People v. Orozco CA2/5 ( 2023 )

Filed 12/18/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B327113
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA114974-01)
v.
BRYAN OROZCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Victor D. Martinez, Judge. Reversed and
remanded with directions.
Nicholas Seymour, 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, Wyatt E. Bloomfield and Lindsay
Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
Brian Orozco appeals the trial court’s order denying his
petition for vacatur of his attempted murder conviction and
resentencing under Penal Code section 1172.6.1 Orozco pleaded
no contest to attempted murder and admitted the allegation that
he used a firearm in the commission of the crime pursuant to
section 12022.53, subdivision (b). The trial court found that
Orozco failed to make a prima facie showing that he was eligible
for relief. On appeal, Orozco argues, and the People concede, that
Orozco is prima facie eligible for relief and entitled to an
evidentiary hearing under section 1172.6, subdivision (d)(3).
We accept the People’s concession. We reverse the trial
court’s order and remand the matter to the trial court to issue an
order to show cause and conduct an evidentiary hearing pursuant
to section 1172.6, subdivision (d)(3).
BACKGROUND AND PROCEDURAL HISTORY2
An information filed on November 27, 2017, alleged that
Orozco committed attempted willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664, count 1), possession
of a firearm by a felon (§ 29800, subd. (a)(1), count 2), and
unlawful possession of ammunition (§ 30305, subd. (a)(1), count
3). As to count 1, it was alleged that the attempted murder was
committed willfully, deliberately, and with premeditation within
the meaning of Penal Code section 664, subdivision (a), and was a
serious felony pursuant to section 1192.7, subdivision (c). It was
1 All further statutory references are to the Penal Code.
2 We do not include a recitation of the facts, as they are not
necessary to our resolution of this case.
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further alleged that Orozco personally used a firearm pursuant to
section 12022.53, subdivisions (b) and (c) in the commission of
count 1, and that the offense was committed for the benefit of, at
the direction of, and in association with a criminal street gang
pursuant to section 186.22, subdivision (b)(1)(C).3
On January 25, 2018, the prosecution struck, pursuant to a
plea agreement, the special allegation that the attempted murder
was committed willfully, deliberately, and with premeditation, as
well as the personal firearm use allegation under section
12022.53, subdivision (c). Orozco pleaded no contest to counts 1,
2, and 3, and admitted personal use of a firearm pursuant to
section 12022.53, subdivision (b). Orozco did not admit to a
factual basis for the plea, pursuant to People v. West (1970) 3
Cal.3d 595.4
On March 7, 2022, Orozco filed a petition for vacatur of his
attempted murder conviction and resentencing pursuant to
section 1172.6. Orozco requested counsel, which the court
appointed.
3 At the preliminary hearing, the prosecutor informed the
court that the People did not intend to proceed as to the gang
allegation in count 1.
4 “[A] West plea [is] “ ‘a plea of nolo contendere, not
admitting a factual basis for the plea,’ ” which “allows a
defendant to plead guilty in order to take advantage of a plea
bargain while still asserting his or her innocence.” ” (People v.
Rauen (2011) 201 Cal.App.4th 421, 424.) Although there was
disagreement as to this point in the trial court, the parties agree
that Orozco did not stipulate to the preliminary hearing
transcript as a factual basis for the plea.
3
The People opposed Orozco’s petition on the ground that
Orozco was the actual perpetrator who acted with actual malice
based on the record of conviction, including the preliminary
hearing transcript. The transcript of the preliminary hearing
and the transcript of the plea colloquy and sentencing hearing
were attached to the People’s response.
Orozco filed a reply through counsel. Orozco asserted that
the trial court could not consider the preliminary hearing
transcript at the prima facie stage because Orozco did not
stipulate to the transcript or to any document as factual support
for the plea, or admit the truth of the transcript’s contents.
Considering the preliminary hearing transcript absent a
stipulation would constitute fact-finding by the court, which was
prohibited at the prima facie stage. Alternatively, Orozco argued
that even if he had stipulated to the preliminary hearing
transcript, the transcript did not conclusively reflect that he was
the actual shooter who acted with intent to kill.
Subsequently, the People filed a brief contending that the
trial court could consider the preliminary hearing transcript at
the prima facie stage under People v. Davenport (2021) 71
Cal.App.5th 476, because Orozco stipulated that the preliminary
hearing transcript would serve as the factual basis for the plea.
The People argued that the record of conviction established that
Orozco was not convicted under a now-invalid theory of liability.
At a hearing on the matter, defense counsel argued that
Orozco did not stipulate to a factual basis for the plea. Even if
the court could consider the preliminary hearing transcript,
under the facts adduced at the preliminary hearing it was
possible that Orozco pleaded no contest to avoid being prosecuted
under a theory of imputed malice.
4
The trial court found that Orozco had not stipulated to the
preliminary hearing transcript as a factual basis for the plea.
However, the court denied the petition because it found that
Orozco failed to make a showing that he was prima facie eligible
for relief.
DISCUSSION
Legal Principles
When Orozco pleaded no contest to attempted murder in
2018, 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 People v. 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
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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).)
“After a petition for resentencing is filed, the trial court
must . . . determine whether the defendant has made a prima
facie showing of entitlement to relief.” (People v. Davenport,
supra, 71 Cal.App.5th at pp. 480–481.) “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.” (People v. Lewis (2021) 11 Cal.5th 952,
971.) “[A] trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ [Citation.]
. . . .” (Id. at p. 972.) 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
On appeal, Orozco contends, and the People concede, it was
improper for the trial court in this case to consider the
preliminary hearing transcript at the section 1172.6, subdivision
(c) hearing to determine Orozco was ineligible for resentencing as
a matter of law – and, further, that Orozco has made the
requisite prima facie showing that he is eligible for relief. In
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light of the fact that the People’s opposition to the petition was
predicated on the facts contained in the preliminary hearing
transcript, we accept the People’s concession.
DISPOSITION
We reverse the trial court’s order denying Orozco’s petition
for resentencing under Penal Code section 1172.6 and remand
the matter to the trial court to issue an order to show cause and
conduct an evidentiary hearing pursuant to section 1172.6,
subdivision (d)(3).
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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