1

Filed 7/2 4 /24 P. v. Smith CA4/2

Repost ing correct version

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE ROY SMITH III,

Defendant and Appellant. E081229, E082184

(Super.Ct.No. INF1600624)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed with directions.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,

Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff

and Respondent.2

Willie Roy Smith appeals from the denial of his Penal Code section 1172.6

petitions to vacate his attempted murder conviction from 2018. (Unlabeled statutory

citations refer to the Penal Code.) Smith argues that the trial court erred by denying his

petitions at the prima facie stage , because he sufficiently alleged a prima facie case for

relief and the record of conviction does not contain facts refuting his allegations. ( People

v. Lewis (2021) 11 Cal.5th 952, 971

- 972 ( Lewis ).) We agree with Smith and therefore

reverse and remand with directions to issue an order to show cause under section 1172.6,

subdivision (c).

BACKGROUND

In 2016, the People charged Smith with the attempted murder of Jane Doe. At

Smith’s preliminary hearin g, Doe provided the following testimony. 1 On May 7, 2016,

Doe was walking to the grocery store with her and Smith’s three

- month

- old child when

Smith pulled up alongside her and offered her a ride

. Doe accepted and got into the back

seat with the baby. On the way back from the store, i nstead of taking Doe home, Smith

dr o ve to a remote location and demanded that Doe have sex with him . When she refused,

Smith pulled out a gun and shot her six times. The bullets struck her in the head , neck,

and hands. With Doe bleeding in the back seat, Smith drove to a liquor store

, returned to

the car with alcohol , and continued to drive , telling Doe, “We going to die. I’m sorry. I

1 “Facts taken from the preliminary hearing transcript are provided for background

purposes and to provide context for the parties’ arguments. . . . [W]e take no position on

whether this testimony from the preliminary hearing is admissible to determine [Smith’s]

eligibility for resentencing. ” ( People v. Flores (2022) 76 Cal.App.5th 974, 978 , fn. 2

( Fl ores ).)3

have to do it. We going to die.” Doe passed out while Smith was driving . When she

regained consciousness, they had been pulled over

, and she was being placed into an

ambulance.

In March 2018, Smith pled guilty to one count of deliberate and premeditated

attempted murder (§§ 664, 187, subd. (a)), one count of dissuading a witness (§ 136.1,

subd. (a)), and one misdemeanor count of driving under the influence (Veh. Code,

§ 23152, subd. (b) ) . He also admitted that he personally and intentionally discharged a

firearm and caused great bodily injury within the meaning of section 12022.53,

subdivision (d) during the commission of the attempted murder . The parties stipulated

that the preliminary hearing transcript provided a factual basis for the plea . Smith was

sentenced to the agreed term of 32 years to li fe plus 2 years in state prison.

In April 2023, Smith filed a petition to vacate his attempted murder conviction

under section 117 2.6

. His petition alleged that (1) an information had been filed against

him that allowed the prosecution to try him for atte mpted murder under the natural and

probable consequences doctrine; (2) he accepted a plea offer in lieu of a trial at which he

could have been convicted of attempted murder ; and (3) he could not presently be

convicted of attempted murder because of changes to accomplice liability for murder

made by Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Senate Bill 1437).

At the prima facie hearing on the petition, the People argued that Smith was

ineligible for relief because he was convicted under a still

- valid theo ry of murder

.

Relying on People v. Patton (2023) 89 Cal.App.5th 649 ( Patton ), review granted June 28,4

2023, S279670, the y argued that the preliminary hearing transcript, which the parties

stipulated to as the factual basis for the plea, contained uncontroverted evidence that

Smith was the direct perpetrator of the attempted murder. The trial court denied the

petition, stati ng that it was “satisfied with [Doe’s] eyewitness testimony that [Smith] was

the person who shot her.”

In May 2023, Smith filed another section 1172.6 petition identical to his first

,

which the court also summarily denied. At the prima facie hearing for t hat petition, the

People reiterated their argument from the first hearing but informed the court that the

California Supreme Court had granted review in Patton

. In response, t he court asked the

parties if there was anything in the preliminary hearing tran script “that would suggest any

other theory” of liability, and Smith’s appointed counsel replied, “Nothing at all.”

Appointed counsel also acknowledged that Smith had stipulated to the preliminary

hearing transcript as the factual basis for the plea.

Smit h filed notices of appeal as to both orders denying his petitions, and we

consolidated his appeals.

DISCUSSION

Smith argues that the trial court erred by denying his petition s at the prima facie

stage

, because he sufficiently alleged a prima facie case for relief and the record of

conviction does not contain facts refuting the allegations of his petition s . We agree.5

I. Senate Bill 1437 and s ection 1172.6

“The Legislature enacted Senate Bill 1437 ‘to more equitably sentence offenders

in accordance with their involvement in homicides.’” ( People v. Curiel (2023) 15 Cal.5th

433, 448 ( Curiel ).) Effective January 1, 2019, the new law eliminated the natural and

probable consequences doctrine and narrowed the definition of first degree felony murder

“to ensu re that murder liability is not imposed on a person who is not the actual 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);

Pen. Code, §§ 188, 189.) As relevant here, Senate Bill 1437 eliminated the natural and

probable consequences doctrine for attempted murder by amending section 188 to

provide that “[m]alice shall not be imputed to a person based solely on his or her

participation in a crime.” (§ 188, subd. (a)(3).)

Senate Bill 1437 also created former section 1170.95, now section 1172.6, which

provides a mechanism for retroactive application of the amended law to those convicted

under prior law . (§ 1172.6.) In its current form, t hat provision applies not only to prior

murder convictions but also to prior attempted murder or manslaughter convictions

.

(Stats. 2021, ch. 551, § 1; see also Curiel

, supra , 15 Cal.5th at p. 511.)

The resentencing procedure under se ction 1172.6 begins with the filing of a

petition containing a declaration that the petitioner has satisfied the following

requirements for eligibility: (1) the complaint or information filed against the petitioner

allowed the prosecution to proceed “unde r a theory of felony murder, murder under the6

natural and probable consequences doctrine or other theory under which malice is

imputed to a person based solely on that person’s participation in a crime, or attempted

murder under the natural and probable co nsequences doctrine”; (2) the petitioner was

“convicted of murder, attempted murder, or manslaughter following a trial or accepted a

plea offer in lieu of a trial at which the petitioner could have been convicted of murder or

attempted murder”; and (3) the petitioner “could not presently be convicted of murder or

attempted murder because of changes to Section 188 or 189 made effective January 1,

2019.” (§ 1172.6, subds. (a)(1)

- (3).)

Upon the filing of a facially sufficient petition, the trial court must ap point counsel

for the petitioner if requested, permit the People to file a response

, permit the petitioner to

file a reply, and “hold a hearing to determine whether the petitioner has made a prima

facie case for relief.” (§ 1172.6, subd. (c); see generall y Lewis

, supra , 11 Cal.5th at

pp. 971

- 972.) If the court determines that the petitioner has made a prima facie case, then

the court must issue an order to show cause and hold an evidentiary hearing to determine

whether to vacate the conviction and to reca ll the sentence and resentence the petitioner

on any remaining counts. (§ 1172.6, subd. (d)(1).)

In Lewis , our Supreme Court explained the prima facie review as follows : “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.”’” ( Le wis

, supra , 11 Cal.5th7

at p. 971.) “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

. . . relief, the prima facie inquiry . . . is limited

. ” ( Id

. at pp. 966, 971.) “ I n 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,’”

and the court should not “make credibi lity determinations.” ( Id. at pp. 972, 974.)

It follows that the only facts in the record of conviction that will refute a

petitioner’s allegations are those that were either admitted by the petitioner or found true

beyond a reasonable doubt by a trier of fact. (See People v. Jenkins (2021) 70

Cal.App.5th 924, 933

- 935; see also Curiel

, supra , 15 Cal.5th at pp. 451

- 454 [facts in the

record of conviction will ordinarily be given preclusive effect on prima facie review only

if they satisfy the traditional el ements of issue preclusion].) As Lewis acknowledged,

“the ‘prima facie bar was intentionally and correctly set very low.’” ( Lewis

, supra , 11

Cal.5th at p. 972.) “‘[A] court should not reject the petitioner’s factual allegations on

credibility grounds wi thout first conducting an evidentiary hearing.’” ( Id. at p. 971.)

II. Smith m ade a p rima f acie c ase for r elief

Whether the record of conviction demonstrates that a petitioner is ineligible for

relief “‘is a purely legal conclusion, which we review de novo .’” ( People v. Ervin (2021)

72 Cal.App.5th 90, 99, 101.) Smith made a prima facie case for relief by alleging in his

petition s that (1) the charging document filed against him for attempted murder allowed

the prosecution to proceed under the natural and probable consequences doctrine, (2) he8

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 (3) he could not presently be

convicted of attempted murder because of t he changes that Senate Bill 1437 made to

section 188. Under Lewis , the trial court was required to treat those allegations as true

and issue an order to show cause unless the record of conviction contains facts refuting

Smith’s allegations. ( Lewis

, supra , 11 Cal.5th at p. 974.)

Smith argues, and we agree, that the record of conviction contains no such facts.

The trial court based its contrary conclusion on the fact that the preliminary hearing

transcript contained uncontrovert ed evidence that Smith was the direct perpetrator

. Smith

contends that the court’s reliance on the preliminary hearing transcript violated Lewis’s

prohibition against judicial factfinding at the prima facie stage. We agree.

A. The p reliminary h earing t ra nscript

Our appellate courts “are split on the import of the preliminary hearing transcript

in determining whether a petitioner has made a prima facie case for resentencing.”

( Flores

, supra

, 76 Cal.App.5th at p. 989.) Some courts have held that evidence presented

at a preliminary hearing can, if uncontroverted, establish ineligibility and support the

denial of a section 1172.6 petition at the prima facie stage. ( Patton

, supra

, 89

Cal.App.5th at p. 649; People v. Pickett (2023) 93 Cal.App.5th 982, review granted Oct

.

11, 2023, S281643; People v. Mares (2024) 99 Cal.App.5th 1158; People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1166.) Other courts, like the one that decided Flores , have

held that such reliance on the prelimin ary hearing transcript constitutes impermissible9

factfinding at the prima facie stage. ( Flores

, supra , 76 Cal.App.5th at pp. 991

- 992;

People v. Davenport (2021) 71 Cal.App.5th 476, 482 ( Davenport ); People v. Das (2023)

96 Cal.App.5th 954, 962

- 964; People v. Rivera (2021) 62 Cal.App.5th 217, 238 ( Rivera )

[applying the same conclusion to a grand jury transcript].) Our Supreme Court has

granted review in Patton to decide whether “the trial court engage[d] in impermissible

judicial factfinding by relying on t he preliminary hearing transcript to deny defendant’s

Penal Code section 1172.6 petition at the prima facie stage.” ( Patton

, supra , S279670.)

While the issue is pending before our high court, we follow the line of cases that

strictly adhere to the prohibi tion against judicial factfinding on prima facie review of a

section 1172.6 petition. (See, e.g., Davenport

, supra

, 71 Cal.App.5th at p. 482

[concluding that “[t]he 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 or admitted”]; accord

, Flores

, supra , 76 Cal.App.5th at p. 991.) When a

court relies on preliminary hearing testimony to deny a petition at the prima facie stage, it

is necess arily making a credibility determination. The testimony has no probative value

unless the court finds it credible. The fact that the testimony is uncontroverted makes a

court’s reliance on it no less of a credibility determination

—uncontroverted testimon y

can still be inaccurate. A preliminary hearing is not a trial, and its purpose is merely to

determine whether there is sufficient evidence to hold the defendant to answer. (See

generally People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276. ) The

defendant consequently has little incentive to introduce conflicting evidence at a10

preliminary hearing, and “a ruling holding a defendant to answer is in no way equivalent

to a jury’s factual finding or a defendant’s admission.” ( People v. Cooper ( 2020) 54

Cal.App.5th 106, 124.) For these reasons, we find the Patton line of cases unpersuasive.

The People contend that the trial court’s reliance on Doe’s testimony at the

preliminary hearing did not violate Lewis ’s prohibition against factfinding beca use Smith

stipulated to the preliminary hearing transcript as the factual basis for the plea. But that

argument misunderstands the nature of the factual basis for a plea under California law.

A stipulation to a factual basis for a plea is not an admission to part icular facts of the

offense.

In California, the trial court must inquire into the factual basis for any negotiated

plea. (§ 1192.5, subd. (c); People v. Hoffard (1995) 10 Cal.4th 1170, 1180

- 1182.) The

requirement exists because the prospect of “substantially reduced punishment” can be

such a powerful “motivating factor for a plea” that a negotiated plea “creates an

especially high risk the defendant will plead t o a crime he or she did not commit and for

which no factual basis can be established.” ( Id. at p. 1182.) The factual basis

requirement thus “helps ensure that the ‘constitutional standards of voluntariness and

intelligence are met.’” ( People v. Holmes ( 2004) 32 Cal.4th 432, 438 ( Holmes ).)

Because its purpose is to ensure that the plea was voluntary and knowing, “[t]he

factual basis required by section 1192.5 does not require more than establishing a prima

facie factual basis for the charges. [Citation.] It is not necessary for the trial court to

interrogate the defendant about possible defenses to the charged crime [citation], nor does11

the trial court have to be convinced of [the] defendant’s guilt.” ( Holmes

, supra , 32

Cal.4th at p. 441, fn. omitted.) In addition, “[a] defendant is not required to personally

admit the truth of the factual basis of the plea, which may be established by defense

counsel’s stipulation to a particular document.” ( People v. French (2008) 43 Cal.4th 36,

50

- 51.) “Courts have consistently differentiated between an 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.” ( People v. Hiller (2023) 91 Cal.App.5th 335, 349

- 350.)

Thus, ab sent an indication that a defendant admitted the truth of particular facts, a

stipulation that a factual basis for a plea exists is not a factual admission and “therefore

cannot be used to demonstrate that [a section 1172.6 petitioner] admitted to acting w ith

actual malice.” ( Rivera

, supra , 62 Cal.App.5th at p. 235; accord

, Flores

, supra , 76

Cal.App.5th at p. 991 [petitioner’s stipulation that the preliminary hearing transcript

provided a factual basis for his guilty plea to murder was not an admission to any

particular facts of the offense].)

Finally, we reject the People’s assertion that

, at the prima facie hearing on Smith’s

second petition

, his appointed counsel conceded that he was the direct perpetrator

. At

that hearing, appointed counsel acknowledge d that Smith had stipulated to the

preliminary hearing transcript as containing a factual basis for the plea and that there was

no evidence in that transcript to suggest a theory of vicarious liability

. Those

representations accurately describe the state of the record of conviction and , contrary to

the People’s characterization, do not constitute an admission regarding Smith’s eligibility12

for relief under section 1172.6. It is undisputed that Smith stipulated to the prelimin ary

hearing transcript as containing a factual basis for the plea and that Doe’s testimony that

Smith was the direct perpetrator was uncontroverted

. However, b ecause of the

prohibition against judicial factfinding and credibility determinations at the pri ma facie

stage, neither the stipulation nor the testimony refutes the allegations of Smith ’s petition s

.

For all of these reasons, we conclude that the trial court erred by denying Smith’s

petitions at the prima facie stage on the basis of the preli minary h earing transcript

.

B. The g uilty p lea to p remeditated a ttempted m urder

The People argue that there is an alternate basis for affirming the trial court’s

denial of Smith’s petition s at the prima facie stage. They assert that Smith is ineligible

for relief as a matter of law because in pleading guilty to attempted murder he also

admitted that the offense was willful, deliberate, and premeditated within the meaning of

the penalty prov ision in section 664, subdivision (a)

. 2 According to the People, Smith ’s

plea constitutes an admi ssion that he personally acted with a deliberate and premeditated

intent to kill

. We disagree

.

Section 664, subdivision (a) increases the punishment for att empted murder to life

with the possibility of parole if the jury finds that the attempted murder was “willful,

deliberate, and premeditated murder, as defined in Section 189. ” ( People v. Favor (2012)

54 Cal.4th 868, 875.) As our Supreme Court explained i n Favor

, section 664,

subdivision (a) is a penalty provision that applies to both direct perpetrators and

2 The information alleged that Smith “did willfully, unlawfully, and with malice

aforethought attempt the willful, deliberate and premeditated murder of [Doe].”13

accomplices who are liable under the natural and probable consequences doctrine. ( Id. at

p. 878.) This is because the provision “‘requires only that the attempted murder itself

was willful, deliberate, and premeditated.’” ( Id. at p. 879.) F or the provision to apply , it

is not necessary that the defendant personally acted with a deliberate and preme ditated

intent to kill . Rather , “ it is only necessary that the attempted murder ‘ be committed by

one of the perpetrators with the requisite state of mind .’” ( Ibid. )

Thus, in the absence of an allegation that Smith was the direct perpetrator , the fact

tha t the People charged him with deliberate and premeditated attempted murder under

section 664 did not preclude the prosecution from proceeding under the natural and

probable consequences doctrine at trial. ( People v. Eynon (2021) 68 Cal.App.5th 967,

978.) A dditionally , the fact that Smith pled guilty to deliberate and premeditated

attempted murder under section 664 does not mean that he admitted that he was the direct

perpetrator. By pleading guilty to that offense, a defendant admit s only “ that a deliber ate

and premeditated murder was committed and that [ the defendant ] committed an act with

the necessary intent to incur liability for that murder, on some unspecified theory. ”

( Ibid. ) The defendant does not thereby admit personally “ act [ing] with deliberate and

premeditated intent to kill. ” ( Ibid. )

“This is the essential difficulty of interpreting the meaning of a plea to generic

murder in the absence of a stipulation to the exact factual basis for the plea.” ( Davenport

,

supra

, 71 Cal.App.5th at p. 484.) As the court explained in Rivera , although “a murder

conviction after a plea has just as much ‘weight and finality’ as one after a trial . . . , this14

does not mean that the theory underlying each type of conviction can be ascertained with

the sam e degree of certainty.” ( Rivera

, supra , 62 Cal.App.5th at p. 236.) “The fact that a

petitioner was not ‘convicted of felony murder or murder under a natural and probable

consequences theory’ (§ 1170.95, subd. (a)) at trial may be conclusively determined if,

for example, the jury did not receive instructions on either theory.” ( Ibid. ) “In contrast,

when a petitioner has entered a plea to murder after being charged by information or

indicted, the record of conviction will generally lack any comparable ass urance of the

basis for the conviction.” ( Id. at p. 237.) Smith’s record of conviction lacks such an

assurance. Because his murder charge did not contain an allegation that he was the direct

perpetrator, “it is not speculation that the People could have proceeded on a natural and

probable consequences theory at trial.” 3 ( Das

, supra , 96 Cal.App.5th at p. 96 4 .)

Although the record of conviction contains uncontroverted evidence to support a

determination that Smith was the direct perpetrator, reaching tha t determination

necessarily requires factfinding and credibility determinations, which are prohibited at

the prima facie stage. ( Lewis

, supra , 11 Cal.5th at p. 974.) Because the record of

3 For the first time at oral argument, the People argued that Smith’s admission to the

firearm enhancement in section 12022.53, subdivision (d), demonstrates as a matter of

law that he was the direct perpetrator. The argument lacks merit. Section 12022.53,

subdivision (d), does not require proof that the defendant acted with malice

. (See People

v. Offley (2020) 48 Cal.App.5th 588, 598 [the jury’s true finding on the firearm discharge

enhancement in § 12022.53, subd. (d)

, did not render the petitioner ineli gible for relief

under § 1172.6, because the enhancement “does not establish that the defendant acted

with malice aforethought”].) Consequently , Smith’s admission does not foreclose the

possibility that the prosecution could have tried him under the natur al and probable

consequences doctrine if the case had gone to trial.15

conviction does not contain fact s establishing that Smith was conv icted under a still

- valid

theory of murder, denial of his petition s without issuing an order to show cause was error.

DISPOSITION

The order s denying Smith’s petition s are reversed, and the matter is remanded

with directions to issue an order to show cause and to conduct an evidentiary hearing

under section 1172.6, subdivision (d).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

I concur:

CODRINGTON

J.1

[ People v. Willie Smith III , E081229]

RAMIREZ, P. J., Dissenting.

I disagree with the analysis of the majority opinion and acknowledge that the

unsettled state of the law makes it almost pointless to write separately. However, I

disagree with the “absolute” approach adopted by the majority in remanding for an

evidentiary hearing any case in which the trial court considered the preliminary transcript,

due to the proscription against making factual findings based on credibility determinations

(see People v. Lewis (2021) 11 Cal.5th 952, 971 ( Lewis )), in light of the Supreme Court’s

grant of review in People v. Patton (2023) 89 Cal.App.5th 649 ( Patton ), review granted

June 28, 2023, S279670, and People v. Pickett (2023) 93 Cal.App.5th 982 ( Pickett ),

review granted October 11, 2023, S281643. Not every case in which a court considers the

preliminary hearing transcript involves improper factual determinations or credibility

determinations.

In determining whether the defendant made the requisite prima facie showing, the

court may rely on the defendant's record of conviction. ( Lewis

, supra , 11 Cal.5th at

p. 970; People v. Flores (2022) 76 Cal.App.5th 974, 988.) In cases where the conviction

resulted from a guilty plea rather than a trial, the record of conviction may include the

transcript of the defendant’s preliminary hearing testimony when the transcript “reliably

reflect[s] the facts of the offense for which the defendant was convicted.” ( People v.

Reed (1996) 13 Cal.4th 217, 223; see Pickett

, supra

, 93 Cal.App.5th at p. 988, review

granted.)2

I agree that courts “should not engage in ‘factfinding involving the weighing of

evidence or the exercise of discretion’” in reviewing the record of conviction ( Lewis

,

supra

, 11 Cal.5th at p. 972), but when “the record

... makes clear that [the petitioner] was

the actual killer and the only participant in the killing,” the petitioner “is not entitled to

any relief under [Penal Code] section 1172.6.” ( People v. Delgadillo (2022) 14 Cal.5th

216, 233; see People v. Garcia (2022) 82 Cal.App.5th 956, 969

– 971 [where record of

conviction “unequivocally establishes that defendant was the ‘actual killer,’” defendant is

not entitled to relief under Pen. Code, § 1172.6 as a matter of law].) The same principles

should apply where the defendant is convicted of an attempted killing.

Here, defendant’s plea included a stipulation that the preliminary hearing

transcript established a factual basis, in a case where defendant failed to provide any

factual allegations suggesting he was not the actual shooter and did not establish that the

People prosecuted him under a theory of imputed malice or felony murder as an aider or

abettor. In the present case, defendant did not object to the People’s evidence and offered

no evidence or argument that might have raised a factual issue as to his involvement in

the attempted murder. We can therefore assess defendant’s prima facie showing without

“engag[ing] in ‘factfinding involving the weighing of evidence’” or making any

credibility determinations ( Lewis, supra

, 11 Cal.5th at p. 972), because defendant

“offered no evidence to weigh, and did not dispute the evidence the district attorney

submitted.” (See Pickett

, supra

, 93 Cal.App.5th at p. 990, citing Patton

, supra

, 89

Cal.App.5th at p. 658, review granted [in summarily denying Penal Code § 1172.6

petition, court did not engage in factfinding or weighing of evidence where3

uncontroverted preliminary hearing testimony showed that the defendant was the sole

and actual perpetrator].)

Additionally, the preliminary hearing transcript is relevant to determine the

prosecution’s theory of th e case and the scope of the charges alleged against a criminal

defendant, without involving any credibility determinations or factfinding. Here, the

record of conviction reveals defendant was not prosecuted under a now invalid theory of

imputed malice (attempted murder requires a specific intent to kill ( People v. Mumin

(2023) 15 Cal.5th 176, 190) or felony murder.

Thus, as we held in Pickett, while the defendant included sufficient allegations to

entitle him to the appointment of counsel, and included a legal conclusion in his petition

that he could not now be convicted because of changes to the law affecting liability for

attempted murder under Senate Bill No. 1437 (2017

- 2018 Reg. Sess.), he did not allege

that he was not the actual shooter and there is nothing in the record to suggest that any

other person was involved in the crime, so he was ineligible for resentencing as a matter

of law. ( Pickett, supra

, 93 Cal.App.5th at p. 989, and cases cited.)

Granted, an intent to kill finding flowing from a conviction for attempted murder

does not itself conclusively establish that a petitioner is ineligible for relief. ( People v.

Curiel (2023) 15 Cal.5th 433, 461, 463.) But “[w]hile a finding of intent to kill does not,

itself, suffice to refute a petitioner's allegation under [Penal Code] section 1172.6,

subdivision (a)(3), a trial court does not end its prima facie inquiry there. Other aspects4

of the record, such as additional jury findings, might be relevant to the remaining

elements of the relevant homicide offense and conclusively refute a petitioner's allegation

that he or she could not be convicted of murder under current law.” ( Curiel

, supra

, at

p 463.)

Here, in addition to the guilty plea which admitted the elements of attempted

murder, including the specific intent to kill, as well as premeditation and deliberation, the

defendant admitted personally discharging a firearm causing great bodily injury. Further,

the prosecution did not proceed on a theory of imputed malice or felony murder, as is

demonstrated by the nature of the allegations in the charging documents and the

undisputed evidence from the preliminary hearing that defendant committed the crime

alone. A defendant who was convicted on a still

- valid theory of murder or attempted

murder is ineligible for relief as a matter of law. ( Lewis

, supra

, 11 Cal.5th at p. 971.)

Therefore, defendant was ineligible for relief as a matter of law.

The analytical error in the majority opinion is that it ignores the fact that no

credibility assessment was required to demonstrate that the People did not rely on a now

invalid theory of attempted murder in prosecuting defendant. It requires no improper

credibility determination or factual finding to determine that, where the defendant was

charged as the sole perpetrator, admitted he personally discharged a firearm causing great

bodily injury, and did not provide any factual allegations suggesting he was not the actual

shooter, he could still be found guilty of attempted murder even after the amendments to

Penal Code sections 188 and 189.5

The absolutist approach adopted by the majority is contrary to the Supreme Court’s

holding in Lewis

, supra

, 11 Cal.5th 952, which permits the trial court to consider the

preliminary hearing transcript as part of the record of conviction to determine if the

allegations of the resentencing petition have been refuted. I would not go so far. I agree

that at the prima facie stage, a trial court should not make a factual determination that one

of two or more perpetrators was the actual killer where there were multiple perpetrators, or

where the evidence adduced at the preliminary hearing was in dispute. But where the

evidence in the preliminary hearing transcript is undisputed, a trial court should be

permitted to consider whether it refutes the allegations of the petition by demonstrating

that the defendant was not prosecuted under a now

- invalid theory as an aider/abettor to a

felony murder, or under a theory of imputed malice.

Here, as the majority acknowledges, the preliminary hearing transcript contained

uncontroverted evidence that Smith was the direct perpetrator of the attempted murder. I

realize that we are writing in the sand until the Supreme Court answers the questions

posed in Patton and Pickett

, but I cannot subscribe to such an absolutist approach, given

the inevitable outcome of an evidentiary hearing. I would affirm the judgment of the trial

court.

RAMIREZ

P. J.