Trial court’s denial of Penal Code section 1172.6 resentencing petition affirmed because the record of conviction, including the preliminary hearing transcript, established petitioner was the sole perpetrator of an attempted murder. In 2018 Patton entered into a plea agreement under which he received a stipulated term of 29 years for attempted murder and a gun use enhancement. In January 2022, he petitioned for resentencing (Pen. Code, § 1172.6) and was appointed counsel. The prosecution filed opposition to the facially valid petition. The trial court reviewed the transcripts for the preliminary hearing and the taking of the plea and denied relief. Patton appealed. Held: Affirmed. Pursuant to section 1172.6, as amended by SB 775, a person may seek resentencing where he could not have been convicted of attempted murder because of SB 1437’s changes to the definition of the crime. The Court of Appeal concluded the trial court was not required to issue an order to show cause and conduct an evidentiary hearing under section 1172.6(d)(3) because the record of conviction established Patton was ineligible for resentencing as a matter of law. The testimony of officers at the preliminary hearing, as well as Patton’s admission he personally used a gun, showed that he was the sole and actual perpetrator of the attempted murder. Patton never offered any theory to support his implicit contention on appeal that he was an accomplice and not the person who actually shot the victim. The court disagreed with Patton’s argument that the trial court engaged in factfinding or weighed the evidence. [Editor’s Note: Patton filed a petition for review in the California Supreme Court, which is currently pending. A request to depublish the opinion has also been filed.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B320352.PDF