The opinion
Filed 7/17/24 P. v. Scarano CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B329064
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA354702)
v.
CHRISTOPHER FRANCIS
SCARANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Reversed and
remanded.
Jonathan E. Demson, under appointment by Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General for Plaintiff and
Respondent.
I. INTRODUCTION
Christopher Francis Scarano (defendant) appeals from an
order summarily denying his petition for resentencing under
Penal Code section 1172.6.1 The trial court relied on the
transcript of the preliminary hearing, finding that defendant
failed to make a prima facie showing that he was eligible for
relief. We reverse.
II. BACKGROUND
A. Underlying Criminal Conviction
On December 1, 2009, the Los Angeles County District
Attorney (District Attorney) filed an information charging
defendant with the murder of Erika Scarano (§ 187, subd. (a))
and alleging that in the commission of that offense, defendant
“personally used a deadly and dangerous weapon, to wit, [a]
knife” (§ 12022, subd. (b)(1)).
On November 4, 2010, defendant pleaded no contest to
voluntary manslaughter (§ 192, subd. (a)) and admitted to
personally using a knife in connection with that crime (§ 12022,
subd. (b)(1)). Defense counsel stipulated that a factual basis
1 All statutory references are to the Penal Code.
The Legislature renumbered section 1170.95 as section
1172.6 effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For
clarity, we will refer to section 1172.6 throughout this opinion.
2
supported the plea.2 The trial court accepted the plea and on
May 9, 2012, sentenced defendant to an aggregate term of 12
years in state prison.
B. Section 1172.6 Proceedings
On July 25, 2022, defendant filed a form section 1172.6
petition for resentencing, declaring that: (1) an information was
filed against him “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”; (2) he “was convicted of . . .
manslaughter following a trial or . . . accepted a plea offer in lieu
of a trial at which he could have been convicted of murder”; and
(3) he “could not presently be convicted of murder . . . because of
changes made to” sections 188 and 189, effective January 1, 2019.
(Emphasis omitted.)
The trial court appointed counsel for defendant.
On September 7, 2022, the District Attorney filed an
opposition to the petition, arguing that defendant was the actual
killer and thus ineligible for resentencing as a matter of law. The
District Attorney attached as an exhibit to its opposition the
transcript from the preliminary hearing. That transcript
included the testimony of a witness who testified that on
March 29, 2009, she saw defendant, whom the victim had
identified as her son, use a knife to repeatedly stab the victim.
Defendant filed a reply.
2 We grant the Attorney General’s request for judicial notice
of the reporter’s transcript of defendant’s plea.
3
On March 6, 2023, the trial court held a hearing to
determine whether to issue an order to show cause and denied
defendant’s petition on the grounds that he had not made a
prima facie showing that he was entitled to relief. The court
cited to the preliminary hearing transcript, the fact that
defendant was the only person named in the complaint and
information, and defendant’s admission to the use of a knife
allegation, to conclude that defendant was the actual killer and
therefore ineligible for relief.
Defendant timely appealed.
III. DISCUSSION
Defendant contends that the trial court erred in denying
his resentencing petition without holding an evidentiary hearing.
We independently review the denial of a resentencing petition at
the prima facie stage. (People v. Harden (2022) 81 Cal.App.5th
45, 52.)
In 2019, the Legislature, through Senate Bill No. 1437
(2017–2018 Reg. Sess.), amended section 188 to eliminate the
natural and probable consequences doctrine as it applies to
murder and to require, with certain exceptions under the felony-
murder rule, that a defendant act with malice to be convicted of
murder. (§ 188, subd. (a)(3).) Section 1172.6 now permits a
person who was convicted of murder under a theory in which
malice is imputed to a person based solely on that person’s
participation in a crime, or manslaughter, to file a petition with
the sentencing court to vacate the conviction and be resentenced.
(§ 1172.6, subd. (a).)
Under section 1172.6, a defendant convicted by plea of
4
voluntary manslaughter must attest to the following: “(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 . . . . [¶] (2) The petitioner was convicted of . . .
manslaughter following . . . a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder . . . . [¶]
(3) The petitioner could not presently be convicted of murder . . .
because of changes to [s]ection[s] 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subds. (a)(1)–(3), (b)(1).)
“After a petition for resentencing is filed, the trial court
must then determine whether the defendant has made a prima
facie showing of entitlement to relief under section [1172.6]”
(People v. Davenport (2021) 71 Cal.App.5th 476, 480.) “The
record of conviction will necessarily inform the trial court’s prima
facie inquiry under section [1172.6], allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless . . . . [¶] While the trial court may look at the
record of conviction after the appointment of counsel to determine
whether a petitioner has made a prima facie case for section
[1172.6] relief, the prima facie inquiry under subdivision (c) is
limited . . . . ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citations.] ‘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.”’”
(People v. Lewis (2021) 11 Cal.5th 952, 971.) “In reviewing any
5
part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ [Citation.] . . .
[T]he ‘prima facie bar was intentionally and correctly set very
low.’” (Id. at p. 972.) “At the prima facie stage, a court must
accept as true a petitioner’s allegation that he or she could not
currently be convicted of a homicide offense because of changes to
[s]ection[s] 188 or 189 made effective January 1, 2019, unless the
allegation is refuted by the record. [Citation.] And this
allegation is not refuted by the record unless the record
conclusively establishes every element of the offense.” (People v.
Curiel (2023) 15 Cal.5th 433, 463.) If the petitioner makes a
prima facie showing of eligibility, the trial court must issue an
order to show cause and hold an evidentiary hearing. (Ibid.)
Here, defendant made a prima facie showing that he was
eligible for relief that was not refuted by the record as a matter of
law. Because the information charged defendant with the generic
crime of murder, the prosecution could have proceeded on a
theory of murder under the natural and probable consequences
doctrine, felony murder theory, or other imputed malice theory.
(See § 1172.6, subd. (a)(1); People v. Davenport, supra, 71
Cal.App.5th at p. 484.) Further, defendant declared that he was
convicted of manslaughter following a plea offer in lieu of a trial
at which defendant could have been convicted of murder and that
he could not presently be convicted of murder because of changes
to sections 188 or 189.
The trial court nonetheless found that defendant’s record of
conviction demonstrated that he was the actual killer and
therefore ineligible for relief as a matter of law. We disagree.
Defendant pleaded no contest to manslaughter but he did not
6
admit that he was the actual killer. Further, although defendant
admitted that a factual basis supported his plea, he did not
stipulate that the preliminary hearing transcript supplied the
factual basis for his plea. Reliance upon facts taken from the
preliminary hearing transcript is “‘impermissible factfinding’ at
the prima facie stage . . . .” (People v. Davenport, supra, 71
Cal.App.5th at p. 482; People v. Williams (June 28, 2024,
F085868) ___ Cal.App.5th___ [2024 WL 3248695, *11] [“the
preliminary hearing transcript does not conclusively establish a
defendant’s guilt, let alone any particular theory of guilt”]; People
v. Estrada (2024) 101 Cal.App.5th 328, 339.) Likewise,
defendant’s admission that defendant personally used a deadly
weapon did not establish as a matter of law that he was ineligible
for resentencing relief. (See People v. Jones (2003) 30 Cal.4th
1084, 1120, italics added [a “finding of personal use . . . [does] not
in itself prove [a] defendant was the actual killer” or
perpetrator].)
Accordingly, the trial court erred in denying defendant’s
petition at the prima facie stage.
7
IV. DISPOSITION
The order denying defendant’s section 1172.6 petition is
reversed. The matter is remanded to the superior court with
directions to issue an order to show cause and to thereafter
proceed as required by section 1172.6, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
I concur:
BAKER, Acting P. J.
8
People v. Christopher Francis Scarano
B329064
LEE, J., Dissenting.
I respectfully dissent from the reasoning and disposition in
this case. I would affirm the trial court’s summary denial of
1
defendant’s petition under Penal Code section 1172.6 because
the uncontroverted record shows that defendant was charged as
the actual killer who acted alone, thereby refuting his declaration
of eligibility for relief in his form petition. Following the
appointment of counsel and briefing, defendant offered nothing
that would undermine this conclusion. Under these
circumstances, denial at the prima facie stage is appropriate and
serves the function of distinguishing petitions with potential
merit from those that are clearly meritless.
BACKGROUND
Erika Scarano died from multiple stab wounds on
2
March 29, 2009. Cherylynn Delfino was the sole witness to
testify at the preliminary hearing in November 2009. We draw
the facts from her testimony. At the time of the killing, Delfino
lived in a garage that had been converted to a small residence
behind the main house, where Erika resided. One Sunday,
Delfino and Erika attended church together, as they did each
Sunday, and then returned to their respective homes. After
resting awhile, Delfino “peek[ed]” into the main house through
1
All further statutory references are to the Penal Code.
2
Because the victim and defendant share the same last
name, the former is referred to by first name (Erika).
the back door, which she did “quite often.” She saw defendant
sitting at the table, and Erika introduced him to her as her son,
stating: “Everything is fine. You don’t need to call 911.” Delfino
entered the kitchen and spoke with Erika for a few minutes,
while defendant sat quietly at the kitchen table. Delfino then
returned to her residence to get ready for work. About an hour
later, Delfino left her house to go to work. As she locked her front
door, she “heard a shrieking sound” coming from the main house.
Delfino ran into the main house and saw Erika seated in
her kitchen chair, with defendant bent over her thrusting his
hand downward quickly and repeatedly. Delfino tried to pull
defendant off of Erika and yelled at him to stop, but to no avail.
At some point, the chair where Erika sat fell, and Delfino saw a
knife in defendant’s hand. Delfino yelled that she was calling 911
and ran out of the house, at which point defendant stopped
stabbing Erika, ran outside, made “a digging motion” in the yard,
and ran away. Delfino returned to the main house and found
Erika lying on her stomach on the kitchen floor.
Delfino was cross-examined. The parties stipulated that
the medical examiner would testify to his determination that
Erika died from multiple stab wounds to the chest and neck.
Defense counsel then moved to dismiss for insufficiency of the
evidence, arguing that no evidence was presented to show “malice
aforethought, . . . premeditation, [or] deliberation,” and urging,
“at most what we have here is . . . a second degree [murder].”
In November 2010, defendant pled no contest to voluntary
manslaughter (§ 192, subd. (a)) and admitted to the allegation
that he personally used a knife (§ 12022, subd. (b)). Defense
counsel stipulated to the existence of a factual basis for the plea,
without specifying any evidence supporting such facts. The trial
2
court accepted the plea and sentenced defendant to 12 years in
state prison, which included 11 years for the voluntary
manslaughter, and one year for the enhancement.
In July 2022, defendant petitioned for resentencing under
section 1172.6 by filing a form petition with the boxes checked to
allege the following requirements under the statute: (1) an
information was filed against him “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”; (2) he “was convicted of
murder, attempted murder, or manslaughter following a trial
or . . . accepted a plea offer in lieu of a trial at which he could
have been convicted of murder or attempted murder”; and (3) he
“could not presently be convicted of murder or attempted murder
because of changes made to” sections 188 and 189, effective
January 1, 2019. Defendant did not support his petition with a
declaration or any other representation of the facts surrounding
Erika’s killing.
The court appointed counsel for defendant, and the People
filed an opposition to his resentencing petition, arguing that he
was ineligible for relief as the actual killer, and attaching the
preliminary hearing transcript. Defendant filed a reply, arguing
that “[w]hile the court can consider admissible evidence that was
presented at the preliminary hearing, the court should refrain
from the wholesale adoption of the preliminary hearing
transcript,” and that the court should issue an order to show
cause “[s]ince [its] inquiry at this stage of the proceedings is
narrow,” and the “very limited admissible evidence at the prima
facie stage” does not show defendant is ineligible for relief as a
3
matter of law. Defendant did not otherwise address the People’s
claim that he was convicted as the actual killer.
DISCUSSION
Denial of a resentencing petition at the prima facie stage is
subject to independent review. (People v. Harden (2022)
81 Cal.App.5th 45, 52.) “A defendant seeking relief under section
1172.6 must ‘file a petition’ alleging entitlement to relief along
with ‘[a] declaration’ attesting to eligibility for relief. (§ 1172.6,
subds. (a) & (b)(1)(A).) If the defendant ‘makes a prima facie
showing’ of entitlement to relief (that is, if the record of
conviction does not establish ineligibility for relief as a matter of
law), then the court must in most cases convene an evidentiary
hearing where the People bear the burden of establishing beyond
a reasonable doubt that the defendant is guilty of the pertinent
crime under the new, narrower definitions. (§ 1172.6, subds. (c)
& (d).)” (People v. Duran (2022) 84 Cal.App.5th 920, 927.)
To trigger further proceedings, a petition must allege the
three statutory conditions of eligibility set forth in section 1172.6,
subdivision (a), that the defendant: (1) faced charges allowing
the People to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine, or other
theory of implied malice, (2) was convicted of murder, attempted
murder, or manslaughter or pled guilty when they could have
been convicted of murder or attempted murder, and (3) “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, subd. (a)(1)-(3).)
To satisfy this pleading requirement, defendants typically
use a form with boxes next to sentences restating the language
from section 1172.6, subdivision (a)(1), (2), and (3) and place
4
check marks in these boxes. That was the case here. With
respect to the third condition of eligibility, the checkbox form
“offers nothing more than [the] conclusory assertion” that
defendant “ ‘could not presently be convicted of murder or
attempted murder because of changes made’ ” to sections 188 and
189. (People v. Mares (2024) 99 Cal.App.5th 1158, 1165 (Mares),
review granted May 1, 2024, S284232.)
The trial court correctly determined that defendant failed
to make a prima facie showing because the uncontroverted facts
in the record refute his conclusory assertion that he could not be
convicted today “because of” the 2019 changes to section 188 and
189. The preliminary hearing transcript reflects the People’s
basis for charging defendant with murder. (People v. Reed (1996)
13 Cal.4th 217, 223 [the preliminary hearing transcript “reliably
reflect[s] the facts of the offense for which the defendant was
convicted”]; accord Mares, supra, 99 Cal.App.5th at p. 1167.)
The preliminary hearing transcript contained testimony from a
percipient witness, as opposed to testimony offered under section
3
872, subdivision (b). The witness—a neighbor and companion of
the victim—testified that she tried to pull defendant off of his
adoptive mother to stop him from stabbing her further. The
percipient witness was cross-examined by defense counsel, and
no contradictory facts were adduced. Thus, the preliminary
hearing transcript provides no occasion to weigh conflicting
evidence. The uncontroverted facts in the conviction record leave
no room to infer that the People were pursuing a theory under
3
A probable cause finding at a preliminary hearing may be
based on the testimony of a qualified officer who relates hearsay
statements of witnesses made out of court and offered for their
truth. (§ 872, subd. (b).)
5
which anyone other than defendant killed or was involved in the
killing of Erika. “ ‘[I]f 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.” ’ ” (People v. Lewis
(2021) 11 Cal.5th 952, 971 (Lewis).)
Contrary to defendant’s assertions, we need not weigh the
evidence or credit the truth of the testimony in the preliminary
hearing transcript to conclude that the record of conviction
supports no theory other than that defendant was the actual
killer, acting alone. (Mares, supra, 99 Cal.App.5th at pp. 1167-
1168 [“It does not matter whether any fact offered at the hearing
was correct. . . . No facts [alleged or substantiated by evidence]
support a theory that he was an accomplice to a murder
committed by some other person”]; cf. People v. Estrada (2024)
101 Cal.App.5th 328, 340 [where preliminary hearing transcript
suggested involvement of multiple perpetrators, reliance on
transcript to deny a petition at prima facie stage “would require
the court to engage in impermissible factfinding”].) The
preliminary hearing testimony sets forth the factual allegations
upon which the People charged defendant with murder, even if
not agreed to as the factual basis for defendant’s plea. (See
People v. Davenport (2021) 71 Cal.App.5th 476, 483 [prima facie
inquiry is a test of allegations, not of the truth of the allegations
or the credibility of the evidence on which they may rely].)
The remainder of the record of conviction is consistent with
the People’s theory as evidenced by the preliminary hearing
transcript. The parties stipulated that the medical examiner
determined multiple stab wounds caused Erika’s death.
Defendant was the sole person charged in the information, and
6
he was charged with murder and the personal use of a knife.
He pled to voluntary manslaughter, admitting that he personally
used a knife during the incident. There is no suggestion in the
record of any lesser crimes that defendant might have aided and
abetted; nor were any charged. There is no indication any person
other than defendant, the victim, and the neighbor were present
at the incident. Although the conclusory allegations defendant
made by checking the boxes on the form petition might have
otherwise sufficed for a prima facie showing, the record of
conviction (including the preliminary hearing transcript) shows
the actual killer theory as the only theory on which defendant
could have been convicted. In other words, the record forecloses
the possibility that defendant “could not presently be convicted of
murder . . . because of changes” to sections 188 and 189.
(§ 1172.6, subd. (a)(3).)
For defendant to assert that the changes to sections 188
and 189 would make him not guilty under today’s law, he needed
to “assert he would have defended himself with a theory that he
was guilty of assisting some other (heretofore unidentified)
person with some other (heretofore unidentified) crime that
resulted in that person killing the victim.” (Mares, supra,
99 Cal.App.5th at p. 1168.) Defendant made no such assertion in
his petition; he merely checked the box next to the conclusory
statement that he could not be convicted under the changed law.
In opposing the petition, the People observed that the evidence at
the preliminary transcript hearing only showed defendant as the
actual killer. In his reply brief, defendant did not argue that he
was not the actual killer; rather, he urged “the court [to] refrain
from the wholesale adoption of the preliminary hearing
transcript.” At the prima facie hearing, defense counsel
7
submitted on the People’s argument that defendant was
convicted as the actual killer. And the facts that can be gleaned
from the record are plainly inconsistent with a defense that he
was assisting some other person with a different crime that
resulted in that person killing his adoptive mother. (Cf. People v.
Rivera (2021) 62 Cal.App.5th 217, 235 [record showed there were
multiple perpetrators and defendant was not the actual killer,
such that record did not “definitively establish” that defendant
was not convicted under now abrogated theory of murder]; People
v. Eynon (2021) 68 Cal.App.5th 967, 978 [where defendant had a
codefendant, pled guilty to murder during commission of robbery,
and alleged in his resentencing petition he was not the actual
killer, denial at prima facie stage was error].) The
uncontradicted facts in the record of conviction “make
impossible[, i.e., directly contradict,] the third allegation”
necessary to establish a prima facie case. Under such
circumstances, “[o]ther, significant, contradictory facts would
need to be offered to have a basis to conclude that Senate Bill
1437 could have made a difference in [defendant’s] decision to
plead guilty.” (Mares, supra, 99 Cal.App.5th at p. 1167.)
Defendant has offered none. There is thus no need for an
evidentiary hearing.
This conclusion comports with the Lewis court’s affirmation
that “[t]he record of conviction will necessarily inform the trial
court’s prima facie inquiry . . . allowing the court to distinguish
petitions with potential merit from those that are clearly
meritless. This is consistent with the statute’s overall purpose: to
ensure that murder culpability is commensurate with a person’s
actions, while also ensuring that clearly meritless petitions can
be efficiently addressed as part of a single-step prima facie review
8
process.” (Lewis, supra, 11 Cal.5th at p. 971; accord People v.
Curiel (2023) 15 Cal.5th 433, 460; see People v. Williams (June
28, 2024, F085868) ___Cal.App.5th ___ [2024 Cal.App. Lexis 429,
*52] (dis. opn. of Meehan, J.).) Because the record forecloses any
basis for the People to have proceeded against defendant on a
now abrogated theory of murder liability, and defendant has not
offered alternative facts upon which the People might have so
proceeded, the trial court correctly denied his resentencing
petition at the prima facie stage.
For these reasons, I respectfully dissent.
*
LEE, J.
*
Judge of the San Bernardino County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
9