California Court of Appeal Sep 25, 2023 No. E080908Unpublished
Filed 9/25/23 P. v. Challoner CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080908
v. (Super.Ct.No. FVA1300504)
DAMON JAMES ANKER OPINION CHALLONER,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Reversed and remanded, with directions.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, and A. Natasha Cortina, Lynne
G. McGinnis, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff
and Respondent.
1
INTRODUCTION
Defendant, Damon James Anker Challoner, appeals the trial court’s denial of his
petition for resentencing made pursuant to former Penal Code section 1170.95.1
Defendant claims the trial court improperly denied his petition at the prima facie stage by
relying on evidence outside the record of conviction. Specifically, defendant claims the
preliminary hearing transcript and police reports are not part of the record of conviction
and thus should not have been considered. We agree and reverse.
PROCEDURAL BACKGROUND
On January 6, 2014, defendant was charged by information with one count of
murder (§187, subd. (a); count 1). The information also alleged that defendant personally
discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The
People amended the information at the time of the plea changing count 1 from murder
(§187, subd. (a)) to voluntary manslaughter (§ 192, subd. (a)). The People also amended
the information at the time of the plea changing the personal discharge of a firearm
allegation (§ 12022.53, subd. (d)) to a personal use of a firearm allegation (§ 12022.5).
On June 27, 2017, defendant pled guilty to voluntary manslaughter and admitted the
personal firearm use allegation, in exchange for a sentence of 21 years. On August 31,
2017, the trial court sentenced defendant pursuant to the plea agreement to a 21-year
determinate term in state prison.
1 All further unlabeled statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
2
On November 30, 2022, defendant filed a petition for resentencing pursuant to
section 1172.6. On the petition, defendant checked three boxes. Defendant checked the
box stating that an information was filed against him 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.” Defendant checked the box stating that
he “accepted a plea offer in lieu of a trial at which [he] could have been convicted of
murder.” Defendant also checked the box stating he could not presently be convicted of
murder because of the changes made to sections 188 and 189.
On March 10, 2023, the trial court held a hearing on the petition. At the hearing,
the trial court stated it had reviewed the preliminary hearing transcript and police reports.
In ruling, the trial court stated, “There are two witnesses that testified under oath that he
was the shooter, and he made incriminating statements that came out at the preliminary
hearing indicating that he was the shooter. There was no other suspect, and therefore he
cannot make a prima facie showing that he’s entitled to any relief under [former
section] 1170.95.”
Defendant filed a notice of appeal on March 14, 2023.
3
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6 Relief
Senate Bill No. 1437, effective January 1, 2019, was enacted to amend the felony-
murder rule and eliminate natural and probably consequences liability for first and second
degree murder. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th
830, 846-847, superseded by statute on other grounds as stated in People v. Glukhoy
(2022) 77 Cal.App.5th 576, 584.) Senate Bill No. 1437 also created a procedural
mechanism for those convicted under the former law to seek retroactive relief under the
law as amended. (Stats. 2018, ch. 1015; People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).)
Under section 1172.6, the relief process begins with the filing of a petition
containing a declaration that all requirements for eligibility are met. (§ 1172.6
subd. (b)(1)(A).) There are three criteria for eligibility: (1) A charging document was
“filed against the petitioner 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) The petitioner was convicted of murder, attempted
murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted murder. [¶]
(3) The petitioner could not presently be convicted of murder or attempted murder
4
because of changes to [s]ection 188 or 189.” (§ 1172.6, subd. (a)(1)-(3).) If the petition
complies with the requirements of section 1172.6, subdivision (b)(1), “the court shall
hold a hearing to determine whether the petitioner has made a prime facie case for relief.”
(§ 1172.6, subd. (c).)
Defendant presents a petition alleging the three necessary requirements under
section 1172.6. Thus, defendant’s petition is facially sufficient, and he is entitled to a
prima facie hearing. (People v. Eynon (2021) 68 Cal.App.5th 967, 974 (Eynon).)
B. Prima Facie Review is Limited to Review of the Record of Conviction
When conducting a prima facie review, the trial 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.’ ” ’ ”
(Eynon, supra, 68 Cal.App.5th at p. 975, quoting Lewis, supra, 11 Cal.5th at p. 971.)
“The court’s authority to summarily deny a petition is thus limited to ‘readily
ascertainable facts’ taken from the record of conviction.” (People v. Davenport (2021)
71 Cal.App.5th 476, 481 (Davenport).) At the prima facie stage, the trial court is not
permitted to go beyond the record of conviction and engage in fact-finding or the
weighing of credibility. (Eynon, at p. 975.) There is no statutory definition of “record of
conviction.” However, courts have analyzed and ruled certain types of evidence as
constituting the record of conviction.
5
1. The Police Report
Police reports are not part of the record of conviction. (Draeger v. Reed (1999) 69
Cal.App.4th 1511, 1521.) Here, the trial court reviewed the police reports in evaluating
whether defendant made a prima facie showing for relief. Thus, the trial court erred in
reviewing evidence outside the record of conviction.
2. The Preliminary Hearing Transcript
Portions of preliminary hearing transcripts have been considered part of the record
of conviction when a valid hearsay exception exists allowing their evidentiary admission.
(People v. Reed (1996) 13 Cal.4th 217 (Reed); see People v. Bartow (1996) 46
Cal.App.4th 1573 (Bartow).) In Reed, the preliminary hearing transcript contained the
testimony of the actual victims, thus falling under Evidence Code section 1291,
subdivision (a). (Reed, at p. 221.) In evaluating whether the “live” testimony from the
preliminary hearing could be considered part of the record of conviction, the court in
Reed noted the defendant’s prior opportunity to confront and cross-examine witnesses
during a proceeding with a similar motive. (Id. at p. 228.) Similarly, in Bartow, the
preliminary hearing transcript contained the personal observations of the law enforcement
officer who testified at the preliminary hearing. (Bartow, at pp. 1577-1578.)
The reasoning employed by the court in Reed and Bartow is inapplicable here.
The evidence presented at the preliminary hearing was admitted largely pursuant to
section 872, subdivision (b), with no other hearsay exception applicable. At the
preliminary hearing, two law enforcement officers testified to what percipient witnesses
6
told them they witnessed. The witnesses who testified “live” at the preliminary hearing,
thus subjected to cross-examination, had little to no personal observations to offer
regarding the identity and circumstances of the shooting. Introducing percipient witness
testimony through section 872, subdivision (b), denied defendant the opportunity to
confront and cross-examine the percipient witnesses. In denying defendant’s petition, the
trial court also relied on defendant’s “incriminating statements that came out at the
preliminary hearing indicating that he was the shooter.” These statements also relied on
section 872, subdivision (b), for admissibility with no other hearsay exception applicable.
Nearly all the preliminary hearing testimony about the circumstances of the
shooting and identity of the shooter was presented pursuant to section 872,
subdivision (b), with no other hearsay exception applicable. As such, none of the
substantive testimony from the preliminary hearing transcript is part of the record of
conviction. Thus, the trial court erred in considering the preliminary hearing transcript.
C. Prior Agreement to a Factual Basis Existing Within a Document Does Not
Necessarily Make the Document Admissible During the Prima Facie Review
Respondent argues the trial court properly considered the preliminary hearing
transcript and police reports during the prima facie hearing because defendant
“stipulated” to a factual basis from the police report and/or the preliminary hearing
transcript at the time of the plea. Defendant argues the exchange between the trial court
and the parties at the time of the plea did not amount to a stipulation. We agree.
7
A clear admission to certain facts during a plea can serve as a basis to find a
petitioner ineligible for resentencing as a matter of law. (People v. Romero (2022) 80
Cal.App.5th 145, 148 (Romero).) A “ ‘defendant is not required to personally admit the
truth of the factual basis of the plea, which may be established by defense counsel’s
stipulation to a particular document.’ [Citation.] Thus, absent an indication that a
defendant admitted the truth of particular facts, the stipulation to a factual basis for the
plea does not ‘constitute [] a binding admission for all purposes.’ ” (People v. Rivera
(2021) 62 Cal.App.5th 217, 235 [concluding that defense counsel’s stipulation to the
grand jury testimony did not correspond to an admission by the defendant to any of the
evidence presented therein such that the defendant was per se ineligible for relief at the
prima facie stage], quoting People v. French (2008) 43 Cal.4th 26, 50-52).)
The facts, here, are substantively different from cases where the court found a
petitioner ineligible for resentencing as a matter of law. (Romero, supra, 80 Cal.App.5th
at p. 148 [Romero made a specific admission to having committed the murder
“intentionally, deliberately, and with premeditation”]; People v. Nguyen (2020) 53
Cal.App.5th 1154, 1161 [Nguyen stipulated to the review of the preliminary hearing
transcript as part of his petition submission].
At the time of the plea, the trial court inquired of the parties, “If the Court were to
read the preliminary hearing transcript and/or the [p]olice [r]eport, would the Court find a
factual basis?” Both the People and defense counsel replied in the affirmative, stating,
“Yes.” This exchange between the trial court and the parties lacks clarity and specificity.
8
The reference to two separate sources (the preliminary hearing transcript and the police
report) in the conjunctive and in the alternative, the absence of the term stipulation during
the exchange, and the presentation of the question by the court as a hypothetical,
differentiates this exchange from the typical stipulation. Defendant did not admit the
truth of the evidence introduced at the preliminary hearing or in the police reports.
Rather defense counsel merely agreed that if the court were to read the preliminary
hearing transcript and/or the police report, a factual basis would be found. The exchange
between the trial court and defense counsel does not constitute an admission nor a
stipulation. As such, the preliminary hearing transcript remains inadmissible for
consideration during the prima facie stage.
D. The Prohibition of Section 872, subdivision (b), Hearsay Evidence at an 1172.6
Evidentiary Hearing Applies to the Prima Facie Hearing
Respondent argues nothing statutorily prevents the trial court from considering
section 872, subdivision (b), hearsay evidence presented at the preliminary hearing when
conducting a prima facie hearing. Section 1172.6 statutorily limits the admissibility of
section 872, subdivision (b), hearsay evidence at a section 1172.6 evidentiary hearing
(§ 1172.6, subd. (d)(3)). “[W]e fail to see how evidence that cannot establish a
petitioner’s ultimate eligibility for resentencing could establish a petitioner’s ineligibility
for resentencing at the prima facie stage.” (People v. Flores (2022) 76 Cal.App.5th 974,
988, fn. 9.) The statutory limitation of the admissibility of hearsay evidence at the
evidentiary hearing would logically apply the same limitation at the prima facie stage of
9
the proceedings. Here, nearly all the testimony at the preliminary hearing was presented
pursuant to section 872, subdivision (b). As such, the substantive testimony from the
preliminary hearing would be statutorily barred from consideration at the prima facie
hearing.
E. Admission to Personal Use of a Firearm Does Not in Itself Prove a Defendant was
the Actual Killer
An admission to personally using a firearm does not bar relief pursuant to
section 1172.6 as a matter of law. (Davenport, supra, 71 Cal.App.5th at p. 485 [holding
petitioner’s admission to a personal firearm use enhancement did not preclude the
possibility of prosecution under a felony-murder theory].) Respondent argues that
defendant’s admission to personal use of a firearm as part of the plea demonstrates that
he was the actual killer. “The finding of personal use, however, would not in itself prove
defendant was the actual killer.” (People v. Jones (2003) 30 Cal.4th 1084, 1120.) With
the substantive testimony from the preliminary hearing transcript excluded from the
record of conviction, defendant’s admission to personal use of a firearm, standing alone,
proves insufficient to demonstrate he was the actual killer. As such, defendant’s facially
sufficient petition remains unrebutted for the purposes of a prima facie review thus
entitling him to an evidentiary hearing.
10
DISPOSITION
The trial court’s denial of defendant’s section 1172.6 petition is reversed. On
remand, the trial court is directed to issue an order to show cause.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.
11
AI Brief
AI-generated · verify before citing
Holding. The trial court erred by relying on police reports and preliminary hearing testimony admitted under Penal Code section 872, subdivision (b) to deny a resentencing petition at the prima facie stage, as such evidence is not part of the record of conviction.
Issues
Whether police reports and preliminary hearing transcripts constitute part of the record of conviction for a prima facie review under Penal Code section 1172.6.
Whether a stipulation to a factual basis for a plea constitutes a binding admission of facts contained in documents not otherwise part of the record of conviction.
Whether an admission to personal use of a firearm precludes relief under Penal Code section 1172.6 as a matter of law.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“The court’s authority to summarily deny a petition is thus limited to ‘readily ascertainable facts’ taken from the record of conviction.”
“Police reports are not part of the record of conviction.”
“As such, none of the substantive testimony from the preliminary hearing transcript is part of the record of conviction.”