People v. King CA1/5 ( 2023 )

Filed 9/21/23 P. v. King CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166153
v.
AARON CHRISTOPHER KING, (Humboldt County
Defendant and Appellant. Super. Ct. No. CR1601245)
MEMORANDUM OPINION
Aaron Christopher King filed a facially sufficient petition for
resentencing under former Penal Code section 1170.95, but the trial court
denied the petition without appointing counsel, inviting briefing, or holding a
hearing.1 On appeal, the parties agree—as do we—that the court erred. We
reverse and remand.
In 2016, the prosecution charged defendant with five felonies:
attempted willful, deliberate, and premeditated murder (count 1); attempted
second degree robbery (count 2); assault with a semiautomatic firearm
(count 3); possession of a firearm by a felon (count 4); and first degree
1 We resolve this case by memorandum opinion.(Cal. Stds. Jud.
Admin., § 8.1.) Undesignated statutory references are to the Penal Code. In
June 2022, former section 1170.95 was renumbered as section 1172.6. We
refer to the statute by its current number.
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residential burglary (count 5). The prosecution also alleged firearm
enhancements as to counts 1, 2, and 3.
In 2018, defendant pleaded guilty to amended count 1—
nonpremeditated attempted murder, described by the court as “[a]ttempted
second degree” murder—and counts 2 and 5. He admitted the firearm
enhancement attached to count 1 (§ 12022.53) and a modified firearm
enhancement attached to count 2 (§ 12022.5). The parties agreed the
preliminary hearing transcript provided a factual basis for the plea. The trial
court dismissed counts 3 and 4 and the firearm enhancement attached to
count 3; the court sentenced defendant to prison.2
In 2022, defendant filed a petition for resentencing pursuant to section
1172.6. He stated the prosecution charged him with attempted murder under
the natural and probable consequences doctrine; that he pleaded guilty to
attempted murder because he believed he could have been convicted under
the natural and probable consequences doctrine; and that he could not now
be convicted of attempted murder in light of changes to sections 188 and 189.
He asked the trial court to appoint counsel to represent him in connection
with the petition. Four days later—and without appointing counsel, inviting
briefing, or holding a hearing—the court summarily denied the petition. In a
conclusory written order, the court stated it had considered defendant’s
petition and determined he was ineligible for section 1172.6 relief. Defendant
appealed.
2 The preliminary hearing transcript is not part of the appellate record.
At sentencing, the trial court indicated it had read and considered the
probation report. While that document is before us, we do not summarize it
because the Attorney General cites authority suggesting it may not be proper
for a trial court to rely on information contained in a probation report in
determining eligibility at the prima facie stage of the section 1172.6
resentencing process. (See People v. Flores (2022) 76 Cal.App.5th 974, 988.)
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Having set forth the relevant background, we turn to the question
presented: whether the trial court erred in summarily denying defendant’s
resentencing petition. The answer is yes.
Recent legislation has “significantly limited the scope of the felony-
murder rule” and restricted “murder liability predicated on the natural and
probable consequences doctrine.” (People v. Strong (2022) 13 Cal.5th 698, 707
& fn. 1; § 1172.6, subd. (a) [statute applies to defendants convicted of
“attempted murder under the natural and probable consequences doctrine”].)
As numerous courts have described the legislation and its attendant
ramifications, we need not summarize it in detail here. (See, e.g., People v.
Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Briefly, the legislation created a
process by which a defendant convicted of “felony murder or murder based on
the natural and probable consequences doctrine to petition the sentencing
court to vacate the conviction and be resentenced on any remaining counts if
he could not have been convicted of murder because of [legislative] changes to
the definition of the crime.” (People v. Patton (2023) 89 Cal.App.5th 649, 655,
review granted June 28, 2023, S279670.) The “process begins with the filing
of a declaration that all requirements for eligibility are met,” among them
that the “ ‘petitioner could not presently be convicted of murder or attempted
murder because of changes to . . . Section 188 or 189 made effective
January 1, 2019’ . . . .” (Strong, at p. 708.)
If a petitioner files a “facially sufficient petition” under section 1172.6,
three things must happen. (Lewis, supra, 11 Cal.5th at p. 957.) First, the
court must appoint counsel if requested. (§ 1172.6, subd. (b)(1)(C), (b)(3).)
Second, the prosecution must file and serve a response to the petition, to
which the petitioner may reply. (Id., subd. (c).) Third—and after the parties
have had an opportunity to submit briefing—the court must “hold a hearing
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to determine whether the petitioner has made a prima facie case for relief.”
(Ibid.)
Here, it is undisputed defendant filed a facially sufficient petition, but
the trial court did not appoint counsel for defendant, give the parties an
opportunity for briefing, or hold a hearing. The parties agree the court erred
by summarily denying defendant’s petition. We do, too. (Lewis, supra, 11
Cal.5th at p. 967.) And as the Attorney General acknowledges, the error was
not harmless. (See People v. Mejorado (2022) 73 Cal.App.5th 562, 572.)
Under the circumstances, remand is required. If—after following the
statutory procedure—the court finds defendant has failed to make a
prima facie showing of eligibility for relief, it may summarily deny his
petition. (See, e.g., People v. Patton, supra, 89 Cal.App.5th at pp. 654–657,
rev.gr.) But if the court declines to issue an order to show cause, it must
provide a statement of reasons. (§ 1172.6, subd. (c).) Our conclusion makes it
unnecessary to address defendant’s other claim of error.
DISPOSITION
The July 2022 order denying defendant’s section 1172.6 petition for
resentencing is reversed. The matter is remanded to the trial court with
directions to appoint counsel for defendant, invite briefing, and hold a
hearing to determine whether he can make a prima facie showing of
entitlement to relief. If the court summarily denies the petition without
issuing an order to show cause, it must provide a statement of reasons.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Burns, J.
_________________________
Chou, J.
A166153/People v. Aaron Christopher King
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