People v. Luke CA2/2 ( 2024 )

Filed 10/23/24 P. v. Luke CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B330578
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474197)
v.
RONNY RAY LUKE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Reversed and remanded
with directions.
Alice Newman, 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, Charles Lee and John Yang, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Ronny Ray Luke, Jr. (defendant)
appeals the order denying his petition brought pursuant to Penal
Code former section 1170.951 without issuing an order to show
cause. Defendant contends the trial court erred in relying on the
preliminary hearing transcript, erroneously considered
inadmissible hearsay, engaged in impermissible factfinding and
erroneously relied on defendant’s admission to a personal firearm
use allegation, to conclude he was the actual and sole
perpetrator. Defendant further contends these errors resulted in
a violation of defendant’s due process rights under the California
Constitution.
Finding defendant’s hearsay, impermissible factfinding,
and firearm contentions have merit, we reverse the court’s order
and remand with directions to issue an order to show cause and
conduct a hearing pursuant to section 1172.6, subdivision (d)(3).
BACKGROUND
Prior proceedings
After a preliminary hearing defendant was charged with
the willful, deliberate and premeditated attempted murder of
Jonathan McDaniel in violation of sections 187, subdivision (a)
and 664 (count 1), shooting at an occupied motor vehicle in
violation of section 246 (count 2), and possession of a firearm by a
felon in violation of section 29800, subdivision (a)(1) (count 3.) As
to counts 1 and 2, it was alleged pursuant to section 186.22,
1 All further unattributed code sections are to the Penal Code
unless otherwise stated. Former section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We refer to the current section 1172.6 in this
opinion.
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subdivision (b)(1)(C) the charged offenses were committed for the
benefit of or in association with a criminal street gang. It was
further alleged as to count 1 that defendant personally used and
intentionally discharged a firearm in the commission of the crime
within the meaning of section 12022.53, subdivision (c), and he
personally used a firearm within the meaning of section 12022.5,
subdivision (a). As to all counts it was alleged defendant had
suffered a prior serious or violent felony conviction, subjecting
him to punishment under section 667, subdivision (a), and under
the “Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12).
At the preliminary hearing Hassan Vatadi testified that
while he was taking a break around 10:00 a.m. he noticed a
Camaro and a Kia parked on the same side of the street as the
store where he worked and a silver Mercedes parked across the
street. The Camaro driver crossed the street and the Kia moved
next to the Mercedes when Vatadi heard two, maybe three,
gunshots and “watch [sic] Mercedes shot some guys.” The store’s
surveillance video was provided to the police.
Los Angeles Police Officer Javier Tafoya testified the video
mostly matched what the witness told him, but nothing on the
video indicated when gunshots were fired. He did not testify that
the video showed who fired shots. Detective Patrick Lane
testified to his view of the video where he saw after the Kia
pulled up to the Mercedes, a visible reaction from two of the
people near the store who crouched suddenly. One person
retreated into the store, and the other rode away on his bike.
The officers testified regarding their conversations with
McDaniel (driving the Kia) and his father-in-law Cornell Tisdale
(driving the Camaro). Tisdale told one officer the shooter was
“Lil Snowman from [the] 40’s, Little Ronny.” Photographs of
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persons bearing those monikers were found, including
defendant’s, and were placed in a photographic lineup from which
Tisdale identified defendant’s photograph as the person who fired
toward McDaniel. Later police found and searched a silver
Mercedes containing defendant’s driver’s license and a money
transfer receipt in his name under the front seat.
On April 17, 2019, defendant entered a plea of no contest to
amended count 1 of attempted murder. Defendant admitted both
the gang allegation and the allegation that he personally used a
firearm within the meaning of section 12022.5, subdivision (a).
Defendant also admitted having a prior conviction of shooting at
an inhabited dwelling in violation of section 246 on December 6,
2016. For a factual basis for the plea counsel stipulated to the
police report, probation report, preliminary hearing transcript,
and discovery. Defendant was sentenced to a total prison term of
24 years, consisting of the low term of five years for count 1,
doubled as a second strike, and an additional 14 years in firearm
and gang enhancements. The sentencing court dismissed the
remaining counts and allegations.
Section 1172.6 petition
In February 2023 defendant filed a petition for vacatur of
his attempted murder conviction and for resentencing pursuant
to section 1172.6. Section 1172.6, provides a procedure to
petition for retroactive vacatur and resentencing for those who
could not be convicted of murder under sections 188 and 189 as
amended effective January 1, 2019. (See People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) Sections 188 and 189, the laws
pertaining to felony murder and murder under the natural and
probable consequences doctrine, were amended “to ensure that
murder liability is not imposed on a person who is not the actual
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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, subd. (f).)
Effective January 1, 2022, the resentencing procedure was
extended to those convicted of attempted murder under the
natural and probable consequences doctrine. (Stats. 2021, ch.
551, § 2; see § 1172.6, subd. (a).)2 The procedure applies “only to
attempted murders based on the natural and probable
consequences doctrine.” (People v. Coley (2022) 77 Cal.App.5th
539, 548.) Natural and probable consequences liability requires
an accomplice and thus does not apply to persons convicted of
attempted murder as the sole perpetrator. (People v. Rodriguez
(2024) 103 Cal.App.5th 451, 456, 459.)
Defendant’s petition alleged the three conditions for relief
specified in section 1172.6, subdivision (a) as follows: the
charging document filed against him for attempted murder
allowed the prosecution to proceed under a felony murder theory,
the natural and probable consequences doctrine, or other theory
under which malice can be imputed based solely upon his
participation in a crime; defendant was convicted of attempted
murder after accepting a plea offer in lieu of a trial at which he
could have been convicted of attempted murder; and he could not
presently be convicted of attempted murder because of changes to
2 “[U]nder the natural and probable consequences doctrine,
an accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and
abetted (i.e., the nontarget offense).” (People v. Gentile (2020) 10
Cal.5th 830, 843.)
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section 188 or 189 made effective January 1, 2019. As
defendant’s petition adequately alleged the three required
conditions, the trial court appointed counsel for defendant and
ordered briefing by both parties.
On May 17, 2023, after reviewing the parties’ briefs, the
preliminary hearing transcript, and hearing the argument of
counsel, the trial court denied the petition upon finding
defendant was ineligible for relief under section 1172.6 as a
matter of law, because he admitted he used a firearm, as alleged
pursuant to section 12022.5, subdivision (a).
The trial court issued a memorandum of decision the same
day. The court extensively summarized the preliminary hearing
transcript, including the testimony of Vatadi, and law
enforcement officers who recounted witness statements. The
court referred to defendant’s admission he used a firearm, which
the court construed to be an admission by defendant he
personally fired a weapon at the victim. The court found this
conclusion was supported by the absence of any suggestion there
was another perpetrator or that defendant was an aider and
abettor.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
I. The preliminary hearing transcript
Defendant contends the trial court erred by relying on the
preliminary hearing transcript, engaging in improper factfinding,
and in considering inadmissible hearsay evidence to conclude he
had not made a prima facie showing of eligibility under section
1172.6.
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The prima facie determination is a question of law. (People
v. Flores (2022) 76 Cal.App.5th 974, 989, 991 (Flores), citing
Lewis, supra, 11 Cal.5th at p. 966.) We thus independently
review the trial court’s prima facie determination that a
petitioner is ineligible for section 1172.6 relief as a matter of law.
(People v. Coley, supra, 77 Cal.App.5th at p. 545.)
If a defendant’s petition is facially sufficient, the trial court
would properly appoint counsel, entertain briefing, and proceed
to the order to show cause hearing to determine whether
defendant had made a showing of eligibility under section 1172.6,
subdivision (c). (Lewis, supra, 11 Cal.5th at pp. 957, 960, 971; see
People v. Strong (2022) 13 Cal.5th 698, 708.) At this stage, “[t]he
record of conviction will necessarily inform the trial court’s prima
facie inquiry . . . , allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis, at
p. 971.) Although a court is permitted to consider the petitioner’s
record of conviction in making its determination, “the prima facie
inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’” (Ibid.)
“‘[I]f 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.”’” (Lewis, supra, 11 Cal.5th at p. 971.)
However, the trial court may deny the petition at the prima facie
stage of the proceedings only when the facts in the record of
conviction conclusively refute the allegations of the petition.
(People v. Lopez (2022) 78 Cal.App.5th 1, 14.) And it must do so
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without resort to “‘factfinding involving the weighing of evidence
or the exercise of discretion.’” (Lewis, at p. 974.)
The preliminary hearing transcript is part of the record of
conviction (Flores, supra, 76 Cal.App.5th at p. 989, fn. 11), but as
the parties acknowledge, there is disagreement among Courts of
Appeal on whether a trial court may consider the preliminary
hearing transcript at the prima facie stage under section 1172.6
when the conviction was based upon a plea.3
We agree with the decisions holding that in plea cases the
preliminary hearing transcript is part of the record of conviction
and may be considered at the prima facie stage if it establishes
ineligibility as a matter of law. (See, e.g., Pickett, supra, 93
Cal.App.5th at p. 990, review granted; Patton, supra, 89
Cal.App.5th at p. 657, review granted; Flores, supra, 76
Cal.App.5th at p. 989 & fn. 11, 991-992.) However, we also agree
with defendant that the hearsay testimony of law enforcement
officer presented at the preliminary hearing may not be
considered at the prima facie review stage.
3 The issue is still pending before the California Supreme
Court in People v. Patton (2023) 89 Cal.App.5th 649 (Patton),
review granted June 28, 2023, S279670, in which the court stated
the issue as follows: “Did the trial court engage in impermissible
judicial factfinding by relying on the preliminary hearing
transcript to deny defendant’s Penal Code section 1172.6 petition
at the prima facie stage? (See People v. Lewis (2021) 11 Cal.5th
952.)” (People v. Patton, supra, 2279670 [Supreme Court Web
site case summary].) The same issue is before the court in People
v. Pickett (2023) 93 Cal.App.5th 982 (Pickett), review granted
October 11, 2023, S281643 (held for decision in Patton), and
People v. Mares (2024) 99 Cal.App.5th 1158, review granted
May 1, 2024, S284232 (same).
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Section 1172.6, subdivision (d)(3) provides that at an
evidentiary hearing on a section 1172.6 petition, “hearsay
evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing
as hearsay, unless the evidence is admissible pursuant to another
exception to the hearsay rule.” The People argue that section
1172.6, subdivision (d)(3) applies only to the evidentiary hearing,
and hearsay must therefore be admissible at the prima facie
stage. However, “[o]nly where the record of conviction contains
facts conclusively refuting the allegations in the petition may the
court make credibility determinations adverse to the petitioner”
(Flores, supra, 76 Cal.App.5th at p. 991); and the People do not
explain how hearsay evidence that would be inadmissible in an
evidentiary hearing could conclusively refute the allegations in
the petition. We agree with cases pointing out that although
section 1172.6, subdivision (d)(3) applies only at the evidentiary
hearing, it is incongruous to allow the trial court to rely on
hearsay testimony at the prima facie review stage to deny a
petitioner relief but bar the use of the same evidence at the
evidentiary hearing.
Here, most of the preliminary hearing testimony was given
by police officers who recounted conversations with witnesses and
described the evidence they found as a result. The People do not
claim any applicable exceptions to the hearsay rule, but suggest
it is unnecessary to rely on the officers’ hearsay testimony
because the plea and preplea record shows as a matter of law
that the prosecution did not rely on any theories of attempted
murder invalidated by Senate Bill No. 1437 (2017-2018 Reg.
Sess.). The People suggest that by pleading no contest defendant
admitted facts showing he was the sole perpetrator. As no
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reporter’s transcript of the plea was found by the superior court,
a transcript has not been included in the record on appeal.
However, the minutes of the plea hearing state, “Counsel
stipulate to a factual basis on police report, probation report,
preliminary hearing transcript, and discovery.” (Italics added.)
No specific facts are described. “[A]bsent an indication that a
defendant admitted the truth of particular facts, the stipulation
to a factual basis for the plea does not ‘constitute[] a binding
admission for all purposes’” and does not “preclude relief under
section [1172.6].” (People v. Rivera (2021) 62 Cal.App.5th 217,
235, 234 (Rivera).)
The People also contend because there was no testimony or
suggestion at the preliminary hearing of any other occupants in
defendant’s vehicle, this absence of evidence amounted to
uncontroverted evidence defendant was the only one who fired
shots at the victim. In support the People cite three section
1172.6 cases in which preliminary hearing evidence contained
uncontroverted evidence the courts deemed admissible to show
that the petitioner was the sole perpetrator, giving rise to the
petitioner’s obligation to offer a theory or facts that might have
suggested otherwise. The People cite Patton, supra, 89
Cal.App.5th at pages 657-658, review granted, where surveillance
video showed the petitioner as the sole shooter, and Pickett,
supra, 93 Cal.App.5th at page 986, review granted, where there
was uncontested preliminary hearing testimony of two witnesses
who saw the petitioner with the victim for several minutes before
firing a gun into the air, and, as they ran away, heard two more
shots and saw the victim on the ground. In addition, the
petitioner later said he would shoot anyone who “‘snitched.’”
(Ibid.) In the third case, People v. Mares, supra, 99 Cal.App.5th
10at pages 1161, 1167-1168, review granted, police testimony in the
preliminary hearing transcript recounted the petitioner’s
admissions that he stabbed the victim and acted alone. In sum,
the cited cases did not require the petitioners to produce evidence
or make an offer of proof due to an absence of evidence but did so
due to the existence of uncontroverted evidence that they acted
alone.
Here, the People do not point to any nonhearsay
preliminary hearing testimony that provides evidence defendant
was the sole perpetrator. Defendant’s petition adequately alleged
he was charged under the natural and probable consequences
doctrine or other theory under which malice can be imputed
based solely upon his participation in a crime, and he could not
presently be convicted of attempted murder because of changes to
section 188 or 189 made effective January 1, 2019. We conclude
that drawing inferences from the absence of evidence would
amount to improper factfinding and cannot refute those
allegations as a matter of law.
II. Effect of firearm enhancement
Defendant contends the trial court erred in finding him
ineligible for relief under section 1172.6 as a matter of law
because he admitted the allegation of having personally used a
firearm.
We agree that defendant’s admission to personal use of a
firearm does not, by itself, establish he was the actual
perpetrator or otherwise disqualify him for relief under section
1172.6 as a matter of law. (See People v. Jones (2003) 30 Cal.4th
1084, 1120 [a finding of personal use of a gun “would not in itself
prove defendant was the actual killer”]; see also People v. Berry
(1993) 17 Cal.App.4th 332, 338 [vicarious or direct liability for
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the underlying crime may result in § 12022.5 personal use
enhancement].) Nor did the admission to the use of a firearm
constitute an admission that defendant personally intended to
kill when he used the firearm. (See People v. Offley (2020) 48
Cal.App.5th 588, 598.)
Defendant’s admission thus does not show as a matter of
law that defendant had no accomplices or that he personally fired
all or any of the shots while personally harboring an intent to
kill.
III. Conclusion
In sum, neither defendant’s plea nor admissible evidence
showed he was the sole perpetrator and thus could not have been
convicted under the natural and probable consequences doctrine.
As we reverse the order, we do not address defendant’s
constitutional challenge.
DISPOSITION
The order of May 17, 2023, denying defendant’s section
1172.6 petition is reversed, and the matter is remanded with
directions to issue an order to show cause and proceed with an
evidentiary hearing pursuant to subdivision (d) of section 1172.6.
___________________________
CHAVEZ, J.
We concur:
_______________________________ ___________________________
ASHMANN-GERST, Acting P. J. HOFFSTADT, J.
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