Error and/or relief
We find that in making the prima facie determination, the trial court properly reviewed the preliminary hearing and partial trial transcripts as part of the record of conviction, completely independent from the factual basis stipulation at the plea hearing, to find defendant was the actual killer and ineligible for resentencing under section 1172.6. Defendant’s contrary claims, including his alleged “immunity” and ineffective assistance arguments, are refuted by the record. As in Patton, however, we grant defendant’s request to remand the matter for him to have the opportunity to file a supplemental petition in the trial court.
First Holding:
Effective January 1, 2019, SB 1437 amended the felony-murder rule by adding section 189(e). It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime.
Authority:
People v. Harden (2022) 81 Cal.App.5th 45, 50–51
People v. Strong (2022) 13 Cal.5th 698, 707–708
People v. Reyes (2023) 97 Cal.App.5th 292, 295
Second Holding:
While this appeal was pending, the California Supreme Court decided Patton and held that in making the prima facie determination as to whether a petitioner, who entered a plea instead of going to trial, was convicted under a now-invalid imputed malice theory of homicide in a section 1172.6 petition, the trial court may rely on unchallenged, relief-foreclosing facts within a preliminary hearing transcript to refute conclusory, checkbox allegations made in a form section 1172.6 petition. It disapproved of appellate decisions that conditioned the use of preliminary hearing transcripts to make the prima facie determination on whether a petitioner previously admitted the truth of testimony contained therein or stipulated to the transcript as the factual basis of a plea. It affirmed the trial court’s denial of the section 1172.6 petition in that case but granted the defendant’s request to remand the matter for the opportunity to file an amended petition consistent with the Supreme Court’s ruling.
Authority:
People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 569-570
Third Holding:
As relevant herein, the petitioner must declare (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, or attempted murder under the natural and probable consequences 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. (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.
Authority:
PEN 1172.6(a)(1)–(3)
People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 558
Fourth Holding:
When a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred.
Authority:
People v. Reyes (2023) 97 Cal.App.5th 292, 298
People v. Patton (2025) 17 Cal.5th 549, 569 fn. 12, 564, 559
Fifth Holding:
The amendments to sections 188 and 189 did not invalidate murder convictions based on the theory that the defendant was the actual killer. Where the record of conviction shows the defendant was the actual killer, he was not convicted under a now-invalid imputed malice theory and is ineligible for relief as a matter of law, and no evidentiary hearing is required. If the trial court commits error in making the prima facie finding to deny the petition without an evidentiary hearing, the error is harmless if the defendant is ineligible for resentencing as a matter of law.
Authority:
People v. Strong (2022) 13 Cal.5th 698, 707
People v. Mares (2024) 99 Cal.App.5th 1158, 1166–1167
People v. Harden (2022) 81 Cal.App.5th 45, 52
People v. Garcia (2022) 82 Cal.App.5th 956, 973
People v. Lewis (2021) 11 Cal.5th 952, 973–974