Opinion
B329787
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. COREY CORNELIUS WRIGHT, Defendant and Appellant.
Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KA119839, Eleanor J. Hunter, Judge. Reversed and remanded with directions.
Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Corey Cornelius Wright appeals from a postconviction order denying his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6) with respect to his attempted murder conviction. In 2020 Wright pleaded no contest to attempted murder pursuant to a negotiated plea in which he also admitted the gun and gang allegations were true. After appointing counsel and ordering briefing, the superior court determined at the prima facie review stage that Wright was not entitled to relief because the changes to the law eliminating the natural and probable consequences doctrine as a basis for liability for murder (and therefore attempted murder) had already taken effect at the time of his plea in 2020 as a result of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which took effect in 2019.
Further statutory references are to the Penal Code.
Wright contends, the People concede, and we agree the superior court erred in finding Wright was ineligible for relief as a matter of law because it was not until the enactment of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775) in 2022 that the Legislature clarified that Senate Bill 1437's ameliorative changes applied to individuals convicted of attempted murder and voluntary manslaughter. (See § 1172.6, subd. (a).) We reverse the court's order denying Wright's petition for resentencing and direct the court to issue an order to show cause and hold an evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting, the Information, and the Negotiated Plea
This case arises out of an incident in 2018 in which the victim of a shooting told the responding police officers that he was walking down the street when a car approached with five or six men. He heard gunshots and discovered he had been shot in multiple areas on his body. Wright and a codefendant were charged with conspiracy to commit murder (§ 182, subd. (a)(1)) and four counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)). The information also alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)) and Wright personally used a firearm in the commission of the offenses (§ 12022.53, subd. (b)).
On January 21, 2020 Wright entered into a negotiated plea under which he pleaded no contest to the four attempted murder counts and the gun and gang allegations; in exchange, the trial court dismissed the conspiracy charge and premeditation allegation. The trial court sentenced Wright to 30 years in state prison.
B. Wright's Petition for Resentencing
In 2022 Wright, representing himself, filed a form petition for resentencing under former section 1170.95 on the basis that he could not presently be convicted of murder or attempted murder under the changes made to sections 188 and 189, effective January 1, 2019. The superior court appointed counsel for Wright. The People filed a response, and Wright's attorney filed a reply. The People argued that Wright was ineligible for relief as a matter of law because at the time of his plea in 2020, under changes to the law made by Senate Bill 1437, malice could not be imputed to a defendant based on the natural and probable consequences doctrine. Further, although the 2022 amendments to the statute under Senate Bill 775 applied the law to attempted murder, the amendment did not modify sections 187, 188, or 189, and therefore, the prohibition on imputation of malice for an attempted murder conviction must have applied in 2020.
Following oral argument, the superior court summarily denied the petition for resentencing without issuing an order to show cause. The court agreed with the People that at the time of Wright's plea, under Senate Bill 1437 malice could not be imputed to a defendant based on the natural probable consequences doctrine, and therefore, Wright was not eligible for resentencing relief. The court explained, "I'm going to find that the defendant is legally ineligible for relief because his plea came after the initiation of [Senate Bill] 1437."
Wright filed a timely notice of appeal.
DISCUSSION
A. Senate Bills 1437 and 775
Senate Bill 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952 (Lewis), 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule as set forth in section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life as described in section 190.2, subdivision (d) (the felony-murder special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.) Senate Bill 775, effective January 1, 2022, expanded the scope of potential relief by applying Senate Bill 1437's ameliorative changes to individuals convicted of attempted murder and voluntary manslaughter. (See § 1172.6, subd. (a).)
Senate Bill 1437 also provided a procedure, now codified in section 1172.6, for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must direct the prosecutor to file a response to the petition and permit the petitioner to file a reply, and the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
B. The Superior Court Erred in Denying Wright's Petition Without Issuing an Order To Show Cause
Wright contends the superior court erred in finding he was ineligible for relief at the prima facie review stage because he could have been convicted under the natural and probable consequences doctrine. The People agree, as do we.
The People observe in their respondent's brief that after Senate Bill 1437 took effect, the Courts of Appeal were divided as to whether the bill's ameliorative changes applied to convictions for attempted murder. Senate Bill 775 resolved this question in 2022 by clarifying that the elimination of the natural and probable consequences doctrine as a basis for a murder conviction also applied to attempted murder.
With respect to a conviction based on a negotiated plea, the superior court must determine at the prima facie review stage, as it does with respect to a conviction by a jury, whether the defendant is ineligible for resentencing relief because the record of conviction shows as a matter of law that the plea was not based on a now-invalid theory of liability, in this case the natural and probable consequences doctrine. (See People v. Patton (2023) 89 Cal.App.5th 649, 657, review granted June 28, 2023, S279670 [concluding superior court properly denied petition at prima facie review stage because the testimony at the preliminary hearing showed the defendant was the sole perpetrator of an attempted murder]; People v. Flores (2022) 76 Cal.App.5th 974, 991 [concluding defendant was not ineligible as a matter of law where defendant pleaded no contest to second degree murder and preliminary hearing transcript did not establish defendant's ineligibility as a matter of law].)
The Supreme Court granted review in People v. Patton, S279670 to decide whether "the trial court engage[d] in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant's Penal Code section 1172.6 petition at the prima facie stage." In this case the preliminary hearing transcript is not part of the record of conviction before us.
We agree with Wright and the People that the record of conviction does not show as a matter of law that Wright's no contest plea to attempted murder was based on a theory other than the natural and probable consequences doctrine. Wright did not admit that the attempted murder was premeditated, and at the time of his plea, it was not clear whether the natural and probable consequences doctrine remained a valid basis for an attempted murder conviction.
DISPOSITION
The order denying Wright's petition for resentencing is reversed. On remand, the superior court is to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur: SEGAL, J., Acting P. J., MARTINEZ, J.