People v. Falcon CA2/8 ( 2021 )

Filed 12/13/21 P. v. Falcon CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B296392
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA046170)
v.
CHRISTOPHER ROBERT
FALCON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Reversed and
remanded with instructions.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
This is a remand from the California Supreme Court. On
November 9, 2020, we affirmed the denial of appellant’s petition
for resentencing brought pursuant to Penal Code section
1170.95.1 On December 10, 2020, appellant filed a petition for
review. On September 22, 2021, the Supreme Court transferred
the matter to us with directions to vacate our decision and
reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th
952 (Lewis). (Cal. Rules of Court, rule 8.528(d).) We invited the
parties to file supplemental briefs, which we have reviewed. We
have reconsidered our opinion and now vacate our decision,
reverse the trial court, and remand the matter with directions to
proceed under section 1170.95, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Plea
On April 4, 2011, appellant Christopher Falcon entered a
plea of no contest to second degree murder in violation of section
187, subdivision (a). The first paragraph of count 1 of the
information to which appellant entered his plea states: “On or
about July 2, 2009, in the County of Los Angeles, the crime of
MURDER, in violation of PENAL CODE SECTION 187(a), a
Felony, was committed by ANTHONY MANCERA and
CHRISTOPHER ROBERT FALCON, who did unlawfully, and
with malice aforethought murder SERGIO SANTIAGO, a human
being.” The information contains a firearm enhancement
alleging that Mancera personally discharged a firearm resulting
in death. Appellant was eventually sentenced to 15 years to life
imprisonment.
1 Undesignated statutory references are to the Penal Code.
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At the plea, appellant stipulated “to a factual basis
pursuant to People [v.] Holmes based upon count one, paragraph
one, of the charging information for the purpose of entering this
plea only.” People v. Holmes provides: “If the trial court inquires
of defense counsel regarding the factual basis [for a plea], it
should request that defense counsel stipulate to a particular
document that provides an adequate factual basis, such as a
complaint, police report, preliminary hearing transcript,
probation report, grand jury transcript or written plea
agreement.” (People v. Holmes (2004) 32 Cal. 4th 432, 436.)
B. The Petition for Resentencing
In 2018, the Legislature passed Senate Bill No. 1437 to
“amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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 amended section 188 to require that a
principal “shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
Senate Bill No. 1437 also added section 1170.95, which sets
forth the procedure by which a “person convicted of felony murder
or murder under a natural and probable consequences theory
may file a petition with the court that sentenced the petitioner to
have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts.” (§ 1170.95, subd. (a).)
Pursuant to section 1170.95, an offender must file a petition
(along with a declaration) in the sentencing court averring that:
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“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95,
subd. (b)(1)(A).)
Once a complete petition is filed, the court is authorized to
appoint counsel for the petitioner upon request. The court
determines whether “the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. . . . If the petitioner makes a prima facie showing that he
or she is entitled to relief, the court shall issue an order to show
cause.” (§ 1170.95, subd. (c).) In making this assessment, the
trial court “should accept the assertions in the petition as true
unless facts in the record conclusively refute them as a matter of
law.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968
(Drayton).) The court’s authority to summarily deny a petition is
thus limited to “readily ascertainable facts” taken from the record
of conviction, rather than factfinding involving the weighing of
evidence or the exercise of discretion. (Id.at p. 980.)
After the court issues an order to show cause, an
evidentiary hearing is held to determine whether to vacate the
murder conviction, recall the sentence, and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At
the hearing, “the burden of proof shall be on the prosecution to
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prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (Id., subd. (d)(3).)
On January 7, 2019, appellant filed a petition for
resentencing pursuant to section 1170.95. In his petition,
appellant requested counsel and alleged he qualifies for
resentencing under section 1170.95 because, among other things,
he pled no contest “to 1st or 2nd degree murder in lieu of going to
trial because I believed I could have been convicted of 1st or 2nd
degree murder at trial pursuant to the felony murder rule or the
natural and probable consequences doctrine.”
C. The Trial Court’s Denial of the Petition
On January 21, 2019, the trial court denied the petition
without appointing counsel on appellant’s behalf. The court also
took judicial notice of the trial and appellate court records which
it stated showed appellant had entered a plea to second degree
murder as an aider and abettor to the actual shooter, co-
defendant Anthony Mancera. The evidence at Mancera’s trial
was that Mancera shot the victim at close range, egged on by
appellant Falcon. At trial, the People never pursued, nor was the
jury instructed on, either a felony-murder theory or a natural and
probable consequence theory of murder. The trial court
concluded appellant had failed to make a prima facie case for
relief.
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D. Our Initial Decision Affirming the Trial Court
We affirmed the denial of the petition. (People v. Falcon
(Nov. 9, 2020, B296392) [nonpub. opn.) We took judicial notice of
the joint preliminary hearing transcript and on that basis found
that appellant had been prosecuted as an aider and abettor, not
under a natural and probable consequences or felony-murder
theory of liability. We found the trial court erred in relying on
the evidence presented at Mancera’s solo trial, but found the
error harmless in light of appellant’s record of conviction, which
included the transcript of the joint preliminary hearing where the
People presented evidence “virtually identical” to the evidence at
Mancera’s trial.
DISCUSSION
A. Appointment of Counsel
In People v. Lewis, our Supreme Court held that the right
to appointed counsel under section 1170.95 arises upon the filing
of a facially sufficient petition. It is only after the trial court
appoints counsel and gives the parties an opportunity for briefing
that it may consider the record of conviction to determine
whether petitioner has made a prima facie showing of
entitlement to relief. (Lewis, supra, 11 Cal.5th at p. 972.) Lewis
succinctly described the process: “a complying petition is filed;
the court appoints counsel, if requested; the issue is briefed; and
then the court makes one (not two) prima facie determination.”
(Id. at p. 966.)
Appellant contends, the People agree, and we find
appellant filed a facially sufficient petition and the trial court
therefore erred in failing to appoint counsel. The next question,
then, is whether the trial court’s error is harmless. As discussed
below, we find a reasonable probability that if counsel had been
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appointed, appellant would have been able to make a prima facie
showing. Thus, we find the error not harmless.
B. Harmless Error
Under Lewis, failure to appoint counsel is a state law error
subject to the harmless error standard set forth in People v.
Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at
pp. 973–974.) In this regard, it is appellant’s burden to
demonstrate there is a reasonable probability that in the absence
of the error he would have obtained a more favorable result. As
the Lewis Court explained, “More specifically, a petitioner ‘whose
petition is denied before an order to show causes issues has the
burden of showing “it is reasonably probable that if [he or she]
had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary
hearing.” ’ ” (Lewis, at p. 974.) Put differently, appellant has the
burden of showing it is reasonably probable that if counsel had
been appointed, he would have been able to make a prima facie
showing that he “ ‘could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.’ (§ 1170.95, subds. (a)(1)–(3).)” (Lewis, at
p. 960.)
As we have discussed, the trial court relied on the
preliminary hearing transcript to find that appellant was
prosecuted under an aiding and abetting theory of liability,
rendering his no contest plea subject to that theory. We affirmed
this finding. As the California Supreme Court has now made
clear,“[w]hile the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited.” (Lewis,
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supra, 11 Cal.5th at p. 971.) “ ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ ” (Ibid.) Similarly, “[i]n
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.]”
(Id. at p. 972.) As the court in Drayton explained, any authority
to make determinations without conducting an evidentiary
hearing “is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).”
(Drayton, supra, 47 Cal.App.5th at p. 980.) Thus, the court in
Drayton found that the trial court erred in relying on facts in the
preliminary hearing transcript to find that Drayton “ ‘acted with
reckless indifference to human life,’ which the court characterized
as ‘blatantly apparent by his conduct, being armed and his
participation in this event, as well as the conduct of his co-
conspirators, the other individuals.’ ” (Id. at p. 982.)
The court in People v. Cooper (2020) 54 Cal.App.5th 106(Cooper), review granted November 10, 2020, S264684, agreed
with Drayton on the limited permissible use of a preliminary
hearing transcript, particularly when a defendant pleads no
contest to murder without establishing the particular factual
basis of the plea. Cooper explained that at the preliminary
hearing, the magistrate is called upon only to determine whether
the factual showing is sufficient to establish probable cause to
believe the defendant committed a felony, a fundamentally
different factual determination than the trial determination of
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guilt beyond a reasonable doubt. (Id. at p.123.) Appellant
Cooper had neither stipulated nor admitted to the facts
established at the preliminary hearing as the basis for his plea.
The court therefore found that the trial court’s prima facie
determination had been corrupted by the trial court’s
“impermissible factfinding” based on the preliminary hearing
transcript. (Id. at pp. 112, 124; see Lewis, supra, 11 Cal.5th at
p. 974; People v. Davenport (2021) 71 Cal.App.5th 476, 482.)
Here, like in Drayton and Cooper, neither the court nor the
parties established the particular factual basis for the plea.
Appellant’s trial counsel referred to People v. Holmes and then
cited count 1 of the information as the basis for the plea. But the
allegation that murder was committed willfully, unlawfully, and
with malice aforethought is a well-recognized way of charging
murder in a generic sense. (People v. Rivera (2021)
62 Cal.App.5th 217, 233, review granted June 9, 2021, S268405.)
The generic manner for charging murder does not limit the
People to prosecuting appellant on a particular theory. Neither
felony murder nor murder under the natural and probable
consequences doctrine needs to be separately pleaded. (Ibid.,
quoting People v. Nakahara (2003) 30 Cal.4th 705, 712.) Here,
then, a specific factual basis for the plea was absent.
Like the trial courts in Drayton and Cooper, the trial court
in this case relied on facts in the preliminary hearing transcript
to find that appellant had failed to make a prima facie showing
that he could not be convicted of murder after the 2019 changes
in the law to sections 188 and 189. The court found the facts
showed appellant directly aided and abetted the murder. At best,
the evidence of appellant’s knowledge and intent was
circumstantial and incomplete; it may well have been contested.
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The trial court necessarily weighed that evidence and improperly
drew inferences therefrom.
Without the preliminary hearing transcript (or the
evidence admitted at co-defendant Mancera’s trial which was not
part of appellant’s record of conviction), we conclude there is a
reasonable probability the trial court would have found appellant
established a prima facie case and would have granted an
evidentiary hearing, had counsel been appointed. The trial
court’s failure to appoint counsel was not harmless. We reverse
the trial court’s order denying appellant’s petition, and remand
with instructions to the trial court to appoint counsel and hold
further proceedings as set out in subdivision (c) and, if
appropriate, subdivision (d) of section 1170.95.
DISPOSITION
The order denying the petition is reversed; we remand the
matter to trial court to hold further proceedings in accordance
with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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