Opinion
F085236
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. FELIX CORRAL RUIZ, Defendant and Appellant.
Elizabeth Campbell, 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, Christopher J. Rench and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County (Super. Ct. No. VCF241607J). Antonio A. Reyes, Judge.
Elizabeth Campbell, 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, Christopher J. Rench and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2013, appellant Felix Corral Ruiz was convicted of two counts of attempted murder, among other felonies. In 2022, he petitioned the superior court for resentencing (Pen. Code, § 1170.95), contending he could not be convicted of attempted murder because of changes made to the Penal Code. The trial court summarily denied the petition.
All future statutory references are to the Penal Code unless otherwise noted. Section 1170.95 was subsequently renumbered to section 1172.6.
Respondent concedes, and we agree, that the summary denial was improper. We reverse the order denying appellant's petition and we remand this matter for further proceedings. The trial court shall appoint counsel to represent appellant. The court shall also issue an order to show cause and, if necessary, it shall hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
BACKGROUND
In 2013, appellant pleaded no contest (in relevant part) to two counts of attempted murder (§§ 664/187, subd. (a)). He was sentenced to prison for an aggregate term of 35 years.
In 2022, appellant, who was acting in pro. per., filed a petition for resentencing. The trial court summarily denied the petition, believing it had been previously filed and denied. Appellant filed a timely notice of appeal.
DISCUSSION
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.). This amended the felony-murder rule and the natural and probable consequences doctrine 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. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6. This provides a procedure for persons who benefit from this change in law to vacate a conviction and be resentenced. (§ 1172.6, subd. (a); Strong, at p. 708.)
An offender seeking resentencing must file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); Strong, supra, 13 Cal.5th at p. 708.) If the sentencing court determines the petitioner has made such a showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the conviction. (§ 1172.6, subds. (c), (d)(1).) At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder (or its attempt) as amended by the changes to section 188 or 189. (§ 1172.6, subd. (d)(3).)
In the present matter, the parties agree, as do we, that the trial court erred in summarily denying appellant's petition for resentencing. As the parties note, the record does not support the court's belief that appellant's petition had been previously filed and denied. Accordingly, the court's stated ground for denial lacks merit and we must evaluate whether the court's error was harmless.
To demonstrate prejudice, appellant must show it is reasonably probable that, had he been afforded the assistance of counsel, his petition would not have been summarily denied without an evidentiary hearing. (People v. Lewis (2021) 11 Cal.5th 952, 974.) Respondent concedes that appellant suffered harm. According to respondent, if the court had appointed counsel and the issues had been briefed, it is reasonably probable the court would not have summarily denied the resentencing petition without an evidentiary hearing.
We accept respondent's concessions and agree that a remand is necessary. Appellant's petition made a prima facie showing that he was entitled to relief under section 1172.6. Because the People correctly concede that there is no basis to deny the petition at the prima facie stage, the order denying the petition must be reversed and the matter remanded with directions for the court to appoint counsel to represent appellant. The court shall issue an order to show cause and, if necessary, conduct an evidentiary hearing under section 1172.6, subdivision (d). We express no opinion on the ultimate resolution of the petition.
DISPOSITION
The trial court's order denying appellant's section 1172.6 petition is reversed and the matter is remanded. On remand, the trial court shall appoint counsel to represent appellant. The court shall also issue an order to show cause and, if necessary, it shall hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
[*] Before Levy, Acting P. J., Detjen, J. and Franson, J.