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Name: People v. Fisher (2023) 95 Cal.App.5th 1022
Case #: B323408
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 09/26/2023

Trial court did not engage in premature factfinding at the prima facie stage of petitioner’s Penal Code section 1172.6 proceedings when it relied on admissions made during his plea colloquy to deny relief. In 1983, Fisher pleaded guilty to first degree murder, second degree murder, and attempted murder, and admitted a personal firearm use enhancement for each count. At the plea colloquy, the prosecutor gave a factual basis addressing Fisher directly, saying “you” “shot and killed” the victims in the murder counts, and “you” “shot and injured” the victim in the attempted murder count. The prosecutor then asked: “Is that a little summary of the facts that I just gave that basically happened that night?” Defendant answered “Yes, sir.” The parties then stipulated to the preliminary hearing transcript as a factual basis for the plea. In 2021, defendant petitioned for resentencing pursuant to section 1172.6. The trial court denied the petition at the prima facie stage on the basis that defendant was the actual shooter. Defendant appealed, arguing his plea contained no admissions regarding his mens rea. Held: Affirmed. In reviewing and relying upon the plea colloquy, which is part of the record of conviction, the trial court did not engage in premature factfinding. The only reasonable view of the record here is that defendant admitted that he was the actual killer/attempted murderer. Because he admitted he was the direct perpetrator, defendant could not have been convicted under the natural and probable consequences doctrine, so malice could not have been imputed to him under that theory. Although defendant could have been convicted under a felony murder theory of murder, malice is still not a required element for actual killers under amended section 189.