People v. Ha CA2/7 ( 2024 )

Filed 10/3/24 P. v. Ha CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B330257
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA118272-01)
v.
XUONG THAM HA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Mike Camacho, Judge. Reversed and
remanded with directions.
Johnathan 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, Assistant
Attorney General, Chung L. Mar and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________
INTRODUCTION
Xuong Tham Ha appeals from a postjudgment order
denying his petition for resentencing on his conviction for
attempted murder under Penal Code section 1172.6 (former
section 1170.95).1 The superior court denied Ha’s petition at the
prima facie stage after deciding that Ha was “convicted . . . by
plea of being the actual shooter.” Notably, the court’s decision
was based in part on the transcript from Ha’s preliminary
hearing, along with the information and the transcript of Ha’s
plea. Ha contends on appeal that the information, preliminary
hearing transcript, and plea do not establish his ineligibility for
resentencing as a matter of law. We agree. Accordingly, we
reverse the order denying Ha’s section 1172.6 petition and direct
the trial court to issue an order to show cause and hold an
evidentiary hearing.
FACTUAL BACKGROUND2
On March 8, 2018, around 11:00 p.m., Fred Yue was at a
karaoke bar in South El Monte with four or five of his friends,
one of whom was Stephen.3 At some point, a fight broke out
between Yue’s friends (including Stephen) and other people at
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, section 1170.95 was renumbered
to section 1172.6 with no change in text. (Stats. 2022, ch. 58,
§ 10.)
2 For context, we provide a brief summary of the facts that
were elicited at the preliminary hearing.
3 Yue did not remember Stephen’s last name.
2
the bar. The fight started because a person at the bar named
Tiger thought Stephen owed the bar money.
Yue testified many people were involved in the fight, people
were screaming, and it was loud. During the fight, Yue was
standing “in the middle of everyone.” Yue heard gunfire behind
him, turned around, and saw a man pointing a gun at the ceiling.
The man was 13 feet away from Yue. The man then pointed the
gun at Yue and said, “ ‘Don’t mess around in here because this is
Tiger’s place.’ ” Yue told the man to “put down [the] gun” and to
“calm down.” The man shot Yue once in the hip, and then Yue
lost consciousness. He spent 20 days in the hospital with serious
injuries. Yue identified Ha in court as the man who shot him.
During cross-examination, defense counsel asked Yue
about a “young friend” who was drinking with him. Yue
identified the friend as “Leafy.” Defense counsel asked Yue if
Leafy had a gun that night. Yue initially stated, “Yes,” but when
defense counsel then asked, “He had a gun in the bar; didn’t he?,”
Yue responded, “No. The individual I saw with the gun was Mr.
Ha. That was the only one I saw with the gun that night.” Yue
admitted that “a lot of things” about the night were confusing,
like “what happened first, what happened next, and what other
people [were] doing.”
Chu Tzu Fei4 testified that on March 9, 2018, he was at the
karaoke bar with more than 20 of his friends, including Yue and
Stephen. At some point, a “big” argument broke out between
Fei’s group and another group. The argument involved more
than 10 people, and Stephen was at the center of it. A man Fei
4 The complaint refers to Fei as Tzu Chu. Based on Fei’s
own spelling of his name at the preliminary hearing, we refer to
him hereafter as Fei.
3
identified in court as Ha was standing with the group of people
arguing with Stephen, but Fei did not hear Ha say anything. The
room was very dark. During the argument, Fei saw Ha holding a
“small gun.” Fei tried to take the gun away from Ha but was not
successful, and Ha fired a shot at the ceiling and then shot Fei in
the leg one time. When Ha fired the shot at Fei, Fei was
standing next to Stephen. At some point, Stephen got shot as
well. In total, Fei heard four gunshots. Fei did not see anyone
besides Ha with a gun.
Detective Sandra Jimenez of the Los Angeles County
Sheriff’s Department testified she searched Ha’s home and found
a large amount of ammunition and various guns, including a
Glock nine-millimeter handgun and a .38-caliber revolver.
PROCEDURAL BACKGROUND
1. Ha’s Charges and Plea
In October 2018, Ha was charged with attempted murder5
of Yue (§§ 187, subd. (a), 664), one count of assault with a firearm
as to Ze Wei6 (§ 245, subd. (a)(2)), one count of assault with a
firearm as to Fei (§ 245, subd. (a)(2)), possession of a short-
barreled rifle or shotgun (§ 33215), possession of a large-capacity
magazine (§ 32310, subd. (a)), and possession of an assault
weapon (§ 30605, subd. (a)).
As to the attempted murder count, the People alleged Ha
personally and intentionally discharged a firearm that caused
5 The People did not allege that the attempted murder was
willful, deliberate, and premeditated (§ 664, subd. (a)).
6 During the preliminary hearing, Ze Wei was identified as
the person referred to as “Stephen” during Yue’s and Fei’s
testimony.
4
great bodily injury or death to Yue (§ 12022.53, subd. (d)); Ha
personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)); Ha personally used a firearm (§ 12022.53, subd. (b));
and Ha personally inflicted great bodily injury upon Yue
(§ 12022.7, subd. (a)). As to the two counts of assault with a
firearm on Wei and Fei, the People alleged Ha personally used a
firearm (§ 12022.5, subd. (a)). Ha was held to answer on all six
counts and the additional allegations. After Ha’s preliminary
hearing, the People amended the information to add an allegation
to the attempted murder charge that Ha personally used a
firearm under section 12022.5, subdivision (a).
In July 2019, Ha pleaded no contest to all counts. He also
admitted he personally used a firearm in violation of section
12022.5, subdivision (a), as to the attempted murder and the two
assault counts. All counsel stipulated that the preliminary
hearing transcript, police report, and arrest report provided a
factual basis for Ha’s plea. As pertinent here, on the attempted
murder count, the trial court sentenced Ha to 10 years in prison,
consisting of the middle term of seven years plus a consecutive
three years (the low term) for the section 12022.5, subdivision (a),
firearm enhancement.
2. Ha’s Section 1172.6 Petition Proceedings
On September 30, 2022, Ha filed a section 1172.6 petition
for resentencing on his conviction for attempted murder. The
People opposed on the ground that Ha “was not convicted under
the felony-murder rule or under the natural and probable
consequences doctrine.” The court appointed counsel for Ha and
set a hearing to determine whether Ha had made a prima facie
showing that he was eligible for relief.
5
At the hearing on Ha’s petition, the court noted it had
reviewed the parties’ briefing, the preliminary hearing transcript,
and the pre-plea report. Based on those documents, the court
denied the petition. It reasoned that Ha “was convicted based
solely upon his conduct as a shooter in the case. There was no
second shooter. There was allegedly an accomplice but that
person did not participate specifically in the shooting of the
victim. . . . And victim [Yue] . . . survived the shooting but was
able to identify [Ha] at the preliminary hearing as the sole
perpetrator, the sole gunman, if you will, of the act committed
upon him.” The court also noted that during Ha’s plea, Ha
stipulated to the preliminary hearing transcript as providing the
factual basis for his plea, and Ha admitted to using a firearm in
the commission of the attempted murder, which the court found
amounted to an admission Ha was the “actual shooter.” The
court found Ha was not entitled to relief as a matter of law.
Ha timely appealed.
DISCUSSION
1. Section 1172.6 Procedure
Effective 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437) substantially modified the law governing accomplice
liability for murder. (People v. Strong (2022) 13 Cal.5th 698, 707-
708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
It eliminated the natural and probable consequences doctrine as
a basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 842-843, superseded by statute on other
grounds as stated in People v. Glukhoy (2022) 77 Cal.App.5th
576, 584) and amended section 188 to provide: “Malice shall not
be imputed to a person based solely on his or her participation in
6
a crime” (§ 188, subd. (a)(3)).7 It also enacted a procedure in
section 1172.6 whereby individuals convicted of murder based on
the natural and probable consequences doctrine, felony murder,
or “other theory under which malice is imputed to a person based
solely on that person’s participation in a crime” could petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if they could not now be convicted of
murder under the law as amended. (§ 1172.6, subd. (a).)
Effective 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.)
clarified that SB 1437’s ameliorative changes and procedure for
potential relief applied to individuals convicted of attempted
murder under the natural and probable consequences doctrine.
(People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18.)
Section 1172.6, subdivision (a), now reads, in relevant part, “A
person convicted of . . . attempted murder under the natural and
probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s . . .
attempted murder . . . conviction vacated and to be resentenced
on any remaining counts.”
Under section 1172.6, the resentencing procedure 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
. . . attempted murder because of changes to Section 188 . . . made
effective January 1, 2019.” (Strong, supra, 13 Cal.5th at p. 708.)
The trial court must then determine if the petitioner has made a
prima facie showing that he or she is entitled to relief. (§ 1172.6,
7 SB 1437 also amended the felony-murder rule by adding
section 189, subdivision (e), but the felony-murder rule is not at
issue in this appeal.
7
subds. (a)-(c); accord, Strong, at p. 708.) “ ‘ “[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.” ’ ” (Lewis, supra, 11 Cal.5th
at p. 971; see People v. Curiel (2023) 15 Cal.5th 433, 460 (Curiel).)
“[T]he ‘prima facie bar was intentionally and correctly set very
low.’ ” (Lewis, at p. 972.)
The court may consider the record of conviction, which 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.” (Lewis,
supra, 11 Cal.5th at p. 971; see Curiel, supra, 15 Cal.5th at
pp. 463-464.) “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.’ ” (Lewis, at p. 972.)
“[T]he court may appropriately deny a petition at the prima
facie stage if the petitioner is ineligible for relief as a matter of
law.” (People v. Harden (2022) 81 Cal.App.5th 45, 52; see Curiel,
supra, 15 Cal.5th at p. 460.) “Consequently, ‘[i]f the petition and
record in the case establish conclusively that the [petitioner] is
ineligible for relief, the trial court may dismiss the petition.’ ”
(Curiel, at p. 460, italics added.) Stated another way, if the
record of conviction conclusively shows the petitioner was
convicted under a theory of liability not affected by the
amendments to the law of murder and attempted murder, such
as attempted murder under actual perpetrator or direct aiding
and abetting theories, the trial court may dismiss the petition.
(People v. Williams (2024) 103 Cal.App.5th 375, 397 (Williams),
8
review granted Sept. 11, 2024, S286314 [evaluating whether
record of conviction showed petitioner was convicted of
“attempted murder under a valid theory, i.e., as a direct
perpetrator”]; People v. Coley (2022) 77 Cal.App.5th 539, 548
[section 1172.6 “applies by its terms only to attempted murders
based on the natural and probable consequences doctrine,” and
“[d]irect aiding and abetting remains a valid theory of attempted
murder”].) We review de novo the trial court’s prima facie
inquiry. (Williams, at p. 387.)
2. The Information Does Not Establish Ha’s
Resentencing Ineligibility
The People contend Ha is ineligible for resentencing under
section 1172.6 because “the totality of charges [in the
information] specifically alleged that [Ha] was the direct
perpetrator with no accomplice.” We disagree that the
information establishes Ha’s ineligibility for resentencing as a
matter of law.
The information charged Ha with attempted murder,
alleging Ha “unlawfully, and with malice aforethought
attempt[ed] to murder Fred Yue.” Attempted murder requires
express malice aforethought and the commission of a direct but
ineffectual act toward accomplishing the intended killing.
(People v. Houston (2012) 54 Cal.4th 1186, 1217.) But under the
former law, in an offense involving more than a single
perpetrator, it was enough for the defendant to have intended to
aid and abet the actual perpetrator in the commission of a target
offense, such as assault, so long as the actual perpetrator
intended to kill, and the attempted murder was the natural and
probable consequence of the assault. (See People v. Montes (2021)
71 Cal.App.5th 1001, 1007 [“When appellant was found guilty of
9
attempted murder under a natural and probable consequences
theory of liability, the ‘intent to kill’ was imputed onto appellant
from the actual killer or perpetrator.”].) Because the People
generically charged Ha with attempted murder under then-
existing law, 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.
Estrada (2024) 101 Cal.App.5th 328, 337-338 (Estrada); People v.
Davenport (2021) 71 Cal.App.5th 476, 484 (Davenport).) An
accusatory pleading need not specify the theory of attempted
murder on which the prosecution will rely at trial. (Estrada, at
pp. 337-338.) Specifically, attempted murder under the natural
and probable consequences doctrine need not be separately
pleaded. (Ibid.) Thus, the generic charge of attempted murder
does not make Ha ineligible for relief.
The People contend, however, that “by charging the
personal firearm-discharge and great bodily injury enhancements
in the information, the prosecutor elected a theory of attempted
murder requiring proof that appellant was a direct perpetrator.”
Indeed, along with great bodily injury enhancements, the
information alleged several firearm enhancements (§§ 12022.5,
subd. (a), 12022.7, subd. (a), and 12022.53, subds. (b)-(d)), which
the People correctly note require “personal” use and/or discharge
of a firearm by the charged defendant and do not permit vicarious
liability for a coparticipant’s use or discharge of a weapon. (Cf.
People v. Balbuena (1992) 11 Cal.App.4th 1136, 1139,
disapproved on another ground in People v. Bland (1995)
10 Cal.4th 991, 1001, fn. 4 [“personally armed with a firearm”
under § 12022, subd. (c) “distinguishes personal from vicarious
liability, requiring that the defendant himself be armed”].)
10
However, “the People’s initial allegations were unproven and
unadmitted” and thus “do not conclusively establish” Ha
committed “every element of the offense of attempted murder
under a valid theory.” (Williams, supra, 103 Cal.App.5th at
p. 388.)
The People also contend that because the information “did
not charge a codefendant or suggest that anyone other than [Ha]
was involved in . . . the attempted murder,” the information
specifically charged Ha with attempted murder as the direct
perpetrator. We are not persuaded. “[A] charging decision does
not establish any facts as a matter of law. [Citation.] Moreover,
we are aware of no authority requiring prosecutors to try all
codefendants together, so this single charging document does not
foreclose the possibility of other people having been charged for
related crimes. Even further, the information did not foreclose
the prosecution from presenting imputed malice before a jury
regardless of whether it charged others.” (Estrada, supra,
101 Cal.App.5th at p. 339.) Therefore, nothing in the information
establishes Ha’s ineligibility as a matter of law.
3. Ha’s Plea Does Not Establish Ha’s Resentencing
Ineligibility
For the same reasons discussed, the People contend that
Ha’s no contest plea and admission to the firearm enhancement
foreclose resentencing eligibility as a matter of law. We again
disagree. Ha pleaded no contest to attempted murder and
admitted to personally using a firearm in connection with the
attempted murder count, but he did not plead to any particular
type of malice. Further, Ha did not admit to any specific theory
of attempted murder. Instead, Ha pleaded to the generic charge
of attempted murder. Thus, the People could have proceeded
11
under any theory of liability, including a natural and probable
consequences theory. (See Estrada, supra, 101 Cal.App.5th at
p. 339 [in pleading to attempted murder charge, Estrada did not
plead to any particular type of malice or admit to any specific
theory of attempted murder]; People v. Flores (2022)
76 Cal.App.5th 974, 987 (Flores) [“In entering the plea, petitioner
did not admit to or stipulate to any particular theory of
murder.”]; but see People v. Mares (2024) 99 Cal.App.5th 1158,
1167-1168, review granted May 1, 2024, S284232 [finding record
of conviction contained facts refuting 1172.6 petition’s allegations
where petitioner “pled guilty while the People were pursuing a
murder conviction based only on a theory that he was the actual
killer”].) Likewise, Ha’s admission that he personally used a
firearm does not refute that he could have been convicted on a
theory of imputed malice. (See People v. Wardell (2008)
162 Cal.App.4th 1484, 1494 [petitioner’s admission of § 12022.5,
subd. (a) enhancement “does not encompass any specific intent.”];
Davenport, supra, 71 Cal.App.5th at p. 485 [petitioner’s
admission to § 12022.5, subd. (a) enhancement “did not preclude
the possibility of prosecution under a felony-murder theory”];
People v. Drayton (2020) 47 Cal.App.5th 965, 981, abrogated on
other grounds in Lewis, supra, 11Cal.5th at pp. 962-963
[admission of personal use of a firearm enhancement did not
preclude possibility of prosecution under a felony-murder theory];
see also Estrada, at p. 338 [“As with pleading guilty to a criminal
offense, a plea or admission of a sentencing enhancement is
likewise deemed a judicial admission of only elemental facts
necessary to the enhancement . . . [petitioner’s] admissions [to
§ 12022, subd. (b) and 12022.7 enhancements] do not establish
12
that he acted with the requisite malice aforethought.”].)8
Therefore, Ha’s plea and admission do not establish his
resentencing ineligibility.
4. The Preliminary Hearing Transcript Does Not
Establish Ha’s Resentencing Ineligibility
Finally, the People contend the court properly denied Ha’s
petition based on Ha’s preliminary hearing transcript because
(1) relying on the transcript did not involve premature judicial
factfinding, (2) Ha stipulated to the preliminary transcript as
providing a factual basis for his plea, and (3) Ha failed to identify
a “factual scenario under which he was not the actual shooter.”
None of the People’s arguments persuades us.
A. Division Amongst Courts of Appeal Regarding
Consideration of Preliminary Hearing
Transcript
Courts of Appeal are divided on whether a trial court can
consider a preliminary hearing transcript at the section 1172.6
prima facie stage. On the one hand, our colleagues in Division
Three of this district held that trial courts may rely on the
preliminary hearing transcript if the evidence contained within is
8 The People rely on the holding of People v. Garrison (2021)
73 Cal.App.5th 735, 743, that “[b]y admitting that he personally
used a weapon, [petitioner] necessarily admitted that he was the
actual killer simply because there was no evidence either at the
preliminary hearing or at the section 1170.95, subdivision (d)(3)
hearing supporting any other scenario.” However, as noted by
Ha, Garrison “involve[d] a section 1170.95, subdivision (d)(3)
hearing, not a prima facie inquiry” under subdivision (c).
(Garrison, at pp. 747-748.) Thus, Garrison does not aid the
People.
13
“uncontroverted.” (People v. Patton (2023) 89 Cal.App.5th 649,
658, review granted June 28, 2023, S279670 (Patton).) Since
Patton, two courts have reached a similar result. (See People v.
Mares, supra, 99 Cal.App.5th at p. 1167 [finding it proper to rely
on preliminary hearing transcript at prima facie stage for
purpose of determining the People proceeded only on an actual
killer theory]; People v. Pickett (2023) 93 Cal.App.5th 982, 990,
review granted Oct. 11, 2023, S281643 [holding trial court can
rely on “uncontradicted evidence from the preliminary hearing
transcript” to determine prima facie eligibility even if defendant
has not stipulated to transcript as a factual basis for a plea]; see
also People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167
[finding the transcripts from the preliminary hearing, stipulated
as providing a factual basis, demonstrated petitioner was
convicted under a valid theory of murder].)
On the other hand, in Davenport, supra, 71 Cal.App.5th
476, the First District ruled the trial court engaged in
“ ‘impermissible factfinding’ ” at the prima facie stage by relying
on facts taken from the preliminary hearing transcript that were
not stipulated to. (Id. at p. 482; accord Estrada, supra,
101 Cal.App.5th at p. 339 [“To the extent the court relied on the
preliminary hearing transcript, such reliance here was improper
because it required the court to engage in impermissible fact
finding”].) Davenport further found “nothing in the evidence
presented at the preliminary hearing conclusively refutes
[petitioner’s] allegation that his conviction rests on now
prohibited vicarious liability theories at trial.” (Davenport, at
p. 484.) And our colleagues in the Fifth District recently held a
preliminary hearing transcript could not be relied on to establish
ineligibility for relief, even if the petitioner stipulated that the
14
transcript provided the factual basis for his plea. (Williams,
supra, 103 Cal.App.5th at pp. 397-398; see Flores, supra,
76 Cal.App.5th at pp. 991-992; cf. Rivera, supra, 62 Cal.App.5th
at p. 238 [petitioner’s stipulation to a grand jury transcript as the
factual basis for his plea did not constitute an admission that he
committed murder with malice].)
B. Ha’s Preliminary Hearing Transcript Does Not
Conclusively Establish Ha Was Convicted
Under a Valid Theory
As noted, the question whether a trial court can rely on the
preliminary hearing transcript at the prima facie stage is before
the California Supreme Court in Patton. Until the high court
rules, we will follow the reasoning of Flores, Rivera, Estrada, and
Williams.
The facts and procedural history in Williams are on all-
fours with this case, except the testimony at the preliminary
hearing in Williams was even more compelling in suggesting the
petitioner was the sole, actual shooter. In Williams, the
petitioner pleaded no contest to attempted murder and stipulated
that the preliminary hearing transcript provided a factual basis
for his plea. (Williams, supra, 103 Cal.App.5th at pp. 383-384.)
At the preliminary hearing, the victim testified that the
petitioner, acting alone, shot him in the face. (Id. at p. 383.)
Williams decided that while the evidence presented at the
preliminary hearing provided probable cause to believe the
petitioner had committed attempted murder as the actual
perpetrator of that offense, it did not “conclusively” establish that
the petitioner committed the offense in that manner. (Id. at
p. 397.)
15
The court explained the primary purpose of a preliminary
hearing is to establish whether there is probable cause to believe
that the defendant is guilty. (Williams, supra, 103 Cal.App.5th
at p. 397.) “ ‘Probable cause “signifies a level of proof below that
of proof beyond a reasonable doubt, or even proof by a
preponderance of the evidence.” ’ ” (Ibid.) “At the preliminary
hearing, the court may weigh the evidence and assess witness
credibility, but it may not reject the prosecution’s evidence
‘unless the evidence is “ ‘inherently implausible, the witnesses
[have been] conclusively impeached, or the demeanor of the
witnesses [is] so poor that no reasonable person would find them
credible.’ ” ’ [Citation.] Thus, the preliminary hearing generally
offers the defense little incentive to present contrary evidence.”
(Ibid.) Moreover, the preliminary hearing evidence does not limit
the prosecution’s trial strategy—the prosecution can proffer
additional proof when the case proceeds to trial. (Id. at p. 398.)
Thus, “the preliminary hearing transcript does not conclusively
establish a defendant’s guilt, let alone any particular theory of
guilt. At most, the transcript and the court’s holding order
establish there is probable cause to believe a defendant
committed the charged offense under at least one of the theories
presented by the prosecution.” (Ibid., italics added.)
This conclusion is true, as Williams explained, even if
defense counsel stipulated to the preliminary hearing transcript
as providing a factual basis for the plea. (Williams, supra,
103 Cal.App.5th at p. 398.) “It is well settled that a stipulation to
a factual basis for a plea is not ‘a binding admission for all
purposes.’ [Citation.] Moreover, ‘[a] defendant is not required to
personally admit the truth of the factual basis of the plea.’
[Citation.] ‘Courts have consistently differentiated between an
16
admission that a document or recitation contains a factual basis
for a plea and an admission that statements in that document or
recitation are true.’ ” (Id. at pp. 398-399; see Flores, supra,
76 Cal.App.5th at p. 991; Rivera, supra, 62 Cal.App.5th at
p. 235.) Therefore, Williams held a stipulation to a factual basis
does not conclusively establish the nature of the conduct
underlying a plea. (Id. at p. 399.)
As in Williams, Ha stipulated that the preliminary hearing
transcript provided a factual basis for his plea. The evidence at
Ha’s preliminary hearing provided probable cause to believe Ha
shot Yue. Even if the Supreme Court decides courts may
consider the preliminary hearing transcript at the prima facie
stage in some circumstances, however, the evidence at Ha’s
preliminary hearing would not conclusively establish the nature
of Ha’s conduct underlying his plea. (See Williams, supra,
103 Cal.App.5th at pp. 397-398.) The preliminary hearing
transcript demonstrates Ha was part of a chaotic bar fight with
multiple participants, distinguishing his case from those where it
would defy all logic to deduce there could have been other
participants and that the petitioner could have been convicted
under a now-invalid theory of attempted murder. (See, e.g.,
Mares, supra, 99 Cal.App.5th at p. 1167 [testimony at
preliminary hearing established petitioner admitted to stabbing
victim and acting alone]; People v. Pickett, supra, 93 Cal.App.5th
at pp. 986, 990 [evidence from preliminary hearing showed
petitioner was the sole person to approach the victim with a gun
and fire shots]; Patton, supra, 89 Cal.App.5th at pp. 652-653, 657
[surveillance video played at preliminary hearing showed
petitioner acted “as the sole and actual perpetrator” in shooting
victim].)
17
We also decline the People’s suggestion that at this prima
facie stage Ha bears the additional burden of presenting evidence
that “(a) there was some other person who was the actual killer
and (b) [Ha] acted in concert with this person in some way that
rendered [Ha] guilty of [attempted] murder under a now-
abrogated theory of accomplice liability.” (Mares, supra,
99 Cal.App.5th at p. 1167 [requiring such a showing by petitioner
to rebut showing from preliminary hearing transcript that People
pursued an actual killer theory only].) Rather, we agree with
Williams that a petitioner is not required to submit more than a
facially sufficient petition to rebut uncontroverted facts presented
at a preliminary hearing. (Williams, supra, 103 Cal.App.5th at
p. 404.) “Nothing in section 1172.6 permits, let alone requires, a
petitioner to submit new or additional evidence at the prima facie
stage.” (Williams, at p. 405.) Requiring Ha to present some
additional evidence or theory, as the People argue here, “is
contrary to Curiel, which states that a petitioner’s bare
allegations, phrased in the language of the statute, are sufficient
to ‘put[ ] at issue all elements of the offense under a valid
theory.’ ” (Williams, at p. 405.) Given these circumstances, the
trial court erred in summarily denying Ha’s petition without an
evidentiary hearing.
DISPOSITION
The order denying Ha’s petition for resentencing is
reversed. On remand, the trial court is directed to issue an order
///
///
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to show cause and to conduct an evidentiary hearing in
accordance with section 1172.6, subdivision (d).
STONE, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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