Filed 10/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE, C096982
Plaintiff and Respondent, (Super. Ct. No.
STKCRFECOD20170001987)
v.
JOSEPH DAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, Bernard
J. Garber, Judge. Reversed.
Elisa A. Brandes, 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, Senior Assistant Attorney General, Darren K. Indermill,
Supervising Deputy Attorney General, Paul E. O’Connor, Deputy Attorney General, for
Plaintiff and Respondent.
Defendant Joseph Ronald Das appeals from the trial court’s denial of his petition
for resentencing under Penal Code section 1172.6.1 The trial court denied the petition
1 Undesignated statutory references are to the Penal Code. Defendant petitioned for
resentencing under former section 1170.95. Effective June 30, 2022, the Legislature
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without issuing an order to show cause or holding an evidentiary hearing, concluding the
stated factual basis for defendant’s guilty plea refuted the allegations in his petition for
resentencing, rendering him ineligible for relief.
As we shall explain, while we agree with the trial court’s assessment that the
stated factual basis, if true, demonstrates defendant stabbed the attempted murder victim
with the intent to kill, defendant did not stipulate to the factual basis or otherwise admit
the truth of the facts recited by the prosecutor. We agree with defendant that the trial
court improperly engaged in factfinding at the prima facie stage and reverse for that
reason. As a result, it is unnecessary to address defendant’s related argument that by
engaging in factfinding at the prima facie stage, the trial court also violated his due
process rights.
BACKGROUND
In February 2017, defendant and several other Norteño gang members got into a
gang-related fight with two individuals, including J.D., who was stabbed during the fight.
J.D. survived, but his injuries required hospitalization.
The same month, defendant and various codefendants were charged with
attempted murder, assault with force likely to produce great bodily injury, and
participation in criminal street gang activity. With respect to the attempted murder
charge, the prosecution also alleged that defendant and each codefendant 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.
In June 2018, defendant entered a guilty plea to the attempted murder charge and
admitted the gang enhancement in exchange for dismissal of the remaining counts and
renumbered former section 1170.95 as section 1172.6 without substantive changes.
(Stats. 2022, ch. 58, § 10.) We shall refer to the current section throughout this opinion.
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enhancement allegations and a stipulated sentence of nine years. Before accepting
defendant’s guilty plea, the trial court asked whether there was “a stipulation as to the
factual basis based on the transcript of the preliminary examination.” The prosecutor
informed the trial court that there had not yet been a preliminary hearing. The trial court
then asked: “So what is the factual basis?” The prosecutor responded: “Your Honor, on
February 14th of 2017, at the South Side Park in Manteca, California, which is in San
Joaquin County, [defendant], along with several other Norteño gang members, got into a
fight with the victims, [J.D. and C.R.]. During the fight, [defendant] and [one of the
charged codefendants] were punching, kicking and hitting [J.D.], knocking him to the
ground. At one point [defendant] had a knife and stabbed [J.D.] in the head and neck and
chest area, attempting to kill him. He suffered significant injuries and had to be
hospitalized.” The prosecutor further stated that testimony from a gang expert would
satisfy the elements of the gang enhancement. Without asking whether defendant (or his
attorney) stipulated to this factual basis, the trial court stated: “I do find a factual basis
for the plea.”
The trial court then provided defendant with all required advisements and received
appropriate waivers from defendant before accepting his plea of guilty to the crime of
attempted murder and admission to the gang enhancement. The trial court also dismissed
the remaining counts and enhancement allegations. Defendant was sentenced to a
determinate term of nine years in accordance with the plea agreement in August 2018.
In March 2022, defendant filed the petition for resentencing at issue in this appeal.
In the form petition, tracking the requirements of section 1172.6, subdivision (a),
defendant checked boxes indicating: (1) a complaint was filed against him that allowed
the prosecution to proceed under a theory of attempted murder under the natural and
probable consequences doctrine; (2) he accepted a plea offer in lieu of going to trial on
the attempted murder charge; and (3) he could not presently be convicted of attempted
murder because of changes to sections 188 and 189 made effective January 1, 2019.
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Defendant also requested the appointment of counsel to represent him in pursuing relief
under this section. The same month, the trial court appointed counsel to represent
defendant.
The prosecution filed a response to the petition in April 2022. The main argument
advanced by the prosecution was that defendant could still be convicted of attempted
murder because the factual basis for defendant’s plea indicates that he “harbored the
specific intent to kill when he stabbed his victim in the head, neck and chest area.”
Defendant filed a reply brief the following month. Defendant argued his petition
established a prima facie case for relief, requiring the trial court to issue an order to show
cause and hold an evidentiary hearing. As relevant here, defendant argued his guilty plea
to the attempted murder charge and admission to the gang enhancement did not
disqualify him from relief as a matter of law because the complaint charged four people
with attempted murder, did not allege who was the actual perpetrator, and did not include
an enhancement for personal infliction of great bodily injury or personal use of a weapon.
Thus, defendant argued, had the case gone to trial, he could have been tried for attempted
murder on a theory of aiding and abetting a gang assault, the natural and probable
consequence of which was attempted murder committed by one of his codefendants.
With respect to the prosecution’s argument that the factual basis for defendant’s guilty
plea conclusively established that he was convicted of attempted murder as the direct
perpetrator who stabbed the victim with the intent to kill, defendant argued his stipulation
to a factual basis for the plea did not admit the truth of the facts stated by the prosecution.
The trial court held a hearing on the petition in September 2022. After hearing
argument from both sides, the trial court denied the petition without issuing an order to
show cause or holding an evidentiary hearing. As the trial court explained its reasoning,
“the key to this” was the factual basis for the guilty plea. The trial court concluded the
factual basis clearly demonstrated that defendant “personally attacked the victim and . . .
acted with the intent to kill,” refuting his entitlement to relief. In this regard, the trial
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court added: “[W]hat’s the point of a factual basis if we can’t use it in a hearing like
this? Why bother with a factual basis? I think the factual basis is crucial.”
DISCUSSION
Defendant contends the trial court erred in denying his petition for resentencing
without issuing an order to show cause and holding an evidentiary hearing because the
stated factual basis for his guilty plea did not conclusively show that he is ineligible for
relief and his guilty plea following the prosecutor’s recitation of the factual basis did not
amount to a stipulation or admission to the truth of those facts. We conclude defendant is
entitled to an evidentiary hearing on his petition.
A. Relevant Changes to Attempted Murder Liability
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019,
eliminated the natural and probable consequences doctrine as a basis for murder liability
and limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952,
957 (Lewis); §§ 188, subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015,
§ 2, 3.) Senate Bill No. 1437 also created a procedure for defendants convicted of
murder under the prior law to seek the ameliorative benefits of the new law by filing a
petition to have his or her murder conviction vacated and to be resentenced on any
remaining counts. (Lewis, at p. 957; § 1172.6.)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) expanded
the petition process to include persons convicted of attempted murder under the natural
and probable consequences doctrine. (People v. Montes (2021) 71 Cal.App.5th 1001,
1006; § 1172.6, subd. (a).)
Thus, at the time of defendant’s guilty plea, the law allowed him to be convicted
of attempted murder under the natural and probable consequences doctrine, i.e., on a
theory that he participated in a gang assault, the natural and probable consequence of
which was attempted murder committed by one of the coparticipants in that assault. (See,
e.g., People v. Montes, supra, 71 Cal.App.5th at p. 1008 [the defendant was convicted of
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attempted murder based on his participation in the target offense of assault “because the
perpetrator . . . intended to kill and the perpetrator’s attempted murder was a natural and
probable consequence of [the] assault”].) The new law, however, eliminates such a
theory. Now, the People are required to prove that defendant himself harbored the
requisite mental state for attempted murder—express malice. (See People v. Smith
(2005) 37 Cal.4th 733, 741 [the mental state required for attempted murder is “intent to
kill or express malice”].)
B. Analysis
We must determine whether the trial court erred in concluding the stated factual
basis for defendant’s guilty plea conclusively undermined his prima facie case for relief.
As we explain below, the trial court erred in this regard.
Section 1172.6, subdivision (a) provides in relevant part: “A person convicted
of . . . attempted murder under the natural and probable consequences doctrine . . . may
file a petition with the court that sentenced the petitioner to have the petitioner’s . . .
attempted murder . . . conviction vacated and to be resentenced on any remaining counts
when all of the following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to proceed under
a theory of . . . attempted murder under the natural and probable consequences doctrine.
[¶] (2) The petitioner . . . accepted a plea offer in lieu of a trial at which the petitioner
could have been convicted of . . . attempted murder. [¶] (3) The petitioner could not
presently be convicted of . . . attempted murder because of changes to Section 188 or 189
made effective January 1, 2019.”
There is no dispute that defendant’s petition alleged each of these conditions and
otherwise satisfied the requirements of the statute. (See § 1172.6, subd. (b)(1)(A)-(C).)
Thus, the trial court properly appointed counsel (id., subd. (b)(3)) and “proceed[ed] to
subdivision (c) to assess whether [defendant] made ‘a prima facie showing’ for relief”
(Lewis, supra, 11 Cal.5th at p. 960; § 1172.6, subd. (c) [setting a briefing schedule and
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requiring the court to “hold a hearing to determine whether the petitioner has made a
prima facie case for relief”]).
The trial court also correctly determined it could consider the record of conviction,
including the stated factual basis for defendant’s guilty plea, in determining whether
defendant made a prima facie case for relief. (Lewis, supra, 11 Cal.5th at pp. 970-971;
see People v. Sohal (1997) 53 Cal.App.4th 911, 915 [“reporter’s transcript of a plea is
considered part of the ‘record of conviction’ ”].) As our Supreme Court has explained,
“[t]he 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, at p. 971.) At the same time, “the prima
facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in
habeas corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations
on credibility grounds without first conducting an evidentiary hearing.’ [Citation.]”
(Ibid.) Our Supreme Court also cautioned: “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.’ [Citation.] As the
People emphasize, the ‘prima facie bar was intentionally and correctly set very low.’ ”
(Id. at p. 972.)
“ ‘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.” ’ [Citation.]” (Lewis, supra,
11 Cal.5th at p. 971.) Here, the trial court concluded the stated factual basis for
defendant’s guilty plea supplied the necessary refutation. We agree that the stated factual
basis, if true, demonstrates defendant stabbed the attempted murder victim with the intent
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to kill, fatally undermining his prima facie case for relief. Defendant did not, however,
stipulate to the stated factual basis or otherwise admit the truth of the facts recited by the
prosecutor.
People v. Davenport (2021) 71 Cal.App.5th 476 (Davenport) is instructive. The
defendant in that case pled no contest to second degree murder and admitted a firearm
use enhancement. Without stipulating to a factual basis, the defendant initialed
paragraphs on the plea form indicating that he discussed the evidence against him with
his attorney and believed that a jury hearing that evidence could find him guilty. (Id. at
p. 479.) The trial court later denied the defendant’s petition for resentencing at the prima
facie stage because he admitted the firearm enhancement and the preliminary hearing
transcript indicated that he personally shot and killed his former girlfriend’s new
boyfriend. (Id. at p. 480.) On appeal, our colleagues at the First Appellate District held it
was error to rely on the preliminary hearing transcript at the prima facie stage because the
defendant did not stipulate to that transcript as the factual basis for his plea or admit the
truth of the facts adduced at that hearing. (Id. at pp. 481, 483-484.) After explaining that
“ ‘a ruling holding a defendant to answer is in no way equivalent to a jury’s factual
finding or a defendant’s admission[,]’ ” the appellate court concluded the trial court
“engaged in ‘impermissible factfinding’ at the prima facie stage by relying on facts taken
from the preliminary hearing transcript that were not stipulated to or admitted.” (Id. at
p. 482.) With respect to the firearm enhancement, the court explained that the
defendant’s admission to having used a firearm did not conclusively refute the possibility
that he was convicted on a theory of felony murder. (Id. at pp. 484-485.)
The Davenport court further explained that the prima facie stage “is a test of the
petitioner’s pleaded allegations, not an inquiry into the truth of those allegations and the
credibility of the evidence on which they may rely. [Citation.] The exception, for
‘readily ascertainable facts’ in the record of conviction that ‘ “ ‘refut[e] the allegations
made in the petition’ ” ’ [citation], bars a petitioner from pleading things that the record
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of conviction necessarily establishes are untrue (such as an allegation that he is entitled to
resentencing relief for an offense that is not listed in the statute). [Citation.] If the
exception were to be read more broadly, allowing inquiry into the historical facts that
may appear in the court’s files but were never admitted by the petitioner as the factual
basis for a plea, the exception would swallow the rule and convert the prima facie inquiry
into a factual contest, which is reserved for evidentiary hearings at the section [1172.6],
subdivision (d) stage.” (Davenport, supra, 71 Cal.App.5th at p. 483.)
Similarly, here, defendant did not stipulate to a factual basis for his plea, either in
writing on a plea form or verbally at the change of plea hearing. (The record in this case
does not even contain a plea form.) Nor can defendant’s silence following the
prosecutor’s recitation of the factual basis somehow be interpreted as an “implied”
stipulation or admission by defendant. Obviously, counsel’s statement, without
defendant’s assent, is only a statement; it is not evidence. For all these reasons, we
conclude defendant did not expressly or impliedly admit to having stabbed the victim
with a knife in the head, neck, and chest, attempting to kill him. Although this may have
been the prosecution’s main theory of the case, the complaint filed against defendant also
allowed the prosecution to pursue a theory of natural and probable consequences even if
the stabbing was perpetrated by one of the other participants in the gang assault. (See,
e.g., People v. Montes, supra, 71 Cal.App.5th at p. 1008.) Without defendant’s
admission to having personally stabbed the victim with the intent to kill, we do not know
whether that was the actual basis for defendant’s plea, or whether defendant pled guilty
because he believed the jury would have convicted him of attempted murder on a natural
and probable consequences theory even if he was not the person who stabbed the victim.
Had the matter gone to trial, the record of conviction might shed some light on the
basis for defendant’s conviction because then we would know whether the jury was
instructed on the natural and probable consequences doctrine. “However, the record of
conviction involving a plea ‘will generally lack any comparable assurance of the basis for
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the conviction.’ [Citation.] This is because a magistrate or grand jury is not required to
be convinced beyond a reasonable doubt that the defendant committed every element of
the offense, but rather ‘ “ ‘ “must be convinced only of such a state of facts as would lead
a [person] of ordinary caution or prudence to believe, and conscientiously entertain a
strong suspicion of the guilt of the accused. . . .” ’ ” ’ [Citation.] Furthermore, the
instructions to a grand jury ‘do not fix the theories on which a case may be prosecuted or
establish the basis for a postindictment plea.’ ” (People v. Flores (2022) 76 Cal.App.5th
974, 990.)
In Flores, the defendant pled no contest to second degree murder and “stipulated
that the police reports and preliminary hearing transcripts provided a factual basis for the
plea.” (People v. Flores, supra, 76 Cal.App.5th at p. 982.) Our colleagues at the Fifth
Appellate District held the defendant established a prima facie claim for resentencing
because his petition was facially sufficient, the charging document did not specify or
exclude any particular theory of murder, the defendant did not admit or stipulate to any
particular theory of murder, and the preliminary hearing transcript did not establish his
ineligibility as a matter of law. (Id. at pp. 987-989.)
Like in Flores, defendant’s petition is facially sufficient. The complaint filed
against him did not specify that he was being charged with attempted murder as the
person who stabbed the victim with the intent to kill, nor did it limit the prosecution’s
ability to proceed on a natural and probable consequences theory at trial. Although the
prosecutor’s stated factual basis indicates that defendant stabbed the victim with the
requisite intent, defendant did not admit or stipulate to this stated factual basis. Again,
without such a stipulation or admission, we cannot conclude the record of conviction
conclusively refutes defendant’s entitlement to relief as a matter of law.2
2 The lack of an admission by defendant distinguishes this case from People v. Fisher
(2023) 95 Cal.App.5th 1022 recently decided by our colleagues at the Second Appellate
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Relying on People v. Nguyen (2020) 53 Cal.App.5th 1154, the People argue that
because the stated factual basis indicates defendant was charged with attempted murder
as the direct perpetrator who acted with intent to kill, and “the pre-plea proceedings . . .
contain ‘no mention’ of evidence or argument” regarding the natural and probable
consequences doctrine, “it is ‘conjecture and speculation’ [for defendant] to argue that
[the natural and probable consequences doctrine] could have been the basis for the
prosecution had the case gone to trial.” We are not persuaded. First, it is not speculation
that the People could have proceeded on a natural and probable consequences theory at
trial. Nothing in the charging document prevented the People from doing so.
Second, unlike Nguyen, where the defendant stipulated to the preliminary hearing
transcript as the factual basis for his plea (People v. Nguyen, supra, 53 Cal.App.5th at
p. 1161), here, there was no such stipulation. Thus, this case is more analogous to
Davenport. And finally, the People’s suggestion that the record of conviction must
contain evidence or argument regarding the natural and probable consequences doctrine
in order for defendant to prevail “allocates to [defendant] an evidentiary burden that
should be on the state [citation], and effectively raises ‘ “the prima facie bar [that] was
intentionally and correctly set very low” ’ [citation].” (Davenport, supra, 71 Cal.App.5th
at p. 483.)
District. In Fisher, the defendant, who was the only person charged with two counts of
murder and one count of attempted murder, pleaded guilty to the charges and expressly
admitted during the plea colloquy that the prosecutor’s statement of the facts was
“ ‘basically [what] happened that night.’ ” (Id. at pp. 1024-1026.) Fisher’s admission of
the statement of facts indicated that he, again the only person charged, personally shot
and killed the victims named in counts 1 and 2 and personally shot and injured the victim
named in count 3. (Id. at pp. 1025-1026.) After distinguishing Davenport, and other
cases, the court explained that because Fisher “specifically admitted to shooting and
killing two people and shooting and injuring a third person, he is ineligible for relief as a
matter of law.” (Id. at p. 1030.) The record in this case contains no admission by
defendant let alone one comparable to that made by Fisher.
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We conclude the trial court erred in denying defendant’s resentencing petition at
the prima facie stage without issuing an order to show cause and holding an evidentiary
hearing.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed. The matter is
remanded to the trial court with directions to issue an order to show cause and hold an
evidentiary hearing on defendant’s petition.
/s/
Wiseman, J.*
We concur:
/s/
Duarte, Acting P. J.
/s/
Renner, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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