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Court cannot summarily dismiss petition for resentencing based on preliminary hearing transcript

People v. Davenport (Cal. Ct. App., Nov. 10, 2021, No. A161954) 2021 WL 5230876, at *1–3

Summary: In 2007, Davenport pled no contest to second degree murder with a firearm enhancement and was sentenced to  18 years to life. Davenport appealed the denial of his petition for resentencing pursuant to Penal Code section 1170.95. Davenport contends that the   trial court erroneously concluded he failed to make a prima facie showing of entitlement to relief by  relying on facts stated in the preliminary hearing transcript in the absence of any stipulation from him that the facts supplied a basis for his plea. The Court of Appeal agreed  and reversed the order summarily denying His  petition and remanded this case for further proceedings.

Facts: Davenport was charged by information with murder (§ 187), alleging he committed the murder “unlawfully and with malice aforethought.” The information included an enhancement for personal and intentional discharge of a firearm causing great bodily injury and death as well as personal and intentional discharge and personal use of a firearm. (§ 12022.53, subds. (b)–(d).)

Davenport pled no contest to second degree murder and a personal use of a firearm enhancement (§ 12022.5, subd. (a)).  Davenport initialed the following two paragraphs as the factual basis for his plea: “I have discussed the contents of the police reports and investigative reports with my attorney. I am satisfied that I know the evidence that could be used against me in trial, as well as any possible defense to these charges. I believe and agree that a jury or judge who heard the evidence against me could find me guilty of the charges to which I am pleading guilty/no contest.” The court sentenced Davenport to a term of 15 years to life for second degree murder consecutive to a term of three years for the enhancement.

Senate Bill 1437 and Felony Murder

In 2018, the Legislature enacted Senate Bill No. 1437 which amended section 189 to limit liability for murder under a felony-murder or natural and probable consequences theory to a person who is the actual killer, has the intent to kill and aids or abets the actual killer, or is a major participant in the underlying felony and acts with reckless indifference to human life. The bill also established a procedure, under newly enacted section 1170.95, for eligible defendants to petition for resentencing.

Davenport’s petition for resentencing

Davenport filed a petition for resentencing under section 1170.95 claiming he: (1) was tried under an information that allowed the prosecution to proceed on a felony-murder theory or under the natural and probable consequences doctrine; (2) pled no contest to second degree murder in lieu of going to trial because he believed he could have been convicted at trial of first degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and (3) could not now be convicted of first or second degree murder under section 188, as revised.

The court summarily denied the petition for failure to state a prima facie case for relief. Davenport appealed the order. On appeal, the Attorney General conceded that Davenport’s petition was facially sufficient: the assertions, if true, would mean that Davenport was eligible for relief under section 1170.95. The Court of Appeal remanded the case for further proceedings.

On remand, the court again summarily denied the petition by written order, concluding that Davenport was ineligible for relief as a matter of law. In reaching this conclusion, the court cited (1) Davenport’s admission to the firearm enhancement; and (2) facts taken from the preliminary hearing transcript. The court explained that it had considered the transcript because “[t]he facts in defendant’s preliminary hearing transcript provide the factual basis for his plea, and are part of the record of his conviction.”

Analysis: Section 1170.95, subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing “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 or murder under the natural and probable consequences doctrine.

(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.

(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”

 Prima face showing for relief under 1437 After a petition for resentencing is filed, the trial court must then determine whether the defendant has made a prima facie showing of entitlement to relief under section 1170.95. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 960, 281 Cal.Rptr.3d 521, 491 P.3d 309 (Lewis).) In making this assessment, the trial court “should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968, 261 Cal.Rptr.3d 335 (Drayton).) The court’s authority to summarily deny a petition is  limited to “readily ascertainable facts” taken from the record of conviction, “rather than factfinding involving the weighing of evidence or the exercise of discretion.” (Id. at p. 980, 261 Cal.Rptr.3d 335; accord Lewis, at pp. 970–971, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

If the court determines that a prima facie showing has been made, it “shall issue an order to show cause” and “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.” (§ 1170.95, subds. (c)–(d)(1).) At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.

Davenport contends that the trial court improperly relied on the preliminary hearing transcript in concluding that Davenport had not made a prima facie showing of entitlement to relief.

Preliminary hearing transcript is part of the record of conviction.

(Cf. People v. Reed (1996) 13 Cal.4th 217, 222–223, 52 Cal.Rptr.2d 106, 914 P.2d 184 [trier of fact determining whether a prior conviction constitutes a serious felony under §§ 667(a) and 1192.7(c) may consider a preliminary hearing transcript as part of the prior record of conviction].) But,  the trial court erred in considering facts from the preliminary hearing transcript here because Davenport did not stipulate to the transcript as a factual basis for his plea. (See People v. Cooper (2020) 54 Cal.App.5th 106, 268 Cal.Rptr.3d 417, review granted ––– Cal.5th ––––, 271 Cal.Rptr.3d 168, 475 P.3d 556 (2020).) The record here does not contain any admission or stipulation by Davenport that the evidence at the preliminary hearing established a factual basis for his no contest plea. The trial court engaged in “impermissible factfinding” at the prima facie stage by relying on facts taken from the preliminary hearing transcript that were not stipulated to or admitted. (People v. Cooper, supra, 54 Cal.App.5th at pp. 112, 124, 268 Cal.Rptr.3d 417, review granted; accord Lewis, supra, 11 Cal.5th at p. 974, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

“It is undisputed that a conviction of second degree murder does not, in and of itself, bar a petition under section 1170.95.” (People v. Rivera, supra, 62 Cal.App.5th at p. 232, 276 Cal.Rptr.3d 390, review granted.) “To be sure, ‘malice aforethought’ is statutorily defined as an element of first and second degree murder. (§§ 187, subd. (a), 189, subd. (b).) But as we have discussed, before Senate Bill No. 1437 malice could be imputed to a defendant under the felony-murder rule or the natural and probable consequences doctrine, meaning that the person did not need to harbor express or implied malice to be convicted of second degree murder.” (Rivera, at p. 234, 276 Cal.Rptr.3d 390.) Davenport pled no contest to the personal use of a firearm enhancement under section 12022.5, subdivision (a), not the charged enhancements under section 12022.53, subdivisions (b)–(d). Davenport’s admission to this enhancement did not preclude the possibility of prosecution under a felony-murder theory. (See Drayton, supra, 47 Cal.App.5th at pp. 969, 981, 261 Cal.Rptr.3d 335 [where petitioner admitted personal use of firearm enhancement, there were no facts in the record that refuted, as a matter of law, petitioner’s assertion that he was convicted on a theory of felony murder].) Davenport’s no contest plea does not bar relief under section 1170.95 as a matter of law.

The trial court erred in summarily denying Davenport’s petition and not affording him an evidentiary hearing under section 1170.95, subdivision (d)(1).3

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