Opinion
B324727
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. ANDREW VASQUEZ, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Plaintiff and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA444044, Lisa B. Lench, Judge.
Lenore De Vita, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
In June 2018, pursuant to a negotiated plea agreement, defendant and appellant Andrew Vasquez pleaded guilty to an amended information charging him with one count of voluntary manslaughter. He also admitted a gang enhancement allegation. Through his counsel, Vasquez stipulated to a factual basis for his plea based on the transcript of the preliminary hearing, police reports and defense counsel's own investigation.
In February 2022, Vasquez filed a petition for resentencing. (Pen. Code, § 1172.6.) After counsel was appointed for Vasquez and the parties submitted briefs, the trial court found Vasquez had made a prima facie showing and issued an order to show cause (OSC). At the hearing on the OSC, the court denied Vasquez's petition for resentencing based on the preliminary hearing transcript. The trial court found that the transcript showed the prosecution had proceeded on a direct aiding and abetting theory of liability, which is not a theory to which section 1172.6 applies.
Further statutory references are to the Penal Code.
Vasquez contends the trial court erred in summarily denying his petition, and asserts that remand is in order because the court was required to conduct an evidentiary hearing and independently assess his guilt pursuant to section 1172.6, subdivision (d)(3). We affirm.
BACKGROUND
Because Vasquez stipulated to a factual basis for the plea, the factual summary is drawn from the probation report and testimony at the preliminary hearing.
Shortly after 2:00 a.m., on February 9, 2016, Los Angeles Police Department officers on patrol heard four or five gunshots nearby, saw a sedan collide with a pole, and observed the driver slumped over the steering wheel. The driver, Steve Ibarra, died at the scene from gunshot wounds. The officers pursued a silver SUV that made a U-turn from where the gunshots originated and then sped away.
After a lengthy pursuit the SUV stopped and the officers took its four occupants into custody. Vasquez and codefendant Jesse Armando Sanchez were in the rear seat of the SUV, seated on the left and right sides, respectively. Codefendants Justine Molina drove the SUV and Savana Capra was in the front passenger seat. As Molina pulled alongside Ibarra's car, Sanchez, Vasquez and Ibarra had exchanged words. Sanchez shot Ibarra multiple times with a semiautomatic handgun, killing him. The weapon was later recovered from an area through which the SUV had passed during the pursuit. Vasquez and Sanchez are members of the El Sereno gang. Ibarra belonged to a rival gang.
Facts involving Sanchez, Molina and Capra are discussed only as relevant to this appeal.
II. Procedural Background
A. The Preliminary Hearing
The preliminary hearing began on September 23, 2016. Defendants rested their cases and presented arguments in support of dismissing the murder charge and gang enhancement allegation. During that hearing, in conjunction with a challenge to testimony from the prosecution's gang expert, Vasquez's defense counsel made the following argument:
"I don't think the People are proceeding on my client on natural and probable consequences. I think they are proceeding, and I'll respond if they bring it up, I'm just going on aiding and abetting right now. [¶] There is no evidence at all to support this was a hunting party or a target. In fact, the evidence that the People presented themselves shows it was a spontaneous combustion. A gang member with a large tattoo on his back . . . hits up a couple of women at 2:15 in the morning. [¶] [That the victim] initiated the contact is the People's own evidence. That is their theory of the case .... That is the only evidence they have.... The car is headed toward where it is supposed to be headed at the time it is supposed to be headed. There is no plan. [¶] What did my client do to aid and abet that shooting? We are not talking about [section] 32 right now. We are talking about what did he do to aid and abet that gun being fired. [¶] People [v.] Beeman [(1984) 35 Cal.3d 547], shared intent, prior knowledge. What evidence is there that my client had knowledge that it was going to be a man in a car who was going to hit up the women at 2:15 in the morning. Absolutely none."
The prosecution did not take issue with the assertion that it was proceeding solely on a direct aiding and abetting theory, not a theory of natural and probable consequences. Evidence was introduced that the defendants made pretrial statements referring to an alleged fifth occupant of the SUV, identified as "Pollo," who purportedly was the one who engaged in a confrontation with Ibarra. The People maintained that "Pollo" was really Sanchez and the SUV had only four occupants. The People argued that all four defendants lied about "Pollo's" existence to cover evidence of their crime reflected consciousness of guilt. Additional consciousness of guilt was evidenced by the SUV's rapid flight after the murder, and the fact that Vasquez, Sanchez and Capra destroyed their cell phones at Vasquez's suggestion.
With respect to Vasquez's knowledge, acts and intent, the People argued that Vasquez knew about the weapon in the possession of Sanchez, the other backseat occupant and a fellow member of the El Sereno gang. According to the prosecutor, "the reasonable inference is when you have two entrenched gang members in the back seat of a vehicle at 2:00 in the morning, [Vasquez] will know that Mr. Sanchez has a gun[.]" The prosecutor also pointed to Capra's statements that she had overheard a heated backseat exchange between Vasquez and Sanchez during which someone said, "Put that shit away," and "Be careful." The prosecutor argued that Vasquez's knowledge was shown by Capra's references to those statements, coupled with the reasonable inference that Vasquez knew his fellow gang member had a gun in the back seat. Regarding Vasquez's acts, the prosecutor argued the evidence showed that both Vasquez and Sanchez were involved in the argument with Ibarra. The prosecutor argued that Molina's pretrial statement that an argument between the victim and the guys in the back (Vasquez and Sanchez) "was going on as they were still rolling up to the light," indicated the confrontation was not brief, and was not "a quick back and forth, and done." The prosecutor concluded that Vasquez's involvement in the confrontation with the victim, was evidence he had "back[ed] up his homie to fire at the victim" or "assisted [Sanchez] with words or conduct to commit the shooting," and constituted aiding and abetting. The prosecutor also argued that Vasquez's conduct after the shooting, including breaking his cell phone and fleeing in the SUV, showed he had aided and abetted the murder. The prosecutor noted there was no indication Vasquez had urged the SUV driver to pull over or stop during the pursuit. In addition, the evidence showed the handgun used in the shooting was recovered from an offramp in the path of pursuit, on the same side of the road consistent with the passenger side of the SUV where Vasquez had been seated. The prosecutor argued that evidence of Vasquez's consciousness of guilt after the shooting-lying about Pollo's presence and breaking the cell phones-coupled with the facts that he and Sanchez were members of the same gang, that Vasquez knew Sanchez had a gun before the shooting, and that Vasquez participated in the confrontation with Ibarra, supported "[a] strong suspicion that [Vasquez] knew what was going to happen and aided and abetted in that[.]"
Defense counsel disputed the inferences drawn by the prosecution from the evidence and argued there was insufficient evidence to support the charges against Vasquez.
Holding Vasquez to answer for the murder charge and firearm and gang allegations, the magistrate took the totality of the circumstances into account, together with the standard of proof at a preliminary hearing and found that Vasquez "was an aider and abettor."
B. Charges, plea and sentencing
An information filed in October 2016 charged Vasquez and codefendant Sanchez with murder (§ 187, subd. (a)); shooting at an occupied motor vehicle (§ 246); firearm use by a principal (§ 12022.53, subds. (b)-(e)(1)); and gang enhancement allegations (§ 186.22, subd. (b)(1)(C).) It was also alleged Vasquez on bail or on his own recognizance at the time the crimes were committed (§ 12022.1) and had suffered a prior serious or violent felony conviction (§§ 667, subd. (d), 1170.12, subd. (b)). It was further alleged the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)), and Vasquez had suffered a prior conviction within the meaning of section 667, subd. (a)(1).
In June 2018, pursuant to a negotiated agreement, Vasquez pled guilty to an amended information charging him with one count of voluntary manslaughter (§ 192, subd. (a)). He also admitted the gang enhancement allegation. Vasquez was advised of the nature and elements of the charges against him, his possible defenses and the potential consequences of a plea of guilty or nolo contendere. He waived his rights to a court or jury trial, to confront and cross-examine witnesses, and his right against self-incrimination. Vasquez also waived time for sentencing, as well as his appellate and habeas corpus rights. Defense counsel joined in the waivers and stipulated to a factual basis for the plea based on "thousands of pages of discovery," the lengthy preliminary hearing transcript (which counsel stated he had read "multiple times"), police reports, and counsel's own investigation. The court found Vasquez's waivers were "voluntarily, knowingly, intelligently" and "explicitly made." The court found there was a factual basis for the plea and accepted it.
In mid-August 2020, Vasquez was sentenced to a negotiated disposition of 13 years in state prison. Fees and fines were imposed, custody credits were awarded and the remaining charges against him were dismissed based on the terms of the plea agreement. At sentencing, Vasquez's defense counsel (the same attorney who represented Vasquez at the preliminary hearing) acknowledged that section 1170.95 and Senate Bill No. 1437-which invalidated certain theories of liability for aiders and abettors to murder and manslaughter-had been enacted while this was pending. Counsel stated he "took great thought about whether or not [he] should file that motion in this particular case." Counsel noted that he had "reread the preliminary hearing twice in the last 60 days thinking about whether or not [he] wanted to" file the motion and had "made a tactical decision not to do that because [he] believe[d] the [plea] offer was so good and so fair [he] didn't want [his] client to risk a life sentence." Counsel stated he was "very comfortable not following [section] 1170.95 and 1437."
Section 1170.95 was renumbered section 1172.6 with no change in text, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) We refer to the statute as section 1172.6.
C. The Section 1172.6 Proceedings
In February 2022, Vasquez filed a pro se petition for resentencing pursuant to section 1172.6. He checked boxes on the petition alleging: (1) an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, under the doctrine of natural and probable consequences or on another theory under which malice may be imputed to a person based solely on his participation in a crime; (2) he pled guilty to manslaughter in lieu of proceeding to a trial at which he could have been convicted of murder; and (3) he could not presently be convicted of murder. Counsel was appointed to represent Vasquez, and the People were ordered to respond to the petition.
In April 2022, the prosecution filed an objection arguing the petition should be denied because the ameliorative legislation had been enacted while the murder charge had already been pending for 18 months, Vasquez's defense counsel had considered the matter and had specifically chosen not to withdraw from the plea agreement, and Vasquz's waiver of the right to challenge the negotiated sentence remained valid.
Defense counsel responded that Vasquez had not waived his rights under section 1172.6 and was eligible for resentencing because that statute had recently been amended to include convictions for manslaughter. The trial court found Vasquez had standing to bring a section 1172.6 motion and had not waived his appellate rights at the time he accepted the plea. The court requested briefing but did not issue an OSC.
On July 28, 2022, the prosecution filed an opposition to the petition arguing Vasquez was not eligible for relief under section 1172.6 because the prosecution theory at the preliminary hearing was that he was a direct aider and abettor who acted with intent to kill. Put another way, the prosecution had not proceeded under the now-invalid theories of felony murder, natural and probable consequences, or imputed malice.
In reply, defense counsel argued that neither the accusatory pleading charging murder nor his plea excluded Vasquez from resentencing relief as a matter of law. Vasquez was initially charged both with murder and shooting a firearm into an occupied vehicle, and the latter offense was the target offense for purposes of the natural and probable consequences doctrine. Although the prosecutor at the preliminary hearing had not explicitly used the phrase "natural and probable consequences," the theory was nevertheless imputed malice based on Vasquez's status as an entrenched gang member. Counsel insisted the prosecution was not bound by theories at the preliminary hearing and that, if the matter had proceeded to trial, the prosecution could have proceeded on theories of natural and probable consequences, felony murder, or any other theory that imputed malice based solely on Vasquez's participation in the crime. Thus, nothing precluded Vasquez from eligibility for resentencing as a matter of law and the court was required, pursuant to section 1172.6, to make an independent assessment of guilt. The court found Vasquez had made a prima facie showing and issued an OSC.
At the hearing on the OSC, the trial court found Vasquez failed to make a prima facie showing for relief and summarily denied his petition for resentencing. The court observed it had problematically, but unavoidably felt compelled to use the "preliminary hearing transcript for a purpose it was never intended to be used for." Nevertheless, based on that transcript, the court found the prosecution had not proceeded under the felony murder or natural and probable consequences doctrines, nor on any theory in which malice may be imputed based solely on a defendant's participation in the crime. Rather, the prosecution proceeded on a "straight aiding and abetting theory," rendering section 1172.6 inapplicable. The petition was denied.
As discussed below, the question whether and under what circumstances a trial court may consider the preliminary hearing transcript as part of the record of conviction at the prima facie stage of a section 1172.6 petition is unsettled. (See e.g., People v. Flores (2022) 76 Cal.App.5th 974, 989 & fn. 11 [recognizing split of authority on use of preliminary hearing transcript at prima facie phase and rejecting petitioner's argument that the transcript is not part of the record of conviction]; People v. Patton (2023) 89 Cal.App.5th 649 (Patton), review granted and request for depublication denied, June 28, 2023, S279670; People v. Pickett (2023) 93 Cal.App.5th 982 (Pickett), review granted October 11, 2023, S281643.)
The court also reasoned that felony murder did not apply because the charge of shooting at an occupied motor vehicle (count 2) was not an underlying felony that could be the basis of a felony murder conviction.
This appeal followed.
DISCUSSION
Vasquez's sole contention on appeal is that the trial court erred in summarily denying his petition for resentencing without conducting an evidentiary hearing to independently assess his guilt. He argues the order denying the petition should be reversed and the matter remanded for an evidentiary hearing.
The Attorney General urges us to reject this argument because the transcript of the preliminary hearing conclusively establishes that the prosecution proceeded against Vasquez on a direct aiding and abetting theory of liability. Accordingly, Vasquez is ineligible for resentencing relief as a matter of law. The Attorney General is correct.
I. The Standard of Review
We independently review the trial court's determination that the petitioner failed to make a prima facie showing for relief. (People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon (2021) 68 Cal.App.5th 967, 975.) A denial at this stage is appropriate if the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)
II. Controlling Legal Principles
As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.), section 1172.6, subdivision (a) currently provides: "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts." The petition must aver that: "(1) A complaint, information, or indictment was filed against the petitioner 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 based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[;] [¶] [and] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subds. (a)(1)-(3), (b)(1)(A).) When the parties' briefing has been completed, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Id., subd. (c).) "If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (Ibid.)
Section 1172.6 clearly contemplates its provisions will apply to homicide convictions obtained by plea. Among other requirements, relief is available if the "petitioner was convicted of . . . manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder." (§ 1172.6, subd. (a)(2), italics added.)
In determining whether a petitioner has made a prima facie showing of entitlement to relief, the trial court's inquiry will necessarily be informed by the record of conviction, which facilitates the court's ability to distinguish "petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The court may not engage in" 'factfinding involving the weighing of the evidence or the exercise of discretion.'" (Id. at p. 972.) Rather, the court must"' "take[ ] [the] petitioner's factual allegations as true" '" and make a"' "preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Id. at p. 971.) Summary denial is appropriate where the record of conviction establishes the petitioner is ineligible for resentencing as a matter of law. (People v. Estrada (2022) 77 Cal.App.5th 941, 945 (Estrada); People v. Coley (2022) 77 Cal.App.5th 539, 548.)
As relevant here, the record of conviction includes the preliminary hearing transcript which we conclude may be considered at the prima facie stage, at least where, as here, it is the stipulated factual basis of the plea. (See People v. Davenport (2021) 71 Cal.App.5th 476, 481-482 [preliminary hearing transcript is part of record of conviction but trial court erred in considering facts therein when petitioner did not stipulate to it as the factual basis for the plea]; see Pickett, supra, 93 Cal.App.5th at pp. 992-993, review granted [rejecting argument that preliminary hearing transcript may be considered only when stipulated to as the factual basis for a plea].) Here, the trial court determined, based on its review of the record of conviction, including the transcript of the preliminary hearing, that Vasquez was ineligible for resentencing relief as a matter of law.
Appellate courts are split as to the import of the preliminary hearing transcript in determining a petitioner's eligibility for resentencing under section 1172.6. In People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161 (Nguyen), the court noted that the preliminary hearing transcript contained no argument as to the applicability of the natural and probable consequences doctrine and nothing indicated that the court considered that theory in holding the petitioner to answer. Affirming the trial court's denial of the petition for resentencing, Nguyen reasoned, "If [the petitioner] had gone to trial, and the parties had presented no argument and the trial court had given no instructions regarding felony murder or murder under a natural and probable consequences theory, there is no question [the petitioner] would be unable to make a prima facie showing that he is entitled to relief under section [1172.6]. [Citation.] [The petitioner's] murder conviction after a guilty plea should not be accorded less weight and finality than a murder conviction after a jury trial, as the transcripts from the preliminary and plea hearings demonstrate [the petitioner] was convicted of second degree murder as a direct aider and abettor." (Id. at p. 1167.)
The Nguyen court also relied on the fact that there was no mention in the record "of any underlying felony that could be used as the basis of felony-murder liability, or any target offense that could be used as the basis of liability under the natural and probable consequences doctrine," "[a]t no time prior to the guilty pleas did Nguyen's counsel posit that Nguyen could be found guilty of some less serious crime than murder and attempted murder," and "Nguyen's counsel's conjecture and speculation about other theories that could have been pursued at trial do not alter [the] conclusion, based on the transcripts from the preliminary and plea hearings, that Nguyen was convicted of second degree murder as a direct aider and abettor." (Nguyen, supra, 53 Cal.App.5th at pp. 1167-1168.)
People v. Rivera (2021) 62 Cal.App.5th 217 (Rivera) declined to follow Nguyen. The Rivera court agreed with Nguyen that a "murder conviction after a plea has just as much 'weight and finality' as one after a trial" but disagreed that the "theory underlying each type of conviction can be ascertained with the same degree of certainty." (Id. at p. 236.) "The fact that a petitioner was not 'convicted of felony murder or murder under a natural and probable consequences theory' [citation] at trial may be conclusively determined if, for example, the jury did not receive instructions on either theory." (Ibid.) "In contrast, when a petitioner has entered a plea to murder after being charged by information or indicted, the record of conviction will generally lack any comparable assurance of the basis for the conviction." (Id. at p. 237.) The court rejected the argument that the absence of any mention of an underlying offense that could support felony murder or murder under the natural and probable consequences doctrine in the preplea record precluded relief as a matter of law. (Id. at p. 238.) Rivera found that, "when a petitioner disputes that the evidence presented at a preplea proceeding demonstrates his or her guilt under a still-valid theory of murder, and no' "readily ascertainable facts"' definitively prove otherwise, a trial court cannot deny a petition at the prima facie stage without resorting to' "factfinding involving the weighing of evidence or the exercise of discretion." '" (Ibid.)
Accordingly, Rivera held "that a defendant who stipulated to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he or she was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario." (Rivera, supra, 62 Cal.App.5th at p. 224.) In Rivera, the petitioner "not only filed a facially sufficient petition but, with the assistance of counsel, offered a theory under which the evidence presented to the grand jury was consistent with his guilt of murder under the natural and probable consequences doctrine, based upon an intent to participate in a target offense of assault. [Citation.] In doing so, he created a factual dispute that cannot be resolved at the prima facie stage since nothing in the record definitively foreclosed his theory." (Id. at p. 239.)
In Patton, the court found that a petitioner convicted of attempted murder was not entitled to relief under section 1172.6 as a matter of law where he failed to controvert preliminary hearing transcript testimony of police officers who viewed video surveillance of the crime and concluded he was the actual shooter and had acted alone. (Patton, supra, 89 Cal.App.5th at pp. 652653, 657-658, review granted.) The court concluded that because the testimony of the officers was uncontroverted, no factfinding or weighing of evidence was required to conclude that the petitioner was not entitled to relief as a matter of law. (Id. at p. 658.)
III. Analysis
Relying largely on the rationale articulated in Rivera, Vasquez insists he made a prima facie showing for potential resentencing relief because the generic charge of "murder" in the information did not limit the prosecution to any particular theory. He also contends that his defense counsel's stipulation to the preliminary hearing transcript as a factual basis for the guilty plea did not cure the court's error in denying his petition without conducting an evidentiary hearing. For the reasons articulated in Nguyen, we reject this assertion. Vasquez is not entitled to sentencing relief because the record demonstrates he was convicted under a theory that remains valid under current law, i.e., direct aiding and abetting. (See Estrada, supra, 77 Cal.App.5th at p. 945 [petitioner convicted of murder as an aider and abettor was ineligible for relief as a matter of law as Senate Bill No. 1437 did "not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought."].)
To prove a defendant is an accomplice, the prosecutor must show he acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman, supra, 35 Cal.3d at p. 560, italics omitted (Beeman).) If the charged offense is a specific intent crime, an accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Ibid.; accord, People v. McCoy (2001) 25 Cal.4th 1111, 1118 ["[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator."].)
The preliminary hearing transcript demonstrates that Vasquez was convicted of voluntary manslaughter as a direct aider and abettor. No other theory of liability was advanced by the prosecution at the preliminary hearing. Vasquez's counsel agreed: "I don't think the People are proceeding on my client on natural and probable consequences. I think they are proceeding, and I'll respond if they bring it up, I'm just going on aiding and abetting right now."
The Attorney General notes that, at the preliminary hearing, Vasquez's counsel also referred to, "People [v.] Beeman, shared intent, prior knowledge." We agree that this reference reflects defense counsel's awareness that the prosecution's theory of the case was direct aiding and abetting, which required knowledge of the criminal purpose and a shared intent with the actual perpetrator.
Here, the prosecutor at the preliminary hearing did not dispute defense counsel's assertion that the People were not proceeding on the natural and probable consequences theory of liability. Rather, consistent with Beeman, the prosecutor argued Vasquez was an aider and abettor to the murder because he knew and shared the murderous intent of Sanchez, the actual killer. Specifically, the prosecutor argued Vasquez was a fellow gang member who knew Sanchez was armed before the shooting and participated in the confrontation with Ibarra. Additionally, there was evidence of Vasquez's consciousness of guilt after the shooting (lying about the existence of a fifth occupant in the SUV and instructing the others to break their phones).
The record of conviction demonstrates Vasquez was on notice at the preliminary hearing that the prosecutor's theory of liability was direct aiding and abetting. Any doubt about this conclusion is resolved by the comments of defense counsel at the sentencing hearing (the same attorney who represented Vasquez at the preliminary hearing), who stated he had given "great thought" to his decision not to file a petition under section 1172.6, had "reread the preliminary hearing transcript twice in the last 60 days" and determined Vasquez had received a plea deal "so good and so fair" that the risk of trial was too great. These comments reflect that defense counsel understood the prosecution relied on a direct aiding and abetting theory, to which section 1172.6 is not applicable. As in Nguyen, "[t]his was the only theory put forth by the prosecutor[.]" (Nguyen, supra, 53 Cal.App.5th at p. 1166.) On that evidence, coupled with his conclusion that Vasquez's plea agreement was fair and good, defense counsel informed the court he had made a tactical decision not to seek resentencing.
An adversarial preliminary hearing serves important functions. It "provide[s] the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial." (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588.) Although "an accusatory pleading charging a defendant with murder need not specify the theory of murder on which the prosecution intends to rely," "the accused will receive adequate notice of the prosecution's theory of the case from the testimony presented at the preliminary hearing." (People v. Diaz (1992) 3 Cal.4th 495, 557.) Indeed, a defendant has a due process right to notice of the prosecution's theory of a case, and not to be affirmatively misled or "ambushed" in preparing and presenting his or her defense. (People v. Quiroz (2013) 215 Cal.App.4th 65, 70-71.)
Vasquez asserts that a generic charge of murder does not limit the prosecution to any particular theory, and thus the murder charged in the information did not exclude him from resentencing relief under section 1172.6 as a matter of law. Nevertheless, as the Attorney General points out, "[t]his argument ignores the differences in function between an information and the transcript of the preliminary hearing. It is true that an information need not notify a defendant of all the particulars of the crime charged [because] [t]hat role is left to the preliminary transcript." (People v. Pitts (1990) 223 Cal.App.3d 606, 905.)
The record of conviction shows Vasquez had clear notice that the prosecution's theory of liability was based solely on direct aiding and abetting, which remains a valid theory of murder liability under current law. Vasquez's conviction for voluntary manslaughter "after a guilty plea should not be accorded less weight and finality than a murder conviction after a jury trial," because the stipulated transcript from the preliminary hearing shows he was convicted as a direct aider and abettor. (See Nguyen, supra, 53 Cal.App.5th at p. 1167.) In holding Vasquez to answer on the murder charge and firearm and gang allegations, the magistrate considered the totality of the circumstances and standard of proof at a preliminary hearing and found that Vasquez "was an aider and abettor."
We also reject Vasquez's argument that the trial court committed procedural error by issuing an OSC which entitled him to an evidentiary hearing, then finding he was not eligible for relief based on the sole direct aiding and abetting theory at the preliminary hearing. A trial court may initially determine that a prima facie showing has been made under section 1172.6, and later correct that mistake and find a defendant ineligible for relief as a matter of law. (See e.g., People v. Medrano (2021) 68 Cal.App.5th 177, 181-182; People v. Garrison (2021) 73 Cal.App.5th 735, 746.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
We concur: GRIMES, J., VIRAMONTES, J.