People v. Hurley CA4/2

Filed 6/22/23 P. v. Hurley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E079223

v. (Super.Ct.No. FWV1503052)

TAJH ABRAHAM HURLEY, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Reversed and remanded with directions.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, and Robin Urbanski, Deputy Attorney General, for

Plaintiff and Respondent.

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 I. INTRODUCTION

Defendant and appellant, Tajh Abraham Hurley, filed a petition for resentencing

pursuant to Penal Code former section 1170.95,1 which the court denied. After defense

counsel filed a notice of appeal, this court appointed counsel to represent defendant.

Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),2 setting forth a

statement of the case and one potentially arguable issue: whether the court erred in

denying the petition. We offered defendant the opportunity to file a personal

supplemental brief, which he has not done.

After we exercised our discretion to independently review the record for error,3 we

ordered the parties to brief the following issues: (1) whether the court erred in

determining that defendant was prima facie ineligible for section 1172.6 relief, in part,

based on defendant’s “admission” to having acted with malice; (2) whether the court

erred in denying defendant’s petition based, in part, on its own memory of the case;

1 All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and
renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)

2 In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California
Supreme Court held that Wende and Anders procedures do not apply to appeals from the
denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.)

3 “[I]f the appellate court wishes, it may also exercise its discretion to conduct its
own independent review of the record in the interest of justice.” (Delgadillo, supra, 14
Cal.5th at p. 230; id at p. 232 [“[I]t is wholly within the court’s discretion [to] conduct[]
its own independent review of the record in any individual section 1172.6 appeal.”]; id. at
p. 233, fn. 6 [“[T]he decision to conduct independent review is solely up to the discretion
of the Courts of Appeal . . . .”].)

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(3) whether the court erred in denying the petition based, in part, on defendant’s

admission to a personal use of a firearm enhancement; and (4) whether, if there was any

error, this court could deem the error harmless in reliance on the evidence contained in

the preliminary hearing transcript, which defendant stipulated would form the factual

basis for the plea.

Defendant contends the court erred in finding he admitted to acting with malice,

and in denying the petition, in part, on defendant’s admission to a personal use of a

firearm enhancement. Defendant additionally maintains that, to the extent it did so, the

court erred in relying on its own memory of the case in denying the petition. Finally,

defendant argues the errors cannot be deemed harmless in reliance on the preliminary

hearing transcript because it consisted entirely of inadmissible hearsay.

The People concede that the court erred to the extent it relied on defendant’s

“admission” to having acted with malice, and in relying on the court’s own memory of

the case. However, the People maintain, under the facts of this case, defendant’s

admission to a personal use of a firearm enhancement rendered him ineligible for relief.

Moreover, the People argue this court can conclude that any error was harmless in proper

reliance upon the evidence adduced at the preliminary hearing. We reverse and remand

the matter for an evidentiary hearing.

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 II. FACTUAL AND PROCEDURAL BACKGROUND4

On August 1, 2015, an officer responded to a call regarding possible gunshots.

The officer contacted the homeowner, defendant’s mother; she indicated defendant had

been at the home earlier in the day while her boyfriend, the victim, was present.

Defendant had been speaking angrily to the victim. He asked the victim if he was

willing to die for defendant’s mother. Defendant pulled out a handgun and shot the

victim three times at point blank range.

Defendant left the residence. The victim incurred three gunshot wounds. Another

officer responded to the emergency room where the victim identified defendant as the

shooter.

The People charged defendant by information with attempted, premediated murder

(§§ 664/187, subd. (a); count 1) and assault with a firearm (§ 245, subd. (a)(1); count 2).

The People additionally alleged, as to the count 1 offense, that defendant had personally

used a firearm (§12022.53, subd. (b)), personally and intentionally discharged a firearm

(§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm which

caused great bodily injury (§ 12022.53, subd. (d)). As to count 2, the People alleged

defendant had personally inflicted great bodily injury (§ 12022.7, subd. (a)).

On August 2, 2019, pursuant to a negotiated plea agreement, defendant pled no

contest to attempted murder without premeditation and deliberation (§§ 664/187) and

admitted that he personally used a firearm in his commission of the offense (§ 12022.53,

4 Counsel stipulated that the preliminary hearing transcript would provide a
factual basis for the plea.

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subd. (b)). In return, as provided in the plea agreement, the court dismissed the

remaining count and allegations; the court sentenced defendant to 19 years of

imprisonment.

On May 19, 2022, defendant filed a form petition for resentencing pursuant to

former section 1170.95. At a hearing on June 16, 2022, the People noted, “It’s here for a

1437. However, the defendant did plead to personal discharge of a firearm, so I do not

believe he qualifies.”

The court responded, “I remember I took the plea.” The court asked defense

counsel for his position. Defense counsel responded, “Nothing the [district attorney] said

is incorrect. I’m ready for determination of prima facie today. I object to reasoning.”

The court stated, “I believe it was filed as an attempted murder from the get-go; it

wasn’t a plea to an alternate charge, . . . he admitted to malice and a personal use of a

firearm. I would be inclined to find no prima facie in the case, and deny it at this point.”

III. DISCUSSION

A. General Law

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the

felony-murder rule to effectuate the Legislature’s declared intent ‘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.’ ” (People v. Strong (2022) 13 Cal.5th 698, 707-708.)

“Senate Bill 1437 also created a special procedural mechanism for those convicted under

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the former law to seek retroactive relief under the law as amended. [Citations.] Under

newly enacted section 1172.6, the process begins with the filing of a petition containing a

declaration that all requirements for eligibility are met [citation], including 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,’ the effective date of

Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)

“While the 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 . . . relief, the

prima facie inquiry . . . 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.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on

credibility grounds without first conducting an evidentiary hearing.’ ” (People v. Lewis

(2021) 11 Cal.5th 952, 971 (Lewis).) “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.) “[T]he ‘prima facie

bar was intentionally and correctly set very low.’ ” (Ibid.)

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 B. Defendant’s “Admission” to Acting with Malice

Defendant contends the court erred in denying the petition based, in part, on its

finding that defendant acted with malice. The People concede the court erred in doing so.

We agree.

Defense counsel’s stipulation to an extrinsic document as a factual basis does not,

in and of itself, establish an admission by the defendant that he acted with malice.

(People v. Rivera (2021) 62 Cal.App.5th 217, 235 [defendant’s stipulation to the grand

jury transcript as the factual basis for his plea did not establish admission of malice]

(Rivera).)

Here, defendant pled no contest to attempted murder without premeditation and

deliberation. He never admitted that he acted with malice. Rather, counsel stipulated

that the preliminary hearing transcript would provide the factual basis for the plea.

Nothing in the preliminary hearing transcript includes an admission by defendant that he

acted with malice. Instead, any such determination would require a finding of fact,

which is prohibited at the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 972 [“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.’ ”].) Thus, the court erred in denying the petition, in part, on its finding that

defendant had acted with malice.

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 C. The Court’s Memory of the Case

Defendant contends that the court erred to the extent it denied the petition, in part,

based on its own memory of the case. The People concede the court erred to the extent it

did so. We agree.

A defendant “appropriately faults the superior court for relying on its recollection

of his trial . . . to determine whether he made the requisite prima facie showing for relief

under [former] section 1170.95 . . . .” (People v. Mancilla (2021) 67 Cal.App.5th 854,

867, fn. 4.; People v. Tarkington (2020) 49 Cal.App.5th 892, 911, fn. 15 [“Memory is

fallible, and obviously does not suffice. A court’s ruling on the first prima facie

eligibility showing must be based on the record in the case.”], abrogated on another

ground by Lewis, supra, 11 Cal.5th at pp. 963-965.)

Here, the court noted, “I remember I took the plea.” The court further stated, “I

believe it was filed as an attempted murder from the get-go; it wasn’t a plea to an

alternate charge, . . . he admitted to malice and a personal use of a firearm. I would be

inclined to find no prima facie in the case, and deny it at this point.” Thus, to the extent

the court’s denial of the petition was based on its memory of the case, the court erred.

D. Defendant’s Admission to a Personal Use of a Firearm Enhancement

Defendant contends the court erred to the extent it denied the petition, in part, on

defendant’s admission to a personal use of a firearm enhancement. The People maintain,

under the facts of this case, defendant’s admission to a personal use of a firearm

enhancement rendered him ineligible for relief. We agree with defendant.

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 “[A]lthough in theory, a finding that a defendant personally used a firearm does

not in itself prove a defendant is the actual killer [citation], the facts of a particular case

may support [] that conclusion.” (People v. Garrison (2021) 73 Cal.App.5th 735, 743.)

“[W]hen the record shows only one person displayed and used a gun and ‘[a]ll evidence

points to defendant . . . as the one with the gun,’ the true finding on a personal use

enhancement demonstrates that the defendant was the actual killer. [Citation.]” (Id. at

p. 744.)

“[A]n enhancement under section 12022.53, subdivision (d) does not require that

the defendant acted either with the intent to kill or with conscious disregard to life, it does

not establish that the defendant acted with malice aforethought.” (People v. Offley (2020)

48 Cal.App.5th 588, 598; People v. Davenport (2021) 71 Cal.App.5th 476, 485 [no

contest plea to second degree murder and section 12022.5, subd. (a), personal use

enhancement did not preclude eligibility for relief].) Someone personally uses a firearm

within the meaning of section 12022.53, subdivision (b), when he intentionally displays

the weapon in a menacing manner, hits someone with the weapon, or fires it.

(CALCRIM No. 3146.)

Here, defendant’s bare admission to a personal use of a firearm enhancement

under section 12022.53, subdivision (b), even with his no contest plea to attempted

murder, did not preclude him from relief as a matter of law because, without resort to

additional facts, it does not reflect that defendant was the actual shooter and/or harbored

a disqualifying mens rea. The People’s contention that the personal use of a firearm

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enhancement, under the facts of this case, rendered defendant ineligible for relief begs

the question of whether the court could rely on the facts garnered from the preliminary

hearing transcript at the prima facie stage. Thus, the court erred to the extent it concluded

that defendant’s admission to the personal use enhancement alone rendered him ineligible

for relief.

E. Reliance on the Preliminary Hearing Transcript

Defendant contends this court cannot find any error harmless in reliance upon the

facts contained in the preliminary hearing transcript. The People disagree. We agree

with defendant.

“Hearsay evidence that was admitted in a preliminary hearing pursuant to

subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made

admissible by another exception to the hearsay rule. [Citation.]” (People v. Flores

(2022) 76 Cal.App.5th 974, 986 (Flores).) “If such evidence may not be considered at an

evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we

fail to see how such evidence could establish, as a matter of law, a petitioner’s

ineligibility for resentencing at the prima facie stage.” (Id. at 988, fn. omitted

[preliminary hearing transcript relied upon by the People did not establish the defendant’s

ineligibility for resentencing as a matter of law].)

Since a “ ‘defendant is not required to personally admit the truth of the factual

basis of the plea, which may be established by defense counsel’s stipulation to a

particular document[,]’ ” “absent an indication that a defendant admitted the truth of

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particular facts, the stipulation to a factual basis for the plea does not ‘constitute[] a

binding admission for all purposes.’ ” (Rivera, supra, 62 Cal.App.5th at p. 235

[concluding that defense counsel’s stipulation to the grand jury testimony did not

correspond to an admission by the defendant to any of the evidence presented therein,

such that the defendant was not per se ineligible for relief at the prima facie stage],

quoting People v. French (2008) 43 Cal.4th 36, 50-51.)

Here, defendant did not admit the truth of the evidence adduced at the preliminary

hearing; rather, defense counsel merely stipulated that the preliminary hearing transcript

would provide the factual basis for the plea. The preliminary hearing transcript consists

of the testimony of two police officers relating what defendant’s mother and the victim

had told them. That testimony is, at most points, at least one layer of hearsay, and two

when the officer testified as to what defendant said to his mother. The evidence does not

exclude the possibility that defendant could have been convicted pursuant to a theory of

imputed malice. (Davenport, supra, 71 Cal.App.5th at p. 485.) Thus, the evidence is

inadmissible to prove that defendant is per se ineligible for relief at the prima facie

hearing stage. “To find petitioner ineligible for resentencing on this record would require

judicial factfinding, which is impermissible at the prima facie stage. [Citation.]” (Flores,

supra, 76 Cal.App.5th at pp. 991-992.)

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 IV. DISPOSITION

The order dismissing defendant’s petition is reversed. The matter is remanded

with directions to issue an order to show cause under section 1172.6, subdivision (c), and

to hold a hearing under section 1172.6, subdivision (d)(1).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

RAMIREZ
P. J.

MENETREZ
J.

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