The evidence presented at the hearing on defendant’s resentencing petition (Pen. Code, § 1172.6) was insufficient to support a finding of attempted robbery. Burgess appealed the trial court’s denial of his resentencing petition, rendered after the court conducted an independent analysis of the record and evidence presented at a hearing. He argued that that the trial court’s factual findings revealed the crime of attempted theft by false pretenses and not attempted robbery (attempted robbery was the predicate felony to felony murder). Held: Reversed. After defendant was convicted in the underlying case, People v. Williams (2013) 57 Cal.4th 776 clarified the difference between robbery, which requires a trespassory taking, and theft by false pretenses, which involves a consensual transfer of property. After analyzing Williams and and the trial court’s factual findings, the Court of Appeal concluded there was insufficient evidence that defendant committed attempted robbery as the predicate felony to felony murder. Instead, the trial court found defendant and his cousin shared an intent to shortchange or rip off the victim by exchanging fraudulent money for an unaltered product and, when the situation escalated, defendant’s cousin shot the victim. Because the predicate offense necessary for felony murder was absent, reversal was required.

Following defendant’s section 1172.6(d)(3) evidentiary hearing, collateral estoppel did not preclude the trial court from determining whether he committed attempted robbery as the predicate felony because the law governing robbery was clarified after his conviction. On appeal the People argued principles of collateral estoppel preclude a trial court from departing from a jury’s predicate felony finding. The Court of Appeal disagreed. The trial court was not bound by the jury’s findings. Even when the requirements for issue preclusion are met, that doctrine does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue. After defendant’s conviction, Williams clarified the law governing the felonious taking element of robbery and the clarification was highly relevant in defendant’s case. The Court of Appeal concluded the trial court provided the required independent findings. However, the independent findings required reversal, as they did not describe a predicate felony (see above).

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C094813M.PDF