Error and/or relief
The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. There could be no rational tactical reason for defense counsel to concede that the defendant was ineligible.
First Holding:
In 2018, the Legislature amended the definition of felony murder in section 189 to restrict culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.
At the same time, the Legislature added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine, to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437. I
f the petition makes a prima facie case for relief the court must hold an evidentiary hearing. At this hearing, the People have the burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under the law as it exists now, with the trial judge sitting as factfinder.
Authority:
PEN 189
PEN 1172.6
Second Holding:
When conducting a prima facie review, the court takes the 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 the record of conviction does not conclusively demonstrate that the defendant engaged in the requisite acts and had the requisite intent to be convicted on a theory of murder that remains valid, denying relief at the prima facie stage is improper.
A preliminary hearing transcript is part of the record of conviction for these purposes, and courts may rely on them when reviewing petitions at the prima facie stage.
Authority:
People v. Eynon (2021) 68 Cal.App.5th 967, 975
People v. Barboza (2021) 68 Cal.App.5th 955, 965-966
People v. Patton (2025) 17 Cal.5th 549, 568 [there is no dispute that the record of conviction the parties may consult at the prima facie stage includes a preliminary hearing transcript preceding a guilty plea.]
Third Holding:
We review the trial court’s decision at the prima facie stage de novo. Reviewing de novo, we therefore find that the defendant established a prima facie case for relief, and the trial court should not have denied his petition for failing to do so.
Authority:
People v. Bodely (2023) 95 Cal.App.5th 1193, 1200
Fourth Holding:
At the hearing, the defendant’s counsel stated that he was appointed to determine eligibility pursuant to 1172.6, and concluded the defendant was not eligible.
The defendant’s counsel cited cases involving defendants who made a prima facie showing for the proposition that a guilty plea is a judicial admission. That it’s an admission that he was, in fact, the killer, and therefore the defendant could not state a prima facie case for relief. Based on this, the court summarily denied the defndant’s petition.
Contrary to the court’s and counsel’s understanding below, a guilty plea (without more) is not an admission to any particular theory of guilt, and therefore cannot render a defendant ineligible for relief as a matter of law.
Moreover, the record of conviction, including the preliminary hearing transcript, does not contain any facts definitively foreclosing the defendant’s eligibility for relief. It is undisputed that the defendant was not the sole participant in either the burglary or murder of the victim.
Nor is there any clear evidence the defendant was the actual killer—indeed, the only evidence presented suggests that the co-defendant, not not the defendant, was the actual killer.
Authority:
People v. Eynon (2021) 68 Cal.App.5th 967, 977 [By pleading guilty, the defendant admitted every element of the charged offense but the defendant did not admit facts supporting liability on any particular theory. Accordingly, the guilty plea did not constitute an admission that the defendant acted with malice.]
Fifth Holding:
The People assert the doctrine of invited error. The doctrine of invited error is an application of the estoppel principle and applies when a party invites the court or the jury to commit error.
Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. It is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.
However, for the doctrine to apply, it must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In order to apply the doctrine, the record must show only that counsel made a conscious, deliberate tactical choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice.
In other words, the invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law. We conclude that on this record defense counsel’s decision to concede that the defendant is ineligible for relief was not a deliberate tactical choice.
Put simply, there was no possible tactical purpose for counsel’s decision to concede the matter. The defendant did not stand to receive any possible benefit from this concession, and therefore the decision to concede could only have been a genuine mistake.
Authority:
People v. Midell (2025) 113 Cal.App.5th 1060, 1072
Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212
People v. Gonzalez (2024) 103 Cal.App.5th 215, 225
People v. Cooper (1991) 53 Cal.3d 771, 83
People v. Duncan (1991) 53 Cal.3d 955, 970
People v. Wader (1993) 5 Cal.4th 610, 658
Sixth Holding:
Even if the invited error doctrine did apply, we would still reach the merits.
Because a deliberate tactical choice by counsel may be an incompetent one, courts have recognized that defendants barred from raising error under the invited error doctrine may instead claim they received ineffective assistance of counsel.
However, courts may also address the merits of an otherwise procedurally barred claim in order to avert any claim of inadequate assistance of counsel. T
hus, even if we concluded the defendant had invited the error he now complains of, we would exercise our discretion to reach the merits anyway to avoid the same result obtaining through an ineffective assistance of counsel claim.
We reverse the order denying the defendant’s section 1172.6 petition and remand. On remand, we direct the trial court to issue an order to show cause and to conduct further proceedings as required under section 1172.6.
Authority:
People v. Wader (1993) 5 Cal.4th 610,
People v. Yarbrough (2008) 169 Cal.App.4th 303, 310