Opinion

People v. Scarano CA2/5

Court
California Court of Appeal
Filed
Jul 17, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.3%

The opinion

Filed 7/17/24 P. v. Scarano CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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