Opinion
A166708
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. DARNELL KEYON LASH, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50-1722768
Fineman, J.[*]
Defendant Darnell Keyon Lash appeals the summary denial of his Penal Code section 1172.6 petition to vacate his attempted murder conviction. He contends the trial court erred in concluding that he was ineligible for resentencing as a matter of law. We agree that the trial court erred by determining defendant's eligibility for relief based on the information filed in December 2017 rather than the amended information filed in May 2019. Accordingly, we shall reverse the order and remand for further proceedings.
All statutory references are to the Penal Code.
Background
In December 2017, defendant was charged with conspiracy to commit murder (§§ 182, 187), carrying a loaded firearm as an active participant in a street gang (§ 25850, subds. (a) &(c)(3)), possession of a firearm as a felon (§ 29800, subd. (a)(1)), conspiracy to commit burglary (§§ 182, 460), conspiracy to commit pimping (§§ 182, 266h), and street terrorism (§ 186.22, subd. (a)). The information further alleged that several of the offenses were committed for the benefit of, at the direction of, and in association with, a criminal street gang (§ 186.22, subds. (b)(1)(A) &(b)(1)(B)).
On May 1, 2019, pursuant to a negotiated plea agreement, the information was amended to allege an additional count of attempted murder (§§ 187, 664) with an additional gang enhancement; defendant pled no contest to the new charges; and the remaining charges were dismissed. A single minute order was entered for the hearing at which the information was amended and the plea entered. We have no transcript of the hearing and thus, the factual basis for the plea is not reflected in the record. Defendant was sentenced to the stipulated term of 12 years in prison.
In February 2022, defendant filed his petition for resentencing. Following appointment of counsel for defendant, briefing, and a hearing, the court dismissed the petition on the ground that defendant had not established a prima facie case for relief. Defendant timely filed a notice of appeal.
Discussion
"Effective January 1, 2019, the Legislature passed Senate Bill 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) The bill also established a procedure under former section 1170.95, now section 1172.6, for eligible defendants to petition for resentencing. (Lewis, supra, 11 Cal.5th at p. 959.) Effective January 1, 2022, the Legislature enacted Senate Bill 775 to clarify "that persons who were convicted of attempted murder or manslaughter under a theory of felony murder [or] the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1.)
As amended by Senate Bill 775, section 1172.6, subdivision (a) currently provides, in relevant part, that "[a] person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . 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 Section 188 or 189 made effective January 1, 2019."
Section 1172.6, subdivisions (b) and (c) provide for the submission of the petition, appointment of counsel, and submission of additional briefing. Subdivision (c) provides further that "[a]fter 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."
The prima facie inquiry is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) The court must accept the petitioner's allegations as true and "should not make credibility determinations or engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 974.) "If the petition and record in the case establish conclusively that the [petitioner] is ineligible for relief, the trial court may dismiss the petition" as a matter of law. (People v. Strong (2022) 13 Cal.5th 698, 708.) But if the court determines there is a prima facie showing, it must issue an order to show cause and hold a hearing to determine whether to vacate the attempted murder conviction. (§ 1172.6, subds. (c), (d)(1).)
Here, the court determined that defendant could not satisfy the requirements for relief under section 1172.6, subdivisions (a)(1) and (a)(2) as a matter of law and dismissed the petition. The court explained, "In the December 22, 2017 information, the only homicide-related charge petitioner faced was conspiracy to commit murder .... Conspiracy to commit murder is not a charge which is eligible for relief under § 1172.6. (People v. Whitson (2022) 79 Cal.App.5th 22, 34-36.) [Section 1172.6, subdivision (a)(1),] requires that the charging document allow the prosecution to proceed under a theory of felony murder, murder or attempted murder under the natural and probable consequences theory, or murder under some other theory of imputed malice. As Petitioner was not charged with murder or attempted murder, he cannot have been prosecuted under any of those theories. [¶] Similarly, the attempted murder charge . . . to which Petitioner pled was only added as part of the negotiated plea disposition. [Section 1172.6, subdivision (a)(2),] requires that Petitioner be convicted of 'attempted murder . . . following a trial or accepted a plea in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.' Because attempted murder was not charged against Petitioner until his negotiated plea disposition was made, he never faced a pending trial at which he 'could have been convicted of murder or attempted murder' that his plea was 'in lieu of.' "
We review de novo whether the trial court properly denied defendant's section 1172.6 petition without issuing an order to show cause. (People v. Coley (2022) 77 Cal.App.5th 539, 545.)
Defendant contends, for the first time on appeal, that the operative charging document is not the December 2017 information but, instead, the amended information filed the morning of his plea. He argues that the minute order indicates the information was "amended on its face" and that the record does not support the trial court's conclusion that the amendment was "added as part of the negotiated plea disposition." Accordingly, he suggests the court relied on an "outdated information" in ruling on his petition.
This case presents the inverse issue to those decisions holding that a defendant charged with felony murder, but convicted through a plea bargain of voluntary manslaughter, is not eligible for relief under section 1172.6. (People v. Paige (2020) 51 Cal.App.5th 194, 204 ["[W]e agree with our colleagues in the Second, Fourth and Fifth Districts holding that defendants charged with felony murder but convicted of voluntary manslaughter pursuant to a plea agreement are not eligible for relief under [former] section 1170.95"].)
We need not decide whether the information was amended as part of the plea agreement because even assuming the information was amended in connection with the negotiated plea agreement, the amended information remains the operative charging document for purposes of resolving the petition for resentencing.
Under section 1009, an "information may only be amended within the scope of the original charge, and cannot be amended so as to change the offense charged. Similarly, an information may not be amended to charge an offense not shown by the evidence taken at the preliminary examination." (Levenson &Ricciardulli, Cal. Criminal Procedure (The Rutter Group Dec. 2022) Scope of amendments-Limits on charging new offenses, § 11:34.) "An amended accusatory pleading therefore supersedes the original pleading, which has no further effect." Garcia v. Superior Court (2020) 47 Cal.App.5th 631, 647; People v. Scott (2013) 221 Cal.App.4th 525, 533 ["when a pleading is amended, the original pleading is thereby set aside and abandoned"]; People v. Mack (1961) 197 Cal.App.2d 574, 578 ["' "an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading"' "]; 4 Witkin, Cal. Crim. Law (4th ed. 2022) Pretrial, § 243.) Contrary to respondent's arguments, defendant's failure to object to the filing of the amended complaint does not alter the effect of the amendment.
Respondent argues that an amendment made in connection with a plea agreement is significantly different than an amendment "in any other context." Respondent notes that while the court lacks jurisdiction to convict a defendant at trial of an offense that is neither charged nor necessarily included in the alleged crime, when a defendant enters a guilty or no contest plea, the court "is not limited in its jurisdiction to the offenses charged or necessarily included in those charged." (People v. West (1970) 3 Cal.3d 595, 612-613 (West).) But as the full quotation from West makes clear, the court's jurisdiction is not dependent on amendment: "Although we could speak of defendant's plea as an 'implied' amendment of the information to add the charge to which defendant pleads [citation], we see no need to fashion such a fiction; we hold that the court, in accepting a knowing and voluntary plea of guilty or nolo contendere, is not limited in its jurisdiction to the offenses charged or necessarily included in those charged." (Ibid.) The court's jurisdiction does not alter the practical effect of the amendment.
Respondent also suggests that if the parties had withdrawn the plea for any reason or had the court not approved it, the December 2017 information would have been reinstated automatically. We disagree.
In People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258, defendant entered a plea of guilty to murder in the first degree pursuant to a negotiated plea. The record made clear that but for the bargain the prosecutor would be alleging special circumstances in connection with the murder and defendant made it equally clear that he was pleading guilty to avoid the death penalty. (Id. at pp. 257-258.) After the judgment of conviction was reversed on appeal, defendant withdrew his guilty plea, the prosecutor filed an amended information adding special circumstance allegations, and defendant successfully moved to strike the new allegations. (Id. at p. 258.) On appeal, the court reversed the order striking the amended allegations. The court explained, "Familiar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored. When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into. [Citation.] Here defendant agreed to plead guilty to murder in order to obtain a reciprocal benefit: the forbearance of the prosecutor in not amending the information to seek the death penalty. When a defendant withdraws his plea, the prosecutor is no longer bound; counts dismissed may be restored." (Id. at pp. 258-259.) In People v. Stamps (2020) 9 Cal.5th 685, 706-707 the court confirmed that when a plea is withdrawn, the court cannot" '" 'proceed to apply and enforce certain parts of the plea bargain, while ignoring' others. [Citation.] Instead, the court must restore the parties to the status quo ante." '" Thus, in both of these cases relied upon by respondent, either counsel or the court, on its own motion, must take some affirmative action after the plea is withdrawn; the change does not happen automatically.
Here, had the no contest plea been withdrawn or not approved by the court, restoring defendant and the prosecution to the "status quo ante" would require eliminating defendant's assent to the amendment. Defendant would then have been free, like any other defendant, to challenge the amendment by motion under section 995. (§ 995, subd. (a)(2)(B) [information shall be set aside upon defendant's motion if "the defendant has been committed without reasonable or probable cause"]; People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411 [purpose of a motion to set aside the accusatory pleading under section 995 is to review the sufficiency of the information based upon the record made at the preliminary hearing.].) Likewise, as noted above, the prosecution could also move to amend the complaint to restore the dismissed counts and/or to add any additional counts otherwise permissible under section 1009, or decide to proceed with the amended information. Respondent cites no authority for an exception to the general rule that an amended information supersedes the original pleading, which has no further effect (Garcia v. Superior Court, supra, 47 Cal.App.5th at p. 647) and, therefore, we do not agree that the December 2017 information would automatically have been reinstated and the amended information stricken upon withdrawal of the plea agreement.
Applying section 1172.6, subdivision (a)'s requirements to the May 2019 amended information, we conclude that defendant's petition, on its face, establishes a prima facie showing of his eligibility for relief: The information permitted the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine. (§ 1172.6, subd. (a)(1).) He accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder. (§ 1172.6, subd. (a)(2).) His petition avers that he could not presently be convicted of attempted murder because of changes to Section 188 or 189 made effective January 1, 2019. (§ 1172.6, subd. (a)(3).)
In the trial court, the prosecutor argued that the record establishes conclusively that the defendant is ineligible for relief because both conspiracy to commit murder and attempted murder, as charged in this case, require proof of an intent to kill. The prosecutor suggested that "[t]he nature of the conspiracy to commit murder charge indicates an intent of the prosecution to proceed under a theory that petitioner had the intent to kill, and not [the] natural and probable consequences doctrine."
The natural and probable consequences doctrine applies to hold a defendant liable for a nontarget offense that is the natural and probable consequence of an intended crime. (People v. Favor (2012) 54 Cal.4th 868, 874 [attempted murders were natural and probable consequence of target robbery offenses]; People v. Medrano (2021) 68 Cal.App.5th 177, 185 [natural and probable consequences doctrine "applies to unintended, nontarget offenses"].) Prior to the enactment of Senate Bill 775, when a defendant was "found guilty of attempted murder under a natural and probable consequences theory of liability, the 'intent to kill' was imputed onto [the defendant] from the actual killer or perpetrator." (People v. Montes (2021) 71 Cal.App.5th 1001, 1007.) With the amendment of section 188, subdivision (a)(3), to prohibit imputing malice based solely on participation in a crime, the natural and probable consequences doctrine can no longer be applied to prove an accomplice committed attempted murder. (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) When a defendant is entitled to resentencing of an attempted murder conviction under section 1172.6, the attempted murder conviction "shall be redesignated as the target offense . . . for resentencing purposes if the . . . attempted murder was charged generically, and the target offense was not charged." (§ 1172.6, subd. (e).)
The overt acts alleged in the information in support of the conspiracy to commit murder tend to suggest that the natural and probable consequences doctrine was not applicable in this case. The information alleges that on October 5, 2017, defendant received a phone call from a fellow gang member and co-conspirator who told him that a third co-conspirator had located the target victim and was going to "do his thing." In a series of quick phones calls, defendant asked whether the alleged co-conspirators needed another gun and whether they had a car. Then, one of the co-conspirators called the proposed shooter to let him know where defendant would be waiting with a car to pick him up after the shooting. It is undisputed that no shooting occurred that day. The attempted murder was alleged to have occurred on October 5, 2017, and presumably was based on these same acts. No other counts are alleged based on events occurring that day. Thus, there is no suggestion that the attempted murder was the unintended but natural and probable consequence of defendant's aiding and abetting a different, intended crime.
Nonetheless, respondent has not reasserted this argument on appeal and instead concedes that "the facts of the underlying offense are not necessary to address the issues raised on appeal" and that "[a]t the prima facie stage, the superior court may not engage in factfinding about the petitioner's culpability." Given the extremely limited record before us and the" 'very low'" bar set for establishing a prima facie case for relief (Lewis, supra, 11 Cal.5th at p. 972), we cannot conclude, as a matter of law, that the information would not have allowed the prosecution to proceed under the now-invalid theory of attempted murder under the natural and probable consequences doctrine. (§ 1172.6, subd. (a)(1).)
Accordingly, the trial court must issue an order to show cause (§ 1172.6, subd. (c)) and hold an evidentiary hearing to determine whether defendant is entitled to relief. (§ 1172.6, subd. (d).) On remand, with the benefit of a more complete record, the trial court will be able to determine whether defendant's plea necessarily establishes that he is guilty of attempted murder based on his aiding and abetting of the attempted murder, rather than his aiding and abetting of a target crime for which the attempted murder was a natural and probable consequence.
Disposition
The order summarily dismissing defendant's petition for resentencing under section 1172.6 is reversed.
WE CONCUR: Brown, P. J. Streeter, J.
[*] Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.