Filed 7/28/22 P. v. Bishop CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C092860
Plaintiff and Respondent, (Super. Ct. No. 96F09659)
v.
ALONZO BISHOP,
Defendant and Appellant.
Defendant Alonzo Bishop appeals from the trial court’s order denying his petition
for resentencing under former Penal Code section 1170.95.1 He argues the trial court
erred when it denied his petition at the prima facie stage after finding substantial evidence
in his codefendants’ pleas that could theoretically support a murder conviction under
1 Further undesignated statutory references are to the Penal Code. Effective June 30,
2022, former section 1170.95 was recodified without substantive change to section
1172.6. (Stats. 2022, ch. 58, § 10.) In this opinion, we shall continue to refer to this
section as former section 1170.95.
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current law. The People concede the trial court erred. We accept the People’s
concession and will remand the case for further proceedings.
I. BACKGROUND
In August 1997, defendant pled guilty to attempted willful, deliberate, and
premediated first degree murder. He also admitted to personal use of a knife in the
commission of the crime. At the plea hearing, the parties agreed the factual basis for the
plea to be that defendant and his codefendants “took ahold of the victim,” and “ ‘one
person held the victim while two people stabbed the victim.’ ” The trial court
subsequently sentenced defendant to a term of seven years to life, plus one year for the
personal use allegation. Defendant did not appeal his conviction.
In 2019, defendant filed a former section 1170.95 petition for resentencing in
which he alleged the information filed against him “allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and probable consequences
doctrine.” He further alleged that he pled guilty rather than going to trial because he
“believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to
the felony murder rule or the natural and probable consequences doctrine,” and he was
not “the actual killer.” Defendant alleged he “could not now be convicted of 1st or 2nd
degree murder because of changes made to . . . §§ 188 and 189, effective January 1,
2019”, and “[t]here ha[d] been a prior determination by a court or jury that [he] was not a
major participant and/or did not act with reckless indifference to human life under . . .
§ 190.2[, subdivision ](d).” After receiving the petition, the trial court appointed counsel.
After “early review” of defendant’s petition, the court found “there [wa]s a
question as to whether defendant . . . [wa]s eligible to seek relief under the provisions of
[former] § 1170.95.” The court thus ordered the parties to file “special” briefs addressing
“whether the instant petition should be denied because (1) defendant . . . seeks relief from
his attempted murder conviction, and not an actual murder conviction, and/or (2)
defendant . . . ‘could’ have been convicted of attempted murder under law as it stands
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after [Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill
1437)], had he gone to trial, and is therefore ineligible for relief under [former]
§ 1170.95.”
The People subsequently filed their special brief and submitted the police report
documenting the video-taped statement that a codefendant gave to investigating officers.
The trial court asked the parties to find the transcript from the preliminary hearing in
defendant’s case; neither party could find the transcript.
In August 2020, the trial court denied defendant’s petition with a lengthy written
decision. In its decision, the trial court assumed former section 1170.95 applied to
convictions for attempted murder, but concluded defendant was ineligible for relief
because “based on the factual basis of the pleas of defendant and his codefendants (and, if
permissible for this court to consider, is further bolstered by [the] codefendant[’s]
statement to police), that had defendant . . . rejected the plea bargain and gone to trial, the
only theory of criminal liability for the attempted murder would have been that of express
malice aforethought.” The court then detailed the factual basis for the codefendants’ plea
agreements and explained how those statements demonstrated defendant’s role in the
crime and the resulting ineligibility for relief under former section 1170.95.
The court further explained that even if it was impermissible to consider the
codefendants’ statement to police, defendant’s plea of no contest to a willful, deliberate,
premeditated attempted murder with a personal use of a knife enhancement demonstrated
evidence of a “planned, intentional attempt to kill.” Thus, the court opined, there was
nothing in the record that could be construed as establishing defendant’s liability for
attempted premeditated murder under either a felony murder or natural and probable
consequences theory of liability; “the only theory of criminal liability for the attempted
murder would have been that of express malice aforethought.” The court concluded “this
was a planned, intentional attempt to kill.”
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II. DISCUSSION
Defendant contends the trial court erroneously denied his petition for resentencing
by looking beyond the record of conviction and engaging in judicial factfinding at the
prima facie stage of his resentencing petition. He also contends former section 1170.95
applies to convictions for attempted murder. The People agree.
A. Statutory Background
Senate Bill 1437, which became effective on January 1, 2019, was enacted “to
amend the felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) Senate Bill 1437 also added former section 1170.95, which allows
those “convicted of felony murder or murder under a natural and probable consequences
theory [to] file a petition with the court that sentenced the petitioner to have the
petitioner's murder conviction vacated and to be resentenced on any remaining counts
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 [s]ection 188 or 189
made effective January 1, 2019.” (Former § 1170.95, subd. (a); Stats. 2018, ch. 1015,
§ 4.)
Former section 1170.95 includes a prima facie determination. Under subdivision
(c), the trial court must appoint the defendant counsel if requested, take briefing from the
parties, and then determine whether “the petitioner makes a prima facie showing that he
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or she is entitled to relief.” (Former § 1170.95, subd. (c).) In performing this preliminary
screening function, courts are not limited to the allegations of the petition; rather, they
may “rely on the record of conviction in determining whether that single prima facie
showing is made.” (People v. Lewis (2021) 11 Cal.5th 952, 970 (Lewis).) Thus, if the
record of conviction establishes the petition lacks merit, the trial court may deny the
petition without conducting further proceedings. (Id. at p. 971.)
“[W]hen assessing the prima facie showing, the trial court should assume all facts
stated in the [former] section 1170.95 petition are true. [Citation.] The trial court should
not evaluate the credibility of the petition’s assertions, but it need not credit factual
assertions that are untrue as a matter of law—for example, a petitioner’s assertion that a
particular conviction is eligible for relief where the crime is not listed in subdivision (a)
of [former] section 1170.95 as eligible for resentencing.” (People v. Drayton (2020) 47
Cal.App.5th 965, 980, disapproved on other grounds in Lewis, supra, 11 Cal.5th at
p. 963.) The “authority to make determinations without conducting an evidentiary
hearing pursuant to [former] section 1170.95, subd[ivision ](d) is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).” (Ibid.)
“If, accepting the facts asserted in the petition as true, the petitioner would be
entitled to relief because he or she has met the requirements of [former] section 1170.95[,
subdivision ](a), then the trial court should issue an order to show cause. ([Former]
§ 1170.95[, subd. ](c).) Once the trial court issues the order to show cause under [former]
section 1170.95[, subdivision ](c), it must then conduct a hearing pursuant to the
procedures and burden of proof set out in [former] section 1170.95, subd[ivision ](d)
unless the parties waive the hearing or the petitioner’s entitlement to relief is established
as a matter of law by the record. ([Former] § 1170.95, subd. (d)(2).)” (People v.
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Drayton, supra, 47 Cal.App.5th at pp. 980-981.) At the evidentiary hearing, either party
“may . . . offer new or additional evidence” but “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is . . . ineligible for
resentencing.” (Former § 1170.95, subd. (d)(3).)
Our Supreme Court has explained that former section 1170.95, subdivision (c)
requires “only a single prima facie showing.” (Lewis, supra, 11 Cal.5th at p. 962.) A
trial court “may look at the record of conviction after the appointment of counsel to
determine whether a petitioner has made a prima facie case for [former] section 1170.95
relief, [but] the prima facie inquiry under 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.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citations.] ‘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.) “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.’ ” (Id. at p. 972.)
B. Analysis
Here, defendant filed a facially sufficient petition alleging the essential facts
required for relief under former section 1170.95, subdivision (a). The court appointed
counsel for defendant and, after receiving a motion to dismiss from the People, directed
the parties to submit briefing on whether defendant, who was convicted of attempted
murder, was even eligible for relief under former section 1170.95. After reviewing the
parties’ briefs, the court determined defendant was ineligible for relief as a matter of law.
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In reaching its decision, the court noted defendant admitted to personal use of a knife in
the commission of the crime and based on the factual bases for his codefendants’ pleas,
defendant was one of the two people who stabbed the victim in an attempt to murder
them.
As the People concede, the court erroneously considered evidence outside the
record of conviction in order to reach its decision. (Former § 1170.95, subd. (c).) The
People thus agree the court’s order should be reversed and the matter remanded for
further proceedings. The People, however, do not agree we should direct the trial court
on remand to issue an order to show cause. The People argue we should remand the
matter and direct the trial court to reconsider defendant’s petition anew, in light of Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551; Senate Bill 775). We agree.
The trial court issued its decision before the Supreme Court’s decision in Lewis,
and before the passing of Senate Bill 775. Both Lewis and Senate Bill 775 carefully
describe the procedures required for considering and evaluating a former section 1170.95
petition. (Former § 1170.95, subds. (b) and (c).) Senate Bill 775 also amended former
section 1170.95 to clarify that an attempted murder conviction was within the reach of
the newly enacted former section 1170.95. (See People v. Coley (2022) 77 Cal.App.5th
539, 544; see also Senate Bill 775.) The trial court should be given the opportunity to
evaluate defendant’s former section 1170.95 petition with the benefit of this new
information. If the court determines defendant has, in fact, presented a prima facie case
for relief, the court must then issue an order to show cause and proceed accordingly.
(Former § 1170.95, subds. (c) and (d).)
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III. DISPOSITION
The trial court’s order denying defendant’s former section 1170.95 petition is
reversed. The case is remanded with directions for the trial court to reconsider
defendant’s former section 1170.95 petition in light of the changes brought about by
Senate Bill 775.
/S/
RENNER, J.
We concur:
/S/
HOCH, Acting P. J.
/S/
KRAUSE, J.
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