People v. Curry CA1/4 ( 2024 )

Filed 10/3/24 P. v. Curry CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent, A167782
v.
(Contra Costa County Super.
RENARD RICKY CURRY, Ct. No. 05001407857)
Defendant and Appellant.
MEMORANDUM OPINION1
Renard Ricky Curry was sentenced to 25 years and eight months in
prison after he pleaded no contest to voluntary manslaughter (§ 192,
subd. (a)) with an allegation of personally using a firearm (§ 12022.5,
subd. (a)), and four other felonies. When Curry filed a petition for
resentencing years later under former section 1170.95 (now § 1172.6),
alleging that he met the requirements of the statute, the trial court denied
the petition for Curry’s purported failure to make a prima facie showing that
he was entitled to relief. (§ 1172.6, subd. (c).) In this opinion, we review
independently Curry’s challenge to the denial of his petition. (People v.
1 We resolve this case by memorandum opinion. (Cal. Stds. Jud.
Admin., § 8.1.) We provide a limited factual summary because our opinion is
unpublished and the parties know, or should know, “the facts of the case and
its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
All statutory references are to the Penal Code.
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Beaudreaux (2024) 100 Cal.App.5th 1227, 1238.) Because he made the
requisite prima facie showing before the trial court, we reverse the denial of
Curry’s petition and remand the matter for further proceedings.
For resentencing under section 1172.6, “the process begins with the
filing of a petition containing a declaration that all requirements for
eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner
could not presently be convicted of murder or attempted murder because of
changes to [] [s]ection 188 or 189 made effective January 1, 2019’ . . . .”
(People v. Strong (2022) 13 Cal.5th 698, 708.) Then, “[a]fter the parties have
had an opportunity to submit briefings, the court . . . hold[s] a hearing to
determine whether the petitioner has made a prima facie case for relief.”
(§ 1172.6, subd. (c).)
This “prima facie inquiry . . . is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, ‘ “the 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.” ’ [Citations.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ [Citations.]
‘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.” ’ ”2 (People v.
Lewis (2021) 11 Cal.5th 952, 971.) In other words, a “ ‘ “denial at [the prima
2 Although the preliminary hearing transcript may, under at least some
circumstances, be part of this record, facts from such a transcript may not be
considered for the purpose of evaluating a petitioner’s prima facie showing
unless the petitioner has stipulated “to the transcript as a factual basis for
his plea.” (People v. Davenport (2021) 71 Cal.App.5th 476, 481 (Davenport).)
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facie] stage is appropriate only if the record of conviction demonstrates that
‘the petitioner is ineligible for relief as a matter of law.’ ” ’ ” (People v. Lopez
(2022) 78 Cal.App.5th 1, 14.)
Here, Curry filed a petition alleging that he met the eligibility
requirements of former section 1170.95 (now § 1172.6). The stipulated
factual basis of Curry’s no-contest plea was not the preliminary hearing
transcript, but rather, his averment that “a judge or jury who heard the
evidence against [Curry] could find [him] guilty of” those charges — a fact
that precludes us from relying on Curry’s preliminary hearing transcript in
the instant appeal.3 (See Davenport, supra, 71 Cal.App.5th at p. 481.) And
our review of the record on appeal has revealed no fact that could
demonstrate Curry’s ineligibility as a matter of law. As a result, we must
conclude the trial court erred in denying Curry’s petition at the prima facie
stage. (People v. Lopez, supra, 78 Cal.App.5th at p. 14.)
In resisting this conclusion, the Attorney General conspicuously
refrains from arguing — as the trial court concluded — that the record of
conviction establishes Curry’s ineligibility even without the preliminary
hearing transcript. Instead, the Attorney General urges us to reconsider our
holding in Davenport and to consult that transcript. We decline this
invitation. Contrary to the Attorney General’s contentions, nothing in People
v. Lewis, supra, 11 Cal.5th 952, compels the conclusion that a preliminary
hearing transcript is always part of the record of conviction for section 1172.6
purposes at the prima facie stage. And while we await our Supreme Court’s
resolution of this question in its review of People v. Patton (2023)
89 Cal.App.5th 649 (review granted June 28, 2023, S279670), we are not
3 Accordingly, we deny the Attorney General’s April 23 request for
judicial notice of that transcript.
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persuaded by the Attorney General or the arguments of our Second District
colleagues in People v. Pickett (2023) 93 Cal.App.5th 982, to abandon
Davenport’s reasoning.
DISPOSITION
We reverse the denial of Curry’s petition and remand the matter to the
superior court with instructions to issue an order to show cause pursuant to
section 1172.6, subdivision (c), in anticipation of further proceedings under
section 1172.6.
DOUGLAS, J.*
We concur:
BROWN, P. J.
GOLDMAN, J.
People v. Curry (A167782)
* Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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