Filed 10/17/23 P. v. Harris 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE,
Plaintiff and Respondent, C097002
v. (Super. Ct. No. NCR82211)
DAVID WAYNE HARRIS,
Defendant and Appellant.
Defendant David Wayne Harris pleaded no contest to attempted murder and
felony street terrorism. The trial court sentenced him to a stipulated term of 22 years
eight months in state prison. Defendant later filed a petition for resentencing under Penal
Code former section 1170.95 (now section 1172.6).1 The trial court denied the petition,
finding that defendant did not establish a prima facie claim for relief.
Defendant now contends that because nothing in the record of conviction
conclusively precludes him from relief as a matter of law, the trial court should have
1 Undesignated statutory references are to the Penal Code. The Legislature amended
former section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 551). Effective June 30, 2022, the Legislature renumbered
former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022,
ch. 58, § 10.) This opinion will refer to section 1172.6.
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issued an order to show cause and held an evidentiary hearing on the petition. To the
extent the trial court relied on the preliminary hearing transcript to find him ineligible for
resentencing, defendant argues the trial court engaged in improper weighing of evidence
and fact finding at the prima facie stage.
We will reverse and remand for the trial court to issue an order to show cause and
to conduct further proceedings to determine whether resentencing is warranted.
BACKGROUND
In July 2011, law enforcement responded to a stabbing at a McDonald’s restaurant
in Tehama County. The People charged defendant with attempted murder with malice
aforethought (§§ 664, 187, subd. (a) -- count 1), assault with a deadly weapon (§ 245,
subd. (a)(1) -- count 2), and street terrorism (§ 186.22, subd. (a) -- count 5). The
attempted murder charge included enhancement allegations for street terrorism (§ 186.22,
subd. (b)(5)), great bodily injury (§ 12022.7, subd. (a)), and personal use of a deadly
weapon, a knife (§ 12022, subd. (b)(1)). The assault charge included enhancement
allegations for great bodily injury (§ 12022.7, subd. (a)) and gang benefit (§ 186.22,
subd. (b)(1)(B)). Charges were also asserted against codefendants.
At the preliminary hearing, several police officers testified about statements made
by various witnesses. The victim, A.D., reported that four males jumped him and stabbed
him twice. One witness said she was with A.D. when several males approached them and
started fighting. Another witness told officers he saw several males fighting and yelled at
them to stop. Yet another witness told officers he noticed four males emerge from
underneath a bridge and approach the victim; they began to fight and one of the men
punched the victim with a stabbing motion.
Codefendant Jessica Watkins gave several statements to police officers. She
admitted being with C.P. and four young men -- defendant (a purported Norteño gang
member), J.C., R.D., and D.B. (known by the gang moniker “Droopy”) -- when the
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stabbing occurred.2 According to Watkins, defendant, J.C., R.D., and Droopy were
involved in the altercation with the victim, although she did not identify whether all four
actually attacked the victim. The group was in a car when defendant saw the victim and
said, “We’re going to stick this fool, we’re going to stab him.” At some point, she heard
J.C. say he had a knife. Watkins parked in the McDonald’s parking lot, and the four men
got out and walked towards a bridge or slough area when she heard defendant ask if
anyone had a knife. She later saw defendant attack the victim. The four men ran back to
the car and the group left; Watkins heard defendant telling the others to get rid of the
knife and she saw Droopy throw what Watkins believed to be a knife and pieces of a gun
out the car window.
Watkins’s sister told police officers that on the day of the stabbing Watkins told
her “one of our homies just stabbed a scrap.” Watkins’s sister claimed that she, Watkins,
and defendant were all Norteño gang members, and she thought defendant might have
stabbed someone to try to earn a gang tattoo.
C.P. reported she was with the group at the McDonald’s when the four men got
out of the car and chased the victim; defendant and Droopy were in the lead, and J.C. and
R.D. followed behind them. The victim either fell or was pushed to the ground, and C.P.
did not see anything after the victim was on the ground. When the four men returned to
the car, C.P. heard defendant say something that she understood to mean defendant had
stabbed the victim. C.P. saw Droopy throw a knife and gun out the car window, which
she said defendant had given to him. She also said defendant admitted to her that he
stabbed the victim.
Codefendant R.D. claimed he was in a car with defendant and the others when he
heard defendant say, “I know that fool,” after seeing the victim walking down the street.
2 Because some of those involved were or may have been minors at the time of the
incident, we refer to them by their initials. (See Cal. Rules of Court., rule 8.90(b)(9).)
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Defendant asked him if he had a knife. According to R.D., he and the three other men
got out of the car and hid behind bushes to wait for the victim. As the victim passed, they
charged him from their hiding spot; defendant and Droopy were in front and he and J.C.
were in the back. R.D. thought he saw the victim pull out a gun so he and J.C. slowed
down while defendant and Droopy chased the victim around a pickup truck; R.D. could
not see what happened behind the truck, but he later saw the victim holding his stomach
and bleeding. Defendant told R.D. he had stabbed the victim because he believed the
victim was a Sureño gang member.
Codefendant J.C. identified defendant as the person who stabbed the victim.
He said Droopy was also involved in the stabbing. After attacking the victim, the group
got back in their car and J.C. saw defendant with a bloody knife; defendant gave the knife
to Droopy to throw away. Defendant admitted to J.C. that he had stabbed the victim, and
J.C. believed the stabbing was gang related because both defendant and Droopy were
Norteño gang members.
Following his arrest, defendant told police he stabbed the victim two or three times
and then gave the knife to Droopy to throw over a bridge. Various Norteño gang indicia
were found on or in defendant’s possession when he was arrested. During the
preliminary hearing, a gang expert opined that the stabbing was for the benefit of a
criminal street gang.
In February 2012, defendant pleaded no contest to count 5 (street terrorism) and a
modified count 1 (attempted murder) in exchange for a stipulated term of 22 years eight
months in prison and dismissal of the remaining charges and allegations. As to count 1,
defendant specifically admitted that he committed the offense for the benefit of, at the
direction of, and in association with a criminal street gang with the specific intent to
promote, further, and assist in criminal conduct by gang members. He further admitted
that he personally caused great bodily injury. The trial court granted the parties’
request to strike “with malice aforethought” from the count 1 attempted murder charge
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and changed the associated gang enhancement allegation from section 186.22,
subdivision (b)(5) to section 186.22, subdivision (b)(1)(C). The parties stipulated to the
preliminary hearing transcript as the factual basis for defendant’s plea, but defendant did
not admit any particular facts from the preliminary hearing. The trial court subsequently
imposed the stipulated prison term.
In April 2022, defendant filed a section 1172.6 petition for resentencing.
Defendant’s form petition alleged, among other things, that (1) a complaint or
information was filed against him that allowed the prosecution to proceed under a theory
of attempted murder under the natural and probable consequences doctrine; (2) that he
was convicted of attempted murder after accepting a plea in lieu of a trial at which he
could have been convicted of attempted murder; and (3) that he could no longer be
convicted of attempted murder because of changes made to sections 188 and 189,
effective January 1, 2019. Defendant requested the appointment of counsel.
The trial court considered defendant’s petition at a hearing in September 2022.
When the trial court asked whether defense counsel could cite anything in the record of
conviction indicating that the natural and probable consequences doctrine had applied,
counsel responded that he did not see any such indication. The trial court denied the
petition after finding that defendant had not made the requisite prima facie showing.
DISCUSSION
Defendant argues the trial court erred in denying his petition at the prima facie
stage because nothing in the record of conviction conclusively shows he is ineligible for
relief under section 1172.6. In defendant’s view, his plea to attempted murder without
malice and his admission of the great bodily injury enhancement are consistent with an
attempted murder conviction based on the natural and probable consequences doctrine --
a theory that is no longer valid. To the extent the trial court relied on the preliminary
hearing transcript to deny the petition, defendant asserts the trial court erred because he
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did not admit the truth of any facts asserted at the preliminary hearing when he entered
his plea.
The People counter that defendant is ineligible for relief as a matter of law because
the preliminary hearing transcript establishes that defendant was sentenced for attempted
murder as the actual attempted killer.
A
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
the felony-murder rule and the natural and probable consequences doctrine “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 No. 1437 also added what is now section 1172.6 (Stats. 2018,
ch. 1015, § 4; Stats. 2022, ch. 58, § 10). Effective January 1, 2022, Senate Bill No. 775
amended section 1172.6 to expand those eligible for relief to, among others, persons
convicted of attempted murder based on the natural and probable consequences doctrine.
(Stats. 2021, ch. 551, § 1, subd. (a).) Section 1172.6, subdivision (a) now provides that a
person convicted of attempted murder under the natural and probable consequences
doctrine may file a petition for resentencing and be resentenced if all of the following
conditions apply: (1) a complaint or information was filed against the petitioner that
allowed the prosecution to proceed under a theory of attempted murder under the natural
and probable consequences doctrine; (2) the petitioner was convicted of attempted
murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner
could have been convicted of attempted murder; and (3) the petitioner could not presently
be convicted of attempted murder because of changes to Sections 188 and 189 made
effective January 1, 2019.
If the petition presents a prima facie showing of entitlement to relief, the trial
court must issue an order to show cause. (§ 1172.6, subd. (c).) The trial court must
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then hold a hearing to determine whether petitioner is entitled to resentencing. (§ 1172.6,
subd. (d)(1).)
The prima facie inquiry under section 1172.6, subdivision (c) is limited, and the
bar for establishing a prima facie claim for relief is very low. (People v. Lewis (2021)
11 Cal.5th 952, 971.) The trial 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.” ’ ” (Ibid.) Although the trial court
may rely on the record of conviction in determining whether defendant has made a prima
facie showing, it “should not engage in ‘factfinding involving the weighing of evidence
or the exercise of discretion.’ ” (Id. at p. 972.)
We independently review a trial court’s determination as to whether a petitioner
has made a prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
B
The information initially charged defendant with three substantive offenses:
attempted murder with malice aforethought, assault with a deadly weapon, and street
terrorism. (People v. Reed (1996) 13 Cal.4th 217, 224 [the record of conviction includes
the charging document].) The attempted murder charge did not limit the prosecutor from
convicting defendant on any available theory of attempted murder liability, which at the
time of defendant’s no contest plea in February 2012 could have included liability under
the natural and probable consequences doctrine. (See e.g., People v. Eynon (2021)
68 Cal.App.5th 967, 977-978.)
Defendant pleaded no contest to attempted murder. But he did so only after the
trial court granted the parties’ request to strike “with malice aforethought” from the
information. And pleading no contest to the generic crime of attempted murder is not the
same as admitting a specific theory of attempted murder.
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
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(2003) 31 Cal.4th 613, 623; see People v. Smith (2005) 37 Cal.4th 733, 739.) For
purposes of the offense, “[i]ntent to unlawfully kill and express malice are, in essence,
‘one and the same.’ ” (Smith, at p. 739.) To be guilty of attempted murder, then, a
defendant must harbor express malice toward the particular victim (ibid.), unless that
malice is imputed to the defendant under some other theory such as the natural and
probable consequences doctrine.
Under the natural and probable consequences doctrine, an aider and abettor may
be culpable for a nontarget, or unintended, offense committed while committing a target
offense. (People v. Favor (2012) 54 Cal.4th 868, 874.) “By its very nature, aider and
abettor culpability under the natural and probable consequences doctrine is not premised
upon the intention of the aider and abettor to commit the nontarget offense because the
nontarget offense was not intended at all. It imposes vicarious liability for any offense
committed by the direct perpetrator that is a natural and probable consequence of the
target crime.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) Attempted
murder can be a natural and probable consequence of a charged assault. (See e.g., People
v. Hoang (2006) 145 Cal.App.4th 264, 271-274.)
Here, by explicitly deleting the phrase “with malice aforethought” from the
attempted murder charge in order to facilitate defendant’s plea to the revised count (i.e.,
without the malice language), we conclude it is at least possible that defendant may not
have admitted that he personally harbored express malice, or the required intent to kill,
but rather that one of his codefendants who also attacked the victim harbored express
malice, which was imputed to him under the natural and probable consequences doctrine.
Defendant has thus offered a theory under which the evidence presented during the
preliminary hearing was consistent with his guilt of attempted murder under the natural
and probable consequences doctrine, based upon an intent to participate in the charged
target offense of assault with a deadly weapon. (§ 188, subd. (a)(3) [prohibiting imputing
malice based solely on participation in a crime].) In doing so, he created a factual dispute
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that cannot be resolved at the prima facie stage since nothing in the record definitively
forecloses his theory. (Lewis, supra, 11 Cal.5th at pp. 971-972.)
The fact that attempted murder requires an intent to kill, and that defendant
pleaded to the offense, does not alone answer whether defendant personally intended to
kill the victim, or whether that intent was transferred to him under the natural and
probable consequences doctrine. (People v. Montes (2021) 71 Cal.App.5th 1001, 1007-
1008 [trial court erred in inferring from the jury’s finding of guilt of attempted murder
that the jury must have found the defendant personally possessed the intent to kill where
the conviction under a natural and probable consequences theory was possible].) Nor
does defendant’s admission to the great bodily injury enhancement foreclose the
possibility that he pleaded to attempted murder based on a natural and probable
consequences theory without personally harboring malice. The enhancement itself does
not include an intent to kill component (§ 12022.7), and it does not establish as a matter
of law that he intended to kill the victim or that he was the sole person who stabbed the
victim.
Indeed, this is not a case in which the only possible scenario is that defendant was
the sole perpetrator. (Cf. People v. Delgadillo (2022) 14 Cal.5th 216, 233 [the defendant
was “not entitled to any relief under section 1172.6” because he “was the actual killer and
the only participant in the killing”].) Here, defendant and at least three others were
involved in the melee that led to the stabbing and attempted murder charge. Testimony at
the preliminary hearing indicates that more than one codefendant may have had a knife
and that the victim may have been stabbed by more than one person.3
3 Courts are divided on the extent to which a trial court may rely on the preliminary
hearing transcript to deny a resentencing petition at the prima facie stage (compare
People v. Flores (2022) 76 Cal.App.5th 974, 988-992 [preliminary hearing transcript
cannot establish ineligibility as a matter of law even if a defendant stipulated to the
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Although there was some preliminary hearing testimony that defendant confessed
to stabbing the victim, an affirmative finding that he did so would require factfinding that
is not permitted at the prima facie stage. (See People v. Duchine (2021) 60 Cal.App.5th
798, 815 [the time for weighing and balancing and making findings on the ultimate issues
arises at the evidentiary hearing stage rather than the prima face stage; the record should
be consulted at the prima facie stage only to determine readily ascertainable facts];
People v. Drayton (2020) 47 Cal.App.5th 965, 981-983 [in making an assessment of the
petitioner’s prima facie showing, the trial court should not have evaluated and weighed
the evidence based on testimony at the preliminary hearing but instead should have
accepted petitioner’s asserted facts as true], abrogated on other grounds in Lewis, supra,
11 Cal.5th at pp. 963-964].)
In some cases the record may reveal that a defendant admitted more than the
elements of the offense charged, and such additional admissions may preclude relief. But
a defendant is not ineligible for relief where he made no admissions related to the
attempted murder other than pleading no contest to the count as charged. (People v.
Rivera, supra, 62 Cal.App.5th at p. 234.) Here, during the change of plea hearing,
defendant did not admit any particular facts presented at the preliminary hearing; he did
not admit confessing that he had stabbed the victim. (People v. French (2008) 43 Cal.4th
36, 50-51 [a defendant is not required to personally admit the truth of the factual basis of
the plea, and the defendant’s stipulation to the factual basis for the plea does not
constitute a binding admission for all purposes].) Simply being held to answer on a
transcript as the factual basis for plea] and People v. Rivera (2021) 62 Cal.App.5th 217,
235 [same for grand jury transcript] with People v. Nguyen (2020) 53 Cal.App.5th 1154,
1166-1168 [preliminary hearing transcript is part of record of conviction that may be
considered in determining whether a petitioner has satisfied his prima facie burden]).
The California Supreme Court recently granted review in People v. Patton (2023)
89 Cal.App.5th 649, review granted June 28, 2023, S279670, which considers whether
the trial court engaged in impermissible judicial factfinding by relying on the preliminary
hearing transcript to deny the defendant’s section 1172.6 petition at the prima facie stage.
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charge or allegation does not constitute a factual finding that the charge or allegation is
true, nor does it constitute a determination that the charge or allegation is supported by
substantial evidence. (People v. Eynon (2021) 68 Cal.App.5th 967, 975-976.) Indeed, at
an evidentiary hearing under section 1172.6, subdivision (d)(3), defendant will have an
opportunity to present evidence to the contrary.
Because defendant’s petition alleged the facts necessary for relief under
section 1172.6, and nothing in the record conclusively demonstrates that he is ineligible
for relief as a matter of law, defendant’s petition made a prima facie showing of
entitlement to relief under section 1172.6. (§ 1172.6, subd. (c).) We will reverse and
remand for further proceedings under the statute, but we express no opinion on whether
defendant is entitled to resentencing.
DISPOSITION
The order denying defendant’s section 1172.6 petition is reversed, and the matter
is remanded with directions to issue an order to show cause and conduct further
proceedings in accordance with section 1172.6, subdivision (d).
/S/
MAURO, J.
We concur:
/S/
EARL, P. J.
/S/
KRAUSE, J.
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