THE PEOPLE, Plаintiff and Respondent, v. MOSES ANGEL TREJO, Defendant and Appellant.
F085589 (Super. Ct. No. BF176672A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 2/28/24
Tiffany Organ-Bowles, Judge. Before Hill, P. J., Detjen, J. and Franson, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 publicatiоn or ordered published for purposes of rule 8.1115.
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
In 2019, appellant and defendant Moses Angel Trejo (appellant) pleaded no contest to attempted murder and participation in a criminal street gang, and was sentenced to a stipulated term of 22 years four months in prison.
In 2023, the trial court denied appellant‘s
On appeal, appellant contends, and the People agree, that at the time appellant pleaded no contest to attempted murder, there was a division among the appellate courts as to whether the amendments enacted by Senate Bill 1437 applied to attempted murder convictions. We agree with the parties, and remand the matter for further appropriate proceedings.
PROCEDURAL BACKGROUND
The Complaint
On May 9, 2019, a complaint was filed in the Superior Court of Kern County case No. BF176672A, charging appellant with count 1, attempted murder of Jose R. on April 21, 2019 (
On July 10, 2019, the trial court convened a hearing on a negotiated disposition. The court grаnted the prosecution‘s motion to amend the complaint, and stated appellant would plead no contest to count 1, attempted murder, and admit an enhancement for personal use of a firearm (
The court asked the parties if they stipulatеd there was “a factual basis for the plea based on the police report,” and the prosecutor and defense counsel agreed.2
Appellant pleaded no contest to count 1, attempted murder (without premeditation), and admitted the
Sentencing
On August 7, 2019, the trial court sentenced appellant to the upper term of nine years, doubled to 18 years, for count 1, attempted murder, plus three years for the
APPELLANT‘S PETITION
On August 31, 2022, appellant filed, in propria persona, a petition for resentencing pursuant to
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because (1) a complaint, information, or indictment was filed 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 basеd solely on that person‘s participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial or he accepted a plea offer in lieu of a trial in which he could have been conviсted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to
The court appointed counsel to represent appellant and set a briefing schedule.
The People‘s Opposition
On December 8, 2022, the People filed opposition, and requested the сourt take judicial notice of its own records in case No. BF176672A. The People argued appellant was ineligible for resentencing because he was convicted of attempted murder in 2019, after the amendments to
On January 11, 2023, the trial court held a hearing on whether appellant made a prima facie showing for relief. Appellant‘s counsel submitted the matter on the petition.
The prosecutor stated that appellant‘s conviction “occurred after the law took effect, so the statute does not apply tо him and the [c]ourt cannot give relief.” The court asked appellant‘s counsel to reply, and she again submitted the matter.
The court denied the petition for failing to state a prima facie case: “[T]his law applies to people whose cases were convicted prior to January the 1st of 2019. If the paрerwork before me is correct, the day of conviction was July 10th, 2019. Indeed, the crime was committed in 2019, so statutorily you‘re ineligible for relief under [section] 1172.6.”
On January 13, 2023, appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erroneously denied his petition because he could have bеen convicted under the natural and probable consequences doctrine that was eliminated by the amendments initially enacted by Senate Bill 1437, effective on January 1, 2019. Appellant argues the amendments to
The People concede the error, and agree the matter should be remanded for further proceedings based on Senate Bill 775, that became effective on January 1, 2022, and clarified the amendments to
We begin with the statutory amendments at issue in this case. “Effective January 1, 2019, Senate Bill No. 1437 … amended the felony-murder rule by adding
“Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended,” codified in former
B. Initial Interpretations of Senate Bill 1437
As noted by the parties, there were disagreements among appellate courts about the interpretation of Senate Bill 1437 after the legislation went into effect. These disagreements included thе question at issue in this case—whether the amendments to
In one group of decisions, appellate courts held the amendments еnacted by Senate Bill 1437 only addressed murder and did not extend to attempted murder convictions. (See, e.g., People v. Lopez (Aug. 21, 2019) B271516, opn. ordered nonpub. Nov. 10, 2021 [Senate Bill 1437 did not apply retroactively to nonfinal judgments for attempted murder on direct appeal, but defendants could file a petition for resentencing under former
There were appellate courts that took the opposing view, and held the amendments enаcted by Senate Bill 1437 eliminated the natural and probable consequences doctrine for both murder and attempted murder convictions after the effective date of January 1, 2019. (See, e.g., People v. Medrano (Dec. 3, 2019) F068714 & F069260, opn. ordered nonpub. Jan. 26, 2022 [in a direct appeal from attempted murder conviction, Senate Bill 1437 eliminated the natural and probable consequences doctrine as a viable theory of accomplice liability for attempted murder]; People v. Sanchez (Mar. 16, 2020) F076838, opn. ordered nonpub. Jan. 5, 2022 (Sanchez) [agreed with Medrano that after Senate Bill 1437 became effective the natural and probable consequences doctrine no longer applied to attempted murder].)
As appellate courts filed additional opinions reaching contrary opinions about Senate Bill 1437 and attempted murder, the Supreme Court granted review in these cases, and deferred briefing pending the decision in Lopez. (See, e.g., Sanchez, supra, opn. ordered nonpub. Jan. 5, 2022.)
C. Senate Bill 775
In October 2021, the Legislature enacted Senate Bill 775, while review in Lopez and the other cases was still pending. (Sanchez, supra, opn. ordered nonpub. Jan. 5, 2022.) Senate Bill 775 became effective on January 1, 2022, amended former
Thereafter, the Supreme Court transferred Lopez, Sanchez, and the other pending cases for which review had been granted, back to the aрpellate courts in light of the amendments enacted by Senate Bill 775. (People v. Sanchez (2022) 75 Cal.App.5th 191, 193–194.)
In 2022, three years after appellant‘s plea in this case, Sanchez held that Senate Bill 775 “clarified Senate Bill 1437 by amending [former]
D. Analysis
As demonstrated above, the Supreme Court‘s grant of review in Lopez and briefing order addressed whether Senate Bill 1437‘s amendments to
The record thus shows that at the time of appellant‘s plea in 2019, the law was not settled as to whether he could be prosecuted and convicted of attempted murder based on the natural and probable consequences doctrine. The appellate courts disagreed on the issue, the question was pending before the Supreme Court, and the Supreme Court declined to address the issue after Senate Bill 775 was enacted and became effective in 2022.
We thus agree with the parties that the trial court erroneously denied appellant‘s petition for failing to state a prima facie сase, based on its conclusion that his attempted murder conviction was valid because he entered his plea after Senate Bill 1437 became effective in 2019.
The prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 966.) To demonstrate prejudice from the denial of a
The record herein is extremely sparse to make such a finding. Appellant entered his plea prior to a preliminary hearing. At the plea hearing, the parties stipulated to the factual basis for the plea based on “the police report.” The probation report contains a summary of the report from the sheriff‘s department, but that summary consists of hearsay statements. Appellant pleaded to attempted murder and admitted a
A probation report ordinarily is not part of the record of conviction, and a court may not rely on hearsay factual summaries in probation reports to make the рrima facie finding. (People v. Owens, supra, 78 Cal.App.5th 1015, 1026; People v. Soto (2018) 23 Cal.App.5th 813, 816, fn. 2.) Appellant‘s admission that he personally used a firearm also did not establish his ineligibility for relief as a matter of law. (People v. Jones (2003) 30 Cal.4th 1084, 1120; People v. Masbruch (1996) 13 Cal.4th 1001, 1007.)
We thus remand the matter for the trial court to proceed in a manner consistent with
DISPOSITION
The court‘s order of January 11, 2023, denying appellant‘s petition for resentencing for failing to state a prima facie case, is reversed and the matter remanded for further appropriate proceedings.