory proceedings. Upon review of the record and arguments, we agree and therefore reverse the trial court's order and remand for further proceedings.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, appellant and two codefendants, Daniel Alonzo and Jose Gonzalez, were charged in a criminal complaint with the murder of Jesus Gonzalez (the victim), two counts of arson, one count of unlawful driving or taking of a vehicle, and one count of destroying evidence. Appellant was additionally charged with the special allegations that he used a deadly weapon (a baseball bat) during the murder and committed the murder while engaged in committing robbery and kidnapping. Following appellant's preliminary hearing, the subsequent information filed included three special circumstance allegations of felony murder and charges for kidnapping, second degree robbery, and first degree residential burglary.
In 2006, appellant entered into a plea agreement in which he would plead to first degree murder (§ 187, subd. (a); count 1) and first degree residential burglary (§ 459; count 4) and have all other allegations dismissed in exchange for a stipulated sentence of 29 years to life. Appellant then entered his plea "pursuant to People v. West" and stipulated "to the preliminary hearing transcript that you presided over for purposes of factual basis as to Counts 1 and 4." The trial court sentenced him in line with the plea agreement.
People v. West (1970) 3 Cal.3d 595.
The preliminary hearing transcript contained multiple versions of the events surrounding the murder and burglary. The victim was noticed to be missing during an investigation into a fire at his house. The house also showed signs of a potential burglary. While the investigation was ongoing, the victim was found dead in a canal, having been bound and beaten. His death was deemed to result from drowning.
In one of the versions of events described at the preliminary hearing, appellant allegedly admitted to burglarizing a house with two others and stealing property from it. Appellant was also later seen driving the victim's truck. Appellant purportedly further admitted to striking the victim with a baseball bat, but more broadly claimed that he and his codefendants, together, had bound the victim before throwing him into the canal.
In another version, one of appellant's codefendants described how he, appellant, and the third codefendant went to the victim's house to complete a robbery. According to the codefendant, appellant struck the victim with a hatchet before binding the victim. The three then attempted to burn down the victim's house before transporting the victim to a canal. There, appellant struck the victim multiple times with a baseball bat before the victim was thrown, alive, into the canal. The codefendant admitted to participating in some of these events and to apologizing to the victim as it was happening.
In yet another version, appellant's other codefendant alleged that appellant had taken all of the most violent actions. In this version, while at the victim's house, appellant found an ax and threatened the victim with it. Appellant then ordered his codefendants to tie up the victim. Appellant struck the victim several times before moving him to the back of a van. When the three codefendants reached the canal, appellant ordered the victim be killed. When this order was not followed, appellant struck the victim with a baseball bat and threw him into the canal.
In 2023, appellant petitioned for resentencing. Using the form petition, appellant alleged he could have been prosecuted under a theory under which malice is imputed based on participation in the crime, he had been convicted of murder, and that he could not presently be convicted of murder under sections 188 and 189.
The People opposed, arguing the preliminary hearing transcript contained evidence showing appellant "was the actual killer who acted with the intent to kill the victim after the men burglarized and set fire to the victim's home." The People generally recited statements attributed to the third version of events from the preliminary hearing in support of this claim. The People also relied on the fact appellant's plea colloquy included an admission that he "did unlawfully and with malice aforethought murder" the victim.
On August 3, 2023, the trial court held a hearing and denied appellant's petition. Looking at the plea agreement, the court concluded appellant's plea to murder with malice aforethought meant he had failed to make a prima facie showing of eligibility.
This appeal timely followed.
DISCUSSION
Section 1172.6, subdivision (a) provides that one convicted of murder under the natural and probable consequences doctrine may file a petition to have the conviction vacated and to be resentenced on any remaining counts when (1) an information was filed against the petitioner that allowed the prosecution to proceed under a theory under which malice is imputed to a person based solely on that person's participation in a crime, (2) the petitioner was convicted of murder after either a trial or accepting a plea in lieu of a trial, and (3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.
Under the modifications to section 188, malice cannot be imputed to a person based merely on their participation in a crime. (§ 188, subd. (a)(3).) Accordingly, to be ineligible, the record must demonstrate that the petitioner could not have been or was not convicted under a natural and probable consequences doctrine theory or any other rejected theory of liability. (See People v. Lopez (2022) 78 Cal.App.5th 1, 14 ["A petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, (3) the petitioner was a major participant in the underlying felony and acted with reckless indifference to human life, or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime."].)
Section 1172.6, subdivision (c) explains: "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so."
"[W]hen assessing the prima facie showing, the trial court should assume all facts stated in the … petition are true. [Citation.] The trial court should not evaluate the credibility of the petition's assertions, but it need not credit factual assertions that are untrue as a matter of law-for example, a petitioner's assertion that a particular conviction is eligible for relief where the crime is not listed … as eligible for resentencing. Just as in habeas corpus, if the record 'contain[s] facts refuting the allegations made in the petition … the court is justified in making a credibility determination adverse to the petitioner.' [Citation.] However, this authority to make determinations without conducting an evidentiary hearing … is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (People v. Drayton (2020) 47 Cal.App.5th 965, 980, third bracketed insertion in original, abrogated on other grounds by People v. Lewis (2021) 11 Cal.5th 952, 963.)
In this case, the parties agree the trial court erred in determining appellant had not made a prima facie showing of eligibility. Upon review, this court accepts the parties' position. Appellant pleaded no contest to a charge alleging appellant was a participant in a multi-party murder. While the charge alleged appellant acted with malice aforethought, such a pleading statement does not generally preclude prosecution under implied malice theories, and pleading no contest when such a charge is made only admits to the malice element, not the manner in which it is satisfied. (People v. Rivera (2021) 62 Cal.App.5th 217, 233-235.)
Further, the preliminary hearing transcript does not prove, as a matter of law, that appellant was convicted on a theory that did not impute malice based on his participation in the overall crime. It is undoubtedly true that the evidence strongly suggests appellant was the actual killer in this case. However, the various factual theories presented carry at least some conflict regarding which defendant-or whether all together-threw the victim into the canal. Thus, even if the prosecution's theory as presented at the preliminary hearing is viewed as the sole basis for the charge, it does not prove as a matter of law that appellant was ineligible for resentencing because he was the actual killer or acted with intent to kill, rather than as one convicted based on his assault resulting in death.
At the prima facie stage, the court could not resolve the factual disputes between the versions presented and thus could not conclude appellant was, in fact, ineligible for resentencing. Appellant was therefore entitled to a show cause hearing under section 1172.6, subdivision (c).
DISPOSITION
The order denying appellant's petition for resentencing is reversed. The matter is remanded to the trial court with directions to issue an order to show cause and conduct a hearing to determine whether to vacate appellant's conviction, recall his sentence, and resentence him.
[*] Before Hill, P. J., Levy, J. and Franson, J.