Filed 4/28/22 P. v. Grant CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Jenny M. Brandt, 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, Daniel B. Bernstein, Eric L. Christoffersen, Stephanie A. Mitchell, and Christina H. Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 1998, a jury found petitioner Sonya Grant guilty of the second degree murder of Sheree Lee (Pen. Code,[1] § 187, subd. (a); count 1), and found true an enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)). For this offense, the trial court sentenced petitioner to a term of 15 years to life, plus an additional one-year term for the arming enhancement.

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition without providing a statement of reasons.

On appeal, petitioner argues the trial court erred in (1) failing to provide a statement of reasons supporting the denial of the petition, (2) failing to expressly determine whether petitioner stated a prima facie claim of resentencing eligibility, and (3) engaging in factfinding without holding an evidentiary hearing. We conclude the trial court implicitly determined petitioner failed to state a prima facie claim of resentencing eligibility when it summarily denied the petition without issuing an order to show cause. (See § 1170.95, subd. (c).) However, the court erred in failing to provide a statement of reasons for the denial. (Ibid.) Furthermore, the available record does not establish as a matter of law that petitioner is ineligible for resentencing. To the extent the trial court engaged in factfinding to deny the petition based on the available record, it erred.

Accordingly, we reverse the trial court’s order denying the petition and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

In petitioner’s direct appeal, we summarized the facts underlying petitioner’s offenses as follows:

“On April 4, 1996, [petitioner] lived in a home with her two young children. Sheree Lee was staying with [petitioner] for a few days as a result of her eviction from her apartment. Michelle [T.[2]] was a close friend of [petitioner] and was Lee’s cousin. [Michelle] and [petitioner] went shopping while Lee remained at home baby-sitting [petitioner]’s children.

“[Michelle] drove [petitioner] home after the shopping trip and then returned later that evening. Lee was not home when [Michelle] returned. [Petitioner] told [Michelle] that Lee had sent her daughter next door to borrow shampoo. [Petitioner] thought it was inappropriate for her daughter to go next door to borrow shampoo; when Lee returned, [petitioner] questioned her.

“[Petitioner] and Lee got in a verbal argument, calling each other names. The argument escalated with Lee pulling [petitioner]’s hair and [petitioner] hanging onto Lee’s clothes. [Michelle] broke up the fight between the two, pulling them apart. Matters calmed and [Michelle] sat down on the couch for a minute. [Michelle] then heard Lee screaming and observed [petitioner] wielding a knife in her hand.

“As [petitioner] moved toward her, Lee stood and picked up a stereo speaker. She held the speaker in front of her face. [Petitioner] slashed at the speaker and the speaker fell. Lee was screaming, ‘I’m sorry.’ [Petitioner] chased Lee around the table, continuing to slash at her. Lee ran to the front door and opened it; [petitioner] pushed it closed. [Petitioner] uttered repeatedly to Lee, ‘I’ll teach you not to fight me in my house.’ Lee repeatedly said, ‘I’m sorry,’ and ‘Please stop.’ Lee fell down at the front door, face down. [Petitioner] continued to stab her. At one point the knife broke; [petitioner] went to the kitchen, retrieved another object, and continued to stab Lee.

“After Lee collapsed, [petitioner] said to [Michelle], ‘What have I done?’ [Michelle] replied, ‘I don’t know.’ [Michelle] called 911 and reported the stabbing. She reported Lee had a knife stuck in her back. [Petitioner] ran out of the house. She asked [Michelle] to take her somewhere but [Michelle] said she could not leave her cousin. [Petitioner] came in and out of the house several times and at one point returned to the house through the back door. [Petitioner] was in the house at times when [Michelle] was not. At one point, [Michelle] ran outside screaming and returned to the house. [Petitioner] grabbed her two children and went outside.

“Police officer [D.] Murphy was the first officer on the scene. When he arrived he saw [petitioner] lying in the gutter in a fetal position. She was crying, barefoot, and her nightgown had blood on it. Murphy was directed by others to the front door of the house. He could see a body inside the doorway. As Murphy approached the door, [petitioner] ran up to him. Murphy asked her what happened and she said, ‘She was pulling my hair.’ When Officer Murphy went inside, it appeared that Lee was dead. [Michelle] was crying and screaming. Lee was lying in a large pool of blood. The ambulance arrived. Lee was transported to the hospital where she was pronounced dead.

“[Michelle] told Murphy that [petitioner] and Lee had a confrontation. [Petitioner] left and got a knife and stabbed Lee. [Michelle] did not mention two knives to Murphy. Murphy could not find a weapon at the scene.

“Police department officials came to the house and conducted an investigation. The officers searched but could not find a weapon. They found a knife handle in an open kitchen drawer. There was blood on the counter above the drawer. The handle of the knife tested positive for human blood.

“The stereo speaker had stab marks and blood on it. The officers found what looked like bloody footprints on the patio. They also found blood on a bucket in the back yard by the fence and a blood smear on top of the fence near the bucket. Officers also found several hair braid extensions from [petitioner]’s hair on the floor in the house.

“Detective [L.] Vincent interviewed [Michelle] at the police station. [Michelle] described the confrontation to him much as she did at trial. Vincent’s report stated that Lee hit [petitioner] and also grabbed her hair and threw her around the apartment. Although his report did not reflect this, Vincent recalled that [Michelle] said Lee and [petitioner] were both fighting during the first altercation.

“[Michelle] contacted Vincent a few days after the interview and told him she had seen a blade sticking out of Lee’s back.

“Dr. [A.] Dollinger performed the autopsy on Lee’s body. Lee measured five feet six inches tall and weighed 212 pounds. Lee’s body displayed multiple stab wounds. Dr. Dollinger[] opined that Lee became debilitated because of a loss of blood. Because of this she was not able to clear her airway and died of asphyxiation due to aspiration of vomitus. The wounds to Lee’s hands were consistent with being struck with a knife while holding on to a stereo speaker. Lee had several defensive wounds. The other wounds to Lee were in her back and the back of her left leg. Several of the wounds were consistent with Lee’s lying down when she received them. There was no blade embedded in her body.

“Anthony [K.] was [petitioner]’s boyfriend at the time of the murder. Although he was [petitioner]’s boyfriend, he was living with Jan [M.], the mother of his child. [Anthony] told Jan [M.] about the killing the next day. [Anthony] was very upset and in tears. He said to Jan [M.], ‘Baby, that could have been you.’ Jan [M.] called the jail to see when [Anthony] could visit [petitioner]. She was told that [Anthony] could visit on Saturday, April 6. [Anthony] went and visited [petitioner] on that day. After the visit, he stopped at the home of Pamela [M.], Jan [M.]’s mother, to pick up his daughter. He told Pamela [M.] that [petitioner] told him she had gone over the fence and buried the knives. [Anthony] said he had the knives now. Jan [M.] saw [Anthony] later that afternoon. [Anthony] had some of [petitioner]’s possessions. [Anthony] said [petitioner] told him she buried the knives after going over the fence. [Anthony] said he went and got the knives.

“Pamela [M.] feared becoming involved in this matter. She eventually called the district attorney and told the district attorney what [Anthony] had told her about the knives. She reported this because it was what she should do. Jan [M.] was interviewed after the district attorney got the report from Pamela [M.].

“Jan [M.] testified that her relationship with [petitioner] was not a friendly relationship. One evening when [Anthony] was not living with her, [Anthony] called Jan [M.]. Jan [M.] could hear [petitioner] screaming on the phone, and [Anthony] told Jan to get over there. Jan took her daughter to [Anthony]’s apartment. Jan knocked on the door and [petitioner] answered. Jan asked for [Anthony]. [Petitioner] lunged at her and tried to shove her over the banister. Jan and [petitioner] fought. During the fight, Jan scratched [petitioner]’s face. [Anthony] broke up the fight and threw [petitioner] up against the wall. [Anthony] helped Jan and her daughter leave the apartment. As this was occurring, [petitioner] emerged from the kitchen with a knife. [Anthony] kept [petitioner] away from Jan [M.]. Jan drove away.

“[Anthony] testified under a grant of immunity from the prosecution. He testified when he discussed the stabbing with Jan he was very upset. Jan told him he should visit [petitioner]. [Anthony] testified he visited [petitioner] a few days later. [Anthony] testified [petitioner] did not tell him she hopped the fence and buried the knives. [Anthony] testified he did not dig up the knives and he did not tell Jan [M.] nor Pam [M.] that he did. [Anthony] did go to [petitioner]’s house to pick up some of his possessions.

“[Anthony] said that Jan [M.] resented his relationship with [petitioner]. [Anthony] stopped living with Jan after Jan got mad because [Anthony] had visited [petitioner] in jail. [Anthony] testified that [petitioner] did not pull a knife on Jan and he never said to her, ‘That could have been you, baby.’

“Defense

“Police officer [E.] Brown testified that he was one of the first officers to arrive at the murder scene. [Petitioner] was at the front door. She was in a nightgown and barefooted. She was hysterical and said to him, ‘We was only fighting.’ ‘I cut her, but I didn’t mean to.’ ‘It was an accident.’

“[Petitioner] testified on her own behalf. She is five feet two inches tall and weighed 97 pounds in 1996. [Michelle] was her best friend, and Lee was [Michelle]’s cousin. [Petitioner] agreed to let Lee and her daughter stay with her one night. Lee continued to stay, causing friction. [Petitioner] asked [Michelle] to tell Lee to leave. When Lee returned that evening, [petitioner] had words with her. [Petitioner] was concerned that Lee had sent her four-year-old daughter next door in a T-shirt and underwear to borrow shampoo from a neighbor she did not know.

“[Petitioner] and Lee argued, calling each other names. Lee grabbed [petitioner] by the hair and hit her in the head and back. [Petitioner] was scared. [Michelle] tried to separate them. [Petitioner] reached up on the counter and got a knife. Lee picked up the stereo speaker and started striking [petitioner] with it. [Petitioner] slashed at the speaker; the blade broke off in the speaker. [Petitioner] got loose and ran next door for help. She ran to the back of the house, stood on a bucket, and yelled for help. [Petitioner] returned to the house and put the knife handle back in the drawer. [Petitioner] grabbed her children and went back ourside [sic]. [Petitioner] did not intend to hurt or kill Lee; she was defending herself, and she thought she was going to die.” (People v. Grant (Nov. 21, 2000, F031124) [nonpub. opn.], fns. omitted (Grant).)

On May 16, 1996, the Kern County District Attorney filed an information charging petitioner with the first degree murder of Lee (§ 187, subd. (a); count 1), with an enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)). On February 9, 1998, a jury found petitioner guilty of the lesser included offense of second degree murder, and found the enhancement allegation to be true. On May 29, 1998, the trial court sentenced petitioner on count 1 to a term of 15 years to life, plus an additional one-year term for the arming enhancement. On November 21, 2000, this court affirmed. (Grant, supra, F031124.)

On July 22, 2019, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, information, or indictment was filed against her that allowed her to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; she was convicted of first or second degree murder at trial; and she could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. She further averred that she was convicted of second degree murder under the natural and probable consequences doctrine or the felony murder doctrine and could not now be convicted of murder because of changes made to section 188, and the victim was not a peace officer in the performance of his or her duties. She additionally requested counsel be appointed to represent her on the petition.

On July 26, 2019, the court appointed counsel to represent petitioner.

On August 6, 2019, the People filed a motion to dismiss the petition on the ground Senate Bill No. 1437 (2017-2018 Reg. Sess.) is unconstitutional.[3] On August 19, 2019, the People filed a response to the petition on the merits, arguing petitioner was ineligible for resentencing because the trial evidence showed she was the actual killer and was not convicted under the felony-murder rule or the natural and probable consequences doctrine. On August 30, 2019, the People filed a first amended response to the petition, which raised the same arguments as the prior response and included a copy of this court’s opinion in petitioner’s direct appeal. On June 12, 2020, petitioner filed a reply, stating only that she submitted on the petition.

On August 10, 2020, the trial court summarily denied the petition without providing a statement of reasons. This timely appeal followed.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) “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).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”[4] (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to persons 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.” (§ 1170.95, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring 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.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be “readily ascertained” by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)

If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Analysis

Petitioner contends the trial court erred in failing to provide a statement of reasons for denial of the petition, failing to expressly rule on whether petitioner made a prima facie case for relief, and implicitly engaging in premature factfinding to conclude petitioner was ineligible for relief. As we explain, we agree with some of petitioner’s points of error and ultimately conclude the record on appeal does not establish petitioner’s ineligibility for resentencing as a matter of law.

A. Ruling on Whether Petitioner Made a Prima Facie Case

Petitioner contends the trial court did not expressly rule on whether she made a prima facie case of eligibility for resentencing. We disagree. The trial court summarily denied the petition without issuing an order to show cause or holding an evidentiary hearing. Thus, while not expressly stated, it is plain the trial court determined petitioner failed to state a prima facie claim for relief. (See § 1170.95, subds. (c), (d).)

B. Failure to Provide a Statement of Reasons

Since the trial court denied the petition, section 1170.95 has been amended to require the trial court to provide “a statement fully setting forth its reasons” when the court declines to issue an order to show cause. (§ 1170.95, subd. (c).) This amendment applies retroactively to petitioner’s petition. (See People v. Porter (2022) 73 Cal.App.5th 644, 652.) Accordingly, the court’s failure to provide a statement of reasons for the denial of the petition constitutes error.

C. The Record Does Not Establish Petitioner is Ineligible for Resentencing

Because the trial court did not provide a statement of reasons, the basis for the trial court’s denial of the petition for resentencing is unclear. We therefore consider all parts of the record of conviction that the People contend establish petitioner is ineligible for resentencing as a matter of law.

i. Petitioner’s Allegations

The People first argue petitioner was required to state facts to call into question whether she was the actual killer and that she could not state a prima facie case simply by “checking the right boxes on a form petition.” The People are incorrect.

Section 1170.95, subdivision (a) requires a petitioner seeking resentencing to file a petition averring, as relevant here, that the charging instrument permitted her to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine, that she was convicted of murder following a trial on those charges, and that she could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019. (§ 1170.95, subd. (a)(1)-(3); accord, Lewis, supra, 11 Cal.5th at pp. 959-960.) If the petition meets these requirements, the court must determine whether the petitioner has set forth a prima facie case. (§ 1170.95, subd. (c).)

The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘ “[T]he court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ [Citation.] ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” (Ibid.)

Contrary to the People’s contentions, petitioner was not required to make an initial showing beyond the factual allegations contained in the petition. Unless the record of conviction conclusively refuted petitioner’s allegations, the trial court was required to issue an order to show cause. As we explain below, the available record of conviction does not conclusively refute petitioner’s allegations.

ii. Charge and Conviction

The People next contend the charges contained in the information establish petitioner was not convicted under a felony murder or natural and probable consequences theory. The information charged petitioner with first degree premeditated murder, with an enhancement for personal use of a deadly or dangerous weapon. However, this charge did not limit the People’s ability to prosecute petitioner under other theories of murder. (See People v. Rivera (2021) 62 Cal.App.5th 217, 233 (Rivera) [generically charging murder did not preclude prosecution based on any particular theory of murder].) Indeed, the jury did not convict petitioner of first degree murder, but rather second degree murder.

The People also contend petitioner’s conviction of second degree murder with an enhancement for personal use of a deadly and dangerous weapon establishes that the jury “impliedly found that appellant was the actual killer and acted with malice aforethought.” However, a conviction of second degree murder does not categorically bar a petition under section 1170.95 because it does not specify or exclude any theory of murder. (Rivera, supra, 62 Cal.App.5th at pp. 232-233.) Additionally, the arming enhancement applies to “[a] person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony.” (§ 12022, subd. (b).) It does not conclusively establish petitioner was the actual killer or acted with malice aforethought.

iii. Opinion in Petitioner’s Direct Appeal

Lastly, the People contend the evidence presented at trial, as summarized in our opinion in petitioner’s direct appeal, establishes petitioner was the actual killer.[5] Petitioner argues the trial court is not permitted to rely on a factual summary contained in a prior appellate opinion and, to the extent the trial court did so here, it necessarily engaged in factfinding to conclude the factual summary excluded petitioner from resentencing eligibility.

Our Supreme Court recently explained in Lewis that the opinion in a petitioner’s direct appeal is part of the record of conviction that the court may consider in determining whether a petitioner has made a prima facie showing of resentencing eligibility. (Lewis, supra, 11 Cal.5th at p. 972.) However, the role of the appellate opinion is circumscribed. “[T]he probative value of an appellate opinion is case specific, and ‘it is certainly correct that an appellate opinion might not supply all answers.’ ” (Ibid.) Significantly, the court may not engage in factfinding based on the appellate opinion at the prima facie stage. (Ibid.)

Following Lewis, the Legislature amended section 1170.95 to address “what evidence a court may consider at a resentencing hearing (clarifying the discussion in . . . Lewis, supra, [11 Cal.5th] at pp. 970-972).” (Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, § 1.) In this regard, the Legislature amended subdivision (d)(3) of section 1170.95 to provide in relevant part that, at an evidentiary hearing to determine whether a petitioner is entitled to relief, “[t]he court may . . . consider the procedural history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) In light of this amendment, this court has held that “the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing.” (People v. Flores (2022) 76 Cal.App.5th 974, 988.) Furthermore, “f such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.” ([i]Ibid.) Accordingly, to the extent the trial court concluded the factual summary in our prior opinion excluded petitioner from resentencing eligibility, the court erred.

The People nonetheless assert that the facts summarized in our prior opinion constitute “ ‘procedural facts’ ” that may be relied on to deny relief. In this regard, the People argue:

“The opinion conclusively demonstrates that the evidence presented to the jury (which included [petitioner]’s own testimony) could have only supported a finding of guilt based on [petitioner]’s status as the actual killer. Nothing in the summary of the evidence from trial, as reflected in the statement of facts, suggested that anyone other than [petitioner] could have been the actual killer.”

We disagree. The summary of facts contained in an appellate opinion is necessarily limited and, in some cases, may contain only those facts relevant to the issues presented on appeal. (See People v. Langi (2022) 73 Cal.App.5th 972, 980; accord, Lewis, supra, 11 Cal.5th at p. 972.) Thus, we cannot rely on the factual summary to conclude a jury was not presented with any evidence to support a verdict under a felony murder or natural and probable consequences theory. To the contrary, such a conclusion would necessarily involve either factfinding or application of the substantial evidence standard, both of which are improper at the prima facie stage. (Lewis, at pp. 966, 971-972.) Moreover, the trial transcripts and jury instructions are not before us and the available factual record is comprised only of the factual summary contained in our prior appellate opinion. While it is possible the trial transcripts and jury instructions would establish the jury convicted petitioner on the theory she was the actual killer, the factual summary is insufficient to conclusively establish, as a matter of law, that petitioner was convicted under such theory. To the extent the trial court relied on the factual summary or engaged in factfinding based thereon, the court erred.[6]

Furthermore, in petitioner’s direct appeal, this court did not make a legal determination that the jury convicted petitioner as the actual killer. The prior appellate opinion does not establish conclusions of law relevant to the resolution of her section 1170.95 petition. We therefore agree with petitioner that the trial court’s order denying the petition must be reversed and the matter remanded for the trial court to determine whether petitioner is entitled to an order to show cause (§ 1170.95, subd. (c)). We express no opinion on the merits of the petition.

DISPOSITION

The August 10, 2020 order denying petitioner’s section 1170.95 petition for resentencing is reversed and the matter is remanded for further proceedings consistent with section 1170.95, subdivision (c).

* Before Levy, Acting P. J., Detjen, J. and Peña, J.

[1] Undesignated statutory references are to the Penal Code.

[2] Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.

[3] The motion was fully briefed and eventually denied.

[4] Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)

[5] Petitioner also argues the trial court may have improperly relied on the probation report in resolving the petition. The People do not argue the probation report establishes petitioner is ineligible for resentencing and we therefore do not consider this argument.

[6] The People also rely on People v. Harden (D078191, Mar. 11, 2022), rehearing granted April 7, 2022, for the proposition that we may consider the factual summary in a prior appellate opinion in determining whether petitioner has stated a prima facie case. However, the Court of Appeal has granted rehearing in Harden and the opinion is no longer citable. Regardless, Harden does not support the People’s argument.