Opinion
C099057
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. KENGERALD WILCOX, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 13F00264
MAURO, ACTING P.J.
In 2015, defendant Kengerald Wilcox pleaded no contest to voluntary manslaughter and admitted personally using a firearm. The trial court sentenced him to a stipulated 21 years in state prison. In 2022, defendant filed a Penal Code section 1170.95 (now section 1172.6) petition for resentencing. The trial court denied the petition at the prima facie stage, concluding defendant is ineligible for resentencing because he was the actual killer.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We will refer to section 1172.6.
Defendant now contends the trial court should not have relied on testimony from the preliminary hearing or the stipulated factual basis for the plea to deny the petition at the prima facie stage. Agreeing that the record of conviction did not support denial at the prima facie stage, we will reverse and remand for further proceedings.
BACKGROUND
In January 2013, officers responded to a 911 call regarding an unresponsive man in a parked car. The driver, Lucas Esteban-Enrique, had a gunshot wound to the back of his head. He was transported to the hospital where he later died.
A neighbor across the street told an officer he heard three to five gunshots shortly before seeing the victim's car coasting the wrong way across the street toward the curb. Another individual walking in the neighborhood heard what he believed were three rapid gunshots from a small caliber weapon; he looked where he thought the shots originated and saw two black juvenile males wearing black hoodies and saggy jeans walking down the opposite side of the street. He did not see a gun in either of their hands. He did not see anyone else on the street or any vehicles driving in the area. According to the officer, the location of the two juveniles was consistent with the trajectory of the bullet that killed the victim.
The victim's girlfriend told an officer she and the victim had prior runs-in with defendant before the shooting. Defendant had called both of them a "scrap," a derogatory term for a southern Hispanic individual or a Sureno gang member.
The victim's nephew said there had been problems with gang members in the area, and that numerous East Side Piru gang members, including one the nephew knew as "Bubba," lived in the area.
An officer testified that the East Side Piru gang fell under the umbrella of the Bloods and were a known enemy of the Sureno gang.
A woman that lived near the shooting told officers she heard gunshots on the day the victim was killed, and several hours later overheard Bubba say, "I got that guy, and I'll get his family too." Officers determined that defendant was known as "Bubba" and that the conversation the woman overheard was defendant speaking with an East Side Piru gang member. Defendant said he "knocked off that fool" using a ".22" while he was with his cousin. The East Side Piru gang member was aware of problems between defendant and the victim's family.
Officers later found a black hooded sweatshirt in defendant's home during a parole search. Several photographs on defendant's cell phone depicted defendant throwing East Side Piru gang signs.
In 2015, defendant pleaded no contest to voluntary manslaughter (§ 192, subd. (a)(1)) and admitted personally using a firearm (§ 12022.5, subd. (a)(1)) in exchange for a stipulated upper term of 21 years in state prison (11 years for the manslaughter conviction and 10 years for the firearm enhancement). At the plea hearing, the prosecutor articulated the factual basis for the plea, saying that defendant killed the victim, and when he did so, he used a firearm. The trial court asked if defense counsel would stipulate to the articulated factual basis as well as to the complaint as a factual basis, and defense counsel so stipulated. The trial court imposed a sentence consistent with the plea agreement.
In September 2022, defendant filed a petition for resentencing. The trial court appointed counsel and obtained briefs from the parties. The People argued defendant was not entitled to relief because he was the actual killer based on his counsel's stipulation to the factual basis for the plea. They attached the transcript of the plea hearing, the abstract of judgment, and the information. Defendant countered that the prosecutor had invited the trial court to engage in impermissible factfinding at the prima facie stage because he did not admit specific facts rendering him ineligible for resentencing.
At the prima facie hearing, the trial court characterized the stated factual basis for defendant's plea as "pretty sparse." According to the trial court, it did not contain facts showing the time or location of the crime, the general circumstances surrounding the offense, or who was present. When the trial court asked whether it should consider the preliminary hearing transcript to fill in the missing information, the prosecutor responded that the trial court need look no further than the change of plea transcript to determine that defendant was the actual killer.
The trial court issued a written order denying the petition. It relied on testimony from the preliminary hearing to find that defendant's manslaughter conviction was premised on unrefuted evidence that defendant shot and killed the victim and that defendant had admitted doing so. The trial court also found that defendant, through counsel, stipulated to facts stating that he killed the victim and used a firearm to do it. As the actual perpetrator who shot and killed the victim, defendant had failed to make a sufficient prima facie showing for relief.
APPLICABLE LAW
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended "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); see People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill 1437 also created a procedural mechanism in section 1172.6 for those convicted under the former law to seek retroactive relief under the law as amended. (Stats. 2018, ch. 1015; Lewis, at p. 957.) Senate Bill No. 775 (2021-2022 Reg. Sess.) later expanded the statute to apply to attempted murder under the natural and probable consequence doctrine and manslaughter. (Stats. 2021, ch. 551, § 2.)
In its current form, section 1172.6 applies to those who pleaded guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice. (§ 1172.6, subd. (a).) To be eligible for relief, the petitioner must make a prima facie showing that he could not presently be convicted of murder under changes to these theories of murder liability made effective on January 1, 2019, by Senate Bill 1437. (§ 1172.6, subd. (a)(3).) If the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing where the prosecution bears the burden of proving beyond a reasonable doubt that the defendant could still be convicted of murder under current law. (§ 1172.6, subds. (c), (d).)
At the prima facie stage, the court may deny a resentencing petition only if the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 966, 972.) That is, the petition and the record of conviction must "establish conclusively that the defendant is ineligible for relief." (People v. Strong (2022) 13 Cal.5th 698, 708.) This is a pure question of law we review de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) While the trial court may look to the record of conviction after appointing defense counsel, the prima facie inquiry is limited. (Lewis, at pp. 971-972.) The court takes the petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if those factual allegations were proved. (Ibid.) If so, the court must issue an order to show cause. (Ibid.) At that early stage, the trial court should not reject the petitioner's factual allegations on credibility grounds or engage in factfinding that involves the weighing of evidence or the exercise of discretion. (Id. at p. 972.) But if the record"' "contain[s] facts refuting the allegations in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Id. at p. 971.)
DISCUSSION
Defendant contends the trial court should not have relied on testimony from the preliminary hearing or the stipulated factual basis for the plea to deny the petition at the prima facie stage.
A
Turning first to defense counsel's stipulation to the factual basis for the plea, defendant argues the stipulation did not admit facts that render him ineligible for resentencing. The People counter that the information and the plea colloquy support the trial court's conclusion that defendant was the sole and actual perpetrator of the manslaughter, rendering him ineligible for relief as a matter of law. They note that the information named only defendant for the murder and initially alleged that he personally discharged a firearm, proximately causing the victim's death. They also argue that defense counsel's stipulation to the factual basis shows that defendant was aware of the prosecution's sole theory -- that he was the actual killer -- when he entered his plea.
Where, like here, a conviction results from a guilty or no contest plea, the record of conviction includes facts the defendant admitted as the factual basis for a guilty or no contest plea. (People v. Gallardo (2017) 4 Cal.5th 120, 136; People v. Sohal (1997) 53 Cal.App.4th 911, 915 ["reporter's transcript of a plea is considered part of the 'record of conviction' "].) In People v. Fisher (2023) 95 Cal.App.5th 1022, the appellate court upheld the trial court's denial of defendant Fisher's resentencing petition at the prima facie stage because it found he was the actual shooter based on express admissions Fisher made at the plea colloquy. (Id. at pp. 1026, 1029-1030.) The prosecutor explained the charges at the plea hearing, stating that Fisher entered a specific apartment and while there shot and killed two victims and shot and injured a third victim. (Id. at p. 1025.) Fisher indicated he understood the charges and that the prosecutor's statement accurately described what had happened. (Ibid.; cf. People v. Das (2023) 96 Cal.App.5th 954, 961964 [court could not rely on prosecutor's statement of factual basis that the defendant stabbed the victim with a knife attempting to kill him because the defendant did not stipulate to or otherwise admit the truth of these facts].)
Unlike in Fisher, here the stipulated factual basis did not say defendant shot and killed the victim, it said defendant killed the victim, and that when he did so, he used a firearm. But when defendant entered his plea, it was possible for defendant to unlawfully kill as an aider and abettor under the no-longer-valid natural and probable consequences doctrine. (See § 192; People v. Smith (2014) 60 Cal.4th 603, 612; People v. Canizalez (2011) 197 Cal.App.4th 832, 850-851.) And personal use of a firearm under section 12022.5 did not necessarily mean shooting the victim; it could mean displaying or brandishing a firearm. (People v. Arzate (2003) 114 Cal.App.4th 390, 399-400; People v. Young (2005) 34 Cal.4th 1149, 1205; People v. Jones (2003) 30 Cal.4th 1084, 1120; see also, People v. Davenport (2021) 71 Cal.App.5th 476, 485 (Davenport).)
Defendant pleaded to voluntary manslaughter without specifying a theory of guilt that would preclude section 1172.6 relief, such as admitting that he shot and killed the victim. (See e.g., People v. Gaillard (2024) 99 Cal.App.5th 1206, 1209, 1212.) Although the information initially alleged that defendant personally discharged a firearm proximately causing the victim's death, that allegation was dismissed. The record of conviction does not irrefutably establish defendant is ineligible for relief under section 1172.6 as a matter of law. (Lewis, supra, 11 Cal.5th at p. 972 ["at this preliminary juncture [the prima facie stage], a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion' "].)
That the complaint only charged defendant and not others does not dictate a different result. The prosecution's charging decision does not establish ineligibility as a matter of law. (See e.g., CALCRIM No. 373 ["The evidence shows that (another person/other persons) may have been involved in the commission of the crime[s] charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial"].) Nor does it limit the murder theories available to the prosecutor when trying the case. An information, like the one here that alleges a defendant committed murder with malice aforethought, allows the prosecutor to proceed on any theory of murder, including felony murder and murder under the natural and probable consequences doctrine. (See e.g., People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5 [recognizing that it has long been the law in this state that an accusatory pleading charging murder need not specify degree or the manner in which the murder was committed]; Davenport, supra, 71 Cal.App.5th at p. 484 [an information alleging that a murder was committed willfully, unlawfully, and with malice aforethought is a well-recognized way of charging the offense of murder in a generic sense].)
The stipulated factual basis did not, on this record, support denial of the petition at the prima facie stage.
B
Turning next to the proper use of a preliminary hearing transcript, defendant argues that while portions of a preliminary hearing transcript may be a proper part of a record of conviction, an officer's testimony at a preliminary hearing based on out-ofcourt statements constitutes inadmissible hearsay that may not be considered at the prima facie stage. Defendant claims that by relying on the preliminary hearing transcript to find him ineligible, the trial court engaged in impermissible factfinding.
Appellate courts are split on whether, or to what extent, trial courts may rely on preliminary hearing transcripts at the prima facie stage. In People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161, for example, the court of appeal affirmed the trial court's denial of a petition at the prima facie stage. It held that the trial court could consider a preliminary hearing transcript stipulated to state a factual basis for the defendant's plea. The record of conviction, including the preliminary hearing transcript, showed that the defendant was convicted of second degree murder as a direct aider and abettor, the only theory put forth by the prosecutor. In Davenport, supra, 71 Cal.App.5th 476, 481, the court of appeal concluded that although a preliminary hearing transcript can be considered at the prima facie stage, the trial court nevertheless erroneously relied on it because the defendant did not stipulate to the transcript as a factual basis for his plea. In People v. Rivera (2021) 62 Cal.App.5th 217, 235, by contrast, the court of appeal held that even though the defendant stipulated to a grand jury transcript as the factual basis for his plea, the stipulation did not constitute an admission that he acted with actual malice and intent to kill, nor did it constitute a binding admission for all purposes. Similarly, in People v. Flores (2022) 76 Cal.App.5th 974, 991-992, the court of appeal found that while a preliminary hearing transcript may be part of the record of conviction (id. at p. 989, fn. 11), the defendant did not admit the truth of the preliminary hearing testimony and his stipulation that the transcript provided the factual basis for the plea was not a binding admission for all purposes. The court added that the testimony, standing alone, did not conclusively establish as a matter of law that the defendant was the actual killer, acted with intent to kill or actual malice, or was a major participant in an underlying crime who acted with reckless indifference to human life. (Id. at p. 991.)
The California Supreme Court granted review in People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023, S279670, to determine whether a trial court engages in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny a petition at the prima facie stage. In Patton, the trial court relied on uncontroverted preliminary hearing testimony that the defendant approached the victim and fired several shots at him, and that the defendant was the sole perpetrator. (Id. at p. 657.) The court of appeal found that defendant's petition "never offered 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, ha[d] [the defendant] even suggested what facts he had to demonstrate that someone else shot [the victim] and he was merely an accomplice." (Ibid.) The court of appeal concluded that, as the sole and actual perpetrator of the attempted murder, the defendant was ineligible for resentencing. (Ibid.) It rejected the defendant's contention that the trial court engaged in impermissible factfinding at the prima facie stage, noting that the evidence was uncontroverted, and thus no factfinding, weighing of the evidence, or credibility determinations were required. (Id. at p. 658.)
Until the Supreme Court decides the issue, we conclude a trial court should not rely on a preliminary hearing transcript to deny a petition at the prima facie stage where, as here, the defendant did not stipulate that the transcript stated a factual basis for the plea and did not admit the truth of officers' testimony based on out-of-court statements. (Davenport, supra, 71 Cal.App.5th at pp. 481-482.)
The People suggest the preliminary hearing testimony was only offered to demonstrate the prosecution's theory of the case. If true, the preliminary hearing transcript might help to show that the People never pursued a theory of imputed malice. But if so limited, the transcript would not establish that defendant was the actual killer. Here, the trial court indicated that the preliminary hearing testimony established that defendant shot and killed the victim and admitted doing so. On this record it appears the trial court's consideration of the preliminary hearing testimony involved factfinding, which is not permissible at the prima facie stage. (See e.g., People v. Cooper (2020) 54 Cal.App.5th 106, 124; People v. Drayton (2020) 47 Cal.App.5th 965, 982, disapproved in part on other grounds in Lewis, supra, 11 Cal.5th at p. 963; Lewis, at p. 972.)
Based on the foregoing, we will reverse and remand the matter to the trial court.
DISPOSITION
The order denying defendant's petition for resentencing is reversed, and the matter is remanded with direction that the trial court issue an order to show cause and conduct further proceedings under section 1172.6.
We concur: RENNER, J., KRAUSE, J.