Filed 11/17/20 P. v. Traughber CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301557
(Super. Ct. Nos. F240517 and
Plaintiff and Respondent, F240517001)
(San Luis Obispo County)
v.
TOMMY ANTHONY
TRAUGHBER,
Defendant and Appellant.
Tommy Anthony Traughber appeals the denial of his
petition to vacate a 1997 first degree murder conviction and 26-
year-to-life state prison sentence. (Pen. Code, § 1170.95, subd.
(c).)1 The trial court denied the petition without an evidentiary
hearing even though the petition made a prima facie showing
that appellant was eligible for resentencing relief. We reverse
and remand with directions to issue an order to show cause and
conduct an evidentiary hearing pursuant to section 1170.95,
subdivision (d)(3).
All statutory references are to the Penal Code unless
1
otherwise stated.
Facts and Procedural History
In 1997, appellant was convicted of murder (§ 187,
subd. (a)), second degree burglary (§ 459) and arson (§ 451, subd.
(d)) with a firearm enhancement. (§ 12022, subd. (a)1)).
Appellant submitted on the preliminary hearing transcript which
showed that appellant (age 17) and his cohort, Travis Ron
Williams (age 15), were involved in a home-invasion burglary.2
The victim, a 75-year-old widow, was shot in the back of the head.
It was a one gun, one bullet killing. Appellant said Williams was
the shooter and Williams said it was appellant. Appellant, like
Williams, was sentenced to 26 years to life state prison. We
affirmed the conviction in an unpublished opinion and modified
the judgment to add a $5,000 restitution fine pursuant to section
1202.45.
On January 2, 2019, the day after Senate Bill No.
1437 became effective (2017–2018 Reg. Sess; Stats. 2018, ch.
1015) (SB 1437), appellant filed a petition for resentencing. SB
1437 provided that defendants convicted of murder under the
felony murder rule or natural and probable consequences
doctrine could petition for resentencing based on statutory
changes to Penal Code sections 188 and 189. (§ 1170.95, subd.
(a).)
The superior court appointed counsel for appellant
and denied the prosecution'’ motion to dismiss, finding that SB
1437 was constitutional. At the October 4, 2019 hearing, the trial
Appellant entered a “slow plea” in which the defendant
2
submits on the preliminary hearing transcript and the
submission is both a plea and a trial. (Cal. Criminal Law:
Procedure and Practice (Cont.Ed.Bar (2020) § 28.20, pp. 804-805;
Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605-606.)
2
court denied the petition “based on [the] lack of a [p]rima [f]acie
showing that the Petitioner was not a major participant who
acted with reckless indifference to human life . . . .” (Italics
omitted.)
Discussion
Appellant argues, and the Attorney General agrees,
that the trial court erred in not issuing an OSC and conducting
an evidentiary hearing as required by section 1170.95,
subdivision (d)(3). (People v. Cooper (2020) 54 Cal.App.5th 106,
114-115.)
At the evidentiary hearing, the burden of proof shifts
to the prosecution. The trial short-circuited the procedure and
relied on the preliminary hearing transcript to find that
appellant was ineligible for relief even though the facts were
conflicting. That is not permitted.
A preliminary hearing transcript may not be used to
resolve conflicting facts without an evidentiary hearing.3 “By
relying on the preliminary hearing transcript to determine the
‘nature or basis’ of defendant’s prior conviction, the sentencing
court engaged in an impermissible inquiry to determine ‘“what
the defendant and state judge must have understood as the
factual basis of the prior plea.”’ [Citation.]” (People v.
Gallardo (2017) 4 Cal.5th 120, 137.) Nor could the trial court
rely on the juvenile fitness hearing transcript (Welf. & Inst. Code,
§ 707) to find that appellant was ineligible for resentencing.
3Our Supreme Court granted review in People v. Lewis
(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598 on the issue of whether superior courts may consider the
record of conviction in determining the stage one issue of whether
defendant has made a prima facie showing of eligibility for relief
under section 1170.95.
3
(People v. Chi Ko Wong (1976) 18 Cal.3d 698, 716-717 [the sole
question at a fitness hearing is whether the minor would be
amenable to treatment if adjudged a ward of the court]; People v.
Superior Court (Zaharias M.) (1993) 21 Cal.App.4th 302, 307
[same].)
Appellant and Williams pointed the finger at one
another and claimed it is the other guy who fired the fatal shot.4
Appellant confessed several times and said they burglarized the
victim’s garage. Williams decided to break into the victim’s
house while appellant sat on the curb outside the house.
According to appellant, Williams entered the house, fired a shot,
and ran outside with the victim’s car keys. The two took the
victim’s Oldsmobile, drove to Pismo Beach and Grover Beach, and
set the vehicle on fire. Appellant said that Williams doused the
car with gasoline before setting it on fire. Appellant’s eyebrows
and eyelashes were singed, which suggests appellant was more
than a passive accomplice. The trial court, in denying the
petition, said “it has been a tortuous exercise . . . to wrestle with
these two factual roles.” “[T]here’s no doubt that one of these two
killed this woman. And I can’t say that I know who that person
is at this point.” The court noted that the prosecutor had
“alluded to evidence that I had not seen” and found that “it’s clear
that each of the petitioners ha[ve] met the initial two criteria” for
resentencing eligibility. Whether appellant was a major
participant in the underlying burglary and acted in reckless
4 The .22 caliber handgun, owned by Williams’ mother, was
on a sofa outside Williams’ house. More than one hundred
pounds of stolen ammo was found in duffle bags in a hole under
the sofa.
4
disregard to human life is a factual issue that has to be decided
at a stage two evidentiary hearing. (§ 1170.95, subd. (d)(3).)
Disposition
The order denying the section 1170.95 petition is
reversed and the matter is remanded with directions to issue an
OSC and proceed to an evidentiary hearing pursuant to section
1170.95, subdivision (d)(3).
NOT TO BE PUBLISHED.
YEGAN J.
We concur:
GILBERT, P. J.
PERREN, J.
5
Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Susan S. Bauguess, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles Lee, Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.