Opinion
F085643
10-23-2023
FIFTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. EMILIO ALEJANDRO ISAZAGA, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent. Tim Ward, District Attorney (Tulare) and Cheryl L. Bonner, Deputy District Attorney, for County as Amicus Curiae on behalf of Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. VCF34909D Melinda Myrle Reed, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
Tim Ward, District Attorney (Tulare) and Cheryl L. Bonner, Deputy District Attorney, for County as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2019, appellant and defendant Emilio Alejandro Isazaga (appellant) pleaded no contest to attempted murder and admitted firearm and gang enhancements, and was sentenced to 18 years in prison.
In 2022, appellant filed a petition for resentencing of his attempted murder conviction pursuant to Penal Code section 1172.6. The trial court found appellant made a prima facie case and scheduled an evidentiary hearing. At that hearing, however, the court agreed with the prosecution's new argument that appellant was ineligible for resentencing as a matter of law because he entered his plea in 2019, two months after the amendments enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.; Senate Bill 1437) became effective, and he could not have been convicted based on the natural and probable consequences doctrine at that time.
All further statutory citations are to the Penal Code. Appellant filed his petition in 2022 under former section 1170.95, which was renumbered as section 1172.6 without substantive change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current number throughout this opinion unless otherwise indicated.
On appeal, appellant and the Attorney General agree the matter must be remanded because the trial court erroneously found appellant was ineligible for resentencing as a matter of law.
We granted leave for the District Attorney of Tulare County to file an amicus brief in this appeal. The District Attorney disagrees with the Attorney General's position, and asserts the trial court's ruling was correct and appellant was ineligible for resentencing because he pleaded to attempted murder after the amendments enacted by Senate Bill 1437 went into effect in 2019, so that he could not have been convicted based on any invalid theory of imputed malice.
We agree with appellant and the People, that the trial court erroneously denied the petition without issuing an order to show cause, and reverse the court's order and remand for an evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On March 24, 2017, a green Honda Accord with multiple passengers stopped in front of B.P.'s residence. A passenger got out and discharged his firearm toward B.P., B.J., and O.I. The three victims were not hit or injured. The victims and witnesses identified codefendants Jonathan Mercado as the driver, Jesus Villagomez as the shooter, and Jose Villagomez and appellant as passengers. The victims stated they were shot at because they were members of an opposing gang.
At appellant's plea hearing, the parties stipulated to the police reports and/or the preliminary hearing transcript as the factual basis. The preliminary hearing is not part of the appellate record, and the probation report contains a hearsay summary of reports from the sheriff's department. The following factual summary is taken from the probation report for the limited purpose of giving context to the trial court's findings on appellant's petition. We do not rely on the hearsay statements to resolve the issues in this appeal. (§1172.6, subd. (d)(3); People v. Owens (2022) 78 Cal.App.5th 1015, 1026.)
The charges
On October 26, 2018, an information was filed in the Superior Court of Tulare County jointly charging appellant, and codefendants Mercado, Jose Villagomez, and Jesus Villagomez, with counts 1 through 3, the attempted murders of, respectively, B.P., B.J., and O.I. (§§ 664/187), and with firearm and gang enhancements. As to the three counts, it was alleged that Jesus Villagomez personally and intentionally discharged a firearm in the commission of the offenses (§ 12022.53, subd. (c)); and as to appellant, that a principal personally used a firearm (§ 12022.53, subds. (c), (e)(1)).
Appellant and the codefendants were also jointly charged with count 4, criminal street gang conspiracy (§ 182.5), and count 5, street terrorism (§ 186.22, subd. (a)). Appellant and the codefendants were separately charged with additional narcotics and firearm offenses.
Appellant's plea and sentencing
On March 1, 2019, appellant entered into a negotiated disposition and pleaded no contest to count 1, attempted murder, and admitted enhancements that a principal discharged a firearm in the commission of the offense (§ 12022.53, subd. (c)), and the crime was committed to benefit a street gang (§ 186.22, subd. (b)(1)(C)), for an indicated sentence of 18 years.
Appellant also pleaded no contest to count 15, manufacturing a short-barreled shotgun (§ 33215), count 17, conspiracy to commit possession for sale and/or sale of marijuana (§ 182, subd. (a)(1)), and count 18, conspiracy to commit possession for sale and/or sale of cocaine (§ 182, subd. (a)(1)), admitted the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), and entered a plea in an unrelated case.
On May 23, 2019, the trial court sentenced appellant to the indicated sentence of 18 years based on the midterm of seven years for count 1, attempted murder, plus 10 years for the gang enhancement; a consecutive term of one year (one-third the midterm) for count 18; concurrent terms for counts 15 and 17; and stayed terms for a second gang enhancement and the firearm enhancement.
Appellant did not file a notice of appeal.
APPELLANT'S PETITION FOR RESENTENCING
On February 3, 2022, appellant filed a petition for resentencing of his attempted murder conviction pursuant to section 1172.6, and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed 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) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The trial court appointed counsel to represent appellant.
Prima facie finding
On May 27, 2022, the trial court found appellant's petition stated a prima facie case for resentencing. The court subsequently set a briefing schedule and set a date for the section 1172.6 evidentiary hearing.
The prosecution's trial brief
On November 18, 2022, the prosecutor filed a trial brief in anticipation of the evidentiary hearing, and summarized the preliminary hearing evidence. The prosecutor argued appellant aided and abetted codefendant Jesus Villagomez, who was the gunman, appellant acted with the intent to kill, and appellant was ineligible for resentencing as a matter of law.
Appellant's trial brief
On November 30, 2022, appellant's counsel filed a trial brief that reviewed the applicable statutes but did not address the prosecution's theory that he was ineligible for resentencing because he acted with the intent to kill.
Supplemental briefing
On December 5, 2022, the trial court convened a hearing where the parties addressed the evidence the prosecution intended to introduce at the upcoming evidentiary hearing, consisting of the preliminary hearing transcript and possible witnesses.
On December 21, 2022, the prosecution filed supplemental briefing that summarized the preliminary hearing evidence and addressed the proposed testimony of two witnesses. On December 21, 2022, appellant filed opposition to the introduction of the preliminary hearing transcript.
THE TRIAL COURT'S HEARING
On January 19, 2023, the trial court convened the scheduled evidentiary hearing on appellant's petition. Appellant was present with his attorney. Appellant's codefendants-Mercado, Jesus Villagomez, and Jose Villagomez-were also present with their attorneys.
The court further stated that it had already found a prima facie case as to appellant and Mercado; that Jose Villagomez, who was not the actual shooter, had also filed a petition; and Jesus Villagomez had filed a petition but he was believed to be the actual killer.
The three codefendants are not parties to the instant appeal, but the court repeatedly referred to the fact that they also entered pleas to attempted murder charges in 2019. In order to place those references in context, the probation report states Jose Villagomez pleaded no contest to one count of attempted murder with a gang enhancement and other charges, for an indicated sentence of 25 years. Jesus Villagomez pleaded no contest to four counts of attempted murder, one count of maliciously shooting at a person from a vehicle, and other charges, for an indicated sentence of 40 years eight months. Mercado pleaded no contest to four counts of attempted murder, plus one count of street terrorism and two counts of permitting another to discharge a firearm from a vehicle, with firearm and gang enhancements, for an indicated sentence of 40 years.
The court stated that while it was supposed to conduct the evidentiary hearing, it was instead going to consider the prosecutor's new argument that all four defendants entered their pleas in 2019 after the effective date of Senate Bill 1437, which amended sections 188 and 189 involving the felony-murder rule and the natural and probable consequences doctrine, such that their pleas could not have been based on impermissible theories of imputed malice.
The prosecutor explained that since all four defendants entered their pleas after the statutory amendments to sections 188 and 189 were already in effect, they knew they would not be entitled to resentencing under the amended statutes, and their petitions failed to state a prima facie case for relief.
Appellant's counsel replied that Senate Bill 1437 amended sections 188 and 189, and became effective on January 1, 2019. It also enacted former section 1170.95, but that statute only provided for resentencing of murder convictions, and not attempted murder convictions. On January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.; Senate Bill 775) became effective, amended former section 1170.95, and stated that a petition could be filed for resentencing of an attempted murder conviction based on imputed malice.
Appellant's counsel argued that appellant, and codefendants Mercado and Jose Villagomez, entered their pleas to attempted murder before the statute was expanded to permit petitions for resentencing of attempted murder convictions allegedly based upon imputed malice. They were still eligible for resentencing because former section 1170.95 was not amended until 2022, to permit petitions for resentencing of attempted murder convictions based on imputed malice.
The court acknowledged that attempted murder was added to former section 1170.95's petition process by Senate Bill 775 in 2022. The court stated, however, that when Senate Bill 1437 was originally enacted in 2019, and amended sections 188 and 189, some appellate courts interpreted these amendments to find an attempted murder conviction also could not be based on imputed malice, and "the matter ... was pending before the Supreme Court when [Senate Bill] 775 came about [in 2022] and said the newly remodeled provisions of [sections] 188 and 189 do apply to attempted murder. [¶] It is not true that [sections] 188 and 189 changed after Senate Bill 1437." The court stated the law expanded in 2022 "only as to the applicable eligible crime. The underlying law was not changed."
Appellant's counsel replied that Senate Bill 1437 amended sections 188 and 189 to eliminate felony murder and the natural and probable consequences theory only as to murder. When appellant entered his plea in 2019, he could not have availed himself of these statutes because he pleaded to attempted murder, which was not included within these amendments until Senate Bill 775 became effective in 2022.
The court again stated the question as to whether Senate Bill 1437 extended to attempted murder was pending in the Supreme Court before Senate Bill 775 was enacted, and agreed with the prosecutor that appellant and the codefendants could have raised that argument when they entered their pleas in 2019-that the natural and probable consequences doctrine no longer applied to attempted murder if the defendant was not the actual shooter. The prosecutor added that he could not have obtained an attempted murder conviction against appellant based on the natural and probable consequences doctrine if they had gone to trial in 2019.
The court acknowledged appellant and his codefendants could not have filed a petition for resentencing of their attempted murder convictions until 2022, but if there had been a trial, the prosecution "would not have been able to proceed under attempted murder on the [n]atural and [p]robable [c]onsequence [d]octrine. So, therefore, when they entered their pleas, they entered it under the newly established code, which did not allow for a non-intentional killing for liability."
The court stated that it previously found appellant's petition stated a prima facie case, but changed that ruling and held appellant and his codefendants failed to make a prima facie case for resentencing because "they entered their pleas after the enactment of [sections] 188 and 189 as modified, to eliminate the natural and probable consequences." The court denied appellant's petition without conducting the scheduled evidentiary hearing.
On January 26, 2023, appellant filed a timely notice of appeal.
DISCUSSION
On appeal, appellant argues he was eligible for resentencing and the trial court should have conducted the evidentiary hearing. Appellant contends that at the time of his plea in 2019, the statutes amended by Senate Bill 1437 only prohibited murder convictions that were based on the felony-murder rule and the natural and probable consequences doctrine, and the law was not expanded to prohibit attempted murder convictions based on imputed malice until Senate Bill 775 went into effect on January 1, 2022. Appellant requests remand for the trial court to conduct an evidentiary hearing.
The Attorney General agrees with appellant that the trial court's ruling was erroneous and remand is required.
In an amicus brief, the district attorney disagrees with the People's concession and restates the argument raised before the trial court, and the court relied upon to deny appellant's petition-that appellant was ineligible for relief because he pleaded to attempted murder after the effective date of Senate Bill 1437, the amendments applied to both murder and attempted murder convictions, and his conviction was thus valid.
A. The court's ruling was erroneous as a matter of law. We begin with the statutory amendments at issue in this case.
"Effective January 1, 2019, Senate Bill No. 1437 ... amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People vHarden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708.)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708.) The original version of the statute permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill No. 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
As further explained below, there was a disagreement among appellate courts after Senate Bill 1437 went into effect as to whether the amendments enacted by sections 188 and 189 extended to both murder and attempted murder convictions based on the natural and probable consequences doctrine. The Supreme Court granted review in these cases, and they were pending before the court when the Legislature enacted Senate Bill 775 in October 2021. (People v. Sanchez (2022) 75 Cal.App.5th 191, 193 (Sanchez).)
Senate Bill 775 became effective on January 1, 2022, and amended former section 1170.95 and" '[c]larifie[d] 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.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Thereafter, the Supreme Court transferred the pending cases about whether Senate Bill 1437's amendments extended to attempted murder convictions back to the appellate courts, in light of the amendments enacted by Senate Bill 775, without issuing an opinion on the disputed issue. (Sanchez, supra, 75 Cal.App.5th at p. 193.)
II. The Trial Court Erroneously Denied Appellant's Petition
The Attorney General agrees with appellant that the trial court erroneously denied his petition and adopted the prosecution's argument that appellant could not have been convicted of attempted murder based on an imputed malice theory in 2019. The Attorney General acknowledges that it was not clear at the time of appellant's plea whether Senate Bill 1437's amendments to sections 188 and 189 applied to both murder and attempted murder, and if an attempted murder conviction could still be based on the natural and probable consequences doctrine. The Attorney General states the issue was not resolved until Senate Bill 775 became effective in 2022 to expressly address attempted murder convictions based on imputed malice, and the instant case must be remanded for issuance of an order to show cause and an evidentiary hearing.
A. The District Attorney's Arguments
The District Attorney requested leave to file an amicus brief in this case because it disagreed with the position taken by the Attorney General. We granted such leave, and the district attorney's amicus brief renews the arguments made below and that were relied upon by the trial court-that appellant could not have been convicted of attempted murder based on the natural and probable consequences doctrine when he entered his plea in March 2019 because Senate Bill 1437 had already taken effect and amended sections 188 and 189 to eliminate the natural and probable consequences doctrine for both murder and attempted murder, so his conviction was valid and his petition failed to state a prima facie case for resentencing.
The district attorney argues attempted murder is a derivative crime to murder. As a separate matter, the district attorney argues the rule of lenity would have operated and "compelled any trial court to determine that the [natural and probable consequences doctrine] could not be used to prosecute" appellant for attempted murder in 2019.
In his response to the district attorney's amicus brief, appellant erroneously refers to this argument as being based on the "rule of leniency." Under the "rule of lenity," courts "resolve doubts as to the meaning of a statute in a criminal defendant's favor." (People v. Cornett (2012) 53 Cal.4th 1261, 1271.)" '[W]e have frequently noted, "[the rule of lenity] applies 'only if two reasonable interpretations of the statute stand in relative equipoise.' [Citation.]" [Citations.]' [Citations.] The rule 'has no application where "_ a court 'can fairly discern a contrary legislative intent.'"' [Citations.]' "[A] rule of construction ... is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent." [Citation.]'" (Cornett, at pp. 1261, 1271.)
In making these arguments, the district attorney concedes the legislative history of Senate Bill 1437 only addressed murder and not attempted murder. The district attorney also acknowledges the Supreme Court granted review in numerous cases regarding whether Senate Bill 1437's amendments extended to attempted murder convictions. However, the district attorney asserts the cases pending before the Supreme Court only involved "a defendant who was convicted of murder prior to SB 1437," these cases "pertained to the applicability of" whether former section 1170.95's petition process applied to convictions for attempted murder that occurred before 2019, and the cases did not involve the question of whether a defendant could be convicted of attempted murder under the natural and probable consequences doctrine after January 1, 2019.
The district attorney argues Senate Bill 775 merely" 'clarified'" that the natural and probable consequences doctrine had already been eliminated for attempted murder as a result of Senate Bill 1437's previous amendments, since Senate Bill 775 did not further amend sections 188 and 189. The district attorney argues this was another indication that Senate Bill 1437's original amendments extended to attempted murder convictions as of 2019.
The district attorney thus concludes that when appellant entered his plea to attempted murder in 2019, that plea could not have been based on the natural and probable consequences doctrine since that doctrine had already been eliminated by the amendments to sections 188 and 189. The district attorney acknowledges "[t]his is a matter of first impression," but also declares that at the time of appellant's plea in 2019, "the law was clear: the prosecution could not have used the [n]atural and [p]robable [c]onsequences doctrine ... to prosecute [a]ppellant for attempted murder."
B. The Initial Interpretations of Senate Bill 1437
As correctly noted by the trial court, there were disagreements among appellate courts about the interpretation of Senate Bill 1437 after the legislation went into effect. These disagreements included the question at issue in this case-whether the amendments to sections 188 and 189 also extended to attempted murder convictions that occurred after the effective date of January 1, 2019, even though attempted murder was not expressly addressed in the amended statutes.
In one group of decisions, appellate courts held the amendments enacted by Senate Bill 1437 only addressed murder and did not extend to attempted murder convictions. (See, e.g., People v. Lopez (Aug. 21, 2019) B271516, opn. ordered nonpub. Nov. 10, 2021 [Senate Bill 1437 did not apply retroactively to nonfinal judgments for attempted murder on direct appeal, but defendants could file a petition for resentencing under former section 1170.95]; People v. Munoz (Sept. 6, 2019) B283921, opn. ordered nonpub. Jan. 5, 2022 [agreed with Lopez]; People v. Dennis (Apr. 14, 2020) G055930, opn. ordered nonpub. Jan. 5, 2022 [held on direct appeal that Senate Bill 1437 did not bar defendant's conviction for attempted murder under the natural and probable consequences theory].)
In the briefing before this court, the parties have discussed many of these cases in support of their respective arguments. In doing so, they have acknowledged the cases are no longer citable but were relevant to address the state of the law after the effective date of Senate Bill 1437 and at the time of appellant's plea, and the issues that were pending before the Supreme Court when Senate Bill 775 was enacted. (Cal. Rules of Court, rule 8.1115(e)(3).) We similarly refer to these cases for the same purpose, and to address the issues raised by the district attorney's amicus brief.
There were appellate courts that took the opposing view, and held the amendments enacted by Senate Bill 1437 eliminated the natural and probable consequences doctrine for both murder and attempted murder convictions after the effective date of January 1, 2019. (See e.g., People v. Medrano (Dec. 3, 2019) F068714 & F069260, opn. ordered nonpub. Jan. 26, 2022 [in a direct appeal from attempted murder conviction, Senate Bill 1437 eliminated the natural and probable consequences doctrine as a viable theory of accomplice liability for attempted murder]; People v. Sanchez (Mar. 16, 2020) F076838, opn. ordered nonpub. Jan. 5, 2022 (Sanchez) [agreed with Medrano that after Senate Bill 1437 became effective the natural and probable consequences doctrine no longer applied to attempted murder].)
On November 13, 2019, the Supreme Court granted a petition for review in People v. Lopez, supra, opn. ordered nonpub. Nov. 10, 2021, and ordered briefing on the following issues: "(1) Does Senate Bill No. 1437 ... apply to attempted murder liability under the natural and probable consequences doctrine? (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense?" (Italics added.)
As appellate courts filed additional opinions reaching contrary opinions about Senate Bill 1437 and attempted murder, the Supreme Court granted review in these cases, and deferred briefing pending the decision in Lopez. (See, e.g., Sanchez, supra, opn. ordered nonpub. Jan. 5, 2022.)
In October 2021, the Legislature enacted Senate Bill 775, while review in Lopez and the other cases was still pending. (Sanchez, supra, opn. ordered nonpub. Jan. 5, 2022.) As explained above, Senate Bill 775 became effective on January 1, 2022, amended former section 1170.95, and" '[c]larifie[d] 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.'" (People v. Birdsall, supra, 77 Cal.App.5th at p. 865, fn. 18; People v. Vizcarra, supra, 84 Cal.App.5th at p. 388.)
Thereafter, the Supreme Court transferred Lopez, Sanchez, and the other pending cases for which review had been granted, back to the appellate courts in light of the amendments enacted by Senate Bill 775. (People v. Sanchez (2022) 75 Cal.App.5th 191, 193-194.) This court held in Sanchez that Senate Bill 775 "clarified Senate Bill 1437 by amending [former] section 1170.95 to make clear the natural and probable consequences doctrine no longer supplies accomplice liability to attempted murder." (Sanchez, at p. 193.) "Because section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in a crime, the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder. Accordingly, the natural and probable consequences doctrine theory ... is now invalid." (Sanchez, at p. 196.) We further noted the People "declined to address the issue after the Supreme Court ordered us to reconsider in light of Senate Bill 775." (Id. at p. 196, fn. 5.)
C. Analysis
Contrary to the district attorney's arguments, the Supreme Court's grant of review in Lopez and other cases was not limited to whether a defendant could file a petition under former section 1170.95 for resentencing of an attempted murder conviction that occurred prior to the effective date of Senate Bill 1437 in 2019. Instead, the Supreme Court's briefing order broadly addressed whether Senate Bill 1437's amendments to sections 188 and 189 even applied to attempted murder convictions. The Supreme Court never filed an opinion about whether Senate Bill 1437's amendments applied to attempted murder convictions that occurred in 2019, transferred the pending cases back to the appellate courts in light of Senate Bill 775, and thus failed to settle the issue. (People v. Sanchez, supra, 75 Cal.App.5th at pp. 193-194.)
Despite this history, the district attorney declares that at the time of appellant's plea in 2019, "the law was clear: the prosecution could not have used the [n]atural and [p]robable [c]onsequences doctrine ... to prosecute [a]ppellant for attempted murder" after the effective date of Senate Bill 1437. The record shows the contrary-the appellate courts disagreed on the issue, the question was pending before the Supreme Court, and the court declined to address the issue after Senate Bill 775 was enacted and became effective in 2022.
We thus reject the district attorney's arguments because at the time of appellant's plea, it was anything but clear that the amendments enacted by Senate Bill 1437 applied to attempted murder convictions returned after January 1, 2019.
III. Remand For Issuance of an Order to Show Cause and an Evidentiary Hearing
While we agree with the Attorney General that the matter must be remanded, we must clarify the status of the case on remand and the Attorney General's assertion that the trial court denied appellant's petition without making a prima facie finding.
A. The Prima Facie Determination
The prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 966.) The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, at p. 971.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Ibid.)
At the section 1172.6 evidentiary hearing, "hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. . .." (§1172.6, subd. (d)(3).) "If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing" in determining whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th 974, 988.) The court also may not rely on hearsay factual summaries in probation reports. (People v. Owens, supra, 78 Cal.App.5th 1015, 1026.)
B. Analysis
Appellant pleaded no contest to one count of attempted murder and admitted the enhancement that a principal discharged a firearm in the commission of the offense (§ 12022.53, subd. (c), italics added). Appellant did not plead to premeditated attempted murder or admit the personal discharge of a firearm. The parties stipulated to the police reports and/or the preliminary hearing transcript as the factual basis for the plea. The preliminary hearing transcript is not part of the appellate record, and the probation report contains a hearsay summary of facts from the crime reports from the sheriff's department.
On May 27, 2022, the court found appellant's petition stated a prima facie case for relief, and subsequently set an evidentiary hearing and briefing schedule. In December 2022, the parties filed supplemental briefing, and the court later conducted a hearing to address the evidence that would be introduced at the section 1172.6. evidentiary hearing.
When the court convened on January 19, 2023, it stated that it was scheduled to conduct the evidentiary hearing on appellant's petition. Instead, the court agreed with the prosecution's new argument that was raised for the first time at that hearing-that appellant was ineligible for resentencing as a matter of law since he entered his plea in 2019, and Senate Bill No. 1437's amendments applied to attempted murder convictions at that time so he could not have been convicted based on an invalid theory of imputed malice. The court stated that it previously found appellant's petition stated a prima facie case, but changed that ruling because it agreed with the prosecution's claim that appellant and his codefendants failed to make a prima facie case for resentencing since "they entered their pleas after the enactment of [sections] 188 and 189 as modified, to eliminate the natural and probable consequences."
The record of conviction does not show that appellant was ineligible for resentencing as a matter of law. The trial court's initial order was correct, that appellant made a prima facie case for resentencing. The court erroneously reversed that order and denied the petition without issuing an order to show cause. The matter is remanded for the court to again issue the order to show cause and conduct an evidentiary hearing.
DISPOSITION
The court's order of January 19, 2023, denying appellant's petition for resentencing of his attempted murder conviction, is reversed and the matter remanded for issuance of an order to show cause and an evidentiary hearing pursuant to section 1172.6.
[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.