THE PEOPLE, Plaintiff and Respondent, v. DANIEL OLIVER MARES, Defendant and Appellant.
E080611
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
Filed 2/23/24
CERTIFIED FOR PUBLICATION; (Super.Ct.No. FSB18002685); OPINION
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
Mares asserts in his petition that he could not be convicted today “because of” changes made to the murder laws in 2019 legislation. (
I
FACTS
Derek Coltrain died from multiple stab wounds inflicted on his face, shoulder, and torso. In a complaint, the district attorney charged Daniel Oliver Mares with murdering him. During a preliminary hearing, four police officers testified about the investigation, which included taking statements from Mares, his girlfriend Marina, and other eyewitnesses. Our factual summary recounts that testimony.
On July 12, 2018, police responded to reports of a stabbing in Redlands and discovered Coltrain lying in a parking lot with stab wounds and significant blood loss. He received treatment but died of his wounds.
Mares too spoke with police after waiving his Miranda rights. His statement about the cause of the fight generally accorded with Marina‘s statement. He said Coltrain argued with Marina over the bike, and he tried to calm the situation. He admitted stabbing Coltrain several times, but he initially claimed Coltrain had attacked him with the knife. He said he blocked Coltrain‘s attempt to stab him and knocked Coltrain‘s knife to the ground. He retrieved the knife and stabbed Coltrain four or five times. When the detective told Mares he did not believe that part of his statement, Mares changed his story. He said he brought the knife to the fight and pulled it out of his pocket when Coltrain charged him. On cross-examination by Mares‘s lawyer, the detective conceded Mares‘s statement about who brought the knife was vague. Mares said he “must have” brought the knife, but then he claimed not to remember where he got the knife or how long he had possessed it. However, Mares consistently said Coltrain had attacked him and he had reacted and stabbed Coltrain. According to Mares, he believed “that in order to leave that porch, he would have to go through” Coltrain.
No evidence suggested anyone other than Mares physically fought with Coltrain or stabbed him.
At the end of the preliminary hearing, Mares was held to answer to a murder charge. The district attorney filed an information charging Mares with the murder of Coltrain and alleging Mares personally used a knife to commit the crime.
In August 2019, Mares pled guilty to voluntary manslaughter (
The court sentenced Mares to 20 years in prison as agreed in the plea agreement, including 11 years for voluntary manslaughter, one year for the enhancement, and one year consecutive for each assault conviction.
In September 2022, Mares petitioned for resentencing under
The court appointed counsel for Mares. The district attorney filed an informal response to the petition and argued Mares is ineligible for relief under
The trial court held a hearing to determine whether to issue an order to show cause. Mares asked the court to determine he had made a prima facie showing and counsel submitted without argument. The district attorney asked the court to deny the petition summarily. “It‘s our position that even though it‘s the prima facie case and it‘s not a factual finding determination by the judge, [from] the preliminary hearing transcript, the Complaint, the Information and the plea, the Court can determine if the defendant was the actual killer and, therefore, not eligible.” Asked for a response, Mares‘s counsel submitted.
The court concluded Mares “failed to make a prima facie showing for a hearing and resentencing. He has failed to state specific facts. Not only that, the Court has reviewed the preliminary hearing transcript, and it appears that the defendant is the actual killer and not entitled to relief.” The court therefore denied the petition without setting a hearing under
II
ANALYSIS
Mares argues the trial court erred by relying on the preliminary hearing transcript to engage in factfinding to determine he was the actual killer and by requiring him to state facts to justify holding a merits hearing. We conclude the trial court did not err.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), to “modify accomplice liability for murder and the felony-murder rule.” (People v. Gentile (2020) 10 Cal.5th 830, 841.) To do this, it “eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The purpose of the changes was “to ensure 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); see also People v. Hurtado (2023) 89 Cal.App.5th 887, 891 (Hurtado).)
The legislation thereby eliminated doctrines where accomplices could be held liable for murder while participating in a lesser crime (such as robbery or shooting at an inhabited building) with the actual killer. The now-eliminated natural and probable consequences doctrine had allowed an accomplice to be found guilty of murder if a “jury determined that he aided and abetted [a] target crime[] and that murder was a natural and probable consequence of the offense.” (People v. Reyes (2023) 14 Cal.5th 981, 984.) The felony-murder doctrine had allowed accomplices to be held liable for murder simply by participating in certain felonies with the killer. The limited doctrine now allows accomplices to a felony to be held responsible for a cohort‘s act of murder only if the accomplice “with the intent to kill” aided and abetted “the actual killer in the commission of murder in the first degree” or the accomplice was a “major participant in the underlying felony and acted with reckless indifference to human life.” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) The changes benefit some accomplices to murder but they never affect the murder liability of the killers.
To trigger further proceedings, a petition must allege three statutory conditions of eligibility are satisfied. As in this case, petitioners typically use a form with checkboxes next to statements that restate the language from subdivisions (1), (2), and (3) of
The third allegation, however, is critical here. It states 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.” (
The trial court appointed counsel for Mares (
Our Supreme Court has explained the trial court may look to the record of conviction to determine whether the petitioner made the required prima facie showing that he could be among those who merit relief. (Lewis, supra, 11 Cal.5th at p. 970.) “The record of conviction,” the Court explained, “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 process.” (Id. at p. 971.)
The Court warned that “the prima facie inquiry under subdivision (c) is limited,” and the “prima facie bar was intentionally and correctly set very low.” (Lewis, supra, 11 Cal.5th at pp. 971-972.) Yet the trial court‘s hands are not tied by the allegations in the petition. “[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.’ ” (Id. at p. 971.)
The record contains facts refuting the petition‘s allegations. Mares pled guilty while the People were pursuing a murder conviction based only on a theory that he was the actual killer. Nothing in the record suggests Mares could have benefitted from Senate Bill 1437‘s changes in the law. The changes to the law applied to accomplices. The legislature eliminated murder liability only for some convicts “who were neither the actual killers nor intended to kill anyone.” (Strong, supra, 13 Cal.5th at p. 707.)
Any actual killer theory that Mares faced is still a valid theory today. That is true whether the People would have argued that he acted with express malice (see CALCRIM No. 520) or intended to commit only a particular felony under a felony murder theory (see CALCRIM No. 540A.) Senate Bill 1437 did not affect actual killer theories. The murder charge resulted in his guilty plea.
Rendered invalid, or altered, are some theories holding defendants responsible for murder when an accomplice is the killer. For Mares to assert that the changes to
That is, Mares must assert (a) there was some other person who was the actual killer and (b) Mares acted in concert with this person in some way that rendered Mares guilty of murder under a now-abrogated theory of accomplice liability. Those abrogated theories (felony murder and natural and probable consequences) are offenses where Mares would have aided a second person in committing some other crime which resulted in the second person killing the victim, Coltrain. Mares must assert he would have defended this case on the theory that he was guilty of only the lesser crime that he helped the killer commit, an argument unavailable to him at the time. That is the only way he would not be guilty “because of” the changes made by Senate Bill 1437.
The record of conviction contains ” ‘facts refuting the[se] allegations’ ” that justify our ” ‘making a credibility determination adverse to’ ” Mares‘s checkbox assertion. (Lewis, supra, 11 Cal.5th at p. 971.) The uncontradicted facts in the record of conviction make impossible the third allegation that Mares must make to establish a prima facie case. Other, significant, contradictory facts would need to be offered to have a basis to conclude that Senate Bill 1437 could have made a difference in Mares‘s decision to plead guilty.
The preliminary hearing transcript shows the basis on which the district attorney pursued the murder charge against Mares. Only an actual killer theory was offered. Our Supreme Court has stated that the transcript of a preliminary hearing, for some purposes, “reliably reflect[s] the facts of the offense for which the defendant was convicted.” (People v. Reed (1996) 13 Cal.4th 217, 223.) “[T]he procedural protections afforded the defendant during a preliminary hearing tend to ensure the reliability of such evidence. Those protections include the right to confront and cross-examine witnesses and the requirement those witnesses testify under oath, coupled with the accuracy afforded by the court reporter‘s verbatim reporting of the proceedings.” (Ibid.)
Here, we need not credit the truth of any fact in the preliminary hearing transcript. What matters is that the record supports no theory other than those where Mares was the actual killer, acting with no accomplice. Police officers who interviewed Mares said he admitted stabbing the victim but said he was defending himself from an attack. Not only was there no evidence in the preliminary hearing transcript to suggest anyone other than Mares was the actual killer, but there was no evidence that anyone other than Mares and the victim were involved in the knife fight. It does not matter whether any fact offered at the hearing was correct (for example, whether he brought the knife
For the third allegation in his
It also does not matter whether the preliminary hearing evidence conclusively establishes Mares would have been found guilty of murder at trial. Had Mares gone to trial, he possibly could, for instance, have challenged the admission of his confession. (See, e.g., People v. Avalos (2022) 85 Cal.App.5th 926, 951-954 [overturning murder conviction based on admission of confession made without valid Miranda waiver].) He may instead have acknowledged he was the killer but argued self-defense or some other justification. (See, e.g., People v. Schuller (2023) 15 Cal.5th 237, 243 [“[u]nder the doctrine of imperfect self-defense . . . ‘if a person kills . . . in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter’ “].) These options were available to him at the time of his plea, without any change in the law. Mares did not plead guilty to murder, he instead pled to manslaughter, and perhaps a jury would have returned a manslaughter verdict if he had gone to trial. Arguing today that he could not be convicted of murder for any of these reasons would not show he cannot be convicted “because of the changes to Section 188 or 189” (
Because nothing in the record supports any way Mares could have been guilty of murder on an abrogated theory, rather than as the actual killer, we
In a situation like this one, where a petitioner pled guilty to resolve a murder charge based on the People‘s uncontradicted evidence that they were the actual killer, a court properly rejects a conclusory assertion that the person could not be guilty today “because of the changes to Section 188 or 189.” (
In contrast, the form petition‘s conclusory assertion is sufficient where the record contains a possibility that the defendant could have been guilty under a now-abrogated accomplice theory. Here, the record forecloses such a possibility. Mares would need some evidence to explain on what theory the record evidence could be disregarded in favor of one of the abrogated accomplice theories of murder. Absent here is any evidence of some other killer or any way Mares assisted that killer in committing some other crime, both necessary to show Mares pled guilty in 2019 when today he could have defended himself using facts that no longer constitute murder.
It would require an unlikely situation for a petitioner to properly allege such facts after pleading guilty in the face of a murder charge based on uncontradicted evidence that they were the actual killer, but we need not foreclose the possibility of such a petition. We do not suggest all the People‘s preliminary hearing evidence was necessarily true. We simply recognize the absence of any theory, incompatible with the record, that the defendant was guilty of aiding and abetting an unidentified actual killer in a crime, other than murder, that led to the victim‘s death. We also need not now decide whether a petitioner in this position (after appointment of counsel per
The statutory consequences of a successful petition reveal why it makes sense to require, for a prima facie case, that Mares offer some evidence that he was guilty of murder based on a theory that was valid before Senate Bill 1437 but is invalid today. If he establishes a prima facie case and prevails at an evidentiary hearing, the statute assumes there is some so-called “target” felony at issue—a felony, such as robbery, that Mares would have intended other than murder and during which Coltrain was killed by someone else.4 This is so because, if Mares prevails on his petition, the statute directs his manslaughter conviction “shall be redesignated as the target offense or underlying felony.” (
This resentencing scheme makes sense for cases involving the abrogated theories of accomplice liability for murder. Those theories would involve Mares as a participant in some target offense that caused a murder committed by another person. Here, there was no different, underlying felony charged along with an accomplice‘s murder. Mares‘s assault which killed Coltrain was the only act. Mares pled guilty to manslaughter, but this is a lesser-included offense of murder rather than a “target” or “underlying” felony. Nor would it make any sense to have his manslaughter conviction “redesignated” as manslaughter. (Ibid.) The statutory scheme thus suggests the Legislature intended the prima facie showing requirement to work as we apply it today—to eliminate cases that do not involve the abrogated theories. As we interpret the statute, the trial courts may winnow meritless petitions filed in cases that do not involve these murder theories but only an actual killer theory. (Lewis, supra, 11 Cal.5th at p. 971.)
Our analysis does not violate the prohibition on factfinding or weighing evidence when considering whether the record of conviction precludes a
Other cases may involve factual findings that are conclusions from the mix of facts in a record. For instance, a finding of a defendant‘s intent, or a determination that he is a major participant in a crime, are conclusions from weighing facts. Findings like those could be disputed on the existing record by an argument that the existing facts should be weighed differently. Those existing facts also could be weighed differently if the record is supplemented by additional facts. But uncontradicted facts showing the defendant was the actual killer cannot be “weighed” to support the conclusion that he was an accomplice of someone else who killed. There also is ordinarily no reason to suspect that the record could be supplemented with other facts that could establish an accomplice theory of murder, whether an abrogated theory or not. Finding Mares pled a prima facie case involves disregarding all the facts rather than weighing any of them.
This conclusion adheres to our Supreme Court‘s guidance on how trial courts may use the record of conviction without straying into impermissible factfinding. Thus far, that guidance has come in cases that have gone to trial. In two cases where the petitioner was convicted of murder as an accomplice to the killer, the Supreme Court established that jury findings are binding on a
In Strong, the petitioner was convicted on a felony-murder theory after his accomplice shot and killed two people while they tried to rob a local drug dealer. (Strong, supra, 13 Cal.5th at p. 691.) The jury found Strong was a “major participant” in the robbery who acted “with reckless indifference to human life,” findings which today would allow a conviction. (Ibid.) The Supreme Court agreed that issue preclusion is consistent with “the structure of the statute—which permits trial courts to consult the record of conviction to determine whether the defendant has made out a prima facie case of eligibility [citation], and which notably does not open resentencing to every previously convicted murder defendant.” (Id. at 700.) But the findings in Strong‘s case did not satisfy the conditions for issue preclusion because they were made under a standard that had undergone a “significant change” since they were made. (Id. at p. 702.) The same findings made after that significant change “ordinarily establish a defendant‘s ineligibility for resentencing” and preclude a prima facie case for relief. (Id. at p. 697.)
But the Supreme Court has also shown us that a conviction on an actual killer theory leaves no room for the defendant to make a
Strong, Curiel, and Delgadillo all were trials. In cases like this one that involve a guilty plea, issue preclusion could not apply. Entering a plea agreement forecloses actual litigation of the issues that would have been
But that this is a plea rather than a trial is no reason to disregard the statutory procedures. As the Supreme Court has repeatedly made clear, the structure of
If a defendant who faced a murder charge before Senate Bill 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition. The record here, however, refutes the conclusory assertion that Mares cannot be convicted today “because of” Senate Bill 1437. No record evidence shows Mares was an accomplice, and uncontradicted record evidence shows he was the killer. With evidence foreclosing that Senate Bill 1437 could have made a difference here, and no evidence supporting it, the record does not permit the assertion to be true. (See, e.g., Delgadillo, supra, 14 Cal.5th at p. 233 [concluding a petitioner could not be entitled to
In Patton, investigating police officers testified at the preliminary hearing that they had watched the surveillance video of the killing and recognized Patton as the sole perpetrator. As the court emphasized, “Those officers were personally involved in the investigation of the shooting of Jackson, and they were subject to cross-examination at the preliminary hearing.” (Patton, supra, 89 Cal.App.5th at p. 657.) The trial court determined Patton had not demonstrated a prima facie case for relief, because the record of conviction established, without contradiction, that Patton was “the sole and actual perpetrator” and therefore ineligible. The reviewing court agreed and rejected arguments that the court had engaged in impermissible factfinding because “[t]he sworn testimony of police officers, based on surveillance video of the crime, that Patton committed the shooting was and is uncontroverted. ‘[N]o factfinding, weighing of evidence, or credibility determinations’ were or are necessary here. ‘[T]he record of conviction irrefutably establishes as a matter of law that’ Patton was convicted as the actual perpetrator of the attempted murder.” (Id. at p. 658.)
Similarly, in Pickett, the Court of Appeal endorsed the trial court‘s reliance on a preliminary hearing transcript to conclude petitioner pled guilty to acting as a sole perpetrator in a killing. “In response to the petition, the district attorney submitted, without objection, the preliminary hearing testimony of two witnesses who watched Pickett as he confronted [the victim] . . . . They saw Pickett pull out a gun and fire a shot into the air. As the witnesses ran away, they heard one or two more shots, followed immediately by the sight of [the victim] on the ground with an apparent gunshot wound to his leg. . . . Although there is no testimony from anyone who saw Pickett fire the fatal shot, there is nothing to suggest that any other person was involved in the
Pickett emphasized that the Legislature included in the statute procedural protections to ensure petitioners would have a chance to respond to the prosecution‘s record citations and to point out any way in which the record of conviction shows abrogated theories of murder may have been in play. Even still, as in this case, petitioner‘s attorney “offered no evidence or argument that might have raised a factual issue.” (Pickett, supra, 93 Cal.App.5th at p. 990.) “Under these circumstances, where the defendant alleges no facts concerning the murder to which he pleaded guilty, the People introduce without objection uncontroverted evidence from the preliminary hearing transcript showing that the defendant acted alone in killing the victim, and the defendant does not put forth, by way of briefing or oral argument, any factual or legal theory in support of his petition, the defendant has failed to make a prima facie showing for relief under
We agree with Pickett and Patton in that they establish a trial court may rely on undisputed facts in the record of conviction showing that the petitioner faced only a theory that he was the actual killer. The undisputed evidence in the record of conviction identifies Mares as the person who stabbed the victim to death. The record contains no indication of the involvement of any other person in the killing or in the physical fight, and Mares has never explained, in the trial court or on appeal, how he could have been convicted as an accomplice. As stated earlier, for Mares to warrant relief “because of” Senate Bill 1437, he must assert that he would have defended himself on a now-abrogated theory of accomplice liability. If Mares could identify anything in the record of conviction suggesting there was some other person involved in the stabbing, then we could not, without impermissible factfinding, conclude his allegation that he could not be convicted now “because of” Senate Bill 1437 lacked any support.
We need not decide under what circumstances a petitioner could credibly contradict undisputed evidence from the record of conviction by asserting facts that would show he may be eligible for resentencing because he acted as an accomplice. Mares submitted no declaration asserting such facts. Even if his prima facie burden is only to assert what evidence he would introduce to establish how he might show he was an accomplice in a crime with someone else who killed the victim, Mares has not tried to do that. There is no basis for us to conceive of how he could not be guilty “because of” changes that Senate Bill 1437 made by eliminating some accomplice liability theories.
In People v. Rivera, grand jury testimony showed the defendant drove an accomplice to and from the scene of a gang related killing. (People v. Rivera (2021) 62 Cal.App.5th 217, 224-225.) Rivera pled guilty to second degree murder and stipulated the transcript of grand jury proceedings provided a factual basis for the plea. (Id. at p. 226.) Rivera later filed a resentencing petition arguing he could not now be convicted of second degree murder “because of the elimination of the natural and probable consequences doctrine” for murder, but the trial court denied it summarily because Rivera had “entered a plea to second degree murder with malice.” (Id. at pp. 226-227.) The Court of Appeal held the trial court had erred in ruling summarily because, in briefing the petition, Rivera “offered a theory under which the evidence presented to the grand jury was consistent with his guilt of murder under the natural and probable consequence doctrine, based upon an intent to participate in a target offense of assault. [Citation.] In doing so, he created a factual dispute that cannot be resolved at the prima facie stage since nothing in the record definitively foreclosed his theory.” (Id. at p. 239.) We would reach the same conclusion. Where the record of conviction would permit conviction under an abrogated theory, the trial court must issue an order to show cause and hold an evidentiary hearing. Here, the record is uncontested that Mares was the actual killer, and Mares did not offer a theory, either in the trial court or on appeal, under which the evidence pointed to his guilt on an abrogated theory.
Mares also argues the Court of Appeal rejected use of preliminary hearing transcript testimony in People v. Cooper (2020) 54 Cal.App.5th 106. To the contrary, in Cooper the trial court denied the petition before the prima facie hearing and without appointing counsel based on the preliminary hearing transcript. The Court of Appeal warned, “Our opinion should not be read to suggest that, had the trial court appointed counsel for Cooper and received briefing from the parties, it could not then rely on the preliminary-hearing transcript to deny the petition for failure to make a prima facie showing of entitlement to relief.” (Id. at p. 125.) Here, the trial court did appoint counsel and allowed Mares opportunities in writing and in person at a hearing to identify how the evidence could support an abrogated theory of liability, but he declined to do so.
Mares relies on Flores for the proposition that relying on preliminary-hearing transcript testimony would involve the court in improper factfinding.
For all these reasons, Mares has failed to make a prima facie showing that he is eligible for relief under
III
DISPOSITION
We affirm the order denying Mares‘s petition.
CERTIFIED FOR PUBLICATION
RAPHAEL J.
We concur:
RAMIREZ P. J.
McKINSTER J.