People v. Verrett CA3

Filed 5/30/24 P. v. Verrett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098698

Plaintiff and Respondent, (Super. Ct. No. STKCRFE2018006292) v.

DAMIEN VERRETT,

Defendant and Appellant.

Defendant Damien Verrett appeals from the denial of his resentencing petition brought pursuant to Penal Code section 1172.6.1 On appeal, defendant’s primary contention is that the trial court improperly relied on the preliminary hearing transcript to find him ineligible for resentencing. We conclude the trial court erred in relying on the preliminary hearing transcript to deny defendant’s petition at the prima facie stage.

1 Undesignated section references are to the Penal Code. Defendant’s petition references section 1170.95, the prior version of the statute. At the time defendant filed the petition, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We cite to the current section 1172.6 throughout this opinion.

1

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 In 2018, an information charged defendant with attempted murder (§§ 664, 187, subd. (a)), assault with a semiautomatic firearm (§ 245, subd. (b)), being a prohibited person in possession of a firearm (§ 29800, subd. (a)(1)), and being a prohibited person in possession of ammunition (§ 30305, subd. (a)(1)). As to the attempted murder, the information alleged defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to the assault, the information alleged defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant pleaded no contest to attempted murder (§§ 664, 187, subd. (a)) with no willful, deliberate, and premeditated allegation and admitted to personally using a firearm in committing the offense (§ 12022.53, subd. (b)). During the plea colloquy, the trial court asked the parties if they “[s]tip to the prelim,” which they did. The court sentenced defendant to 17 years imprisonment, comprised of seven years (the middle term) for the attempted murder and 10 years for the firearm enhancement. In 2022, defendant petitioned for resentencing pursuant to section 1172.6, asserting that he could not presently be convicted of attempted murder due to changes made to sections 188 and 189. The People opposed the petition, contending that defendant was ineligible for relief because he had not been prosecuted under the natural and probable consequences doctrine. In support, the People relied on witness testimony from the preliminary hearing in which defendant was identified as the sole and direct perpetrator of the attempted murder. Defendant responded that the trial court could not rely on the preliminary hearing transcript to deny him relief at the prima facie stage even though his attorney had stipulated to the transcript as the factual basis for the plea.