Opinion
B329921
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. TANAZA SHAWNTEE WHITESIDE, 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, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. YA066850 Laura Ellison, Judge. Reversed and remanded with directions.
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, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
In 2008, appellant Tanaza Shawntee Whiteside pleaded no contest to one count of second degree murder. In 2022, she filed a petition for resentencing under Penal Code section 1172.6. She appeals the superior court's denial of that petition without holding an evidentiary hearing. Both parties agree the court erred and request that we remand the case for further proceedings. We agree and will do so.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered as 1172.6 without substantive change. (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) For clarity, we use the current statutory numbering.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues raised on appeal.
In 2008, Whiteside was charged by information with one count of murder, two counts of attempted murder, and two counts of assault with a firearm. The information further alleged that for the murder count, another defendant-also charged with the same murder-"personally and intentionally discharged a firearm." For the attempted murder counts, the information alleged Whiteside "personally and intentionally discharged a firearm." Whiteside pleaded no contest to one count of second-degree murder and two counts of attempted murder. The court sentenced Whiteside to a term of 15 years to life for second-degree murder.
There was no allegation that Whiteside discharged a firearm in this count.
On each count of attempted murder, the court sentenced Whiteside to seven years, with all sentences running concurrently.
In October 2022, Whiteside filed a form petition for resentencing under section 1172.6. The petition alleged in relevant part that: (1) an "information . . . was filed against [Whiteside] 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) she "accepted a plea offer in lieu of a trial at which [she] could have been convicted of murder or attempted murder"; and (3) she "could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189." She also requested appointment of counsel. The court received the petition and, in December 2022, appointed counsel for Whiteside.
In January 2023, the People opposed the petition, asserting Whiteside was ineligible for relief as a matter of law. Citing People v. Myles (2021) 69 Cal.App.5th 688 (Myles), People v. Anderson (2022) 78 Cal.App.5th 81 (Anderson), and People v. Mitchell (2022) 81 Cal.App.5th 575 (Mitchell), the People argued that parole hearing transcripts were admissible as evidence at an evidentiary hearing. The People attached a transcript from Whiteside's March 2019 parole hearing, in which Whiteside "admitted to personally committing the murder alleged in Count 1 and the attempted murders alleged in [C]ounts 2 and 3." Specifically, she admitted that, as to the murdered victim, she "shot him in the face," and as to the attempted murder victims, "she fi[r]ed multiple shots at the victims." The People also submitted preliminary hearing transcripts in which a sheriff's deputy testified that the attempted murder victims identified Whiteside as an individual who fired a gun at them-the victims themselves did not testify.
The preliminary hearing additionally contained testimony from a sheriff's deputy that, as to the murder charge, Whiteside had told the deputy she was driving the car when a rear passenger fired at a pedestrian.
Whiteside filed a reply brief, arguing that her parole hearing transcript was not a part of the record of conviction, and could not be considered by the court at the prima facie stage. She added that, because she did not stipulate to the preliminary hearing transcript as a factual basis for her plea, the court also could not consider that at the prima facie stage.
In April 2023, the court held a hearing to determine whether Whiteside had made a prima facie showing for relief under section 1172.6. The prosecutor reminded the court she had filed an opposition attaching a parole hearing transcript in which Whiteside admitted to being the "shooter," and citing to three appellate court cases "that allow a parole hearing transcript to be used as evidence." When Whiteside's counsel argued that the court could not consider the parole hearing transcript submitted by the People, the court referred to the cases cited by the prosecution and commented, "I think that's good law." The court then denied the petition, finding Whiteside had not made a prima facie showing for relief. Whiteside timely appealed.
DISCUSSION
Our Supreme Court has held that a trial court may consider a petitioner's record of conviction in deciding whether their petition makes a prima facie showing. (People v. Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis).) Whiteside contends the superior court erred in considering the transcript to her parole hearing when denying her petition because the transcript was not part of her record of conviction. She argues that the three cases the prosecution relied on-Myles, Anderson, and Mitchell- dealt with whether parole hearing transcripts could be submitted as evidence at the evidentiary hearing held under section 1172.6, subdivision (d)(3), not whether they could be considered in deciding whether the petitioner made a prima facie showing for relief.
The People agree. In People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), our Supreme Court held that "a defendant's statements, made after a defendant's plea of guilty has been accepted, that appear in a probation officer's report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not 'reflect[] the facts of the offense for which the defendant was convicted.'" (Id. at p. 179.) Analogizing to Trujillo, the People contend that if a statement made in a probation report is not part of a record of conviction, then "statements made at a parole hearing years later, even further removed from the proceedings, cannot logically be part of the record of conviction." The People agree that, as to Myles, Anderson, and Mitchell, "none of those cases hold that such testimony is part of the record of conviction; to the contrary, they all addressed the admissibility of such evidence at an evidentiary hearing." The People also contend the trial court would not have been permitted to rely on the hearsay statements made in the preliminary hearing, citing section 1172.6, subdivision (d)(3), which excludes such statements from the evidentiary hearing. While the People assert that "[t]he evidence before the trial court was more than sufficient to establish that appellant actually killed one person and tried to kill two others," they concede that "those facts must be established at an evidentiary hearing, not at the prima facie hearing."
In Trujillo, our high court considered whether a trial court was permitted to consider a defendant's statement in a probation report-made eleven days after he pled guilty-for the purpose of determining whether a prior conviction counted as a "strike." (Trujillo, supra, 40 Cal.4th at p. 171.)
We agree with both parties. (Myles, supra, 69 Cal.App.5th at p. 695 [considering whether parole hearing transcript constituted "new or additional evidence" within the meaning of section 1172.6, subdivision (d)(3), such that court could consider it at evidentiary hearing]; Anderson, supra, 78 Cal.App.5th at p. 84 [considering whether "trial court prejudicially erred by admitting in his section 1170.95 evidentiary hearing testimony from Anderson's parole suitability hearings"]; Mitchell, supra, 81 Cal.App.5th at pp. 580, 583, 586 [considering whether court could rely on statements defendant made to parole board at evidentiary hearing].)
We agree that the court erred in considering the parole hearing transcript in determining whether Whiteside made a prima facie showing. "[O]ur Supreme Court has emphasized that the prima facie review is limited, and 'the "prima facie bar was intentionally and correctly set very low." '" (People v. Flores (2022) 76 Cal.App.5th 974, 991.) The court may not weigh evidence or exercise discretion-"[i]nstead, the court must '" 'take[] [the] petitioner's factual allegations as true'"' and make a '" 'preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.'"' [Citations.] Only where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner." (Ibid., emphasis in original.)
Here, Whiteside's form petition "checked the boxes" next to allegations that, if true, entitled her to relief under section 1172.6. Nothing in the record of conviction conclusively refuted those allegations. Therefore, she made a prima facie showing for relief, and the court erred in finding otherwise.
DISPOSITION
The order is reversed with directions to the superior court to find that Whiteside has made a prima facie showing for relief, and to proceed as otherwise directed under section 1172.6.
We concur: ROTHSCHILD, P. J., BENDIX, J.