Opinion
H050177
09-13-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAYFORD, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS052083)
LIE, J.
In 2011, pursuant to a negotiated agreement, defendant Michael Rayford pleaded guilty to attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and admitted the allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Rayford to the agreed-upon term of 29 years and eight months in prison. In 2022, Rayford filed a petition for resentencing under section 1172.6, arguing that he was convicted under a now-invalid theory of attempted murder. After counsel was appointed and briefing was submitted, the trial court summarily denied the petition after finding that Rayford failed to make a prima facie showing that he was entitled to relief.
Unspecified statutory references are to the Penal Code.
Rayford filed his petition under former section 1170.95, which was renumbered to 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022.) For clarity, we refer to the current version of the statute.
On appeal, Rayford argues that the trial court erred by considering the preliminary hearing transcript during the prima facie stage. Conceding that remand is required because the trial court erroneously relied on hearsay from the preliminary hearing when making its prima facie determination, the Attorney General argues only that the preliminary hearing transcript is properly a part of the record of conviction. As we agree with the parties that the record does not conclusively establish that Rayford is ineligible for relief, we reverse and remand the matter to the trial court with directions to issue an order to show cause pursuant to section 1172.6.
I. BACKGROUND
A. The Complaint
In 2008, the Monterey County District Attorney filed an amended complaint charging Rayford with attempted murder (§§ 664, 187, subd. (a); count 1), aggravated mayhem (§ 205; count 2), mayhem (§ 203; count 3), assault with great bodily injury on a peace officer or fireman (§ 245, subd. (c); count 4), and possession of a weapon by a prisoner (§ 4502, subd. (a); count 5). As to counts 1 through 3, it was alleged that Rayford personally used a deadly weapon (§ 12022, subd. (b)(1)), and as to count 4, it was alleged that Rayford inflicted great bodily injury (§ 12022.7, subd. (a)). It was further alleged that Rayford had a prior strike conviction (§ 1170.12, subd. (c)(1)).
B. The Preliminary Hearing
At the preliminary hearing, Sergeant Brian Pickens testified that he was called to the Monterey County jail on July 4, 2005. When he arrived at the jail, he spoke with Sergeant James Dunn. Dunn told Pickens that he had responded to a call for backup in one of the isolation cells, and when Dunn entered the cell, he saw another officer kneeling over a prone inmate (identified by Dunn as Rayford), who was making punching motions. Dunn identified the officer kneeling over Rayford as Deputy Humberto Coronado. Dunn further related that he used his Taser and deployed it twice against Rayford. Rayford yelled and became aggressive, after which Dunn knelt on Rayford's back to try to gain control of his arm. Dunn told Pickens that when he gained control of Rayford's arm, he observed a makeshift knife in Rayford's left hand and forcibly removed it. Dunn also told Pickens that Coronado had a slash wound on the left side of his face from his lip towards his cheek and an additional slash wound on his neck.
Deputy Raymond Cantu also responded to the scene of the crime. When he arrived, he saw Dunn and other officers with Rayford, and Dunn tossed him what was later identified as Rayford's knife.
Monterey County District Attorney Investigator Antonio Rodriguez spoke to Coronado in preparation for the preliminary hearing. Coronado told Rodriguez that he had been working in the reception area of the county jail earlier that day, and that he and other deputies had moved Rayford from his isolation cell to the isolation day room. Coronado went to eat his lunch, and when he returned, he saw Rayford was still in the isolation day area. Coronado asked Rayford to come out, and Rayford complied. On Coronado's request, Rayford returned a razor Coronado had provided earlier and proceeded down the hallway, but thereafter turned and punched Coronado in the face. Coronado and Rayford fought briefly and during the struggle, Rayford tried to get Coronado off his feet. According to Rodriguez, Coronado said that he was struck once but that Rayford continue to flail his arms toward him. After Coronado was struck, he felt a warm sensation on his face and noticed blood. Other deputies then responded and assisted Coronado.
Rodriguez also spoke with the emergency room physician who treated Coronado the day of the offense. The doctor described to Rodriguez that he observed a laceration on the bridge of Coronado's nose, a four-inch laceration on the left cheek, and a four- to five-inch superficial laceration along the left side of neck. The doctor characterized these wounds as "severe"; the wound to the neck, close to the jugular vein and carotid artery, had the potential to be lethal.
After considering the parties' arguments, the trial court ultimately held Rayford to answer on all charges and enhancements as alleged in the complaint.
C. The Information, Plea, and Sentencing
Following the preliminary hearing, the district attorney charged Rayford by information. Rayford subsequently pleaded guilty to attempted murder (§§ 664, 187, subd. (a)) and admitted the allegations that he personally used a deadly weapon (12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). Rayford also admitted that he had a prior strike conviction (§ 1170.12, subd. (c)). At the change of plea hearing, the prosecutor moved to strike the language in the information that the attempted murder was "willful, deliberate, premeditated murder," which was granted by the trial court. Rayford stipulated to the preliminary hearing transcript as the "requisite factual basis" for the offense. At the subsequent sentencing hearing, Rayford was sentenced to the agreed-upon term of 29 years and eight months in prison.
D. The Petition for Resentencing
On January 21, 2022, Rayford filed a petition for resentencing under section 1172.6 alleging that he was convicted of "murder, attempted murder, or manslaughter" following a plea but that he could no longer be presently convicted of murder or attempted murder because of changes made to sections 188 and 189 that became effective January 1, 2019. Rayford was appointed counsel. The People opposed the petition, arguing that the preliminary hearing transcript demonstrated that Rayford personally committed attempted murder and harbored an intent to kill. In his reply, Rayford argued that the trial court was not permitted to rely on the preliminary hearing transcript and that he had stated a prima facie case for relief.
At the prima facie hearing, the trial court determined that it could consider the preliminary hearing transcript but that it could not make factual findings or credibility determinations without additional undisputed supporting information within the record of conviction. After reviewing the transcript, however, the trial court found that the evidence demonstrated that Rayford was the actual and sole perpetrator of the offense of attempted murder. The trial court also considered that Rayford had admitted the enhancements for personally using a deadly weapon and inflicting great bodily injury. The trial court thereafter concluded that Rayford had not stated a prima facie case for relief because he had not established that his conviction could have been obtained under the natural and probable consequences doctrine. The trial court denied the section 1172.6 petition.
II. DISCUSSION
Rayford argues that he made a prima facie showing of eligibility for relief and that the trial court therefore erred in summarily denying his petition before issuing an order to show cause. Given the trial court's reliance on hearsay admitted at the preliminary hearing under section 872, subdivision (b), we agree that reversal is required.
A. Legal Principles
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) "narrowed the scope of liability for [both] first and second degree murder . . . by amending sections 188 and 189 to restrict the scope of first degree felony murder and to eliminate murder liability based on the natural and probable consequences doctrine." (People v. Sanchez (2020) 48 Cal.App.5th 914, 917.) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) further clarified that those convicted of attempted murder under the natural and probable consequences theory" 'are permitted the same relief as those persons convicted of murder under the same theor[y].'" (People v. Patton (2023) 89 Cal.App.5th 649, 656 (Patton), rev. granted June 28, 2023, S279670.)
Senate Bill No. 1437 also "created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (People v. Strong (2022) 13 Cal.5th 698, 708.) Under section 1172.6, a defendant may petition requesting vacatur of a murder, attempted murder, or manslaughter conviction. If the petition contains all the required information under section 1172.6, the trial court must appoint counsel and thereafter proceeds to determine whether the petitioner has made a "prima facie" showing for relief. (§ 1172.6, subds. (b)(3), (c); see People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).) When determining whether the petitioner has carried his or her burden of making a prima facie showing, the trial court properly examines the record of conviction, which permits "the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, at p. 971.) The prima facie inquiry is "limited"-"' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause." '" (Ibid.) If, however," 'the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Ibid.) But if the trial court determines that the petitioner has satisfied his or her prima facie showing, the trial court must issue an order to show cause why relief should not be granted. (§ 1172.6, subd. (c).)
Senate Bill No. 775 has also now clarified that the admission of evidence at a section 1172.6 hearing is governed by the Evidence Code, "except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed .... The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (§ 1172.6, subd. (d)(3); Patton, supra, 89 Cal.App.5th at p. 656, rev. granted.) But section 1172.6, subdivision (d)(3) expressly provides that "hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the [section 1172.6 eligibility] hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule." Section 872, subdivision (b) permits a finding of probable cause following a preliminary hearing "in whole or in part upon the sworn testimony of law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted."
On appeal, we independently review a trial court's determination of whether a petitioner has made a prima facie showing for relief. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
B. Analysis
Rayford argues that the trial court erred in summarily denying his petition by relying on the preliminary hearing transcript to determine that he was not entitled to relief as the sole perpetrator of the attempted murder. We agree that reversal is required.
Here, Rayford pleaded guilty to a count of attempted murder. The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 824.) But under the former law, the specific intent to kill in an offense involving more than a single perpetrator acting alone may be satisfied by the imputation of the perpetrator's intent to one who aids and abets the perpetrator in the target offense, of which the killing was a natural and probable consequence: indeed, section 1172.6 "applies by its terms . . . to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548.) To be convicted of attempted murder under a natural and probable consequences theory, it would suffice for Rayford to have intended to aid and abet the actual perpetrator in the commission of a target offense such as assault, so long as the actual perpetrator intended to kill and the attempted murder was the natural and probable consequence of the assault. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007.) If, however, Rayford was the sole or actual perpetrator of attempted murder, he is ineligible for relief under section 1172.6-the intent to kill would have been his own, rather than imputed from another. (Patton, supra, 89 Cal.App.5th at p. 657, rev. granted; see also People v. Garcia (2022) 82 Cal.App.5th 956, 969 [affirming denial of resentencing petition because record of conviction established that the defendant was sole perpetrator and actual killer].)
In this case, Rayford's plea of guilty"' "admits every element of the crime charged . . .,"' but no more." (People v. Saez (2015) 237 Cal.App.4th 1177, 1206 (Saez); see also Descamps v. U.S. (2013) 570 U.S. 254, 270 (Descamps) ["when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment."].) Thus, Rayford's plea admitted every elemental fact necessary to a conviction for attempted murder-which would include an intent to kill-but the plea itself, without more, does not foreclose the possibility that Rayford's intent to kill was predicated on a theory of imputed malice under the natural and probable consequences doctrine.
When examining whether to deny a petition at the prima facie stage, the trial court is permitted to review the record of conviction. (Lewis, supra, 11 Cal.5th at p. 971.) And here, the trial court reviewed the preliminary hearing transcript and concluded that the evidence from the preliminary hearing conclusively established that Rayford was the sole, actual perpetrator and was thus ineligible for relief. The parties dispute the extent to which a trial court may consider the preliminary hearing transcript at the prima facie stage-an issue that presently divides the Courts of Appeal and is pending before the California Supreme Court. (Patton, supra, 89 Cal.App.5th 649, 657, rev. granted [preliminary hearing transcript conclusively demonstrated ineligibility for relief under section 1172.6]; People v. Pickett (2023) 93 Cal.App.5th 982, 991-993 [defendant fails to make prima facie showing under section 1172.6 where he or she has alleged no facts concerning the murder to which he pleaded guilty, the People have introduced uncontroverted evidence from the preliminary hearing transcript showing that the defendant acted alone in killing the victim, and the defendant has not put forth by way of briefing or oral argument any factual or legal theory in support of the petition]; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1168 [finding that transcripts of preliminary and plea hearings demonstrated that the defendant was convicted of second degree murder as direct aider and abettor]; People v. Flores (2022) 76 Cal.App.5th 974, 988-992 (Flores) [concluding that preliminary hearing transcript does not establish ineligibility for resentencing].)
At the prima facie stage, however, the trial court is not permitted to engage in factfinding involving the weighing of evidence or the assessment of credibility. (Lewis, supra, 11 Cal.5th at pp. 971-972.)
But we need not take sides in the current split of authority, which we anticipate the high court will resolve in People v. Patton, S279670: here, virtually all the testimony at the preliminary hearing establishing the circumstances of the offense-including whether Rayford acted alone-was that of law enforcement officers recounting hearsay admitted only by operation of section 872, subdivision (b). Investigator Rodriguez testified about Deputy Coronado's account of Rayford's attack and further relayed the statements made by the emergency room physician who treated Coronado. Sergeant Pickens testified about what Sergeant Dunn told him. The only percipient witness to testify at the preliminary hearing was Deputy Cantu, who personally witnessed only the aftermath of his colleagues' restraint of Rayford. As section 1172.6, subdivision (d)(3) specifically prohibits the use of hearsay evidence admitted under section 872, subdivision (b) during an evidentiary hearing to determine a petitioner's 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." (Flores, supra, 76 Cal.App.5th at p. 988, fn. omitted; see also Patton, supra, 89 Cal.App.5th at p. 652, fn. 2, rev. granted [disregarding testimony admitted at preliminary hearing under section 872, subdivision (b)].) Even if the preliminary hearing transcript may otherwise properly be considered as part of the record of conviction, the record thus does not conclusively establish that Rayford was the sole perpetrator of the offense of attempted murder.
The parties do not otherwise argue that the testimony could have been admissible under a different exception to the hearsay rule. (See § 1172.6, subd. (d)(3).) And though Rayford stipulated to the preliminary hearing transcript as a factual basis for his plea, he did not admit any specific facts stated in the preliminary hearing transcript other than the facts necessary to the charge itself. (See People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.)
Likewise, without more, Rayford's bare admission of the enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)) and infliction of great bodily injury (§ 12022.7, subd. (a)) neither establishes that he acted with the intent to kill nor refutes that he was convicted on a theory of imputed malice. As with pleading guilty to a criminal offense, a plea or admission of a sentencing enhancement is likewise deemed a judicial admission of only elemental facts necessary to the enhancement. (See Saez, supra, 237 Cal.App.4th at p. 1206; Descamps, supra, 570 U.S. at pp. 269-270.) Here, the enhancements alleged under sections 12022, subdivision (b)(1) and 12022.7 require only a general intent to use a deadly weapon or inflict bodily injury; thus, Rayford's admissions do not establish that he acted with the requisite malice aforethought. (See People v. Offley (2020) 48 Cal.App.5th 588, 598 [section 12022.53, subdivision (d) enhancement does not establish malice aforethought]; see also People v. Davenport (2021) 71 Cal.App.5th 476, 485 [plea of no contest to personal use of a firearm under section 12022.5, subdivision (a) does not preclude eligibility for relief under section 1172.6]; People v. Elder (2014) 227 Cal.App.4th 411, 424 [section 12202.7 does not require a defendant intend to inflict great bodily injury or intend to kill].)
In sum, nothing in the record establishes as a matter of law that Rayford was ineligible for relief; thus, the trial court erred in summarily denying his petition.
III. DISPOSITION
The order denying Rayford's Penal Code section 1172.6 petition is reversed. On remand, the trial court is directed to issue an order to show cause and to conduct further proceedings as required under Penal Code section 1172.6, subdivision (d).
WE CONCUR: GREENWOOD, P.J., GROVER, J.