People v. Williams

322 Cal.Rptr.3d 728

The PEOPLE, Plaintiff and Respondent,

v.Kyle Andrew WILLIAMS, Defendant and Appellant.

F085868

Court of Appeal, Fifth District.

Filed June 28, 2024

APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. (Super. Ct. No. 1422550)

Danalynn Pritz, Westlake Village, 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, Darren K. Indermill and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P. J.

INTRODUCTION

Petitioner Kyle Andrew Williams petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,¹ for resentencing on his conviction for attempted murder (§§ 187, 664). The trial court denied the petition at the prima facie stage after determining that petitioner was "prosecuted and convicted as the direct perpetrator of the attempted murder" and therefore was ineligible for resentencing as a matter of law. Notably, the court based this determination in part on its review of transcripts from petitioner’s preliminary hearing and plea colloquy.

On appeal, petitioner contends the court erred in denying his facially sufficient petition at the prima facie stage by engaging in impermissible factfinding based on the preliminary hearing transcript and change of plea. He further contends that neither his plea nor his counsel’s stipulation to a factual basis for the plea rendered him ineligible for resentencing.

For reasons we explain, we conclude the record of conviction does not establish petitioner’s ineligibility for resentencing as a matter of law. Accordingly, we reverse.

FACTUAL BACKGROUND

Several percipient witnesses testified at the preliminary hearing. We briefly summarize their testimony from the preliminary hearing transcript, while acknowledging that the propriety of the court relying on this testimony is a subject of dispute in this appeal.

On May 19, 2010, Donald W.² drove his minivan to an apartment complex in Modesto. With him were his nephew, Nathaniel W., and Nathaniel’s friends, brothers Brandon R. and Michael R., who went to the apartment complex to sell someone marijuana. Michael was armed with a firearm because Brandon asked him to bring a gun. Donald was in the driver’s seat, Nathaniel was in the front passenger seat, Michael was in the rear passenger side seat, and Brandon initially was in the rear driver’s side seat.

At some point while they were at the apartment complex, a gold Saturn arrived and blocked in the minivan. Michael removed his firearm from his pocket and loaded it, before putting it back in his pocket in its holster. Brandon got out and stood on the driver’s side of the minivan. Petitioner got out of the Saturn; someone else remained in the Saturn’s driver’s seat.

Petitioner got into the rear driver’s side seat of the minivan. The van’s door closed behind him. Petitioner asked about the marijuana and said it looked fine or smelled good, but then pulled a revolver from his backpack and pointed it at Michael’s head. Petitioner said, "You’re dead. I’ve got nothing to live for. Times are tough. I'm robbing everybody for everything." According to Donald, petitioner also pointed the gun at Donald’s head. Petitioner demanded the keys to the minivan. Donald gave petitioner the keys. Michael turned to look at the car door to see if he could escape, then turned back toward petitioner. Around the same time, petitioner shot Michael in the face. Michael estimated that the entire encounter lasted 45 seconds to two minutes.

Michael survived the shooting but spent 14 days in the hospital.

PROCEDURAL HISTORY

On April 18, 2011, the Stanislaus County District Attorney filed an information charging petitioner with premeditated and deliberate attempted murder of Michael (§§ 187, subd. (a), 664; count I), robbery of Donald (§211; count II), and making criminal threats against Michael (§ 422; count III). As to count I, it was alleged that petitioner personally and intentionally discharged a firearm, proximately causing great bodily injury (§ 12022.53, subd. (d)). As to counts II and III, it was alleged that petitioner personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b), (c)).

On August 7, 2012, petitioner entered a plea of no contest to the attempted murder of Michael on count I, and the second degree robbery of Donald on count II. On count I, petitioner admitted enhancements for personal use of a firearm (§ 12022.53, subd. (b)) and for causing great bodily injury (§ 12022.7). Petitioner did not admit the allegation that the attempted murder was premeditated, and the prosecutor indicated the parties’ understanding was that this allegation would be dismissed. All remaining counts and enhancements were dismissed. Counsel for all parties stipulated that the preliminary hearing transcript provided a sufficient factual basis for the plea, In addition, the prosecutor offered the following factual basis for the plea, to which defense counsel also stipulated:

"On May 19th, 2010, [petitioner] took at least one direct but … ineffective step toward killing the victim Michael [R]. [Petitioner] intended to kill victim Michael [R.]. [Petitioner] personally used a firearm in the commission of the offense. And [petitioner] personally inflicted great bodily injury on Michael [R.] during the course of the felony. [¶] In addition, [petitioner] took property not his own from the presence, possession and immediate presence of Donald [W.]. The property was taken against the will of Donald [W.]. [Petitioner] used force … and/or fear when taking the property to prevent the resistance, and [petitioner] intended, while using the force or fear, … with the intent to deprive [Donald] of it permanently. This took place in Stanislaus County on or about 19th day of May, 2010."

Petitioner was sentenced to an aggregate term of 23 years.

On August 29, 2022, petitioner filed a section 1172.6 petition for resentencing on his conviction for attempted murder. The People opposed the petition on the ground the charge and plea established petitioner’s ineligibility for resentencing as a matter of law, and substantial evidence from the preliminary hearing supported a finding that petitioner acted with intent to kill. The People argued that no facts were presented at the preliminary hearing to support a theory of implied malice and the charge of malice aforethought did not permit a plea based on imputed malice. The People argued the undisputed facts showed that petitioner shot Michael in the head and there was therefore no basis to conclude he was convicted under a natural and probable consequences theory. In reply, petitioner argued that he had pled a prima facie case and was entitled to an evidentiary hearing.

The court held a hearing on the petition. The People argued petitioner was not entitled to resentencing because he pled guilty to premeditated attempted murder³ with personal use of a firearm. In its written decision, the court explained that it had reviewed the complaint, transcripts of the change of plea hearing and preliminary hearing, and the abstract of judgment. Based on review of these documents, the court determined that petitioner was prosecuted as a direct perpetrator and "not on a theory of felony murder or a theory of natural and probable consequences." The court noted petitioner was originally charged with premeditated and intentional attempted murder involving personal and intentional discharge of a firearm. He then entered a no contest plea to attempted murder with malice aforethought and admitted personally using a firearm and personally inflicting great bodily injury. The court also noted that the preliminary hearing testimony "demonstrates that [petitioner] was accused of personally firing a firearm directly at Michael [R.] during a transaction for drugs." Accordingly, the court determined, petitioner was prosecuted as the direct perpetrator of the attempted murder and "would still be convicted of attempted murder" under current law. On that basis, the petition was denied.

DISCUSSION

I. Overview of Section 1172.6 Procedure

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) "to amend the felony murder rule and the natural and probable consequences doctrine … 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); accord, People v. Strong (2022) 13 Cal.5th 698, 707–708, 296 Cal.Rptr.3d 686, 514 P.3d 265 (Strong).) Relevant here, the bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder or attempted murder.⁴ (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842–843, 272 Cal.Rptr.3d 814, 477 P.3d 539 (Gentile).) Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)

Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "attempted murder under the natural and probable consequences doctrine" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a).) "[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] [s]ection 188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill [No.] 1437 (§ 1172.6, subd. (a...