People v. Smith CA2/8

INTRODUCTION

Appellant Kenneth Edward Smith pled no contest to one count of attempted murder. Smith also admitted that he personally used a firearm during the commission of the offense and that he committed the offense for the benefit of a gang. The trial court sentenced Smith to 29 years in prison. Smith later filed a resentencing petition under Penal Code section 1172.6.1 The People opposed the petition, arguing the preliminary hearing and plea hearing transcripts established that Smith was the actual shooter and, as a result, ineligible for resentencing as a matter of law. The trial court agreed with the People’s position and denied Smith’s petition at the prima facie stage. On appeal, Smith argues the court erred when it denied his petition because the record of conviction does not conclusively establish he is ineligible for resentencing, and the court could not have denied his petition without engaging in impermissible factfinding based on testimony contained in the preliminary hearing transcript. We agree and reverse the order denying Smith’s petition and remand for further proceedings under section 1172.6.

BACKGROUND

1. The preliminary hearing The court conducted a…