People v. Orozco CA2/5 ( 2024 )

Filed 9/25/24 P. v. Orozco CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B331627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA131923)
v.
CHRISTOPHER OROZCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Coen, Judge. Reversed and remanded.
Law Offices of James Koester and James Koester, 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, Senior
Assistant Attorney General, Noah P. Hill and Heidi Salerno,
Deputy Attorneys General for Plaintiff and Respondent.
Christopher Orozco appeals the trial court’s order denying
his petition for vacatur of his attempted murder conviction and
resentencing under Penal Code1 former section 1170.95 (now
§1172.6). The trial court relied on the preliminary hearing
transcript to find that Orozco failed to make a prima facie
showing of eligibility because the evidence presented at the
preliminary hearing indicated he was the sole perpetrator who
committed attempted murder by stabbing the victim. We reverse
the trial court’s order and remand for further proceedings.
PROCEDURAL HISTORY
A. Charges
In an amended information filed on April 14, 2014, Orozco
was charged with one count of attempted murder (§§ 187, subd.
(a) & 664, count 1) and one count of assault with a deadly
weapon, a knife (§ 245, subd. (a)(1)). It was alleged as to count
one that Orozco personally used a dangerous and deadly weapon,
a knife. (§ 12022, subd. (b)(1).) It was further alleged as to both
counts that Orozco personally inflicted great bodily injury on the
victim (§ 12022.7, subd. (a)), and that Orozco had suffered two
prior convictions for serious and/or violent felonies under the
Three Strikes law (§§ 667, subd. (d) & 1170.12, subd. (b)),
suffered two prior serious felony convictions within the meaning
of section 667.5, subdivision (a)(1), and served a prior prison term
within the meaning of section 667.5, subdivision (b).
1 All further statutory references are to the Penal Code.
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B. Plea
Orozco filled out a felony advisement of rights, waiver, and
plea form in which he indicated that he wished to plead guilty or
no contest to attempted murder in count 1 and admit the
personal knife use allegation, the personal infliction of great
bodily injury allegation, and the allegation that he suffered one
prior strike conviction, for an aggregate prison term of 22 years.
Item 16 of the plea form stated “I offer to the Court the following
as the basis for my plea of guilty or no contest and any
admission(s) (select applicable box):” Orozco crossed out the box
for 16. A., which states “I stipulate and agree that there is a
factual basis for my plea(s) and admission(s).” Orozco initialed
the box for 16. B., which states, “I am pleading guilty or no
contest to take advantage of a plea bargain. (People v. West
[(1970) 3 Cal.3d 595].)”
At the plea colloquy, Orozco stated that he signed, dated,
and initialed the advisement of rights waiver and plea form,
which he understood with the help of his lawyer. Orozco further
stated that he understood he would be admitting the great bodily
injury and knife allegations and that he would be sentenced to 22
years in prison. The court then asked Orozco if he understood
the maximum time and stipulated to a factual basis for the plea
based on the police reports and preliminary hearing transcript.
Defense counsel responded in the affirmative.
The court sentenced Orozco to nine years for the attempted
murder, doubled to 18 years under the Three Strikes law, plus
three years for the great bodily injury enhancement, and one year
for personal use of the knife, for a total term of 22 years in prison.
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C. Section 1172.6 Petition
In 2022, Orozco filed a petition for resentencing under
former section 1170.95 utilizing a standard form. The trial court
appointed counsel.
The People filed an opposition to Orozco’s petition on the
basis that he was prosecuted as the actual perpetrator and was
therefore ineligible for resentencing. The preliminary hearing
transcript and plea colloquy transcript were attached to the
opposition. The People argued that Orozco pleaded no contest to
attempted murder, admitted to personally using a knife and
personally inflicting great bodily injury, and stipulated to the
preliminary hearing transcript as the factual basis for the plea.
Orozco filed a reply through counsel stating that he made
the requisite allegations and had not stipulated to a factual basis
for the plea. The preliminary hearing transcript was not
uncontroverted and could not be the basis for a finding that he
was prima facie ineligible for relief under section 1172.6.
At the prima facie hearing, both parties submitted on the
pleadings. The trial court found that Orozco was ineligible for
relief as a matter of law because the case was not based on any
theory under which another person committed an act and
liability was imputed to Orozco. Orozco was the sole perpetrator
who committed the attempted murder by stabbing the victim at
least four times in the chest and stomach.
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DISCUSSION
A. Legal Principles
When Orozco pleaded no contest to attempted murder in
2014, a defendant could be convicted under the theory that the
defendant aided and abetted a crime of which attempted murder
was a natural and probable consequence. (See People v. Chiu
(2014) 59 Cal.4th 155, 161 [discussing natural and probable
consequences liability generally]; see also § 31.) Under the law at
that time, it was not necessary to prove that the defendant
intended that the attempted murder be committed or even that
the defendant subjectively foresaw that attempted murder could
result. (See Chiu, at pp. 161–162.)
In 2019, the Legislature, through Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437),
amended section 188 to eliminate the natural and probable
consequences doctrine as it applies to murder and to require,
with certain exceptions under the felony-murder rule, that a
defendant act with malice to be convicted of murder. (§ 188,
subd. (a)(3).) In 2021, through Senate Bill No. 775 (2020–2021
Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), the
Legislature clarified that the amendments made by Senate Bill
1437 were also intended to apply to attempted murder. Senate
Bill 775 also amended former section 1170.95 to permit persons
convicted by plea agreement of attempted murder under the
natural and probable consequences doctrine to file a petition with
the sentencing court to vacate the conviction and be resentenced.
(§ 1172.6, subd. (a).)
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Under section 1172.6, a defendant convicted by plea of
attempted murder under the natural and probable consequences
doctrine must attest to the following: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under [a natural and probable
consequences theory of attempted murder] . . . . [¶] (2) The
petitioner was convicted of . . . attempted murder . . .
following . . . 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 [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subds. (a)(1)–(a)(3), (b)(1).)
“After a petition for resentencing is filed, the trial court
must then determine whether the defendant has made a prima
facie showing of entitlement to relief.” (People v. Davenport
(2021) 71 Cal.App.5th 476, 480.) “The 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. . . . [¶]
While 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 [1172.6] relief, the prima facie
inquiry under subdivision (c) is limited. . . . ‘[A] court should not
reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing.’ ” (People v.
Lewis (2021) 11 Cal.5th 952, 971.) “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.] . . . [T]he
‘prima facie bar was intentionally and correctly set very low.’ ”
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(Id. at p. 972.) “At the prima facie stage, a court must accept as
true a petitioner’s allegation that he or she could not currently be
convicted of a homicide offense because of changes to [s]ection
188 or 189 made effective January 1, 2019, unless the allegation
is refuted by the record. [Citation.] And this allegation is not
refuted by the record unless the record conclusively establishes
every element of the offense.” (People v. Curiel (2023) 15 Cal.5th
433, 463.) If the petitioner makes a prima facie showing of
eligibility, the trial court must issue an order to show cause and
hold an evidentiary hearing. (Ibid.)
We independently review a trial court’s determination of
whether a petitioner has made a prima facie showing. (People v.
Harden (2022) 81 Cal.App.5th 45, 52.)
B. Analysis
Orozco contends that the trial court erred by finding him
ineligible for relief under section 1172.6 as a matter of law at the
prima facie stage of proceedings. Orozco argues that nothing in
the record of conviction conclusively forecloses his eligibility, even
though, as he concedes, the preliminary hearing transcript
contradicts his allegation that he could not presently be convicted
of attempted murder “because of changes to [s]ection 188 or 189
made effective January 1, 2019.” (§ 1172.6, subds. (a)(3), (b)(1).)
We agree. Orozco made a prima facie showing that he was
eligible for relief that was not refuted by the record of conviction
as a matter of law. The information charged Orozco with
attempted murder, alleging that Orozco “unlawfully, and with
malice aforethought attempted to murder” the victim. Because
the crime of attempted murder was generically charged, the
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complaint allowed the prosecution to proceed on a theory of
attempted murder under the natural and probable consequences
doctrine. (See § 1172.6, subd. (a)(1); People v. Davenport, supra,
71 Cal.App.5th at p. 484 [“ ‘The allegation that a murder was
committed “ ‘willfully, unlawfully, and with malice
aforethought’ ” is a well-recognized way of charging murder in [a]
generic sense,’ ” which “does ‘not limit the People to prosecuting
[defendant] on any particular theories’ ”].)
Orozco pleaded no contest pursuant to People v. West (1970)
3 Cal.3d 595, and did not admit to any particular facts or legal
theory as the basis for the plea. Thus, his no contest plea did not
constitute an admission to the manner in which he committed the
attempted murder. (See People v. French (2008) 43 Cal.4th 36,
49; People v. Delgado (2008) 43 Cal.4th 1059, 1066 [“if the prior
conviction was for an offense that can be committed in multiple
ways, and the record of conviction does not disclose how the
offense was committed, a court must presume the conviction was
for the least serious form of the offense”].)
Orozco’s admissions that he personally used a dangerous
and deadly weapon (§ 12022, subd. (b)(1)), and personally
inflicted great bodily injury on the victim (§ 12022.7, subd. (a))
also do not foreclose as a matter of law the possibility that he was
convicted under the natural and probable consequences doctrine.
These enhancements increase punishment based on the
defendant’s actions, but neither requires that the defendant act
with express or implied malice as attempted murder does.
Finally, the preliminary hearing transcript does not
establish that Orozco is prima facie ineligible for relief as a
matter of law. Orozco did not admit to the truth of the facts
contained in the preliminary hearing transcript. On his plea
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form he crossed out the words “I stipulate and agree that there is
a factual basis for my plea(s) and admission(s)[,]” and instead
indicated that he was pleading no contest to take advantage of a
plea bargain pursuant to People v. West, supra, 3 Cal.3d 595. At
the plea colloquy defense counsel stipulated to a factual basis for
the plea. Orozco did not.
Our Supreme Court has recently emphasized that at the
prima facie stage a trial court is only permitted to deny the
petition if the record of conviction forecloses the possibility that
the petitioner was convicted under an invalid theory as a matter
of law. (People v. Curiel, supra, 15 Cal.5th at p. 470.) If there is
a possibility that the petitioner could provide evidence to rebut
the evidence in the record of conviction, the resolution of the
matter involves factfinding and an evidentiary hearing is
required. (People v. Lewis, supra, 11 Cal.5th at p. 972.) Because
Orozco did not admit to the facts contained in the preliminary
hearing transcript there remains a possibility that he could rebut
the evidence in the record of conviction. (See People v. Williams
(2024) 103 Cal.App.5th 375, 404.)
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DISPOSITION
We reverse the trial court’s order denying Orozco’s petition
for resentencing under Penal Code section 1172.6 and remand for
further proceedings.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
We concur:
KIM, J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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