People v. Jackson CA3

Filed 1/10/24 P. v. Jackson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C097977

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2019-0000342) v.

TAVARES DESHAWN JACKSON,

Defendant and Appellant.

In 2021, defendant Tavares Deshawn Jackson pleaded no contest to attempted murder and admitted to the enhancement allegations that he personally inflicted great bodily injury on the victim and personally used a firearm. In 2022, defendant petitioned for resentencing pursuant to Penal Code section 1172.6.1 The trial court denied the

1 Undesignated statutory references are to the Penal Code. Defendant petitioned for resentencing under former section 1170.95. Effective June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6 without substantive changes. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 throughout this opinion.

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petition at the prima facie stage, concluding defendant was ineligible for relief as a matter of law because the preliminary hearing transcript established he was the actual shooter. On appeal, defendant argues: (1) the trial court improperly relied on the preliminary hearing transcript to find him ineligible for resentencing, (2) the trial court erroneously engaged in factfinding involving the weighing of evidence or the exercise of discretion at the prima facie stage, and (3) cumulative prejudicial error warrants reversal. We conclude the trial court erred in relying on the preliminary hearing transcript to deny defendant’s petition at the prima facie stage. Because nothing else in the record establishes defendant’s ineligibility for resentencing as a matter of law, we will remand for the trial court to issue an order to show cause. BACKGROUND An information charged defendant with two counts of attempted murder (§§ 664, 187, subd. (a); counts 1 & 2), being a prohibited person in possession of a firearm (§ 29800, subd. (a)(1); count 3), and being a prohibited person in possession of ammunition (§ 30305, subd. (a)(1); count 4). In connection with counts 1 and 2, the information alleged defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally inflicted great bodily injury causing the victim to become comatose due to brain injury or to suffer paralysis (§ 12022.7, subd. (b)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged defendant had a prior strike. (§§ 667, subd. (d), 1170.12, subd. (b).) The trial court granted the prosecution’s motion to amend the information to add an enhancement allegation that defendant personally used a firearm. (§ 12022.5, subd. (a).) In April 2021, defendant pleaded no contest to count 2, attempted murder (§§ 664, 187, subd. (a)) with no willful, deliberate, and premeditated allegation, and admitted the enhancement allegations that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5, subd. (a)). The parties stipulated the