People v. Williams (2024) · DecisionDepot

People v. Williams

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jul 1, 2024 No. F085868Published

Filed 6/28/24 (see dissent)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F085868 Plaintiff and Respondent, (Super. Ct. No. 1422550) v.

KYLE ANDREW WILLIAMS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Danalynn Pritz, 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, Darren K. Indermill and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

SEE DISSENTING OPINION

INTRODUCTION Petitioner Kyle Andrew Williams petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for attempted murder (§§ 187, 664). The trial court denied the petition at the prima facie stage after determining that petitioner was “prosecuted and convicted as the direct perpetrator of the attempted murder” and therefore was ineligible for resentencing as a matter of law. Notably, the court based this determination in part on its review of transcripts from petitioner’s preliminary hearing and plea colloquy. On appeal, petitioner contends the court erred in denying his facially sufficient petition at the prima facie stage by engaging in impermissible factfinding based on the preliminary hearing transcript and change of plea. He further contends that neither his plea nor his counsel’s stipulation to a factual basis for the plea rendered him ineligible for resentencing. For reasons we explain, we conclude the record of conviction does not establish petitioner’s ineligibility for resentencing as a matter of law. Accordingly, we reverse. FACTUAL BACKGROUND Several percipient witnesses testified at the preliminary hearing. We briefly summarize their testimony from the preliminary hearing transcript, while acknowledging that the propriety of the court relying on this testimony is a subject of dispute in this appeal. On May 19, 2010, Donald W.2 drove his minivan to an apartment complex in Modesto. With him were his nephew, Nathaniel W., and Nathaniel’s friends, brothers

Related research

Brandon R. and Michael R., who went to the apartment complex to sell someone marijuana. Michael was armed with a firearm because Brandon asked him to bring a gun. Donald was in the driver’s seat, Nathaniel was in the front passenger seat, Michael was in the rear passenger side seat, and Brandon initially was in the rear driver’s side seat. At some point while they were at the apartment complex, a gold Saturn arrived and blocked in the minivan. Michael removed his firearm from his pocket and loaded it, before putting it back in his pocket in its holster. Brandon got out and stood on the driver’s side of the minivan. Petitioner got out of the Saturn; someone else remained in the Saturn’s driver’s seat. Petitioner got into the rear driver’s side seat of the minivan. The van’s door closed behind him. Petitioner asked about the marijuana and said it looked fine or smelled good, but then pulled a revolver from his backpack and pointed it at Michael’s head. Petitioner said, “You’re dead. I’ve got nothing to live for. Times are tough. I’m robbing everybody for everything.” According to Donald, petitioner also pointed the gun at Donald’s head. Petitioner demanded the keys to the minivan. Donald gave petitioner the keys. Michael turned to look at the car door to see if he could escape, then turned back toward petitioner. Around the same time, petitioner shot Michael in the face. Michael estimated that the entire encounter lasted 45 seconds to two minutes. Michael survived the shooting but spent 14 days in the hospital. PROCEDURAL HISTORY On April 18, 2011, the Stanislaus County District Attorney filed an information charging petitioner with premeditated and deliberate attempted murder of Michael (§§ 187, subd. (a), 664; count I), robbery of Donald (§ 211; count II), and making criminal threats against Michael (§ 422; count III). As to count I, it was alleged that petitioner personally and intentionally discharged a firearm, proximately causing great bodily injury (§ 12022.53, subd. (d)). As to counts II and III, it was alleged that

determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)–(c); accord, Strong, at p. 708.) Our Supreme Court has emphasized that “the prima facie inquiry . . . is limited.” (People v. Lewis (2021) 11 Cal.5th 952, 971.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Id. at p. 972.) The court may not engage in “ ‘factfinding involving the weighing of evidence or the exercise of discretion’ ” at the prima facie stage. (Ibid.) “Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court takes 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. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ [Citation.] ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” (Id. at p. 971.) “Consequently, ‘[i]f the petition and record in the case establish conclusively that the [petitioner] is ineligible for relief, the trial court may dismiss the petition.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 460 (Curiel), italics added.) Our Supreme Court has made clear that a trial court may rely on the record of conviction in determining whether a prima facie showing is made. (Lewis, supra, 11 Cal.5th at p. 970.) The record of conviction “allow[s] the court to distinguish petitions with potential merit from those that are clearly meritless.” (Id. at p. 971.) However, not all documents comprising the record of conviction are sufficient to rebut a petitioner’s factual allegations. For example, while an appellate opinion is part of the record of conviction, the probative value of such opinion on the prima facie inquiry is “case

crimes or underlying felonies were alleged, the People contend the information establishes “the People’s only theory was that [petitioner] was the sole perpetrator and assailant.” Thus, the People contend “there was no other reasonable basis for [petitioner’s] no contest plea,” other than him being the “sole and actual perpetrator of the attempted murder.” We disagree that the information, standing alone, establishes petitioner’s ineligibility for resentencing as a matter of law. As an initial matter, we note that petitioner did not enter a plea to premeditated attempted murder, but rather to attempted murder without premeditation. Nor did he admit the firearm enhancement alleged in the information, but rather a lesser enhancement for personal use of a firearm (§ 12022.53, subd. (b)), and a separate great bodily injury enhancement (§ 12022.7). A petition for resentencing may be denied where the “the record conclusively establishes every element of the [homicide] offense” under a valid theory. (Curiel, supra, 15 Cal.5th at p. 463.) Here, however, the People’s initial allegations were unproven and unadmitted. The allegations do not conclusively establish that petitioner admitted or was otherwise found to have committed every element of the offense of attempted murder under a valid theory. Additionally, the People’s argument fails on the merits. Prior to the effective date of Senate Bill No. 1437, the natural and probable consequences doctrine was an available theory of both premeditated and unpremeditated attempted murder. (See People v. Favor (2012) 54 Cal.4th 868, 879–880.) The People were not required to separately plead an aiding and abetting, felony murder, or natural and probable consequences theory. (People v. Nakahara (2003) 30 Cal.4th 705, 712 [felony murder]; see Gentile, supra, 10 Cal.5th at p. 843 [aiding and abetting not a separate offense]; People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12 [accusatory pleading that charges the defendant “as a principal is sufficient to support a conviction as an aider or abettor”].) Furthermore, a proven section 12022.53, subdivision (d) enhancement does not necessarily establish the defendant acted with malice aforethought “[b]ecause an enhancement under section 12022.53,

of murder under a natural and probable consequences theory, thereby creating a factual dispute that could not be resolved at the prima facie stage. [Citation.]” (Flores, supra, 76 Cal.App.5th at pp. 989–991.) We then considered and applied these principles to the facts presented in Flores. There, the petitioner pled no contest, pursuant to People v. West (1970) 3 Cal.3d 595, to second degree murder. (Flores, supra, 76 Cal.App.5th at p. 982.) The parties stipulated that the police reports and preliminary hearing transcript provided a factual basis for the plea. (Ibid.) Petitioner had given varying statements to law enforcement regarding his involvement in the murder, and law enforcement testified to these statements at the preliminary hearing. (Id. at pp. 979–981.) Notably, in one statement, the “petitioner stated that [his codefendant] shot [the victim] multiple times and beat [the victim] around the head and upper body, after which petitioner may have accidentally run over [the victim] twice while leaving the scene.” (Id. at p. 991.) A panel of this court concluded that the preliminary hearing transcript was part of the record of conviction that could be considered at the prima facie stage (Flores, supra, 76 Cal.App.5th at p. 989, fn. 11), but that the transcript did not establish the petitioner’s ineligibility for resentencing as a matter of law: “Petitioner did not admit the truth of this testimony and his stipulation that the transcript provided a factual basis for the plea is not a ‘ “binding admission for all purposes.” ’ [Citation.] Even if it was, this testimony, standing alone, does not conclusively establish as a matter of law that petitioner was the actual killer, acted with intent to kill or actual malice, or was a major participant in an underlying crime who acted with reckless indifference to human life. It does not exclude the possibility that petitioner was, or could have been, convicted under the imputed malice theories eliminated by Senate Bill No. 1437 (2017–2018 Reg. Sess.). To find petitioner ineligible for resentencing on this record would require judicial factfinding, which is impermissible at the prima facie stage.” (Id. at pp. 991–992.) This court emphasized the limited nature of the section 1172.6 prima facie review, which permits denial of the petition only where “the record of conviction contains facts conclusively

because the sworn law enforcement testimony was uncontroverted. (Id. at p. 658.) The court did not discuss or cite Nguyen, Rivera, or Flores. Our Supreme Court has granted review in Patton to determine whether the trial court engaged in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny the petition at the prima facie stage. (People v. Patton (June 28, 2023, S279670).) Meanwhile, two more recent cases have reached the same result as Patton while employing a slightly different analysis. In Pickett, supra, 93 Cal.App.5th 982, review granted, the petitioner pled guilty to second degree murder. Witnesses at the preliminary hearing described the petitioner talking with the victim and then firing a gun in the air. (Id. at p. 986.) After that, one or two more shots were heard and the victim was observed lying on the ground with an apparent gunshot wound from which he later died. (Ibid.) “There was no evidence suggesting that anyone other than [the petitioner] was involved in [the victim’s] death.” (Ibid.) The available record did not indicate whether the petitioner had stipulated to the preliminary hearing as providing a factual basis for the plea. (Id. at p. 986, fn. 2.) The Court of Appeal held the record established the petitioner had not made a prima facie showing for relief. (Pickett, supra, 93 Cal.App.5th at p. 989, review granted.) The court first observed that the petitioner had filed a facially sufficient petition, but had not alleged any facts concerning the killing, and did not deny he was the actual killer, assert another person fired the fatal shot, or allege he acted without intent to kill. (Ibid.) The court also observed that the preliminary hearing transcript contained “nothing to suggest that any other person was involved in the incident.” (Id. at p. 990.) Thus, “[t]he inference that [the petitioner] acted alone and was the actual killer [was] uncontradicted and compelling.” (Ibid.) In response, the petitioner “offered no evidence or argument that might have raised a factual issue as to his involvement in [the] death.” (Ibid.) Because the petitioner offered no evidence, the Court of Appeal concluded that reliance on the preliminary hearing transcript did not require the court to engage in factfinding or

weighing of the evidence. (Ibid.) The court explained: “Under these circumstances, where the [petitioner] alleges no facts concerning the murder to which he pleaded guilty, the People introduce without objection uncontroverted evidence from the preliminary hearing transcript showing that the [petitioner] acted alone in killing the victim, and the [petitioner] does not put forth, by way of briefing or oral argument, any factual or legal theory in support of his petition, the [petitioner] has failed to make a prima facie showing for relief under section 1172.6.” (Ibid.) Finally, in People v. Mares (2024) 99 Cal.App.5th 1158, 1161, review granted May 1, 2024, S284232 (Mares), the petitioner entered a guilty plea to voluntary manslaughter. The factual basis for the plea was not specified. (Id. at p. 1163.) At the preliminary hearing, police had recounted the petitioner’s admissions to stabbing the victim and acting alone. (Id. at pp. 1161–1162.) The Court of Appeal noted that the petitioner had filed a facially sufficient petition but had “offer[ed] nothing more than [a] conclusory assertion” that he “ ‘could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.’ ” (Id. at p. 1165.) The court determined this conclusory assertion was “refuted by uncontradicted facts in the record.” (Id. at p. 1166.) Those facts included that the petitioner “pled guilty while the People were pursuing a murder conviction based only on a theory that he was the actual killer.” (Ibid.) In contrast, to meet the prima facie inquiry, the petitioner would have been required to assert that another person was the actual killer, and that he “would have defended this case on the theory that he was guilty of only the lesser crime that he helped the killer commit, an argument unavailable to him at the time.” (Id. at p. 1167.) The court determined it “[did] not matter whether any fact offered at the [preliminary] hearing was correct” (ibid.), because “[n]o facts support[ed] a theory that [the petitioner] was an accomplice to a murder committed by some other person” (id. at p. 1168).

The court in Mares distinguished its holding from that in Patton and Pickett. According to the Mares court, “Patton and Pickett hold that a court may conclude a guilty-plea[7] defendant was the actual killer from an uncontradicted preliminary hearing record, precluding a section 1172.6 prima facie case.” (Mares, supra, 99 Cal.App.5th at p. 1174, review granted.) However, the Mares court emphasized that its approach “clarifies that no factfinding is needed to reject the petition, as a court need not find any individual fact in the preliminary hearing was true, only that the claim that Senate Bill [No.] 1437 could matter is unsupported by the record.” (Ibid.) According to the court, its “approach also leaves open the possibility (unlikely on most sets of facts) that a petitioner . . . could replace his conclusory assertion with a declaration creating a factual issue by explaining there was another killer whom he assisted in a crime from which the murder resulted.” (Ibid.) B. Nature of the prima facie inquiry We must begin our analysis with the section 1172.6 prima facie framework described by our Supreme Court, which we are bound to apply. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As stated above, at the prima facie stage “ ‘ “ ‘the 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. If so, the court must issue an order to show cause.’ ” [Citation.] “[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.” [Citation.] “However, if the record, including the court’s own documents, ‘contain[s] facts refuting the allegations made in the petition,’ then ‘the court is justified in making a credibility determination adverse to the petitioner.’ ” ’ [Citation.] Consequently, ‘[i]f the petition and record in the case

establish conclusively that the [petitioner] is ineligible for relief, the trial court may dismiss the petition.’ ” (Curiel, supra, 15 Cal.5th at p. 460, italics added; accord, Lewis, supra, at p. 971.) Section 1172.6 applies equally to convictions obtained by plea or by trial. (§ 1172.6, subd. (a)(2).) To date, all our Supreme Court’s cases interpreting the prima facie inquiry have arisen in cases where the conviction was obtained following a jury trial. (Curiel, supra, 15 Cal.5th at p. 440; Strong, supra, 13 Cal.5th at p. 703; Lewis, supra, 11 Cal.5th at p. 958.) However, nothing in our Supreme Court’s case law suggests that the foregoing framework is inapplicable to convictions obtained by plea. Rather, the dispute in this case centers on the showing required to “ ‘establish conclusively that the [petitioner] is ineligible for relief’ ” (Curiel, supra, 15 Cal.5th at p. 460, italics added) in cases where the conviction was obtained by way of a plea. Most recently, in Curiel, our Supreme Court emphasized that a petitioner who alleges that he or she could not currently be convicted of a homicide offense “because of changes to Section 188 or 189 made effective January 1, 2019” (§ 1172.6, subd. (a)(3)) puts at issue all elements of the offense under a valid theory. (Curiel, supra, 15 Cal.5th at p. 462.) The court then stated that such allegation by the petitioner is not refuted by the record “unless the record conclusively establishes every element of the offense” under a valid theory. (Id. at p. 463; see id. at p. 465.) In the context of a jury trial, this requirement is satisfied if the record establishes the jury necessarily found every element of the homicide or attempted homicide offense under a valid theory. (Id. at p. 465.) Indeed, our Supreme Court’s case law leaves no doubt that jury findings are binding on a section 1172.6 petitioner8 and may be sufficient to conclusively refute the petition’s allegations. (Curiel, at p. 463; Strong, supra, 13 Cal.5th at pp. 710, 714–715.)

proceedings. (Curiel, supra, 15 Cal.5th at p. 451; Strong, supra,13 Cal.5th at pp. 715– 718.) Curiel held that the “contours” of the doctrine of issue preclusion are “informative” in the section 1172.6 context. (Curiel, at p. 451.) Strong relied on these “background principles for guidance.” (Strong, at p. 715.) Generally, principles of issue preclusion do not apply to a judgment based on a plea of guilty or nolo contendere. (Mares, supra, 99 Cal.App.5th at p. 1172, review granted [“In cases like this one that involve a guilty plea, issue preclusion could not apply.”]; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1528 [“[A] judgment based on a guilty plea is not entitled to collateral estoppel effect.”]; People v. Camp (1970) 10 Cal.App.3d 651, 653–654 [“The public policy reasons for the rule excepting a conviction upon a plea of guilty from the doctrine of collateral estoppel by judgment apply with equal force to its application in a subsequent criminal case as to its application in a subsequent civil case.”]; cf. Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 605 [“A plea of guilty is admissible in a subsequent civil action on the independent ground that it is an admission. It would not serve the policy underlying collateral estoppel, however, to make such a plea conclusive.”].) 9 The dissent suggests Curiel is limited to its facts and thus has no application in cases involving a plea, or in cases where “bare petition allegations are wholly contradicted by a record of conviction showing direct perpetration of a crime.” (Dis. opn., post, at p. 21; see id. at pp. 5, 8, 12, 20.) But, Curiel sets forth the test for determining whether “bare petition allegations” (dis. opn., post, at p. 21) are conclusively refuted by the record of conviction. (Curiel, supra, 15 Cal.5th at p. 463). We therefore disagree with the dissent’s seemingly circular suggestion that the test for determining whether the record refutes the petitioner’s allegations does not apply in cases where the record refutes the petitioner’s allegations, or that this test for determining whether the record refutes resentencing eligibility does not apply to someone who is ineligible. We acknowledge the high court’s holding regarding the specific inferences that could be drawn from the jury instructions in Curiel was limited to the facts of that case. (Curiel, supra, 15 Cal.5th at p. 471 [“Finally, we note that our holding today does not necessarily apply to other cases where the jury found intent to kill, or even other cases where the jury found true the gang-murder special circumstance. The jury instructions in other cases might be materially different, and they might therefore have required different factual findings by the jury. We hold only that under the jury instructions here, the findings the jury must have made are insufficient to conclusively establish that Curiel is liable for murder under current law.”].) However, the high court’s discussion of the applicable law was not so limited, and nothing in Curiel suggests the court would apply a different test to a different set of facts.

This is true, even where defense counsel has stipulated to the preliminary hearing transcript as providing a factual basis for the plea. Section 1192.5 requires a trial court, upon approval of a conditional plea of guilty or nolo contendere, to “cause an inquiry to be made of the defendant to satisfy itself . . . that there is a factual basis for the plea.” (§ 1192.5, subd. (c).) The purpose of this requirement is prophylactic: it “ ‘ “protect[s] against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged.” ’ ” (People v. Palmer (2013) 58 Cal.4th 110, 112; see id. at p. 116.) It is well settled that a stipulation to a factual basis for a plea is not “a binding admission for all purposes.” (People v. French (2008) 43 Cal.4th 36, 52.) Moreover, “[a] defendant is not required to personally admit the truth of the factual basis of the plea.” (Id. at p. 50.) “Courts have consistently differentiated between an admission that a document or recitation contains a factual basis for a plea and an admission that statements in that document or recitation are true.” (People v. Hiller (2023) 91 Cal.App.5th 335, 349.) Indeed, our Supreme Court has held that stipulation to a factual basis is distinct from an admission of the truth of the facts recited as the factual basis. (French, at p. 51.) Accordingly, stipulation to a factual basis does not conclusively establish the nature of the conduct underlying a plea. We disagree with the decisions in Pickett and Mares, to the extent they rely on People v. Reed (1996) 13 Cal.4th 217 (Reed), for the proposition that a preliminary hearing transcript is conclusive of the theory under which a petitioner was convicted because it “reliably reflect[s] the facts of the offense for which the defendant was convicted.” (Id. at p. 223; see Mares, supra, 99 Cal.App.5th at p. 1167, review granted; Pickett, supra, 93 Cal.App.5th at p. 992, review granted.) The People likewise rely on Reed to support their argument. We find this reliance on Reed misplaced for several reasons. Indeed, when considered in context, Reed is contrary to the holdings in Pickett and Mares, and likewise contrary to the People’s argument.

The defendant in Reed was alleged to have committed a prior “serious felony” within the meaning of section 667, subdivision (a) and section 1192.7, subdivision (c). (Reed, supra, 13 Cal.4th at p. 220.) This allegation was based on the defendant’s prior guilty plea to “assault with a deadly weapon or by means of force likely to produce great bodily injury.” (Ibid.) In a bifurcated jury trial, the prosecution presented evidence, including a preliminary hearing transcript, to show the defendant had personally used a dangerous or deadly weapon in the prior assault, the use of which would cause the offense to qualify as a serious felony. (Id. at pp. 220–221.) Based on this and other evidence, the jury found the defendant previously had been convicted of assault with a deadly weapon and the court imposed the sentencing enhancement for the prior serious felony pursuant to section 667, subdivision (a). (Reed, at p. 221.) On appeal, the defendant argued the preliminary hearing transcript was not part of the record of conviction as required for its admission under People v. Guerrero (1988) 44 Cal.3d 343. (Reed, supra, 13 Cal.4th at p. 223.) At that time, Guerrero permitted the trier of fact on a prior conviction allegation to “look to the entire record of conviction to determine the substance of the prior conviction.” (Reed, at p. 223, italics omitted.) Ultimately, the high court determined that the procedural protections inherent in the preliminary hearing ensured that the transcript “reliably reflect[ed] the facts of the offense for which the defendant was convicted.” (Ibid.) Thus, the transcript met the admissibility requirements of Guerrero. In other words, Reed held that the transcript was sufficiently reliable to be considered by the trier of fact. Reed did not hold that the preliminary hearing transcript was so factually reliable as to be conclusive of the nature of the prior conviction. To the contrary, in examining the defendant’s hearsay objections to the same transcript, the court noted the transcript did not demonstrate “the meaning or content of [the] defendant’s guilty plea,” particularly given that the defendant was not asked to and did not “admit any particular facts stated in the preliminary hearing . . . , other than those facts necessary to the . . .

charge itself.” (Reed, supra, 13 Cal.4th at p. 224.) As the court aptly stated, “ ‘[The defendant] pled guilty to an information, not to a preliminary hearing transcript.’ ” (Ibid.) Our holding is consistent with Reed. The preliminary hearing transcript is part of the record of conviction. But, as our Supreme Court has cautioned, the probative value of particular documents contained in the record of conviction is “case specific.” (Lewis, supra, 11 Cal.5th at p. 972.) The high court has acknowledged that even documents comprising the record of conviction “ ‘might not supply all answers.’ ” (Ibid.) Here, the preliminary hearing transcript does not “ ‘supply all answers’ ” for the reasons stated above. We also find reliance on Reed misplaced for an additional reason. The law regarding prior conviction allegations has changed substantially since Reed was decided, and those changes are relevant to the question before us. Following Reed, the United States Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum” must be found by a jury, except that “the fact of a prior conviction” may be found by the court. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; see In re Milton (2022) 13 Cal.5th 893, 901.) Thus, “defendants have no right to a jury trial of ‘the fact of a prior conviction.’ ” (People v. Epps (2001) 25 Cal.4th 19, 28.) In some circumstances, however, “some fact need[s] to be proved regarding the circumstances of the prior conviction—such as whether a prior burglary was residential— in order to establish that the conviction is a serious felony.” (Ibid.) Thus, following Apprendi, our Supreme Court held: “If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law.” (People v. McGee (2006) 38 Cal.4th 682, 706.) In conducting this inquiry into “the nature or basis of the defendant’s prior conviction,” McGee limited the

trial court to examination of “the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted.” (Ibid., italics omitted.) However, this holding from McGee was somewhat short lived. “Less than a decade later, the United States Supreme Court extended the right to have a jury make factual determinations about the nature of a prior conviction that is used to increase punishment.” (In re Milton, supra, 13 Cal.5th at p. 901, citing Mathis v. United States (2016) 579 U.S. 500, and Descamps v. United States (2013) 570 U.S. 254.) Under this case law, a jury must make any factual determinations regarding a defendant’s underlying conduct at issue with respect to a prior conviction. (Mathis, at pp. 508, 511; Descamps, at p. 269.) Soon after these cases were decided, the California Supreme Court revisited McGee in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which remains the controlling case on this issue. “In Gallardo, the prosecution alleged the defendant’s prior conviction for aggravated assault under former section 245, subdivision (a)(1) . . . qualified as a strike. [Citation.] The defendant had pleaded guilty to that offense, but her plea did not specify whether she had used a deadly weapon (a serious felony) or force likely to produce great bodily injury (not a serious felony). [Citations.] To resolve this ambiguity, the trial court reviewed a transcript of the victim’s preliminary hearing testimony that the defendant used a knife and found, based on that testimony, that the prior conviction qualified as a strike.” (In re Milton, supra, 13 Cal.5th at pp. 902–903.) Our Supreme Court acknowledged in Gallardo that the trial court had complied with McGee but concluded that McGee was no longer viable in light of Descamps and Mathis. (Gallardo, supra, 4 Cal.5th at p. 134.) Now, “a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the conviction. [Citation.] That inquiry

invades the jury’s province by permitting the court to make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ [Citation.] The court’s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea”12 (Gallardo, at p. 136, italics added.) “[A] sentencing court may identify those facts it is ‘sure the jury . . . found’ in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea.” (Id. at p. 134.) “To do more is to engage in ‘judicial factfinding that goes far beyond the recognition of a prior conviction.’ ” (Ibid.) The high court further explained: “An indictment or jury instructions might help identify what facts a jury necessarily found in the prior proceeding. [Citation.] But [the] defendant’s preliminary hearing transcript can reveal no such thing. A sentencing court reviewing that preliminary transcript has no way of knowing whether a jury would have credited the victim’s testimony had the case gone to trial. And at least in the absence of any pertinent admissions, the sentencing court can only guess at whether, by pleading guilty . . . [the] defendant was also acknowledging the truth of the testimony.” (Gallardo, supra, 4 Cal.5th at p. 137, italics added.) Since Gallardo, appellate courts have elaborated on the type of “pertinent admissions” that would be sufficient to establish a defendant’s underlying conduct. (People v. Hiller, supra, 91 Cal.App.5th at pp. 349–350.) At least one court has held that counsel’s mere stipulation to a document as providing a factual basis for a defendant’s plea does not constitute an admission to the truth of the statements contained therein, and

thus does not establish a defendant’s underlying conduct in a manner permitted by Gallardo. (Ibid.) Courts finding no Gallardo violation have instead relied on direct admissions made personally by the defendant in the context of entering his or her plea. (E.g., In re Nelson (2020) 56 Cal.App.5th 114, 126 [recitation of facts in the defendant’s signed affidavit, made in conjunction with his plea]; In re Scott (2020) 49 Cal.App.5th 1003, 1009–1011, 1019–1020 [admissions made by the defendant during plea colloquy].) We acknowledge that the holding in Gallardo is dictated by Sixth Amendment principles, which have no relevance in the section 1172.6 context. (People v. Duran (2022) 84 Cal.App.5th 920, 931 [“[T]he panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing.” (italics omitted)].) Nonetheless, Gallardo holds that reliance on anything other than facts found by a jury or admitted by the defendant to determine the underlying nature of the offense constitutes judicial factfinding. (Gallardo, supra, 4 Cal.5th at p. 136.) In the sentencing context, such factfinding is prohibited by the Sixth Amendment. (Gallardo, at pp. 134, 136–137.) In the section 1172.6 context, such factfinding is prohibited by our high court’s case law interpreting the statute at issue. (Lewis, supra, 11 Cal.5th at p. 972.) It is of no moment that the source of the prohibition differs – a determination which constitutes factfinding at sentencing does not transform into a conclusive legal determination in a different context. The rationale of Gallardo applies equally to the prima facie determination under section 1172.6. We disagree with the holdings of Patton, Pickett, and Mares, as well of the reasoning of the dissent, that preliminary hearing testimony suggesting a section 1172.6 petitioner was the actual perpetrator of a homicide offense is sufficient to rebut a facially sufficient petition. These cases do not comply with the mandate in Curiel that the record of conviction must be conclusive of the petitioner’s guilt under a valid theory for the

D. Petitioner was not required to provide further facts or argument to meet his prima facie burden We also disagree with both Pickett and Mares, to the extent the courts in those cases opined that a petitioner is required to submit more than a facially sufficient petition to rebut uncontroverted facts presented at a preliminary hearing. (Mares, supra, 99 Cal.App.5th at pp. 1163, 1165–1167, review granted; Pickett, supra, 93 Cal.App.5th at p. 989, review granted.) Indeed, both cases suggest that, to meet his or her prima facie burden, a petitioner is required to rebut testimony from the preliminary hearing with other evidence that would raise a factual issue as to the petitioner’s role in the offense. (Mares, at pp. 1166–1170; Pickett, at pp. 987, 990.) The dissent likewise suggests that, where the preliminary hearing transcript reflects only a direct perpetrator theory of liability, a petitioner is required to make an additional, unspecified showing that he or she falls within the provisions of section 1172.6 to proceed beyond the prima facie inquiry. (Dis. opn., post, at pp. 13–17, 24.) This suggestion turns the section 1172.6 process on its head. Again, “the ‘prima facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) As stated, “the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] [s]ection 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill [No.] 1437 (§ 1172.6, subd. (a)(3)).” (Strong, supra, 13 Cal.5th at p. 708.) These factual allegations, if true, are sufficient to entitle the petitioner to relief and necessarily “put[] at issue all elements of the offense under a valid theory.” (Curiel, supra, 15 Cal.5th at p. 462.) Accordingly, a petitioner who has made the factual allegations required by section 1172.6 is entitled to an order to show cause unless readily ascertainable facts from the record conclusively establish the petitioner was convicted under a valid theory. (Curiel, supra, 15 Cal.5th at

pp. 463, 467; Lewis, supra, 11 Cal.5th at p. 971.) A preliminary hearing transcript does not conclusively establish a theory of guilt and thus is insufficient to rebut the petitioner’s factual allegations, even if the transcript suggests the prosecution pursued only a direct perpetrator theory of murder or attempted murder at the preliminary hearing. Moreover, at the prima facie stage, the trial court relies on the petition and the record of conviction to determine whether a petitioner has stated a prima facie case based on the nature of the offense of which the petitioner was convicted. (Strong, supra, 13 Cal.5th at p. 715; Lewis, supra, 11 Cal.5th at pp. 970–971.) It is not until the evidentiary hearing that section 1172.6 permits the introduction of “new or additional evidence.” (§ 1172.6, subd. (d)(3).) Nothing in section 1172.6 permits, let alone requires, a petitioner to submit new or additional evidence at the prima facie stage. And, to the extent Pickett and Mares suggest a petitioner is required to present some additional argument to raise a factual issue as to his or her role in the offense, we again note that this suggestion is contrary to Curiel, which states that a petitioner’s bare allegations, phrased in the language of the statute, are sufficient to “put[] at issue all elements of the offense under a valid theory.” (Curiel, supra, 15 Cal.5th at p. 463.) We likewise disagree with the dissent’s assertion that Evidence Code section 500 places an additional burden on the petitioner to argue alternative theories of guilt at the prima facie stage. (Dis. opn., post, at pp. 5, 13–17, 24.) Evidence Code section 500 provides: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” Thus, Evidence Code section 500 generally places the burden of proof on the party seeking relief, except where statutory or decisional law provides otherwise. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154 [noting that Evid. Code, § 500’s general rule allocating the burden of proof “does not supersede other, specific, rules established by statute or judicial decision”].) Meanwhile, section 1172.6 places the burden of proof squarely on the

which involved a second degree murder conviction, “Here, we do not even have an assertion by counsel as to the facts that would support Mares’s claim that there was some other killer, and Mares’s explanation for his claim that he aided that killer in some other crime that led to the murder. Finding a prima facie case in these circumstances indulges the possibility that Mares cannot assert facts that support the theory that he needs. “The statutory consequences of a successful petition reveal why it makes sense to require, for a prima facie case, that Mares offer some evidence that he was guilty of murder based on a theory that was valid before Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)] but is invalid today. If he establishes a prima facie case and prevails at an evidentiary hearing, the statute assumes there is some so-called ‘target’ felony at issue—a felony, such as robbery, that Mares would have intended other than murder and during which [the victim] was killed by someone else. This is so because, if Mares prevails on his petition, the statute directs his manslaughter conviction ‘shall be redesignated as the target offense or underlying felony.’ (§ 1172.6, subd. (e).) The only exception is if the target offense also was charged; then he would just be resentenced on the remaining charges, including the target offense. (Ibid.) “This resentencing scheme makes sense for cases involving the abrogated theories of accomplice liability for murder. Those theories would involve Mares as a participant in some target offense that caused a murder committed by another person. Here, there was no different, underlying felony charged along with an accomplice’s murder. Mares’s assault which killed [the victim] was the only act. Mares pled guilty to manslaughter, but this is a lesser-included offense of murder rather than a ‘target’ or ‘underlying’ felony. Nor would it make any sense to have his manslaughter conviction ‘redesignated’ as manslaughter. The statutory scheme thus suggests the Legislature intended the prima facie showing requirement to work as we apply it today—to eliminate cases that do not involve the abrogated theories. As we interpret the statute, the trial courts may winnow meritless petitions filed in cases that do not involve these murder theories but only an actual killer theory.” (People v. Mares (2024) 99 Cal.App.5th 1158, 1169–1170, fn. omitted (Mares), review granted May 1, 2024, S284232, citing People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)

prima facie review is intended to screen out clearly meritless petitions such as the one filed in this case. (Lewis, supra, 11 Cal.5th at pp. 971–972; accord, Curiel, supra, 15 Cal.5th at p. 460.) I am unpersuaded the result reached today is what the Legislature intended or what Curiel requires. As discussed below, over the past five years, the law governing murder, attempted murder and manslaughter has been amended by the Legislature to ensure that liability for these crimes is based on the defendant’s own actions and subjective mental state rather than imputed based solely on participation in the crime. (Senate Bill No. 1437 (2017– 2018 Reg. Sess.) (Senate Bill 1437); Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775).) To facilitate retroactive relief in postconviction cases, the Legislature provided for a petition process allowing qualifying defendants to seek to have their convictions vacated and to be resentenced. (People v. Gentile (2020) 10 Cal.5th 830, 853–854 (Gentile); Curiel, supra, 15 Cal.5th at pp. 448–449; Lewis, supra, 11 Cal.5th at p. 959.) Critically, the changes to the law do not benefit the direct perpetrators of murder, attempted murder and manslaughter, and they are categorically ineligible for relief under section 1172.6’s petition process. (People v. Strong (2022) 13 Cal.5th 698, 710 (Strong).) Consistent with the statute’s purpose, the Legislature provided for a prima facie review step, which allows trial courts to weed out those petitions that are clearly meritless. (Lewis, supra, at p. 971; accord, Curiel, supra, at pp. 463–464.) The bar at the prima facie stage is low, but it is not meaningless and although the trial court may not engage in factfinding, weighing evidence, or assessing witness credibility, the high court’s decisions to date have uniformly stated that where the record refutes the petition allegations, the court may make a credibility determination adverse to the petitioner and dismiss the petition.4 (Curiel, supra, at pp. 450, 460, 464; Strong, supra, at p. 708; Lewis, supra, at

not “conclusively establish[] every element of the offense.” (Curiel, supra, 15 Cal.5th at p. 463.) The majority would expand the holding in Curiel beyond the factual parameters of the case to these facts because nothing suggests the rule would not apply and Curiel is controlling absent contrary indication. (Maj. opn. ante, at p. 19, fn. 9.) However, “It is well settled that language contained in a judicial opinion is ‘“to be understood in the light of the facts and issue then before the court, and an opinion is not authority for a proposition not therein considered”’” (People v. Banks (1993) 6 Cal.4th 926, 945), and until we receive further clarification on the matter from the California Supreme Court in Patton,5 I would adhere to this well settled principle. It is my view that the circumstances that informed the rule articulated in Curiel are materially distinguishable from those presented here, which were neither considered nor commented upon. As applied to the circumstances in Curiel, the test is consistent with the statutory purpose, but, applied here, the test frustrates that purpose. Dismissal of the petition where the record is devoid of any indication that petitioner is eligible for relief as an accomplice convicted under a now invalid theory of liability other than contradictory and wholly conclusory form petition allegations is consistent with both section 1172.6 as a matter of statutory interpretation and legislative intent, and with the high court’s repeated recognition in this context that “‘if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.”’” (Lewis, supra, 11 Cal.5th at p. 971; accord, Strong, supra, 13 Cal.5th at p. 708; Curiel, supra, 15 Cal.5th at p. 460.) Consequently, I believe that at this juncture, the expansion of the Curiel test to all cases at the prima facie step is premature.

Although the petitioner in Curiel may not ultimately be eligible for relief from his conviction, on the face of his record of conviction, it was clear he fell within the category of defendant intended to benefit from the petition process: he was an accomplice and the jury that convicted him of murder was instructed on valid and now invalid theories of liability. In that context, where there existed a dispute over whether he was convicted based on his own actions and subjective mental state or based solely on his participation in the crime, his allegation that he could not currently be convicted of murder because of the changes in the law “[was] not refuted by the record unless the record conclusively establishe[d] every element of the offense” under a valid theory. (Curiel, supra, 15 Cal.5th at p. 463.) This test follows naturally from situations where the court is considering a record of conviction that is either unclear on the matter or shows that the petitioner was possibly convicted as an accomplice under a now invalid theory of liability. If the petitioner potentially falls within the class of intended beneficiaries under the statute, requiring the petition to proceed to an evidentiary hearing “unless the record conclusively establishes every element of the offense” (ibid.) is consistent with the statutory purpose and the limited function of the prima facie stage, which is designed to weed out only those petitions that are clearly meritless and reserve a determination on the others for an evidentiary hearing. In contrast, where the record is not only devoid of any support for the petition allegations, but it expressly contradicts them by showing that the petitioner is ineligible for relief under the statute because he was the direct perpetrator of the crime, prohibiting the trial court from dismissing the petition at the prima facie stage unless the record conclusively establishes every element of the offense does not advance the statutory goals. To the contrary, it defeats the purpose of the prima facie review step, and in plea cases such as this, it has the undesirable and unnecessary consequence of flooding trial courts with petitions that would routinely require evidentiary hearings based on nothing more than a form petition, despite the lack of merit apparent from the record of

“4. Having presented a facially sufficient petition, I request that this Court appoint counsel to represent me. (Pen. Code, [former] § 1170.95, subd. (b)(1)(C), People v. Lewis (2021) 11 Cal.5th 952, 957.)” In accordance with the statutory procedure, the trial court appointed petitioner counsel, obtained briefing from the parties, and held a hearing. Based on the record of conviction, which included transcripts of the plea hearing and the preliminary hearing, the court dismissed the petition. The court noted that petitioner was charged with premeditated attempted murder and pleaded no contest to attempted murder with admissions to personal infliction of GBI and personal use of a firearm. The court further noted that testimony presented at the preliminary hearing demonstrated that petitioner personally fired a firearm at the victim during a drug deal. Because the uncontroverted record of conviction reflected that petitioner was the direct perpetrator of the shooting underlying his attempted murder conviction, the court dismissed the petition. III. Analysis A. Section 1172.6 and Prima Facie Review Senate Bill 1437 “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule.” (Lewis, supra, 11 Cal.5th at p. 957, citing §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3; accord, Curiel, supra, 15 Cal.5th at pp. 448– 449; People v. Reyes (2023) 14 Cal.5th 981, 990.) The statutory purpose underlying section 1172.6 is “to ensure that murder culpability is commensurate with a person’s actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).)” (Lewis, supra, at p. 971; accord, Curiel, supra, at pp. 463–464.) The statute does not open resentencing to every defendant convicted of murder, attempted murder, or

manslaughter (Strong, supra, 13 Cal.5th at p. 715; accord, Curiel, supra, at p. 460), and “relief is [categorically] unavailable if the defendant was either the actual killer, acted with the intent to kill, or ‘was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.’ (Pen. Code, § 189, subd. (e)(3); see § 1172.6, subd. (a).)” (Strong, supra, at p. 710.) In accordance with section 1172.6, after the petitioner files a facially sufficient petition, the trial court shall appoint counsel, if requested (id., subd. (b)(3)); the prosecutor shall file a response (id., subd. (c)); and the petitioner may file a reply (ibid.). The court shall then “hold a hearing to determine whether the petitioner has made a prima facie case for relief.” (Ibid.) At this stage, “[t]he record of conviction will necessarily inform the trial court’s prima facie inquiry …, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This[, as previously stated,] is consistent with the statute’s overall purpose: to ensure that murder culpability is commensurate with a person’s actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at p. 971; accord, Curiel, supra, 15 Cal.5th at pp. 463–464.) “[T]he prima facie inquiry under [section 1172.6,] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘“the court takes 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. If so, the court must issue an order to show cause.”’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456.) ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court

is justified in making a credibility determination adverse to the petitioner.”’ (Drayton, at p. 979, quoting Serrano, at p. 456.)” (Lewis, supra, 11 Cal.5th at p. 971; accord, Strong, supra, 13 Cal.5th at p. 708; Curiel, supra, 15 Cal.5th at p. 460.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ (Drayton, supra, 47 Cal.App.5th at p. 980.)” (Lewis, supra, 11 Cal.5th at p. 972.) “[T]he ‘prima facie bar was intentionally and correctly set very low’” (ibid.), but “‘[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.’” (Curiel, supra, 15 Cal.5th at p. 460, quoting Strong, supra, 13 Cal.5th at p. 708.) B. Record of Conviction Refutes Bare Petition Allegations Here, petitioner filed a facially sufficient form petition, which entitled him to the appointment of counsel, a briefing schedule, and a prima facie determination. In briefing responsive to the petition, the prosecutor argued that based on the record of conviction, petitioner was the direct perpetrator. In reply, petitioner stated only, “[P]etitioner requests this Court independently review the record of conviction to determine whether he has presented a prima facie case for relief. Should this Court determine that petitioner has pled a prima facie case for relief, an order to show cause should issue and an evidentiary hearing to determine whether to vacate the convictions and to recall the sentence and resentence him on the remaining counts should follow.” (Italics omitted.) The uncontradicted record in this case reflects, on its face, that petitioner was the actual shooter who acted alone, and the trial court dismissed the petition for that reason. Reaching this conclusion did not require the trial court to make any factual findings, assess witness credibility, or resolve any disputed issues of fact, and the court did not do so. Rather, the court simply determined that the record of conviction “‘“refut[ed] the

explained, “Who bears the burden of proving newly relevant facts in the context of a section 1170.18 petition to recall a sentence? The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.) In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, ‘the petitioner’s felony sentence shall be recalled and the petitioner sentenced to a misdemeanor … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 [‘A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.’].)” (People v. Romanowski (2017) 2 Cal.5th 903, 916, italics added.) The majority characterizes the foregoing as misplaced and cites to subdivision (d)(3) of section 1172.6. (Maj. opn., ante, at pp. 31–32.) Certainly, there are distinctions between section 1172.6 and both section 1170.18 and habeas proceedings (Lewis, supra, 11 Cal.5th at p. 966, fn. 5 [rejecting analogy to § 1170.18 as supporting

when Senate Bill 775 was enacted. (See People v. Frahs (2020) 9 Cal.5th 618, 634 [“[T]he Legislature ‘is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted.’”].) Instead, prima facie review applies in all cases, and the statute must be interpreted reasonably so that the prima facie review functions as intended and permits trial courts to dismiss clearly unmeritorious petitions such as that filed in this case. (Lewis, supra, 11 Cal.5th at p. 971.) C. Import of Curiel The extension of the rule from Curiel to the facts here lies at the core of our divergent views in this case. In Curiel, the California Supreme Court addressed the question, left open in Lewis, of what is substantively required at the prima facie stage to show, under section 1172.6, subdivision (a)(3), that “‘“[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to … Section 188 or 189 made effective January 1, 2019” .…’” (Curiel, supra, 15 Cal.5th at p. 450, quoting Strong, supra, 13 Cal.5th at p. 708.) Curiel concluded, “At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to Section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. (Lewis, supra, 11 Cal.5th at p. 971.) And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense. If only one element of the offense is established by the record, the petitioner could still be correct that he or she could not currently be convicted of the relevant offense based on the absence of other elements.” (Curiel, supra, at p. 463, italics added.) My colleagues interpret this language in Curiel as broadly applicable at the prima facie review stage, compelling an evidentiary hearing in every case unless the record conclusively establishes all the elements of the offense under a

13 Another Court of Appeal recently relied on this language in Curiel and reversed the trial court’s order dismissing the petition at the prima facie stage. (People v. Estrada (2024) 101 Cal.App.5th 328, 337.) In that case, the trial court concluded the petitioner was the actual killer and denied the petition, but the appellate court reversed, concluding, “At the prima facie stage, the evidence contains testimony that could potentially suggest multiple perpetrators were involved, potentially undermining the Attorney General’s argument that Estrada was the actual killer or direct perpetrator. Beyond Estrada, there were two people with blood on their clothes, and one of the individuals carried a box cutter. Thus, the preliminary hearing testimony ‘standing alone, does not conclusively establish as a matter of law that [Estrada] was the actual killer, acted with intent to kill or actual malice, or was a major participant in an underlying crime who acted with reckless indifference to human life’ without making factual findings and credibility determinations.” (Id. at p. 340, quoting People v. Flores, supra, 76 Cal.App.5th at pp. 991–992.) The facts in Estrada are not analogous to those here and, therefore, I express no view on the ultimate outcome. However, as explained herein, I disagree with the proposition that the language in Curiel relied upon—that the petition “allegation is not refuted by the record unless the record conclusively establishes every element of the offense”—applies in cases such as this where the record demonstrates, without dispute, that petitioner was the direct perpetrator. (Curiel, supra, 15 Cal.5th at p. 463.) 14 As Mares aptly explained, “the form petition’s conclusory assertion is sufficient where the record contains a possibility that the defendant could have been guilty under a now-abrogated accomplice theory.” (Mares, supra, 99 Cal.App.5th at p. 1169, review granted.) This was the situation in Curiel. The form petition’s conclusory assertion is not sufficient where “the record forecloses such a possibility” (Mares, supra, at p. 1169, review granted), which is the situation in this case, as it was in Mares.

(Lewis, supra, 11 Cal.5th at pp. 971, 972, fn. 6; accord, Curiel, supra, 15 Cal.5th at pp. 463–464). Direct perpetrators of murder, attempted murder, and manslaughter are not the intended beneficiaries of section 1172.6 and are categorically ineligible for relief. (Strong, supra, 13 Cal.5th at p. 715; accord, Curiel, supra, at p. 460; see Delgadillo, supra, 14 Cal.5th at p. 233.) The focus of a trial court’s inquiry in determining whether the petitioner has stated a prima facie case is informed by the petition, the record, and any arguments the parties advance, and that inquiry is tethered to the petition, record, and argument at issue in each case. (Curiel, supra, at p. 460; Lewis, supra, at p. 971.) Where, as in Curiel, the petition and the record affirmatively reflect that the petitioner was an accomplice whose jury was instructed on valid and now invalid theories of aiding and abetting, the issue of whether the petitioner was convicted under a now invalid theory is squarely presented and courts must ask whether the record conclusively establishes all the elements of the crime under a valid theory. (Curiel, supra, at pp. 462–463.) If the record does not so establish, it remains possible the petitioner was convicted under the invalid theory and the matter must proceed to an evidentiary hearing. (Id. at pp. 460, 470.) However, where the record refutes the bare petition allegations because it affirmatively reflects the petitioner was the direct perpetrator who acted alone, and the petitioner fails to articulate any facts or theory that might bring his conviction within the purview of section 1172.6, the petitioner has not met his or her burden of demonstrating a prima facie case for relief because no dispute has been raised concerning whether the petitioner was possibly convicted under a now invalid theory. In this circumstance, there is no meaningful benefit in asking whether the record of conviction by plea conclusively establishes all the elements of the crime under a valid theory. Instead, the petition is meritless and the court is entitled to dismiss it. (Curiel, supra, 15 Cal.5th at p. 460; Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 971; see Delgadillo, supra, 14 Cal.5th at p. 233.)

Curiel was a jury trial case, as were Gentile, Lewis, Strong, and Delgadillo, and, therefore, those case records were necessarily more developed than cases resolved by plea. Nevertheless, convictions by plea are expressly eligible for relief under section 1172.6 and are subject to prima facie review informed by the record in the case. (§ 1172.6, subd. (a)(2).) As such, a petitioner must show there is a prima facie case for relief irrespective of whether the conviction followed a jury trial or a plea agreement, which requires a showing that “The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” Id., subd. (a)(3).) There is no indication the Legislature intended cases resolved by plea to escape meaningful evaluation at the prima facie stage and, as discussed, the California Supreme Court has interpreted the statute as intended to afford relief to those convicted under a now invalid theory while permitting the dismissal of obviously meritless petitions. Courts must take care not to demand too much of the petitioner at the prima facie stage, but they must also not demand so little that the prima facie review is rendered meaningless and direct perpetrator cases with uncontroverted records of conviction move to the next stage based on nothing more than a form petition with the requisite boxes checked. If, under the circumstances in this case, filing a form petition with boxes checked is sufficient to justify an evidentiary hearing, the prima facie review stage is rendered hollow, our high court’s express endorsement of limited record review and dismissal of petitions where the record refutes the petition allegations is not given effect, clearly meritless petitions will proceed to an evidentiary hearing, and already swamped trial courts will be needlessly burdened by conducting evidentiary hearings on meritless petitions. This is not a small matter, considering that a significant percentage of cases are resolved by plea (e.g., Lafler v. Cooper (2012) 566 U.S. 156, 170; Harris v. Superior Court, supra, 1 Cal.5th at p. 992; In re Chavez (2003) 30 Cal.4th 643, 654, fn. 5), and I am unpersuaded that this result was intended by the Legislature or compelled by Curiel.

I agree that we are bound to apply the rule in Curiel in cases where the petition and record show that the petitioner may have been convicted of murder, attempted murder, or manslaughter as an accomplice under a now invalid theory (Curiel, supra, 15 Cal.5th at p. 463), but the trial court here was not tasked with measuring a valid aiding and abetting theory against an invalid aiding and abetting theory and attempting to determine whether every element of the offense was established under the valid theory. The only theory at play was a direct perpetrator theory and absent petitioner articulating how, despite the record, he could not presently be convicted of attempted murder, the trial court was entitled to make a credibility determination adverse to him and dismiss the petition. (Lewis, supra, 11 Cal.5th at p. 971; accord, Curiel, supra, at p. 460.) In this circumstance, requiring petitioner, as the moving party, to minimally assist himself by informing the court and the prosecutor of a basis for what appears to be a meritless claim does not contravene Curiel. To the contrary, if support for the claim that petitioner could not now be convicted of attempted murder existed despite a record that refuted the claim, he had the opportunity, with the aid of counsel, to identify that support. (Evid. Code, § 500; Vance v. Bizek, supra, 228 Cal.App.4th at p. 1163 & fn. 3; see People v. Romanowski, supra, 2 Cal.5th at p. 916; see also Curiel, supra, 15 Cal.5th at p. 440.) I have explained why I do not believe form petition allegations overcome a wholly contradictory record and why I do not believe the rule articulated in Curiel is controlling in plea cases where the preliminary hearing transcript affirmatively reflects petitioner was the direct perpetrator. The majority’s contrary position that the form petition puts all the elements of the offense at issue under a valid theory and that the rule articulated in Curiel extends to all cases divorces Curiel from its context. For the reasons previously set forth, I am not persuaded that the Curiel court’s silence on the standard to be applied in these circumstances warrants the extension proposed by the majority in this case. Specifically, Curiel was not called upon to decide whether form petition allegations are sufficient to overcome a contradictory record and make a prima facie

People v. Williams

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SEE DISSENTING OPINION

More from California Court of Appeal

Related research

SNAUFFER, J.

MEEHAN, J.