Filed 7/17/24 P. v. Scarano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

CHRISTOPHER FRANCIS 

SCARANO,

Defendant and Appellant.

 B329064

 (Los Angeles County

 Super. Ct. No. BA354702)

APPEAL from an order of the Superior Court of Los 

Angeles County, James R. Dabney, Judge. Reversed and 

remanded.

Jonathan E. Demson, under appointment by 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, Steven D. Matthews and Gary A.

Lieberman, Deputy Attorneys General for Plaintiff and 

Respondent.
2

I. INTRODUCTION

Christopher Francis Scarano (defendant) appeals from an 

order summarily denying his petition for resentencing under 

Penal Code section 1172.6.1 The trial court relied on the 

transcript of the preliminary hearing, finding that defendant 

failed to make a prima facie showing that he was eligible for 

relief. We reverse.

II. BACKGROUND

A. Underlying Criminal Conviction

On December 1, 2009, the Los Angeles County District 

Attorney (District Attorney) filed an information charging 

defendant with the murder of Erika Scarano (§ 187, subd. (a))

and alleging that in the commission of that offense, defendant 

“personally used a deadly and dangerous weapon, to wit, [a] 

knife” (§ 12022, subd. (b)(1)).

On November 4, 2010, defendant pleaded no contest to 

voluntary manslaughter (§ 192, subd. (a)) and admitted to 

personally using a knife in connection with that crime (§ 12022, 

subd. (b)(1)). Defense counsel stipulated that a factual basis 

1 All statutory references are to the Penal Code.

The Legislature renumbered section 1170.95 as section 

1172.6 effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For 

clarity, we will refer to section 1172.6 throughout this opinion.
3

supported the plea.2 The trial court accepted the plea and on 

May 9, 2012, sentenced defendant to an aggregate term of 12 

years in state prison.

B. Section 1172.6 Proceedings

On July 25, 2022, defendant filed a form section 1172.6 

petition for resentencing, declaring that: (1) an information was 

filed against him “that allowed the prosecution to proceed under 

a theory of felony murder, murder under the 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”; (2) he “was convicted of . . . 

manslaughter following a trial or . . . accepted a plea offer in lieu 

of a trial at which he could have been convicted of murder”; and 

(3) he “could not presently be convicted of murder . . . because of 

changes made to” sections 188 and 189, effective January 1, 2019.

(Emphasis omitted.)

The trial court appointed counsel for defendant.

On September 7, 2022, the District Attorney filed an 

opposition to the petition, arguing that defendant was the actual 

killer and thus ineligible for resentencing as a matter of law. The 

District Attorney attached as an exhibit to its opposition the 

transcript from the preliminary hearing. That transcript 

included the testimony of a witness who testified that on 

March 29, 2009, she saw defendant, whom the victim had 

identified as her son, use a knife to repeatedly stab the victim.

Defendant filed a reply.

2 We grant the Attorney General’s request for judicial notice 

of the reporter’s transcript of defendant’s plea.
4

On March 6, 2023, the trial court held a hearing to 

determine whether to issue an order to show cause and denied 

defendant’s petition on the grounds that he had not made a 

prima facie showing that he was entitled to relief. The court 

cited to the preliminary hearing transcript, the fact that 

defendant was the only person named in the complaint and 

information, and defendant’s admission to the use of a knife 

allegation, to conclude that defendant was the actual killer and 

therefore ineligible for relief.

Defendant timely appealed.

III. DISCUSSION

Defendant contends that the trial court erred in denying 

his resentencing petition without holding an evidentiary hearing.

We independently review the denial of a resentencing petition at 

the prima facie stage. (People v. Harden (2022) 81 Cal.App.5th 

45, 52.)

In 2019, the Legislature, through Senate Bill No. 1437 

(2017–2018 Reg. Sess.), amended section 188 to eliminate the 

natural and probable consequences doctrine as it applies to 

murder and to require, with certain exceptions under the felonymurder rule, that a defendant act with malice to be convicted of 

murder. (§ 188, subd. (a)(3).) Section 1172.6 now permits a 

person who was convicted of murder under a theory in which 

malice is imputed to a person based solely on that person’s 

participation in a crime, or manslaughter, to file a petition with

the sentencing court to vacate the conviction and be resentenced. 

(§ 1172.6, subd. (a).)

Under section 1172.6, a defendant convicted by plea of 
5

voluntary manslaughter must attest to the following: “(1) A 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder, murder under the 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 . . . . [¶] (2) The petitioner was convicted of . . . 

manslaughter following . . . a plea offer in lieu of a trial at which 

the petitioner could have been convicted of murder . . . . [¶] 

(3) The petitioner could not presently be convicted of murder . . . 

because of changes to [s]ection[s] 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subds. (a)(1)–(3), (b)(1).)

“After a petition for resentencing is filed, the trial court 

must then determine whether the defendant has made a prima 

facie showing of entitlement to relief under section [1172.6]” 

(People v. Davenport (2021) 71 Cal.App.5th 476, 480.) “The 

record of conviction 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 . . . . [¶] 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 . . . . ‘[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.”’” 

(People v. Lewis (2021) 11 Cal.5th 952, 971.) “In reviewing any 
6

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.’ [Citation.] . . . 

[T]he ‘prima facie bar was intentionally and correctly set very 

low.’” (Id. at p. 972.) “At the prima facie stage, a court must 

accept as true a petitioner’s allegation that he or she could not 

currently be convicted of a homicide offense because of changes to 

[s]ection[s] 188 or 189 made effective January 1, 2019, unless the 

allegation is refuted by the record. [Citation.] And this 

allegation is not refuted by the record unless the record 

conclusively establishes every element of the offense.” (People v. 

Curiel (2023) 15 Cal.5th 433, 463.) 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.)

Here, defendant made a prima facie showing that he was 

eligible for relief that was not refuted by the record as a matter of 

law. Because the information charged defendant with the generic 

crime of murder, the prosecution could have proceeded on a 

theory of murder under the natural and probable consequences 

doctrine, felony murder theory, or other imputed malice theory. 

(See § 1172.6, subd. (a)(1); People v. Davenport, supra, 71 

Cal.App.5th at p. 484.) Further, defendant declared that he was 

convicted of manslaughter following a plea offer in lieu of a trial 

at which defendant could have been convicted of murder and that 

he could not presently be convicted of murder because of changes 

to sections 188 or 189.

The trial court nonetheless found that defendant’s record of 

conviction demonstrated that he was the actual killer and 

therefore ineligible for relief as a matter of law. We disagree. 

Defendant pleaded no contest to manslaughter but he did not 
7

admit that he was the actual killer. Further, although defendant 

admitted that a factual basis supported his plea, he did not 

stipulate that the preliminary hearing transcript supplied the 

factual basis for his plea. Reliance upon facts taken from the 

preliminary hearing transcript is “‘impermissible factfinding’ at 

the prima facie stage . . . .” (People v. Davenport, supra, 71 

Cal.App.5th at p. 482; People v. Williams (June 28, 2024, 

F085868) ___ Cal.App.5th___ [2024 WL 3248695, *11] [“the 

preliminary hearing transcript does not conclusively establish a 

defendant’s guilt, let alone any particular theory of guilt”]; People 

v. Estrada (2024) 101 Cal.App.5th 328, 339.) Likewise, 

defendant’s admission that defendant personally used a deadly 

weapon did not establish as a matter of law that he was ineligible 

for resentencing relief. (See People v. Jones (2003) 30 Cal.4th 

1084, 1120, italics added [a “finding of personal use . . . [does] not 

in itself prove [a] defendant was the actual killer” or 

perpetrator].)

Accordingly, the trial court erred in denying defendant’s 

petition at the prima facie stage.
8

IV. DISPOSITION

The order denying defendant’s section 1172.6 petition is 

reversed. The matter is remanded to the superior court with 

directions to issue an order to show cause and to thereafter 

proceed as required by section 1172.6, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

BAKER, Acting P. J.
People v. Christopher Francis Scarano

B329064

LEE, J., Dissenting.

I respectfully dissent from the reasoning and disposition in 

this case. I would affirm the trial court’s summary denial of 

defendant’s petition under Penal Code section 1172.61because 

the uncontroverted record shows that defendant was charged as 

the actual killer who acted alone, thereby refuting his declaration 

of eligibility for relief in his form petition. Following the 

appointment of counsel and briefing, defendant offered nothing 

that would undermine this conclusion. Under these 

circumstances, denial at the prima facie stage is appropriate and 

serves the function of distinguishing petitions with potential 

merit from those that are clearly meritless.

BACKGROUND

Erika Scarano died from multiple stab wounds on 

March 29, 2009.2 Cherylynn Delfino was the sole witness to 

testify at the preliminary hearing in November 2009. We draw 

the facts from her testimony. At the time of the killing, Delfino 

lived in a garage that had been converted to a small residence 

behind the main house, where Erika resided. One Sunday, 

Delfino and Erika attended church together, as they did each 

Sunday, and then returned to their respective homes. After 

resting awhile, Delfino “peek[ed]” into the main house through 

1

All further statutory references are to the Penal Code.

2

Because the victim and defendant share the same last 

name, the former is referred to by first name (Erika).
2

the back door, which she did “quite often.” She saw defendant 

sitting at the table, and Erika introduced him to her as her son, 

stating: “Everything is fine. You don’t need to call 911.” Delfino 

entered the kitchen and spoke with Erika for a few minutes, 

while defendant sat quietly at the kitchen table. Delfino then 

returned to her residence to get ready for work. About an hour 

later, Delfino left her house to go to work. As she locked her front 

door, she “heard a shrieking sound” coming from the main house.

Delfino ran into the main house and saw Erika seated in 

her kitchen chair, with defendant bent over her thrusting his 

hand downward quickly and repeatedly. Delfino tried to pull 

defendant off of Erika and yelled at him to stop, but to no avail. 

At some point, the chair where Erika sat fell, and Delfino saw a 

knife in defendant’s hand. Delfino yelled that she was calling 911 

and ran out of the house, at which point defendant stopped 

stabbing Erika, ran outside, made “a digging motion” in the yard, 

and ran away. Delfino returned to the main house and found 

Erika lying on her stomach on the kitchen floor.

Delfino was cross-examined. The parties stipulated that 

the medical examiner would testify to his determination that 

Erika died from multiple stab wounds to the chest and neck. 

Defense counsel then moved to dismiss for insufficiency of the 

evidence, arguing that no evidence was presented to show “malice 

aforethought, . . . premeditation, [or] deliberation,” and urging, 

“at most what we have here is . . . a second degree [murder].”

In November 2010, defendant pled no contest to voluntary 

manslaughter (§ 192, subd. (a)) and admitted to the allegation 

that he personally used a knife (§ 12022, subd. (b)). Defense 

counsel stipulated to the existence of a factual basis for the plea, 

without specifying any evidence supporting such facts. The trial 
3

court accepted the plea and sentenced defendant to 12 years in 

state prison, which included 11 years for the voluntary 

manslaughter, and one year for the enhancement.

In July 2022, defendant petitioned for resentencing under 

section 1172.6 by filing a form petition with the boxes checked to 

allege the following requirements under the statute: (1) an 

information was filed against him “that allowed the prosecution 

to proceed under a theory of felony murder, murder under the 

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”; (2) he “was convicted of 

murder, attempted murder, or manslaughter following a trial 

or . . . accepted a plea offer in lieu of a trial at which he could 

have been convicted of murder or attempted murder”; and (3) he 

“could not presently be convicted of murder or attempted murder 

because of changes made to” sections 188 and 189, effective 

January 1, 2019. Defendant did not support his petition with a 

declaration or any other representation of the facts surrounding 

Erika’s killing.

The court appointed counsel for defendant, and the People 

filed an opposition to his resentencing petition, arguing that he 

was ineligible for relief as the actual killer, and attaching the 

preliminary hearing transcript. Defendant filed a reply, arguing 

that “[w]hile the court can consider admissible evidence that was 

presented at the preliminary hearing, the court should refrain 

from the wholesale adoption of the preliminary hearing 

transcript,” and that the court should issue an order to show 

cause “[s]ince [its] inquiry at this stage of the proceedings is 

narrow,” and the “very limited admissible evidence at the prima 

facie stage” does not show defendant is ineligible for relief as a 
4

matter of law. Defendant did not otherwise address the People’s 

claim that he was convicted as the actual killer.

DISCUSSION

Denial of a resentencing petition at the prima facie stage is 

subject to independent review. (People v. Harden (2022) 

81 Cal.App.5th 45, 52.) “A defendant seeking relief under section 

1172.6 must ‘file a petition’ alleging entitlement to relief along 

with ‘[a] declaration’ attesting to eligibility for relief. (§ 1172.6, 

subds. (a) & (b)(1)(A).) If the defendant ‘makes a prima facie 

showing’ of entitlement to relief (that is, if the record of 

conviction does not establish ineligibility for relief as a matter of 

law), then the court must in most cases convene an evidentiary 

hearing where the People bear the burden of establishing beyond 

a reasonable doubt that the defendant is guilty of the pertinent 

crime under the new, narrower definitions. (§ 1172.6, subds. (c) 

& (d).)” (People v. Duran (2022) 84 Cal.App.5th 920, 927.)

To trigger further proceedings, a petition must allege the 

three statutory conditions of eligibility set forth in section 1172.6, 

subdivision (a), that the defendant: (1) faced charges allowing 

the People to proceed under a theory of felony murder, murder 

under the natural and probable consequences doctrine, or other 

theory of implied malice, (2) was convicted of murder, attempted 

murder, or manslaughter or pled guilty when they could have 

been convicted of murder or attempted murder, and (3) “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, subd. (a)(1)-(3).)

To satisfy this pleading requirement, defendants typically 

use a form with boxes next to sentences restating the language 

from section 1172.6, subdivision (a)(1), (2), and (3) and place 
5

check marks in these boxes. That was the case here. With 

respect to the third condition of eligibility, the checkbox form 

“offers nothing more than [the] conclusory assertion” that 

defendant “ ‘could not presently be convicted of murder or 

attempted murder because of changes made’ ” to sections 188 and 

189. (People v. Mares (2024) 99 Cal.App.5th 1158, 1165 (Mares), 

review granted May 1, 2024, S284232.)

The trial court correctly determined that defendant failed 

to make a prima facie showing because the uncontroverted facts 

in the record refute his conclusory assertion that he could not be 

convicted today “because of” the 2019 changes to section 188 and 

189. The preliminary hearing transcript reflects the People’s 

basis for charging defendant with murder. (People v. Reed (1996) 

13 Cal.4th 217, 223 [the preliminary hearing transcript “reliably 

reflect[s] the facts of the offense for which the defendant was 

convicted”]; accord Mares, supra, 99 Cal.App.5th at p. 1167.) 

The preliminary hearing transcript contained testimony from a 

percipient witness, as opposed to testimony offered under section 

872, subdivision (b).3 The witness—a neighbor and companion of 

the victim—testified that she tried to pull defendant off of his 

adoptive mother to stop him from stabbing her further. The 

percipient witness was cross-examined by defense counsel, and 

no contradictory facts were adduced. Thus, the preliminary 

hearing transcript provides no occasion to weigh conflicting 

evidence. The uncontroverted facts in the conviction record leave 

no room to infer that the People were pursuing a theory under 

3

A probable cause finding at a preliminary hearing may be 

based on the testimony of a qualified officer who relates hearsay 

statements of witnesses made out of court and offered for their 

truth. (§ 872, subd. (b).)
6

which anyone other than defendant killed or was involved in the 

killing of Erika. “ ‘[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.” ’ ” (People v. Lewis

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

Contrary to defendant’s assertions, we need not weigh the 

evidence or credit the truth of the testimony in the preliminary

hearing transcript to conclude that the record of conviction 

supports no theory other than that defendant was the actual 

killer, acting alone. (Mares, supra, 99 Cal.App.5th at pp. 1167-

1168 [“It does not matter whether any fact offered at the hearing 

was correct. . . . No facts [alleged or substantiated by evidence] 

support a theory that he was an accomplice to a murder 

committed by some other person”]; cf. People v. Estrada (2024) 

101 Cal.App.5th 328, 340 [where preliminary hearing transcript 

suggested involvement of multiple perpetrators, reliance on 

transcript to deny a petition at prima facie stage “would require 

the court to engage in impermissible factfinding”].) The 

preliminary hearing testimony sets forth the factual allegations 

upon which the People charged defendant with murder, even if 

not agreed to as the factual basis for defendant’s plea. (See 

People v. Davenport (2021) 71 Cal.App.5th 476, 483 [prima facie 

inquiry is a test of allegations, not of the truth of the allegations 

or the credibility of the evidence on which they may rely].)

The remainder of the record of conviction is consistent with 

the People’s theory as evidenced by the preliminary hearing 

transcript. The parties stipulated that the medical examiner 

determined multiple stab wounds caused Erika’s death. 

Defendant was the sole person charged in the information, and 
7

he was charged with murder and the personal use of a knife. 

He pled to voluntary manslaughter, admitting that he personally 

used a knife during the incident. There is no suggestion in the 

record of any lesser crimes that defendant might have aided and 

abetted; nor were any charged. There is no indication any person 

other than defendant, the victim, and the neighbor were present 

at the incident. Although the conclusory allegations defendant 

made by checking the boxes on the form petition might have 

otherwise sufficed for a prima facie showing, the record of 

conviction (including the preliminary hearing transcript) shows 

the actual killer theory as the only theory on which defendant 

could have been convicted. In other words, the record forecloses 

the possibility that defendant “could not presently be convicted of 

murder . . . because of changes” to sections 188 and 189. 

(§ 1172.6, subd. (a)(3).)

For defendant to assert that the changes to sections 188 

and 189 would make him not guilty under today’s law, he needed

to “assert he would have defended himself with a theory that he 

was guilty of assisting some other (heretofore unidentified) 

person with some other (heretofore unidentified) crime that 

resulted in that person killing the victim.” (Mares, supra, 

99 Cal.App.5th at p. 1168.) Defendant made no such assertion in 

his petition; he merely checked the box next to the conclusory 

statement that he could not be convicted under the changed law. 

In opposing the petition, the People observed that the evidence at 

the preliminary transcript hearing only showed defendant as the 

actual killer. In his reply brief, defendant did not argue that he 

was not the actual killer; rather, he urged “the court [to] refrain 

from the wholesale adoption of the preliminary hearing 

transcript.” At the prima facie hearing, defense counsel 
8

submitted on the People’s argument that defendant was 

convicted as the actual killer. And the facts that can be gleaned 

from the record are plainly inconsistent with a defense that he 

was assisting some other person with a different crime that 

resulted in that person killing his adoptive mother. (Cf. People v. 

Rivera (2021) 62 Cal.App.5th 217, 235 [record showed there were 

multiple perpetrators and defendant was not the actual killer, 

such that record did not “definitively establish” that defendant 

was not convicted under now abrogated theory of murder]; People 

v. Eynon (2021) 68 Cal.App.5th 967, 978 [where defendant had a 

codefendant, pled guilty to murder during commission of robbery, 

and alleged in his resentencing petition he was not the actual 

killer, denial at prima facie stage was error].) The 

uncontradicted facts in the record of conviction “make 

impossible[, i.e., directly contradict,] the third allegation” 

necessary to establish a prima facie case. Under such 

circumstances, “[o]ther, significant, contradictory facts would 

need to be offered to have a basis to conclude that Senate Bill 

1437 could have made a difference in [defendant’s] decision to 

plead guilty.” (Mares, supra, 99 Cal.App.5th at p. 1167.) 

Defendant has offered none. There is thus no need for an 

evidentiary hearing.

This conclusion comports with the Lewis court’s affirmation 

that “[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. This is consistent with the statute’s overall purpose: to 

ensure that murder culpability is commensurate with a person’s 

actions, while also ensuring that clearly meritless petitions can 

be efficiently addressed as part of a single-step prima facie review 
9

process.” (Lewis, supra, 11 Cal.5th at p. 971; accord People v. 

Curiel (2023) 15 Cal.5th 433, 460; see People v. Williams (June 

28, 2024, F085868) ___Cal.App.5th ___ [2024 Cal.App. Lexis 429, 

*52] (dis. opn. of Meehan, J.).) Because the record forecloses any 

basis for the People to have proceeded against defendant on a 

now abrogated theory of murder liability, and defendant has not 

offered alternative facts upon which the People might have so 

proceeded, the trial court correctly denied his resentencing 

petition at the prima facie stage.

For these reasons, I respectfully dissent.

LEE, J.*

*

Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.