People v. Hernandez CA2/5 ( 2024 )

Filed 1/31/24 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B328585
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459670)
v.
ANGELA HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Reversed and
remanded.
Jonathan E. Demson, 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, Idan Ivri and Nikhil Cooper, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________
Angela Hernandez appeals the trial court’s order denying
her petition for vacatur of her attempted murder conviction and
resentencing under Penal Code section 1172.6.1 Hernandez
pleaded no contest to attempted murder and admitted the
allegation that she personally inflicted great bodily injury upon
the victim under circumstances involving domestic violence. The
trial court found that Hernandez failed to make a prima facie
showing that she was eligible for relief. On appeal, Hernandez
argues that the trial court erred because the record of conviction
does not preclude her from relief as a matter of law. We reverse
the trial court’s order and remand the matter for further
proceedings pursuant to section 1172.6.
PROCEDURAL HISTORY
In 2017, Hernandez pleaded no contest to one count of
attempted murder (§§ 187, subd. (a)/664) and admitted that she
personally inflicted great bodily injury upon the victim under
circumstances involving domestic violence (§ 12022.7, subd. (e)).
Hernandez pleaded pursuant to People v. West (1970) 3 Cal.3d
595, and thus did not admit to a factual basis for the plea.
Defense counsel joined in waivers, but not in the plea. Counsel
did not stipulate to a factual basis for the plea, but stipulated to
the complaint, which set forth the same allegations as the
information to which Hernandez pleaded. Hernandez was
sentenced to 12 years in state prison.
On March 10, 2022, Hernandez filed a petition for vacatur
of her attempted murder conviction and resentencing pursuant to
1 All further statutory references are to the Penal Code.
2
section 1172.6 on a standard form. Hernandez requested counsel,
which the court appointed.
The People filed a brief opposing Hernandez’s petition on
the ground that the preliminary hearing transcript reflected that
Hernandez ran over the victim with her car twice. The People
argued that, as the direct perpetrator of the attempted murder,
Hernandez was ineligible for relief as a matter of law.
Hernandez filed a reply through counsel. The reply argued
that by filing a facially sufficient petition containing a declaration
that met the requirements of section 1172.6, subdivisions (a) and
(b)(1)(A), Hernandez made a prima facie showing of eligibility for
resentencing. Hernandez asserted that the evidence contained in
the preliminary hearing transcript could not preclude relief at the
prima facie stage as a matter of law because she did not stipulate
to the transcript or to any document as a factual basis for the
plea, or otherwise admit that she was the actual perpetrator.
The trial court’s consideration of the preliminary hearing
transcript absent a stipulation would constitute fact-finding,
which was prohibited at the prima facie stage.
At a hearing on the matter on December 30, 2022, the
prosecution argued that Hernandez pleaded no contest to
attempted murder, which is a specific intent crime, as charged in
the information. Hernandez also admitted to personally
inflicting great bodily injury under circumstances involving
domestic violence and therefore could not have been prosecuted
under a natural and probable consequences theory under the
circumstances. The prosecutor argued that the court could
consider the preliminary hearing transcript even if Hernandez
did not stipulate to it as a factual basis for the plea, because the
transcript was part of the record of conviction. The preliminary
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hearing transcript demonstrated that Hernandez ran over the
victim with her car. There was no question regarding her role in
the attempted murder.
Defense counsel responded that the trial court was
prohibited from making factual determinations based on the
evidence in the preliminary hearing transcript. He asserted that
Hernandez had made a prima facie showing that she was eligible
for relief.
The court issued a written decision denying Hernandez’s
petition. The court agreed with the parties that at the prima
facie stage of proceedings it was limited to consideration of the
record of conviction and could not engage in fact-finding. The
court agreed with the People that it could consider the
preliminary hearing transcript in Hernandez’s case because there
were no disputed facts. The preliminary hearing transcript
showed that Hernandez acted alone, with either express or
implied malice. As the actual perpetrator, Hernandez did not fall
within the purview of section 1172.6. Alternatively, excluding
the preliminary hearing transcript from consideration, the record
of conviction was sufficient to deny the petition as a matter of
law. Hernandez was convicted as the sole perpetrator of the
attempted murder as charged, and admitted the personal
infliction of great bodily injury allegation. At all times
throughout the proceedings, the prosecution contended that
Hernandez was the sole perpetrator. Hernandez failed to make a
sufficient prima facie showing of eligibility.
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DISCUSSION
Legal Principles
When Hernandez pleaded no contest in 2017, a defendant
could be convicted of attempted murder 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 (now § 1172.6) 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.’ [Citation.]
‘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.” ’ ” (People v. Lewis (2021) 11 Cal.5th
952, 971.) “In reviewing any part of the record of conviction at
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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.’ ” (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.)
Analysis
Hernandez contends that the trial court erred by finding
her ineligible for relief under section 1172.6 as a matter of law at
the prima facie stage of proceedings. Hernandez argues that
nothing in the record of conviction conclusively forecloses her
eligibility, and that requiring her to submit additional evidence to
overcome the evidence in the preliminary hearing transcript prior
to an evidentiary hearing imposes a burden on her that is not
contemplated by the statute.
We agree. Hernandez made a prima facie showing that she
was eligible for relief that was not refuted by the record of
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conviction as a matter of law. The information charged
Hernandez with attempted murder, alleging that Hernandez
“unlawfully and with malice aforethought attempt[ed] to murder”
the victim. Because the crime of attempted murder was
generically charged, the 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’ ”].)
Hernandez pleaded no contest pursuant to People v. West,
supra, 3 Cal.3d 595, and did not admit to a factual basis for the
plea. Thus, her no contest plea did not constitute an admission to
the manner in which she 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”].)
Hernandez’s admission that she personally inflicted great
bodily injury upon the victim under circumstances involving
domestic violence (§ 12022.7, subd. (e)) also does not foreclose as
a matter of law the possibility that she was convicted under the
natural and probable consequences doctrine. Section 12022.7,
subdivision (e) imposes additional punishment on “[a]ny person
who personally inflicts great bodily injury under circumstances
involving domestic violence in the commission of a felony or
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attempted felony.” “ ‘Domestic violence’ means abuse committed
against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect
has had a child or is having or has had a dating or engagement
relationship.” (§ 13700, subd. (b).) “ ‘Abuse’ means intentionally
or recklessly causing or attempting to cause bodily injury, or
placing another person in reasonable apprehension of imminent
serious bodily injury to himself or herself, or another.” (§ 13700,
subd. (a).) The enhancement does not require that the defendant
act with express or implied malice as attempted murder does.
Finally, the preliminary hearing transcript does not
establish that Hernandez is prima facie ineligible for relief as a
matter of law. Hernandez did not admit to the truth of the facts
contained in the preliminary hearing transcript. Her counsel
argued in the trial court and again on appeal that, because
Hernandez made no such admission, she was not estopped from
rebutting the evidence contained in the preliminary hearing
transcript at an evidentiary hearing held pursuant to section
1172.6, subdivision (d)(3).
Hernandez is correct. 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
“foreclose[s] [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 (including the preliminary hearing
transcript), the resolution of the matter involves fact-finding and
an evidentiary hearing is required. (People v. Lewis, supra, 11
Cal.5th at p. 972.)
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We are not persuaded otherwise by People v. Patton (2023)
89 Cal.App.5th 649, review granted June 28, 2023, S279670, and
People v. Pickett (2022) 93 Cal.App.5th 982, review granted
October 11, 2023, S281643, which are distinguishable. In both
cases, the courts of appeal concluded that the evidence contained
in the preliminary hearing transcript conclusively foreclosed the
possibility that the petitioner was convicted under an invalid
theory of liability in part because the defendant did not file a
reply in response to the People’s opposition to the petition or
otherwise object to the evidence in the preliminary hearing
transcript. (Patton, at pp. 654, 658 [evidence in preliminary
hearing transcript was “uncontroverted”]; Pickett, at p. 990
[same].) Here, counsel filed a reply arguing that the preliminary
hearing transcript did not preclude relief as a matter of law and
argued the issue in a hearing before the trial court. The
preliminary hearing transcript was not uncontroverted in
Hernandez’s case.
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DISPOSITION
We reverse the trial court’s order denying Hernandez’s
petition for resentencing under Penal Code section 1172.6 and
remand for further proceedings.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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