People v. Pickett ( 2023 )

Filed 6/29/23; Certified for Publication 7/24/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B320892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A020654)
v.
RAYMOND PICKETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Judith L. Meyer, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Theresa A. Patterson, Deputy
Attorneys General for Plaintiff and Respondent.
Raymond Pickett appeals from an order summarily denying
his petition to vacate his murder conviction and be resentenced
under Penal Code section 1172.6. 1 Based on our independent
review, we agree with the trial court that Pickett failed to make
a prima facie showing for relief. We therefore affirm the court’s
order.
FACTUAL AND PROCEDURAL SUMMARY
In September 1979, Michael Moore died as a result of
a gunshot wound. The district attorney charged Pickett with
Moore’s murder.
During Pickett’s preliminary hearing, the following
evidence was adduced from two individuals with personal
knowledge of the events. On the afternoon of September 16,
1979, Pickett was shooting a firearm in an alleyway in a
residential area of Long Beach. A short time later, Al F., a
juvenile, went into a neighbor’s garage with his friend, Willie W.
Willie took a bottle of wine from the garage. As Willie left the
garage, Moore, a gardener who had been working at the house
next door, tapped Willie on the shoulder, took hold of Willie’s
arm, and “[told] him to put it back,” or words to that effect.
Willie returned to the garage with Moore, and Al walked away.
Pickett overheard Al tell a third person what had
transpired between Willie and Moore. Pickett walked up to
1Subsequent unspecified statutory references are to the
Penal Code.
Pickett filed his petition for resentencing under former
section 1170.95, which the Legislature later renumbered
section 1172.6 without substantive change. (Stats. 2022, ch. 58,
§ 10.) We hereafter cite to section 1172.6 for ease of reference.
2
Willie and spoke with him briefly. Pickett then approached
Moore, who was standing in the street near his truck. After
conversing with Moore for several minutes, Pickett pulled out a
gun. Moore started walking backwards, and Pickett fired a shot
into the air. The individuals who saw Pickett fire the shot ran
from the scene and heard one or two more shots being fired.
One witness looked back and saw Moore lying on the
ground. Moore appeared to have been shot in the leg. According
to a medical examiner, Moore had been hit by a bullet that
lacerated an artery in his right buttock, causing his death.
Sometime after the shooting, a witness overheard Pickett
saying that he would shoot anyone who “snitched.”
There was no evidence suggesting that anyone other than
Pickett was involved in Moore’s death.
At the conclusion of the preliminary hearing, Pickett was
held to answer the charge. The district attorney thereafter filed
an information charging Pickett with the murder of Michael
Moore and alleging that Pickett personally used a firearm—
a .38 caliber automatic pistol—in the commission of the crime.
In February 1980, Pickett pleaded guilty to second degree
murder (§ 187) and admitted the firearm allegation (former
§ 12022.5). 2 The court sentenced him to prison for 15 years to
life, plus two years for the firearm use. In sentencing Pickett,
the court explained that Pickett committed “a cold calculated
shooting” with “absolutely no provocation, no reason for [the
shooting], other than a superegoistic expression on the part of the
defendant.”
2 Our record does not include a transcript of the plea
hearing and does not indicate whether Pickett stipulated to a
factual basis for his plea.
3
On January 21, 2022, Pickett filed a petition for
resentencing under section 1172.6. By checking boxes on a
preprinted form, Pickett alleged: (1) an information was filed
against him that allowed the prosecution to proceed under a
theory of felony murder, murder under the natural and probable
consequences doctrine, or other theory of imputed malice based
solely on his participation in a crime; (2) he was convicted of
murder or accepted a plea offer in lieu of a trial at which he could
have been convicted of murder; and (3) he “could not presently be
convicted of murder . . . because of changes made to [sections] 188
and 189, effective January 1, 2019.” Pickett did not support his
petition with any facts concerning the killing of Moore. Nor did
he allege that he was not the actual killer.
The court appointed counsel for Pickett upon his request.
The court also directed the district attorney to file a response to
the petition and informed Pickett that he “may file and serve a
reply” to the response.
In the response to the petition, the district attorney relied
in part on the transcript of Pickett’s preliminary hearing, which
we summarized above, and argued that Pickett is ineligible for
resentencing because he is “the actual killer.” (Boldface omitted.)
The district attorney also submitted a transcript of Pickett’s
sentencing hearing 3 and a post-plea probation report. 4
3 In Pickett’s opening brief on appeal, his counsel describes
the copy of the sentencing hearing transcript as “nearly wholly
illegible.” Although the quality of the reproduction is poor,
making the transcript difficult to read, it is almost entirely
legible.
4According to the probation report, Pickett described his
shooting of Moore and indicated that he acted alone.
4
On April 25, 2022, Pickett’s appointed counsel informed
the court that she would not be filing any reply to the district
attorney’s response to Pickett’s petition, and was submitting on
the petition.
The court summarily denied the petition on the ground that
Pickett “is not entitled to relief as a matter of law” because he
“was the shooter,” and section 1172.6 “does not apply to a
situation where the defendant was the actual shooter in a murder
case.” (Boldface omitted.)
Pickett timely appealed.
DISCUSSION
A. Section 1172.6
In 2018, the Legislature enacted Senate Bill No. 1437
(Stats. 2018, ch. 1015, § 2, p. 6675), which “eliminated natural
and probable consequences liability for murder as it applies to
aiding and abetting, and limited the scope of the felony-murder
rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The
law is intended “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, p. 6674; see People v. Gentile (2020) 10 Cal.5th 830,
842.)
Senate Bill No. 1437 also enacted the predecessor to
section 1172.6. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Section 1172.6 authorizes an individual convicted of murder
based on the natural and probable consequences doctrine or the
felony-murder doctrine to petition the superior court to vacate
the conviction and be resentenced on any remaining counts if the
5
petitioner could not now be convicted of murder because of the
changes made by the new law. (See Lewis, supra, 11 Cal.5th at
pp. 959–960.)
A petition under section 1172.6 must state, among other
allegations, that the “petitioner could not presently be convicted
of murder or attempted murder because of changes” Senate Bill
No. 1437 made to the law of murder. (§ 1172.6, subd. (a)(3).)
When, as here, a petitioner files a facially sufficient petition, the
trial court must appoint counsel for the petitioner, if requested,
and determine, after the opportunity for briefing and a hearing,
whether the defendant has made a prima facie case for relief
under section 1172.6. (§ 1172.6, subd. (c); People v. Hurtado
(2023) 89 Cal.App.5th 887, 891; People v. Flores (2022) 76
Cal.App.5th 974, 985 (Flores).)
In determining whether the defendant made the requisite
prima facie showing, the court may rely on the defendant’s record
of conviction. (Lewis, supra, 11 Cal.5th at p. 970; Flores, supra,
76 Cal.App.5th at p. 988.) In cases where the conviction resulted
from a guilty plea rather than a trial, the record of conviction
may include the transcript of the defendant’s preliminary hearing
testimony when the transcript “reliably reflect[s] the facts of
the offense for which the defendant was convicted.” (People v.
Reed (1996) 13 Cal.4th 217, 223; see People v. Patton (2023) 89
Cal.App.5th 649, 657 (Patton), review granted June 28, 2023,
S279670 [summary denial of section 1172.6 petition affirmed
based on uncontroverted testimony at preliminary hearing];
cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1018–1019
[preliminary hearing transcript is part of record of conviction
and may be relied on to prove conduct underlying prior felony
conviction for purposes of Three Strikes law]; People v. Blackburn
6
(1999) 72 Cal.App.4th 1520, 1531 [same]; People v. Houck (1998)
66 Cal.App.4th 350, 356–357 [preliminary hearing transcript is
not part of record of conviction when conviction resulted from a
jury verdict].)
“The record of conviction,” our Supreme Court has
explained, “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. This is consistent with the statute’s overall purpose:
to ensure that murder culpability is commensurate with a
person’s actions, while also ensuring that clearly meritless
petitions can be efficiently addressed as part of a single-step
prima facie review process.” (Lewis, supra, 11 Cal.5th at p. 971.)
Although, in reviewing the record of conviction, courts “should
not engage in ‘factfinding involving the weighing of evidence or
the exercise of discretion’ ” (id. at p. 972), when “the record . . .
makes clear that [the petitioner] was the actual killer and the
only participant in the killing,” the petitioner “is not entitled to
any relief under section 1172.6” (People v. Delgadillo (2022) 14
Cal.5th 216, 233). (See People v. Garcia (2022) 82 Cal.App.5th
956, 969–971 [where record of conviction “unequivocally
establishes that defendant was the ‘actual killer,’ ” defendant is
not entitled to relief under section 1172.6 as a matter of law].)
We independently review the trial court’s determination
that the petitioner failed to make a prima facie showing for relief.
(People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon
(2021) 68 Cal.App.5th 967, 975 (Eynon).)
7
B. Analysis
Based on our independent review of the record, we agree
with the trial court that Pickett has not made a prima facie
showing for relief under section 1172.6.
Although Pickett’s petition is facially sufficient and thus
entitled him to the appointment of counsel, it is devoid of factual
allegations concerning the killing of Moore. Pickett does not deny
that he was the actual killer, nor does he assert that another
person fired the shot that killed Moore or that he acted without
the intent to kill. He merely states the legal conclusion that he
could not now be convicted of murder because of changes made to
the law of murder under Senate Bill No. 1437.
In response to the petition, the district attorney submitted,
without objection, the preliminary hearing testimony of two
witnesses who watched Pickett as he confronted Moore after
learning that Moore had thwarted a neighborhood juvenile’s
attempt to steal a bottle of wine from a garage. They saw Pickett
pull out a gun and fire a shot into the air. As the witnesses ran
away, they heard one or two more shots, followed immediately
by the sight of Moore on the ground with an apparent gunshot
wound to his leg. The preliminary hearing transcript also
includes a stipulation by Pickett’s counsel that the medical
examiner who performed the autopsy on Moore would testify that
Moore died as the result of a gunshot wound to his right buttock.
Although there is no testimony from anyone who saw Pickett fire
the fatal shot, there is nothing to suggest that any other person
was involved in the incident. The inference that Pickett acted
alone and was the actual killer is uncontradicted and compelling.
Pickett, with the aid of counsel, had the opportunity to file
a reply to the district attorney’s response and present argument
8
at a hearing. He asserted no objection to the district attorney’s
evidence, however, and offered no evidence or argument that
might have raised a factual issue as to his involvement in Moore’s
death. We can thus assess Pickett’s prima facie showing without
“engag[ing] in ‘factfinding involving the weighing of evidence’ ” or
making any credibility determinations (Lewis, supra, 11 Cal.5th
at p. 972), because Pickett offered no evidence to weigh, and did
not dispute the evidence the district attorney submitted. (See
Patton, supra, 89 Cal.App.5th at p. 658, review granted [in
summarily denying section 1172.6 petition, court did not engage
in factfinding or weighing of evidence where uncontroverted
preliminary hearing testimony showed that the defendant was
the sole and actual perpetrator].)
Under these circumstances, where the defendant alleges
no facts concerning the murder to which he pleaded guilty, the
People introduce without objection uncontroverted evidence from
the preliminary hearing transcript showing that the defendant
acted alone in killing the victim, and the defendant does not put
forth, by way of briefing or oral argument, any factual or legal
theory in support of his petition, the defendant has failed to
make a prima facie showing for relief under section 1172.6. (See
Patton, supra, 89 Cal.App.5th at p. 657, review granted; see also
Lewis, supra, 11 Cal.5th at p. 971 [court may deny petition for
resentencing when it is “clearly meritless”].)
The cases Pickett relies on are inapposite or
distinguishable. In People v. Cooper (2020) 54 Cal.App.5th 106,
the defendant was convicted by plea of second degree murder.
In response to the defendant’s petition for resentencing under
section 1172.6, the district attorney produced preliminary
hearing testimony showing that the defendant and an accomplice
9
were involved in the killing of the victim. (Cooper, supra, at
pp. 110–111.) The court summarily denied the defendant’s
resentencing petition without appointing counsel for him or
receiving a reply to the district attorney’s response. The Court of
Appeal held that the court erred by failing to appoint counsel and
“by relying on the transcript of the preliminary hearing to deny
[the defendant’s] petition without first receiving briefing from
the parties.” (Id. at p. 124.) The court concluded: “Our opinion
should not be read to suggest that, had the trial court appointed
counsel for [the defendant] and received briefing from the parties,
it could not then rely on the preliminary-hearing transcript to
deny the petition for failure to make a prima facie showing of
entitlement to relief.” (Id. at p. 125.) The court further stated:
“We need not decide whether the court could have properly
denied the petition based on the existing record if, for example,
[the defendant] was appointed counsel but did not exercise the
opportunity to file a brief.” (Ibid.)
Here, we are faced with the scenario the Cooper court
expressly declined to address: Whether a court, in assessing the
prima facie showing under section 1172.6, can rely on evidence
presented at the defendant’s preliminary hearing where the
petitioning defendant was convicted by plea in the underlying
case and was appointed counsel but declined to file a brief or
raise any factual issue or argument in support of the petition.
Cooper provides no guidance on this question.
In People v. Rivera (2021) 62 Cal.App.5th 217 (Rivera),
testimony before a grand jury showed that defendant drove an
accomplice to a location where the accomplice shot and killed a
victim. (Id. at p. 224.) The defendant pleaded guilty to second
degree murder and stipulated as to the factual basis for his plea.
10
(Id. at pp. 225–226.) He later petitioned for resentencing under
section 1172.6. (Rivera, supra, at p. 226.) The court appointed
counsel, who filed a reply to the district attorney’s response to
the petition. In the reply, the defendant pointed out that his
accomplice “was the actual shooter,” and “highlighted the lack
of evidence that he shared or knew of [the accomplice’s] intent,
that he knew [the accomplice] had a gun, or that he assisted
[the accomplice] in any way except by driving the car.” (Ibid.)
The trial court summarily denied the petition, and the Court of
Appeal reversed.
The Rivera court rejected the trial court’s reliance on
the grand jury testimony to support summary denial of the
resentencing petition, stating: “[W]hen a petitioner disputes that
the evidence presented at a preplea proceeding demonstrates his
or her guilt under a still-valid theory of murder, and no ‘ “readily
ascertainable facts” ’ definitively prove otherwise, a trial court
cannot deny a petition at the prima facie stage without resorting
to ‘ “factfinding involving the weighing of evidence or the exercise
of discretion.” ’ ” (Rivera, supra, 62 Cal.App.5th at p. 238.)
The court explained that the defendant “not only filed a facially
sufficient petition but, with the assistance of counsel, offered
a theory under which the evidence presented to the grand
jury was consistent with his guilt of murder under the natural
and probable consequences doctrine, based upon an intent to
participate in a target offense of assault. [Citation.] In doing
so, he created a factual dispute that cannot be resolved at
the prima facie stage since nothing in the record definitively
foreclosed his theory.” (Id. at p. 239.)
Like the Cooper court, the Rivera court expressly limited
its holding to cases where a petitioner submits a brief in support
11
of the petition: “[W]e leave open the possibility that if a
petitioner who entered a plea to murder after being indicted
submits a form petition making the required declarations but
does not in any way contest the evidence presented to the grand
jury, a trial court can rely on the grand jury transcript to deny
the petition before holding an evidentiary hearing.” (Rivera,
supra, 62 Cal.App.5th at p. 238.) Rivera, therefore, does not
aid Pickett.
In People v. Davenport (2021) 71 Cal.App.5th 476(Davenport), the defendant pleaded no contest to second
degree murder and later filed a petition for resentencing under
section 1172.6. The district attorney filed opposition to the
petition, and the defendant’s court-appointed counsel filed a
reply brief. 5 (Davenport, supra, at p. 480.) The court summarily
denied the petition based in part on preliminary hearing
testimony showing that defendant acted alone in shooting
and killing the victim. (Ibid.) The Court of Appeal reversed.
Although the court disagreed with the defendant’s contention
that the preliminary hearing transcript is not part of the
record of conviction, the court held that “the trial court erred in
considering facts from the preliminary hearing transcript . . .
because [the defendant] did not stipulate to the transcript as a
factual basis for [the] plea.” (Id. at p. 481.)
Davenport can be distinguished on the ground that the
defendant’s counsel filed a reply brief—presumably asserting a
factual or legal basis in support of the petition—whereas Pickett’s
counsel did not. Unlike the Cooper and Rivera courts, however,
5 The Davenport opinion does not indicate what arguments
the defendant asserted in his reply brief.
12
the Davenport court did not limit its holding to cases where
the defendant files a brief or otherwise raises a factual issue
or proffers a theory in support of section 1172.6 eligibility.
Davenport appears to say that a trial court, in considering
whether a defendant makes a prima facie showing under
section 1172.6, can never consider facts from the defendant’s
preliminary hearing unless the defendant had stipulated to
the preliminary hearing transcript as a factual basis for his plea.
(Davenport, supra, 71 Cal.App.5th at p. 481.) Indeed, Pickett
cites to Davenport for this proposition in his brief on appeal.
To the extent Davenport can be read to stand for that proposition,
we disagree with it.
As our Supreme Court has explained, the transcript of a
preliminary hearing is considered part of the record of conviction
because the transcript “reliably reflect[s] the facts of the offense
for which the defendant was convicted.” (Reed, supra, 13 Cal.4th
at p. 223.) The transcript is reliable, the court explained,
“because the procedural protections afforded the defendant
during a preliminary hearing tend to ensure the reliability of
such evidence. Those protections include the right to confront
and cross-examine witnesses and the requirement those
witnesses testify under oath, coupled with the accuracy afforded
by the court reporter's verbatim reporting of the proceedings.”
(Ibid.) Although evidence adduced at the preliminary hearing
establishes, at most, only that “there is ‘sufficient cause’ to
believe defendant guilty of a public offense” (People v. Uhlemann
(1973) 9 Cal.3d 662, 667), that limitation does not necessarily
preclude the trial court from allowing such evidence to “inform
the trial court’s prima facie inquiry under section [1172.6]” to
determine whether the petition is “clearly meritless” (Lewis,
13
supra, 11 Cal.5th at p. 971). Nothing in Lewis supports the
proposition that the preliminary hearing transcript may “inform
the trial court’s prima facie inquiry” only when the defendant
has stipulated to the transcript as the factual basis for his plea.
Pickett also cites to Flores, supra, 76 Cal.App.5th 974. In
that case, the People relied on the preliminary hearing testimony
of a sheriff ’s deputy in arguing that the defendant failed to make
a prima facie showing for relief under section 1172.6. According
to the deputy, the defendant said that an accomplice shot the
victim “multiple times and beat him around the head and upper
body, after which [the defendant] may have accidentally run
over [the victim] twice while leaving the scene.” (Flores, supra,
at p. 991.) The Flores court acknowledged that the trial court
can consider the preliminary hearing transcript in assessing
the defendant’s prima facie showing (id. at p. 989, fn. 11), but
held that the deputy’s testimony “[did] not establish petitioner’s
ineligibility for resentencing as a matter of law.” (Id. at p. 991.)
The defendant’s statements to the deputy did not preclude
the possibility that the accomplice, not the defendant, was
the actual killer, or that the defendant aided and abetted his
accomplice without the intent to kill the victim. The evidence,
therefore, “[did] not exclude the possibility that petitioner was,
or could have been, convicted under the imputed malice theories
eliminated by Senate Bill No. 1437.” (Ibid.) Here, by contrast,
there is no allegation or evidence of an accomplice in the killing
of Moore; the uncontradicted evidence shows that Moore acted
alone. Flores, therefore, does not help Pickett. 6
6Pickett contends that the post-plea probation report and
sentencing transcripts are not part of the record of conviction and
14
For all the foregoing reasons, Pickett has failed to
make a prima facie showing that he is eligible for relief under
section 1172.6. The court, therefore, did not err in denying his
petition.
DISPOSITION
The order denying Pickett’s petition for resentencing is
affirmed.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
should not be considered in evaluating his prima facie showing.
Without deciding these questions, we need not consider these
documents because Pickett has failed to make a prima facie
showing for relief regardless of their content. Nor do we rely
on the fact that Pickett pleaded guilty to second degree murder
and admitted the firearm allegation. As Pickett contends,
such admissions do not necessarily preclude relief under
section 1172.6. (Eynon, supra, 68 Cal.App.5th at pp. 977–978;
Davenport, supra, 71 Cal.App.5th at p. 485.)
15
Filed 7/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B320892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A020654)
v.
CERTIFICATION AND
RAYMOND PICKETT, ORDER FOR PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on June 29,
2023 was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
____________________________________________________________
ROTHSCHILD, P. J. BENDIX, J. WEINGART, J.