Filed 10/6/23 P. v. Reed CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085353
Plaintiff and Respondent,
(Super. Ct. No. 12CM3586HTA)
v.
DUPRI NYARI REED, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Robert S. Burns,
Judge.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, Erin R. Doering and Amanda D. Cary, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
* Before Hill, P. J., Peña, J. and Meehan, J.
INTRODUCTION
Appellant and defendant Dupri Nyari Reed (defendant) was charged with
premeditated attempted murder with a firearm enhancement and a prior strike conviction.
In 2013, he entered into a negotiated disposition and pleaded guilty to attempted murder
without the premeditation allegation, and admitted a firearm enhancement. The trial
court dismissed the prior strike conviction and sentenced him to 19 years in prison.
In 2022, the trial court denied his petition for resentencing filed pursuant to Penal
Code1 section 1172.6, and found he was ineligible for resentencing because he was the
actual shooter. In doing so, the court relied on a stipulation about the factual basis made
at defendant’s change of plea hearing in 2013, that there was circumstantial evidence he
was the actual shooter; and defense counsel’s stipulation at the section 1172.6 hearing,
that the court could consider the probation report’s factual summary in making the prima
facie determination that stated he was the actual shooter and no one else was charged in
the case.
On appeal, defendant alleges he never stipulated at the plea hearing that he was the
actual shooter, and the trial court improperly made factual findings when it denied his
petition. The People assert the court properly relied on defendant’s stipulation at the plea
hearing that he was the actual shooter, and also on the stipulation at the hearing on his
petition that the court could consider the probation report’s factual summary that quoted a
witness as identifying defendant as the shooter.
We find the change of plea transcript is part of the record of conviction, and the
trial court properly denied defendant’s section 1172.6 petition based on defendant’s
1 All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant filed his petition in 2022 under former section 1170.95, which was renumbered
as section 1172.6 without substantive change on June 30, 2022. (People v. Saibu (2022)
81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current
number throughout this opinion unless otherwise indicated.
2.
stipulation to the factual basis at the plea hearing. To the extent the court erroneously
relied on the probation report’s factual summary, such reliance was not prejudicial.
FACTS2
According to the probation report’s factual summary, defendant had a dispute with
Shambra Reed about his efforts to contact her minor daughter.3 The dispute led to an
incident where multiple gunshots were fired into Reed’s residence while she was present
with several minor children. A witness identified defendant as the gunman.
PROCEDURAL BACKGROUND
On October 5, 2012, a felony complaint was filed in the Superior Court of Kings
County charging defendant with counts 1 through 5, premeditated attempted murder with
firearm enhancements, and other felony offenses.
Defendant waived a preliminary hearing.
On November 5, 2012, the information was filed that charged defendant with
counts 1 through 6, premeditated attempted murder of, respectively, Reed, Malik Tapia,
and Jane Does 1 through 4 (§§ 187, subd. (a), 664) with special allegations as to each
count that defendant personally and intentionally discharged a firearm, a handgun
(§ 12022.53, subd. (c)), and personally used a firearm (§§ 12022.53, subd. (b), 12022.5,
subd. (a)(1)).
Defendant was also charged with count 7, shooting at an inhabited dwelling
(§ 246) with personal use of a firearm (§ 12022.5, subd. (a)); count 8, criminal threats to
2 Defendant waived a preliminary hearing, and the following facts are from the
probation report’s factual statement. As we discuss, one of the issues in this appeal is
whether the court could properly rely on that factual statement to determine whether
defendant’s petition stated a prima facie case for resentencing. We need not reach that
issue for reasons explained below, but quote from the probation report’s factual statement
only to place the parties’ arguments in context.
3 Reed was not related to defendant.
3.
Reed (§ 422) with a gang enhancement (§ 186.22, subd. (b)(1)); and count 9, active
participation in a criminal street gang (§ 186.22, subd. (a)) with a prior strike conviction.
Change of Plea Hearing
On June 11, 2013, the trial court convened a hearing and the prosecutor stated the
parties had reached a negotiated disposition. There is nothing in the record to indicate
defendant signed a change of plea form. Instead, the prosecutor and defense counsel
advised the court about the terms of the negotiated disposition.
The prosecutor gave a detailed recitation of the negotiated disposition. She moved
to amend the information to strike the premeditation allegation alleged as to count 1,
attempted murder of Reed, and amend the firearm enhancement for count 1 to state
defendant personally used a firearm within the meaning of section 12022.5,
subdivision (a). The prosecutor stated defendant would plead guilty to the amended
count 1 and admit the amended firearm enhancement for a stipulated term of 19 years,
based on the upper terms of nine years for count 1 and 10 years for the firearm
enhancement. The other charges and allegations, including the prior strike conviction,
would be dismissed in the interests of justice, subject to a waiver pursuant to People v.
Harvey (1979) 25 Cal.3d 754 for purposes of sentencing and the victim impact
statement.4
Defense counsel agreed that defendant would plead to count 1, attempted murder,
for the nine-year sentence, and admit the amended personal use enhancement for the
10-year term, for a stipulated term of 19 years and the dismissal of the prior strike
conviction and the other charges.
4 “A Harvey waiver permits the sentencing court to consider the facts underlying
dismissed counts and enhancements when determining the appropriate disposition for the
offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007)
155 Cal.App.4th 160, 167.)
4.
The trial court granted the amendments, and advised defendant of his
constitutional rights and the consequences of his plea. Defendant said he understood and
waived his rights.
The Factual Basis5
Next, the trial court asked if there was a factual basis for the plea, and the
following exchange occurred between the court, the prosecutor, and defense counsel.
“THE COURT: Factual basis, please?
“[THE PROSECUTOR]: Yes, your Honor. [¶] Had the case
proceeded to trial, witnesses have testified that on September 30 of 2012,
the defendant, through circumstantial evidence of previous actions, did
approach a house that Shambra Reed lived in, with a handgun, and shot at
her and the house. In front of the house were approximately three to
five children who were in the line of fire, and that was in the County of
Kings.
“THE COURT: Okay. [¶] And do you concur, [defense counsel]?
“[DEFENSE COUNSEL]: I concur [with] the prosecution. This is a
[People v.] West [(1970) 3 Cal.3d 595] plea, but I concur that the
prosecution would present evidence by way of testimony and circumstantial
that would injure my client at trial.
“THE COURT: That would what[?]
“[DEFENSE COUNSEL]: Could result in a conviction at trial.”
(Italics added.)
The court then addressed defendant.
“THE COURT: [Defendant], this is the situation. [¶] Before I
accept the agreement and your plea, I have to be certain that the district
attorney can prove their portion of the case at trial. [¶] In other words, a
jury could believe the evidence that they’re going to present to show that
5 As we discuss below, when the trial court considered defendant’s section 1172.6
petition, it relied on the following discussion about the factual basis to find defendant was
ineligible for resentencing because he admitted he was the actual shooter when he entered
his plea.
5.
you could be charged with attempted murder as well as personal use of a
gun. Okay?
“THE DEFENDANT: Yes, sir.
“THE COURT: [The prosecutor has] told me that these are the
facts that they would present through circumstantial evidence and
everything else. [¶] Remember, circumstantial evidence is just as good as
direct evidence. I assume you’ve talked with your attorney about this case.
I assume you guys have talked about what could happen in front of a jury.
“THE DEFENDANT: Yes.
“THE COURT: Given the nature of these charges?
“THE DEFENDANT: (Nods affirmatively.)
“THE COURT: I assume taking all that into consideration that this
was, this would probably be your best bet; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. [¶] At this point in time, the [c]ourt does
find that there is a factual basis upon the agreement of the parties in this
matter. [¶] Is that correct, [defendant]?
“THE DEFENDANT: Yes, sir.” (Italics added.)
The trial court found defendant knowingly and voluntarily waived his rights, and
understood the nature and consequences of his plea.
Defendant then pleaded guilty to count 1, attempted murder, and admitted the
personal use enhancement. The trial court granted the prosecution’s motion to dismiss
the remaining charges and the prior strike conviction.
Sentencing Hearing
On July 26, 2013, the trial court imposed the upper term of nine years for
attempted murder, plus the upper term of 10 years for the section 12022.5, subdivision (a)
enhancement, for an aggregate term of 19 years, consistent with the negotiated
disposition. Defendant did not file an appeal from the judgment.
6.
PETITION FOR RESENTENCING
On May 2, 2022, defendant filed, in propria persona, a petition for resentencing of
his attempted murder conviction under section 1172.6 and requested appointment of
counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that (1) he was eligible for resentencing because a complaint,
information, or indictment was filed that allowed the prosecution to proceed under a
theory of felony murder, murder under 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, or attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
The trial court appointed the public defender’s office to represent appellant, and
provided for further briefing.
The People’s Opposition
On August 9, 2022, the prosecution filed opposition to defendant’s petition, and
attached the reporter’s transcript from defendant’s change of plea hearing as a supporting
exhibit.
Factual Statement
The prosecution’s opposition contained a lengthy factual summary that stated
defendant was identified as the person who fired multiple gunshots at the home of Reed
while she was present with several children, after a dispute about trying to contact her
minor daughter. The prosecution’s opposition stated this factual summary was “included
for informative purposes only as it was taken from the police reports as [defendant]
7.
waived preliminary hearing and entered a guilty plea in l[i]eu of trial.” (Italics added.)
The prosecution did not attach the “police reports” as supporting exhibits.
The Prosecution’s Arguments
Based on the transcript of the change of plea hearing, the prosecution argued
defense counsel stipulated to the factual basis for the plea, including that he was the
actual shooter. The prosecution argued the trial court could rely on that stipulation and
the factual statement from the police reports to make the prima facie finding.
The prosecution argued the record of conviction showed defendant “was the actual
killer. [Defendant] stipulated to a factual basis [at the plea hearing] that the prosecution
would present evidence that he personally shot at Shambra Reed…. Given that [he]
stipulated to a factual basis [at the plea hearing], the court can properly consider” those
facts to determine whether he made a prima facie showing. Since defendant “stipulated
that he was the shooter and that he shot at Shambra Reed, the record shows that [he]
could still be convicted of attempted murder. The prosecution had no need to rely on a
natural and probable consequences theory of liability and nothing in the record suggests
that the prosecution did so.”
Defendant’s Reply
On August 22, 2022, defense counsel filed a reply to the prosecution’s opposition,
and attached the probation report as a supporting exhibit.
The Probation Report’s Factual Statement
Defense counsel’s opposition began by quoting the probation report’s factual
statement in its entirety.6 According to this factual statement, officers from the Hanford
Police Department responded to Reed’s residence on the evening of September 30, 2012.
6 As explained below, at the hearing on defendant’s section 1172.6 petition, defense
counsel stipulated the trial court could consider the probation report’s factual statement to
determine if the petition stated a prima facie case.
8.
Reed reported that shots were fired at her apartment; she did not see the actual shooting,
but she believed defendant was responsible.
Reed said defendant had previously left comments on her minor daughter’s social
media page that said he liked her and wanted to talk to her. Reed responded to the
messages, told defendant that her daughter was too young and she did not want him to
speak to her, and warned that he would “go to jail for the rest of his life if he kept
communicating with her daughter.” Reed said defendant continued to contact her
daughter on social media, and she again replied with a message to stay away or she
would call the police.
Reed reported that a few hours before the shooting, she was at her apartment when
she saw defendant across the street at his girlfriend’s residence, and he was drinking. Her
daughter also saw defendant and was scared he was there. Reed walked across the street
and told defendant to leave her daughter alone. According to Reed, defendant replied,
“ ‘F[***] this sh[**], I’m from Hanford Gangster Crips.’ The defendant continued
stating ‘you don’t know what I’m capable of, and I’ll spray this place up.’ Furthermore,
the victim told the defendant she would call the police and he told her he did not give a
‘f[***].’ The defendant stated he would be back and walked off.” (Italics omitted.)
Defendant left the area, and his girlfriend and her mother contacted Reed. They
warned Reed she should stay inside because defendant was going to come back and shoot
up the apartment. Reed did not take the warning seriously. Reed stayed outside, but then
went back inside her apartment to retrieve something while several children remained
outside. The children ran into the apartment and told her to get down, and she could hear
gunshots. They waited inside the apartment until the police arrived. While Reed never
saw who was shooting, she told officers that she suspected it was defendant.
“Officer Martinez also interviewed the daughter of the victim. She stated she was
outside with her friend when she noticed a man who was wearing a black hooded sweater
with his hood on covering his face, dark blue sweat pants and white socks. The victim’s
9.
daughter stated she could not see his face because of the hood, but she came to the
conclusion it could’ve been the defendant. The victim’s daughter and her friend went
back into the apartment, but as soon as she opened the door she turned around and saw
the defendant pointing a gun and starting to fire.” (Italics added.)
The probation report’s factual summary further stated that defendant turned
himself in to his parole agent. A police officer interviewed defendant and asked why he
turned himself in. Defendant said he heard a rumor that a lady said he shot at her, and
denied any involvement. Defendant said he was at the scene but never fired a gun, and
“he did not do anything wrong and he didn’t know why he was being booked into jail.
He further stated ‘If I had done what I am being detained for I would of not turned myself
in.’ ” (Italics omitted.)
Defense Counsel’s Arguments
In the reply brief, defense counsel argued that while defendant “admitted in his
plea that he intended to kill Shambra Reed with malice aforethought,” his petition still
made a prima facie case for resentencing because he entered his plea pursuant to West,
and the stipulation to the factual basis at the plea hearing did not undermine his petition.
Defendant pleaded to a generic charge of attempted murder, and that did not foreclose the
possibility the prosecution could have relied on the natural and probable consequences
doctrine to convict him.
Defense counsel also argued the probation report’s factual statement established
that defendant made a prima facie case for resentencing based on the following theory:
since defendant was standing in front of the house when the shots were fired, “where
approximately three to five children were in the line of fire,” the prosecution could have
argued that “it would be a natural and probable consequence for someone to die as a
10.
result of [defendant] shooting at Shambra Reed and the house with a handgun.” (Italics
added.)7
THE TRIAL COURT’S HEARING
On October 6, 2022, the trial court held a hearing on whether defendant’s petition
stated a prima facie case for resentencing.
The trial court stated it had reviewed defendant’s petition, the People’s opposition,
and defendant’s reply. The court further stated that while the parties had cited to police
reports and the probation report, “those are not admissible absent stipulation of the parties
for the prima facie hearing, or the evidentiary hearing as they are not a part of the record
of conviction, and they’re separate from the record of conviction, so the [c]ourt has not
considered those for today’s purposes.”
The trial court invited argument from the parties. Defense counsel argued the
petition stated a prima facie case even though defendant pleaded to committing an
offense with malice aforethought. Counsel further stated defendant entered his plea
pursuant to West, and “the evidence in my reply would suffice to show that he has made a
prima facie showing.” (Italics added.)
The trial court again stated there had to be “a stipulation from the parties if you’re
talking about either [the defense] statement[s] of facts, which I believe it said it was taken
from the police reports, or the [p]robation [d]epartment report that was attached. Those
don’t constitute a record, part of the record of conviction so they’re inadmissible. Right
now the only factual statement that I can see that the [c]ourt can consider [a]s part of the
7 Defendant has not relied on this argument on appeal. As the trial court later noted,
defendant was trying to rely on the doctrine of transferred intent, but it does not apply to
attempted murder. While the prosecution might have relied on a “kill zone” theory, that
theory requires proof the shooter had the specific intent to kill each victim identified in
each count of attempted murder.
11.
record of conviction is the [i]nformation that was filed, as well as the guilty plea from
June 11th, 2013 .…” (Italics added.)
The trial court asked the prosecutor “whether or not there is a stipulation or
agreement that the [c]ourt can consider either the factual summary as outlined in [defense
counsel’s] statement of facts in her reply to your opposition, or to the statement of facts
as contained in the probation report, which [defense counsel] attached.”
The prosecutor stated she would stipulate to the probation report if defense
counsel wanted the court to consider it. The trial court advised defendant about the
possible stipulation to the probation report:
“THE COURT: [The prosecutor] said if [defense counsel] wants me
to consider the statement of facts in her reply memorandum she filed, and
opposition to the People’s objection as being the facts of the case, as well
as the summation contained in the probation officer[’]s report, those are
normally documents that the [c]ourt can’t consider as evidence or factual
evidence, but [defense counsel] would like the [c]ourt to do so, and the
[prosecutor] says they have no objection to that. Is that agreeable with you
that I can consider those as factually the facts of this case?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay, so the [c]ourt will accept the stipulation of
the parties. … I didn’t look at the probation report previously because it
is not part of the record of conviction .…” (Italics added.)
The trial court reviewed the probation report, and again invited argument.
Defense counsel said the probation report’s factual summary established that defendant
made a prima facie showing and the court should order an evidentiary hearing under
section 1172.6.
The prosecutor replied that under normal circumstances, the trial court could not
consider the facts stated in the probation report, but “when the defendant stipulates to a
factual basis that becomes part of the record of conviction,” and cited the parties’ earlier
stipulation for the factual basis at defendant’s plea hearing.
12.
The prosecutor argued the transcript from the change of plea hearing showed
defendant “personally shot at the victim’s house and at her, and there is no way to impute
malice from [someone] else’s actions when that was the People’s soul [sic] theory of the
case.” The prosecutor argued the court could rely on defendant’s stipulation at the plea
hearing to find he was the actual shooter, and that the People could not have proceeded
on the natural and probable consequences theory.
The prosecutor also argued that the probation report’s factual summary did not
refer to a codefendant or anyone else alleged to have committed the offense, and a
codefendant was not charged in the case. “The case was based on the defendant shooting
at the victim, that is it. [Defendant] stipulated to that .…”
The Trial Court’s Denial of the Petition
The trial court denied defendant’s petition and found it failed to state a prima facie
case for resentencing, and made lengthy findings as to why he was ineligible for relief as
a matter of law.
“Obviously in California there is a couple of different ways you can
be convicted of a crime. You can be convicted of a crime as a perpetrator,
which is the person that actually committed the facts, or as an aider and
abetter [sic], which it sounds like someone that facilitated the crime. The
natural and probable consequences doctrine does not apply to perpetrators,
it applies to aiders and abetters [sic]. It is a form of vicarious liability, and
such that if someone agrees to do a robbery and during the course of that
robbery the participant or perpetrator kills somebody, and if it was a
reasonable, natural, forceable [sic] consequence that that homicide could
occur and that plan of robbery, then you’re liable for that particular crime.
“Part of the record of conviction in this case is the [i]nformation
itself, which not only does not have a co-defendant alleged in it, but the
practice in this … county, which has been the practice in this county since I
started here in 1994 is to alphabetize the charges so that if there is a
coparticipant or co-defendant charged there is an alpha designation next to
the case name A, B, C, D which is not present in this case.…
“I did consider the factual basis that was agreed to by [defendant] at
the time of the entry of his plea on June 11th, 2013. During that discourse
13.
there was no indication or mention of a coparticipant being involved, and
no co-defendant being charged, which would mean there would be no
theory of liability of natural, probable consequences that could have been
applied to [defendant]. The … reply to the opposition I think at the very
end makes a reference to there were other individuals out front, children out
front and that [defendant] could be prosecuted under the theory that he was
attempting to kill them, and that intent was applied to … the victim in the
count that he pled to. However, that is legally incorrect. At the time of his
plea, before the time of his plea, and currently that would require a
transferred intent, and transferred intent is not applicable to attempted
murder by long standing case law. The only other potential theory there
would be [is] a kill zone theory. However, a kill zone theory also does not
involve transferred intent or vicarious liability. A kill zone theory is based
upon concurrent specific intent to kill each individual victim within the kill
zone area, and therefore it is not a natural, probable consequence doctrine,
it is a concurrent specific individualized intent to kill .…
“It appears to me that the record of conviction before the [c]ourt
provides no basis on which [defendant] could be prosecuted under a
natural, probable consequences doctrine. Particularly giv[en] the absence
of pleadings which would have a co-defendant or coparticipant, or an
absence of any evidence before the [c]ourt that another individual was
involved, coupled with [defendant’s] agreement to the factual basis
provided at the time of the plea that he shot at Ms. Reed’s home
with Ms. Reed inside. There appears to be no basis for a natural, probable
consequences doctrine.
“That being the case, it would be as a matter of law that he would
not be available for the benefits of [section] 1172.6, because as a matter of
law there wasn’t a charging document filed for which … it could have been
proceeded upon natural and probable consequences.
“And the third element being that he couldn’t be convicted [under]
any other theory as a matter of law isn’t true. And because he couldn’t
have been prosecuted under natural and probable consequences, he could
only be prosecuted under the record before me as the perpetrator of the
shooting, not as an aider and abetter [sic]. And therefore natural and
probable consequences is not applicable.” (Italics added.)
On December 1, 2022, defendant filed a timely notice of appeal.
14.
DISCUSSION
Defendant contends the trial court improperly denied his petition based on the
alleged stipulation at the plea hearing in 2013, because he and his attorney never
stipulated to the prosecutor’s statement of the factual basis. He further argues that in
ruling on his section 1172.6 petition in 2022, the trial court never relied on the probation
report’s factual statement to make the prima facie determination, and the matter must be
remanded for an evidentiary hearing.
The People reply that based on the exchange about the factual basis at defendant’s
plea hearing, the record of conviction established that if the case had gone to trial, the
prosecution only could have proceeded under the theory that defendant was the actual
shooter and could not rely on the natural and probable consequences doctrine. The
People further argue that the probation report’s factual summary may be considered since
defendant stipulated to it at the section 1172.6 hearing, and it also supports the trial
court’s denial of the petition.
I. Section 1172.6
We begin with the applicable statutes. “Effective January 1, 2019, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) [Senate Bill 1437] amended the felony-murder rule by
adding section 189, subdivision (e). [Citation.] It provides that a participant in the
qualifying felony is liable for felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor;
or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. [Citation.] The Legislature also amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to section 188, which states
that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022)
13 Cal.5th 698, 707–708.)
15.
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” initially
codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708;
People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The initial version of former
section 1170.95 permitted “a person with an existing conviction for felony murder or
murder under the natural and probable consequences doctrine to petition the sentencing
court to have the murder conviction vacated and to be resentenced on any remaining
counts if he or she could not have been convicted of murder as a result of the other
legislative changes implemented by Senate Bill … 1437.” (People v. Flores (2020) 44
Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate
Bill 775) made substantive amendments to former section 1170.95 that were consistent
with Lewis, supra, 11 Cal.5th 952, and also “ ‘[c]larifie[d] that persons who were
convicted of attempted murder or manslaughter under a theory of felony murder and the
natural [and] probable consequences doctrine are permitted the same relief as those
persons convicted of murder under the same theories.’ ” (People v. Birdsall (2022) 77
Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further
substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 715, fn. 3.)
Section 1172.6, subdivision (a) thus states:
“(a) A person convicted of felony murder or murder under 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,
attempted murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining counts when all
of the following conditions apply:
16.
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder, murder under 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, or attempted murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder.
“(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to [s]ection 188 or 189 made
effective January 1, 2019.” (§ 1172.6, subd. (a).)8
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).)
After service of the petition, the prosecutor shall file and serve a response. The petitioner
may file and serve a reply after the response is served. (Id. at subd. (c).)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
The prima facie determination is a question of law, and the trial court may deny a
petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra,
11 Cal.5th at p. 966.) “As a matter of law, resentencing relief under section 1172.6 is not
available to an ‘actual killer.’ ” (People v. Garcia (2022) 82 Cal.App.5th 956, 973;
People v. Garrison (2021) 73 Cal.App.5th 735, 744.)
8 While not applicable herein, section 189 was amended to allow for felony-murder
liability where the victim is a peace officer. (§ 189, subd. (f).)
17.
If an order to show cause is issued, “the court shall hold a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter 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.…” (§ 1172.6, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection 188 or 189 made effective January 1, 2019. The admission of
evidence in the hearing shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing or trial that is admissible
under current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of the case recited
in any prior appellate opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from
the hearing as hearsay, unless the evidence is admissible pursuant to another exception to
the hearsay rule. The prosecutor and the petitioner may also offer new or additional
evidence to meet their respective burdens.…” (§ 1172.6, subd. (d)(3).)
II. Attempted Murder
In order to address defendant’s contentions, we review the theories of attempted
murder potentially applicable to this case.
The elements of attempted murder are the specific intent to kill (express malice)
and the commission of a direct but ineffectual act towards accomplishing the intended
killing. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Gonzalez (2012) 54 Cal.4th
643, 653, 664; People v. Beck and Cruz (2019) 8 Cal.5th 548, 642.) Implied malice
cannot support a conviction of attempted murder. (People v. Bland (2002) 28 Cal.4th
313, 327.)
18.
Natural and Probable Consequences Doctrine
Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime (the target offense), the natural and probable consequences of which was
attempted murder or murder (the nontarget offense), could be convicted of not only the
target crime but also of the resulting attempted murder or murder. (People v. Chiu (2014)
59 Cal.4th 155, 161, 166; People v. Gentile (2020) 10 Cal.5th 830, 843, 845; People v.
Prettyman (1996) 14 Cal.4th 248, 259, 262; People v. Coley (2022) 77 Cal.App.5th 539,
548.)
As explained above, Senate Bill 1437 amended section 188 to eliminate natural
and probable consequences liability for first and second degree murder. (People v.
Garrison, supra, 73 Cal.App.5th at p. 742.) Senate Bill 775, which became effective in
2022, “clarified Senate Bill 1437 by amending [former] section 1170.95 to make clear the
natural and probable consequences doctrine no longer supplies accomplice liability to
attempted murder.” (People v. Sanchez (2022) 75 Cal.App.5th 191, 193.) “Because
section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in
a crime, the natural and probable consequences doctrine cannot prove an accomplice
committed attempted murder. Accordingly, the natural and probable consequences
doctrine theory … is now invalid.” (Sanchez, at p. 196.)
Transferred Intent
As a separate matter, the common law doctrine of transferred intent has never been
applied to attempted murder. “To be guilty of attempted murder, the defendant must
intend to kill the alleged victim, not someone else.” (People v. Bland, supra, 28 Cal.4th
at pp. 323–324, 328; People v. Souza (2012) 54 Cal.4th 90, 120.) When a single act is
charged as an attempt on the lives of two or more persons, the intent to kill element must
be examined independently as to each alleged attempted murder victim. The transferred
intent doctrine does not apply, and the intent to kill cannot be “transferred” from
one attempted murder victim to another. (Bland, at pp. 327–328.)
19.
Kill Zone Theory
In contrast to the natural and probable consequences doctrine, the kill zone theory
does not impute malice to a defendant based solely on that defendant’s participation in
another crime. Instead, under the kill zone theory, a defendant may be convicted of the
attempted murder of an individual who was not the defendant’s primary target under
certain circumstances. (People v. Canizales (2019) 7 Cal.5th 591, 596.)
“[A] jury may convict a defendant under the kill zone theory only when the jury
finds that: (1) the circumstances of the defendant’s attack on a primary target, including
the type and extent of force the defendant used, are such that the only reasonable
inference is that the defendant intended to create a zone of fatal harm—that is, an area in
which the defendant intended to kill everyone present to ensure the primary target’s
death—around the primary target and (2) the alleged attempted murder victim who was
not the primary target was located within that zone of harm. Taken together, such
evidence will support a finding that the defendant harbored the requisite specific intent to
kill both the primary target and everyone within the zone of fatal harm.” (People v.
Canizales, supra, 7 Cal.5th at pp. 596–597, italics added.)
III. The Change of Plea Transcript
In denying defendant’s petition, the trial court partially relied on the transcript
from defendant’s change of plea hearing, and found the discussion about the factual basis
did not refer to another participant or perpetrator in the attempted murder, and defendant
was charged and convicted as the actual shooter.
Defendant contends the trial court erroneously relied on the plea hearing transcript
because he never stipulated to being the actual shooter and his plea was entered pursuant
to West. The People reply that at the plea hearing defendant conceded the prosecution
would introduce evidence implicating him as the shooter, and the prosecutor’s stated
factual basis meant that the prosecution was not going to proceed on any theories of
imputed malice.
20.
We turn to the record of conviction to determine if the trial court could have relied
on the change of plea transcript to find defendant was the actual shooter, and thus, his
petition failed to state a prima facie case.
A. The Prima Facie Inquiry and the Plea Transcript
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) 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.’ [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.” ’ ” (Ibid.)
“The record of conviction 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, supra, 11 Cal.5th at p. 971.)
The record of conviction includes the information, the transcripts for the change of
plea and sentencing hearing, and the abstract of judgment. (People v. Verdugo (2020) 44
Cal.App.5th 320, 329–330, overruled on other grounds by Lewis, supra, 11 Cal.5th at
pp. 962–963; People v. Abarca (1991) 233 Cal.App.3d 1347, 1350.) In addition, a
“prosecutor’s recitation of the alleged facts underlying the conviction,” made
“immediately before the court accepted [a] defendant’s guilty plea,” is also part of the
record of conviction, along with statements made by the defendant in entering a
negotiated disposition. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1120; People v.
Romero (2022) 80 Cal.App.5th 145, 153.)
21.
B. The Original Charge of Premeditated Attempted Murder
The initial information charged defendant with six counts of the premeditated
attempted murders of Reed and five other people; no other defendants were charged in
the case. If the prosecution had proceeded to trial for one or all of the originally charged
offenses of premeditated attempted murder, it had to prove his specific intent to kill the
victim of each count, and that he acted with premeditation, deliberateness, and
willfulness. “ ‘Willful’ is synonymous with ‘express malice’: in other words, a specific
intent to kill. [Citation.] Premeditation occurs when the [attempted] killing is
‘ “considered beforehand,” ’ and deliberation occurs when the decision to kill is
‘ “formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” [Citation.]’ ” (People v.
Mejia (2012) 211 Cal.App.4th 586, 604.)
If the prosecution had proceeded under a kill zone theory, it had to prove
defendant had the specific intent to kill everyone present to ensure the primary target’s
death. The transferred intent doctrine did not apply to attempted murder.
C. Defendant’s Plea
Defendant waived a preliminary hearing and there is no change of plea form in the
record. Defendant correctly states the record of conviction consists of the information,
amended information, and the transcript for the change of plea hearing.
At the beginning of the plea hearing, both the prosecutor and defense counsel
advised the trial court that defendant was entering into a negotiated disposition to plead to
an amended count 1, attempted murder of Reed without the premeditation allegation, and
admit the amended firearm enhancement, for a stipulated term of 19 years.
A “generic charge” of murder or attempted murder does not specify or exclude
any particular theory, and does not establish ineligibility for resentencing as a matter of
law. (See, e.g., People v. Flores (2022) 76 Cal.App.5th 974, 987; People v. Eynon
(2021) 68 Cal.App.5th 967, 971–972, 979.)
22.
At the time of his plea to attempted murder without premeditation in 2013, the
prosecution could have proceeded under the natural and probable consequences theory if
defendant acted as an aider and abettor of a perpetrator’s commission of the target crime,
and the attempted murder (the nontarget crime) was a natural and probable consequence
of the target crime. (People v. Chavez (2018) 22 Cal.App.5th 663, 683.)
If, however, defendant was the actual perpetrator of the attempted murder, he
would be ineligible for relief under section 1172.6 since he would have been convicted
based on his own intent to kill, and not as an aider and abettor where malice was imputed
from another person. The prosecution could not have relied on transferred intent, and the
“kill zone” theory required proof that defendant had the specific intent to kill each person
in that zone.
D. The Factual Basis
Defendant contends that he entered his plea pursuant to West, and the trial court’s
exchange with the parties about the factual basis was not relevant to the plea. “In In re
Alvernaz (1992) 2 Cal.4th 924, 932 …, the court characterized a West plea as ‘a plea of
nolo contendere, not admitting a factual basis for the plea.’ Such a plea, also referred to
as an Alford plea, based on North Carolina v. Alford (1970) 400 U.S. 25, 37–38 …,
allows a defendant to plead guilty in order to take advantage of a plea bargain while still
asserting his or her innocence. The absence of an admission of guilt has no effect on the
use of the resulting conviction as evidence in other criminal actions.” (People v. Rauen
(2011) 201 Cal.App.4th 421, 424.)
The minute order for the change of plea hearing contains a check in the box that
defendant’s plea was being entered pursuant to West, but the reporter’s transcript does not
clarify whether that was a term of the negotiated disposition. The parties stated the terms
of the negotiated disposition in detail, but neither the prosecutor nor defense counsel
stated the plea was being entered pursuant to West. Defendant pleaded guilty instead of
23.
no contest. There is no evidence defendant signed a change of plea form that addressed
whether the plea was being entered pursuant to West.
When the trial court questioned the prosecutor about the factual basis, defense
counsel did not object and state it was a West plea. Instead, the prosecutor stated the
factual basis was that if the case had gone to trial, witnesses would have testified that “the
defendant, through circumstantial evidence of previous actions, did approach a house that
Shambra Reed lived in, with a handgun, and shot at her and the house.…”
After the prosecutor stated the proposed factual basis, the trial court asked defense
counsel if he concurred. Defense counsel finally stated that it was a West plea, and
agreed the prosecution would present evidence that would “injure” defendant and
“[c]ould result in a conviction at trial.”
Defendant argues defense counsel never stipulated or admitted that defendant was
the actual shooter. While defense counsel did not make such a stipulation, the trial court
turned to defendant and directly questioned him about the factual basis, without objection
from counsel.
“THE COURT: [The prosecutor has] told me that these are the
facts that they would present through circumstantial evidence and
everything else. [¶] Remember, circumstantial evidence is just as good as
direct evidence. I assume you’ve talked with your attorney about this case.
I assume you guys have talked about what could happen in front of a jury.
“THE DEFENDANT: Yes.
“THE COURT: Given the nature of these charges?
“THE DEFENDANT: (Nods affirmatively.)
“THE COURT: I assume taking all that into consideration that this
was, this would probably be your best bet; is that correct?
“THE DEFENDANT: Yes, sir.
24.
“THE COURT: Okay. [¶] At this point in time, the [c]ourt does
find that there is a factual basis upon the agreement of the parties in this
matter. [¶] Is that correct, [defendant]?
“THE DEFENDANT: Yes, sir.” (Italics added.)
E. Analysis
Based on the trial court’s exchange with defendant about the factual basis,
defendant indicated his agreement and understanding that the prosecutor would introduce
certain evidence at trial. In doing so, he agreed that the factual basis included evidence
that he was the actual shooter, which prevented the prosecution from relying on the
natural and probable consequences doctrine as an aider and abettor.
Defendant contends that to the extent any stipulations or statements were made at
the plea hearing, the trial court engaged in impermissible fact finding to rely on these
statements to make the prima facie determination. As we have explained, however,
statements and stipulations made at a plea hearing are part of the record of conviction.
(People v. Roberts, supra, 195 Cal.App.4th at p. 1120; People v. Romero, supra, 80
Cal.App.5th at pp. 152–153.) A defendant’s admissions in entering a guilty plea
“pursuant to a negotiated plea” are not “ ‘ “stray comment[s]” ’ ”; to the contrary, they
are binding and part of the record of conviction. (Romero, at pp. 152–153.) We agree
with the People that “[t]he record of conviction shows that had this case gone to trial, the
prosecution could have only proceeded under a theory that [defendant] was the actual
and only perpetrator of the attempted murder.” (Italics added.)
As a result, defendant was ineligible for resentencing as a matter of law, and the
trial court properly denied his petition without issuing an order to show cause because the
record of conviction establishes defendant was not convicted of attempted murder under
an imputed malice theory.
Given this conclusion, we need not reach the issue of whether the trial court and
parties could have stipulated to and relied on the hearsay statements in the probation
report’s factual summary to make the prima facie determination at the section 1172.6
25.
hearing. To the extent the court erroneously relied on the probation report, the error is
not prejudicial since the transcript from the change of plea hearing establishes that
defendant entered his plea as the actual shooter and not an aider and abettor. (Lewis,
supra, 11 Cal.5th at pp. 972–974; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The court’s order of October 6, 2022, denying defendant’s petition for
resentencing, is affirmed.
26.