Opinion
C098835
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. ELIJAH JOEL WOLFSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. MAN-CR-FECOD-2018-0004640)
FEINBERG, J.
Defendant Elijah Joel Wolfson appeals the trial court's denial of his petition for resentencing under Penal Code section 1172.6. The trial court denied the petition without issuing an order to show cause or holding an evidentiary hearing, concluding that defendant had failed to establish a prima facie case for relief. On defendant's appeal, the People concede that the trial court erred in holding, at the prima facie stage, that defendant was ineligible for resentencing. We agree that defendant made a sufficient prima facie showing. We therefore reverse the trial court's order denying the petition for resentencing and remand with directions to issue an order to show cause and to hold an evidentiary hearing on defendant's petition.
Undesignated statutory references are to the Penal Code.
BACKGROUND
I.
In April 2018, the People filed a criminal complaint against defendant and two codefendants alleging various charges, including attempted murder, assault, and shooting at an inhabited vehicle, arising from a March 2018 shooting at an occupied car. The trial court held preliminary hearings in November and December 2018. The prosecution elicited testimony and other evidence concerning defendant's motive for participating in the offenses and suggesting that defendant was the driver of one of the vehicles involved in the shooting. Other testimony described shots being fired into an occupied car. No witness identified defendant as the shooter. The trial court concluded that the evidence was insufficient to hold defendant on a probation violation but sufficient for the other charges.
On January 7, 2019, the People filed an amended information charging defendant and three codefendants with two counts of premeditated attempted murder (§§ 187, subd. (a), 664), three counts of nonpremeditated attempted murder (§§ 187, subd. (a), 664), five counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of shooting at an occupied vehicle (§ 246). The information also alleged that defendant was armed with a firearm (§ 12022, subd. (a)). The information charged one of defendant's codefendants with personally and intentionally discharging a firearm in connection with the attempted murder counts and personally using a firearm in connection with the assault charges.
Section 12022, subdivision (a)(1) imposes a one-year enhancement on a person "armed with a firearm in the commission of a felony," "unless the arming is an element of that offense." The statute includes "vicarious arming," stating that the enhancement applies to" 'a person who is a principal in the commission of a felony . . . if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.'" (People v. Caraballo (2016) 246 Cal.App.4th 936, 940.)
At a May 2019 hearing, the prosecutor informed the trial court that the parties had reached a plea agreement. Consistent with the agreement, the information was amended to charge defendant with a new count of attempted murder without premeditation (§§ 187, subd. (a), 664) and to allege a firearm enhancement (§ 12022, subd. (a)). Defendant pleaded no contest to the new count and admitted the enhancement. The trial court asked: "Stip to the prelim transcript?" Defense counsel and the prosecutor responded affirmatively.
The trial court accepted the plea and dismissed the remaining counts and enhancement allegations. It later sentenced defendant to an agreed-upon state prison term of nine years for the attempted murder conviction. It also imposed a one-year sentence for the firearm enhancement but ordered it stricken for the purpose of sentencing.
II.
In January 2023, defendant filed a petition for resentencing under Penal Code section 1172.6. That statute allows individuals convicted of murder or attempted murder to request resentencing if their convictions rest on a theory of murder liability, including the natural and probable consequences theory, that the Legislature has since eliminated. (§ 1172.6; People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) The trial court appointed counsel for defendant and scheduled a hearing.
The resentencing procedure set forth in section 1172.6 was originally codified in section 1170.95. Effective June 30, 2022, the Legislature renumbered the provision as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We use "section 1172.6" to refer to both current section 1172.6 and former section 1170.95.
At the conclusion of the hearing, the trial court denied defendant's petition without issuing an order to show cause or holding an evidentiary hearing. It agreed with the People that defendant was ineligible for resentencing because he pleaded no contest to attempted murder after the Legislature revised the definition of that crime. The court reasoned that, in light of that timing, defendant had admitted to conduct under a permissible legal theory.
Over defendant's objection, the court also concluded that it could rely on nonhearsay testimony adduced at the preliminary hearing. The court determined that there was sufficient nonhearsay testimony at the preliminary hearing "that established, at least circumstantially, the theory that [the prosecution] proceeded on against" defendant.
DISCUSSION
I.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) narrowed the scope of the felony murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. (People v. Das (2023) 96 Cal.App.5th 954, 959 (Das).) The Legislature adopted the law "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).) Among other things, the enactment amended section 188 to require that a principal convicted of murder "act with malice aforethought." (Stats. 2018, ch. 1015, § 2, subd. (a)(3).) It further provided that malice "shall not be imputed to a person based solely on his or her participation in a crime." (Ibid.) And it added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to be resentenced on any remaining counts. (Stats. 2018, ch. 1015, § 4; Das, at p. 959.)
In 2021, the Legislature adopted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine to seek resentencing under section 1172.6. (Stats. 2021, ch. 551, § 2, subd. (a); Das, supra, 96 Cal.App.5th at p. 959.) The Legislature enacted the provision to "clarif[y] 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." (Stats. 2021, ch. 551, § 1, subd. (a).) The law took effect on January 1, 2022. (Das, at p. 959.)
As amended (and as relevant here), section 1172.6 provides that a person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when: (1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine; (2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and (3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019. (§ 1172.6, subd. (a)(1)-(3).)
After briefing on the petition, the trial court must hold a hearing and determine whether the petitioner has made out a prima facie case for relief. (§ 1172.6, subd. (c).) If the petition and record "establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708.) If instead the petition shows a prima facie entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of attempted murder under section 188 as amended. (Ibid.; § 1172.6, subds. (c), (d)(1), (3).) If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges. (§ 1172.6, subd. (d)(3) .)
A trial court's inquiry into whether a petitioner has stated a prima facie case for relief is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) 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 his or her factual allegations were proved." '" (Ibid.) Trial courts may examine the record of conviction to determine whether a petitioning defendant has established a prima facie entitlement to relief. (Id. at pp. 970972.) If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. (Id. at p. 971.) But a trial court may "not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) As our state high court has explained, the" 'prima facie bar was intentionally and correctly set very low.'" (Ibid.)
We review de novo a trial court's decision to deny a section 1172.6 petition at the prima facie stage. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
II.
Defendant contends, and the People concede, that he established a prima facie entitlement to relief under section 1172.6. We agree that the trial court erred in denying defendant's petition at the prima facie stage.
Contrary to the trial court's ruling, defendant was eligible for relief because the law did not clearly foreclose the prosecution from proceeding under a natural and probable consequences theory when defendant pleaded no contest to attempted murder in May 2019. Before the Legislature adopted Senate Bill 775, the Courts of Appeal were divided on whether Senate Bill 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution. (See People v. Alaybue (2020) 51 Cal.App.5th 207, 222.) It was not until January 2022-more than two and one-half years after defendant's no contest plea-that the law expressly eliminated that possibility. (Stats. 2021, ch. 551, §§ 1, subd. (a), 2; Das, supra, 96 Cal.App.5th at p. 959.)
The trial court further erred in concluding that the record of conviction in this case refuted the allegations in defendant's petition. The operative charging document, which alleged that defendant committed both assault and attempted murder, would have allowed the prosecution to pursue a conviction on the ground that defendant participated in an assault on the victims, the natural and probable consequence of which was attempted murder. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007-1008.)
The preliminary hearing transcript, which formed the factual basis for defendant's plea, also left open the possibility that the prosecution would seek a conviction based on the natural and probable consequences doctrine. The parties dispute whether the trial court properly relied on the preliminary hearing transcript in evaluating whether defendant established a prima facie case. We need not resolve that dispute, however, because even if the trial court correctly looked to the preliminary hearing transcript, no evidence adduced at that hearing shows defendant's ineligibility for relief. As noted above, testimony at the preliminary hearing demonstrated that shots were fired at an occupied car and suggested that defendant was the driver of a vehicle involved in the shooting. That evidence did not conclusively establish that defendant committed attempted murder with malice aforethought, as a direct aider and abettor or otherwise. Rather, as the People concede, that evidence could have supported a theory that defendant participated in the target offense of assault, with the nontarget offense of attempted murder arising as the natural and probable consequence. The trial court therefore erred in ruling that defendant's petition failed to establish a prima facie case for relief.
DISPOSITION
The trial court's order denying defendant's petition for resentencing is reversed.
The case is remanded to the trial court with directions to issue an order to show cause and to hold an evidentiary hearing on defendant's petition.
We concur: MAURO, Acting P. J. DUARTE, J.