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C.A. Says Prospect That Defendant Was Not Sole Shooter Requires Resentencing Hearing
Presiding Justice Gilbert Protests in Dissent That Man Who Pled Guilty to Attempted Murder Makes No Showing of Eligibility for Relief
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 decision, held yesterday that a man who—acting alone, from all appearances—fired four bullets at an intended victim who survived, pled guilty to attempted murder and admitted personally using a firearm, is entitled to a resentencing hearing under Penal Code §1172.6 which applies where a conviction was based on malice on the part of another being fictionally imputed to the defendant.
Presiding Justice Arthur Gilbert of this district’s Div. Six, in a dissent filed yesterday, accuses the majority of relying on an inapposite case in reaching an unwarranted result, saying that there is nothing in the petition to counter facts in the record pointing to ineligibility for relief.
“Where a defendant pleads no contest to attempted murder, admits that he intentionally discharged a firearm, and is the sole and actual shooter, he is ineligible for resentencing,” Gilbert wrote.
But, Justice Hernaldo J. Baltodano said, in the majority opinion, inmate Juan Alazar is entitled to put on evidence to show that he lacked the requisite state of mind because he never admitted that he was the sole participant in the crime. Justice Tari L. Cody joined in the opinion.
2018 Legislation
SB 1437, enacted in 2018, abolished the ancient doctrine of “natural and probable consequences” and largely eliminated the similarly deep-rooted felony murder rule, restricting application of the murder statute, Penal Code §189, to three circumstances, one of which is that the defendant was the “actual killer.” Sec. 1172.6 provides a procedure for invalidating convictions for murder or attempted murder where the defendant could not be convicted today of the crimes, with a resentencing on other offenses.
Alazar, who pled guilty to attempted murder pursuant to a plea bargain, petitioned for a resentencing hearing, claiming he had been convicted pursuant to a natural and probable consequences theory under which a defendant, even if personally lacking malice, can be held responsible for the consequences of a coconspirator’s actions.
Denying the petition without holding a hearing, Los Angeles Superior Court Judge David W. Stuart in 2022 observed that “there was one actor” in the 2008 shooting—Alazar—and there was thus “no other person involved from whom” Alazar “could have had malice imputed to him, or any state of mind imputed to him.” He ruled that there was “no prima facie evidence” of entitlement to relief and, accordingly, no need to hold an evidentiary hearing.
Baltodano’s Opinion
In his opinion reversing Stuart’s order, Baltodano relied on the California Supreme Court’s 1970 decision in People v. West. There, it was held that plea bargains must be placed on the record, by varying means, suggesting that “the parties could file a written stipulation stating the terms of the bargain.”
Baltodano noted that under subsequent cases, “[s]uch a stipulation does not require the defendant to admit the factual basis for the plea…, but rather permits them to take advantage of a plea bargain while maintaining their claim of innocence.”
He declared:
“Here, we hold that a defendant who enters a so-called West plea and stipulates that the preliminary hearing transcript contains a factual basis for that plea is not barred, as a matter of law, from resentencing pursuant to section 1172.6.”
Reasonable-Doubt Determination
The jurist said that “Alazar is entitled to have a factfinder conclude, beyond a reasonable doubt, that he was the sole shooter and possessed the intent to kill.”
He explained:
“[B]ecause the information generically charged Alazar with attempted murder, and because Alazar entered a West plea to that charge, the court erred when it concluded that Alazar is ineligible for section 1172.6 relief as a matter of law. This is because the record does not conclusively establish that Alazar harbored the intent to kill….”
Agreeing with the majority view that a preliminary hearing transcript may properly be considered at the preliminary stage of a §1172.6 proceeding—at which it decided whether a hearing is warranted—he said that the transcript in Alazar’s case, while reflecting probable cause to believe the defendant acted alone, “does not prove, beyond a reasonable doubt, that he did so as required by section 1172.6, subdivision (d)(3).”
Gilbert said in his dissenting opinion:
“In my view this case has nothing to do with People, v. West…and its progeny. I am guided by Penal Code section 1172.6 and its subsections.
“….It is a defendant’s burden to make a prima facie showing to establish resentencing eligibility. Juan Alazar did not meet that burden.”
He continued:
“In Alazar’s resentencing petition, there is no claim, no offer of proof, or any showing that he did not act alone in committing attempted murder. Alazar had the burden to make a prima facie showing. He did not do so. The prosecutor, relying on the preliminary hearing transcript, said Alazar was the sole and actual shooter….
“Alazar did not deny any of the facts the prosecutor recited from the record. He did not cite to any sworn or unsworn testimony or to any declaration or claim to show there was a factual issue as to whether he acted alone.”
He opined that “Alazar’s petition for resentencing lacks merit,” insisting that the matter “should go no further.”
The case is People v. Alazar, 2024 S.O.S. 3299.
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