Opinion
F085949
12-20-2023
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ANTONIO BARRAZA, Defendant and Appellant.
Kathy Moreno, 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, Michael A. Canzoneri and Clifford E. Zall, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F13902282 Gregory T. Fain, Judge.
Kathy Moreno, 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, Michael A. Canzoneri and Clifford E. Zall, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant Francisco Antonio Barraza was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2)), shooting at an occupied motor vehicle (§ 246), and attempted murder (§§ 664/187, subd. (a)). The information further alleged a criminal street gang enhancement (§ 186.22, subd. (b)(1))) and that Barraza used a firearm in the commission of the attempted murder (§ 12022.53, subd. (b)).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
In 2013, Barraza plead no contest to attempted murder (§§ 664/187, subd. (a)) and admitted the criminal street gang enhancement and the firearm use enhancement. He was sentenced to a determinate term of 27 years in state prison.
In 2022, Barraza filed a petition for resentencing under former section 1170.95, now section 1172.6. Following the appointment of counsel for Barraza, and the submission of briefs by the parties, the trial court denied Barraza's petition, finding that he had failed to establish a prima facie case for relief.
On appeal, Barraza claims that the trial court erred in denying his petition at the prima facie stage because the record does not conclusively establish that Barraza was convicted of attempted murder upon a theory of imputed malice. Based upon the record of conviction available to this court, we agree. We will therefore reverse the trial court's order and remand the matter back to the lower court for further proceedings.
PROCEDURAL HISTORY
On March 12, 2013, the Fresno County District Attorney charged Barraza with assault with a deadly weapon (§ 245, subd. (a)(2), count 1) and shooting into an occupied vehicle (§ 246, count 2).
On April 9, 2013, Barraza entered a stipulated no contest plea to attempted murder (§§ 664/187). In addition, Barraza admitted that the offense was committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1) and that he had personally used a firearm in the commission of the offense within the meaning of section 12022.53, subdivision (b).
The complaint was amended by interlineation to add this count and the gun use enhancement. Neither the initial complaint nor the amended complaint charged Barraza with premeditation as to the attempted murder.
On September 11, 2013, in conformity with his negotiated plea agreement, Barraza was sentenced to a stipulated prison sentence of 27 years.
On September 12, 2022, Barraza filed a petition for resentencing under former section 1170.95 (now renumbered section 1172.6). The trial court appointed counsel for Barraza, and the parties submitted briefing on Barraza's petition to the trial court.
On March 15, 2023, the trial court denied Barraza's petition.
STATEMENT OF FACTS
The Underlying Crime
Barraza entered his plea of no contest pursuant to People v. West, stipulating that the facts in the police report were sufficient to support the charges to which he was entering his plea. Those police reports were not made part of the record of conviction. Moreover, because Barraza entered a plea of no contest before a preliminary hearing was held, there is no record setting forth the evidence supporting the charges to which Barraza plead.
People v. West (1970) 3 Cal.3d 595. In In re Alvernaz (1992) 2 Cal.4th 924 at page 932, the appellate court characterized a People v. West plea as a "plea of nolo contendere, not admitting a factual basis for the plea." Such a plea "allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence." (People v. Rauen (2011) 201 Cal.App.4th 421, 424.) When a defendant changes his or her plea to guilty or no contest, the plea is deemed to constitute a judicial admission of every element of the offense charged. It serves as a stipulation that the People need not introduce proof to support the accusation." '[T]he plea ipso facto supplies both evidence and verdict.'" (People v. Voit (2011) 200 Cal.App.4th 1353, 1363.)
The Trial Court's Ruling Denying Barraza's Petition
At a hearing on March 15, 2023, the trial court held that Barraza had failed to establish a prima facie case for resentencing and denied his petition. The court found that Barraza could not have been convicted of attempted murder and thus failed to meet the requirements of section 1172.6, subdivision (a)(2) because the original complaint did not charge him with attempted murder. (See § 1172.6, subd. (a)(2) [authorizing a person convicted of attempted murder upon a theory of imputed malice to seek resentencing relief where, among other conditions, "The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder."].)
The trial court explained that the complaint was amended to add the charge of attempted murder solely for purposes of the anticipated plea. Thus, Barraza had not "accepted a plea offer in lieu of a trial at which [he] could have been convicted of ... attempted murder." (§ 1172.6, subd. (a)(2).)
The trial court did not make a finding as to whether Barraza was the sole perpetrator of the offense.
ANALYSIS
I. The Trial Court Erred in Denying Barraza's Petition at the Prima Facie Stage
Barraza contends the trial court erred in denying his petition for resentencing at the prima facie stage. We agree.
"Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708.)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," initially codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708.) The initial version of former section 1170.95 permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by [Senate Bill 1437]." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and also" '[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
Section 1172.6, subdivision (a) states:
"(a) A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter 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, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id. at subd. (c).)
"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." (§ 1172.6, subd. (c).)
The prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) However, the prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) 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."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if 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.)
Where the petitioner makes the requisite prima facie showing he or she is entitled to relief under section 1172.6, 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, subd. (d)(1).) We review de novo an order denying a petition under section 1172.6 without issuing an order to show cause. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
B. Analysis
Barraza contends, and the Attorney General agrees, that the trial court's stated rationale for denying his petition for resentencing, was erroneous. We agree as well.
The fact that Barraza had entered a plea of no contest to attempted murder-a charge added by interlineation in anticipation of Barraza's plea-does not render him ineligible for resentencing relief under section 1172.6. Nothing upon the record suggests that Barraza could not have been tried for attempted murder. The record shows that Barraza entered his plea to the charge of attempted murder because the prosecutor anticipated filing a second amended complaint with charges that would have increased Barraza's maximum prison exposure from a determinate term of 27 years to an indeterminate term of 84 years to life. Although we do not know what charges were included on the second amended complaint, nothing upon the record suggests that attempted murder could not have been included on the second amended complaint.
As the Attorney General observes, we review the correctness of the trial court's ruling and not the reasons for that ruling. (See People v. Zapien (1993) 4 Cal.4th 929, 976.) To this end however we are unable to conclude, upon the limited record before us, that the ruling itself was correct.
In his petition, Barraza alleged: (1) that the prosecution filed a complaint allowing it to proceed under a theory of attempted murder based on the natural and probable consequences doctrine; (2) that he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder, and (3) that he could not presently be convicted of attempted murder because of the changes to sections 188 and 189. (See § 1172.6, subd. (a)(1)-(3).) The trial court was required to accept those allegations as true unless, "the record of conviction conclusively demonstrates [the petitioner] was not entitled to relief as a matter of law." (People v. Williams, supra, 86 Cal.App.5th at p. 1251.)
Here, the prosecutor filed an amended complaint charging Barraza with attempted murder, alleging, inter alia, that Barraza "unlawfully and with malice aforethought attempted] to murder" Julian Garcia. Because the crime of attempted murder was generically charged, the complaint allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine. (See § 1172.6, subd. (a)(1); People v. Davenport (2021) 71 Cal.App.5th 476, 484 [" 'The allegation that a murder was committed" 'willfully, unlawfully, and with malice aforethought'" is a well-recognized way of charging murder in [a] generic sense,'" which "does 'not limit the People to prosecuting [defendant] on any particular theories.' "]; see also People v. Didyavong (2023) 90 Cal.App.5th 85, 96, fn. 4 ["A murder charged generically does not limit the prosecution to any particular theories of liability."].)
Further, in pleading no contest to unpremeditated attempted murder, Barraza did not admit to a specific theory of guilt. (See § 1172.6, subd. (a)(2); People v. Flores (2022) 76 Cal.App.5th 974, 987 [petitioner was not ineligible for relief where, "[i]n entering his plea, petitioner did not admit to or stipulate to any particular theory of murder"]; People v. Eynon (2021) 68 Cal.App.5th 967, 977 [petitioner who pleaded to a charge that he" 'did willfully, unlawfully, and with deliberation, premeditation, and malice aforethought murder'" the victim was not ineligible for resentencing as a matter of law because the charge was a "generic murder charge [that] allowed the prosecution to proceed on any theory of liability, including natural and probable consequences"].) At the change of plea hearing, Barraza "did not admit facts supporting liability on any particular theory, and the generic pleading encompassed theories-such as natural and probable consequences ...-that did not require the defendant to have acted with malice." (Ibid.)
The Attorney General contends that the trial court's ruling should nonetheless be affirmed because the record of conviction establishes that Barraza was the sole perpetrator of the attempted murder, and thus, that malice could not have been imputed to him. However, the charging instruction and plea form do not establish that Barraza was the sole perpetrator of the attempted murder. They establish that Barraza was the only one charged with the crime. There are reasons, beyond a defendant being the sole perpetrator of a crime that a coparticipant may not have been charged, such as the death of the coparticipant prior to the filing of the criminal complaint.
We do not suggest that this occurred here. We merely observe that the fact that only the petitioner is charged as the sole defendant may not be sufficient, without more, to support denial of his petition for resentencing at the prima facie stage. As our Supreme Court has made clear, the prima facie review is limited, and "the 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972; see People v. Flores, supra, 76 Cal.App.5th at p. 991 [a petition for resentencing under section 1172.6 cannot be denied at the prima facie stage based upon the existence of substantial evidence showing that a petitioner was convicted under a still valid theory].)
From the record, we do not know the facts underlying Barraza's conviction, as the factual basis for his plea was not made part of the record. Moreover, at the hearing below, the prosecutor never asserted that Barraza was the sole perpetrator of the attempted murder. Such an offer of proof, if uncontested, may have permitted us to conclude that Barraza could not have been convicted of attempted murder under a theory of imputed malice, because he was the sole perpetrator of the offense. But, as stated, the facts of Barraza's crime were never set forth on the record, and whether Barraza was the sole perpetrator of the crime, versus the sole defendant, was never discussed.
The Attorney General further observes that Barraza admitted to personally using a firearm during the commission of the murder (§ 12022.53, subd. (b).) However, this enhancement only requires the use of a firearm during the commission of the offense, without the intent to achieve any particular purpose or that the defendant harbored any particular mental state, including express or implied malice. Indeed, this enhancement does not even require the defendant to have fired a gun. (See § 12022.53, subd. (b): "[A] person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply" (italics added)].)
Section 12022.53 is "a general intent enhancement, and does not require the prosecution to prove that the defendant harbored a particular mental state as to the victim's injury or death." (People v. Offley (2020) 48 Cal.App.5th 588, 598.) Thus, the fact that Barraza admitted this enhancement does not conclusively negate the possibility that malice was imputed to him. (See generally, In re Ferrell (2023) 14 Cal.5th 593, 604 [addressing a related subdivision, and finding "[s]ection 12022.53, subdivision (d), requires only an intent to discharge a firearm, not subjective awareness of a risk or disregard for life[,] [a] finding under this section is no proxy for the mental component of implied malice murder"].) Thus, the fact that Barraza admitted a section 12022.53, subdivision (b) firearm enhancement in the commission of the attempted murder does not conclusively demonstrate his ineligibility for relief.
If, on remand, the prosecutor can present additional evidence within the record of conviction that permits the trial court to conclude, without" 'factfinding involving the weighing of evidence or the exercise of discretion'" (Lewis, supra, 11 Cal.5th at p. 972), that Barraza could not have been convicted on a theory of imputed malice, the trial court may deny the petition without issuing an order to show cause. (Ibid.; see People v. Harden, supra, 81 Cal.App.5th at p. 52 [it is appropriate for a court to deny a defendant's resentencing petition if the record shows defendant is ineligible for relief as a matter of law].)
DISPOSITION
The March 15, 2023 order denying Barazza's petition is reversed. The matter is remanded back to the trial court for further proceedings consistent with section 1170.95, subdivision (c).
[*] Before Poochigian, A. P. J., Smith, J. and DeSantos, J.