Opinion
B329006
07-17-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ESPARZA, Defendant and Appellant.
Jonathan E. Demson, 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, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PA045672 Hayden Zacky, Judge. Affirmed.
Jonathan E. Demson, 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, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
In 2005, defendant and appellant Carlos Esparza pled no contest to attempted murder and admitted he personally used a handgun in the commission of the offense. In 2022, Esparza filed a petition for recall and resentencing under former Penal Code section 1170.95. The trial court denied Esparza relief as a matter of law, concluding the preliminary hearing transcript, which Esparza's trial counsel stipulated to as the factual basis for Esparza's plea, demonstrated Esparza was not prosecuted for attempted murder under an imputed-malice theory of liability. Rather, it revealed Esparza was the only perpetrator and the only person charged with the offense. On appeal, Esparza argues we should remand the matter to the trial court with instructions to issue an order to show cause and hold an evidentiary hearing. For the reasons discussed below, we disagree and affirm.
All undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute.
PROCEDURAL BACKGROUND
As noted above, Esparza pled no contest to attempted murder. (§§ 187, subd. (a); 664.) As also noted above, Esparza admitted the allegation that, in the commission of the attempted murder, he personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).) The trial court sentenced Esparza to 34 years in state prison, consisting of a 7-year term on the attempted murder, doubled to 14 years based on a prior strike conviction, enhanced by 20 years for the firearm use.
Although the amended information charged Esparza with various other offenses, including making criminal threats (§ 422), those other charges were dropped when Esparza pled.
In 2022, Esparza petitioned the trial court for relief under former section 1170.95. The trial court appointed counsel on Esparza's behalf. The prosecution filed a response, and attached as an exhibit the transcript of Esparza's preliminary hearing. In its response, the prosecution argued Esparza was ineligible for relief as a matter of law. In support of its position, the prosecution noted the preliminary hearing transcript, which Esparza's trial counsel stipulated to as the factual basis for Esparza's plea, demonstrated Esparza was prosecuted under the theory he was the actual shooter, not under an imputed-malice theory of liability. The prosecution also asserted Esparza's admission that he personally and intentionally discharged a firearm in the commission of the attempted murder bolstered its position that Esparza was ineligible for relief as a matter of law. Defense counsel filed a reply, arguing it would constitute improper factfinding to deny Esparza relief as a matter of law based on eyewitness testimony adduced at the preliminary hearing indicating Esparza was the actual shooter. Defense counsel additionally noted Esparza's admission that the firearm allegation was true likewise did not demonstrate ineligibility as a matter of law, as it did not conclusively demonstrate Esparza was the actual shooter.
After hearing argument on whether Esparza had made a prima facie showing of entitlement to relief, the trial court issued a written order denying relief as a matter of law. The court explained: "The preliminary hearing transcript that provided a factual basis for defendant's plea, demonstrates that he was not prosecuted under either a felony murder or natural and probable consequence theory, and in fact was the only person charged for the offenses for which he was convicted."
Esparza timely appealed.
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (2017-2018 Reg. Sess.) (SB 1437) "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 the 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); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775) expanded Senate Bill No. 1437 to include convictions for attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 1, subd. (a).)
SB 1437 also added section 1170.95 to the Penal Code, which, as mentioned above, was later renumbered to section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This section permits individuals who were convicted of felony murder or murder under the natural and probable consequences doctrine, but who could not be convicted of murder following SB 1437's changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).) The statute also provides relief for certain individuals convicted under any "other theory under which malice is imputed to a person based solely on that person's participation in a crime." (Ibid.) It also permits individuals who were convicted of attempted murder under the natural and probable consequences doctrine, but who could not be convicted of attempted murder under current law, to petition the sentencing court for relief. (Ibid.) The statute applies to individuals who were convicted of attempted murder by jury trial, as well as to individuals who were convicted of attempted murder by accepting a plea offer. (Id., subd. (a)(2).)
A petition for relief under section 1172.6 must include a declaration by the petitioner that he or she is eligible for relief based on all the requirements of subdivision (a), the superior court case number and year of the petitioner's conviction, and a request for appointment of counsel, should the petitioner seek appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. 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."
If the trial court determines the petitioner has made a prima facie showing for relief and issues an order to show cause, the court must hold a hearing "to determine whether to vacate the murder . . . conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1172.6, subd. (d)(1).) At the hearing, the parties may rely on the record of conviction or present "new or additional evidence" to support their positions, and "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
II. Split in authority
The question presented in this case is whether it was permissible for the trial court to rely on the testimony adduced at Esparza's preliminary hearing to deny him relief as a matter of law. This issue is currently pending before our Supreme Court, and, as discussed in the following paragraphs, California appellate courts are divided on what approach is correct. We begin our analysis by laying out the various approaches appellate courts have taken in resolving the issue presented.
The lead case pending before the Supreme Court on this issue, analyzed in greater detail below, is People v. Patton (2023) 89 Cal.App.5th 649 (Patton), review granted June 28, 2023, S279670. According to the Supreme Court's website, the issue on review in Patton is as follows: "Did the trial court engage 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?"
One line of authority has concluded it is permissible to rely on uncontroverted facts appearing in a preliminary hearing transcript. In Patton, supra, 89 Cal.App.5th 649, the defendant pled no contest to attempted murder and admitted he personally used and discharged a firearm. (Id. at pp. 652-653.) Years later, the defendant filed a resentencing petition. (Id. at p. 654.) The People opposed the petition on the ground the defendant was "'the direct perpetrator [and] could not have been convicted of attempted murder based upon the natural and probable consequences doctrine.'" (Ibid.) At the prima facie hearing, the trial court informed the parties it had reviewed transcripts of the preliminary hearing and change of plea. (Ibid.) Based on testimony from the preliminary hearing, the court found the defendant was "'the shooter, and there was only one shooter'" during the events giving rise to the no contest plea. (Ibid.) The court summarily denied the petition. (Ibid.)
In affirming the summary denial in Patton, the appellate court rejected the argument by the defendant that the trial court had impermissibly engaged in factfinding, noting: "The sworn testimony [at the preliminary hearing], based on surveillance video of the crime, that [the defendant] committed the shooting was and is uncontroverted." (Patton, supra, 89 Cal.App.5th at p. 658.) The court found the defendant had never "assert[ed] he was not the sole and actual perpetrator" or provided "any theory to support his implicit contention now that he was an accomplice and not the person who actually shot [the victim]. Nor, on appeal, has [the defendant] even suggested what facts he has to demonstrate that someone else shot [the victim] and he was merely an accomplice." (Id. at pp. 657, 658, fn. 5.) Finding the uncontroverted record established the defendant's role as "the sole and actual perpetrator of the attempted murder" with no other individual involved, the court concluded the defendant was ineligible for relief as a matter of law. (Id. at p. 657; accord, People v. Pickett (2023) 93 Cal.App.5th 982, 989-991, review granted Oct. 11, 2023, S281643; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161, 1167-1168 [concluding Nguyen, who pled guilty to second degree murder, was ineligible for relief as a matter of law based in part on facts contained in the preliminary hearing transcript].)
Under another line of authority, a trial court may not use testimony from a preliminary hearing at the prima facie stage absent a stipulation by the petitioner that the transcript provided a factual basis for the plea. In People v. Davenport (2021) 71 Cal.App.5th 476 (Davenport), the defendant pleaded no contest to second degree murder with a firearm enhancement. (Id. at p. 478.) Thereafter, the defendant filed a resentencing petition, the court appointed counsel, and the parties submitted additional briefing. (Id. at pp. 479-480.) Following a hearing, the court summarily denied the resentencing petition based in relevant part on the "facts taken from the preliminary hearing transcript that [the defendant] had approached a car . . ., and killed the victim by shooting him at close range." (Id. at p. 480)
The Davenport court reversed. (Davenport, supra, 71 Cal.App.5th at p. 485.) The court agreed with the defendant's contention "that the trial court erred in considering facts from the preliminary hearing transcript here because [the defendant] did not stipulate to the transcript as a factual basis for his plea." (Id. at p. 481.) In reaching this conclusion, the court reasoned the prima facie stage of review "is a test of the petitioner's pleaded allegations, not an inquiry into the truth of those allegations and the credibility of the evidence on which they may rely." (Id. at p. 483.) The court continued: "The exception, for 'readily ascertainable facts' in the record of conviction that '"'refut[e] the allegations made in the petition'"' (Lewis, supra, 11 Cal.5th at p. 971), bars a petitioner from pleading things that the record of conviction necessarily establishes are untrue .... If the exception were to be read more broadly, allowing inquiry into the historical facts that may appear in the court's files but that were never admitted by the petitioner as the factual basis for a plea, the exception would swallow the rule and convert the prima facie inquiry into a factual contest, which is reserved for evidentiary hearings at the section [1172.6], subdivision (d) stage. Because [the defendant] did not stipulate that the preliminary hearing transcript provided the factual basis for his no contest plea, the transcript does not conclusively 'refute' his allegations." (Davenport, supra, 71 Cal.App.5th at p. 483, italics omitted.)
The Davenport court also questioned the reasoning in cases reaching a contrary conclusion. "In our view, by focusing on what [a petitioner] could have proffered at the prima facie stage to counter the evidence set forth in the preliminary hearing transcript, the . . . analysis allocates to petitioners an evidentiary burden that should be on the state (§ [1172.6], subd. (d)(3)), and effectively raises '"the prima facie bar [that] was intentionally and correctly set very low"' (Lewis, supra, 11 Cal.5th at p. 972)." (Davenport, supra, 71 Cal.App.5th at p. 483, fn. omitted, italics omitted.) Davenport's rationale is inapplicable in this case, however, because Esparza did rely on the preliminary hearing transcript to provide a factual basis for his plea.
The third line of authority prohibits any use of testimony from a preliminary hearing to determine a petitioner's ineligibility for relief, even in cases in which the defendant previously stipulated to a factual basis for the plea. (See People v. Rivera (2021) 62 Cal.App.5th 217, 224 (Rivera) ["a defendant who stipulated to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he or she was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario"]; accord, People v. Flores (2022) 76 Cal.App.5th 974, 987-992 (Flores); People v. Eynon (2021) 68 Cal.App.5th 967, 976, 978-979 [while the defendant admitted "he was liable for a murder committed with malice, deliberation, and premeditation, he did not admit that he acted with malice, deliberation, or premeditation" (italics omitted)].) This rule derives from prohibitions on factfinding in analogous sentencing proceedings (see Rivera, supra, at p. 235, citing People v. French (2008) 43 Cal.4th 36, 50-52 [aggravating sentencing circumstance]; People v. Saez (2015) 237 Cal.App.4th 1177, 1206-1207 [determination of prior strike]) and from the Legislature's intent to set a "'"very low"'" bar at the prima facie stage. (Flores, supra, at p. 991, quoting Lewis, supra, 11 Cal.5th at p. 972.)
III. We affirm the trial court's order denying Esparza section 1172.6 relief
We agree with the Attorney General that remand is unwarranted. No one other than Esparza was charged in the attempted murder for which Esparza ultimately pled no contest. And, as noted above, Esparza stipulated to the preliminary hearing as the factual basis for his plea. None of the evidence presented in the preliminary hearing offered an alternative account suggesting someone other than Esparza was the actual shooter. Nor has Esparza, on appeal, presented any alternative factual scenario in which someone other than him may have been the actual shooter. Under these circumstances, we affirm the trial court's order denying relief as a matter of law.
It is true, as discussed above, that some case law has suggested preliminary hearing evidence adduced in a plea case may sometimes not be used to deny petitioners section 1172.6 relief as a matter of law. For example, Rivera held: "a defendant who stipulated to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he or she was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario." (Rivera, supra, 62 Cal.App.5th at p. 224.) But the circumstances in Rivera were different from the circumstances presented here. The Rivera court concluded the petitioner was potentially eligible for relief because he "not only filed a facially sufficient petition but, with the assistance of counsel, offered a theory under which the evidence presented to the grand jury was consistent with his guilt of murder under the natural and probable consequences doctrine, based upon an intent to participate in a target offense of assault." (Id. at p. 239.) "In doing so, he created a factual dispute that cannot be resolved at the prima facie stage since nothing in the record definitively foreclosed his theory." (Ibid.) Unlike the petitioner in Rivera, however, Esparza has offered no theory under which the evidence presented at his preliminary hearing was consistent with his guilt under an imputed-malice theory of liability. He therefore has not created a factual dispute that cannot be resolved at the prima facie stage. Nothing in the record suggests Esparza committed attempted murder, nor pled guilty to attempted murder, under any theory other than that he was the actual shooter. The trial court was therefore correct in denying his petition as a matter of law.
Additionally, although Esparza's admission that the firearm allegation was true does not explicitly include an admission that he actually shot at the victim in the commission of the attempted murder (see § 12022.53, subd. (c)), it does bolster the conclusion that he is guilty of attempted murder as a matter of law, as the firearm admission further supports the sole theory, established in the preliminary hearing transcript and not disputed on appeal, that Esparza pled guilty to attempted murder as the actual shooter, having personally and intentionally discharged a firearm in the commission of that offense.
Finally, Esparza argues the trial court's denial of his petition violated his federal and state constitutional due process rights. We are skeptical of Esparza's argument that asserted defects in section 1172.6 proceedings implicate his federal constitutional rights. (See, e.g., Lewis, supra, 11 Cal.5th at pp. 957-958 [concluding deprivation of a petitioner's right to counsel in section 1172.6 proceedings is an error of state statutory law only].) Even assuming, however, that state and federal constitutional due process protections apply to Esparza's section 1172.6 proceedings, we reject his constitutional claims. The premise of those claims is that the trial court deprived him of due process by denying his petition without issuing an order to show cause and allowing an evidentiary hearing. But, as explained above, the trial court's order denying Esparza relief was fully consonant with Esparza's rights under the statute. He received all the process he was due.
DISPOSITION
We affirm the order denying Esparza section 1172.6 relief.
We concur: COLLINS, J. ZUKIN, J.