Opinion
D083427
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LATRENT PITTS, JR., Defendant and Appellant.
Joanna McKim, 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, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, Super. Ct. No. FVI17002213 Miriam Ivy Morton, Judge. Affirmed.
Joanna McKim, 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, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
KELETY, J.
INTRODUCTION
In 2018, Anthony Latrent Pitts, Jr., pled guilty to first degree murder, shooting at an inhabited dwelling, and intentionally and personally discharging a firearm. He was convicted and sentenced to prison. Thereafter, Pitts filed a petition for resentencing under Penal Code section 1172.6. At the initial hearing, the court dismissed the petition for failing to state a prima facie case for relief.
Pitts appeals the court's order denying his section 1172.6 petition without an evidentiary hearing. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The information charged Pitts and two codefendants with the murder of Makiya W. and with shooting at an inhabited dwelling. The information included the allegation that Pitts, in the commission of each of the charged offenses, "personally and intentionally discharged a firearm, a shotgun, which caused great bodily injury and death to Makiya W. within the meaning of Penal Code Section 12022.53(d)." While the charged counts named all three defendants, the firearm allegation named only Pitts.
Statutory references are to the Penal Code unless otherwise specified.
In June 2018, Pitts pled guilty to first degree murder and to shooting at an inhabited dwelling. The plea form signed by Pitts stated that as part of his plea, he intended to admit that he discharged a firearm "causing death." At the hearing on the change of plea, the parties stipulated that the court could refer to the transcript of the preliminary hearing as the factual basis for the plea. When asked by the court, "to the crime charged against you in Count 1, murder in the first degree, in violation of Penal Code Section 187(a), how do you plead?" Pitts, who had been placed under oath, responded, "Oh, guilty." !(1RT 10)! The court then inquired, "[a]s to the allegation that you discharged a firearm causing death in violation of Penal Code Section 12022.53, [subdivision (d)], do you admit or deny that?" Pitts stated, "I admit." The court further inquired, "[a]s to the count charged against you in Count 2, Penal Code Section 246, shooting at an inhabited dwelling, do you admit or-how do you plead?" Pitts stated, "Guilty."
At the sentencing hearing, the court sentenced Pitts to fifty years to life in prison.
In November 2022, Pitts filed a petition for resentencing under section 1172.6. The court appointed counsel for Pitts and set the matter for an initial hearing. The People filed a response asking the court to deny the petition. The response included a two-page factual summary, but did not state the source of the facts. The People argued that Pitts was not eligible for relief under section 1172.6 because he was not convicted based on the natural and probable consequences theory or under the felony murder rule, and because he was the actual killer. The response stated that Pitts shot into a residence, hitting and killing Makiya W., and "no other relevant evidence suggests other persons fired a firearm during the course of the murder." It does not appear from the record that either party provided the trial court with a transcript of the preliminary hearing.
The court held a brief hearing on January 10, 2023. Both parties submitted without argument. The court stated simply, "The Court agrees with [the People's] assessment of this situation. And the petition will be denied."
Pitts timely appealed.
DISCUSSION
A. Brief Summary of Section 1172.6
Following Pitts's 2018 conviction, the Legislature narrowed the scope of liability for felony murder and abolished liability for murder based on the natural and probable consequences doctrine. (See, generally, § 1172.6.) Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437) was enacted to "'amend 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 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).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 did this by amending section 188, which defines malice, and section 189, which defines the degrees of murder. (Stats. 2018, ch. 1015, §§ 2 &3.)
Amended section 188 states: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
Amended section 189 states: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 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. [¶] [or] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e).)
Senate Bill 1437 also established resentencing relief for eligible defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 707708.) Under subdivision (a), "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition" with the sentencing court to have his or her murder conviction vacated and to be resentenced on any remaining counts "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019" under Senate Bill 1437.
B. Analysis
We review the challenged order de novo. (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); People v. Coley (2022) 77 Cal.App.5th 539, 545.) We affirm if the judgment is correct, regardless of the trial court's reasoning. (People v. Eynon (2021) 68 Cal.App.5th 967, 976 (Eynon) ["even if the reason given by the trial court was erroneous," the judgment will be affirmed on appeal if the denial of the petition at the prima facie stage was correct]; People v. Smithey (1999) 20 Cal.4th 936, 972 [if the court's decision was correct under any legal theory, "it must be sustained regardless of the considerations which may have moved the trial court to its conclusion"].)
Pitts argues that he was entitled to an evidentiary hearing because the record of conviction did not conclusively establish that he was ineligible for relief as a matter of law.
Pitts further argues that his petition alleged sufficient facts to establish a prima facie case. However, we are aware of no authority for the proposition that in every case, the allegations of a petition under section 1172.6 are sufficient to obligate the court to hold an evidentiary hearing. As we discuss, the issue is whether or not the record of conviction establishes the right to relief.
"In the plea context, a petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that (1) the complaint, information, or indictment did not allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) the petitioner was not convicted under such theory; or (3) the petitioner could presently be convicted of murder or attempted murder under the law as amended by [section 1172.6]." (People v. Flores (2022) 76 Cal.App.5th 974, 987 (Flores).) We note that" '[a]bsent a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question'" the allegations of the petition seeking relief under section 1172.6. (People v. Rivera (2021) 62 Cal.App.5th 217, 230 (Rivera), quoting People v. Duchine (2021) 60 Cal.App.5th 798 at p. 815).
1. Pitts's record of conviction
In considering whether Pitts established a prima facie case for relief under section 1172.6, we start by determining what constitutes Pitts's record of conviction. As noted in People v. Lewis (2021) 11 Cal.5th 952, 971, at the prima facie stage, the court uses the record of conviction "to distinguish petitions with potential merit from those that are clearly meritless . . . as part of a single-step prima facie review process." The court assumes that the facts alleged by the petitioner are true, but the court may deny resentencing "where the record of conviction contains facts conclusively refuting the allegations in the petition." (Flores, supra, 76 Cal.App.5th at p. 991.)
Pursuant to People v. Reed (1996) 13 Cal.4th 217, 223, the record of conviction consists of "those record documents reliably reflecting the facts of the offense for which the defendant has been convicted."
A record of conviction may include the charging document (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330 (Verdugo)), the plea form, and plea colloquy. (See, e.g., People v. Saavedra (2023) 96 Cal.App.5th 444, 448 (Saavedra).)
Pitts correctly notes that the record of conviction would not include the transcript of Pitts's preliminary hearing. Although during his change of plea hearing the parties stipulated to the use of the preliminary hearing testimony to provide the factual basis for Pitts's plea, we do not consider the testimony to be part of Pitts's record of conviction. (See Flores, supra, 76 Cal.App.5th at pp. 987-992 [preliminary hearing transcript was used as the factual basis for the murder plea, but because defendant never admitted the truth of the testimony, it was not part of his record of conviction]; Rivera, supra, 62 Cal.App.5th at p. 235 [defendant did not admit to truth of any evidence presented to the grand jury, and therefore transcript cannot establish an admission of actual malice].)
We also agree with Pitts that his record of conviction does not include the People's factual summary included in its response to Pitts's petition.
We note that the record of Pitts's conviction is sparse. The plea form signed by Pitts did not include any specific statement of the facts underlying his plea, nor did the plea colloquy include any factual admissions by Pitt beyond his pleas of guilty to the charged counts and his admission to the firearms allegation. Thus, the record of conviction for our review consists of the charging document (the information), the plea form, and the brief plea colloquy.
2. The record of Pitts's conviction conclusively establishes that he is ineligible for resentencing as a matter of law
"As a matter of law, resentencing relief under section 1172.6 is not available to an "actual killer." (People v. Garcia (2022) 82 Cal.App.5th 956, 973; Verdugo, supra, 44 Cal.App.5th at p. 330 ["petitioner who admitted being the actual killer as part of a guilty plea" is ineligible for relief as a matter of law].)
The information charged Pitts and two other people with the murder of Makiya W. If we considered only his plea to the murder count in the information, the plea might be inadequate to establish which of the persons named was the actual killer. (See, e.g., Eynon, supra, 68 Cal.App.5th at pp. 977-978 [defendant's guilty plea to murder did not constitute an admission that he acted with actual malice].)
However, the information further charged Pitts (and only Pitts) as the person who "personally and intentionally discharged a firearm, a shotgun, which caused great bodily injury and death to Makiya W." Pitts's plea form stated that his plea included his admission that he discharged a firearm "causing death." And during his plea colloquy, when asked, "[a]s to the allegation that you discharged a firearm causing death . . . do you admit or deny that?" Pitts stated, "I admit."
Further, Pitts pled guilty to first degree murder in 2018, after the Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155, 158-159 which held that "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." Thus, Pitts could not have been prosecuted under a theory of aiding and abetting a murder actually committed by someone else.
Pitts correctly argues that his admission to personal use of a firearm would be insufficient on its own to establish the necessary intent to kill to disqualify him from an evidentiary hearing. (See People v. Offley (2020) 48 Cal.App.5th 588, 598 [trial court erred by relying on the firearm enhancement to conclude deny resentencing under section 1172.6 because the only state of mind required for such an enhancement was intention to discharge a firearm; further, the jury had been instructed on the natural and probable consequences doctrine, so it was possible that the jury found the defendant had not intended the kill the victim]; see also In re Ferrell (2023) 14 Cal.5th 593, 604 [findings under Penal Code section 12022.53, subdivision (d) do not encompass on their own the definition of implied malice murder].)
But here, when the murder plea is considered together with the plea form and the admission in the plea colloquy, it is clear that Pitts pled guilty to being the actual killer of Makiya W. As noted in Rivera: "[i]n some cases, the record may reveal that a defendant admitted more than the elements of the offense charged, and such additional admissions may preclude relief under section [1172.6]." (Rivera, supra, 62 Cal.App.5th at p. 234.) This is such a case.
In pleading guilty to first degree murder of Makiya W. in violation of section 187, subdivision (a), and simultaneously admitting that his personal discharge of a firearm caused Makiya W.'s death within the meaning of section 12022.53, subdivision (d), Pitts' conviction thus established a killing (§ 187, subd. (a) [murder is unlawful killing of human being with malice aforethought]) that Pitts himself caused by discharging a firearm (see Harden, supra, 81 Cal.App.5th at p. 55 ["natural meaning of 'personally inflicted' is that the defendant [himself] inflicted the injury"]). In other words, Pitts's plea to murder when combined with his admission that he personally used a firearm causing the victim's death establishes that Pitts was the "actual killer."
Pitts argues that his plea form and plea colloquy did not include a statement of his intent, in contrast to the decision in Saavedra, supra, 96 Cal.App.5th 444. It is true that in Saavedra, the plea form stated that defendant "willfully, unlawfully and with malice aforethought attempted to murder [three] human beings, by personally discharging a firearm." (Id. at pp. 446-447.) Pitts's plea form contained no such language. Nonetheless, just as in Saavedra, the record of conviction before us conclusively establishes that Pitts was the actual shooter. Here, as in Saavedra, "[t]he factual basis for the plea cannot reasonably be construed as potentially imposing liability under the natural and probable consequences doctrine because it is a theory of vicarious liability, and [Pitts] did not act vicariously." (Id. at p. 448.)
As in Saavedra, Pitts's plea to murder, read in tandem with his admission of discharge of a firearm causing death, negates any possibility of vicarious liability. It is true that in Saavedra, the reviewing court placed emphasis on the plea form's use of the word "by", i.e., that Saavedra specifically admitted that he attempted the murder "by personally discharging" the firearm. (Saavedra, supra, 96 Cal.App.5th at p. 447.) Pitts's plea form and plea colloquy did not use the preposition "by" to link his admission to his personal use of a firearm causing death to Makiya W. to his guilty plea to her murder in the first degree. Nonetheless, his plea, considered in its entirety, can only to be read as a sworn admission that Pitts actually killed Makiya W. through his personal use of the firearm.
Pitts's reliance on Eynon, supra, 68 Cal.App.5th 967 is similarly misplaced. In Eynon, two people were included in the murder count, and his codefendant was alleged to have used a firearm causing the victim's death. Eynon pled guilty to murder; but the People conceded that Eynon was not the actual killer. The court concluded that, "Eynon's guilty plea and admission that he committed first degree deliberate and premeditated murder [did not] exclude the possibility that his conviction was based on the natural and probable consequences doctrine." (Id. at p. 978.) Here, the record of conviction demonstrates the opposite: in pleading guilty to murder, it was Pitts, not his codefendants, who admitted use of the firearm that caused the victim's death.
In summary, we agree with the superior court that Pitts was ineligible for resentencing under section 1172.6 as a matter of law. His guilty plea to murder combined with his admission that he personally used a firearm "conclusively establish-with no factfinding, weighing of evidence, or credibility determinations-that [he] was convicted as the actual killer." (Harden, supra, 81 Cal.App.5th at p. 47.)
Because we conclude that the court did not err, we do not address Pitts's due process or prejudice arguments.
DISPOSITION
The order is affirmed.
WE CONCUR: MCCONNELL, P. J. RUBIN, J.