People v. Pickett

93 Cal.App.5th 982

311 Cal.Rptr.3d 121

The PEOPLE, Plaintiff and Respondent,

v.Raymond PICKETT, Defendant and Appellant.

B320892

Court of Appeal, Second District, Division 1, California.

Filed June 29, 2023

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General for Plaintiff and Respondent.

ROTHSCHILD, P. J.

Raymond Pickett appeals from an order summarily denying his petition to vacate his murder conviction and be resentenced under Penal Code section 1172.6.¹ Based on our independent review, we agree with the trial court that Pickett failed to make a prima facie showing for relief. We therefore affirm the court's order.

FACTUAL AND PROCEDURAL SUMMARY

In September 1979, Michael Moore died as a result of a gunshot wound. The district attorney charged Pickett with Moore's murder.

During Pickett's preliminary hearing, the following evidence was adduced from two individuals with personal knowledge of the events. On the afternoon of September 16, 1979, Pickett was shooting a firearm in an alleyway in a residential area of Long Beach. A short time later, Al F., a juvenile, went into a neighbor's garage with his friend, Willie W. Willie took a bottle of wine from the garage. As Willie left the garage, Moore, a gardener who had been working at the house next door, tapped Willie on the shoulder, took hold of Willie's arm, and "[told] him to put it back," or words to that effect. Willie returned to the garage with Moore, and Al walked away.

Pickett overheard Al tell a third person what had transpired between Willie and Moore. Pickett walked up to Willie and spoke with him briefly. Pickett then approached Moore, who was standing in the street near his truck. After conversing with Moore for several minutes, Pickett pulled out a gun. Moore started walking backwards, and Pickett fired a shot into the air. The individuals who saw Pickett fire the shot ran from the scene and heard one or two more shots being fired.

One witness looked back and saw Moore lying on the ground. Moore appeared to have been shot in the leg. According to a medical examiner, Moore had been hit by a bullet that lacerated an artery in his right buttock, causing his death.

Sometime after the shooting, a witness overheard Pickett saying that he would shoot anyone who "snitched."

There was no evidence suggesting that anyone other than Pickett was involved in Moore's death.

At the conclusion of the preliminary hearing, Pickett was held to answer the charge. The district attorney thereafter filed an information charging Pickett with the murder of Michael Moore and alleging that Pickett personally used a firearm—a .38 caliber automatic pistol—in the commission of the crime.

In February 1980, Pickett pleaded guilty to second degree murder ( § 187 ) and admitted the firearm allegation (former § 12022.5 ).² The court sentenced him to prison for 15 years to life, plus two years for the firearm use. In sentencing Pickett, the court explained that Pickett committed "a cold calculated shooting" with "absolutely no provocation, no reason for [the shooting], other than a superegoistic expression on the part of the defendant."

On January 21, 2022, Pickett filed a petition for resentencing under section 1172.6. By checking boxes on a preprinted form, Pickett alleged: (1) an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or other theory of imputed malice based solely on his participation in a crime; (2) he was convicted of murder or accepted a plea offer in lieu of a trial at which he could have been convicted of murder; and (3) he "could not presently be convicted of murder ... because of changes made to [ sections] 188 and 189, effective January 1, 2019." Pickett did not support his petition with any facts concerning the killing of Moore. Nor did he allege that he was not the actual killer.

The court appointed counsel for Pickett upon his request. The court also directed the district attorney to file a response to the petition and informed Pickett that he "may file and serve a reply" to the response.

In the response to the petition, the district attorney relied in part on the transcript of Pickett's preliminary hearing, which we summarized above, and argued that Pickett is ineligible for resentencing because he is "the actual killer." (Boldface omitted.) The district attorney also submitted a transcript of Pickett's sentencing hearing³ and a post-plea probation report.⁴

On April 25, 2022, Pickett's appointed counsel informed the court that she would not be filing any reply to the district attorney's response to Pickett's petition, and was submitting on the petition.

The court summarily denied the petition on the ground that Pickett "is not entitled to relief as a matter of law" because he "was the shooter," and section 1172.6 "does not apply to a situation where the defendant was the actual shooter in a murder case." (Boldface omitted.)

Pickett timely appealed.

DISCUSSION

A. Section 1172.6

In 2018, the Legislature enacted Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 2, p. 6675), which "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, 281 Cal.Rptr.3d 521, 491 P.3d 309 ( Lewis ).) The law is intended "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, p. 6674; see People v. Gentile (2020) 10 Cal.5th 830, 842, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Senate Bill No. 1437 also enacted the predecessor to section 1172.6. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.) Section 1172.6 authorizes an individual convicted of murder based on the natural and probable consequences doctrine or the felony-murder doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if the petitioner could not now be convicted of murder because of the changes made by the new law. (See Lewis , supra , 11 Cal.5th at pp. 959–960, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

A petition under section 1172.6 must state, among other allegations, that the "petitioner could not presently be convicted of murder or attempted murder because of changes" Senate Bill No. 1437 made to the law of murder. ( § 1172.6, subd. (a)(3).) When, as here, a petitioner files a facially sufficient petition, the trial court must appoint counsel for the petitioner, if requested, and determine, after the opportunity for briefing and a hearing, whether the defendant has made a prima facie case for relief under section 1172.6. ( § 1172.6, subd. (c) ; People v. Hurtado (2023) 89 Cal.App.5th 887, 891, 306 Cal.Rptr.3d 468 ; People v. Flores (2022) 76 Cal.App.5th 974, 985, 292 Cal.Rptr.3d 105 ( Flores ).)

In determining whether the defendant made the requisite prima facie showing, the court may rely on the defendant's record of conviction. ( Lewis , supra , 11 Cal.5th at p. 970, 281 Cal.Rptr.3d 521, 491 P.3d 309 ; Flores , supra , 76 Cal.App.5th at p. 988, 292 Cal.Rptr.3d 105.) In cases where the conviction resulted from a guilty plea rather than a trial, the record of conviction may include the transcript of the defendant's preliminary hearing testimony when the transcript "reliably reflect[s] the facts of the offense for which the defendant was convicted." ( People v. Reed (1996) 13 Cal.4th 217, 223, 52 Cal.Rptr.2d 106, 914 P.2d 184 ; see People v. Patton (2023) 89 Cal.App.5th 649, 657, 306 Cal.Rptr.3d 84 ( Patton ), review granted June 28, 2023, S279670 [summary denial of section 1172.6 petition affirmed based on uncontroverted testimony at preliminary hearing]; cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1018–1019, 109 Cal.Rptr.2d 464 [preliminary hearing transcript is part of record of conviction and may be relied on to prove conduct underlying prior felony conviction for purposes of Three Strikes law]; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531, 86 Cal.Rptr.2d 134 [same]; People v. Houck (1998) 66 Cal.App.4th 350, 356–357, 77 Cal.Rptr.2d 837 [preliminary hearing transcript is not part of record of conviction when conviction resulted from a jury verdict].)

"The record of conviction," our Supreme Court has explained, "will necessarily inform the trial court's prima facie inquiry under section [1172.6], 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." ( Lewis , supra , 11 Cal.5th at p. 971, 281 Cal.Rptr.3d 521, 491 P.3d 309.) Although, in reviewing the record of conviction, courts "should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion’ " ( id. at p. 972, 281 Cal.Rptr.3d 521, 491 P.3d 309 ), when "the record ... makes clear that [the petitioner] was the actual killer and the only participant in the killing," the petitioner "is not entitled to any relief under section 1172.6" ( People v. Delgadillo (2022) 14 Cal.5th 216, 233, 302 Cal.Rptr.3d 153, 521 P.3d 360 ). (See People v. Garcia (2022) 82 Cal.App.5th 956, 969–971, 299 Cal.Rptr.3d 131 [where record of conviction "unequivocally establishes that defendant was the ‘actual killer,’ " defendant is not entitled to relief under section 1172.6 as a matter of law].)

We independently review the trial...