People v. Davenport

• Decision Date: 10 November 2021
• Docket Number: A161954
• Citation: 286 Cal.Rptr.3d 325,71 Cal.App.5th 476
• Parties: The PEOPLE, Plaintiff and Respondent, v. William DAVENPORT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

71 Cal.App.5th 476

286 Cal.Rptr.3d 325

The PEOPLE, Plaintiff and Respondent,

v.William DAVENPORT, Defendant and Appellant.

A161954

Court of Appeal, First District, Division 4, California.

Filed November 10, 2021

Law Office of Steven Schorr and Steven Schorr, San Diego by appointment of the Court of Appeal Under the First District Appellate Project's Independent Case System, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce L. Ortega and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.

STREETER, Acting P. J.

In 2007, appellant William Davenport pled no contest to second degree murder with a firearm enhancement and was sentenced to prison for 18 years to life. This appeal arises from the denial of Davenport's petition for resentencing pursuant to Penal Code section 1170.95.¹ By relying on facts stated in the preliminary hearing transcript in the absence of any stipulation from him that the facts supplied a basis for his plea, Davenport contends the trial court erroneously concluded he failed to make a prima facie showing of entitlement to relief. Seeing merit to the argument, we reverse the order summarily denying Davenport's petition and remand this case for further proceedings.

I. BACKGROUND

Davenport was charged by information with murder ( § 187 ), alleging he committed the murder "unlawfully and with malice aforethought." The information included an enhancement for alleged personal and intentional discharge of a firearm causing great bodily injury and death as well as personal and intentional discharge and personal use of a firearm. ( § 12022.53, subds. (b)–(d).)

Davenport pled no contest to second degree murder and a personal use of a firearm enhancement ( § 12022.5, subd. (a) ). On his plea form, Davenport initialed the following two paragraphs as the factual basis for his plea: "32. I have discussed the contents of the police reports and investigative reports with my attorney. I am satisfied that I know the evidence that could be used against me in trial, as well as any possible defense to these charges. [¶] ... [¶] 33. I believe and agree that a jury or judge who heard the evidence against me could find me guilty of the charges to which I am pleading guilty/no contest." The court sentenced Davenport to a term of 15 years to life for second degree murder consecutive to a term of three years for the enhancement.

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.). Senate Bill No. 1437 amended section 189 to limit liability for murder under a felony-murder or natural and probable consequences theory to a person who is the actual killer, has the intent to kill and aids or abets the actual killer, or is a major participant in the underlying felony and acts with reckless indifference to human life. (Stats. 2018, ch. 1015, §§ 1, 3 ; see § 189, subd. (e)(1)–(3).) The bill also established a procedure, under newly enacted section 1170.95, for eligible defendants to petition for resentencing. (Stats. 2018, ch. 1015, § 4.)

In February 2019, Davenport filed a petition for resentencing under section 1170.95. The petition alleged Davenport (1) was tried under an information that allowed the prosecution to proceed on a felony-murder theory or under the natural and probable consequences doctrine; (2) pled no contest to second degree murder in lieu of going to trial because he believed he could have been convicted at trial of first degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and (3) could not now be convicted of first or second degree murder under section 188, as revised. Davenport was appointed counsel.

In June 2019, the court summarily denied the petition for failure to state a prima facie case for relief. Davenport appealed the order. (See People v. Davenport , 2020 WL 3446038 (June 24, 2020, A158211) [nonpub. opn.].) On appeal, the Attorney General conceded that Davenport's petition was facially sufficient: the assertions, if true, would mean that Davenport was eligible for relief under section 1170.95. ( People v. Davenport , supra , A158211.) We thus vacated the order and remanded the case for further proceedings. ( Ibid . )

On remand, the People filed an opposition to the petition, and Davenport filed a reply brief. The court again summarily denied the petition by written order, concluding that Davenport was ineligible for relief as a matter of law. In reaching this conclusion, the court cited (1) Davenport's admission to the firearm enhancement; and (2) facts taken from the preliminary hearing transcript that Davenport had approached a car in which his former girlfriend was sitting with the victim, her new boyfriend, and killed the victim by shooting him at close range. The court explained that it had considered the transcript because "[t]he facts in defendant's preliminary hearing transcript provide the factual basis for his plea, and are part of the record of his conviction."

II. DISCUSSION

Section 1170.95, subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."

After a petition for resentencing is filed, the trial court must then determine whether the defendant has made a prima facie showing of entitlement to relief under section 1170.95. ( § 1170.95, subd. (c) ; People v. Lewis (2021) 11 Cal.5th 952, 960, 281 Cal.Rptr.3d 521, 491 P.3d 309 ( Lewis ).) In making this assessment, the trial court "should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law." ( People v. Drayton (2020) 47 Cal.App.5th 965, 968, 261 Cal.Rptr.3d 335 ( Drayton ).) The court's authority to summarily deny a petition is thus limited to "readily ascertainable facts" taken from the record of conviction, "rather than factfinding involving the weighing of evidence or the exercise of discretion." ( Id. at p. 980, 261 Cal.Rptr.3d 335 ; accord Lewis , at pp. 970–971, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

If the court determines that a prima facie showing has been made, it "shall issue an order to show cause" and "hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." ( § 1170.95, subds. (c) – (d)(1).) At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. (Id. , subd. (d)(3).)

Here, Davenport contends that the trial court improperly relied on the preliminary hearing transcript in concluding that Davenport had not made a prima facie showing of entitlement to relief. Specifically, Davenport contends that the preliminary hearing transcript is either (1) not part of the record of conviction; or (2) not appropriate to consider because Davenport never stipulated to the transcript as a factual basis for his plea. Our review is de novo, as the propriety of the trial court's inquiry under section 1170.95 is a question of statutory interpretation. ( Lewis , supra , 11 Cal.5th at p. 961, 281 Cal.Rptr.3d 521, 491 P.3d 309.)

We reject Davenport's argument that the preliminary hearing transcript is never part of the record of conviction. (Cf. People v. Reed (1996) 13 Cal.4th 217, 222–223, 52 Cal.Rptr.2d 106, 914 P.2d 184 [trier of fact determining whether a prior conviction constitutes a serious felony under §§ 667(a) and 1192.7(c) may consider a preliminary hearing transcript as part of the prior record of conviction].) We agree, however, that the trial court erred in considering facts from the preliminary hearing transcript here because Davenport did not stipulate to the transcript as a factual basis for his plea. (See People v. Cooper (2020) 54 Cal.App.5th 106, 268 Cal.Rptr.3d 417, review granted Nov. 10, 2020, S264684.) In Cooper , the petitioner was convicted of murder by no contest plea, but the particular factual basis for the plea was never established. ( Id. at pp. 109–110, 112, 268 Cal.Rptr.3d 417.) Before appointing counsel or providing an opportunity for briefing, the trial court summarily denied the petition based on evidence from the preliminary hearing showing that the petitioner committed "appalling acts of violence" against the victim. ( Id. at p. 112, 268 Cal.Rptr.3d 417.) Cooper reversed, concluding the trial court had engaged in "impermissible factfinding" that accepted the truth of the preliminary hearing testimony. ( Ibid . ) Cooper explained: " ‘[A]t the preliminary hearing, the magistrate is called upon only to determine whether the factual showing is sufficient to establish probable cause to believe the defendant committed a felony,’ a ‘fundamentally different factual determination[ ]’ than the determination at trial of guilt beyond a reasonable doubt." ( Id . at p. 123, 268 Cal.Rptr.3d 417.) " ‘ "In short, the magistrate is not a trier of fact ," ’ and a ruling holding a defendant to answer is in no way equivalent to a jury's factual finding or a defendant's...