People v. Davenport

Filed 11/10/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A161954
v. (Contra Costa County Super. Ct.
WILLIAM DAVENPORT, No. 50716688)
Defendant and Appellant.

In 2007, appellant William Davenport pled no contest to second degree
murder with a firearm enhancement and was sentenced to prison for 18 years
to life. This appeal arises from the denial of Davenport’s petition for
resentencing pursuant to Penal Code section 1170.95.1 By relying on facts
stated in the preliminary hearing transcript in the absence of any stipulation
from him that the facts supplied a basis for his plea, Davenport contends the
trial court erroneously concluded he failed to make a prima facie showing of
entitlement to relief. Seeing merit to the argument, we reverse the order
summarily denying Davenport’s petition and remand this case for further
proceedings.
I. BACKGROUND
Davenport was charged by information with murder (§ 187), alleging he
committed the murder “unlawfully and with malice aforethought.” The

1 Undesignated statutory references are to the Penal Code.

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information included an enhancement for alleged personal and intentional
discharge of a firearm causing great bodily injury and death as well as
personal and intentional discharge and personal use of a firearm.
(§ 12022.53, subds. (b)–(d).)
Davenport pled no contest to second degree murder and a personal use
of a firearm enhancement (§ 12022.5, subd. (a)). On his plea form, Davenport
initialed the following two paragraphs as the factual basis for his plea:
“32. I have discussed the contents of the police reports and investigative
reports with my attorney. I am satisfied that I know the evidence that could
be used against me in trial, as well as any possible defense to these charges.
[¶] . . . [¶] 33. I believe and agree that a jury or judge who heard the evidence
against me could find me guilty of the charges to which I am pleading
guilty/no contest.” The court sentenced Davenport to a term of 15 years to
life for second degree murder consecutive to a term of three years for the
enhancement.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.). Senate Bill No. 1437 amended section 189 to limit liability for murder
under a felony-murder or natural and probable consequences theory to a
person who is the actual killer, has the intent to kill and aids or abets the
actual killer, or is a major participant in the underlying felony and acts with
reckless indifference to human life. (Stats. 2018, ch. 1015, §§ 1, 3; see § 189,
subd. (e)(1)–(3).) The bill also established a procedure, under newly enacted
section 1170.95, for eligible defendants to petition for resentencing. (Stats.
2018, ch. 1015, § 4.)
In February 2019, Davenport filed a petition for resentencing under
section 1170.95. The petition alleged Davenport (1) was tried under an
information that allowed the prosecution to proceed on a felony-murder

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theory or under the natural and probable consequences doctrine; (2) pled no
contest to second degree murder in lieu of going to trial because he believed
he could have been convicted at trial of first degree murder pursuant to the
felony-murder rule or the natural and probable consequences doctrine; and
(3) could not now be convicted of first or second degree murder under
section 188, as revised. Davenport was appointed counsel.
In June 2019, the court summarily denied the petition for failure to
state a prima facie case for relief. Davenport appealed the order. (See People
v. Davenport (June 24, 2020, A158211) [nonpub. opn.].) On appeal, the
Attorney General conceded that Davenport’s petition was facially sufficient:
the assertions, if true, would mean that Davenport was eligible for relief
under section 1170.95. (People v. Davenport, supra, A158211.) We thus
vacated the order and remanded the case for further proceedings. (Ibid.)
On remand, the People filed an opposition to the petition, and
Davenport filed a reply brief. The court again summarily denied the petition
by written order, concluding that Davenport was ineligible for relief as a
matter of law. In reaching this conclusion, the court cited (1) Davenport’s
admission to the firearm enhancement; and (2) facts taken from the
preliminary hearing transcript that Davenport had approached a car in
which his former girlfriend was sitting with the victim, her new boyfriend,
and killed the victim by shooting him at close range. The court explained
that it had considered the transcript because “[t]he facts in defendant’s
preliminary hearing transcript provide the factual basis for his plea, and are
part of the record of his conviction.”
II. DISCUSSION
Section 1170.95, subdivision (a) provides that a person convicted of
felony murder or murder under a natural and probable consequences theory

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may file a petition with the court for resentencing “when all of the following
conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable consequences
doctrine. [¶] (2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.”
After a petition for resentencing is filed, the trial court must then
determine whether the defendant has made a prima facie showing of
entitlement to relief under section 1170.95. (§ 1170.95, subd. (c); People v.
Lewis (2021) 11 Cal.5th 952, 960 (Lewis).) In making this assessment, the
trial court “should accept the assertions in the petition as true unless facts in
the record conclusively refute them as a matter of law.” (People v. Drayton
(2020) 47 Cal.App.5th 965, 968 (Drayton).) The court’s authority to
summarily deny a petition is thus limited to “readily ascertainable facts”
taken from the record of conviction, “rather than factfinding involving the
weighing of evidence or the exercise of discretion.” (Id. at p. 980; accord
Lewis, at pp. 970–971.)
If the court determines that a prima facie showing has been made, it
“shall issue an order to show cause” and “hold a hearing to determine
whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if
the petitioner had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95,
subds. (c)–(d)(1).) At the evidentiary hearing, the prosecution bears the

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burden to prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. (Id., subd. (d)(3).)
Here, Davenport contends that the trial court improperly relied on the
preliminary hearing transcript in concluding that Davenport had not made a
prima facie showing of entitlement to relief. Specifically, Davenport contends
that the preliminary hearing transcript is either (1) not part of the record of
conviction; or (2) not appropriate to consider because Davenport never
stipulated to the transcript as a factual basis for his plea. Our review is de
novo, as the propriety of the trial court’s inquiry under section 1170.95 is a
question of statutory interpretation. (Lewis, supra, 11 Cal.5th at p. 961.)
We reject Davenport’s argument that the preliminary hearing
transcript is never part of the record of conviction. (Cf. People v. Reed (1996)
13 Cal.4th 217, 222–223 [trier of fact determining whether a prior conviction
constitutes a serious felony under §§ 667(a) and 1192.7(c) may consider a
preliminary hearing transcript as part of the prior record of conviction].) We
agree, however, that the trial court erred in considering facts from the
preliminary hearing transcript here because Davenport did not stipulate to
the transcript as a factual basis for his plea. (See People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.) In Cooper, the
petitioner was convicted of murder by no contest plea, but the particular
factual basis for the plea was never established. (Id. at pp. 109–110, 112.)
Before appointing counsel or providing an opportunity for briefing, the trial
court summarily denied the petition based on evidence from the preliminary
hearing showing that the petitioner committed “appalling acts of violence”
against the victim. (Id. at p. 112.) Cooper reversed, concluding the trial court
had engaged in “impermissible factfinding” that accepted the truth of the
preliminary hearing testimony. (Ibid.) Cooper explained: “ ‘[A]t the

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preliminary hearing, the magistrate is called upon only to determine whether
the factual showing is sufficient to establish probable cause to believe the
defendant committed a felony,’ a ‘fundamentally different factual
determination[]’ than the determination at trial of guilt beyond a reasonable
doubt.” (Id. at p. 123.) “ ‘ “In short, the magistrate is not a trier of fact,” ’ and
a ruling holding a defendant to answer is in no way equivalent to a jury’s
factual finding or a defendant’s admission.” (Id. at p. 124.) Cooper remanded
the matter to appoint counsel for the petitioner and conduct further
proceedings under section 1170.95. (Cooper, at p. 126.)
Like Cooper, the record here does not contain any admission or
stipulation by Davenport that the evidence at the preliminary hearing
established a factual basis for his no contest plea. While unlike the petitioner
in Cooper, Davenport had appointed counsel and was given an opportunity
for briefing, we conclude that the reasoning from Cooper applies here. The
trial court engaged in “impermissible factfinding” at the prima facie stage by
relying on facts taken from the preliminary hearing transcript that were not
stipulated to or admitted. (People v. Cooper, supra, 54 Cal.App.5th at
pp. 112, 124, review granted; accord Lewis, supra, 11 Cal.5th at p. 974.)
The Attorney General’s citations to People v. Nguyen (2020)
53 Cal.App.5th 1154 and People v. Perez (2020) 54 Cal.App.5th 896, review
granted December 9, 2020, S265254 (Perez), do not persuade us to the
contrary. In Nguyen, the petitioner stipulated that the preliminary hearing
testimony and police reports served as the factual basis for his second degree
murder plea. (Nguyen, at p. 1161.) The trial court thus found that he was
ineligible for resentencing because the preliminary and plea hearing
transcripts showed he was convicted of second degree murder “as a direct
aider and abettor.” (Id. at p. 1167.) The facts in Perez, admittedly, are not

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meaningfully distinguishable from this case, since that case too, like this one,
involved a situation in which there was no explicit reference to the
preliminary hearing testimony, and as a result, like Davenport, appellant
Perez claimed he had not stipulated to the preliminary hearing transcript as
the factual basis for his plea. (Perez, at p. 901.) But we respectfully disagree
with the reasoning, and the result reached, in that case.
In Perez, the appeal was from a postconviction order summarily
denying a petition for resentencing filed under section 1170.95 as to a second
degree murder conviction entered after appellant Perez pleaded no contest to
second degree murder and admitted the allegation he personally used a
dangerous or deadly weapon. (Perez, supra, 54 Cal.App.5th at p. 899, review
granted.) In finding no prima facie case for section 1170.95 relief, the trial
court relied on the transcript of his preliminary hearing at which two
witnesses testified they saw appellant Perez repeatedly and forcefully strike
his wife with a hammer in the back of her head. (Perez, at p. 900.) While
acknowledging under the Drayton rule that it is improper to engage in
factfinding at the section 1170.95, subdivision (c) stage of resentencing
proceedings (Perez, at pp. 903–904), the appellate court nonetheless affirmed,
concluding it was proper for the trial court to consider the preliminary
hearing transcript in the prima facie case determination and draw adverse
inferences from the preliminary hearing testimony so long as nothing was
offered in rebuttal, since petitioners always have the opportunity to “present
contrary evidence or make an offer of proof of evidence.” (Id. at p. 906.)
What this overlooks, in our view, is that under the Drayton framework
the section 1170.95, subdivision (c) inquiry is a test of the petitioner’s pleaded
allegations, not an inquiry into the truth of those allegations and the
credibility of the evidence on which they may rely. (Drayton, supra,

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47 Cal.App.5th at p. 978.) The exception, for “readily ascertainable facts” in
the record of conviction that “ ‘ “refut[e] the allegations made in the
petition” ’ ” (Lewis, supra, 11 Cal.5th at p. 971), bars a petitioner from
pleading things that the record of conviction necessarily establishes are
untrue (such as an allegation that he is entitled to resentencing relief for an
offense that is not listed in the statute). (Drayton, supra, at p. 980.) If the
exception were to be read more broadly, allowing inquiry into the historical
facts that may appear in the court’s files but that were never admitted by the
petitioner as the factual basis for a plea, the exception would swallow the
rule and convert the prima facie inquiry into a factual contest, which is
reserved for evidentiary hearings at the section 1170.95, subdivision (d)
stage. Because Davenport did not stipulate that the preliminary hearing
transcript provided the factual basis for his no contest plea, the transcript
does not conclusively “refute” his allegations. In our view, by focusing on
what appellant Perez could have proffered at the prima facie stage to counter
the evidence set forth in the preliminary hearing transcript, the Perez court’s
analysis allocates to petitioners an evidentiary burden that should be on the
state (§ 1170.95, subd. (d)(3)), and effectively raises “ ‘ the prima facie bar
[that] was intentionally and correctly set very low’ ” (Lewis, supra, 11 Cal.5th
at p. 972).2 We thus conclude that the trial court erred by relying on facts

2 We note in addition that Perez relies on People v. Verdugo (2020)
44 Cal.App.5th 320, 327, review granted March 18, 2020, S260493, for the
proposition that the court engages in a “three-step evaluation of a section
1170.95 petition” in which it initially conducts a two-step prima facie review.
(Perez, supra, 54 Cal.App.5th at p. 903, review granted.) Within that
framework, Perez concludes “as part of the second step of the trial court’s
prima facie review under section 1170.95, subdivision (c), the court may
consider the testimony presented at the preliminary hearing, but the
petitioner has an opportunity to present contrary evidence or make an offer of

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from the preliminary hearing transcript at the prima facie stage of the
proceedings.
The Attorney General’s additional arguments do not alter our
conclusion. First, he argues that “the language of the information makes
clear that appellant was charged with malice murder.” We disagree. “The
allegation that a murder was committed ‘ “willfully, unlawfully, and with
malice aforethought” ’ is a well-recognized way of charging murder in [a]
generic sense.” (People v. Rivera (2021) 62 Cal.App.5th 217, 233, review
granted June 9, 2021, S268405.) The generic manner for charging murder,
however, does “not limit the People to prosecuting [defendant] on any
particular theories.” (Ibid.) “[I]t is well settled that ‘only a single statutory
offense of murder exists.’ . . . Specifically, neither felony murder nor murder
under the natural and probable consequences doctrine need be separately
pleaded.” (Ibid., quoting People v. Nakahara (2003) 30 Cal.4th 705, 712.)
Under an analysis dictated by the Drayton and Lewis framework, nothing in
the preliminary hearing transcript precluded the prosecution from pursuing a
conviction based on a felony-murder theory or the natural and probable
consequences doctrine at trial. And as we pointed out above, nothing in the
evidence presented at the preliminary hearing conclusively refutes
Davenport’s allegation that his conviction rests on now prohibited vicarious

proof of evidence the petitioner could present at an evidentiary hearing to
show he or she is entitled to relief.” (Id. at p. 906.) In Lewis, the Supreme
Court rejected Verdugo’s three-step approach (Lewis, supra, 11 Cal.3d at
pp. 961–962), holding that section 1170.95, subdivision (c) “clearly describes a
single process.” (Lewis, at p. 962.) Lewis therefore obviates the Perez court’s
concern that barring the trial court from considering preliminary hearing
testimony in deciding whether to issue an order to show cause “would render
meaningless the second step of the prima facie review.” (Perez, supra, at
p. 906, italics added.)

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liability theories at trial. Despite the allegation in the information that
Davenport committed murder “with malice aforethought,” he still could have
been tried on any theory of murder. (People v. Rivera, supra, at p. 233.) This
is the essential difficulty of interpreting the meaning of a plea to generic
murder in the absence of a stipulation to the exact factual basis for the plea.
Second, the Attorney General argues that there was, in effect, such a
stipulation. He points out that Davenport admitted to malice murder by
pleading no contest to second degree murder and the personal use of a
firearm enhancement. Again, we disagree. “It is undisputed that a
conviction of second degree murder does not, in and of itself, bar a petition
under section 1170.95.” (People v. Rivera, supra, 62 Cal.App.5th at p. 232,
review granted.) “To be sure, ‘malice aforethought’ is statutorily defined as
an element of first and second degree murder. (§§ 187, subd. (a), 189,
subd. (b).) But as we have discussed, before Senate Bill No. 1437 malice
could be imputed to a defendant under the felony-murder rule or the natural
and probable consequences doctrine, meaning that the person did not need to
harbor express or implied malice to be convicted of second degree murder.”
(Rivera, at p. 234.) Moreover, Davenport pled no contest to the personal use
of a firearm enhancement under section 12022.5, subdivision (a), not the
charged enhancements under section 12022.53, subdivisions (b)–(d).
Davenport’s admission to this enhancement did not preclude the possibility of
prosecution under a felony-murder theory. (See Drayton, supra,
47 Cal.App.5th at pp. 969, 981 [where petitioner admitted personal use of
firearm enhancement, there were no facts in the record that refuted, as a
matter of law, petitioner’s assertion that he was convicted on a theory of
felony murder].) Accordingly, we cannot conclude that Davenport’s no contest
plea barred relief under section 1170.95 as a matter of law.

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 In sum, we conclude that the trial court erred in summarily denying
Davenport’s petition and not affording him an evidentiary hearing under
section 1170.95, subdivision (d)(1).3
III. DISPOSITION
The order denying Davenport’s section 1170.95 petition is reversed.
The matter is remanded to the superior court with directions to issue an
order to show cause and hold an evidentiary hearing on Davenport’s petition.

STREETER, Acting P. J.

WE CONCUR:

BROWN, J.
ROSS, J.*

3 We express no opinion on whether Davenport’s petition will
ultimately be granted, as the prosecution may, at the section 1170.95,
subdivision (d) hearing that will occur upon remand, rely on the preliminary
hearing transcript to sustain its burden of establishing that he is not entitled
to relief. (§ 1170.95, subd. (d)(3) [at the hearing after the court issues an
order to show cause, “[t]he prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet their
respective burdens”].) To the extent the summary denial of section 1170.95
relief in this case reflects the considered view of an experienced trial judge as
to what is highly likely to occur at that hearing based on the record as it
stands now, we share that view but must apply the statute as written.
*Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Theresa J. Canepa

Counsel: Law Office of Steven Schorr and Steven Schorr, by appointment
of the Court of Appeal Under the First District Appellate
Project’s Independent Case System, for Defendant and
Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Bruce L. Ortega and René A. Chacón,
Deputy Attorneys General, for Plaintiff and Respondent.

A161954