Filed 8/15/22 P. v. Craig CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of San Bernardino County, Michael R. Libutti, Judge. Reversed and remanded with directions.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lynne McGinnis and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Kent Craig appeals from the trial court’s postjudgment order denying his petition for resentencing under Penal Code section 1170.95[1] based on his 2010 first degree murder conviction. Craig argues the following: the trial court failed to issue an order to show cause and conduct a hearing; the court erred by relying on the “record of conviction” and in making factual findings to summarily deny his petition; and the court applied the wrong standard. We agree with his first contention and reverse the postjudgment order and remand the matter to the trial court to issue an order to show cause and hold a hearing pursuant to section 1172.6, subdivision (d).

FACTS[2]

Craig and Craig Corle were friends and neighbors. Along with Cesar Guzman and Michael Jackson, Craig and Corle enjoyed partying together, using illegal drugs and alcohol, and playing musical instruments. The good times ended after Guzman and Craig became angry with Corle for failing to pay Guzman for a computer and refusing to return Craig’s stereo speakers.

Guzman introduced Craig to his friend Jackson, and Jackson and Craig became friends. Jackson testified and recalled that at the end of October 2002, he heard Craig and Guzman “talking about hurting somebody or getting back at somebody or doing some bodily harm and making somebody pay.” Jackson remembered being annoyed by the long conversation because at the time he was trying to be mellow after drinking and smoking weed and crack. He said all the negativity was “blowing [his] high.” Jackson understood the nature of the dispute was about “speakers and computers and money owed, and you know, he can’t wrong people like that.”

That night, Jackson heard Craig and Guzman speak several times about hurting Corle. Jackson said he offered to help, telling them, “I’ll take him out. I’ll do it myself. I’ll take care [sic]. Just let it go. I don’t like him anyway. I’ll take care of it. Just cut the mess.” Jackson remembered Craig replied by saying something like, “No. Good[] brother. I know. Glad you got my back, but if somebody’s going to do something to me, I’ll take care of myself.” Jackson said he could not remember what exactly was said, “But I know – he wasn’t going to be a pretty picture after it was over, whatever was going to happen.” Jackson clarified he understood that during the conversation they were discussing killing Corle. Jackson recalled a later telephone conversation with Guzman, who said something to the effect of, “It’s been dealt with. It’s been taken care of. It’s been dealt with. The boy’s no longer with us. He’s no longer in the land of the living.”

Guzman testified he recalled Craig was “furious” when Corle refused to return the speakers. He said the speakers dispute occurred before Corle stopped paying for the computer. After Corle refused to return the speakers, he and Craig bumped into each other on a few occasions. Craig called the police after one of the incidents and made a police report.

Like Jackson, Guzman recalled that one night at the end of October, Craig kept saying over and over he wanted to hurt Corle. He remembered Jackson got tired of hearing about it and offered to “take him out.” Craig told Jackson not to worry about it because, “We’ll handle it ourselves.”

Craig’s neighbor, Justin Wolosuk, stated he was aware of the dispute between Craig, Guzman, and Corle. Wolosuk knew Corle well, and they went camping together. He knew Craig “fairly well,” and they were on friendly terms. Wolosuk said Craig was “extremely” upset over a dispute involving a computer and speakers. He recalled Craig spoke about it just about every time they spoke, whereas Corle never mentioned it. Because six years had passed since the murder, Wolosuk could not remember Craig’s exact words about wanting to hurt Corle but said he recalled “a statement about something serious is going to happen.” When questioned by the prosecutor, Wolosuk agreed telling the police Craig said something like, “‘I’m not going to stand for this. No sense in us fighting. I don’t want to play games. You don’t do this kind of stuff to me. I might as well kill him.’” For several months after the murder, Craig stopped interacting with Wolosuk.

Guzman testified that on October 30, 2002, Craig telephoned him several times in the early evening. Craig asked Guzman to bring someone who could get Corle’s “fucking ass kicked.” Guzman telephoned a Crips gang member, Cedric Jones, who went by the moniker “Hard Time.” Guzman asked Jones to do the job. Jones regularly supplied Craig and Guzman with crack cocaine. Jones asked for $50 to do the job. Guzman said he relayed the price to Craig, who agreed to pay it.

Guzman picked up Jones and drove him to the apartment complex. Jones was wearing a dark hooded sweatshirt. Jones asked Guzman if he needed a gun, and Guzman replied, “‘No, You don’t need a gun. We’re not going to kill him.’” When they arrived at the apartment complex, Craig was waiting for Jones near a dumpster. Guzman waited in the car and saw Jones get out, walk over to Craig, and have a conversation lasting less than a minute. Guzman saw Craig appear to hand Jones money.

Craig and Jones walked towards Corle’s apartment. After a few minutes, Guzman heard several gunshots in rapid succession. He then heard a second round of rapidly fired gunshots. He saw Craig run outside and look surprised. Guzman then saw Jones walk towards the car, and he was carrying Corle’s computer.

Guzman drove Jones home. On the way, Jones said Corle tried to grab the gun. Jones asked for more money because it was murder. He reminded Guzman he was a gang member and not to snitch. Guzman dropped Jones off and drove to a friend’s house. He asked Will Thomas to wipe down the inside and outside of his car. Guzman telephoned Craig.

Neighbors discovered Corle’s body around midnight and called the police. Corle was lying on the floor near his desk. He had multiple gunshot wounds clustered relatively close together, indicating the weapon was fired at close range. Based on the bullet trajectories and Corle’s position, the police determined he had been sitting on a swivel chair at his desk and then likely turned his chair as the gunman entered and began shooting him.

Within minutes after the murder, Craig called the police from his own apartment and reported he heard a shooting. Later that night, the police interviewed Craig. He admitted being mad at Corle because of the stereo speakers and he wanted to assault Corle. Craig also admitted he had wanted to kill Corle after the bumping incident two weeks earlier. Craig explained he felt extraordinarily disrespected and betrayed by Corle, and his anger was based upon the principle of the matter. However, he denied having anything to do with the murder. Two weeks after the murder, Craig threatened to sue the police because he believed he was being harassed. He left several derogatory messages for the lead detective. He left messages in an irate, angry, and degrading tone of voice. She recalled he said, “You taco eating bitch. You better back off. You don’t know who you’re fucking with.”

Jones contacted Craig for several months after the murder requesting more money. Craig initially refused, but ultimately paid Jones several hundred more dollars. Craig admitted giving Jones $500, but claimed he was being blackmailed.

In later interviews with the police, Craig admitted he knew more about the murder. He claimed Guzman brought Jones to kill Corle because of his dispute over the last computer payment. Craig said he was not involved in the plan. Craig was charged and convicted of first degree murder and conspiracy to commit assault by means likely to produce great bodily injury.

The trial court instructed the jury on several theories of first degree murder, including (1) aiding and abetting premeditated, deliberate first degree murder; (2) felony murder during a robbery or burglary with intent to steal or burglary with intent to rob; and (3) murder based on evidence of an uncharged conspiracy to commit robbery or burglary as a natural and probable consequence of the underlying robbery or burglary.

The jury convicted Craig of first degree murder in violation of section 187, subdivision (a), and conspiracy to commit assault by means likely to produce great bodily injury in violation of section 182, subdivision (a)(1). The jury found true a vicarious gun use enhancement as to the murder count. The trial court sentenced Craig to 25 years to life for murder and a one-year determinate term for the vicarious gun use enhancement. In Craig, supra, G041699, we affirmed.

In January 2019, Craig filed a petition for resentencing pursuant to section 1172.6. The court appointed counsel for him. The prosecutor filed a response, and Craig filed a reply.

Later, the trial judge who presided over the trial in the underlying matter held a hearing to determine whether Craig had made a prima facie case under section 1172.6, subdivision (c), that he was entitled to resentencing. After considering the papers filed by both sides, the trial court took judicial notice of the “entire file People versus Craig, FWV 036874 including but not limited to trial transcripts, jury instructions, verdict forms and the information.”

The court invited argument and asked the parties to explain whether the prosecutor had established beyond a reasonable doubt that Craig was not entitled to relief. Craig did not object to this procedure, but the prosecutor raised a concern about the parties’ right to present additional evidence if the prima facie hurdle had been overcome. The court acknowledged the prosecutor’s concern but invited the parties to proceed with argument anyway, indicating if the need for additional evidence arose, the court would address that need at a later juncture. After hearing argument from counsel, but without receiving any additional evidence, the court ruled “the prima facie showing has not been met because [Craig] could be convicted of first degree murder under aiding and abetting as instructed I will note so there is no prima facie case.” The court stated various facts from memory about the trial and concluded that based on “all of the evidence, briefs and arguments before it that the [prosecution] ha[s] unwittingly [sic] proven their burden of beyond a reasonable doubt that [Craig] could be convicted of first degree murder under aiding and abetting theory just to note.” Craig’s counsel did not ask to present additional evidence, nor did he object to the court proceeding.

Craig filed a timely notice of appeal. He also filed a petition for writ of habeas corpus and asked that the writ petition be consolidated with his appeal. In the petition, he asserts his imprisonment is unlawful because the jury was incorrectly instructed that he could be vicariously liable for first degree murder.[3]

DISCUSSION

Craig argues the trial court erred by denying his resentencing petition under section 1172.6. First, he claims the court erred when it relied on his record of conviction in making its determination whether he had established a prima facie case for relief. The Attorney General contends this claim fails because our Supreme Court recently held that when, as here, the petitioner is represented by counsel, courts can rely on the record of conviction in determining whether the petitioner has made a prime facie case for resentencing relief under section 1172.6. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) We agree. The Lewis court held the parties can, and should, use the record of conviction to assist the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under section 1172.6, subdivision (c). (Lewis, supra,

11 Cal.5th at p. 972.) We discern no error by the court reviewing the record of conviction to determine whether a prima facie case had been made.

Next, Craig contends the court erred when it concluded he had failed to establish a prima facie case for relief. The Attorney General does not dispute this assertion. The record of conviction established the jury convicted Craig of first degree murder under either a felony murder theory or under a direct aider and abettor theory of willful, deliberate, and premeditated murder. The Attorney General concedes the record does not establish, as a matter of law, Craig was ineligible for relief. We accept the Attorney General’s concession. The court should have issued an order to show cause.

The Attorney General asserts, however, that although the court did not formally issue an order to show cause, it nonetheless proceeded as an independent factfinder and concluded the prosecution proved beyond a reasonable doubt Craig remained liable for murder as a direct aider and abettor of willful, deliberate, and premeditated murder. He notes the court invited argument and asked the parties to explain whether the prosecution had established beyond a reasonable doubt Craig was not entitled to relief. The Attorney General opines the court appeared to have adopted a hybrid approach in which it would consider both (1) whether Craig had established prima facie case, and (2) assuming he had, whether the prosecution had sustained its burden to prove beyond a reasonable doubt that Craig was still liable for murder. He asserts the court “essentially proceeded as though it had held an evidentiary hearing on the petition under section [11726.], subdivision (d)(3).”

On this basis, the Attorney General maintains the trial court’s error in failing to issue an order to show cause was essentially harmless. He reasons the error is not fatal to its ultimate conclusion because the record of conviction discloses substantial evidence supporting the court’s denial of the petition for resentencing relief, and we should affirm the denial.

Section 1172.6, subdivision (d)(1), clearly indicates that after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction. Here, the Attorney General concedes Craig made a prima facie showing, an order to show cause should have been issued, and a hearing should have been held. But he argues the court “essentially” held a probable cause hearing when it independently reviewed the evidence and made its finding.

Section 1172.6, subdivision (d)(3), indicates that at the hearing the burden of proof shall be on the prosecution to prove beyond a reasonable doubt the petitioner is guilty of murder or attempted murder as amended. It further provides the following: “The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court 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. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” The statute provides for an actual hearing consistent with the provisions of the statue, not a facsimile thereof.

The Attorney General correctly states the proper standard of review following the denial of a petition under section 1172.6, subdivision (d)(3), is that of

substantial evidence. He asks us to look to the trial court’s findings and conclusion and conclude the court’s decision was supported by substantial evidence. But these findings and conclusions were made without the benefit of a hearing. The trial court skipped a critical step, an evidentiary hearing, where both sides could offer evidence and contest the opposing side’s evidence. The statute clearly states both parties are entitled to a hearing and may rely on the record or new evidence. Craig was not given the opportunity to offer new evidence or fully argue his eligibility because the judge did not issue the order to show cause. Had the court complied with the statute, the proper standard for review would be substantial evidence, but the court did not.

The procedure the Attorney General describes as a hybrid procedure falls short of the evidentiary hearing required by the statute. Despite the prosecutor advising the parties’ right to present evidence, the court proceeded on the basis of the record and its memory of the case. The court referenced a variety of facts, but the exact source of the court’s statements is not clear from the record. That the court proceeded as though it had held an evidentiary hearing is unpersuasive. The court was required to actually hold an evidentiary hearing.

Finally, Craig contends the trial court applied the wrong standard when it proceeded to deny the petition on the ground the prosecution had established beyond a reasonable doubt he was not entitled to resentencing relief. After concluding the court prejudicially erred by failing to hold a hearing, we need not decide this issue. Pursuant to section 1172.6, subdivision (c), the trial court should not have engaged in factfinding without first issuing an order to show cause and allowing the parties to present evidence at a hearing as described in section 1172.6, subdivision (d)(3).

DISPOSITION

We reverse the trial court’s order denying the petition and remand with directions to issue an order to show cause and hold a hearing pursuant to section 1172.6, subdivision (d). We express no opinion about Craig’s ultimate entitlement to relief following the hearing. (§ 1172.6, subd. (d)(2).)

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further statutory references are to the Penal Code, unless otherwise indicated. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion.

[2] The facts are taken from this court’s nonpublished opinion People v. Craig (Feb. 8, 2010, G041699).

[3] In a separate order filed concurrently with this opinion, we summarily deny Craig’s petition for writ of habeas corpus in case No. G060749. The issue raised in the habeas petition is rendered moot by our decision in this appeal.