Filed 9/11/23 P. v. King CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B323984
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA440138)
v.
DEMAUJAE KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert C. Vanderet, Judge. Reversed with
directions.
Richard B. Lennon, Olivia Meme, California Appellate
Project, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Ivan Ivri, Supervising Deputy
Attorney General, and Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________________
INTRODUCTION
Demaujae King appeals from the superior court’s order
denying his petition for resentencing under Penal Code section
1172.6 (former section 1170.95).1 The court denied the petition
without issuing an order to show cause. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. King Pleads No Contest to Voluntary Manslaughter
In July 2017 the People charged King, the driver, and
fellow gang member Calvin Lykes, the shooter, with murdering,
“unlawfully and with malice aforethought,” a rival gang member.
The People alleged King committed the murder for the benefit of,
at the direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist in criminal
conduct by gang members. The People also alleged a principal
personally used a firearm, within the meaning of section
12022.53, subdivisions (b) and (e)(1); a principal personally and
intentionally discharged a firearm, within the meaning of section
12022.53, subdivisions (c) and (e)(1); and a principal personally
and intentionally discharged a firearm causing great bodily
injury or death within the meaning of section 12022.53,
subdivisions (d) and (e)(1).
1 Statutory references are to the Penal Code.
2
In October 2018, pursuant to a negotiated agreement, King
pleaded no contest to an amended information charging him with
voluntary manslaughter. King also admitted allegations that he
used a firearm, within the meaning of section 12022,
subdivision (a)(1), and that he committed the offense for the
benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in criminal conduct by gang members, within the meaning of
section 186.22, subdivision (b)(1)(C). The trial court sentenced
King, pursuant to the plea agreement, to a prison term of 22
years, consisting of the upper term of 11 years, plus 10 years for
the gang enhancement and one year for the firearm-use
enhancement.
B. The Superior Court Denies King’s Petition Under
Section 1172.6
In May 2021 King filed a petition for resentencing under
section 1172.6. Using a printed form, King checked boxes
alleging that a complaint, information, or indictment was filed
against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; that he pleaded guilty or
no contest to first or second degree murder in lieu of going to trial
because he believed he could have been convicted of first or
second degree murder at trial under the felony-murder rule or
the natural and probable consequences doctrine; and that he
could not now be convicted of first or second degree murder
because of changes to sections 188 and 189. King further alleged
that he was not the actual killer; that he did not, with the intent
to kill, aid and abet the killer; and that he was neither a major
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participant in the felony nor acted with reckless indifference to
human life. King also asked the superior court to appoint counsel
to represent him during the resentencing proceeding.
The superior court appointed counsel to represent King,
and the People filed an opposition to the petition. The People
argued that the prosecution did not pursue a theory of felony
murder or murder under the natural and probable consequences
doctrine and that King was ineligible for relief because, “[g]iven
the testimony provided at the preliminary hearing,” the court
held King to answer “for murder under the theory [of] direct
aiding and abetting.” The People argued that the evidence at the
preliminary hearing showed King acted with malice and that the
court would not have held King to answer unless it believed he
acted with malice.2
2 Because King pleaded no contest to voluntary
manslaughter, there is no trial transcript. King argues the
superior court cannot rely on the preliminary hearing transcript.
(See People v. Flores (2022) 76 Cal.App.5th 974, 991 [a court may
not rely on the preliminary hearing transcript to find the
defendant is not eligible for relief under section 1172.6 at the
prima facie stage, even where the defendant stipulates the
transcript provides a factual basis for a plea]; People v. Eynon
(2021) 68 Cal.App.5th 967, 975-976 [holding a defendant to
answer at the preliminary hearing “does not constitute a factual
finding that the allegation is true” or “even constitute a
determination that the allegation is supported by substantial
evidence”]; People v. Rivera (2021) 62 Cal.App.5th 217, 226, 238
[a court may not rely on a grand jury transcript to find the
defendant is not eligible for relief under section 1172.6 at the
prima facie stage, even where the defendant stipulates the grand
jury transcript provides a factual basis for a plea], review granted
4
Counsel for King filed a response, arguing the court’s
determination of probable cause at the preliminary hearing did
not establish as a matter of law King had the intent to kill.
Counsel argued that “[p]reliminary hearings are not fact-finding
mechanisms as are trials,” that certain evidence at the
preliminary hearing was hearsay, that had King not pleaded
no contest he “could have been convicted of murder or attempted
murder,” and that his no contest plea did not preclude relief
under section 1172.6.
The superior court denied King’s petition for resentencing
without issuing an order to show cause. The court ruled section
1172.6 was “inapplicable because the defendant was not
convicted under either felony murder or a natural and probable
consequences theory, so there is no basis for resentencing.” King
timely appealed.
June 9, 2021, S268405, review dism. Jan. 19, 2022; see generally
Flores, at p. 989 [courts “are split on the import of the
preliminary hearing transcript in determining whether a
petitioner has made a prima facie case for resentencing” under
section 1172.6].) The People argue the court can. (See People v.
Pickett (2023) 93 Cal.App.5th 982, ___ [2023 WL 4699902, p. 4] [a
court can rely on a preliminary hearing transcript in certain
circumstances]; People v. Davenport (2021) 71 Cal.App.5th 476,
481 [a court may rely on a preliminary hearing transcript where
the defendant admits the transcript provides the factual basis for
the plea].) The Supreme Court has agreed to decide the issue.
(See People v. Patton (2023) 89 Cal.App.5th 649, review granted
June 28, 2023, S279670.)
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DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th
981, 984; People v. Gentile (2020) 10 Cal.5th 830, 842-843) and
significantly narrowing the felony-murder exception to the malice
requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see
People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) Section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
an individual’s participation in a crime and requires proof of
malice to convict a principal of murder, except under the revised
felony-murder rule in section 189, subdivision (e). The latter
provision requires the People to prove that the defendant was the
actual killer (§ 189, subd. (e)(1)); that the defendant, though not
the actual killer, with the intent to kill assisted in the
commission of the murder (§ 189, subd. (e)(2)); or that the
defendant was a major participant in a felony listed in
section 189, subdivision (a), and acted with reckless indifference
to human life, “as described in subdivision (d) of Section 190.2,”
the felony-murder special-circumstance provision. (§ 189,
subd. (e)(3); see Strong, at p. 708; Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony
murder or murder, attempted murder, or voluntary
manslaughter based on the natural and probable consequences
doctrine, “or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime,” to
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petition the superior court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder because of the changes the Legislature
made to the definitions of the crime. (See People v. Strong, supra,
13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v.
Gentile, supra, 10 Cal.5th at p. 843.) If a section 1172.6 petition
contains all the required information, the court must appoint
counsel to represent the petitioner if requested. (Lewis, at
pp. 962-963; see § 1172.6, subd. (b)(1)(A), (3).) The prosecutor
must then file a response to the petition, the petitioner may file a
reply, and the court must hold a hearing to determine whether
the petitioner has made a prima facie showing he or she is
entitled to relief. (§ 1172.6, subd. (c).)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“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.”’” (Lewis, supra, 11 Cal.5th at
p. 971.) The court may consider the record of conviction, which
will “necessarily inform the trial court’s prima facie inquiry
under section [1172.6], allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.”
(Lewis, at p. 971; see People v. Williams (2022) 86 Cal.App.5th
1244, 1251.) “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.’” (Lewis, at p. 972; see People v. Eynon (2021)
68 Cal.App.5th 967, 975.)
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“Nevertheless, the court may appropriately deny a petition
at the prima facie stage if the petitioner is ineligible for relief as a
matter of law. ‘“[I]f 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,’”’ thereby deeming the
petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th
45, 52 (Harden); see Lewis, supra, 11 Cal.5th at p. 971.) We
review de novo an order denying a petition under section 1172.6
petition without issuing an order to show cause. (Harden, at
p. 52; People v. Coley (2022) 77 Cal.App.5th 539, 545.)
B. The Superior Court Erred in Denying King’s Petition
at the Prima Facie Stage
King argues that the record did not foreclose the possibility
that, had he proceeded to trial, he could have been tried and
convicted of murder under a natural and probable consequences
or felony murder theory and that the generic charge of murder
against him did not “conclusively establish the theory upon which
[he] was convicted,” but instead “would have allowed the
prosecution to pursue conviction on any theory.” The People
agree. They state: King “pleaded no contest to manslaughter
under circumstances where, if the case had gone to trial on the
murder charge, the prosecution could have plausibly proceeded
under a natural and probable consequences theory of aiding and
abetting. Thus, he is not necessarily ineligible for section 1172.6
relief as a matter of law. [Citation.] The judgment should be
reversed and the matter remanded for the superior court to hold
an evidentiary hearing under section 1172.6, subdivision (d)(3).”
We agree too. The information charging King with murder
allowed the prosecution to proceed on a theory of felony murder
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or under the natural and probable consequences doctrine at trial.
“‘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.’ [Citation.] The
generic manner for charging murder, however, does ‘not limit the
People to prosecuting [defendant] on any particular theories.’
[Citation.] ‘[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.’” (People v. Davenport (2021)
71 Cal.App.5th 476, 484; see People v. Rivera (2021)
62 Cal.App.5th 217, 233 [“despite the fact that the indictment
charged [the defendant] with murder committed with malice
aforethought, it allowed the prosecution to proceed on any theory
of murder”], review granted June 9, 2021, S268405, review dism.
Jan. 19, 2022; see also People v. Didyavong (2023) 90 Cal.App.5th
85, 96, fn. 4 [“A murder charged generically does not limit the
prosecution to any particular theories of liability.”], review
granted June 28, 2023, S280047.)
And by pleading no contest to voluntary manslaughter,
King did not admit he acted with malice (People v. Nelson (2016)
1 Cal.5th 513, 538) or guilt under any specific theory (cf. People v.
Flores (2022) 76 Cal.App.5th 974, 987 [petitioner was not
ineligible for relief where, “[i]n entering his plea, petitioner did
not admit to or stipulate to any particular theory of murder”];
People v. Eynon, supra, 68 Cal.App.5th at p. 977 [petitioner who
pleaded to a charge that he “did willfully, unlawfully, and with
deliberation, premeditation, and malice aforethought murder” the
victim was not ineligible for resentencing as a matter of law
because the charge was a “generic murder charge [that] allowed
9
the prosecution to proceed on any theory of liability, including
natural and probable consequences”]). As the People
acknowledge, King’s plea and admissions “did not necessarily
require [King] to concede that he acted with actual malice”; his
plea and admissions “could also be consistent with the theory
that [King] intended to aid and abet Lykes commit an assault
with a firearm, and Lykes then committed the murder.” King,
like the petitioner in Eynon, “did not admit facts supporting
liability on any particular theory, and the generic pleading
encompassed theories—such as natural and probable
consequences . . .—that did not require the defendant to have
acted with malice.” (Eynon, at p. 977.) As the People concede,
the superior court erred in denying King’s petition under section
1172.6 at the prima facie stage without issuing an order to show
cause.
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DISPOSITION
The order denying King’s petition under section 1172.6 is
reversed. The superior court is directed to vacate its order
denying the petition, issue an order to show cause, and conduct
further proceedings in accordance with section 1172.6,
subdivision (d).
SEGAL, Acting P. J.
We concur:
FEUER, J.
MARTINEZ, J.
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