People v. McGruder CA4/2, E081514

Bobby McGruder was charged with attempted murder, with firearm and gang enhancements, and street terrorism in San Bernardino County.
McGruder pleaded guilty to attempted murder and admitted a gang enhancement under a plea bargain; other charges and enhancements were dismissed or struck.
The plea took place more than 10 years ago, and the factual basis for the plea is unclear from the current appellate record.
In 2022, McGruder filed a petition for resentencing under Penal Code section 1172.6 (formerly 1170.95), which allows relief if conviction was based on the natural and probable consequences doctrine now abolished for attempted murder.
The trial court denied the petition after reviewing the preliminary hearing transcript, finding McGruder was the actual shooter according to that transcript.
McGruder appealed, arguing the trial court improperly relied on the preliminary hearing transcript to summarily deny relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court could rely on preliminary hearing transcript to deny resentencing petition at the prima facie stage	The record shows McGruder was the actual shooter; denial is proper	Use of preliminary hearing transcript improper where factual basis for plea is unclear	Trial court erred; improper to rely on preliminary transcript
If hearsay in the preliminary hearing transcript defeats petition at prima facie stage	Officers’ testimony about victim’s identification is admissible, not hearsay	The transcript primarily contains hearsay; victim did not testify	Reliance on hearsay in transcript was error
Whether McGruder's failure to object to use of the transcript forfeits the argument	McGruder failed to object; forfeited issue	Objection would have been futile; no forfeiture	No forfeiture; objection would have been futile
If proof another codefendant was not charged with attempted murder is decisive	Only defendant was charged as principal; supports denial	No requirement to charge all parties in one information	Not decisive; not required under section 1172.6

People v. Lewis, 11 Cal.5th 952 (Cal. 2021) (Prima facie stage: allegations accepted as true unless record conclusively refutes them)
People v. Davenport, 71 Cal.App.5th 476 (Cal. Ct. App. 2021) (Preliminary hearing transcript cannot be used unless it supplied the factual basis for the plea)